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+"{\"id\": \"11271919\", \"name\": \"FRED H. JUNG, Appellant, v. BEN MYER, Appellee\", \"name_abbreviation\": \"Jung v. Myer\", \"decision_date\": \"1902-04-25\", \"docket_number\": \"No. 933\", \"first_page\": \"378\", \"last_page\": 391, \"citations\": \"11 N.M. 378\", \"volume\": \"11\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:48:27.559810+00:00\", \"provenance\": \"CAP\", \"judges\": \"Parker,-Mills, McFie and Baker, JJ., concur.\", \"parties\": \"FRED H. JUNG, Appellant, v. BEN MYER, Appellee.\", \"head_matter\": \"[No. 933.\\nApril 25, 1902.]\\nFRED H. JUNG, Appellant, v. BEN MYER, Appellee.\\nSYLLABUS.\\n1. Laws 1901, c. 82, authorizing appeals to the Supreme Court from interlocutory orders affecting substantial rights, is invalid, as being in conflict with the organic act, providing that appeals shall be allowed in all eases \\u201cfrom final decisions of district courts to the Supreme Court, under such regulations as may be prescribed by law.\\u201d\\n2. An order vacating an attachment is not a final decision, within the provision of the organic act authorizing an appeal to the Supreme Court from final decisions of the district court.\\nAppeal from the district court of Bernalillo county, before J. W. Crump acker, Associate Justice.\\nAppeal dismissed.\\nR. W. D. Bryan, for appellant.\\nJurisdiction of the court is a matter of statutory regulation.\\nSection 10 of tbe Organic Act, establishing the Territory of New Mexico; Kearney Code, section 9 on Courts and Judicial Powers.\\nSee also sections 868, 879, 3136, 3137, Compiled Laws, 1897, and subsections 160 and 161 of section 2685, Compiled Laws, 1897.\\nThe jurisdiction of the Supreme Court was greatly enlarged by Act of March 21, 1901.\\nLaws of New Mexico, 1901, p. 159.\\nAn order such as is involved in this case is appeal-able.\\nSherman v. Boehm, 15 Alb. N. C. (N. Y.) 251, 7 N. Y. Civil Proc. 54; Tharin v. Seabrook, 6 S. C. '113; Belesena Coal Min. Co. v. Liberty Dredging Co., 53 N. Y. Sup. 747; Murphy v. Weil, 57 Wis. 1112.\\nSee also Walters v. Starnes, 24 S. E. (N. C.) 713.\\nNiell B. Field for appellee.\\nThe Legislature of New Mexico has attempted to confer upon this court jurisdiction to review the action of the district courts in certain enumerated cases, where the judgments authorized to be reviewed are confessedly not final in character. Such legislation is inconsistent with, if not in direct conflict with the organic act of the Territory.\\nCompiled Laws of New Mexico, 1897, p. 43.\\nThe appellate jurisdiction of this court is derived from the organic act and not from the acts of the Legislature. The appellate jurisdiction prescribed by the organic act precludes the exercise of any other appellate iurisdiction.\\nSyllabus in 7 Wallace 506; Ferris v. Hig-ley, 20 Wallace 375; Harris M'fg. Co. v. Walsh, 2 Dakota 43.\\nLegislation attempting to confer jurisdiction upon the Supreme Court to review judgments not final in character is void.\\nN. P. Irrigation Company v. Canal Co., 46 Pac. (Utah) 824; Eastman v. Gurrey, 46 Pac. 828.\\nIn 1882 the Legislature passed an act which is compiled as section 529 of the Compiled Laws of 1884 as follows: \\u201cThe Supreme Court shall hold two sessions annually at the seat of government, commencing on the first Monday in January and the second Monday in June, and continue until the business on hand is disposed of.\\u201d This act was always ignored because it was inconsistent with the provision of the organic act requiring the holding of only one term annually. The Legislature approved the \\u201cone term\\u201d construction.\\nLaws of New Mexico, 1891, p. 36.\\nAgain in 1899 the Legislature approved the \\u201cone term\\u201d construction by fixing the time for holding the one term on the first Wednesday after the first Monday in January and by providing for adjournments of such term from time to time.\\nLaws of New Mexico, 1899, p. 26.\\nSTATEMENT OF THE CASE.\\nThis is an appeal from an order of the district court of the Second judicial district, denying plaintiff\\u2019s motion to strike the answer of the defendant from the records, and for judgment by default.\", \"word_count\": \"4234\", \"char_count\": \"25182\", \"text\": \"OPINION OF THE COTJET.\\nMcMILLAN, J.\\nIt is urged on behalf of the re\\u00a1-spondent that this court is without jurisdiction to hear the appeal taken herein, as the act of the Legislature authorizing appeals where the judgment appealed from is not final in its character, is inconsistent with if not in direct conflict with the organic act of the Territory.\\n1 The provisions of chapter 82 of the Laws of 1901, under which it is claimed on behalf of appellant that this appeal is authorized, are as follows: \\\"The Supreme Court of the Territory shall have exclusive jurisdiction to review upon appeal or writ of error all judgments, orders and decrees, made or rendered in the district courts in either of the following-cases: (a) Where a final judgment has been rendered in an action commenced in the district court, or a justice of the peace; also to review an interlocutory judgment or order or decree involving the merits of any cause, and necessarily affecting the final judgment, (b) Where an order, judgment or decree has been made or rendered in any action affecting a substantial right, which either 'in effect determines the action, or prevents a final judgment, or discontinues the action, or grants, or refuses a new trial, or determines a statutory provision of the Territory to be .unconstitutional or in conflict with the organic law of the Territory, or determines a demurrer which goes to the substantial right of the case, (c) Where a final order, judgment or decree affecting a substantial right has been made in a special proceeding or upon a summary application in an action after judgment, and any intermediate order, judgment or decree, involving the merits of the action. When an order or Judgment dissolving or sustaining an attachment is rendered in the district court, such order or judgment may be reviewed on appeal or writ of error, taken or sued out by any person aggrieved thereby.\\\"\\nThis act clearly authorizes an appeal from an interlocutory order affecting a substantial right, and unless its. provisions are in conflict with the organic act, the questions presented by the appeal are properly before this court.\\nThe provisions of the organic act limiting the jurisdiction of the Supreme Court upon appeals, in so far as the same are material to the questions herein presented, are as follows:\\n\\\"That the judicial power of said Territory shall be vested in a Supreme Court, district courts, probate courts, and in justices of the peace. . . . The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided . . . That the said Supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction. . . . Writs of error, bills of. exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by lam, but in no case removed to the Supreme Court, shall trial by jury be allowed in said-court. . . .\\\"\\nThese provisions are limitations on the' appellate jurisdiction of this court, and must he considered in connection with the legislative power and authority granted by the organic act, which are as follows: .\\n\\\"That the legislative power of the Territory, shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act.\\\"\\nThe language used in the organic act regulating writs of error, hills of exception and appeals, is clear and specific. It provides that they \\\"shall he allowed in all cases from the final decision of said district courts to the Supreme Court, under such regulations as may be prescribed by law.\\\"\\nThe Supreme Court derives its appellate jurisdiction from the organic act, and by the terms of the act itself, it has no appellate jurisdiction except from final decisions of the district courts. It was by the provisions of the organic act that the Supreme Court was brought into existence, and all of its jurisdiction is derived from the organic act and subsequent congressional legislation. Arellano v. Chacon, 1 N. M. 269, in which the court says:\\n\\\"The judicial powers of this Territory are clearly vested and carefully distributed by Congress, in what is termed the organic act. This act declares that the several courts, both appellate and original, and those of the probate and justices of the peace, should have jurisdiction as limited by law. It then immediately proceeds to prescribe by law, limits to justices of the peace, and confining them beyond the power of the Territorial legislature to enlarge, and in very sane sentence vests the Supreme and district courts 'with chancery as Avell as common law jurisdiction.' So plain and complete am endowment of judicial power in the courts of highest dignity and authority in the Territory must be taken as negativing the like jurisdiction in the inferior courts, as also excluding the Legislature from the authority to clothe them with the jurisdiction so affirmatively reposed in the Supreme and district courts.\\\"\\nIt has been urged, not only in the case at bar, but elsewhere, that the words of the organic act, \\\"The jurisdiction of the several courts herein provided for, both appellate- and original, and that of the probate courts, and of justices of the peace, shall he as limited hy law ,\\\" delegates to the territorial Legislature the power to regulate the jurisdiction of the several courts. We can not approve of this construction, for the reason that the organic act, after the words above quoted, further provides that, \\\"The said Supreme Court and district courts, respectively shall possess chancery as well as common law jurisdiction,\\\" and further, \\\"Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by law, but in no cause removed to the Supreme Court shall trial by jury be allowed in said court.\\\"\\nIt will be seen from these quotations from the organic act, that the jurisdiction of the Supreme and district courts has been specifically defined, first that they shall possess chancery and common-law jurisdiction, and that the Supreme Court shall have appellate jurisdiction, and that writs of error, bills of exception, and ap peals shall be allowed in all cases from the final decisions of the district courts to the Supreme Court. It will be observed that the procedure by which writs of error, bills of exception, and appeals, are perfected, is left to the legislative assembly by the use of the words, \\\"under such regulations as may be prescribed by law.\\\" It is only the regulation of procedure that is delegated to the legislative assembly, whereas the words used in connection with the-jurisdiction of the several courts are of an entirely different purport.\\nIn Huntington v. Moore et al., 1 N. M. 471, the court says:\\n\\\"That part of the organic act which provides that appeals shall be allowed 'under such regulations as may be prescribed by law,' is only intended to give to the Legislature the power of prescribing the manner in which appeals may be taken after final judgment or decree is had. This power they appear to have exercised, and have prescribed the manner in which appeals may be taken to the Supreme Court on final judgment or decree.\\\"\\nThe first declaration in the organic act touching the \\u2022question of jurisdiction, is to the effect that \\\"the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, and of justices of the peace, shall be as limited by law.\\\" Then follow the various specific limitations as to the jurisdiction of the Supreme and district courts; so that we must conclude, upon a fair construction, that the words, \\\"shall be as limited by law,\\\" refer to the subsequent specific provisions touching the jurisdiction of such courts as are set forth in the- organic act itself.\\nIn Archibeque v. Miera, 1 N. M. 160, the court says: \\\"The jurisdiction of these several courts is thus limited by the organic law as to their appellate and original poAvers. It fixes their character; and that portion of the organic act which provides that the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law, provided, etc., it does not confer upon the Legislature the power to bestow upon the Supreme Court original jurisdiction, nor appellate powers upon the other courts therein mentioned. It only provides that the jurisdiction of the Supreme Court, with its appellate power, shall be as limited by law.\\\"\\nSome weight and potency must be given to the declaration in the organic act wherein it declares that writs of error, bills of exception and appeals, shall be allowed in all cases from final decisions of the district courts to the Supreme Court. These are words of limita: tion which can not be disregarded, and the use of them in fixing the jurisdiction of the court necessarily implies, according to the well-established rules of constitutional and statutory construction, that every other right excepting those designated is denied.\\n\\\"No niaxim of law is of more general and uniform application than 'exprcssio unius est exclusio aUerius.' This is 'never more applicable than when applied to the interpretation of a statute.'\\n\\\"In a Territory the constitution and laws of the United States and especially the organic act of the Territory itself, stands exactly in the relation a State constitution occupies in a State. All Territorial enactments not consistent with them are null and void.\\\" In matter Attorney-General, 2 N. M. 49.\\nTerritory v. Ortiz, 1 N. M. 5, in which the Territorial Legislature attempted to extend the jurisdiction of the court by the adoption of the provisions of the Kearny code. In this case the court says:\\n\\\"The fact that the legislative assembly continued in force the Kearny code does not affect the matter; for, if the legislative assembly had power to adopt the organic law in the Kearny code, and enforce obedience to its requirements, it wmuld be the virtual assumption of sovereignty, and operate as a repeal of the form of government furnished by Congress for this Territory. It has been repeatedly decided in courts of the highest authority, that an affirmative grant of original jurisdiction implies a negative upon its exercise in any other case.\\\"\\nIn construing constitutional enactments, no power is conferred by implication, except that which is essential to carry delegated power or authority into effect.\\nAlthough the constitution is not a grant of power to the Legislature, but a limitation upon its general powers, which it may exercise where not restrained by constitutional provisions, yet the judiciary can exercise no power not conferred by the constitution. Field v. People, 3 Ill. 79.\\nIt is urged on the part of the respondent that the limitation contained in the organic act is a limitation placed upon the Territorial Legislature, and not a limitation placed upon the appellate jurisdiction of this court. That the Legislature should not have the power -to take away from the people their right of appeal to the Supreme Court from all final decisions of the district court, leaving it at the option of the Territorial Legislature to enlarge the appellate jurisdiction of this court from causes other than final decisions of the district-court, and by other means than by appeal or writ of error.\\nLocal laws can never confer jurisdiction on the courts of the United States; they can only furnish rules to ascertain the rights of parties, and thus assist in the administration of the proper remedies where the jurisdiction is vested by the laws, of the United States. The Steamboat Orleans v. Phoebus, 11 Peters 175.\\nIn North Point C. I. Co. v. Utah and Salt Lake Canal Co., 46 Pac. 824 the court says:\\n\\\"In each the right of appeal is from a final judgment. If the intention was to guaranty the right of appeal from a final judgment, and confer upon the Legislature implied power to authorize appeals in all other cases from the district courts, then the same guaranty with implied powers is also retained, and to be applied to justices' courts as well as the courts in the administration of estates. It would he no answer to this that the Legislature had previously conferred the power in one case and withheld it in the other. If the power exists in the Legislature, the right could be conferred upon justices' courts at any time. It is apparent that such an unfortunate construction or implication was not contemplated nor intended. It would be presuming top much to say that the framers of the constitution were fearful that the Legislature would enact laws preventing appeals from final judgments, and that, therefore, this provision was inserted, giving a guaranty of the right of appeal from such judgments, thus leaving to the Legislature the right to enact laws allowing appeals from interlocutory orders. Especially is this so when we consider the fact that nearly every State in the Union allows appeals from final judgment, and restricts or prohibits appeals from interlocutory orders as being against the policy of the law. The framers of the constitution could not have anticipated that the Legislature would do an unreasonable thing, and thus taire away the right of appeal from a final judgment, when that right has grown to he almost inherent, and yet use words sufficient to authorize it to do that which in most states is considered questionable, and by eminent law writers to be against the policy of the law.\\nIn granting the right of appeal from all final judgments the people intended to grant the right of appeal from all final judgments only. The Supreme Court, being a creature of the constitution, has only such powers as are therein conferred upon it. The only jurisdiction that is conferred by the constitution upon the Supreme Court in appeal cases is appeals from final judgments. There is no express declaration that appeals shall not lie from judgments other than final judgments but the court considers the affirmative declaration, as used in the section, that 'from all final judgments of the district court, there shall be a right of appeal to the Supreme Court/ as manifesting the intent of the framers of the constitution to except from the appellate jurisdiction of the Supreme Court appeals from the district courts, other than appeals from final judgments. This intention and implication is founded on the manifest intent of the framers of the constitution, and upon the general rules of construction that the expression of one thing in the constitution implies the necessary exclusion of things not expressed. We are of the opinion that when the framers of section 9 used the terms, 'from all final judgments of the district court there shall he a right of \\u00a1appeal to the Supreme Court/ they intended to deny the right of appeal to the Supreme Court in all other case's, although no express terms of negation were used.\\\"\\nIt is immaterial whether the above case was commenced while Utah was yet a Territory, and under the provisions of the organic act, or was decided after it had become a State and had adopted a constitution. The principle enunciated therein is the same as the principle involved in the case at bar. Are the limitations in the organic act limitations upon the power of the Legislature, or are the limitations upon the jurisdiction of the Supreme Court? We can arrive at no other conclusion than that it was the intention of Congress, by using the term \\\"final judgments\\\" in the organic act, to limit appeals to the Supreme Court to appeals from final judgments, and by the use of that term it excluded appeals from interlocutory orders with the same force and effect as though such provisions were embodied in the organic act itself.\\nDurousseau v. United States, 10 U. S. (6 Cranch) 307, Chief Justice Marshall says:\\n\\\"The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and bj such otter acts as have been passed on the subject. When the first Legislature of the Union proceeded to carry the third article of the constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court. They have not, indeed, made these exceptions in express terms. They have not declared, that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description had been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.\\\"\\nTo the same effect is Ex parte McCardle, 7 Wall. 506, in which the Chief Justice says:\\n\\\"The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions of the constitutional grant of it.\\\"\\nIn Hornbuckle v. Toombs, 18 Wall. 648, the court says:\\n\\\"From a review of the entire past legislation of Congress on the subject under consideration, our conclusion is that the practice, pleadings, and forms and modes of proceeding of the Territorial courts, as well as their respective jurisdictions, subject, as before said, to a. few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the Territorial assemblies, and to the regulations which might be adopted by the courts themselves.\\\"\\nFrom this last decision it clearly appears that the Supreme Court of the United States recognized the express and implied conditions of the organic act wherein the jurisdiction of this court is limited in the organic act, leaving to the Legislature all questions touching the practice, pleading, form and mode of procedure, and in the establishment of new rights and remedies within their legislative power it may direct in what court they shall be had. Ferris v. Higley, 20 Wall. 375.\\nIn Harris Manufacturing Co. v. Wallace, 2 Dak. 41, Mr. Justice Moody, for the court, says:\\n\\\"This court is the creature of Congress. By the acts of Congress and by the force of those acts only has this court any existence. Its appellate powers and jurisdiction are derived solely from those acts. The law of no other tribunal can confer them. Just so far as Congress has conferred appellate powers and jurisdiction, either by direct enactments or through delegated authority, it possesses them and can exercise them, and it does not possess and cannot exercise other or greater powers. When Congress enacts that this court shall ,have appellate jurisdiction over final decisions of the district courts, the act operates as a negation of such jurisdiction in other cases.\\n\\\"It is true that section 1866 of the.United States Revised Statutes provides that the jurisdiction of the Supreme Court, as well as the district court, both appellate and original, shall be as limited by law; but when construed with section 1869 cannot be held as authority for enlarging the jurisdiction of the Supreme Court in the exercise of its appellate powers beyond the cases provided in section 1869, but must be construed only as authority to limit its jurisdiction Avithin the limitation prescribed by that section.\\n\\\"By what authority, then, can this court hear and determine this appeal from a mere order before final judgment? It is said to be claimed under the authority of the Territorial enactment regulating appeals. My OAvn view of that statute is, that it should be construed as a mere regulation under, and subordinate to, said section 1869, and as providing what orders may be re-vieAved when appealed from in conjunction with the appeal from the final judgment, and after final termina tion of the litigation in the district court; and when so construed, can be sustained. But if it is to be construed as enlargement of the appellate powers and jurisdiction of the Supreme Court to the extent that independent appeals may he taken in cases like the one under consideration, or from mere interlocutory orders and decisions and before final judgment, I have no hesitation in pronouncing it contrary to the provisions of the act of Congress, and therefore in such particular and to that extent a nullity.\\\"\\nA distinction has been urged to the effect that an appeal from an order setting aside or vacating an attachment is not interlocutory in its character, but is final. This distinction is untenable. It is well settled that proceedings with reference to an attachment are in their nature proceedings in abatement, and are not final as to the rights of the parties. Leitensdorfer et al. v. Webb, 20 Howard (61 U. S.) 176.\\nWe are therefore led to the conclusion that chapter 82 of the laws of 1901, in so far as it attempts to extend the appellate jurisdiction of the Supreme Court to the reviewing of questions other than appeals from final judgments, is in conflict with the organic act of the Territory, and therefore void.\\nThere being noTegal authority for the appeal taken herein, it should be dismissed, with costs to be paid by appellant. And it is so ordered.\\nParker,-Mills, McFie and Baker, JJ., concur.\"}"
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+"{\"id\": \"1217125\", \"name\": \"NEW MEXICO DEPARTMENT OF HEALTH, Petitioner-Appellee, v. Fred COMPTON, Respondent-Appellant\", \"name_abbreviation\": \"New Mexico Department of Health v. Compton\", \"decision_date\": \"2000-06-14\", \"docket_number\": \"No. 20,356\", \"first_page\": \"474\", \"last_page\": 480, \"citations\": \"129 N.M. 474\", \"volume\": \"129\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:34:58.900530+00:00\", \"provenance\": \"CAP\", \"judges\": \"BUSTAMANTE, J., concurs.\", \"parties\": \"NEW MEXICO DEPARTMENT OF HEALTH, Petitioner-Appellee, v. Fred COMPTON, Respondent-Appellant.\", \"head_matter\": \"10 P.3d 153\\n2000-NMCA-078\\nNEW MEXICO DEPARTMENT OF HEALTH, Petitioner-Appellee, v. Fred COMPTON, Respondent-Appellant.\\nNo. 20,356.\\nCourt of Appeals of New Mexico.\\nJune 14, 2000.\\nCertiorari Granted, No. 26,419, Sept. 5, 2000.\\nBeth W. Schaefer, Assistant General Counsel, New Mexico Department of Health, Santa Fe, NM, for Appellee.\\nSandra L. Gomez, Michael C. Parks, Protection & Advocacy System, Inc., Albuquerque, NM, for Appellant.\", \"word_count\": \"2778\", \"char_count\": \"17506\", \"text\": \"OPINION\\nWECHSLER, Judge.\\n{1} Respondent, Fred Compton, appeals from the district court's orders granting two petitions under the Mental Health and Developmental Disabilities Code (the Code). See NMSA 1978, \\u00a7 43-1-1 to 43-1-25 (1977 as amended through 1999). Respondent argues that the orders should be reversed and vacated because the petitions were not heard by the district court within the statutory deadlines. We affirm.\\nBackground and Facts\\n{2} The relevant facts in this case are undisputed. Respondent was admitted to Las Vegas Medical Center (LVMC) on February 18, 1999, under the provisions of Section 43-1-10, which provide for emergency, involuntary commitments. On February 22, 1999, the Department of Health (Department) filed a Petition for a Thirty Day Commitment for Mental Health Evaluation and Treatment, under the authority of Section 43-l-ll(A), and a Petition for Appointment of a Treatment Guardian for an Adult, under the authority of Section 43-l-15(B). The district court set a hearing on both motions for February 25, 1999, within the seven-day emergency period set forth in Section 43-1-11(A) and within the three-day period set forth in Section 43-l-15(B). On February 25, 1999, however, the district court entered an order continuing the hearing until March 4,1999, because the trial judge was ill.\\n{3} At the hearing on March 4, 1999, Respondent's counsel moved to dismiss the petitions on the basis that Respondent had been more than seven days at LVMC without a hearing, contrary to the statutory requirements. The district court asked Respondent's attorney to explain what remedy Respondent had if grounds for commitment existed, and Respondent's counsel replied, \\\"That he doesn't receive the treatment which he, in accordance with the doctor's testimony, requires.\\\" The court granted both of the Department's petitions. LVMC discharged Defendant on March 25, 1999. This appeal followed.\\nDiscussion\\n{4} Respondent raises three issues on appeal: (1) Respondent's rights were violated because he did not receive a hearing within seven days of his involuntary commitment, (2) Respondent's rights were violated because he did not receive a hearing on the appointment of a treatment guardian within three days of service upon Respondent, and (3) this case is not moot, even though Respondent has since been discharged from LVMC.\\n{5} We review whether the statutory requirements of Sections 43-l-ll(A) and 43-1-15(B) are mandatory as a question of law and determine whether the district court correctly applied the law to the facts of this case. See Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, \\u00b6 5, 121 N.M. 471, 913 P.2d 659.\\n{6} Section 43-1-10 of the Code provides that a peace officer may detain a person for an emergency mental health evaluation under certain specific circumstances. However, when a person is involuntarily admitted to an evaluation facility under Section 43-1-10, Section 43-l-ll(A) states that the person \\\"has the right to a hearing within seven days of admission unless waived after consultation with counsel.\\\" Section 43-l-ll(A) also states that if the evaluation facility \\\"decides to seek commitment of the client for evaluation and treatment\\\" for a further thirty days, a petition seeking such commitment \\\"shall be filed with the court within five days of admission.\\\" Additionally, Section 43-l-15(B) requires that when a mental health professional petitions the court for the appointment of a treatment guardian, \\\"[a] hearing on the petition shall be held within three court days.\\\"\\n{7} LVMC released Respondent on March 25, 1999, thus potentially mooting this appeal. Respondent, however, argues that this Court should reach the merits of this case and that this case is not moot because Respondent's claims \\\"are capable of repetition, raise questions of public importance, and would otherwise evade appellate review\\\" and thus fall within an exception to the mootness doctrine. In re Bunnell, 100 N.M. 242, 244, 668 P.2d 1119, 1121 (Ct.App.1983). The Department does not challenge this position. Therefore, this Court will address the issues presented on their merits. See id.\\n{8} The parties do not dispute that the court continued the hearing on both petitions, which was timely scheduled for February 25, 1999, because the district court judge assigned to hear the motions was ill. The court reset the hearing for March 4, 1999, fourteen days after Respondent's admission to LVMC and seven days after the original hearing date. The questions before this Court, therefore, are (1) whether the statutory hearing deadlines are mandatory and (2) whether a violation of the hearing deadline gives rise to a presumption of prejudice and constitutes reversible error.\\nThe Statutory Hearing Deadlines are Mandatory\\n{9} Section 43-l-ll(A) states that \\\"[ejvery adult client involuntarily admitted to an evaluation facility\\\" in an emergency \\\"has the right to a hearing within seven days of admission unless waived after consultation with counsel.\\\" Additionally, if the Department petitions the district court to appoint a treatment guardian for that client, Section 43-l-15(B) states that \\\"[a] hearing on the petition shall be held within three court days\\\" after the petition is served on the client and the client's attorney.\\n{10} Respondent argues that the Code creates specific statutory rights and that those rights are to be strictly construed and strictly enforced. See State v. Sanchez, 80 N.M. 438, 440, 457 P.2d 370, 372 (1969) (stating commitment proceedings \\\"are required to be in strict compliance with the statutory requirements\\\"). Our Supreme Court has emphasized that \\\"[i]f there is any class of cases which should be conducted with the utmost care to observe all of the requirements of the statute, it is those cases conducted for the purpose of determining the sanity of a citizen.\\\" Id. In addition, in Bunnell, 100 N.M. at 244-45, 668 P.2d at 1121-22, this Court recognized both that \\\"the State must schedule a hearing [on a petition for a thirty-day commitment] within seven days\\\" and that \\\"[t]he statute does not provide for postponement.\\\" While this Court ruled in Bunnell that a \\\"short continuance\\\" should be permitted \\\"when counsel establishes that he has not had sufficient time to prepare his client's case,\\\" that ruling was based on protecting the client's rights. Id. at 245, 668 P.2d at 1122.\\n{11} Respondent argues that the language of Section 43-l-ll(A) and Section 43-l-15(B) is clear and unambiguous. Respondent correctly notes that when the language of a statute is clear and unambiguous, it must be given effect by the courts. See V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993). Furthermore, Section 43-l-15(B) uses the word \\\"shall\\\" in relation to the timeliness of the hearing. Generally, the \\\"use of the word 'shall' . imposes a mandatory requirement.\\\" Redman v. Board of Regents, 102 N.M. 234, 238, 693 P.2d 1266, 1270 (Ct.App.1984). We therefore agree that, based on the plain language of the statutes, the statutory hearing deadlines set forth in the Code are mandatory.\\nThe Effect of the Violation of the Mandatory Timeliness Requirement\\n{12} Because we hold that the statutory hearing deadlines are mandatory, we next address the question of whether a violation of those deadlines requires dismissal of the petitions and thus reversal of the district court's orders. To answer whether dismissal is appropriate, we must determine whether the mandatory timeliness requirement is jurisdictional. See Stephens v. State, Transp. Dep't, Motor Vehicle Div., 106 N.M. 198, 200, 740 P.2d 1182, 1184 (Ct.App.1987) (\\\"[N]ot all mandatory [statutory] requirements are jurisdictional.\\\"). If the statutory requirement is jurisdictional, outright dismissal is the proper remedy because the court is effectively divested of jurisdiction. See id. at 201, 740 P.2d at 1185 (remanding for dismissal of driver's license revocation proceedings due to jurisdictional defect). If, however, the statutory requirement is mandatory but not jurisdictional, the proper analysis for dismissal is whether the delay prejudiced Respondent. See State v. Budau, 86 N.M. 21, 23, 518 P.2d 1225, 1227 (Ct.App.1973) (applying prejudice analysis to delay in arraignment); cf. Redman, 102 N.M. at 239, 693 P.2d at 1271 (holding failure to commence and complete administrative hearing within statutory deadline to be reversible error in the absence of waiver or good cause).\\n1. Jurisdictional Requirement\\n{13} In New Mexico, the failure to comply with mandatory statutory requirements appears to raise a bar to jurisdiction when the requirement has been essential to the proper operation of the statute. See State v. Gardner, 1998-NMCA-160, \\u00b6 9, 14-15, 126 N.M. 125, 967 P.2d 465 (holding that statutory framework required strict compliance with regulations governing blood-alcohol testing and that results of tests not performed in accordance with regulations were not admissible in evidence).\\n{14} In Stephens, the Motor Vehicle Code allowed the Motor Vehicle Division to revoke a driver's license without a hearing upon the Motor Vehicle Division's receipt of a sworn statement by a police officer. See Stephens, 106 N.M. at 199, 740 P.2d at 1183. The Motor Vehicle Code required the officer's statement to be verified under penalty of perjury, while showing that to the officer's knowledge, the driver had been arrested for driving while intoxicated and test results demonstrated that the driver's blood alcohol level exceeded the legal limit. See id When the police officer in Stephens failed to notarize the statement, this Court held that because the Division had the authority to revoke a license without a hearing, the sworn statement requirement was an \\\"initial proof requirement\\\" that functioned as a \\\"threshold or prerequisite to the agency's right to proceed.\\\" Id. at 201, 740 P.2d at 1185. Because the statutory requirement affected the Division's ability to proceed with the revocation, the failure to comply with the statutory requirement was jurisdictional. See id.\\n{15} In this case, the mandatory statutory requirement that a hearing be held within either seven days for a thirty-day commitment or three days to appoint a treatment guardian does not affect the essential power of the district court to adjudicate the issue before it. See Taylor v. Department of Transp., 260 N.W.2d 521, 523 (Iowa 1977) (\\\"If the duty is not essential to accomplishing the principal purpose of the statute . a violation will not invalidate subsequent proceedings unless prejudice is shown.\\\"). The requirement is not a jurisdictional \\\"threshold or prerequisite\\\" to the court's power to hear the merits of Respondent's commitment. Stephens, 106 N.M. at 201, 740 P.2d at 1185. Our Supreme Court has explained: \\\" 'The word 'jurisdiction' is a term of large and comprehensive import. It includes jurisdiction over the subject matter, over the parties, and power or authority to decide the particular matters presented.'\\\" Grace v. Oil Conservation Comm'n, 87 N.M. 205, 208, 531 P.2d 939, 942 (1975) (quoting Elwess v. Elwess, 73 N.M. 400, 404, 389 P.2d 7, 9 (1964)). A court's lack of jurisdiction \\\"means an entire lack of power to hear or determine the case and the absence of authority over the subject matter or the parties.\\\" Grace, 87 N.M. at 208, 531 P.2d at 942.\\n{16} Significantly, the Code provides that the seven-day hearing can be waived. See \\u00a7 43-l-ll(A). In Redman, this Court stated in reference to the timely hearing requirement for a de novo hearing in an administrative agency \\\"that the legislature did not intend [by providing a provision for a timely hearing] a jurisdictional requirement in the sense that the right . could not be waived.\\\" Redman, 102 N.M. at 239, 693 P.2d at 1271. This statement implies that a mandatory statutory requirement that is waiveable is not necessarily jurisdictional. The fact that the right to a timely hearing under Section 43-1-11(A) is waiveable is persuasive evidence \\\"that the legislature did not intend a jurisdictional requirement in the sense that the right to a timely hearing could not be waived.\\\" Redman, 102 N.M. at 239, 693 P.2d at 1271.\\n{17} Respondent correctly notes that he has a liberty interest at stake. It is clear that Respondent has an \\\"interest in being free from involuntary commitment as a mental patient.\\\" Garcia v. Las Vegas Med. Ctr., 112 N.M. 441, 445, 816 P.2d 510, 514 (Ct.App.1991). This liberty interest can be outweighed by competing interests only under specified conditions. See id; \\u00a7 43-1-11(C). A citizen cannot be committed unless the conditions in Section 43-1-11(0 are met. Section 43-1-11(0), therefore, represents the operative and substantive portion of the statute which grants Respondent the right to be free from commitment in the absence of the listed conditions. See Garcia, 112 N.M. at 446, 816 P.2d at 515 (describing the portion of the Code which enumerates the proper conditions for commitment as the substantive portion of the statute).\\n{18} Importantly, the conditions in Section 43-1-11(0) are not at issue in this case. Respondent does not challenge the grounds for his commitment and, therefore, does not challenge the substantive and operative provisions of the Code that allow infringement upon his liberty interest under particular circumstances. The fact that the substantive commitment provisions are not at issue supports the conclusion that the statute's timeliness requirements are not jurisdictional, but are instead \\\"designed to provide order and promptness . and [are] not of the essence of the thing to be done.\\\" Stephens, 106 N.M. at 200, 740 P.2d at 1184.\\n{19} We acknowledge that other states are split on the issue of whether a hearing following an involuntary commitment is jurisdictional. Compare Chatman v. State, 336 Ark. 323, 985 S.W.2d 718, 722 (1999) (holding that failure to abide by statutory deadlines for probable cause hearing in involuntary commitment proceeding deprived successive court of further jurisdiction), supplemented on denial of rehearing, 336 Ark. 323, 991 S.W.2d 534 (1999), and In re Elkow, 167 Ill.App.3d 187, 118 Ill.Dec. 222, 521 N.E.2d 290, 294 (1988) (holding that any non-compliance with a statutory procedure for involuntary admission renders judgment in ease \\\"erroneous and of no effect\\\"), and State ex rel. Lockman v. Gerhardstein, 107 Wis.2d 325, 320 N.W.2d 27, 29 (Wis.App.1982) (holding that failure to hold hearing within mandatory fourteen days deprived court of jurisdiction) with People in Interest of Lynch, 783 P.2d 848, 851-52 (Colo.1989) (en banc) (holding that failure to hold hearing within statutory ten days did not deprive the court of jurisdiction). But because New Mexico law indicates that hearing deadlines are not jurisdictional when they are designed to provide order and promptness, we believe that the mandatory hearing requirements in the Code are not jurisdictional. We consider the Code's hearing provisions to be procedural requirements, the purpose of which is to provide order and promptness. As a consequence, we find it necessary to review whether the failure to comply with the hearing deadline prejudiced Respondent.\\n2. Prejudice\\n{20} When we review the facts of this case under a prejudice analysis, we emphasize that Respondent should have been released from LVMC on February 25, 1999, when he did not receive a hearing. However, Respondent was not prejudiced as a result of his additional seven-day detention. At the time of his appeal, Respondent had already been released from LVMC and was kept there no longer than he would have been had his hearing been timely. Respondent does not allege, and there is nothing in the record indicating, that Respondent would not have been committed for thirty days had his hearing been held in a timely manner. Also, because there is no indication in the record that Respondent sought to be released on February 25, 1999, or objected to the continuance of his seven-day hearing until the hearing was held seven days later, the district court was unable to grant him dismissal as a remedy. In addition, because the failure to grant a timely hearing did not deprive the district court of jurisdiction, the court had jurisdiction to order both a thirty-day commitment and a treatment guardian, based on the evidence before it.\\nConclusion\\n{21} Because Respondent suffered no prejudice as a result of the statutory violation, we affirm the orders of the district court.\\n{22} IT IS SO ORDERED.\\nBUSTAMANTE, J., concurs.\\nARMIJO, J., specially concurring.\"}"
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+"{\"id\": \"1224664\", \"name\": \"SYSTEMS TECHNOLOGY, INC., d/b/a Enchanted Log Homes, Plaintiff-Appellant, v. Brian E. HALL and Stacy L. Knutson-Hall, husband and wife, M & T Mortgage Corporation, a foreign corporation, Defendants-Appellees\", \"name_abbreviation\": \"Systems Technology, Inc. v. Hall\", \"decision_date\": \"2004-09-30\", \"docket_number\": \"No. 24,090\", \"first_page\": \"548\", \"last_page\": 552, \"citations\": \"136 N.M. 548\", \"volume\": \"136\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:00:59.468070+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: MICHAEL D. BUSTAMANTE and IRA ROBINSON, Judges.\", \"parties\": \"SYSTEMS TECHNOLOGY, INC., d/b/a Enchanted Log Homes, Plaintiff-Appellant, v. Brian E. HALL and Stacy L. Knutson-Hall, husband and wife, M & T Mortgage Corporation, a foreign corporation, Defendants-Appellees.\", \"head_matter\": \"2004-NMCA-130\\n102 P.3d 107\\nSYSTEMS TECHNOLOGY, INC., d/b/a Enchanted Log Homes, Plaintiff-Appellant, v. Brian E. HALL and Stacy L. Knutson-Hall, husband and wife, M & T Mortgage Corporation, a foreign corporation, Defendants-Appellees.\\nNo. 24,090.\\nCourt of Appeals of New Mexico.\\nSept. 30, 2004.\\nJoey B. Wright, Martin E. Threet, Martin E. Threet & Associates, Albuquerque, NM, for Appellant.\\nMark A. Glenn, Moses, Dunn, Farmer & Tuthill, P.C., Albuquerque, NM, for Appellees.\", \"word_count\": \"2095\", \"char_count\": \"12508\", \"text\": \"OPINION\\nFRY, Judge.\\n{1} Plaintiff Systems Technology, Inc. (STI) appeals an order requiring STI to participate in an existing arbitration of a dispute with Bryan E. Hall and Stacey L. KnutsonHall (the Halls). STI and the Halls disagree \\\" about whether another party, Arlin Pennington, is also bound by the contract that contains the arbitration clause. The district court referred part of the dispute to the arbitrator, including the issue of the identity of the parties to the arbitration agreement.\\n{2} The issues on appeal primarily concern the interpretation of the arbitration agreement. In the course of analyzing these issues, this Court questioned whether the order appealed from is a final order. See Khalsa v. Levinson, 1998-NMCA-110, \\u00b6 12, 125 N.M. 680, 964 P.2d 844 (explaining that whether an order is final \\\"is a jurisdictional question that an appellate court is required to raise on its own motion\\\"). We instructed the parties to file briefs addressing this concern, but only the Halls filed a brief. Although STI asked for and was granted an extension of time within which to file its brief, our records show that STI never filed a brief.\\n{3} We conclude the order appealed from is not a final order. We are unable to determine whether the district court intended to certify its order for interlocutory appeal, or to certify it as a final judgment pursuant to Rule 1-054(B)(1) NMRA. Whatever the court's intention, we conclude that (1) if the court intended to certify the order for interlocutory appeal, STI's application for leave to file such an appeal was untimely; and (2) if the court intended certification under Rule 1-054(B)(1), it abused its discretion. We therefore dismiss the appeal.\\nBACKGROUND\\n{4} This controversy stems from a purchase and sale agreement for the construction of a log cabin home on a parcel of land belonging to the Halls. Litigation began when \\\"Systems Technology Inc., d/b/a Enchanted Log Homes\\\" filed a complaint for foreclosure of a mechanic's lien on the home. STI's complaint averred that it had completed construction of the log cabin, and that the Halls refused to pay the balance due under the agreement. STI's complaint also named M & T Mortgage Corporation (M & T) as a defendant and sought a determination that its lien had priority over M & T's mortgage on the home.\\n{5} In response to the complaint, the Halls moved to dismiss the foreclosure action on the ground that STI did not timely request arbitration of the dispute as required by the purchase and sales agreement. The agreement's arbitration clause provided that \\\"[a]ny controversy or claim arising our [sic] of or related to this contract, or the breach thereof, shall be settled by arbitration\\\" and also that the \\\"[cjlaimant must initiate the De mand for Arbitration within fifteen (15) calendar days of the date the dispute arises.\\\"\\n{6} The district court denied the motion to dismiss, ordered the Halls to answer the complaint, and also directed the Halls to submit an arbitration demand for any counterclaims they intended to pursue against STI. In January 2003, the Halls submitted a demand for arbitration. The demand for arbitration is not part of the record on appeal; however, the parties appear to agree that although STI was the named party that initiated the foreclosure proceeding against the Halls in the district court, the Halls named \\\"Arlin M. Pennington d/b/a Enchanted Log Homes\\\" in their demand for arbitration and statement of counterclaims. There is no order in the record referring the matter to arbitration.\\n{7} In May 2003, STI filed a motion to stay arbitration. In the motion, STI also sought a determination of who is a proper pai'ty to the lawsuit. The Halls' response to that motion set out their contention that STI is \\\"a shell corporation with insufficient assets to satisfy any judgment the Halls might obtain.\\\" According to the Halls, they sought to arbitrate claims against Pennington because \\\"that is the party with whom the Halls believe they contracted.\\\"\\n{8} On June 13, 2003, the district court entered the order from which STI has tried to appeal. The order is entitled \\\"Order Denying Plaintiffs Motion to Stay Arbitration and Compelling Arbitration,\\\" but the body of the order does not say anything about compelling arbitration; it simply states that STI's motion to stay arbitration should be denied and STI should be added as a respondent to the AAA arbitration involving Hall v. Pennington d/b/a Enchanted Log Homes. The order also contains certification language that we discuss in more detail below.\\n{9} STI immediately filed a notice of appeal from the order. Seventeen days later, STI filed an application for interlocutory appeal in this Court as an \\\"alternative\\\" to its notice of appeal. We denied the application and STI filed a motion to reconsider, to which it attached an August 13, 2003 letter from the district court to the parties indicating that the district court was under the impression its June 13, 2003 order was a final order. Shortly thereafter, this Court assigned this case to the general calendar and the parties filed their briefs.\\nDISCUSSION\\n{10} The June 13, 2003 order from which STI appeals contains ambiguous language apparently attempting to permit an immediate appeal. On the one hand, the order states that \\\"this matter involves a controlling question of law as to which there is substantial ground for difference of opinion, [and] that an immediate appeal from this Order may materially advance the ultimate termination of this litigation,\\\" which is the language required to certify an order for interlocutory appeal. NMSA 1978, \\u00a7 39-3-4(A) (1999). On the other hand, the order also states \\\"there is no just reason for delay of the entry of this Order,\\\" which is the language certifying an order for immediate appeal as of right under Rule 1-054(B)(1). But see Khalsa, 1998-NMCA-110, \\u00b6 18, 125 N.M. 680, 964 P.2d 844 (observing that courts have generally interpreted Rule 1 \\u2014 054(C)(1) (since renumbered as Rule 1 \\u2014 054(B)(1)) \\\"to require both an express determination that there is no just reason for delay and an express direction for entry of judgment\\\" (emphasis added)). We first address the finality of the order in question and we then consider in turn the effect of each type of certification.\\nFinality of the June 13, 2003 Order\\n{11} \\\"An order is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible.\\\" In re Estate of Griego, 2000-NMCA-022, \\u00b6 13, 128 N.M. 676, 997 P.2d 150. Here it appears that the hierarchy of liens as between STI and M & T was not referred to arbitration, and therefore it remained for the district court to decide. As the Halls point out in their supplemental brief, this issue cannot be determined until the arbitration has resolved several preliminary matters, including whether there was an agreement between the Halls and STI, and whether STI has a valid mechanics lien.\\n{12} In addition, the parties' actions following entry of the June 13, 2003 order suggest that they viewed the order as non-final. For example, on June 13, 2003, the same day as the order denying the motion to stay arbitration, the district court granted the Halls' motion to extend a discovery deadline and to vacate a trial setting. On June 23, 2003, the Halls filed a motion for summary judgment on Plaintiffs foreclosure complaint. All of this activity suggests that the district court and the parties believed there were issues that remained for the district court to decide.\\n{13} Although we do not have the benefit of a supplemental brief from STI, it appears STI would rely on the August 13, 2003 letter from the district judge that STI attached to a pleading filed in this Court. In that letter the district judge stated, \\\"In light of the fact that I believe I ordered the whole case to arbitration when STI was added to the arbitration order, I believe the direct appeal to the Court of Appeals has divested me of jurisdiction to proceed.\\\" This letter is inconsistent with the June 13, 2003 order, which included language consistent with an attempt to certify a non-final order for appeal. In addition, the letter is not in the record filed in this Court. See State v. Reynolds, 111 N.M. 263, 267, 804 P.2d 1082, 1086 (1990) (\\\"Matters outside the record present no issue for review.\\\"). Therefore, because we cannot rely on the August 13, 2003 letter, and because there appear to be substantive issues as yet undecided by the district court, we conclude that the June 13, 2003 order was not final for purposes of appeal. We now turn to a consideration of the district court's attempts to certify the order for appeal.\\nSTI's Application for Interlocutory Appeal Was Untimely\\n{14} When a district court certifies an order for interlocutory appeal, the appealing party must seek permission from the appellate court for leave to file an appeal by filing an application within fifteen days of entry of the order in district court. Rule 12-203(A) NMRA. Assuming the district court intended to certify its order for interlocutory appeal, STI did not file an application for interlocutory appeal in this Court until June 30, 2003, seventeen days after the filing of the district court's order. \\\"Neither the statute nor rules authorize this court to entertain late applications for interlocutory appeals or extensions of time for filing late applications.\\\" Candelaria v. Middle Rio Grande Conservancy Dist., 107 N.M. 579, 581, 761 P.2d 457, 459 (Ct.App.1988). Moreover, this Court denied STI's application on July 30. We therefore conclude that STI's attempt to perfect an interlocutory appeal was unavailing.\\nThe District Court Abused Its Discretion In Certifying the Order Under Rule 1-054(B)(1)\\n{15} If the district court properly certified its June 13, 2003 order pursuant to Rule 1 \\u2014 054(B)(1), then STI's notice of appeal filed on the same day was timely. See Rule 12-201 NMRA (stating that notice of appeal must be filed within thirty days of the order appealed from). Rule 1 \\u2014 054(B)(1) provides that \\\"when more than one claim for relief is presented in an action, . the court may enter a final judgment as to one or more but fewer than all of the claims only upon an express determination that there is no just reason for delay.\\\" We review a certification under this rule for abuse of discretion. Khalsa, 1998-NMCA-110, \\u00b620, 125 N.M. 680, 964 P.2d 844. A court abuses its discretion \\\"when the issues decided by the judgment are intertwined, legally or factually, with the issues not yet resolved, or when resolution of the remaining issues may alter or revise the judgment previously entered.\\\" Id.\\n{16} Here the issues referred to arbitration \\u2014 which, according to the Halls, include (1) whether there was an agreement between the Halls and STI, (2) whether STI was properly licensed, (3) whether STI has a valid mechanics lien, (4) the amount of any lien, and (5) whether STI is entitled to foreclose its lien \\u2014 are intertwined with the issue remaining in the district court, which is the priority of M & T's mortgage. For example, if the arbitrator concludes that STI has a valid lien subject to foreclosure, then the district court will have to determine, as be tween STI and M & T, whose lien has priority. Thus, if we were to decide the issues raised in the present appeal, we may well have to consider a second appeal when the arbitration is completed and the district court rules on the pending issue before it. In light of our strong policy disfavoring piecemeal appeals, Valley Improvement Association v. Hartford Accident & Indemnity Co., 116 N.M. 426, 429, 863 P.2d 1047, 1050 (1993), we hold the district court abused its discretion in certifying its June 13, 2003 order under Rule 1-054(B)(1).\\nCONCLUSION\\n{17} Having determined that the June 13, 2003 order is not a final, appealable order, we hereby dismiss this appeal.\\n{18} IT IS SO ORDERED.\\nWE CONCUR: MICHAEL D. BUSTAMANTE and IRA ROBINSON, Judges.\"}"
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+"{\"id\": \"12568714\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey ASLIN, Defendant-Appellant.\", \"name_abbreviation\": \"State v. Aslin\", \"decision_date\": \"2018-02-28\", \"docket_number\": \"NO. A-1-CA-35471\", \"first_page\": \"843\", \"last_page\": 849, \"citations\": \"421 P.3d 843\", \"volume\": \"421\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-27T21:03:58.169661+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee,\\nv.\\nJeffrey ASLIN, Defendant-Appellant.\", \"head_matter\": \"STATE of New Mexico, Plaintiff-Appellee,\\nv.\\nJeffrey ASLIN, Defendant-Appellant.\\nNO. A-1-CA-35471\\nCourt of Appeals of New Mexico.\\nFiling Date: February 28, 2018\\nCertiorari Granted, June 25, 2018, No. S-1-SC-36999\\nHector H. Balderas, Attorney General, Marko D. Hananel, Assistant Attorney General, Santa Fe, NM, for Appellee.\\nBennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, MJ Edge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.\", \"word_count\": \"2776\", \"char_count\": \"17774\", \"text\": \"VANZI, Chief Judge.\\n{1} Defendant Jeffrey Aslin raises two issues on appeal challenging the district court's decision revoking his probation. First, he argues that there was insufficient evidence of willfulness to support the finding that he violated probation. Second, he argues that the district court abused its discretion in ruling that the violation was not a \\\"technical violation\\\" under the First Judicial District's technical violation program (TVP). We affirm on the first issue and reverse and remand on the second.\\nBACKGROUND\\n{2} In November 2013, Defendant was charged with trafficking of a controlled substance (methamphetamine), conspiracy to commit trafficking of a controlled substance, and possession of drug paraphernalia. Defendant subsequently pleaded guilty to one count of trafficking for which the district court imposed a suspended sentence of nine years imprisonment and a three-year term of probation. In September 2014, a month after entering his plea, Defendant signed an order of probation that, among other things, listed the conditions of Defendant's release and his understanding of them. Of particular relevance, condition five of the probation order required Defendant to \\\"follow all orders and instructions of [his p]robation . [o]fficer including actively participating in and successfully completing any . treatment program . as deemed appropriate by the [p]robation . [o]fficer.\\\"\\n{3} Defendant admitted to violating his probation on December 15, 2014, after he tested positive for alcohol. The district court reinstated him to probation and Defendant opted into the TVP. As we explain in greater detail below, the TVP in effect at the time, was a program established at the First Judicial District Court for sanctioning adult probationers for \\\"technical violations of their probation[.]\\\" The program provided progressive discipline, including days in jail, for certain \\\"technical violations\\\" up to and including removal from the TVP after a fourth violation.\\n{4} Defendant tested positive for methamphetamine twice while under the TVP and received jail sanctions of three and seven days, respectively. In October 2015, two months after his second sanction, Defendant was arrested and charged with possession of a stolen motor vehicle and altering or changing engine or other numbers. Defendant's probation officer, Mary Ann Sarmiento, filed a probation violation report alleging that Defendant had committed new criminal offenses and that he had failed to enter a drug treatment program.\\n{5} The district court held an evidentiary hearing on November 13, 2015, at which two witnesses testified. New Mexico State Police Officer Jessie Whittaker testified regarding the new criminal offenses, and Sarmiento testified regarding the probation violations. Sarmiento stated that she instructed Defendant \\\"multiple times\\\" that he had to find and complete an outpatient drug treatment program \\\"as soon as possible\\\" before Community Corrections would accept him. Defendant told Sarmiento that he would pursue treatment through the Los Alamos Family Council (LAFC), but Sarmiento later learned that LAFC would not be able to provide treatment for him. On September 10, 2015, Sarmiento advised Defendant that he could not get treatment from LAFC and provided him with alternatives, including Presbyterian Medical Services and Hoy Recovery, both located in Espa\\u00f1ola, New Mexico. Defendant never enrolled or participated in those programs or any other outpatient drug treatment program between the time of his conversation with Sarmiento on September 10th and his arrest on October 6th.\\n{6} At the conclusion of the hearing, the district court found that the State had not proven a violation based on new charges;\\nhowever, the court found that Defendant had failed to \\\"enter into, participate, and successfully complete drug treatment\\\" in violation of his probation agreement. The district court rejected Defendant's argument that the infraction was a technical violation stating that \\\"failing to find a program and enter is not the same thing as testing positive. It is more than a mere technical violation.\\\" The court revoked Defendant's probation and imposed a sentence of time served, plus two years, seven months, and seven days in prison, to be followed by four years, eight months, and twenty-seven days on probation. This appeal followed.\\nDISCUSSION\\n{7} Defendant makes two arguments on appeal. First, he argues that there was insufficient evidence to support the district court's finding that he violated probation. In particular, he contends that the evidence presented at the evidentiary hearing did not prove that he \\\"willfully avoided treatment.\\\" Second, Defendant argues that his failure to enter and complete an outpatient drug treatment program was a technical violation that should have been sanctioned in accordance with the TVP, and the district court abused its discretion when it revoked his probation. Although we conclude that the district court did not err in finding that Defendant's failure to enter and complete treatment constituted a probation violation, we agree that Defendant should have been sentenced under the TVP for a third technical violation.\\n{8} We review the district court's decision to revoke probation under an abuse of discretion standard. State v. Leon , 2013-NMCA-011, \\u00b6 36, 292 P.3d 493. The state \\\"bears the burden of establishing a probation violation with a reasonable certainty.\\\" Id. Moreover, \\\"[t]o establish a violation of a probation agreement, the obligation is on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof.\\\" In re Bruno R. , 2003-NMCA-057, \\u00b6 11, 133 N.M. 566, 66 P.3d 339.\\n{9} We pause to address the State's request for clarification of the law governing the willfulness analysis in probation revocation hearings. Citing to a plethora of mostly unpublished opinions, the State contends that our case law \\\"spans several decades and while not contradictory, is at times inconsistent.\\\" Although we see no consequential split or inconsistency in our authority, we nevertheless reiterate that, \\\"[o]nce the state offers proof of a breach of a material condition of probation, the defendant must come forward with evidence to excuse non-compliance.\\\" Leon , 2013-NMCA-011, \\u00b6 36, 292 P.3d 493 (internal quotation marks and citation omitted). Thus, while the burden of proving a willful violation always remains on the state, after the state presents a prima facie case of a violation, the burden shifts to the defendant to come forward with evidence that the failure to comply was through no fault of his own. State v. Martinez , 1989-NMCA-036, \\u00b6 8, 108 N.M. 604, 775 P.2d 1321 ; see also State v. Parsons , 1986-NMCA-027, \\u00b6 25, 104 N.M. 123, 717 P.2d 99 (noting that it was the state's burden to prove that the defendant violated probation by not paying probation fees and costs, and once the state did so, it was the defendant's responsibility to demonstrate that non-compliance was not willful). As we explained in Leon , there is no shifting of the burden of proof, but a shifting of the burden of going forward with evidence to meet or rebut a presumption that has been established by the evidence. 2013-NMCA-011, \\u00b6 36, 292 P.3d 493. In other words, once the state establishes to a reasonable certainty that the defendant violated probation, a reasonable inference arises that the defendant did so willfully, and it is then the defendant's burden to show that failure to comply was either not willful or that he or she had a lawful excuse. See id. \\u00b6 36, 39 (noting that the defendant did not present any evidence to rebut the reasonable inference that he willfully violated his probation); see also In re Bruno R. , 2003-NMCA-057, \\u00b6 9, 133 N.M. 566, 66 P.3d 339 (stating that we indulge all reasonable inferences to uphold a finding that there was sufficient evidence of a probation violation). Having reiterated the law, we now turn to the issues in this case. We begin with whether Defendant's conduct constituted a \\\"willful violation.\\\"\\n{10} At the November 13, 2015 evidentiary hearing, the State presented evidence that Defendant had failed to enter into, participate in, and complete outpatient drug treatment. The probation order-which Defendant acknowledged and signed-required him, among other things, to follow his probation officer's orders, including \\\"actively participating in and successfully completing\\\" a drug treatment program. Defendant's probation officer, Sarmiento, testified that she told Defendant \\\"multiple times\\\" that he had to find and complete an outpatient drug treatment program but he failed to do so. Although Defendant told Sarmiento that he would pursue treatment through LAFC, Sarmiento later found out that Defendant was unable to obtain treatment at that facility. Sarmiento then provided Defendant with two outpatient drug treatment alternatives to LAFC, but he never entered those or any other programs. We agree with the district court that through Sarmiento's testimony the State established a prima facie case that Defendant willfully violated a term of his probation agreement. Accordingly, to rebut this presumption Defendant was required to come forward with evidence showing that his non-compliance was not willful.\\n{11} On appeal, Defendant contends that his \\\"failure to get treatment resulted from factors beyond his control.\\\" However, Defendant does not direct us to anything in the record that provides evidence to support this statement. Indeed, Defendant did not present any evidence at the hearing to rebut the reasonable inference set forth by Sarmiento's testimony that his non-compliance was willful. Accordingly, we conclude that the district court did not abuse its discretion in determining that the State met its burden of establishing that, to a reasonable certainty, Defendant willfully violated a term of his probation. Cf. Leon , 2013-NMCA-011, \\u00b6 38-39, 292 P.3d 493 (concluding that \\\"the evidence was sufficient for a reasonable mind to conclude that [the d]efendant had violated [a] condition of his probation\\\" when the probation officer testified that the defendant did so and the defendant did not come forward with any evidence to rebut this presumption).\\n{12} Although we hold that the district court did not abuse its discretion in finding that Defendant violated probation, we nonetheless conclude that the court erred in revoking Defendant's probation on the basis that the violation was \\\"not a mere technical violation.\\\" As we have noted, we review a district court's revocation of probation under the abuse of discretion standard. Id. \\u00b6 36. However, \\\"our review of the application of the law to the facts is conducted de novo. Accordingly, we may characterize as an abuse of discretion a discretionary decision that is premised on a misapprehension of the law.\\\" Harrison v. Bd. of Regents of Univ. of N.M. , 2013-NMCA-105, \\u00b6 14, 311 P.3d 1236 (internal quotation marks and citations omitted). We begin with the provisions of the TVP.\\n{13} In August 2012, the First Judicial District established the TVP by administrative order (Order) pursuant to Rule 5-805(C) NMRA. Rule 5-805(C) allows a district court to \\\"establish a program for sanctions for probationers who agree to automatic sanctions for a technical violation of the conditions of probation.\\\" The Order, which was subsequently replaced by LR1-306, was the version that was in effect at the time the district court entered its judgment revoking Defendant's probation. We therefore analyze Defendant's argument under the provisions of the Order.\\n{14} Pursuant to the Order, a probationer who was placed into the TVP and who committed a technical violation of his or her order of probation, waived the right to due process procedures as provided by Rule 5-805 and would instead be sanctioned based on a progressive disciplinary scheme. For example, the probationer would receive up to three (3) days in jail for the first technical violation, up to seven (7) days in jail for a second violation, and up to fourteen (14) days for the third technical violation. Section E of the Order provided that \\\"[a]fter a fourth technical violation, a probationer may be subject to removal from the TVP and subsequent violations may be prosecuted pursuant to Rule 5-805.\\\" Technical violations included:\\n(1) having a positive urine or breath test or other scientific means of detection for drugs or alcohol;\\n.\\n(2) possessing alcohol;\\n(3) missing a counseling appointment;\\n(4) missing a community service appointment;\\n(5) missing an educational appointment; or\\n(6) the failure to comply with any term of, or to complete, any treatment program or any other program required by the court or probation.\\n{15} In this case, the district court found that Defendant \\\"violated his conditions of probation by failing to enroll in treatment as ordered by probation.\\\" The court further found that the violation was \\\"not a mere technical violation\\\" and granted the motion to revoke probation on that basis. Defendant contends that contrary to the district court's finding, his probation violation came within the ambit of either technical violation number three or six, above, and because this would be his third violation, the court could only impose a fourteen-day jail sanction. We agree.\\n{16} As an initial matter, we acknowledge that judicial districts have the authority to promulgate local rules and, pursuant to Rule 5-805(C), the First Judicial District had the authority to enact the TVP at issue here. However, it is well-established that local rules may not conflict with statewide rules. Rule 5-102(A) NMRA (\\\"Local rules and forms shall not conflict with, duplicate, or paraphrase statewide rules or statutes.\\\"); Rule 5-805(C) (stating that a judicial district may establish a TVP in accordance with Rule 5-102 ). As Defendant points out, Rule 5-805(C)(3) clearly and unambiguously defines a \\\"technical violation\\\" as \\\"any violation that does not involve new criminal charges.\\\" The State does not respond to Defendant's argument nor does it address the plain language of Rule 5-805(C).\\n{17} Notwithstanding the general rule that \\\"it is not the function of a reviewing court to substitute its own interpretation of a local rule for that of the court which promulgated the rule[,]\\\" State v. Cardenas , 2003-NMCA-051, \\u00b6 10, 133 N.M. 516, 64 P.3d 543 (alteration, internal quotation marks, and citation omitted), the plain language of Rule 5-805(C) provides that a technical violation is limited to violations that do not involve new criminal charges. The district court in this case specifically found that there was \\\"insufficient evidence that . Defendant violated the conditions of probation by committing new offenses.\\\" Without a finding that he committed a \\\"new violation of state law,\\\" Defendant's failure to enter and complete outpatient drug treatment must therefore be construed as a \\\"technical violation\\\" under Rule 5-805(C). See Fogelson v. Wallace , 2017-NMCA-089, \\u00b6 75, 406 P.3d 1012 (noting that we give effect to the plain meaning language of a statute when its language is clear and unambiguous); see also Frederick v. Sun 1031, LLC , 2012-NMCA-118, \\u00b6 17, 293 P.3d 934 (\\\"When construing our procedural rules, we use the same rules of construction applicable to the interpretation of statutes.\\\" (internal quotation marks and citation omitted) ). In sum, because local rules should not conflict with statewide rules, Rule 5-102(A), the district court erred in finding that Defendant's probation violation was \\\"not a mere technical violation\\\" under the TVP and by granting the State's motion to revoke probation on that basis. Instead, the district court should have imposed the sanction for a third violation of the Order and imposed a fourteen-day jail sentence for the violation. We vacate the court's order revoking probation and remand with instructions to reinstate probation.\\nCONCLUSION\\n{18} We affirm the district court's finding that Defendant violated probation. We reverse the district court's finding that Defendant's violation was not a technical violation and remand for sentencing consistent with the automatic sanctions of the TVP.\\n{19} IT IS SO ORDERED.\\nWE CONCUR:\\nJULIE J. VARGAS, Judge\\nSTEPHEN G. FRENCH, Judge\\nAdmininistrative Order, Case No. D-101-CS-2012-00010, In re Establishing a Technical Violation Program for Adult Probationers. The later-enacted local rule was not in effect at the time this case was under consideration. See LR1-306 NMRA (adopted by Supreme Court Order No. 16-8300-015 and effective for all cases pending or filed on or after December 31, 2016). The local rule varies from the administrative order in some measurable respects particularly with regard to the definition of \\\"technical violations\\\" and a probationer's removal from the program.\\nThis provision differs materially from LR1-306(E) which provides that \\\"[o]n a fourth technical violation, a probationer shall be removed from the TVP, and subsequent violations that would constitute technical violations under this rule may be prosecuted under Rule 5-805.... The court may also remove a probationer from the TVP at any time on a probation violation that is not defined as a technical violation by this rule.\\\"\"}"
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+"{\"id\": \"1552574\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant\", \"name_abbreviation\": \"State v. Rael\", \"decision_date\": \"1994-03-14\", \"docket_number\": \"No. 14848\", \"first_page\": \"539\", \"last_page\": 543, \"citations\": \"117 N.M. 539\", \"volume\": \"117\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:39:58.489950+00:00\", \"provenance\": \"CAP\", \"judges\": \"ALARID and FLORES, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant.\", \"head_matter\": \"873 P.2d 285\\nSTATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant.\\nNo. 14848.\\nCourt of Appeals of New Mexico.\\nMarch 14, 1994.\\nTom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\\nWinston Roberts-Hohl, Santa Fe, for defendant-appellant.\", \"word_count\": \"2465\", \"char_count\": \"15236\", \"text\": \"OPINION\\nBLACK, Judge.\\nBased on information from a confidential informant, narcotics agents obtained a search warrant for the premises where Defendant resided with his mother. When the agents executed the warrant no narcotics were found, but a rifle was discovered in Defendant's bedroom. Since Defendant had been previously convicted of a felony, he was charged with being a felon in possession of a firearm in violation of NMSA 1978, Section 30-7-16 (Cum.Supp.1993).\\nAt trial, the district court denied Defendant's motion in limine and repeated objections directed at limiting prosecution references to Defendant's suspected drug connections. Defendant argues that these references and testimony should have been excluded under SCRA 1986, 11-404 (Rule 404) and SCRA 1986, 11-403 (Rule 403), and that he was prejudiced by the district court's admission of these references. Defendant further argues that when the State was allowed to admit, over objections, portions of the police report stating that Defendant had admitted he dealt drugs \\\"a little\\\", it was error not to grant Defendant's request to admit the full police report indicating no drugs had been found in the search. Because we agree it was reversible error to allow the prosecutor to interject Defendant's alleged connection with drugs, we do not address Defendant's second argument.\\nI. FACTS\\nDefendant, a convicted felon, was on parole. He was summoned to his parole officer's office, and, when he arrived there, he was served with a search warrant by narcotics agents. The search warrant was based on an informant's affidavit accusing Defendant of dealing in cocaine.\\nThe search warrant was executed, and no cocaine was found, but the narcotics agents found the rifle. There was conflicting evidence as to whether the rifle belonged to Defendant. Defendant's mother stated the rifle belonged to her deceased husband, but one of the narcotics agents testified that Defendant said the gun was his and he needed it for protection. Defendant was charged as a felon in possession of a firearm.\\nBefore opening statements, defense counsel made a motion in limine asking the district court to direct the district attorneys to make sure that their witnesses did not refer to the fact that the warrant was issued to search for cocaine. Defendant argued that since no cocaine was found in his home, and there was no charge relating to cocaine possession, that any reference to illegal drugs would inject an improper and prejudicial element into the trial which could not be cured by a jury instruction. The State promised to instruct the witnesses to be careful about their testimony. An assistant district attorney told the court: \\\"We will not have the officers-testify that the confidential informant told them that Mr. Rael was dealing in drugs. We will exclude that.\\\" The district court denied the motion in limine.\\nIn the opening statement, an assistant district attorney stated that the police had \\\"learned that Andy Rael was involved in illegal activity.\\\" The assistant district attorney stated further that, upon investigation, the police \\\"learned that Andy Rael was in fact, out of the home he was living in, selling cocaine.\\\" The defense moved for a mistrial. The motion was denied.\\nLater, one of the narcotics agents who executed the search warrant testified that he had Defendant under surveillance for cocaine dealing and that Defendant was a known cocaine dealer. Defendant again moved for a mistrial, which was again denied.\\nOn rebuttal, the district attorney was permitted to read from the police report. Over objection, the prosecution was allowed to refer to a portion of the report, in which a narcotics agent claimed that Defendant told him: \\\"I do a little because I have to survive but I don't deal as much as you think.\\\"\\nIn closing arguments, the assistant district attorney described Defendant as a drug dealer. More importantly, she made a direct link between dealing drugs and the charge for which Defendant was on trial, possession of a firearm, telling the jury: \\\"The search warrants authorized a search for drugs and for weapons. Why weapons? Drug dealers use weapons to defend themselves. To defend their turf. To make sure. Drugs are a dangerous business.\\\" She later reiterated: \\\"Keeping a gun is consistent with being a drug dealer.\\\" The defense again moved for a mistrial, which was denied.\\nThe jury convicted Defendant of being a felon in possession of a firearm.\\nII. RULE 404\\nLike its federal counterpart, New Mexico Rule 404 provides that character evidence is not admissible for the purpose of proving that in a specific instance a person acted in conformity with such character. State v. Reneau, 111 N.M. 217, 219, 804 P.2d 408, 410 (Ct.App.1990). \\\"This prohibition, particularly in the context of criminal prosecutions, is justified by concern that character evidence when used circumstantially is likely to be given more probative value than it deserves and may lead the fact-finder to punish a bad person regardless of the evidence of what happened in the specific case.\\\" State v. Lamure, 115 N.M. 61, 69, 846 P.2d 1070, 1078 (Ct.App.1992) (Hartz, J., specially concurring), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993). Therefore, testimony which amounts to evidence of a defendant's bad character, or disposition to commit the crime charged, when not offered for a legitimate purpose, is inadmissible and unfairly prejudicial. State v. Aguayo, 114 N.M. 124, 129, 835 P.2d 840, 845 (Ct.App.), cert. denied, 118 N.M. 744, 832 P.2d 1223 (1992).\\nIn reversing a gun possession conviction, the United States Court of Appeals for the Fifth Circuit recently applied Federal Rule 404 to virtually identical facts. In United States v. Ridlehuber, 11 F.3d 516 (5th Cir.1993), officers executed search warrants and found various chemicals used to manufacture illegal drugs and guns. However, since the chemicals were consistent with both the illegal manufacture of methamphetamine and the legitimate metal plating business that Ridlehuber and his father were engaged in, Ridlehuber was only charged and convicted of possession of an unregistered short-barreled shotgun. Nonetheless, over objection, the prosecution's witnesses repeatedly testified to the link between the chemicals found at the defendant's residence and the manufacture of illicit drugs. In \\\"closing argumentf] the prosecutor articulated what had been intimated all along: Ridlehuber possessed the sawed-off shotgun to protect an illegal drug lab.\\\" Id., 11 F.3d at 520.\\nPrior to trial, Ridlehuber's counsel made a motion in limine seeking an order preventing the government witnesses from alluding to the chemicals as an illegal drug lab. The government argued, as it did in response to repeated objections to drug manufacturing testimony by its witnesses, that because the drug related items were \\\" 'inextricably linked' \\\" with the weapon, such evidence was necessary so the jury could \\\"evaluate all of the circumstances under which the defendant acted.\\\" Id., 11 F.3d at 521. Because the analysis of the Fifth Circuit, in rejecting the government's argument, fits the present ease so closely, we quote it at length:\\nThe connection here between the offense charged in the indictment and evidence of the uncharged offense is not so clear. We cannot say, for example, that the drug-related evidence arose out of the weapons charge. On the contrary, under the prosecution's theory of the case the opposite was true. The government argued that the shotgun was just a cog in the wheel of a larger criminal enterprise: a clandestine drug lab. The problem is that the government did not prove the existence of a drug lab \\u2014 it did not have sufficient evidence to do so. If the proof were reversed and Ridlehuber was charged with and convicted of running a drug lab, with the shotgun admitted over objection, the result might be different____ But the government did not charge Ridlehuber with running a drug lab and the evidence adduced at trial did not prove the existence of a clandestine lab. Thus, we cannot allow the prosecution's unproven drug lab theory dictate what is and is not extrinsic of the charged offense.\\nFurthermore, this is not a situation in which the \\\"other acts\\\" evidence falls outside of Rule 404(b)'s purview because the evidence of the charged and uncharged offenses both were part of a \\\"single criminal episode.\\\" The only \\\"criminal episode\\\" proven here was possession of a short-barreled shotgun. The rest is conjecture.\\nId., 11 F.3d at 522 (citations omitted).\\nAfter noting that the government had failed to charge or prove Ridlehuber was manufacturing illegal drugs, the Fifth Circuit pointed out that there was not merely passing reference to the link between the chemicals found and the manufacture of drugs, but, rather, several witnesses explicitly made the connection. The Fifth Circuit also found it significant that, although a sawed-off shotgun could be used by drug dealers, the gun seized at Ridlehuber's residence had a defective hammer and required a tool to cock it. The Fifth Circuit concluded that allowing admission of testimony concerning Ridlehuber's possible connection with the manufacture of illegal drugs, on which the evidence was tenuous, in his trial for possession of an illegal firearm would eviscerate Rule 404(b):\\nIn sum, if we hold that the drug related evidence in this case is not extrinsic, the exception to Rule 404(b) embodied in the \\\"inextricably intertwined\\\" analysis will swallow the rule. This is so considering (1) the weakness of the proof of drug offenses; (2) the weakness of the link between the drug offenses and the particular weapon, which was not very useful for its purported purpose; and (3) the barely adequate proof of defendant's possession of the weapon, which makes the impact of the drug evidence so much greater. Under these circumstances, Rule 404(b) prevents the government from bootstrapping evidence into this case.\\nId., 11 F.3d at 524. We find the analysis in Ridlehuber, being applied as it is to virtually identical facts, very persuasive.\\nThe only rationale advanced by the State to justify the repeated references to the present Defendant as a known drug dealer is that this fact, if it be such, was \\\"part of the res gestae or 'complete story.' \\\" The \\\"complete story\\\" is that the State lacked sufficient evidence to convict Defendant of possession or distribution of illegal drugs but relied on unsubstantiated hearsay to convince the jury Defendant was a \\\"known drug dealer\\\" so, ipso facto, the shotgun must belong to him. Rule 404 prohibits the admission of such extrinsic evidence.\\nIII. RULE m\\nIn addition to arguing Rule 404 precluded evidence of Defendant's alleged reputation as a \\\"known, drug dealer\\\", defense counsel also argued that references to illegal drug trafficking are so inflammatory that the balancing required under Rule 403 must lead to exclusion of such testimony. We also find this argument convincing.\\nWhile Rule 403 recognizes the district court's discretion to strike a balance between the probative value and prejudicial effect of evidence, it requires the district court to be sensitive to the potential prejudice inherent in evidence of Defendant's prior uncharged conduct. See Aguayo, 114 N.M. at 128, 835 P.2d at 844. \\\"One cannot ignore the long tradition of courts and commentators expressing fear that jurors are too likely to give undue weight to evidence of a defendant's prior misconduct and perhaps even to convict the defendant solely because of a belief that the defendant is a bad person.\\\" See Lamure, 115 N.M. at 71, 846 P.2d at 1080 (Hartz, J., specially concurring).\\nWe again find the reasoning of the Fifth Circuit in Ridlehuber persuasive, this time on the proper application of Rule 403 in such circumstances:\\n\\\"[T]he central concern of rule 403 is whether the probative value of the evidence sought to be introduced is 'substantially outweighed by the danger of unfair prejudice.' \\\" The drug-related evidence was probative on the issue of motive; it explained why Ridlehuber might have a sawed-off shotgun in his residence----\\nThe danger of unfair prejudice from admission of the drug-related evidence, by contrast, was great. The clandestine manufacture of controlled substances like methamphetamine and amphetamine is the kind of offense for which the jury may feel the defendant should be punished regardless of whether he is guilty of the charged offense.\\nRidlehuber, 11 F.3d at 521 (quoting United States v. Beechum, 582 F.2d 898, 913 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)) (citations omitted).\\nEvidence that even a witness had been involved with drugs has been held to be properly excluded as unduly prejudicial under Rule 403. State v. Blea, 101 N.M. 323, 327, 681 P.2d 1100, 1104 (1984). A mere allegation of drug sales by a defendant charged with possession of a firearm transgresses the limit of Rule 403 even more clearly. See United States v. Sullivan, 919 F.2d 1403, 1416 (10th Cir.1990), cert. denied, \\u2014 U.S. -, 113 S.Ct. 285, 121 L.Ed.2d 211 (1992), and cert. denied, \\u2014 U.S. -, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993). In the present case, Rule 403 prohibits the admission of such prejudicial evidence.\\nIV. CONCLUSION\\nWe hold the district court incorrectly applied Rule 404 in allowing the State's witnesses to testify, over objection, that Defendant was a known drug dealer. We also hold the district court erred in allowing the prosecutor to argue that Defendant was a known drug dealer and that \\\"keeping a gun is consistent with being a drug dealer.\\\" This evidence and argument allowed the jury to conclude that, even though there was no actual evidence Defendant was dealing drugs, Defendant was known to be a drug dealer and drug dealers keep guns, ipso facto, the rifle must belong to Defendant. Even if admissible, this evidence was certainly more prejudicial than probative and denied Defendant a fair trial. Accordingly, we reverse Defendant's conviction and remand for a new trial.\\nIT IS SO ORDERED.\\nALARID and FLORES, JJ., concur.\\n. As to the \\\"res gestae\\\" concept, we note that since the adoption of the Federal Rules of Evidence, both courts and commentators have largely abandoned \\\"the general haze of the res gestae doctrine.\\\" 4 David W. Louisell & Christopher B. Mueller, Federal Evidence \\u00a7 439, at 494 (1980); see 2 John W. Strong, McCormick on Evidence \\u00a7 268 (4th ed. 1992). Its continued use in New Mexico appears to be largely limited to the felony murder context where its breadth has been severely constricted. See State v. Harrison, 90 N.M. 439, 442, 564 P.2d 1321, 1324 (1977).\\n. If the admission of evidence in violation of Rule 404 was harmless, reversal would not be appropriate. State v. Lucero, 114 N.M. 489, 494, 840 P.2d 1255, 1260 (Ct.App.), cert. denied, 114 N.M. 413, 839 P.2d 623 (1992). It is therefore necessary to engage in the balancing required by Rule 403.\"}"
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+"{\"id\": \"1554377\", \"name\": \"CALIFORNIA SUGAR & WHITE PINE CO. v. WHITMER JACKSON & CO.\", \"name_abbreviation\": \"California Sugar & White Pine Co. v. Whitmer Jackson & Co.\", \"decision_date\": \"1928-01-04\", \"docket_number\": \"No. 2986\", \"first_page\": \"117\", \"last_page\": 128, \"citations\": \"33 N.M. 117\", \"volume\": \"33\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:33:56.279297+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER, C. J., and WATSON, J., concur.\", \"parties\": \"CALIFORNIA SUGAR & WHITE PINE CO. v. WHITMER JACKSON & CO.\", \"head_matter\": \"[No. 2986.\\nJan. 4, 1928.]\\nCALIFORNIA SUGAR & WHITE PINE CO. v. WHITMER JACKSON & CO.\\n[263 Pac. 504.]\\nMarr\\u00f3n & Wood, of Albuquerque, for appellant.\\nReid, Hervey & Iden, of Albuquerque, for appellee.\", \"word_count\": \"4076\", \"char_count\": \"23372\", \"text\": \"OPINION OF TPIE COURT\\nBICKLEY, J.\\nPlaintiff (appellant) sued defendant (appellee) for damages for breach of contract to purchase lumber, to be delivered at Albuquerque, N. M., in weekly installment shipments, commencing in the early part of July, 1920, and to proceed at the rate of one carload a week, 32 weeks being required to complete the deliveries and allowing for time in transit. The contract could thus have been fully performed in February, 1921. This construction was invited by plaintiff and was liberal to it and is not complained of.\\nAppellant makes no complaint here as to the court's instructions to the jury.\\nAccording to the statement of facts as given by the plaintiff, before the time arrived for the delivery of the lumber, the defendant attempted to cancel the contract, without any legal excuse, and refused to carry it out or comply with its terms on its part. The plaintiff declined to assent to a cancellation of the contract and offered and tendered performance on its part and held itself in readiness to perform during the time specified in the contract, and the sole question for trial and submitted to the jury was the amount of damages the plaintiff was entitled to recover. Appellant claims that it was established and we assume that there was no market for lumber at Albuquerque, the place fixed for delivery, and that the nearest available and effective market was in the state of California, and the market value was therefore to be determined by the market price and conditions in California, taking in consideration the freight rate to Albuquerque. The plaintiff also contended that when the time arrived for the fulfillment of the contract on its part and during the period of time fixed for the delivery of the installments, a great depression in the lumber trade and industry existed in the state of California, and throughout the country, with most other industries, at the time, to such a degree that the lumber market was demoralized and did not exist., so that it was impossible to go into the open market or any market available and find a ready, or practically any, sale for the lumber; that in order to dispose of the lumber, it was necessary to make a continued effort during a long period of time, and that in pursuance of such effort used by the defendant, the lumber was not in fact disposed of and could not have in the exercise of due and reasonable diligence been disposed of for more than a year after the time fixed for the delivery; and that in the meantime the prices and demand steadily declined and the buying market continued to shrink, until toward the end of the period when lumber could be sold at all, it was for less than one-half the price fixed by the contract.\\nThis contention of the plaintiff was denied by the defendant, who asserted that there was an ample existing market for lumber at the time at which the plaintiff could and should have sold the lumber at a price as much, or more, than that fixed in the contract. The contract, as construed by the court, permitted the plaintiff to ship the lumber in 32 weekly installments, which, commencing in early July, 1920, would carry the time for delivery into the following February. The court considered that a reasonable time thereafter should be allowed within which market conditions could be consulted in determining the market value of the lumber at the times fixed for delivery, and fixed April 1st as limiting the period for such inquiry \\u2014 later times being too remote. By ten assignments of error, the appellant presents its chief contention that the court erred in excluding evidence offered by it to show its efforts to sell the lumber at subsequent more or less remote dates and the prices obtained therefor. Appellant says the question is most nearly presented by its assignment of error No. 2, from which we hereafter quote its theory of the tender of the evidence in question.\\nOne of the instructions given by the court at the request of the plaintiff is as follows:\\n\\\"The ordinary rule of damages where a purchaser has refused to accept goods which he had bought and agreed to pay for is the difference between the contract price and the market value of the goods at the time and place fixed for delivery; and in cases like the present where the goods were to be delivered in installments, you should find and determine: the market value of each installment or carload of the lumber at Albuquerque in accordance with the terms of the contract; and the difference between that sum and the contract price, if the market value be less than the contract price, would be the damages upon that installment and the sum of the damages upon all the installments ascertained and computed in the same manner would be the amount of plaintiff's damages.\\\"\\nIt is the contention of the appellant that as there was no effective California market during the period in which the contract could be performed, and that as the plaintiff, exercising reasonable diligence through an effective sales organization, was unable to dispose of the lumber purchased by defendant until some time in September, 1921, it should have been permitted to introduce evidence of the sales of the lumber contracted for and the prices obtained therefor subsequent to April 1, 1921, and up until the time all of such lumber had been disposed of.\\nIn Mechem on Sales, vol. 2, \\u00a7 1618, is a discussion of an election of remedies which the vendor has in case the purchaser breaches the contract as follows:\\n\\\" 'The vendor of personal property,' it was said in a leading case, 'in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) he may keep the property as his own, and recover the difference between the market price, at the time and place of delivery, and the contract price.' This choice of remedies has been frequently asserted, and, with perhaps some modification, seems to have become an established doctrine of our law.\\\"\\nPlaintiff did not proceed under election No. 1, and disclaims having proceeded under election No. 2, and declares in its reply brief that it had at no time during the trial advocated that the measure of its damages was the difference between the contract price and the amount received on the sale of the lumber. Plaintiff did contend that its inability to sell promptly broadens the field of inquiry, so that evidence is to be received as bearing upon the value of the goods left on its hands, which evidence would be, ordinarily, too remote.\\nThe theory upon which the offer of evidence was made is shown by the following tender:\\n\\\"We offer to show prices at which sold, running on until about the month of September, 1921, when the last of it was sold, both as showing a measure of damages and also as evidence from which the market value, used in the sense of actual money value, of the lumber was during the respective months when these shipments could have been made by the contract.\\\"\\nWe suspect that plaintiff by the use of the words, \\\"as showing a measure of damages,\\\" may have had in mind, the second choice of methods to indemnify itself, as indicated by Mechem on Sales, supra; but, if so, such contention was abandoned, as indicated by the instruction quoted, supra, and such contention is disclaimed here. So, all we have to consider is the admissibility of the tendered evidence as being relevant to the measure of damages as announced in said instruction.\\nIn Williston on Sales (2d Ed.) p. 1376, it is said:\\n\\\"These damages are the difference between the contract price and the market price at the time and place when the performance should have been made by the buyer. The object of the resale in such a case is to determine what that market price in fact was. Unless the resale is made at about the time when performance was due, it will be of slight probative force, especially if the goods are 'of a kind which fluctuate rapidly in value, to show what the market price actually was at the only time legally important.\\\"\\nAppellant contends that where there was no market for the goods at the time the buyer was obliged to accept them, evidence could be introduced as to the price for which the goods sold, to determine the value thereof, even though the resale is of a time subsequent to the time performance should have been made by the buyer. Even if this is so, it became a preliminary question for the court to determine whether as a matter of fact there was an absence of a market at the time the contract was to be performed by the buyer. Some courts hold that finality as to the court's findings of fact upon which the admissibility of evidence depends is conceded to the trial judge; others, that his exercise of a legal discretion may be appealed from, and examined by the appellate court, to determine whether such discretion has been abused. Even if the latter is the correct rule, which we do not now decide, we are unable to say, after an examination of the record, that the trial court abused its discretion in the determination of the preliminary question of fact, upon which depended the admissibility of the evidence offered, and therefore find no error in its rejection.\\nAppellant also challenges the action of the trial court in receiving in evidence excerpts from the Timber-man, as follows:\\n\\\"Exhibit D-59: 'California Pine Market.' 'The demand' for pine box lumber continues strong in California on a basis of about $42.00. Shook is selling around $65.00. The supply of shop is low and up to the saw. It is used as fast as it can be produced. No. 1 shop F. o. b. mill is quoted from $90.00 to $92.00, with No. 2 shop at $10 less.'\\n\\\"Exhibit D-60: 'California White and Sugar Pine. San Francisco, Cal., July 2, 1920. Members of the San Francisco trade who recently checked the available amount of No. 2 shop and better in sugar and white pine declare that not over 15 million feet is available as unsold stocks. On May 1 only 50 per cent, as much pine lumber was piled at 20 mills as on May 1, 1919, it is reported.' And the following is also admitted: 'An advance in California sugar and white pine became effective on July 1. No. 1 and 2 clears advanced $5 and No. 3 clears $3 per thousand. The demand is strong with very limited stocks. No changes were made in other items.' The rest of- the offer is refused.\\\"\\n\\\"In the November, 1920, issue of the Timberman, the offer in the first column on page 81 under the heading 'White and Sugar Pine Situation' is refused. The offer in the second column, page 81, of the same paper, under the heading 'White Pine,' the following will be received: 'Average f. o. b. prices. Average prices f. o. b. a number of representative mills are about as follows: White Pine 5/ and 6/4 No. 1 shop, $90; 5/4 and 6/ No. 2 shop $66.'\\n\\\"San Francisco Market. [Subheading:] California Pine Prices. The following prices were quoted on October 1 for California white and sugar pine: 5/4, 6/4 No. 1 shop $92; 5/4, 6/4 No. 2 shop $70.\\\"\\nThe Timberman is exclusively a trade journal, published in Portland Or., for the lumber trade once each month, and always gives quotations on the market and other information regarding the state of the market as to lumber. It is satisfactorily shown that the Timberman is a reliable journal and is relied upon by the trade in general in dealings and negotiations touching lumber. The four excerpts quoted were from four separate monthly publications of the Timberman, offered for the purpose of showing the state of the market in the respective months of its publication. There were several objections made to the evidence quoted, but the argument of appellant challenging its admissibility presents solely the propositions as illustrated by the authorities he cites, that the introduction in evidence of such publication is not admissible as tending to prove or disprove the issues in this'case, and especially not when there is no preliminary showing as to the source from which its information is derived and as to the reliability of the source of information.\\nThe rule governing the introduction of evidence of this character is thus stated in 10 R. C. L. \\\"Evidence,\\\" \\u00a7 367:\\n\\\"It is a rule recognized generally that market reports or quotations as contained, in newspapers, trade journals, trade circulars, price lists, etc., are competent evidence of the state of the market. Indeed, such reports, based as they are upon a general survey of the whole market, and constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries or individual sales or inquiries;, and courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon, and demand evidence of a less certain and satisfactory character. Such evidence is within an exception to the general rule barring the admission of hearsay evidence inasmuch as it conies from a public authentic source which is deemed to give it reliability.\\\"\\nSubstantially -the foregoing is used as a headnote in an annotation to Atlantic Nat. Bank v. Korrick (Ariz.) 242 P. 1009, 43 A. L. R. 1184, where a large number of cases are cited in support thereof.\\nIn support of the contention that such evidence is not admissible without a preliminary showing as to the source from which the information is derived and as to the reliability of such source, appellant cites the foregoing case and a companion case from Arizona, Atlantic Nat. Bank v. Moore, 241 P. 609. These cases are readily distinguishable. It was not shown that the publication there involved was news of the market of which the business and trade world could take .advantage, or that it was published for the enlightenment of persons dealing in the articles referred to, nor that persons generally in the habit of dealing in such commodity relied upon its market quotations. The other cases cited are either distinguishable or are out of harmony with the weight of authority. We find no error in the admission of this evidence.\\nAppellant claims that the court erred in permitting the witness Bernhaur to testify concerning the contents of price lists of the Madiera Lumber Company in effect in the San Joaquin Valley, Cal., during the year 1920, and also receiving in evidence the price lists concerning which the witness testified.\\nIt is urged that at best the lists showed the prices in one locality only in California and did not reflect the general market. Also, that it was not shown that the prices listed were adhered to or represented actual trade conditions. When it is remembered that the plaintiff claimed that while price lists kept up there was no demand at all, and no practical market for any material quantity of lumber after July 1, 1920, and that the demand was spasmodic and unsettled between May and July, 1920, with very few transactions, any evidence showing demand, supply, and prices and actual transactions would be important on the question of the existence of a market, as well as upon the market prices.\\nHaving seen from the authorities quoted, supra, that price lists are competent evidence of the state of the market, our inquiry as to the evidence objected to is limited to the alleged defects in these particular lists and testimony concerning them. When we consider that the witness had been for years president and manager of a planing mill company that used about 500,000 feet per year (including 1920) of lumber of the character involved, and that practically all of such lumber was bought from the Madiera Lumber Company of Madiera, Cal., \\\"in accordance with their printed price lists published and distributed throughout the San Joaquin Valley,\\\" and that the price lists were f. o. b. Fresno and included a freight charge ofj $1 per thousand, and that the price lists referred to were as low as any other quotations being made for similar stock in that territory, and, taken in connection with the testimony of Colonel Breece that the market price of lumber all over the country is determined by the price of the lumber at the mills, plus freight to the market place, we think the testimony of the witness and the price lists were admissible as tending to show the state of the market.\\nThe following questions and answers appear in the examination of J. M. Farrell, witness for defendant:\\n\\\"Q. Were you in the market as a purchaser, at the prices such as you were paying, as shown by your testimony and by the billing and Exhibit B-43, for 565,000 feet of shop and better, during the months of June, July, August, and September, 1920? A. \\u00cd would.\\n\\\"Q. How would you do that so far as the shipments are concerned? A. Our practice was to accept shipments, two or three cars per week; yet at the time, lumber was so scarce, as a buyer, I wouldn't dictate the deliveries.\\\"\\nAppellant assigns error on account thereof. The objection is that it is speculative as to what the witness could or would have done and that it did not fix the market value in California and that the installments were not available in July.\\nIt appears that Mr. Spaulding, manager of the plaintiff company, and a witness for it, had testified that plaintiff maintained representatives in various parts of the United States and sold lumber throughout the United States and Canada, and that its representative at Chicago is Louis Wuichet. He also testified that the lumber in question could not have been sold at the rate of four cars per month except at a discount of 25 per cent, to 40 per cent. The witness Farrell had also testified that in June, 1920, the aforesaid Louis Wuichet told the witness that he could no longer care for Farrell's company's needs, as the demand for shop lumber was so great as to make timber scarce and that from June to August, 1920, the witness needed lumber very much and several times told Wuichet that he wanted lumber and Wuichet said he could not furnish it. Defendant offered this evidence to show that the lumber in question was in demand, that it had not declined from the contract price, and to rebut the statement of plaintiff's witness Spaulding, that he had repeatedly tried to' sell this lumber and found great difficulty in doing so. Under the circumstances detailed, we see no error in the action of the court in admitting the testimony.\\nIt is next claimed by appellant that it was error to permit the witness, Farrell, to testify to the effect that in August, 1920, he needed lumber badly to keep his factory going and went to Chicago to talk to a lumber broker, named Ruplee, about two cars of lumber that he had heard Ruplee had for sale. The lumber was not in Chicago, but the broker had it for sale, but by the time the witness reached Chicago, about one-half of it was already sold. Appellant objected, on the ground that it was immaterial, that the question did not call for evidence of market value at any time or place affecting the issue in the suit, and that the conditions of the market' or the existence of a market in Chicago was immaterial; but that the existence of a market in California was the only criterion which would reflect the Albuquerque market. It is true the court instructed the jury that the market value of the lumber at Albuquerque was to be determined by first ascertaining the market value of the lumber at the mills in California and then adding thereto the freight. But Mr. Spaulding, an officer of plaintiff, had testified that the market, for lumber is all over the United States and Canada. So, while the market value might be fixed as at the mills in California, the market is not limited to that state. Defendant sought to show by this evidence that at one place where plaintiff maintained an office and a representative for the sale of lumber, the demand was greater than the supply, the plaintiff having sought to show the reverse. There was no error in the admission of this testimony.\\nAppellant claims that the court erred in sustaining objections to questions put to the witness, Ruplee, as to the condition of the lumber market in Chicago during portions of 1920. These questions were contained' in the cross-examination of the witness in a deposition taken at the instance of the defendant. The defendant, deeming the deposition of no value to it and beneficial to the plaintiff, did not present it. After the defendant rested, this evidence was offered by plaintiff in rebuttal. It was objected to by the defendant as not being in rebuttal.\\nThe plaintiff had the burden of proving the amount of its damages, and, in the effort to do so, proceeded upon the theory that the lumber market in the latter .part of 1920 and early part of 1921 was demoralized and that there was very little demand for lumber; as plaintiff says in its brief in chief: \\\"The principal question at issue before the jury was this question as to the existence of a market, and its character.\\\"\\nUnder the familiar and usual rule, the plaintiff, having the affirmative of the issue, shall first introduce all the evidence tending to sustain such issue, and the defendant shall then put in such evidence as is properly receivable to destroy the force of plaintiff's case. So, plaintiff introduced evidence to show little demand and no real market, and defendant then put in evidence to show a heavy demand and a good market; and plaintiff, at the stage of rebuttal, sought to show by the witness lack of demand and a poor market.\\nThe evidence offered is not what is deemed \\\"evidence strictly in rebuttal\\\" or \\\"true rebuttal\\\" as defined by the law-writers, which plaintiff could put in. as a matter of right. It falls within the classification of \\\"evidence not strictly in rebuttal,\\\" being merely cumulative or confirmatory of that put in by plaintiff on the original case.\\nPlaintiff, however, asked permission to introduce the testimony as its affirmative evidence and as part of its case in chief, claiming to have been misled by the action of the defendant in failing to offer the deposition. In such instance, the rejection is within the sound discretion of the trial court. We find no reversible error in having rejected it.\\nFinally, the appellant says the judgment should he reversed and a new trial ordered, because under the court's instructions the . verdict was inadequate. The appellee, on the other hand, says the verdict was very liberal for plaintiff. The evidence is conflicting. This question, however, we will not look into, it being one of fact, and the verdict is conclusive in the absence of prejudicial error on the trial and in the absence of any showing- that the jury was affected by passion or prejudice. See Schofield v. Territory, 9 N. M. 526, 56 P. 306; Henderson v. Dreyfus, 26 N. M. 541, 191 P. 442.\\nFinding no reversible error in the record, the judgment is affirmed and the case remanded; and it is so ordered.\\nPARKER, C. J., and WATSON, J., concur.\"}"
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+"{\"id\": \"1555166\", \"name\": \"Joseph M. JARAMILLO, Petitioner-Appellant, v. Hon. James M. O'TOOLE, Magistrate, Division II of the Magistrate Court, in and for Bernalillo County, New Mexico, Respondent-Appellee\", \"name_abbreviation\": \"Jaramillo v. O'Toole\", \"decision_date\": \"1982-02-03\", \"docket_number\": \"No. 13708\", \"first_page\": \"345\", \"last_page\": 346, \"citations\": \"97 N.M. 345\", \"volume\": \"97\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T23:46:03.555838+00:00\", \"provenance\": \"CAP\", \"judges\": \"PAYNE and FEDERICI, JJ., concur.\", \"parties\": \"Joseph M. JARAMILLO, Petitioner-Appellant, v. Hon. James M. O\\u2019TOOLE, Magistrate, Division II of the Magistrate Court, in and for Bernalillo County, New Mexico, Respondent-Appellee.\", \"head_matter\": \"639 P.2d 1199\\nJoseph M. JARAMILLO, Petitioner-Appellant, v. Hon. James M. O\\u2019TOOLE, Magistrate, Division II of the Magistrate Court, in and for Bernalillo County, New Mexico, Respondent-Appellee.\\nNo. 13708.\\nSupreme Court of New Mexico.\\nFeb. 3, 1982.\\nDavid A. Grammer, III, Albuquerque, for petitioner-appellant.\\nHarold H. Parker, Angelo J. Jewell, Albuquerque, for respondent-appellee.\", \"word_count\": \"443\", \"char_count\": \"2822\", \"text\": \"OPINION\\nEASLEY, Chief Justice.\\nWil-Don Inc. sued Jaramillo in magistrate court, alleging breach of contract. The case was tried before a jury, which found in favor of Jaramillo. Wil-Don moved for judgment notwithstanding the verdict; the magistrate judge denied the motion and instead ordered a new trial. Jaramillo then sought a writ of prohibition from district court. The permanent writ was denied, and Jaramillo appeals the district court's decision. We reverse.\\nThe issue is whether a magistrate court has jurisdiction to set aside a jury verdict.\\nOur Constitution empowered the Legislature to create a magistrate court with limited jurisdiction. N.M.Const., Art. VI, \\u00a7 26 (reenacted 1966). The Legislature, accordingly, enacted 1968 N.M. Laws, ch. 62, \\u00a7 3 as codified in Section 35-1-1, N.M.S.A.1978, which established magistrate courts as courts with limited original jurisdiction. \\\" '[Ljimited' jurisdiction indicates that a magistrate is without authority to take action unless the authority has been affirma tively granted.\\\" State v. Vega, 91 N.M. 22, 25, 569 P.2d 948, 951 (Ct.App.1977).\\nWil-Don argues that rule 34 of the New Mexico Rules of Civil Procedure for Magistrate Courts, N.M.S.A.1978, affirmatively vests magistrates with the power to grant a new trial. The Rule reads:\\nError in either the admission or the exclusion of evidence and error or defect in any ruling, order, act or omission by the court or by any of the parties is not grounds for granting a new trial or for setting aside a verdict, for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take any such action appears to the court inconsistent with substantial justice.\\nA close reading of. the rule does not support Wil-Don's contention. The rule addresses acts and errors made by the magistrate or the parties. It does not say that magistrates may set aside a jury verdict.\\nThis reading comports with Section 35-8-4(C), N.M.S.A.1978, which states in part: \\\"The magistrate shall give judgment upon any verdict.\\\" (Emphasis added.) We interpret \\\"shall\\\" as mandatory. \\u00a7 12-2-2(1), N.M.S.A.1978; Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct.App.1972).\\nTherefore, the magistrate in this case was not empowered to set aside the jury verdict for the purpose of granting a new trial. We remand the case to the district court for entry of a permanent writ of prohibition.\\nIT IS SO ORDERED.\\nPAYNE and FEDERICI, JJ., concur.\"}"
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+"{\"id\": \"1557053\", \"name\": \"SENTRY INSURANCE COMPANY, Plaintiff-Appellee, v. GEORGE A. RUTHERFORD, INC., Defendant-Appellant\", \"name_abbreviation\": \"Sentry Insurance v. George A. Rutherford, Inc.\", \"decision_date\": \"1978-10-23\", \"docket_number\": \"No. 11902\", \"first_page\": \"210\", \"last_page\": 211, \"citations\": \"92 N.M. 210\", \"volume\": \"92\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:09:56.278497+00:00\", \"provenance\": \"CAP\", \"judges\": \"PAYNE and FEDERICI, JJ., concur.\", \"parties\": \"SENTRY INSURANCE COMPANY, Plaintiff-Appellee, v. GEORGE A. RUTHERFORD, INC., Defendant-Appellant.\", \"head_matter\": \"585 P.2d 1091\\nSENTRY INSURANCE COMPANY, Plaintiff-Appellee, v. GEORGE A. RUTHERFORD, INC., Defendant-Appellant.\\nNo. 11902.\\nSupreme Court of New Mexico.\\nOct. 23, 1978.\\nOldaker, Oldaker & Watkins, Michael P. Watkins, Albuquerque, for defendant-appellant.\\nKeleher & McLeod, Russell Moore, Robert H. Clark, Albuquerque, for plaintiff-appellee.\", \"word_count\": \"476\", \"char_count\": \"3031\", \"text\": \"OPINION\\nMcMANUS, Chief Justice.\\nGeorge A. Rutherford, Inc. (Rutherford) entered into a contract with the Regents of the University of New Mexico to construct an addition to the basketball arena. As part of the contract, Rutherford was required to obtain builder's risk insurance to insure against the \\\"perils of fire, extended coverage, vandalism and malicious mischief.\\\" The Regents had a blanket policy from Sentry Insurance Company (Sentry) which covered all University of New Mexico property. Rutherford was added to this policy by the following special endorsement:\\nIt is agreed that policy is amended to include George A. Rutherford, Inc. as Additional Named Insured as his interest may appear. General Contractor for purposes of modifying Arena Complex. All other terms and conditions remain unchanged. (Emphasis added.)\\nDuring the course of the modification, one of Rutherford's employees ignited a fire in the arena while using a welding torch. The fire caused substantial damage to the super-structure of the arena itself, but it did not damage any portion of the arena where the expansion and remodeling were going on. Sentry paid the Regents the sum of $370,020.46.\\nAfter paying the loss, Sentry filed this subrogation action against Rutherford seeking recovery thereof on the theory that the negligence of Rutherford and its employees had caused the fire and attendant damage to the arena. In its answer, Rutherford asserted that it was not liable under a subrogation theory because it was a named insured under the Sentry-Regents policy. Sentry moved to strike this defense. A hearing was held on this motion and an order was entered granting the motion to strike. Rutherford took an interlocutory appeal from this order.\\nThe issue is whether the language \\\"as his interest may appear\\\" extends insurance coverage to the full value of the arena or only to that part of the arena being expanded and modified.\\nIn our opinion, the plain meaning of the language \\\"as his interest may appear,\\\" does not affirmatively support either position. In addition, the only evidence in the record is presented through three affidavits. These affidavits are very short and do not indicate the intent of the contracting parties at the time the endorsement was drawn up. The record does indicate that the parties negotiated over the language, but details as to these negotiations were not supplied.\\nTherefore, it is the opinion of this Court that the decision of the trial court be reversed and the case be remanded for the purpose of obtaining evidence that will more clearly reveal the intention of the parties pertaining to those negotiations.\\nIT IS SO ORDERED.\\nPAYNE and FEDERICI, JJ., concur.\"}"
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+"{\"id\": \"1557137\", \"name\": \"RUIDOSO STATE BANK, Plaintiff-Appellant, v. Danny GARCIA and Lillian Garcia, Defendants-Appellees\", \"name_abbreviation\": \"Ruidoso State Bank v. Garcia\", \"decision_date\": \"1978-11-30\", \"docket_number\": \"No. 11950\", \"first_page\": \"288\", \"last_page\": 291, \"citations\": \"92 N.M. 288\", \"volume\": \"92\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:09:56.278497+00:00\", \"provenance\": \"CAP\", \"judges\": \"McMANUS, C. J., and SOSA, J., concur.\", \"parties\": \"RUIDOSO STATE BANK, Plaintiff-Appellant, v. Danny GARCIA and Lillian Garcia, Defendants-Appellees.\", \"head_matter\": \"587 P.2d 435\\nRUIDOSO STATE BANK, Plaintiff-Appellant, v. Danny GARCIA and Lillian Garcia, Defendants-Appellees.\\nNo. 11950.\\nSupreme Court of New Mexico.\\nNov. 30, 1978.\\nRonald G. Harris, Ruidoso, for plaintiff-appellant.\\nStagner, Higginbotham & Oas, Ronald Higginbotham, Keith R. Oas, Roswell, for defendants-appellees.\", \"word_count\": \"1233\", \"char_count\": \"7422\", \"text\": \"OPINION\\nEASLEY, Justice.\\nRuidoso State Bank seeks replevin, under security agreements, of two vehicles owned by Danny and Lillian Garcia. The Bank had previously obtained a default judgment in this case on promissory notes and had levied on the two vehicles. However, the Garcias claimed an exemption and the district court released the vehicles. The trial court denied the writ of replevin. The Bank appeals.\\nThe issues are:\\n1. Is the Bank precluded from replevying the vehicles under the security agreements by having first sued on the debt and having obtained a default judgment thereon?\\n2. Did the Bank's security interest in the two vehicles \\\"merge\\\" into the judgment for the debt?\\nThe Bank's complaint asked for judgment on two promissory notes covering loans on an automobile and a truck owned by the Garcias, upon which the Bank also had security agreements. However, the complaint did not seek to foreclose the security agreements. Default judgment was entered. Thereafter the Bank filed an affidavit in replevin seeking possession of the vehicles pursuing to its security agreements. There were allegations that the automobile was \\\"consumer goods\\\" and that the truck was used for business. The court denied the writ and concluded that the Bank, by suing on its debt instead of foreclosing its security agreements, had elected its remedy under the New Mexico Uniform Commercial Code and was therefore precluded from pursuing its collateral through a replevin action. The trial court further concluded that the security agreements had merged into the judgment on the notes.\\nThe New Mexico Uniform Commercial Code provisions are controlling in this case. Section 50A-9-501(l), N.M.S.A.1953 (Supp.1975) states:\\nWhen a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this part and except as limited by subsection (3) those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by an available judicial procedure. . The rights and remedies referred to in this subsection are cumulative. (Emphasis added.)\\nThere is nothing ambiguous about this statutory provision. It plainly states that the remedies of proceeding on the note and the security agreement are cumulative. Each of them remains in force although efforts may have been made to collect the debt by the alternate means. 2 G. Gilmore, Security Interests in Personal Property \\u00a7 43.7, at 1209-10 (1965). The comments under U.C.C. \\u00a7 9-501 indicate that a judgment lien acquired by a secured creditor creates no new interest in the creditor but is instead a continuation of the original interest created by the security agreement. 3 Uniform Laws Anno., U.C.C. \\u00a7 9-501, Comment 6 (1978 Pamphlet at 138). Section 50A-9-501(5) provides that:\\n[ T]he lien of any levy which may be made upon [the] collateral by virtue of any execution based upon the judgment shall relate back to the date of the perfection of the security interest in such collateral.\\nIt was the obvious purpose of these sections to abolish the doctrine of election of remedies. In White and Summers, Uniform Commercial Code, \\u00a7 26-4 at 964-65 (1972) it is stated: t\\nUnder pre-Code law, courts often held that the secured creditor who sued on the debt irrevocably elected to seek his sole remedy by that method. Thus, the courts thought that a suit on the debt was inconsistent with a subsequent claim by the seller-creditor that he retained title to the goods under a conditional sales contract. The election of remedy issue arose early under the Code, and the Third Circuit held that the creditor could first recover in an action on the underlying obligation and if that proved unsuccessful, later enforce the security agreement.\\nSee In re Adrian Research & Chemical Co., 269 F.2d 734 (3d Cir. 1959); P. Coogan, Secured Transactions of the Uniform Commercial Code, \\u00a7 8.08(1) (1977).\\nThe Garcias' claim of merger of the debt into the judgment is not persuasive, considering that the statutes give the Bank two separate and independent causes of action. It has been held by this Court that a debt and a mortgage securing it are separate and independent causes of action. Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84 (1941). The recovery of a judgment for a debt, except to the extent that it has been satisfied, does not prevent later proceedings to enforce a mortgage or other lien given to secure its payment. This Court has held that the creditor is not deprived by the judgment of his right to resort to a fund, or to avail himself of a lien or security held for the debt. Tindall v. Bryan, 54 N.M. 114, 215 P.2d 355 (1950). Although the cause of action may be merged into the judgment, the debt may be carried forward to prevent the destruction of contract rights. Cabot v. First National Bank of Santa Fe, 81 N.M. 795, 474 P.2d 478 (1970).\\nMerger does not apply here for the reason that the Bank had two separate causes of action. It could sue and reduce the debt to judgment. In that case the debt would be merged into the judgment. However, the debt would be carried forward so that the Bank's rights under the security agreement would not be destroyed. The security agreements, under the statutory prohibition, would not be merged into the judgment.\\nThe Garcias claim that the 1971 amendment to the New Mexico Uniform Commercial Code, \\u00a7 50A-9-504(2), N.M.S.A.1953 (Supp.1975), prohibits the payment of a deficiency by the debtor in the event the creditor chooses to repossess the collateral. This section reads:\\n(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency, except, a debtor is not liable for any deficiency where the collateral involved is consumer goods.\\nThe Garcias claimed, and the trial court agreed, that by taking judgment first on the underlying obligation on consumer goods covered by a security agreement, the Bank forfeited its right to replevin the security, since the above statute prohibits taking a \\\"deficiency.\\\"\\nThis position is not sound for the reason that the 1971 amendment by its own terms contemplates a \\\"deficiency.\\\" There can be no deficiency unless there has been a repossession and sale of the consumer goods. Thus, until there has been a sale of the consumer goods in this case and an attempt made to collect any deficiency, the Garcias have not been harmed. At such time as an effort is made to collect a deficiency, if any, the Garcias will then have cause to complain insofar as it pertains to any consumer goods involved.\\nWe hold that the Bank is not barred under the doctrine of election of remedies from pursuing its remedies under the security agreements and that the security agreements were not merged into the judgment for the debt.\\nThe decision of the district court is reversed and the case is remanded. The court shall consider the replevin action of the Bank in conformity with the principles set out herein.\\nIT IS SO ORDERED.\\nMcMANUS, C. J., and SOSA, J., concur.\"}"
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+"{\"id\": \"1557938\", \"name\": \"JOHNSON v. CITY OF SANTA FE\", \"name_abbreviation\": \"Johnson v. City of Santa Fe\", \"decision_date\": \"1930-07-11\", \"docket_number\": \"No. 3437\", \"first_page\": \"77\", \"last_page\": 80, \"citations\": \"35 N.M. 77\", \"volume\": \"35\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:58:30.100091+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER and CATRON, JJ., concur.\", \"parties\": \"JOHNSON v. CITY OF SANTA FE.\", \"head_matter\": \"[No. 3437.\\nJuly 11, 1930.]\\nJOHNSON v. CITY OF SANTA FE.\\n[290 Pac. 793.]\\nM. W. Hamilton, of Santa Fe, -for appellant.\\nE. P. Davies and W. A. Gillenwater, both of Santa Fe, for appellee.\", \"word_count\": \"1080\", \"char_count\": \"6461\", \"text\": \"OPINION OF THE COURT\\nWATSON, J.\\nIn an action for personal injuries against James Collier and the city of Santa Fe, appellee, plaintiff below, was awarded $10,000 damages upon findings and conclusions by the trial court. While going from her home to attend mass in the early morning, and in the dark, proceeding along Kentucky avenue in the city of Santa Fe, she fell into an open sewer trench excavated by defendant Collier for the city of Santa Fe. No service was had upon defendant Collier, and the judgment is against the city alone.\\nAppellant (the city of Santa Fe) first objects to the overruling of its demurrer to the complaint. The argument here is based upon the premise that defendant Collier was an independent contractor, and that, in' that situation, the allegations of the complaint failed to show the violation, of any duty resting upon the city, and particularly failed to show that the city had notice of any dangerous condition in the street.\\nWhile it did develop at the trial that Collier was an independent contractor, the fact does not appear upon the face of the complaint; the allegation being that he was \\\"employed\\\" by the city to construct the sewer. It may be true, as appellant argues, that this allegation left it uncertain as to whether Collier was the agent dr servant of the city, or whether he was an independent contractor. Yet, if the trial court construed this as an allegation that defendant Collier was the agent or servant of the city, this court, under the well established rule, would follow that construction. Demurrer is not the proper mode of attacking\\\" an allegation for indefiniteness and uncertainty. Upon the theory that Collier was the city's agent or servant, his knowledge of a dangerous condition would be the knowledge of the city, and it would be unnecessary to allege or prove actual knowledge. This objection must be overruled.\\nAppellant does not invoke a general review of the evidence, but calls attention to certain testimony elicited from appellee, to establish its contentions that the court erred in holding appellant guilty of negligence, and in holding appellee not guilty of contributory negligence. Appellee admitted that for several days she had observed the excavating machine approaching her home, digging its way along the street in question, and that on the pre ceding two mornings, but later, she had passed the machine on that street on her way to mass. She also admitted that at the time of the accident she carried prayer book and rosary, and was saying her prayers.\\nWe need not question appellant's legal proposition that, where negligence consists in failure to warn of a dangerous condition, actual knowledge by the party injured is equivalent to warning, and that disregard of the known danger, rather than failure to warn, should in such case be deemed the proximate cause.\\nNor need we question that one who knows the dangerous condition of a street, and chooses to traverse it in preference to a safe street reasonably convenient, and who, moreover, proceeds with a preoccupied mind, and without caution commensurate with the known danger, will be deemed contributorily negligent as matter of law.\\nWe cannot agree, however, that the facts relied on make a case under either of these principles so clear that reasonable minds might not fairly differ on the questions of negligence and of contributory negligence. The street was left open to traffic. It had been constantly used. There was a passage which others had used and which appeared to appellee to be safe. Appellee does not admit that she had observed or was conscious of a particular danger. There is nothing in the testimony relied on to disclose that she had reason to anticipate encountering an open and unlighted excavation. Nor is the fact that she was saying prayers at all conclusive that her mind was so preoccupied as to render her heedless of danger. These conclusions of the trial court cannot be disturbed.\\nAppellant contends that the damages are excessive. They are based on findings of permanent injury, resulting in reduction of earning capacity from $150 to $20 per month; appellee's age having been approximately sixty, and her expectancy approximately fourteen years. Counsel argues that it was not reasonable to anticipate that appellee's then earning power would continue throughout her expectancy. But, even if it should, he says, the sum of $9,835, that portion of the judgment based upon decreased earning capacity, would have been excessive.\\n\\u2022On just -what basis counsel so concludes, we are not advised. The purchase of an annuity of $1,560 ($130 per month) at age sixty, would seem to call for approximately $18,000. The Americana, vol. 2, p. 3. If our calculation is correct, a fund of $9,835 kept invested at 5 per cent, would exhaust itself in less than eight years in meeting annual payments of $1,560.\\nIt is contended that a loss of $85 per month is the most that the evidence discloses. Even so, nearly $12,000 would be required to purchase an annuity of $1,020 during appellee's expectancy, and $9,835 invested at 5 per cent, would be exhausted by such payments in less than .fourteen years.\\nThe damages seem to be liberal, but, admitting the permanency of the injury, not beyond the limits of the trial court's reasonable discretion.\\nDr. Livingston, for appellee, answering a hypothetical question, stated that the injury would probably be permanent. Dr. Fiske, for appellant, after examination at the time of the trial, considered that from the physical standpoint it was not permanent; that it afforded no reason for inability to work; that her \\\"complaints, the things she complains of, are entirely subjective\\\"; that he could not state definitely \\\"whether those (complaints) have a foundation\\\" ; that \\\"there may be some injury to the peripheral nerve\\\"; that she still has sensation of pain and \\\"it may\\\" indicate \\\"a permanent injury to that part of the nerve in that location.\\\" We cannot say that this evidence, in connection with other evidence, in the case, does not substantially support the conclusion of permanency of injury.\\nFinding no error, we affirm the judgment and remand the cause. It is so ordered.\\nPARKER and CATRON, JJ., concur.\\nBICKLEY, C. J., and SIMMS, J., did not participate.\"}"
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+"{\"id\": \"1558003\", \"name\": \"STATE v. BELL\", \"name_abbreviation\": \"State v. Bell\", \"decision_date\": \"1930-07-17\", \"docket_number\": \"No. 3511\", \"first_page\": \"96\", \"last_page\": 97, \"citations\": \"35 N.M. 96\", \"volume\": \"35\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:58:30.100091+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER and CATRON, JJ., concur.\", \"parties\": \"STATE v. BELL.\", \"head_matter\": \"[No. 3511.\\nJuly 17, 1930.]\\nSTATE v. BELL.\\n[290 Pac. 739.]\\nAlbert Morgan, of Portales, for appellant.\\nM. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State.\", \"word_count\": \"301\", \"char_count\": \"1703\", \"text\": \"OPINION OF THE COURT\\nSIMMS, J.\\nAppellant was convicted of possessing a still for manufacturing intoxicating liquor.\\nHis first ground of appeal seems to be that there is no testimony in the record which points to his guilt. We think there was sufficient evidence to go to the jury and, under our unbroken line of authorities on this question, we will not disturb the verdict.\\nAppellant next finds fault with the action of the trial court in allowing a witness to testify as to what he saw on June 3d, when the crime is charged in the indictment to have been committed on June 14th. The statute permits proof any time within the period of limitation. Section 35-4410, Comp. St. 1929.\\nFinally, appellant complains that peace officers who were looking for another party came to his house and looked in, finding, as they testified, the still and apparatus in question. Appellant says that without a search warrant to justify such action, the officers had no right to thus violate his habitation, and their testimony as to what they saw was not admissible. In the case of State v. Watts et al., 290 P. 738, this day decided, we have held that such testimony is not rendered inadmissible because of lack of a search warrant. See State v. Dillon, 34 N. M. 366, 281 P. 474.\\nThere are other matters presented which we do not consider require discussion. We conclude that the judgment of the lower court should be affirmed, and it is so ordered.\\nPARKER and CATRON, JJ., concur.\\nBICICLEY, C. J., and WATSON, J., did not participate.\"}"
\ No newline at end of file
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+"{\"id\": \"1559091\", \"name\": \"JACKSON v. GALLEGOS et al.\", \"name_abbreviation\": \"Jackson v. Gallegos\", \"decision_date\": \"1934-03-02\", \"docket_number\": \"No. 3760\", \"first_page\": \"211\", \"last_page\": 225, \"citations\": \"38 N.M. 211\", \"volume\": \"38\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:31.441078+00:00\", \"provenance\": \"CAP\", \"judges\": \"WATSON, C. J., and HUDSPETH, BIOKUEY, and ZINN, JJ., concur.\", \"parties\": \"JACKSON v. GALLEGOS et al.\", \"head_matter\": \"30 P.(2d) 719\\nJACKSON v. GALLEGOS et al.\\nNo. 3760.\\nSupreme Court of New Mexico.\\nMarch 2, 1934.\\nBarker & Fahy and J. O. Seth, all of Santa Fe, for appellants.\\nGilbert & Hamilton, of Santa Fe, for appellee.\", \"word_count\": \"6866\", \"char_count\": \"40335\", \"text\": \"SADLER, Justice.\\nThis case is before us on motion for rehearing. We deem it convenient to withdraw the opinion heretofore handed down and to substitute the one to follow therefor.\\nPlaintiff (appellee before us) sued in the district court of Rio Arriba county to quiet title to a portion of the Juan J\\u00f3se Lobato land grant located in said county, naming innumerable defendants including the own ers of the Polvadera land grant who are sole appellants here and will be referred to herein as defendants.\\nThe complaint, which was one in ordinary-form to quiet title, set forth numerous exceptions, embracing all those contained in the decree of confirmation and patent as well as additional exceptions. These defendants appeared and filed their -answer and cross-complaint. The plaintiff filed his answer to defendants' cross-complaint and the cause thus proceeded to trial.\\nAt the trial plaintiff's counsel read into the record a stipulation of the parties made at or prior to the date of trial.\\nLargely it contained reciprocal- agreements on the part of each as to date of the other's grant, of juridical possession thereunder, time of confirmation by the United States Court of Private Land Claims and of issuance of United States patent pursuant thereto; also stipulations with reference to present ownership by the parties of the grant titles and an admission on the part of each that the other's grant lines as originally made embraced the overlap, the lands at issue between them. It was also stipulated that each was an individual grant of a specific tract, neither being a community grant nor what is known as a \\\"float,\\\" having reference to undescribed and unloeated lands. Portions of the stipulation w-ill be adverted to more in detail hereinafter as occasion demands.\\nHaving introduced the stipulation into the record, the plaintiff rested. Thereupon the defendants interposed a motion to dismiss which was in effect a demurrer to the evidence, as follows:\\n\\\"Air. Fahy: The plaintiff having rested on the stipulated facts, the defendants move for judgment of dismissal as against the defendants Emmet Wirt, Katherine Long Garcia and J. Cristobal Gomez, Administrator of the estate of Felix Garcia; the defendants move for judgment of dismissal against them and also judgment on their cross-complaint against the plaintiff for the reason that the stipulation shows that these defendants are the owners of the paramount prima facie title.\\\"\\nThe court denied -both motions, whereupon the defendants proceeded and without objection from plaintiff to introduce evidence consisting of an abstract of title containing among other things proceedings in a suit in partition and to quiet title to the Polvadera grant out of which arose a special master's deed relied upon by defendants. Likewise and without objection from plaintiff that the issue was immaterial, the defendants introduced the oral testimony of several witnesses in support of their claim of title by adverse possession. Defendants having rested their case, the plaintiff questioned the sufficiency of the evidence to establish title by adverse possession by a demurrer to the evidence upon the following grounds, to wit:\\n\\\"Mr. Gilbert: Plaintiff demurs to the evidence on the ground it does not show continuous adverse possession and exclusive adverse possession or visible adverse possession during any of this period of time.\\\"\\nContemporaneously with the interposition of the demurrer,' the defendants renewed their motion for dismissal of the complaint and judgment on their cross-complaint urged at the close of the plaintiff's case in chief. 'The plaintiff's demurrer to the evidence was sustained and the motion of defendants was denied. Thereafter a final decree embracing certain findings and conclusions was entered in favor of plaintiff. The present appeal seeks a revision and correction of that decree.\\nWe are confronted at the threshold of this case with defendants' claim of error predicated upon the court's action in overruling their motion to dismiss and for judgment upon their cross-complaint interposed when plaintiff rested his case in chief and renewed at the close of defendants' case. If defendants' position upon this question (be correct, the other points need not be considered. It is urged with great earnestness that by reason of plaintiff's omission to prove that the overlap, the land to which plaintiff sought to quiet title as against defendants, constituting as it does only a part of the Lobato grant, was not within any of the exceptions withheld from said grant by the patent, or subsequently existing as enumerated in the complaint, there was a fatal failure of proof entitling defendants to a dismissal of plaintiff's complaint and judgment on their cross-complaint. The rule invoked is that applied in Maxwell Land Grant Co. v. Dawson, 7 N. M. 133, 34 P. 191; Id., 151 U. S. 586, 14 S. Ct. 458, 38 L. Ed. 279, the reason for which is well stated in Stephens v. Terry, 178 Ky. 129, 198 S. W. 768.\\nIf upon the merits of the point, we should agree with defendants in their view of the proof, still whether as a foot the 9,500-acre overlap is within or without the exceptions from plaintiff's grant, nowhere appears except as its location within the exceptions may be surmised from plaintiff's failure to prove that it lies outside them.\\nThe plaintiff, although arguing at length that under the stipulation and pleadings there was no such failure of proof, questions defendants' right to review the point since the claimed defect in proof .was not pointed out -specifically in the motion to dismiss. See Blacklock v. Fox, 25 N. M. 391, 183 P. 402. Counsel for defendants insist that their motion, in effect a demurrer to the evidence, challenged the sufficiency of plaintiff's evidence as a whole and renders available the point urged. And it may be inquired, as to the particular defect here claimed, whether within the rule applied in Schaefer v. Whitson, 32 N. M. 481, 259 P. 618, the same might be noticed as a matter of fundamental error.\\nBut in view of our conclusion that a new trial should follow our reversal of the trial court's ruling on the issue of adverse possession hereinafter discussed, we are of opinion that upon such retrial and in furtherance of justice the case should be open for additional proof upon this issue. We are therefore disposed to forego a decision of the question embraced in this otherwise serious point. We apprehend that upon s\\u00fcch retrial this issue will be resolved by affirmative proof rather than a mere failure thereof. Thus no injustice can prevail as conceivably might were the question made decisive on the present state of the proof.\\nOne of the initial points presented for decision before passing to other questions is involved in the determination whether, aside from its subsequent loss (if the subsequent loss of either title can be considered under the stipulation), the Juan Jose Lobato grant or the Polvadera grant has the superior title to the area within an overlap of the boundaries of the two grants, which conflict is conceded by both parties to exist.\\nThe facts raising this issue are these: The Juan Jose Lobato grant has priority of grant and of delivery of juridical possession from the kingdom of Spain. The Polvadera grant has priority of confirmation by the United States Court of Private Land Claims and of patent from the United States pursuant thereto. The stipulation embraces a reciprocal agreement on the part of each that the other's grant covered all lands within the conflict and was a valid and perfect grant, except in so far as its validity may, as a matter of law, have been affected, as to the Lobato, by the subsequent grant of the Polvadera and its earlier confirmation and patent; and, as to the Polvadera, by the-priority of grant possessed by the Lobato.\\nThe plaintiff relies upon Territory v. Delinquent Tax List, 12 N. M. 62, 73 P. 621; Territory v. Delinquent Tax List, 12 N. M. 169, 76 P. 316; Board of Trustees of Cebilleta de la Joya Grant v. Board of Trustees of Belen Land Grant, 20 N. M. 145, 146 P. 959; Id., 242 U. S. 595, 37 S. Ct. 215, 61 L. Ed. 514; Board of Trustees v. Brown, 33 N. M. 398, 269 P. 51; U. S. v. Percheman, 7 Pet. 51, 8 L. Ed. 604; Trenier v. Stewart, 101 U. S. 797, 25 L. Ed. 1021; Ainsa v. N. M. & Ariz. R. R. Co., 175 U. S. 76, 20 S. Ct. 28, 44 L. Ed. 78; Henshaw v. Bissell, 18 Wall. 255; 21 L. Ed. 835; and Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 11 S. Ct. 656, 35 L. Ed. 278, in support of his claim to superiority of title under these, facts. The authorities relied upon abundantly sustain his position. We therefore hold the Lobato grant and the owner thereof to have the superior title to the area in conflict in so far as determined by the facts mentioned in connection with our discussion of this question.\\nThe plaintiff insists that when we have decided the question just determined, we have passed upon the sole question submitted for our determination by the stipulation, saying:\\n\\\"Its determination will dispose of all of the issues herein, when considered in connection with the stipulated fact that tooth the parties hereto were, at the time of the filing suit and at the time of trial, the owners of all of the rights, titles and interests in their respective grants which were originally vested in the grantees and confirmees thereof.\\\"\\nAlthough the weight of this argument is directed against defendants' right under the stipulation to rely upon the decree in the quieting title suit as res adjudicata and to claim under a certain tax title purchased by defendants' predecessors in interest which was disclosed and adjudged valid in the partition proceedings, the construction urged,- if sustained, as effectually eliminates defendants' claim of adverse possession as it does the other two assertions of title. In urging that a determination of the superiority of grant titles when considered in connection with the stipulation disposes of all the issues, the plaintiff's argument necessarily embraces the issue of adverse possession. Indeed, it would, be fatal to the construction contended for by .plaintiff to concede that adverse possession was properly triable under the stipulation while res adjudicata and the tax title were not.\\nIn urging his construction of the stipulation, the plaintiff invokes the language of paragraph 7 thereof reading as follows:\\n\\\"That the plaintiff herein has, and at the date of the commencement of this -suit had acquired, and is and then was the owner of all of the right, title and interest acquired by said Juan Jose Lovato in and to said Juan Jose Lovato Grant, and had acquired and is the owner of all of the right, title and interest therein and thereto of the persons to whom said grant was confirmed and patented as aforesaid.\\\"\\nPlaintiff then inquires:\\n\\\"How can appellants be permitted to stipulate in one breath that appellee was the owner of all of the right, title and interest of the original grantees and confirmees, and in the next be heard to claim that such interest had been divested by court decree against 'unknown claimants' in the interim?\\\"\\nThe position of defendants is that the stipulation was never intended to and did not preclude any proof, if it could be adduced, \\\"that the grant titles (the facts in regard to which alone the stipulation relates) had been lost \\u2014 either by adverse possession, decree of court, tax sale, or in any other manner.\\\"\\nThe defendants then, in support of their construction of the stipulation as just expressed, assert that the plaintiff's present interpretation is invoked for the first time in this court and was not urged or relied upon in the court below. The record seems to support them in this statement. They contend that the course of proceedings at the trial was based upon their construction of the stipulation. From the record it appears the defendants introduced in evidence, without objection from plaintiff, a voluminous abstract of title. It contained, among other things, a transcript of the proceedings in a suit in partition and to quiet title out of which there arose a special master's deed of the Polvadera grant to defendants. They rely upon the decree in that suit as res adjudicata upon the plaintiff and also rely upon the tax title of their predecessors adjudged valid in the quieting title and partition suit.\\nAlso, without objection from plaintiff that the thing sought to be proved by them was immaterial under the stipulation, the defendants produced and examined, and had subjected to cross-examination by plaintiff, numerous witnesses, in support of their claim of title by adverse possession. Plaintiff demurred to this evidence upon the ground that it failed in three named and essential respects to show title by limitations. The court sustained the demurrer and found and adjudicated that defendants had not \\\"acquired title to any of the properties at issue between tbe plaintiff and said cross-complainants by adverse possession, or otherwise.\\\" (Italics ours.)\\nIf tbe construction now urged upon us by plaintiff be the correct one, and we are willing to agree the stipulation is fairly susceptible of such a construction, the time of both court and counsel was thus wasted in hearing a false issue. It must have been the view of the court and all parties below that the claim of title by adverse possession was open to defendants under the pleadings and stipulation. Otherwise objection would have been raised to litigating the issue. Either that, or plaintiff Iby his conduct at the trial in consenting to litigate this issue, thereby waived so much of the stipulation as might otherwise have denied the right. Under either view, we hold the question of defendants\\\" title by adverse possession is not eliminated by the stipulation. A like conclusion follows as to the issues of res adjudieata and the tax title in so far as it is claimed they are eliminated by the stipulation.\\nThe defendants predicate errors upon the trial court's failure to hold the decree in the suit to partition and quiet title, disclosed in the abstract, res adjudieata of the questions sought to be litigated by plaintiff in the present suit; likewise, upon the trial court's failure to hold defendants to be owners of the land involved under a tax sale to their predecessors in interest, established and adjudged valid in said partition suit. Whatever was before the court in the instant case on the question of the tax sale appeared in the abstract as a part of the proceedings in the partition suit, and not through independent proof. Hence, so far as the present record stands, it must be apparent that unless plaintiff were a party to the quieting title and partition suit, he is not bound by the decree therein either upon the theory of res adjudieata, or by virtue of the tax title.\\nWaiving for the moment questions raised against the competency as proof of any and everything appearing in the abstract, some of which presently will be determined, we are confronted w.ith three objections by plaintiff to the availability to defendants of res adjudieata either defensively or as a basis for affirmative relief. They are (1) that it was not pleaded; (2) that it was not proven; and (3) that it was not ruled upon by the trial court.\\nAs to the first objection, we think the absence of a pleading to support the proof offered was waived and a consent to litigate resulted when plaintiff without objection stood by and saw the abstract containing at length the proceedings and decree in the quieting title suit admitted generally. See 49 C. J. 828; Canavan v. Canavan, 17 N. M. 503, 131 P. 493, Ann. Cas. 1915B, 1064; Nikolich v. Slovenska, etc., 33 N. M. 64, 260 P. 849.\\nAlthough counsel for defendants have pressed cogently the contention that by their proposed finding of title in defendants and through exceptions to the trial court's finding of title in plaintiff, they brought directly and specifically to its attention their reliance upon their record title as disclosed by the abstract, thus, as asserted, meeting the third objection, supra, we think our observations on the second objection, viz., that res adjudicata was not proven, will dispense with a decision of the third or last one.\\nThere is nothing in the record to show that plaintiff held under any of the named defendants in the partition and quieting title suit. Nor, so far as the record discloses, was any effort made to show the existence of facts warranting a designation of him, or his predecessors in interest, as defendants to said suit under the style of \\\"unknown claimants of interest\\\" in the Polvadera grant. Absent such showing, it is earnestly insisted by plaintiff that the decree in the quieting title suit is wholly inoperative and ineffective as to him. He cites 34 C. J., pages 1067 and 1078, to the point that the burden was -upon defendants invoking the decree to place plaintiff in privity with it.\\nWhile these objections to the decree's effect upon plaintiff are serious, striking down as they do, if sustained, defendants' claim of res adjudicata, as well as the assertion of title under the tax sale, the position of defendants with respect thereto is not unlike that of plaintiff with reference to the first point discussed, viz., the claimed defect in plaintiff's- proof through failure to show that the overlap was not within any of the exceptions carved from the Lobato grant. Here, -as there, we are asked to foreclose the claims through a failure on the part of those invoking them to sustain a burden of proof assertedly resting upon them. The same considerations which -moved us to pass a decision of the point mentioned and leave the question open at the new trial for further proof, if it exists, direct a like course here and it is so ruled.\\nThe defendants, among other things, rely upon title secured through their purchase of the Polvadera grant at a special master's sale held July 12, 1918 (and subsequently confirmed), under the decree in the suit to partition and 'quiet title to said grant, and a special master's deed, dated July 29, 1918, issued pursuant thereto. These facts also are proven, if at all, by the abstract. It is insisted that the sole warrant for the admissibility of said abstract is to be found in 1929 Comp. \\u00a7 45-615, making an abstract of title to real estate in New Mexico, \\\"certified to as correct,\\\" etc., receivable in evidence in all courts of the state \\\"as evidence of the things recited therein, in the same manner, and to a like extent, that the public records are now admitted,\\\" etc.\\nThe sufficiency of the certificate to entitle this abstract to reception in evidence under the statute is assailed in two respects, first, as excepting from operation thereof \\\"conflicts, if any there be, with other Land Grants,\\\" and, second, as certifying to the correctness of the instruments abstracted as the same appear from the indices of the records of Santa Ee county, instead of Rio Arriba county, where the lands in controversy lie.\\nWe do not consider substantial either of the objections here urged for the first time against the admissibility or evidentiary value of the abstract. Plaintiff permitted it to go in evidence without objection. The reference to Santa Ee county records in the certificate is obviously a clerical error, resulting in the failure of a Santa Ee county abstractor preparing the abstract to change the name of the county to Rio Arriba in the form of certificate in common use by it. Every instrument abstracted refers to the records of Rio Arriba county as its source and without doubt the certificate was understood and considered by court and counsel as relating to the records of Rio Arriba county, as unquestionably it does.\\nIt is equally obvious that the exception in the certificate of conflicts, if any, with other land grants, when related to the land described in the caption and to what appears in the body of the abstract, does not except any land from operation of the certificate, but simply excludes therefrom the chain of title to any grant which conflicts with the one under search. That such is the effect of the exception is abundantly shown by the fact that the caption describes the land to be abstracted, as the Polvadera grant, as confirmed, surveyed, and patented, containing 35,761.14 acres. This is the total original acreage of the Polvadera embraced within its exterior boundaries, including conflict with the Lobato, and such is the acreage, without deduction, carried through the abstract as shown by instruments, court proceedings, and tax receipts. Hence, we conclude that the matters shown in the abstract are entitled to such evidentiary value, and such only, as is accorded them by the statute permitting the reception in evidence of a duly certified abstract\\nWe now come to the question of adverse possession. When defendants rested in their proof on this issue, the plaintiff interposed his demurrer to the evidence hereinabove set out. The demurrer was sustained by the court and its action in so doing is one of the points relied upon by defendants for reversal.\\nAs we view the matter from the record before us, in order to prevail upon their claim 'of adverse possession, the defendants must establish title under 1929 Comp., \\u00a7 83-119, as contradistinguished from title under section 83-122.\\nThe former recognizes title by adverse possession where any one shall have had possession for ten years of lands granted by the governments of Spain, Mexico, or the United States, holding or claiming the same by virtue of a deed or deeds purporting to convey an estate in fee simple. Payment of taxes for the period covered is not required under this statute. Under section 83-122, payment of taxes is required. While the abstract here in evidence shows payment of all taxes by defendants or their predecessors in interest on the Polvadera grant, including the overlap, for the year-s 1904 to 1926, both inclusive (the abstract having been certified shortly after further taxes became due), this would fall short by two years of showing tax payments for ten years after defendants began to hold under their special master's deed, admittedly good as furnishing color of title under section 83-122. Hence, although defendants pleaded title under both statutes, the failure to show tax payments for the full period of time required eliminates a consideration under the record before us of title under the last-mentioned statute.\\nIn proof of possession in their predecessors in interest prior to purchase by defendants at special master's sale, the defendants mainly rely upon the possession of a custodian of the Polvadera grant appointed by the court in the above-mentioned suit to partition and quiet title with authority to take possession, collect rentals, prevent depredations, and otherwise conserve the property. The facts tending to show such possession consist chiefly in a transcript of the proceedings in said suit such as the custodian's various reports of tenancies, collections, and disbursements. The plaintiff insists that the abstract of these reports is entitled to no more weight than would be the original court papers themselves, and that the latter would be mere hearsay as to him.\\nIn addition to the objection to the hearsay character of what the abstract- disclosed on the custodian's possession, the plaintiff also objects to it upon the ground that possession of the custodian cannot be demed to have been adverse to the true owner. It is to be borne in mind that all of these objections are urged here for the first time, the entire abstract going in evidence at the trial without objection of any kind.\\nPassing the question whether the custodian's possession was adverse to plaintiff, we do not deem it sufficient to establish a -prima facie showing of adverse title in defendants' predecessors in interest. The order appointing the custodian discloses that he was authorized to prevent depredations and rent the pasturage on the grant.\\nOver a period of twelve years from April, 1906, the date of his appointment, to August, 1918, following partition sale of the grant in July preceding, he filed only four reports; one in 1908, one in 1913, one in 1917, and the last in 1918. The first three reports as abstracted contained this information and nothing more: \\\"Said report covers receipts and. expenses in the case of said Polvadera Grant\\\" The last one alone contains a recitation of any of the contents of the report. It recites a lease, from June 1, 1918, to November 1, 1918. Except for that report there is nothing in any of them to disclose the extent or character of the custodian's possession, and particularly that it extended over the conflict.\\nPassing then to the question of defendants' showing of adverse possession dating from the time they began to hold under special master's deed evidencing their purchase at partition sale of the whole of the Polvadera grant, including the conflict, the pertinent facts which their evidence tends to establish are as follows: That one of the defendants and the predecessor in interest of the other two, purchased the entire Polvadera grant of 35,761.14 acres, including the overlap of 9,-510.9 acres, at a partition sale of said grant in July, 1918, for a cash consideration of $53,-641.71, or $1.50 per acre, which was duly paid. The special master's deed was dated July 29, 1918, and, after approval on August 2, 1918, was recorded in Book 21 \\u2014 A of deeds in Rio Arriba county on September 6, 1918.\\nIn addition, under the stipulation they were conceded to be the owners of the original grant title to the Polvadera except as plaintiff might show it to have been lost by subsequent events. The plaintiff's present suit to quiet title was instituted in the district court of said county on January 16,1930, and trial thereof was had on April 27th, of the same year.\\nThe area in conflict, the overlap, lay on the eastern side of the Polvadera. There is a conflict between the Lobato, grant and the town of Abiquiu grant, the Abiquiu conflict being one of the exceptions from the Lobato grant as confirmed and patented. The western boundary of the Abiquiu conflict forms the eastern boundary of the greater portion of the area within the overlap between the Polvadera and the Lobato grants. The Cerro Pelado or Pelado Mountain lies almost in the center of this overlap considered from the points of the compass in all directions. A little less than one-half the length of the overlap viewed longitudinally consists of a narrow rectangular shaped strip near the southern end of which lies the Yallecitos Peak referred to in the testimony of some of the witnesses.\\nIt was a matter of general repute and common opinion around the town of Abiquiu in the neighborhood of which the two grants lay that the area in conflict was an integral part of and belonged to the owners of the Polvadera grant. In fact none of the witnesses had ever heard of any dispute over ownership of the overlap except as knowledge thereof arose from institution of the present suit. It was the general understanding of the witnesses that the eastern boundary of the Polvadera \\\"common pointed,\\\" as some expressed it, or coincided, with the western boundary of the Abiquiu grant along the northerly half of the overlap, and that the Polvadera's eastern boundary lay easterly of, and embraced within the Polvadera, the Cerro Pelado; and was east of Valleeitos Peak along the southerly half thereof, such southerly half consisting of the narrow rectangular strip above referred to.\\nOne Simon Martinez, a witness for defendants, had grazed his cattle on the Polvadera, including the overlap, annually, for a period of nine years preceding the trial, under permits from defendants. During all of this time, as indicated, he was holding under the defendants. For so much of the time as transpired prior to 1926, he was in under a verbal permit from Felix Garcia, a copurchaser with defendant Wirt at the partition sale, granted to residents of Abiquiu owning live stock to graze their horses and cattle without exaction of rental. From 1926 to the time of trial, he , secured his grazing permits from J. M. O. Chavez, Jr., agent of the owners in charge of the Polvadera grant and paid rent to him.\\nOther particular tenants or permittees of defendants, and the years for which they occupied the grant, including the conflict, for the grazing of cattle, sheep, and horses, during the only seasons of the year in which it was capable of use, to wit, for spring and summer grazing, were J. M. C. Chavez, Jr., and Sostinos Suazo for 1921; Frank Bond, for lambing and grazing of sheep in 1922, 1923, and 1924; Alfredo Maestas for grazing of horses in 1925 and 1926; Pedro and Sostinos Suazo for grazing of sheep in 1928, 1929, and 1930. The use in the year 1930, of course, cannot avail defendants, since suit was instituted on January 16th of that year.\\nIn addition, one Pedro Suazo, under a permit claimed to have been issued to certain residents of Abiquiu for the grazing of their horses and cattle on the Polvadera without rental exactions, occupied the grant including the overlap annually from 1907 to the time of trial, for the grazing of his cattle, prior to 1926, without rental under the permit from the owners testified to, and from 1926 to the time of trial under rental arrangements made with, and rentals paid to, J. M. C. Chavez, Jr., as agent of the Polvadera grant.\\nOthers found on the interlock with their live stock during the period prior to 1926,' although the exact years are not fixed, claimed to the witness J. M. C. Chavez, Jr., to be there under leases from the owners of the Polvadera.\\nErom 1926 forward the witness, J. M. C. Chavez, Jr., acted as agent for the owners of the Polvadera, collecting rentals, preventing trespassing, and looking after the property generally. He \\\"patrolled\\\" the property about three times yearly. In addition, he and the owners permitted a squatter to remain on the grant in exchange for the small service of fixing up pastures and reporting trespassing. Chavez thought it unlikely that any one could get on Hie Polvadera with live stock and remain any appreciable time without discovery and having to account. He himself had grazed his stock on the overlap intermittently over many years, but always under arrangements with owners of the Polvadera, not the Lobato.\\nIndeed, those so using the overlap, as aforesaid, under permits or leases from defendants from the evidence appear to have been in exclusive occupancy thereof. They had never been interfered with or disturbed in their possession by the owners of the Lobato grant, nor so far as the record discloses was any assertion of adverse or hostile claim or title to the Overlap by the Lobato owners ever made during any of the period covered by the testimony of the witnesses, prior to the institution of the present suit. At some time prior to becoming agent for the Polvadera, the witness, Chavez, had acted as agent for the Lobato for a period of two years. During such period, he never took possession of the overlap nor presumed to grant leases thereon.\\nThe defendants and their predecessors in title show payment of taxes on the overlap, as well as the rest of the Polvadera grant, for a period of twenty-two years, from 1904 to 1926, both inclusive. The abstract was certified shortly after taxes for first half of 1927 became payable and tax payments are not shown beyond 1926.\\nContinuous and uninterrupted possession unmixed with that of the custodian and freed of the question raised as to the adverse character of the latter's possession thus appears to have been shown in defendants for a period of at least ten years immediately prior to the institution of suit, to wit, from 1920 to 1929, both years inclusive. Two questions, aside from the truth of the evidence which is con ceded upon demurrer, confront us as to its legal sufficiency.\\nThe first results from the fact that for at least two years of the period prior to 1926 the land in controversy was occupied by permittees of defendants without rental, to wit, 1920 and 1925. Rental was exacted from all occupants including these from 1926 forward. Pedro Suazo, a witness for defendants, was one of a group of Abiquiu residents owning live stock who through a personal emissary sent in such behalf secured permission from Felix Garcia, a cotenant of the property, to occupy the premises for the grazing' of their cattle and horses without rental payments. It was under the permission reported by such emissary as having been granted that this witness for some years prior and down to 1925 and others for the years intervening between 1920 and 1925 occupied and grazed the disputed area with their cattle and horses without rental exaction. The permission did not extend to the grazing of sheep and the evidence discloses that for several of the years prior to 1926 the Polvadera owners were receiving returns for the grazing of sheep on the property.\\nThe possession of the defendants through these permittees being otherwise sufficient we are unable to declare as a matter of law that the mere circumstance that they paid no rental destroys the efficacy of such possession. It is not as though the owners had thrown the land into a commons and later sought to take advantage of the possession of whomsoever by chance may have used it. The very fact that the permit was confined to grazing of cattle and horses and that during the greater portion of the permit-tees' occupancy without rental the owners were receiving rental from others for grazing of sheep precludes such a view.\\nHere those seeking the permission, certain live stock owners residing at Abiquiu, a small community near the property, delegated an emissary to secure it for them. There is nothing to indicate that the identity of these permittees on whose behalf the emissary spoke was not made known to the owners approached in their behalf. Everything suggests^ the contrary.\\nUpon principle we see no reason for denying to an adverse claimant the benefit of possession through a permittee or licensee unless some other reason than the mere fact that it is without rental be advanced to destroy its effectiveness. For the comparatively short period when the efficacy of defendants' possession depends solely upon the occupancy of such permittees, other considerations than a money rental may have been sufficient unto them to warrant their remission of a money rental. The evidence tends to show that for such period defendants' possession through the permittees was exclusive and continuous. The only other ground of attack raised by the demurrer is that it was not visible. It is here argued that it lacked visibility. But the payment of rental would not have rendered it. more visible. Nor does it seem the slightest inquiry by the Lobato owners of the occupants would have failed to disclose by what right they Claimed to occupy, the claimed right being eoncededly adverse.\\nThat possession by permission or license from an owner is in law deemed possession by the latter seems well settled. The licensee or permittee cannot claim adversely to such owner, the reason being that possession of the occupant under such circumstances is deemed possession of him upon whose pleasure it depends. 2 C. J. 131; Bergere v. Chaves, 14 N. M. 352, 366, 93 P. 762, 51 L. R. A. (N. S.) 50. We have recognized that less notoriety, and even less frequency of acts of ownership are required with possession under color of title than without it. Baker v. Armijo, 17 N. M. 383, 128 P. 73.\\nThe other of the two questions mentioned above as going to the legal sufficiency of possession through the permittees relates to the claimed hearsay character of the reputed granting of such authority as reported back to them by the emissary sent to secure it from the owners. We think, however, that quite apart from such emissary's report as evidence of its own truth, and we do not consider it for such purpose, the -evidence supports an inference that such authority had in fact been given. Upon the faith of it the permittees over a number of years continued to occupy and graze the premises without molestation from the Polvadera owners believing and asserting themselves to be there by authority of such owners. As early as April, 1922, the co-owner by whom such permit was claimed to have been granted made statements to a witness and permittee corroborative of the fact that a permit of the kind claimed had theretofore been granted. We do not feel that upon demurrer, where the evidence is to be viewed in the strongest aspect it will reasonably bear favorably to the party demurred against, it exceeds the bounds of legitimate inference to assume that the permission claimed was genuine and had in fact been given.\\nWe consider that as the evidence stood on the issue of adverse possession when the defendants rested, they had made a prima facie case under 1929 Comp., \\u00a7 83-119. The case was before the court upon a demurrer to the evidence. By demurring to the evidence the plaintiff admitted the truth of all of the defendants' evidence and of all legitimate inferences deducible therefrom.\\nIn Sanchez v. Torres, 35 N. M. 383, 298 P. 408, 409, dealing with the effect of a demurrer to the evidence, we said: \\\"Appellees consider this a question of fact to be reviewed under the substantial evidence rule. They argue that the trial judge may not and should not have believed some of the testimony. Their position is unsound. They demurred to the evidence. Under the rule well established in this state, even though this was a non-jury case, they admit the truth of all the testimony and of all legitimate inferences therefrom. Union Bank v. Mandeville, 25 N. M. 387, 183 P. 394; Bezemek v. Balduini, 28 N. M. 124, 207 P. 330; Horchheimer v. Prewitt, 33 N. M. 411, 268 P. 1026; Martin v. Village of Hot Springs, 34 N. M. 411, 282 P. 273. So, the question before us is whether, giving full credit to the witnesses, full weight to the evidence, and making proper inferences therefrom, a judgment for the plaintiffs could have been sustained.'\\nThe land in dispute was rough, broken grazing land. The evidence tended to show that it was devoted by defendants to the only use to which it was adapted, the grazing of live stock, during the only seasons of the year when it was capable of such use, the spring and summer. See Johnston v. City of Albuquerque, 12 N. M. 20, 72 P. 9; Baker v. Armijo, supra; G O S Cattle Co. v. Bragaw's Heirs, 38 N. M. 105, 28 P.(2d) 529, and 1 R. C. L. 694. The good faith of their claim is attested by the fact that they paid for the area of the conflict a sum in excess of $14,000. The evidence further tends to show them, from the time of their purchase to time of trial, in possession through tenants and permittees, exercising every incident of dominion, control, and ownership, without interference or disturbance by plaintiff, until the filing of the present suit, which was more than ten years after the defendants' purchase and entry into possession.\\nWe are not unmindful of the rule upon the quantum of evidence as stated in Montoya v. Catron, 22 N. M. 570, 166 P. 909. We do dot understand that what we there said in applying the substantial evidence rule to support findings made is to deny trial courts the aid of the law of inferences in trying titles based upon adverse possession. If so, the rule for our guide in testing the correctness of a trial court's ruling upon demurrer to the evidence, as laid down in Sanchez v. Torres, supra, will have to be modified in its application to cases of adverse possession by eliminating therefrom the condition that there is to be taken as true, not only all the testimony demurred to, but also \\\"all legitimate inferences therefrom.\\\"\\nIt follows from what has been said that the judgment of the trial court must be reversed. The cause will be. remanded to the district court with directions to set aside the judgment heretofore rendered and award a new trial.\\nIt is so ordered.\\nWATSON, C. J., and HUDSPETH, BIOKUEY, and ZINN, JJ., concur.\"}"
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+"{\"id\": \"1559212\", \"name\": \"AMBROSE et ux. v. REPUBLIC MORTGAGE CO.\", \"name_abbreviation\": \"Ambrose v. Republic Mortgage Co.\", \"decision_date\": \"1934-06-25\", \"docket_number\": \"No. 3911\", \"first_page\": \"370\", \"last_page\": 372, \"citations\": \"38 N.M. 370\", \"volume\": \"38\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:31.441078+00:00\", \"provenance\": \"CAP\", \"judges\": \"WATSON, C. J., and SADLER, BICKLEX, and ZINN, JJ., concur.\", \"parties\": \"AMBROSE et ux. v. REPUBLIC MORTGAGE CO.\", \"head_matter\": \"34 P.(2d) 294\\nAMBROSE et ux. v. REPUBLIC MORTGAGE CO.\\nNo. 3911.\\nSupreme Court of New Mexico.\\nJune 25, 1934.\\nMcIntosh & Chavez, of Santa F\\u00e9, for appellant.\\nMann & Wilson, of Albuquerque, for appellees.\", \"word_count\": \"951\", \"char_count\": \"5560\", \"text\": \"HUDSPETH, Justice.\\nThis is an appeal from an order overruling a motion to set aside a default judgment.\\nOn April 18, 1932, appellees executed in favor of appellant a negotiable note for $2,000, payable in forty equal monthly installments, the first of which was due on May 18, 1932. The note was secured by a mortgage on certain described real estate located in McKinley county and by a pledge to appellant of a savings certificate issued by appellant. In December of 1932, appellees sought to retire said note by applying thereto credits due them on the savings certificate and paying the balance in cash. The parties were, however, unable to agree as to the cash surrender value of the certificate, and on February 10, 1933, appellees began suit to obtain an adjudication thereof. Thirty-one days after the service of summons upon appellant, appellees obtained a default decree ordering appellant to credit appellees with the value of the savings certificate as fixed by the court, to accept the cash deposited in the registry of the court by appellees in full satisfaction of the note, to surrender said note and to release of record the mortgage securing said note. Four days later appellant moved to vacate the decree rendered.\\nIn addition to setting forth the circumstances explanatory of defendant's failure to answer seasonably and to alleging facts in de fense of tlie suit on its merits, appellant alleged in its moving papers that it was not then, nor had it been at the time of the commencement of the suit, the holder of the note and mortgage. Attached to the motion as exhibits were photostatic copies of the note and mortgage showing an assignment by indorsement of the note and a duly recorded assignment of the real estate mortgage on May 16, 1932, to the Republic Building & Loan Association. It was further alleged that, in the event the decree should be vacated, the Republic Building & Loan Association, the assignee and present holder of the note and mortgage, desired and intended to .intervene in the present suit, to which it had not been made a party.\\nThe admitted facts are that, promptly upon the service of summons, appellant employed counsel to represent it in the litigation; that two conferences were held by the attorneys for the respective parties looking to a settlement ; that in the last conference the matter of the time which appellant might have within which to file an answer was mentioned. The recollections of the attorneys as to the substance of their conversation on this subject differ, but it is agreed that the subject was discussed. On March 13th, the date upon which the time prescribed by statute for the filing of answer expired, appellant's attorney wrote to the attorneys for appellees requesting ten days' additional time within which to make answer. The default judgment was entered the next day.\\nAppellant's counsel was negligent in failing to file an appearance within the time prescribed by statute. In Gilbert v. New Mexico Construction Co., 35 N. M. 262, 295 P. 291, we refused to reverse an order vacating a default judgment upon the prompt application of a defendant who had negligently permitted the deei'ee to be entered. The basis of the decision was that the granting of such motion to vacate a default judgment and perixxit the interposition of a defense was, by virtue of section 105-801 of the 1929 Compilation, a matter within the discretion of the tx-ial court, and that that discretion was not defeated by the fact that defendant's failure to appear was negligent. We are not prepared, on the basis of anything said in that case, or in the later case of Dyne v. McCullough, 36 N. M. 122, 9 P.(2d) 385, cited in the briefs, to hold it an abuse of discretion for a trial court to refuse, because of defendant's negligence, to grant a prompt application to set aside a default. To so hold would nullify the provisions of section 105-303 of the 1929 Compilation. Exit the trial court's discretion, though wide and not lightly to be interfered with, is not limitless, and there are circumstances under which a refusal to vacate would be an abuse of discretion. We believe the instant case presents an instance of such circumst\\u00e1nces. The holder of the note and mortgage, not having been made a party to the proceeding, is admittedly not bound by the decree entex'ed, and the natui'e of the deci'ee rendered is sxxch that coxxtempt of court is the only possible device by which its enforcement against the defendant might be sought. Though neither the plaintiff nor the court were apprised of the true state of the facts at the time of the entry of the deci'ee, nevertheless, we are of the opinion that when they were called to its- attention promptly thereafter, and the application to vacate was coupled with an offer to bring before the court all parties necessary to a complete determination of the controversy and to the rendition of an effective decree, the court should have granted the application to vacate, imposing upon the negligent party such terms as it should deem proper.\\nThe order appealed from will be reversed and the cause remanded with directions to the district court to set aside the default decree and the award of costs therein made. The costs in this court will be taxed against appellant. It is so ordered.\\nWATSON, C. J., and SADLER, BICKLEX, and ZINN, JJ., concur.\"}"
\ No newline at end of file
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+"{\"id\": \"1563617\", \"name\": \"Maria SALINAS-KENDRICK, Claimant-Appellee, v. MARIO ESPARZA LAW OFFICE, Employer, and The Travelers Insurance Company, Insurer, Respondents-Appellees, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Respondent-Appellant\", \"name_abbreviation\": \"Salinas-Kendrick v. Mario Esparza Law Office\", \"decision_date\": \"1994-06-15\", \"docket_number\": \"No. 15293\", \"first_page\": \"164\", \"last_page\": 166, \"citations\": \"118 N.M. 164\", \"volume\": \"118\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:02.300422+00:00\", \"provenance\": \"CAP\", \"judges\": \"MINZNER, C.J., and PICKARD, J., concur.\", \"parties\": \"Maria SALINAS-KENDRICK, Claimant-Appellee, v. MARIO ESPARZA LAW OFFICE, Employer, and The Travelers Insurance Company, Insurer, Respondents-Appellees, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Respondent-Appellant.\", \"head_matter\": \"879 P.2d 796\\nMaria SALINAS-KENDRICK, Claimant-Appellee, v. MARIO ESPARZA LAW OFFICE, Employer, and The Travelers Insurance Company, Insurer, Respondents-Appellees, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Respondent-Appellant.\\nNo. 15293.\\nCourt of Appeals of New Mexico.\\nJune 15, 1994.\\nGary Jeffreys, Jeffreys, Cooper & Associates, Deming, for respondent-appellant.\\nBonnie M. Stepleton, Stepleton & Aakhus, P.C., Albuquerque, for respondents-appellees.\\nAnna L. Juarez, Las Cruces, for claimantappellee.\", \"word_count\": \"1029\", \"char_count\": \"6517\", \"text\": \"OPINION\\nDONNELLY, Judge.\\nMountain States Mutual Casualty Company (Mountain States) appeals an order from the Workers' Compensation Administration requiring it to pay disability benefits to Worker. Our second calendar notice proposed to affirm the order. Mountain States has timely opposed that proposal. Not persuaded by its arguments, we affirm.\\nClaimant suffered an accident while at work on September 5, 1990. Thereafter, she experienced pain in her hands and arms while typing. Her typing work station was modified and she continued to work. Although she testified she worked with some pain and that she took more breaks during her typing than she had before September 1990, she continued to do all her work. Employer's workers' compensation carrier at the time was The Travelers Insurance Company. In February 1991, Mountain States became the insurance carrier for Employer.\\nThroughout 1991, Claimant continued to perform the required duties of her job. She did not seek help from anyone and completed all her job tasks. Finally, on December 31, 1991, Claimant could not stand the pain in her arms and hands any longer and sought medical treatment. Her treating physician gave her medication and limited her typing to four horns per day. Although Claimant suffered an accident in September 1990, she did not become disabled from that accident until December 1991.\\nThe Workers' Compensation Judge (Judge) determined, and we agree, that, where there is evidence that Claimant's continued work-related activities have contributed to her disability, the insurance company insuring Employer at the time of the disability is responsible for payment of the disability benefits. Mountain States argues that under this Court's decision in Garcia v. Mora Painting & Decorating, 112 N.M. 596, 817 P.2d 1238 (Ct.App.1991), the date of the accident rather than the date of the disability is the determinative date establishing liability. We do not agree. Garcia was a case where the worker suffered two accidental injuries while he was employed by two successive and different employers. There, this Court considered, inter alia, that the workers' compensation judge had the authority to apportion liability for disability benefits between the worker's previous and subsequent employers.\\nAlthough Garcia is factually distinguishable from the present case, Garcia makes clear that disability arising from an accident is the event that triggers the obli gation for payment. Compensation is paid only when a work-related accidental injury becomes disabling. See id, 112 N.M. at 599-600, 817 P.2d at 1241-42; see also Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.), cert. denied 107 N.M. 413, 759 P.2d 200 (1988); Pena v. New Mexico Highway Dep't, Mountain States Mut. Ins. Co., 100 N.M. 408, 412, 671 P.2d 656, 660 (Ct.App.1983). See generally 4 Arthur Larson, The Law of Workmen's Compensation \\u00a7 95.00 at 17-115 (1993) (\\\"When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.\\\"). Therefore, we conclude that the Judge correctly determined that the date of Claimant's disability, not the date of her September 1990 accident, was the determinative date for deciding which insurance company is liable herein.\\nMountain States also argued that the Judge erred in not finding that the accident occurred on September 5, 1990. The date of an accident that does not result in disability, as we have pointed out above, is irrelevant. In this ease, the date that the injury became compensable due to further work-related causes is the determinative factor.\\nFinally, Mountain States argues that there was not substantial evidence to support the Judge's finding that Claimant did not know she had a compensable injury until December 31, 1991. As we pointed out in the second calendar notice, although there was evidence that would have supported finding disability on an earlier date, there was sufficient evidence to support a finding of December 31, 1991, as the date Claimant knew she was disabled. It is undisputed that in December 1991 Claimant saw Dr. David A. Capen, an orthopedic surgeon, who stated that Claimant had been injured in 1990, and that her carpal tunnel syndrome was a cumulative trauma disorder that comes on insidiously. From September 1990 until she first saw Dr. Capen at the end of December 1991, Claimant continued to work in pain but missed no work. Thus, the issue is not whether there is evidence to support an opposite result, but whether evidence supports the result reached. See Bagwell v. Shady Grove Truck Stop, 104 N.M. 14, 17, 715 P.2d 462, 465 (Ct.App.1986). We hold that the evidence here supports a finding that Claimant did not become disabled until December 1991.\\nTo the extent that Mountain States claims that there was insufficient testimony of causation, we hold that the reasonable inferences from Dr. Capen's testimony are that Claimant's injury was caused by the cumulative trauma of work up until the time of December 1991. The doctor did not need to give his causation testimony in positive, dogmatic language or use the exact language of the statute; it is sufficient that his testimony reasonably connotes what the statute requires, and we hold that it does. See Gammon v. Ebasco Corp., 74 N.M. 789, 794, 399 P.2d 279, 282 (1965); see also Bufalino v. Safeway Stores, Inc., 98 N.M. 560, 565, 650 P.2d 844, 849 (Ct.App.1982).\\nMountain States' issue regarding attorney fees was deemed abandoned in our second calendar notice. See State v. Martinez, 97 N.M. 585, 586, 642 P.2d 188, 189 (Ct.App.) (if party does not oppose summary affirmance of issue, issue is deemed abandoned), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982). For the reasons stated herein, we affirm.\\nIT IS SO ORDERED.\\nMINZNER, C.J., and PICKARD, J., concur.\"}"
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+"{\"id\": \"1566708\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Javier GURROLA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Gurrola\", \"decision_date\": \"1995-10-31\", \"docket_number\": \"No. 16183\", \"first_page\": \"34\", \"last_page\": 37, \"citations\": \"121 N.M. 34\", \"volume\": \"121\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:52:50.239332+00:00\", \"provenance\": \"CAP\", \"judges\": \"APODACA, C.J., and FLORES, J., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Javier GURROLA, Defendant-Appellant.\", \"head_matter\": \"908 P.2d 264\\nSTATE of New Mexico, Plaintiff-Appellee, v. Javier GURROLA, Defendant-Appellant.\\nNo. 16183.\\nCourt of Appeals of New Mexico.\\nOct. 31, 1995.\\nTom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.\\nSammy J. Quintana, Chief Public Defender, Darryl A. Bouchard, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.\", \"word_count\": \"1544\", \"char_count\": \"9659\", \"text\": \"OPINION\\nBLACK, Judge.\\nThe opinion previously filed in this matter is withdrawn and the following substituted therefor:\\nDefendant's legal problems began with his failure to pay child support. The district court found Defendant in contempt and ordered him to spend thirty days in jail unless he purged himself of the contempt by paying child support. On October 30,1992, an attorney from the New Mexico Child Support Enforcement Division alleged that Defendant had failed to purge himself of contempt and filed a motion to have the sentence executed. On November 3, 1992, the district judge directed the court clerk to issue a bench warrant for Defendant's arrest. The warrant was issued but not signed by a judge.\\nOn March 25, 1993, Roswell police officers encountered Defendant talking to a friend in a car parked near the scene of a potential break-in. The officers asked Defendant for identification and permission to search his trunk. Defendant provided both. The officers also called in a wants and warrants check on Defendant. When the results of the wants and warrants check came in, the outstanding bench warrant was reported. The officers arrested Defendant on the outstanding warrant. During the two searches of Defendant's car that followed his arrest, three bags of marijuana were found.\\nDefendant appeals from the district court's denial of his motion to suppress the evidence found by the police. Defendant argues that the police lacked probable cause to seize and detain him for forty-five minutes while they ran the wants and warrants check. He also argues that the arrest warrant was invalid and the evidence was therefore the fruit of an illegal arrest. Because we agree with Defendant's second contention, we reverse and do not address his first argument.\\nI. FACTS\\nOn March 25, 1993, the Roswell Police Department received an alarm call from the local Computerland store. Officer Darren Treadwell responded along with other officers. Officer Treadwell noted that there was a broken window that was large enough for someone to gain access into the store. He proceeded to the area of a tavern, which was approximately one block from Computerland. In an attempt to gain information, Officer Treadwell spoke with three to five people at the tavern about an apparent burglary at Computerland. Approximately twenty minutes after the alarm call, Officer Carroll Durbin notified Officer Treadwell that two individuals were sitting in a Volkswagen in the parking lot of the tavern. Officers Treadwell and Durbin proceeded to approach the Volkswagen. The officers then approached Defendant and his friend, asked for identification, and asked if either of them had seen or heard anything concerning a possible break-in at Computerland. Both Defendant and his friend indicated that they had no information about any break-in or burglary. After obtaining identification from Defendant, Officer Treadwell called the Roswell police dispatcher to request a license check. Either before or after requesting the license check, but before receiving information on any outstanding wants and warrants on Defendant, Officer Treadwell was granted permission to search Defendant's trunk. No Computer-land property was found in Defendant's vehicle. The dispatcher's log indicated that the dispatcher located and reported the outstanding warrant about forty-five minutes after Officer Treadwell had initially approached Defendant. On the basis of the outstanding bench warrant, Defendant was arrested. During a search incident to the arrest, Officer Durbin found a bag of marijuana. An additional white plastic bag containing two bags of marijuana was found under the back seat during an inventory search prior to impounding Defendant's vehicle. The bench warrant upon which Defendant was arrested was based on a motion filed by an attorney for the New Mexico Child Support Enforcement Division. The motion alleged that Defendant had failed to comply with a previous order of the district court requiring Defendant to serve thirty days in jail unless he purged himself of contempt by paying arrearages and ongoing child support. No verified facts were alleged and no affidavit is contained in the record. Based on this motion, the district judge ordered, but never signed, the arrest warrant.\\nII. STANDARD OF REVIEW\\nThe validity of a seizure raises mixed questions of law and fact. See State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995). The substantial evidence standard is used for review of the facts but the trial court's application of the law to those facts is reviewed de novo. Id.\\nIII. AN UNSIGNED WARRANT IS INVALID\\nThere is no dispute that the arrest warrant was not signed by the judge although there is a blank line for his signature. There is a signature of a deputy clerk beneath the blank space designated for judicial signature. The New Mexico Supreme Court rule regulating arrest warrants, SCRA 1986, 5-208(B) (Repl. 1992), provides:\\nB. Form for warrant. The warrant shall be signed by the court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court.\\n(Second emphasis added.)\\nAs the Committee commentary to the rule indicates, this portion of the New Mexico rule was derived from Federal Rule of Criminal Procedure 4(c). Under the federal rule, a warrant must contain the signature of the magistrate judge. See 8 Federal Procedure \\u00a7 22:479, at 721 (Thomas R. Trenkner et al. eds., L. ed. 1992); see also 1 Charles A. Wright, Federal Practice and Procedure \\u00a7 54, at 55 (2d ed. 1982) (warrant \\\"must be signed by the magistrate\\\"). Thus, the warrant is legally issued at the time it is signed by the proper judicial authority. United States v. Schack, 165 F.Supp. 371, 374 (S.D.N.Y.1958).\\nOther jurisdictions have also interpreted such directive language as mandatory and have voided arrests based on warrants not properly executed. See, e.g., Dujay v. State, 368 S.W.2d 613, 614 (Tex.Crim.App.1963). In invalidating an arrest under a rule that stated the \\\"warrant shall be signed by the judicial authority,\\\" the Supreme Court of Connecticut said:\\nThe language of [Practice Book] \\u00a7 594 is very clear; it mandates that the warrant . shall be signed by the judicial authority.\\nThis court agrees with the trial court's conclusion that \\u00a7 594 is designed to provide protection of an individual's liberty and security interest as supported by logic and precedent. The presence of the judge's signature lends an authenticity to the warrant which is self-evident due to its presence. An assurance of accuracy and deliberation attaches to a document bearing the official's or judge's signature, and not the least important it involves a document which ultimately reaches the individual's fundamental constitutional right.\\nState v. Cook, 183 Conn. 520, 441 A.2d 41, 42-43 (1981) (per curiam).\\nIn the present appeal, while the State agrees that the signature requirement of SCRA 5-208(B) seems to be mandatory, the State also argues that the lack of a judicial signature is merely \\\"technical.\\\" Although the legal impact of this distinction is not immediately obvious, if the State is arguing that because the signature requirement is \\\"technical\\\" it may be disregarded, then we must disagree. Like the Connecticut Supreme Court, we think the signature requirement is \\\"[a]n assurance of accuracy and deliberation [that] attaches to a document . which ultimately reaches the individual's fundamental constitutional right.\\\" Cook, 441 A.2d at 43. An unsigned warrant therefore does not comply with SCRA 5-208(B) and provides an invalid basis for an arrest.\\nIV. THE EVIDENCE MUST BE SUPPRESSED\\nThe unsigned bench warrant was invalid. Defendant's arrest was thus invalid. Therefore, we must determine the legal consequences of that invalid arrest. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held that if a police officer's reliance on a search warrant later found to be invalid is objectively reasonable, evidence seized at the time of arrest need not be excluded. Id. at 922, 104 S.Ct. at 3420. The New Mexico Supreme Court has, however, expressly rejected Leon and held the New Mexico Constitution does not allow good faith reliance on an invalid search warrant. State v. Gutierrez, 116 N.M. 431, 447, 863 P.2d 1052, 1068 (1993). Thus, under our Constitution, evidence seized pursuant to an illegal warrant must still be suppressed. Id. This Court, of course, follows our Supreme Court's interpretation of New Mexico law. See State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994). Under New Mexico law, the marijuana seized at the time of Defendant's arrest cannot be used as evidence.\\nV. CONCLUSION\\nThe bench warrant upon which Defendant was arrested was not properly signed and was issued without the due process of law. The warrant was therefore invalid. Under the New Mexico Constitution, evidence must be suppressed when seized pursuant to an arrest based upon an invalid warrant.\\nThe district court is reversed.\\nIT IS SO ORDERED.\\nAPODACA, C.J., and FLORES, J., concur.\"}"
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+"{\"id\": \"1568781\", \"name\": \"TIFFANY CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BUREAU OF REVENUE, State of New Mexico, Defendant-Appellee\", \"name_abbreviation\": \"Tiffany Construction Co. v. Bureau of Revenue\", \"decision_date\": \"1979-10-18\", \"docket_number\": \"No. 3777\", \"first_page\": \"593\", \"last_page\": 596, \"citations\": \"93 N.M. 593\", \"volume\": \"93\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:30:48.208697+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD, C. J., and HENDLEY, J., concur.\", \"parties\": \"TIFFANY CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BUREAU OF REVENUE, State of New Mexico, Defendant-Appellee.\", \"head_matter\": \"603 P.2d 332\\nTIFFANY CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BUREAU OF REVENUE, State of New Mexico, Defendant-Appellee.\\nNo. 3777.\\nCourt of Appeals of New Mexico.\\nOct. 18, 1979.\\nAnita P. Miller, McCulloch, Grisham & Lawless, P. A., Albuquerque, for plaintiff-appellant.\\nJeff Bingaman, Atty. Gen., Gerald B. Richardson, Sp. Asst. Atty. Gen., Santa Fe, for defendant-appellee.\", \"word_count\": \"1373\", \"char_count\": \"8408\", \"text\": \"OPINION\\nLOPEZ, Judge.\\nPlaintiff appeals an adverse judgment in the district court denying its claim for refund of gross receipts taxes. We affirm.\\nTwo issues are raised on appeal: (1) whether plaintiff has waived its right to claim a refund under \\u00a7 7-1-26, N.M.S.A. 1978 (Supp.1979) by having already protested and litigated under \\u00a7 7 \\u2014 1\\u201424, N.M.S.A. 1978 (Supp.1979) the penalty imposed for failure to pay the New Mexico Gross Receipts and Compensating Tax; and (2) whether the State of New Mexico can impose this tax on a non-Indian, non-resident contractor working exclusively on an Indian reservation in the State.\\nTiffany is a non-Indian, Arizona corporation with its principal place of business in Arizona. For approximately one year, it worked on the New Mexico portion of the Navajo Reservation, grading and draining a road. No work was done off the reservation. The evidence is uncontroverted that all of Tiffany's employees were either residents of Arizona or Navajo Reservation Indians. The Arizona employees always entered and left the reservation through the Arizona side; and they did not use New Mexico health, educational, or law enforcement services. The approximate amount of the construction project was $1,681,740.00. The Bureau of Revenue of the State of New Mexico assessed a tax levy in the amount of $78,583.03 on Tiffany as gross receipts taxes on this project under the State Gross Receipts and Compensating Tax Act; Sections 7-9-1 to 7-9-81, N.M.S. A.1978.\\nIn June, 1975, Tiffany was informed that it owed $32,343.02 in gross receipts taxes, including a penalty for nonpayment and interest. Plaintiff protested, and an administrative hearing followed, pursuant to \\u00a7 7-1-24. The Bureau denied plaintiff's protest. This court affirmed its decision in Tiffany Construction Co. v. Bureau of Revenue, 90 N.M. 16, 558 P.2d 1155 (1976), cert. denied, 90 N.M. 255, 561 P.2d 1348 (1977). Tiffany paid the tax, penalty, and interest. Thereafter, it paid an additional $46,240.01 in monthly assessments. In November, 1976, Tiffany brought suit in the district court for a refund of $78,583.03, the total amount of gross receipts taxes, including penalty and interest, assessed and paid on its Navajo project.\\nBecause the second issue is dispositive of this appeal, we will discuss only that issue.\\nTiffany's construction work in New Mexico was properly taxed under the New Mexico Gross Receipts and Compensating Tax Act. The imposition of this tax does not violate the Fourteenth Amendment of the United States Constitution. Due process requires a taxable event occur in the state that wishes to impose its tax. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267 (1940). The taxable event in the instant case is the performance of construction work within the state of New Mexico. Any individual or company performing construction work in this state is subject to gross receipts tax on that work. The Gross Receipts Tax is levied on services performed in New Mexico. Section 7-9 \\u2014 3(F), N.M.S.A.1978. \\\"'Service' includes construction activities .\\\" Section 7 \\u2014 9-3(K), N.M.S.A.1978. Tiffany has been taxed for having performed construction work in New Mexico. The purpose of the Gross Receipts Tax is \\\"to provide revenue for public purposes by levying a tax on the privilege of engaging in certain activities within New Mexico * (Emphasis added.) Section 7-9-2, N.M.S.A. 1978. A tax on the \\\"privilege of doing business\\\" in a state is Constitutional. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977).\\nBeing on the New Mexico portion of the Navajo Reservation, Tiffany's entire construction project was located within the boundaries of the state of New Mexico. Although Indian reservations occupy a peculiar position in that they are self-governing entities, they are, nevertheless, part of the state in which they are located. Of the state's power to tax a non-Indian on the Mescalero Reservation, a federal judge wrote:\\nWhile it may be true that the Tribe has the power to grant the privilege of engaging in business on the reservation, it is also true that the state has power to tax business conducted in the state. The Mescalero Reservation is not located by itself on another planet. It is situated in New Mexico .\\nMescalero Apache Tribe v. O'Chesky, 439 F.Supp. 1063, 1073 (D.N.M.1977). The right to vote in New Mexico is predicated upon residency in the state, and reservation Indians are eligible to vote in state elections. Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387 (1962). Moreover, construction activities on an Indian reservation are activities within the state for purposes of the Gross Receipts Tax. See G. M. Shupe, Inc. v. Bureau of Revenue, 89 N.M. 265, 550 P.2d 277 (Ct.App.), cert. denied, 89 N.M. 321, 551 P.2d 1368 (1976); Mescalero Apache Tribe, supra. Consequently, while constructing the Navajo road, Tiffany was doing business in the state of New Mexico and was subject to the New Mexico Gross Receipts Tax.\\nTiffany claims that it must receive benefits in New Mexico in order for the State to constitutionally impose a tax upon it. It argues that it obtained no benefits from the State and so cannot be taxed. This argument is without merit.\\nThere is substantial evidence in the record to support the trial court's finding that Tiffany enjoyed the use of roads located on the reservation but maintained by the State, and that it benefitted from the New Mexico Environmental Improvement Agency's regulation of air pollution from the Four Corners Power Plant.\\nTiffany next contends that, even if it did receive some benefits in New Mexico, the tax imposed is disproportionate to those benefits, and so unconstitutional. This argument, too, is without merit.\\nThe Fourteenth Amendment does not require taxes be levied according to the benefits received by the person or entity taxed. Missouri Pacific Railroad v. Road District, 266 U.S. 187, 45 S.Ct. 31, 69 L.Ed. 237 (1924); see also Dane v. Jackson, 256 U.S. 589, 41 S.Ct. 566, 65 L.Ed. 1107 (1920).\\nA tax is not an assessment of benefits. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levy ing of taxes except as they are used to compensate for the burden on those who pay them, and would involve the abandonment of the most fundamental principle of government \\u2014 that it exists primarily to provide for the common good. This court has repudiated the suggestion, whenever made, that [a taxpayer] can resist the payment of the tax because it is not expended for purposes which are peculiarly beneficial to him.\\nCarmichael v. Southern Coal & Coke Co., 301 U.S. 495, 522-23, 57 S.Ct. 868, 878-879, 81 L.Ed. 1245 (1937).\\nEven if Tiffany had received no other benefits from the State, it would be subject to the State tax from the simple fact of having engaged in business here. A tax on the privilege of engaging in business in a state is Constitutional. Brady, supra. The lack of benefits argument is frivolous when a company is able, through its presence in a state, to carry on a valuable business there. Standard Pressed Steel Co. v. Department of Revenue, 419 U.S. 560, 95 S.Ct. 706, 42 L.Ed.2d 719 (1975).\\nTiffany came into New Mexico for its own benefit. It conducted business here worth approximately $1,681,740.00 and employed 100 persons on this project. It had sufficient minimal contacts with the State to justify the imposition of a state tax. In Standard Steel, supra, the United States Supreme Court upheld a state gross receipts tax on a foreign corporation that had only one employee in the state. Tiffany enjoyed the privilege of engaging in business in New Mexico and was properly taxed for this privilege.\\nThe judgment of the district court is affirmed.\\nIT IS SO ORDERED.\\nWOOD, C. J., and HENDLEY, J., concur.\"}"
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+"{\"id\": \"1569677\", \"name\": \"LOPEZ v. TOWNSEND et al.\", \"name_abbreviation\": \"Lopez v. Townsend\", \"decision_date\": \"1938-09-24\", \"docket_number\": \"No. 4264\", \"first_page\": \"601\", \"last_page\": 626, \"citations\": \"42 N.M. 601\", \"volume\": \"42\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:59:40.223587+00:00\", \"provenance\": \"CAP\", \"judges\": \"HUDSPETH, C. J., SADLER and BICKLEY, JJ., and IRWIN S. MOISE, District Judge, concur.\", \"parties\": \"LOPEZ v. TOWNSEND et al.\", \"head_matter\": \"82 P.2d 921\\nLOPEZ v. TOWNSEND et al.\\nNo. 4264.\\nSupreme Court of New Mexico.\\nSept. 24, 1938.\\nGeorge E. Remley, of Albuquerque, for appellant Scenic Stages, Inc.\\nGilbert &' Hamilton, of Santa Fe, for appellant American Fidelity & Casualty Co.\\n'Kik\\u00e9'r & Sanchez, of Santa Fe, for appellee.\", \"word_count\": \"11391\", \"char_count\": \"66551\", \"text\": \"ZINN, Justice.\\nThis is an appeal from a judgment in favor of plaintiff below (appellee here) in the sum of $5,000 awarded by the trial court, without jury, for the wrongful death of plaintiff's husband. The death occurred May 1, 1931.\\nThis case has. been heretofore before us on questions of law. See Lopez v. Townsend, 37 N.M. 574, 25 P.2d 809, 96 A.L.R. 342.\\nThe defendants (appellants here) assign severity-six alleged errors. The seventy-six are summed up under two points, as follows:\\n1. The evidence was insufficient to show that the death of deceased was caused by negligence of defendant Scenic Stages, Inc. (Defendant American Fidelity and Casualty Company is the insurer of its co-defendant pursuant to the provisions of Art. 10, Ch. 11, 1929 Comp.St. \\u00a7 11-1001 et seq.)\\n' 2. The evidence was insufficient to show that defendant Scenic Stages, Inc., was operating as a common carrier pursuant to a certificate of convenience and necessity at the time of the accident.\\nAble counsel for all parties have filed voluminous briefs in the case. Plaintiff attempts to dismiss the appeal on technical grounds. It will- not be necessary to discuss these in view of the result.\\nThe defendants direct their attack upon the judgment, contending that the evidence does not point to their legal responsibility for the death of the plaintiff's husband. We have been forced to make an independent reading and study of the entire record due to the fact that we have not before us in the briefs an agreed statement of the facts.\\nCounsel for the defendants summarize the issues tendered by the pleadings as follows:\\n\\\"1. Was the plaintiff the widow of Venceslao Lopez, deceased?\\n\\\"2. Was Venceslao Lopez killed through being struck by an automobile operated by Scenic Stages, Inc.?\\n\\\"3. If so, did the death of Venceslao Lopez proximately result from any of the acts of negligence alleged in the co.m-plaint ?\\n\\\"4. If Venceslao Lopez were so killed was he guilty of contributory negligence in any of the particulars alleged in the answers ?\\n\\\"5. If Venceslao Lopez were killed by being struck by an automobile operated by Scenic Stages, Inc., was the automobile being operated at that time as a common carrier under certificate o.f public convenience and necessity No. 44, or any oth er certificate issued by the State Corporation Commission?\\n\\\"6. If Venceslao Lopez were killed by being struck by an automobile was it the automobile alleged in the complaint, viz., a Buick 1926 model having motor No.. 191770-3 ?\\\"\\nAfter a careful study of the record we believe the above to be a fair summary and classified division of the issues before the trial court.\\nWith the exception of the issue tendered by the defendants' answer of contributory negligence, the burden was on the plaintiff to pro.ve by a preponderance of the evidence the controverted allegations of her complaint. The defendants claim that she failed in this.\\nOn the early morning of May 1, 1931, Venceslao Lopez was found injured on the Lamy highway a few miles south of the Santa Fe Plaza. His team of horses hitched to. a wagon loaded with wood stood nearby, unattended. The injured man died in an ambulance en route to a hospital in Santa Fe shortly following the discovery of his body upon 'the highway.\\nThe negligence charged was in effect that the defendants drove their stage at a reckless and dangerous rate of speed; that they failed to pass to the' left of the wagon (an overtaken vehicle) although there was ample room to do so but instead passed to the right of the wagon at a dangerous rate of speed and tyithout sounding their horn; that they operated the automobile in excess o.f ten miles per hour although on a curve which prevented a' clear view for one hundred yards ahead; that their stage was operated by an intoxicated driver; that the stage was operated in violation of city ordinances which prohibited the passing of' a vehicle on the crest of a grade where the driver do.es not have an unobstructed view of the road ahead for a distance of five hundred feet and which further prohibits the overtaking and passing of a vehicle to its right.\\nAll of the material issues in the case were resolved in favor of the plaintiff by the trial court. This embraced a finding that the plaintiff was married to the deceased; that his death resulted proximately from injuries received when struck by an automobile operated by Scenic Stages as \\u00e1 public co.nveyanc\\u00e9 under or by virtue of a certificate of public convenience and necessity.\\nIn addition, the trial court's findings convict the defendant, Scenic Stages, Inc., of negligence (a) in passing to the right of an overtaken vehicle (the wood wagon) ; (b) in driving,at a speed in excess of 15 miles per hour along a highway where the curvature thereof prevented a clear view ahead by the driver for 100 yards and where, while upon said curve, the driver at no time had a clear view ahead a distance of 100 feet before striking the deceased; (c) that the automobile was operated around said curve at such speed that it could not be stopped within the distance the driver thereof could see ahead clearly; (d) that the automobile was operated at an excessive speed under the circumstances; and (e) that the driver of the automobile passed said wagon to the right when its passage to the left was open and unobstructed.\\nThe defendants claim that the evidence is insufficient to support the findings and claim that these findings are based on conjecture, on possibilities that are not even probabilities, and that it is a case built up on guesses or presumptions oh presumptions.\\nWe do not propose to set forth in this opinion a complete review and r\\u00e9sum\\u00e9 of each and every word and inference found in the evidence in order to sustain the trial court's findings of fact. It is sufficient to say that the evidence does support the trial court's material findings and conclusions. A narration of all the evidence would be of little help and unnecessarily voluminous. Some- statement of the facts developed at the trial will necessarily be set forth hereafter in this opinion.\\nIt may be true that a much stronger case may or ought to have been proven. However, it is only our duty to ascertain if there is substantial evidence to support the material findings of the trial court and, if found, to sustain the judgment; if not found, to set the judgment aside.\\nWe start with the principle that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts, then a prima facie case is made.\\nThe evidence establishes that Lopez came to his death as the result of having been struck by an automobile driven by one who failed either to stop or report the accident. We are therefore dealing with a hit and run driver, the most dangerous type of motorist on the road, one who does not give the innocent victim of his negligence even a chance for immediate medical or surgical attention if such be needed, but permits the victim to suffer if alive, and die if death be the result. Such flight is clearly a violation of the law. 1929 Comp.St. \\u00a7 11-828, 11-862. Every legitimate inference will be drawn against such a driver.\\nThis is not a criminal case, however. It was not the burden of the plaintiff to prove beyond a'reasonable doubt that the defendant, Scenic Stages, Inc., did, in a negligent and careless manner, kill Venceslao L\\u00f3pez. It was only necessary for the plaintiff to make out a prima facie case of negligence by circumstances attending the accident. Such circumstances of their own force must render probable the fact that a driver of a Scenic Stages car, operated at the time as a public conveyance, was the responsible human agency causing the injury which resulted in the death of Venceslao Lopez. Where we reasonably can, we should view the evidence as the trial court did. We must measure the probative force of specific circumstances as evidence of' what lay behind the physical cause of the death of Venceslao Lopez. We then exam ine the record to find therein proof of the issues.\\n1. Was the plaintiff the widow of the deceased?\\nThe plaintiff testified that she was the wife of Venceslao Lopez at the time of his 'death. Her testimony, under oath, was believed by the trial judge. He made a finding of fact accordingly, and there is substantial evidence in the record to support this finding. We cannot upset the same.\\n2. Was the deceased killed by being struck by an automobile operated by Scenic Stages, Inc., in a negligent manner as alleged in the complaint?\\nVenceslao Lopez was found in a dying condition, bleeding at the mouth and nose, in the middle of a main traveled highway immediately south of Santa Fe, a little after 2 o'clock A. M., the morning of May 1, 1931. He was placed in an ambulance to be rushed to a hospital, but died in the ambulance before arriving there. The visible wounds on the body of the deceased were a cut over his eye, a skinned place on his right hand and arm and a bruised place on his right hip. The evidence on the ground showed that a wagon had driven along the highway close to the right hand edge of the road for a considerable distance and then had veered sharply across the highway to the left. A pool of blood was found some twenty-six feet further along the highway from the point where the wagon had veered to the left. Some broken glass out of a car headlight was found a few feet from this pool of blood. At the right, and off the road, where the wagon tracks had veered to the left, there was visible in the soft wet ground a tire track having a distinctive tread. The road was muddy though the highway itself was gravelled. \\u2022\\nThe record also shows that Travers Stevens was a driver in the employ of defendant, Scenic Stages, Inc., for the purpose of driving a bus route between Roswell and Santa Fe under a fixed schedule pursuant to which he was due to arrive in Santa Fe between 9 and 9:30 in the evening.\\nThe record shows that at about four or five o'clock on the morning of May 1st, 1931, the Sheriff of Santa Fe County, Jesus Baca, was called over the telephone by one Arthur Alarid, calling from a filling station. The sheriff was told that there had been an accident on the Lamy Road, and that a man had been killed, and \\\" that this man who drove the car was at the Montezuma Hotel.\\\"\\nActing upon this telephone call the Sheriff of Santa Fe County went to the Monte- . zuma Hotel and called upon Travers Stevens about one-half hour before the sheriff went to the scene of the accident. Baca knocked twice on the door and Stevens did not answer; knocked again and Stevens got up, opened the door and went back to bed. Stevens had a pint whiskey bottle nearby with just a little whiskey in it. Stevens did not appear natural, was groggy and dazed.\\n; Immediately following this visit at Stevens' room the sheriff went to Closson's Garage in Santa Fe and there inspected a seven passenger Buick car of. Scenic Stages, Inc., driven into Santa Fe by Stevens the night before. This car had a sign on it \\\"Roswell\\u2014Moriarity\\u2014Santa Fe.\\\" The front fender of the car was bent, headlight broken, the bumper broken and hanging down. \\u2022 The sheriff then went out on the Lamy road to the place where Lopez was found in the road.\\nAn earlier report of the accident had also caused Desk Sergeant Roybal of the Santa Fe Police to go out on the highway prior to Sheriff Baca's visit there. He found on the highway the pool of blood that came from a wound on the head and from the mouth and nose of Lopez. When Roybal got there Lopez was bleeding .frebly. There was glass on the highway one and one-half or two and one-half feet beyond the pool of 'blood. This glass came from the headlight of a car. The blood was on the right side of the road, seven feet beyond the' east end of the culvert looking toward Santa Fe.\\nThe sheriff made a drawing of the imprint of the tire appearing at the side of the road in the earth. These tire markings in the earth corresponded to the tire of the seven passenger Buick car that had been inspected by the sheriff at Closson's Garage.\\nThe record also shows that the Scenic Stages' automobile was driven by Travers Stevens for some time previously. After all arrivals, previous to-May 1, 1931, it was Stevens' custom to come into the station and talk to the night men; but that night, upon ' arriving from Roswell, he drove the car to the back and went out at the back without talking to any of the garage people. They knew nothing of the condition of the car until Sheriff Baca called in the morning. The night man in the garage testified that the driver of the stage generally got there about nine o'clock, but he remembered nothing definitely about when he arrived that night and it might have been later. There is no positive testimony as to the time the stage arrived in Santa Fe.\\nThe record gives us a fair picture of the contour and condition of the highway where the accident occurred. It shows that from the line of the Santa Fe Grant, going north to Santa .Fe, the road is practically level for 1700 feet. Then there is an uphill grade of 5.71% which starts and continues to the crest of a hill. The road, from the .zero-zero point at the end of the 1,700 foot stretch, is straight for a short distanpe, then follows a five percent curve to the crest and over the hill. From the crest of the hill to a culvert in the road it is 350 feet. From the top of the hill the grade down-hill from the crest over said 350 feet is 2.40 percent to the culvert. The five percent curve continues from this crest to within 75 feet of the culvert. From this point (within 75 feet of the culvert) the road is straight to and beyond the cillvert. One driving in a car along this five percent curve, north toward Santa Fe, at a point 150 feet south of the culvert, can see ahead only about 150 feet, daylight visibility. This is due to the curve itself. From the culvert looking north the visibility is about 325 feet.\\nIt is 2,600 feet from the south city limits of Santa Fe. to the culvert mentioned, some 800 feet of which is on the curve and 550 feet of which is up-grade to the crest of the hill mentioned, and 350 feet down to the culvert. All the road described is within the corporate limits of the City of Santa Fe. The only change in the highway in the last six or seven years is that it has been oiled.\\nDr. Ward testified that he saw the body of deceased the morning he died; that the-deceased had some sort of wound on his forehead. This wound.was a cut. That such a blow could have been received by a man standing in the highway if struck by an automobile, and though the blow itself might not cause the death, yet a hemorrhage or concussion of the brain, inferentially the result of such a blow, might cause death.\\nThe doctor testified that if a man in the highway was struck by an automobile producing such a wound as he saw on the forehead of deceased, and the man remained there for a time not to exceed two or three hours and died, and no other cause being shown, and no other bodily injuries, the natural presumption would be, to- his mind as a doctor, that the man died from such wound. The doctor qualified his testimony by saying that his examination was purely superficial.\\nThe evidence also shows that appellant Scenic Stages, Inc., in operating the stage between Roswell and Santa Fe, some time 'during the night of April 30-May 1, 1931, necessarily passed along the road and the place where Lopez was killed.\\nThe right rear tire on the automobile that killed Lopez was of a peculiar tread. The sheriff testified that the tread of the tire-on the Buick automobile corresponded to the tread made in the soft dirt off the travelled part of the road. Where the automobile struck Lopez the impact broke out one of the headlights of that automobile and strewed the glass over the highway. The Buick car in the garage also had its headlight broken, its front right fender bent, and bumper broken .and hanging down on the right side. It was apparent that the Buick car had struck something just before arriving in Santa Fe. Public stages as a rule do not drive at night with but one headlight, and with a fender and the bumper broken. The car must have struck something, immediately before arriving at Santa Fe, that broke its headlight, fender and bumper.\\nThese several circumstances are such that there is brought within the realm of probability the fact that appellant Scenic Stages' automobile was the car that struck Lopez. Coupled with all this, and to make the probability stronger, -we have the fact that the Sheriff of Santa Fe County upon being advised that some one was killed on the Lamy Road, went directly to the hotel room occupied by Travers Stevens, the driver of the Buick car, and interviewed him. This pointed to the driver as being in some manner connected with the accident. Sheriffs are not accustomed to being called at four or five in the morning and going to a hotel room out of mere curiosity.. There was a purpose and motive in the call. Under the circumstances, the telephone call by Alarid, the Sheriff's awakening and visit to Stevens are not guesses, but bear upon the probability that Stevens was the driver of the car that struck Lopez. This conclusion is fortified by the fact that as the result of the Sheriff's visit to Stevens at the Montezuma Hotel, the Sheriff went directly to Closson's Garage and examined the Buick automobile and found the damaging evidence of a collision. He did not go to any other garage or examine any other car. And again, acting on this examination of the car, coupled with his visit to Stevens, preceded by the telephone message of Ala-rid, the Sheriff went directly out on the Lamy Road to where Lopez had been injured.\\nAll of which shows rather conclusively that the Sheriff having had news of the accident which implicated Stevens by visiting Stevens ascertained the location of the death dealing car in Closson's Garage. It is a logical and natural inference that from Stevens' statements to the Sheriff, the Sheriff was directed to appellant's automobile, and to the place of the injury. It is also a logical and natural inference that Stevens knew at least'how and where the injury occurred.\\nThe district court, having all of the above testimony before it, was justified in finding as a matter of fact that Lopez was killed by being struck by the Buick automobile belonging to the Scenic Stages, Inc., while the same was being driven by Travers Stevens; its driver.\\nNow wherein was the negligence?\\nThe evidence fairly supports an inference that Stevens passed the wagon and team to the right. If Travers Stevens at the time was violating a pertinent statute of the State of New Mexico relating to rules of the road, such violation was negligence per se.\\nCertain pertinent statutes in effect on May 1, 1931, are as follows:\\nN.M.Sts.1929, \\u00a7 11-225. \\\"(a) The driver or operator of any vehicle in or upon public highways within this state shall drive or operate such vehicle in a careful manner, with due regard for safety and convenience of pedestrains and all other vehicles or traffic upon such highways.\\n\\\"(c) Vehicles overtaking other vehicles proceeding in the same direction shall pass to the left thereof and shall not again drive to the right until the road is reasonably clear of such overtaken vehicle.\\\"\\nN.M.Sts.1929, \\u00a7 11-804. \\\"Restrictions as to speed, (a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard, to the traffic, surface and width of the highway and of any other conditions then existing; and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.\\n\\\"(b) Subject to the provisions of subdivision (a) of this section and except in those instances where a lower speed is specified in this act, it shall be prima facie lawful for the driver of a vehicle to drive the same at a speed ndt exceeding the following, but in any case when such speed would be unsafe it shall not be lawful.\\\"\\nN.M.Sts.1929, \\u00a7 11-804. \\\"(b) 4. -Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver's view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding. The state highway commission shall erect and maintain suitable signs at each end of each such curve, specifying the maximum speed limit permitted in traversing such curve under the provisions hereof.\\\"\\nIt was also the duty of drivers of automobiles to look out for wagons drawn by horses and not injure drivers.\\nN.M.Sts.1929, \\u00a7 11-225 (i). \\\"Every person having control or charge of any motor vehicle upon any public highway and approaching any vehicle drawn by an animal or animals or any animal upon which any person is riding, shall operate such motor vehicle or other vehicle in such a manner as to exercise every reasonable precaution to prevent frightening of any such animal and to insure the safety of any person riding or driving the same. \\\"\\nThe court warrantably could have believed from the evidence that the deceased was proceeding toward Santa Fe walking beside his loaded wood wagon and team; that his wagon was on the right hand side of the road, although near the center line thereof, at the moment of the accident; that when the lights of the Scenic Stages car, straightening out of the curve, brought the wagon and team within the car driver's vision, there was available to him the whole left side of the road for passage that way with sufficient distance between him and the wagon ahead, if traveling at the careful and prudent speed in view of conditions then existing enjoined by 1929 Comp. \\u00a7 11-804 (a), for diverting his course to the left hand passage; that there was also room for him to pass the wagon to the right; that choosing to pass to the right, or impelled to such course by careless speed to avoid impending collision with the wagon, the car struck deceased, inflicting injuries from which shortly thereafter he died.\\nWhile the evidence was conflicting there was direct and positive testimony that at the point where the wagon tracks suddenly veered to the left across the road, room was available for a car to pass to the left as well as to the right. Furthermore, it was near this point (though necessarily before the tracks veered, the wagon being untouched) that the tire tracks from the automobile were superimposed over the wagon tracks, finally getting over on the shoulder of the road, then suddenly swerving back on to the highway to avoid striking the edge of the culvert.\\nSheriff Baca testified:\\n\\\"Q. Was there any peculiar markings on the automobile tire? A. Very plain, the ground was very soft and damp, showing the tire mark clearly.\\n\\\"Q. Please show the . Court a diagram of what the tire markings was like. (Witness marking C).\\n\\\"Q. Now Mr. Baca, over in about what distance from the culvert south did you say that that wagon first diverted from the straight course to the left? A. I would say about 40 or 50 feet from here. It was hard surface and the minute it hit the shoulder the track was quite deep. I could see where the car straightened out to avoid hitting the edge of the culvert.\\\"\\nTraveling toward Santa Fe, the road straightened out of the curve, 75 feet south of the culvert. Measurements placed the sudden veering to the left of the wagon tracks 19 feet south of the culvert. Making due allowance for location of the abruptly veering wagon tracks within the overall length of wagon and team, the court permissibly could have believed that driven at a careful speed while emerging from jthe mouth of a blind curve upon a dark and rainy night, the driver of the car could have passed to the left as the law requires instead of undertaking passage to the right, as the law forbids.\\nTo say the least, the' abrupt turn-of the horses to the left, almost at a right angle, was extraordinary. Whether the deceased' with reins in hand, conscious that the car was bearing down upon him and his vehicle, gave the reins a sudden left hand jerk in an effort to avoid impending collision, will never be definitely known. This affords a more reasonable explanation, however, in view of the attendant circumstances, than that without suggested rhyme or reason the deceased suddenly blocked the road by turning his team and wagon directly across it. It is significant that the wagon and team escaped uninjured.\\nAll of the above we believe established the fact that the automobile which struck Lopez, and which was driven by Stevens, was driven recklessly in violation' of 1929 Comp. \\u00a7 ll-225(c) and \\u00a7 ll-804(a).\\nWhether the driver's failure to operate at such rate-of speed that the automobile could be stopped in time to avoid an obstruction discernible within the driver's 'length of vision ahead of him (within the range of the car's headlights) is negligence per se, a question passed for decision in Kandelin v. Lee Moor Contracting Co., 37 N.M. 479, 24 P.2d 731, need not now be determined. There is a division of opinion upon the subject. See 42 C.J. 930; 44 A.L.R. 1403, supplemented in 58 A.L.R. 1493, 87 A.L.R. 900, and 97 A.L.R. 546. At least, a failure to do so may constitute negligence as a matter of fact and when found by the court will support a judgment.\\nDefendants have cited some cases to show the amount of evidence necessary to prove facts by circumstantial evidence. They hold in effect that circumstantial evidence, even in a civil case, must not only be consistent with the theory that authorizes recovery but must be absolutely inconsistent with any other rational theory. Such seems to be the rule in criminal cases. See State v. Johnson, 37 N.M. 280, 21 P.2d 813. We are of the opinion, however, that in civil cases, where circumstantial evidence is relied upon for recovery, the burden of proof resting upon the plaintiff is merely to make out the more probable hypothesis. It is unnecessary that his proof attain a degree that excludes every other reasonable conclusion, as in a criminal case. We think the better reasoned authorities support this rule.\\n\\\"\\u00a7 12. Weight and Sufficiency. In civil cases, it suffices that the evidence, whether direct or circumstantial, creates a preponderance of the proof. In a civil case, circumstantial evidence need not exclude every reasonable conclusion other than that arrived at by the jury.\\\" Jones, Commentaries on Evidence, 2nd Ed., Vol. 1, Sec. 12, p. 23.\\n\\\"Such statements are undoubtedly correct statements of law, and when viewed in the light of the facts of cases wherein made and properly limited to their terms, have no real tendency to conflict. They simply pronounce the rule that if the probabilities are equal there is no preponderance of evidence, the burden of proof has not been sustained, and no recovery can be had; or, in other words, the converse of the text. Similarly the statement in the text may otherwise be stated as the familiar rule that 'in a civil case, proof to sustain a burden of proof need not be beyond reasonable doubt.' So stated it is true beyond question irrespective of whether the application is to proof attempted by circumstantial or direct evidence.\\\" Jones, Commentaries on Evidence, 2nd Ed., Vol. 1, Note 30, p. 23, copies p. 24.\\nIn a very recent criminal case decided by this court (State v. Lott, 40 N.M. 147, 56 P.2d 1029) venue was a material 'issue. We held the evidence substantial although resting entirely on circumstances and ; re-; fused to disturb the verdict of the jury. There, proof beyond a reasonable doubt was essential and the circumstances produced alone met the requirement of substantiality. See, also, Chicago, R. I. & P. Ry. Co. v. Wood, 66 Kan. 613, 72 P. 215; St. Louis, I. M. & S. Ry. Co. v. Owens, 103 Ark. 61, 145 S.W. 879; Bowling v. Roberts, 235 Pa. 89, 83 A. 600 (upon identity of an automobile).\\nThe case of Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 25 P.2d 197, is similar to this one, in that circumstantial evidence alone was relied upon to prove the'defendant guilty of negligence which resulted in the death of plaintiff's husband. We said [page 202]:\\n\\\"It is recognized, too, that in proving neg: ligence circumstantially absolute certainty cannot be achieved. As said in Rosellini v. Salsich Lumber Co., supra [71 Wash. 208, 128 P. 213, 215]: 'In this class of.cases ;ab solute certainty cannot be required. There sj'ust be a point where, if a prima facie case is. made, the burden shifts. It then became the duty of the defendant to meet this prima facie case and offer a reasonable explanation of the cause of the accident. Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 P. 870.'\\n\\\"The Illinois Appellate Court expresses the. same thought, although in different language, in Rost v. Kee & Chapell Dairy Co., 216 Ill.App. 497, where it said: 'Absolute, positive, ocular proof, the law, wisely, does riot require. Nor does negligence have to be- proven beyond a reasonable doubt. Circumstantial evidence, such as exists here, and by which the mind is impelled to make certain deductions, is sufficient.' \\\"\\n' In the instant case the circumstantial evidence offered by plaintiff points to Travers SJtevens as the hit and run driver of the Scenic Stages, Inc., stage which killed Venceslao Lopez. No other hypothesis so reasonable is apparent. The suggestion of the defendants that Lopez may have died from some other cause than being struck by an automobile is unpersuasive.\\nThe rule enunciated in the case of McKinney v. Bissel, Mo.App., 263 S.W. 533, is applicable to this case.\\nWe quote therefrom the following [page 535]: \\\"In Reisenleiter v. United Rys. Co., 155 Mo.App. 89, 134 S.W. 11, this court held, in reviewing the rule announced in Frisby v. Transit Co., supra [214 Mo. 567, 113 S.W. 1059], that slight evidence tending to support the inference that defendant owns or operates the car inflicting an injury, where it is not combated except by a general denial, and there is no intimation that defendant resists the claim on the ground that it was not the operator, will be sufficient. That is the situation we have in this case, and, only slight evidence being sufficient to show that defendant was operating this car, this evidence would unquestionably be sufficient.\\\"\\nThe defendants did not even attempt to explain away the similarity of the tire track to the tire on Scenic Stages' car. They did not explain away the connection between the broken headlight glass on the road beside the dying and bleeding body of Venceslao Lopez and the broken headlight on its stage. They made no attempt to explain the unusual dilapidated and broken condition of the stage indicating it had been in a collision or accident. They did not attempt to explain why the Sheriff of Santa Fe County, who was called out of bed on a wet drizzly morning to investigate the accident which took the life of Venceslao Lopez, went to the room of its driver Travers Stevens, and from his room went to the garage where he examined its state and then went to the place of the accident.\\nNo good purpose would be served by setting forth and discussing all of the cases cited in the briefs of plaintiff and defendants which they contend bear, or are thought to bear, upon this question.\\nWe are satisfied to hold that a plaintiff in this kind of case is not obli gaced to establish the material facts essential to a recovery beyond a reasonable doubt. Such a rule would amount to a denial of justice. It is sufficient if his evidence affords room for men of reasonable minds to conclude there is a greater probability the accident causing the injury happened in a way which fixes liability upon the person charged, than that it happened in a way which absolves him. See St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804, 806; also Hessler v. Moore, 188 Wash. 80, 61 P.2d 1001, 1002, 1003.\\nThe defendants claim that the case has been built on guesses, or presumptions on presumptions. No more so under the facts of this case than in Hepp v. Quickel Auto & Supply Co., supra. In meeting a like contention there, we said:\\n\\\"The defendant also urges the propriety of the trial court's ruling upon the ground .that any verdict for the plaintiff would of necessity be supported by raising 'presumption on presumption.' We are not impressed that such is or would be the case.\\n\\\" 'Reasonable inferences drawn from affirmative facts proven are evidence, and not presumptions built upon other presumptions, as suggested by defendant.' Hardwick v. Wabash R. Co., 181 Mo.App. 156, 168 S.W. 328, 330. See, also, Southwest Cotton Co. v. Clements, 25 Ariz. 124, 213 P. 1005; Nicol v. Geitler, [188 Minn. 69], 247 N.W. 8; Gray v. Hammond Lumber Co., 113 Or. 570, 232 P. 637, 233 P. 561, 234 P. 261. Cf. 1 Wigmore on Evidence (2d Ed.) \\u00a7 41, p. 258.\\\"\\nOther cases holding that it affords no' objection to the judgment that the accident was unseen if circumstances reasonably point to its occurrence in a given way, are: Hasenjaeger v. Missouri-Kansas-Texas R. Co., 227 Mo.App. 413, 53 S.W.2d 1083; Summerfield v. Wetherell, 82 N.H. 513, 135 A. 147; Tucker v. Railway Co., 227 Pa. 66, 75 A. 991; Pittsburgh, C., C. & St. L. Ry. Co. v. Ervington, 59 Ind.App. 371, 108 N.E. 133, and Waters-Pierce Oil Co. v. Deselms, 18 Okl. 107, 89 P. 212.\\nThe findings of the court upon the, question of negligence in the respects indicated being supported by substantial evidence, will not be disturbed upon appeal. We express no opinion upon sufficiency of the evidence to sustain findings of neglh gerlce in other respects. We are satisfied that plaintiff established by a preponder\\u00e9 anee of the evidence issues numbered one, two and three of the issues heretofore enumerated in this opinion and which the defendants claim she failed to do.\\nThe issue of contributory negligence on the part of the deceased, Venceslao Lopez, was resolved by the findings and judgment in favor of plaintiff. The evidence was not such as to enable the court to say as a matter of law that the deceased was guilty of contributory negligence. And having found as a matter of fact that he was not, we are unable to disturb that finding.\\nThis brings us to the second major point in the case, viz., whether plaintiff's failure, if she failed, to prove that Scenic Stages operated its route pursuant to a certificate of public convenience and necessity issued byi State Corporation Commission, barred recovery.\\n'Th:e statutory rider, certainly as against the -named assured, limits the insurer's liability to losses incurred through operations pursuant to such a certificate.\\n.Touching this issue the trial court found: \\\"That on the 20th day of August, 1929, the State Corporation Commission of the State of New Mexico issued a certificate of pub-lid ' convenience and necessity to Capital Stages, Inc., a corporation, authorizing it to op'e'rate a motor transportation business from Roswell, New Mexico, to Santa Fe, New Mexico, and intermediate points, for the purpose of carrying passengers and express service between said points over state highways Nos. 2 and 41, and over U. S. Highways Nos. 70 and 470; that said certificate of public convenience and necessity was numbered 44; that thereafter said certificate was assigned by the said holder thereof to the defendant, Charles T. Townsend; and that thereafter, and prior to the 1st day of May, 1931, the said Charles T. Townsend authorized the operation of said passenger and express service over said routes under said certificate of public convenience and necessity by the Scenic \\u2022Stages, Inc., which said operation by said Scenic Stages, Inc., was thereafter, and prior to the 1st day of May, 1931, duly recognized by the State Corporation Commission of the State of New Mexico; and on the 1st day of May, 1931 the said Scenic Stages, Inc., was operating said passenger and express business between Roswell, New Mexico, and Santa Fe, New Mexico, over the highways as aforesaid; under the permit aforesaid, as a common carrier of passengers and express.\\\"\\nWhile much space in the briefs of counsel for the respective parties is consumed in arguing a lack of evidence to sustain this finding, and its legal insufficiency, if supported by the evidence, we temporarily pass consideration of the matter. For, if defendant insurer be liable regardless of whether Scenic Stages operated under a certificate of public convenience and necessity, obviously it is unimportant to determine if it did. We think it was liable under the facts here shown whether or not Scenic Stages was a licensed motor carrier.\\nUnder the admitted facts the Scenic Stages was a motor carrier as defined in L.1929, c. 129, \\u00a7 1(d), 1929 Comp. \\u00a7 11-1001(d), operating a route between Roswell and Santa Fe under a fixed schedule. Such a carrier is required by the act (1929 Comp. \\u00a7 11-1005) to deposit with the Corporation Commission a surety bond or policy of insurance from a company authorized to do business in New Mexico \\\" guaranteeing' the payment to the public of all losses and damages proximately caused by the negligence or wilful misconduct of such motor carrier, its serv ants or agents, in not less than the following amounts, to-wit:\\\" (Here follows schedule of amounts based upon seating ' capacity of vehicle.)\\nSaid section 11-1005 further provides: \\\"All such bonds or insurance policies shall . provide a guarantee of payment of all loss or damage caused as aforesaid by any such vehicle operated upon the highways of this ' state in the conduct of the business of the motor carrier therein named, whether or not such vehicle be specified in such bond or policy, and shall be for the benefit of and subject to immediate suit or action thereon by any person who shall sustain actionable injury or loss protected thereby, notwithstanding any provision in said bond \\u2022 or policy to the contrary; and every such bond or insurance policy so given shall, in any suit or action, be conclusively presumed to have been given according to and to contain all the provisions of this act. No .such certificate of public convenience and necessity shall be valid and operative until such bond or insurance policy herein named has been filed with and approved by the corporation commission, and no such bond or insurance policy herein named, so filed and approved, shall be cancelled by the surety or company issuing the same except upon and after ten days notice in writing to said corporation commission, and upon such notice being given by the surety 'or company issuing said bond or insurance policy, the certificate of public convenience and necessity of the person giving such bond or insurance policy shall be revoked unless a new bond or insurance policy shall be filed with and approved by the corporation commission before the date upon which such cancellation becomes effective'.\\\" (Italics supplied.) \\u2022 .--J\\nThe only distinction we have been able to discover between the indemnity afforded by the so-called non-statutory and the statutory coverage is that the former is cop-fined to indemnity against loss imposed , by law for bodily injuries or death to persons other than assured or his employees \\\"arising or resulting from claims upon, the assured by reason of the ownership, maintenance or use\\\" of described automobiles while used for carriage of passengers for compensation \\\"over authorized routes of the (Corporation) Commission from 'Roswell, N. M.;\\\" whereas, the latter affords the same indemnity for like claims resulting from the ownership, maintenance or use of any automobile of the assured \\\"pursuant to a certificate of public convenience and necessity issued by-the Corporation Commission of New Mexico.\\\"\\nSince operation under a certificate of convenience and necessity out of Roswell to Santa Fe necessarily would be over A route authorized'by the Corporation Commission and since the phrase \\\"any \\u00e1nd -all motor vehicles\\\" would, of course, embrace a described automobile, we do not perceive the distinction asserted by defendants -between the two types of coverage. Neither includes'the assured or any of his -employees as to personal injury, death - Or property damage. Under both indemnity; is expressly confined to losses incident to .ownership, maintenance or use of the auto- . mobiles over authorized routes of the commission in transporting passengers for compensation; and, as to the so-called statutory coverage (between which and the other we see no material difference), \\\"pursuant to a certificate of public convenience '\\u00e1iid necessity.\\\" Except to keep insurer informed of the \\\"number and character of the automobiles\\\" employed upon which the jpremium in part is based (as stated in paragraph N of the policy), no good reason suggests itself for a separate statement of liability in relation to described and unde\\u00e1cribed automobiles, the liability in legal 'effect being substantially the same.\\n,The statutory rider attached to the policy \\\"provides: \\\"The policy to which this endorsement is attached is written in pur'su\\u00e1nce of an is'to be construed in accordance with the following law of the State of New Mexico, to-wit, House Bill No. 249, Chapter 129, Laws of 1929, and the rules and regulations of the Corporation Commission adopted thereunder, and is subject to all the provisions thereof. In consideration of the premium of the policy to which this endorsement is attached, the .insurer hereby agrees to pay any final judgment within the limits set forth in the schedule below set out for injury to and/or death of persons (with the exception of any employee of the Assured while engaged in the maintenance or operation of any of the Assured's automobiles) and damage .to property (excluding property of the Assured or property which is rented or leased by the Assured, or property other than the baggage of passengers in the custody of the Assured or carried in or upon any automobile of the Assured, except as otherwise specified) resulting from the ownership, maintenance or use of any and all motor vehicles pursuant to a certificate of public convenience and necessity issued by the Corporation Commission of New Mexico. It is further understood and agreed by and between the Insurer and the Assured that the right of any person to recover hereunder shall not be affected by any act or omission of the Assured or .any employee, of the Assured with regard to any condition or requirement of said policy, but all terms and conditions of the policy shall remain in full force and be binding as between the Insurer and the Assured; and the Insurer shall be reimbursed by the Assured for any and all loss, costs or expenses paid or incurred by the Assured which the insurer would not be obligated to pay under the provisions of the policy independent of this endorsement (Italics ours)\\nUndoubtedly this italicized clause has been borrowed from the language of the standard or union mortgage clause employed with respect to a mortgagee's rights under fire insurance policies. It is very similar in form. Writing in 3 Cooley's Briefs on Insurance (2nd Ed.) 1988, in reference to such a provision attached to a fire insurance policy, the author states: \\\"When the policy is intended as a protec tion to a mortgagee, there is usually attached to it- a provision that 'this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured.' This clause, though a comparatively recent addition to policies, was construed as early as 1878, in Hastings v. Westchester Fire Ins. Co., 73 N.Y. 141, affirming 12 Hun, 416, as recognizing the mortgagee to be a distinct party in interest, and as creating a new contract, the terms of which had no relation to the contract between the company and the original insured. In Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834, 60 N.W. 133, 25 L.R.A. 679, it was held in effect that the conditions upon which payment should be made, as between the insurer and the insured, did not qualify the right of the mortgagee, in view of the mortgage clause, and therefore the right of the mortgagee to recover was not affected by conditions which, as between insurer and insured, would avoid the policy. This decision was subsequently followed in State Ins. Co. v. New Hampshire Trust Co., 47 Neb. 62, 66 N.W. 9 (on rehearing 66 N.W. 1106).\\\" See, also, Id., 2390; 4 Joyce on Insurance (2nd Ed.) \\u00a7 2795, p. 4776; People's Savings Bank v. Retail Merchants' Mutual Fire Ass'n, 146 Iowa 536, 123 N.W. 198, 31 L.R.A.,N.S., 455.\\nThe position of the public for whose benefit the policy is issued is akin to that of the mortgagee under the standard or union mortgage clause found in fire insurance policies. Indeed, and apparently in the absence of language so plainly declaring as in the policy before us, the Supreme Court of Tennessee in United States Fidelity & Guaranty Co. v. Allen, 158 Tenn. 504, 14 S.W.2d 724, asserts that recovery in that case might very well rest upon such analogy. The court said [page 725] : \\\"It is asserted by defendant Guaranty Company that its liability should be measured by the liability of Jones & Dillon to the extent of the policy. We think that much is true, but the liability of defendant Guaranty Company might very well be rested on another ground. The rider attached to the policy issued sets out that the real beneficiary of said policy is the state of Tennessee for the use and benefit of the public. This being true, the rights of the public would be similar to those of a mortgagee under a fire insurance policy bearing the standard mortgage clause. A transfer of the interest of the mortgagor, or other acts by the mortgagor, might avoid the policy as to him; but such conduct on the part of the mortgagor would not affect the rights of the mortgagee without notice. Laurenzi v. Insurance Co., 131 Tenn. [644] 664, 176 S.W. 1022; Joyce on Insurance (2d Ed.) \\u00a7 2795.\\\"\\nThe same analogy, and likewise absent policy language so recognizing, suggested itself to Vice Chancellor Bigelow in United States Casualty Company v. Timmerman, 118 N.J.Eq. 563, 180 A. 629. He said [page 632]: \\\"The situation presented by'a financial responsibility policy is much like that created by a fire policy with standard mortgagee clause attached. The insurer's liability to the assured is distinct from its liability to an injured third person. The rights of the latter against the insurer spring from the statute as well as from the policy, just as the rights of the mortgagee are' determined by the mortgagee clause. The fire policy remains valid as to the mortgagee, despite a breach of warranty by. the assured owner. Reed v. Firemen's Ins. Co., 81 N.J.L. 523, 80 A. 462, 35 L.R.A.(N.S.) 343. Likewise, complainant's policy, remains valid as to Godlewska. The cotnpany's remedy is an action on the policy against Timmerman.\\\"\\nUpon the former appeal of this case, 37 N.M. 574, 25 P.2d 809, 96 A.L.R. 342, in Our opinion on rehearing, we sensed the distinction in liability to the public and to the'named assured under this policy. We. said' [page 814]:\\n'\\\"\\u2022There remain to be considered the spec-ifications under the proposition that the ' complaint fails to set forth facts constitut- ' ihg' a cause of action. These points are made: (3) failure to allege that the'' automobile was being operated pursuant to a certificate of convenience and necessity; (4) failure to allege that the 'fl\\u00fc't\\u00f3mobile. was being operated on a route 'authorized by the Corporation Commission.\\n.M.\\\"In urging the necessity of such allegations,, .the casualty company points to provisions. of the policy, limiting liability. ,)A\\u00cdith these we are not concerned. They .\\u00a1affect the insurer's liability to indemnify B'th\\u00a1q,,.assured. In that, matter the public is not interested. We look to the rider and the statute.\\\"\\nThe insurer will be taken to have appropriated the language quoted supra with a knowledge of the construction given it by the courts in fire policies.\\nThe obvious purpose of this clause is to affirm in the public, for whose benefit the policy is required, a coverage not obtaining in favor of the named assured. Under the terms of this clause, the insurer distinguishes between liability to the named assured (the carrier) and to the public. The breach by named assured of a condition or requirement of the policy fatal to his indemnity leaves unaffected the right of \\\"any person\\\" (the public) to recover thereunder. Furthermore, the named assured agrees to reimburse the insurer for \\\"any and all loss, costs or expenses paid or incurred by the assured which the insurer would not be obligated to pay under the provisions of the policy independent of this indorsement.\\\" In other Words, where, but for the endorsement, as its draftsman conceived, the policy condition or requirement breached would have barred recovery by all persons, the insurer's waiver of such breach in favor of the public shall not constitute a waiver in favor of named assured as respects the indemnity contracted for by him.\\nStrong reasons support, whether or not such is the effect of the statute without.it, the inclusion of such a provision. These policies are required by law for protection of the public, The motor carrier., operat ing over a given route knows, or its officers should know, whether it has its certificate of convenience- and necessity. The travel-ling public neither knows, nor has ready means of ascertaining, whether such be the case. A passenger about to purchase a bus ticket and employ the carrier's services will not pause to inquire, nor does this policy provision contemplate that he shall do so, whether such carrier has its certificate of convenience and necessity or has fulfilled other conditions or requirements of the policy essential to its validity as between the carrier and the insurer.\\n\\\"We must hold the intent of the law is to put financial responsibility behind the operations of the motor transportation company as a protection to those with whom they do business and the public concerned with the safety of the public highways being used by insured in the, conduct of the business of a common carrier for hire.\\n\\\"It is not for the passenger, boarding a vehicle of such carrier to inquire whether the particular vehicle so publicly employed has been put into the service in conformity with lawful regulations; nor for a shipper via such carrier to inquire what vehicle of such owner receives and carries his freight; nor for the public to be deprived of the security provided in the bond against the carrier's negligence by. reason of another wrongful act of such carrier in putting into service a vehicle in violation of the 'rules with which he should comply.\\\" Fidelity & Casualty Co. of N. Y. v. Jacks, 231 Ala. 394, 165 So. 242, 246.\\nSee, also, Hipp v. Prudential Casualty & Surety Co., 60 S.D. 300, 244 N.W. 346.\\nThat the policy in suit was in force there can be no doubt. It not only was issued for the first year but renewed for the second. It contained no provision that it should not take effect until a certificate was issued. True, it conditioned liability upon operations under a certificate. But in the very next sentence it agreed that any act or omission of the assured in respect of such condition should not affect the right of any person to recover under the policy. Obviously, a condition that liability shall not attach save where operations are pursuant to a certificate is a covenant by assured that he will only so operate. Thus, the carrier's \\\"act\\\" in operating without a certificate, while fatal to its own indemnity, is expressly waived by insurer in favor of the public. And; if the carrier might have had the certificate upon proper application, its failure to secure it is an \\\"omission\\\" within this language of the rider.\\nIn Hipp v. Prudential Casualty & Surety Co., supra, one defense was that the policy was not in force. The court said [page 347] : \\\"The first reason is'based on the fact that at the time of the accident Moberg was not a licensed motor carrier, but was operating his bus line illegally and without a license or permit, and that the policy had not. been approved by the board of railroad commissioners.:. Whether Mo- berg was operating his bus line illegally is not material. It is a fact that at the time of the issuance of the policy he was actually engaged in the operation of his bus line and was a motor carrier under the definition found in section 2, c. 224, Session Laws 1925, as amended by section 1,- c. 181, Session Laws of 1929. There is no provision of law, nor condition contained in the policy, to the effect that the same shall not take effect until it has been approved by the board of railroad commissioners, and it was in force by express terms from and after noon of the 11th day of December, 1929.\\\"\\nUnder this view, the trial court reached the correct result even though it did so by pursuing a false issue. The error, if any, in so doing does not harm the defendant. Lockhart v. Wills, 9 N.M. 344, 359, 54 P. 336.\\nHowever, we think this phase of the case may also be disposed of upon a theory entirely consistent with the trial court's finding' No. 4, quoted supra. It found that State Corporation Commission related the operations, of Scenic Stages, Inc., to the Townsend certificate; duly recognized its operations as under said certificate and acquiesced therein. But the defendant insurer challenges in several respects this finding upon which rests the conclusion of liability against it. This necessitates a present statement of the facts bearing on this issue.\\nThe. evidence-disclosed that on August 20, 1929, certificate of public convenience and necessity No. 44 was issued to Capitol Stages, Inc., authorizing it to operate over a fixed route a motor transportation business between Roswell and Santa Fe, New Mexico, and intermediate points, for the carriage of passengers and express. On November 15, 1929, the defendant American Fidelity and Casualty Company, a corporation, issued the policy herein sued upon giving name of assured as .\\\"Scenic Stages, Inc., and/or Chas. T. Townsend\\\" of Roswell, New Mexico, and the same was deposited with State Corporation Commission.\\nWithin three weeks and on December 7, 1929, this certificate of convenience and necessity No. 44 was transferred by Capitol Stages to Chas. T. Townsend and the transfer was approved by the Corporation Commission on the same date. Still upon the same date Scenic Stages, Inc., was formally incorporated by the Corporation Commission.\\nThe policy, subject to its provisions, extended coverage to certain described automobiles; in addition, in compliance with Laws 1929, c. 129, and likewise subject to policy provisions] it afforded indemnity for all loss or damage caused by any motor vehicle \\\"whether or not such vehicle be specified in such policy.\\\"\\nWhile plaintiff sought to impose liability through proved use of a described automobile, she was unable to prove, at least did not prove, that the automobile pleaded was in use on the occasion . in question; hence, she was relegated to. proof that Scenic Stages, Inc., was operating under a certificate of public convenience and necessity.\\nOn February 4, 1930, by an endorsement on the policy and in exchange for an additional premium, coverage on a certain named vehicle was withdrawn and extended to another described vehicle. Likewise on May 13, 1930, by two separate endorsements and in consideration of additional premiums,' coverage was extended to three additional and described motor vehicles.\\nThereafter and on October 1, 1930, the policy was renewed in favor of \\\"Scenic Stages and/or Charles T. Townsend of Roswell, New Mexico,\\\" as the assured by an endorsement reading: \\\"In consideration of an additional premium of $1,127.88 it is understood and agreed that this policy is renewed for a term expiring October 1st, 1931, subject to all the terms and conditions thereof.\\\" Laws 1929, c. 129, \\u00a7 5 (1929 Comp. \\u00a7 11-1005), provides: \\\"All insurance policies executed pursuant hereto shall expire on the first day of October of each year, and at no other time.\\\"\\nAt the trial, the defendants entered into a stipulation as to what Charles T. Town7 send would testify if present, which is as follows: \\\"Mr. Townsend, if here, would testify that Travers Stevens was in the employ of Scenic Stages, Inc., for the purpose of driving a route between Roswell, New Mexico and Santa Fe, New Mexico, under a fixed schedule, pursuant to which he was due to arrive at Santa Fe, New Mexico, between 9:00 and 9:30 in the evening, and that he was employed for no other purpose.\\\"\\nThe defendant, American Fidelity and Casualty Company, admitted in its answer that on May 1, 1931, Scenic Stages, Inc., was engaged in operating motor vehicles for hire as public carriers of passengers between the cities of Roswell and Santa Fe and that it was still so engaged at the time of the filing of plaintiff's complaint in July, 1935, but denied that such operation was pursuant to any certificate of public convenience and necessity. It denied that Charles T. Townsend was so engaged at any of said times.\\nThe defendants, Charles T. Townsend and Scenic Stages, Inc., answering separately, denied that Townsend on any of the dates mentioned was operating a motor carrier business between Roswell and Santa Fe but admitted that Scenic Stages, Inc., on May 1, 1931, \\\"was engaged in the business of operating stage coaches and automobiles as a public carrier for the transportation of persons between the cities of Santa Fe and Roswell, New Mexico, and intermediate points, as alleged in said paragraph.\\\" (Italics supplied.) In paragraph 8 of the complaint, to which this allegation of the joint answer of Townsend and Scenic Stages was responsive, it had been alleged that Scenic Stages was so operating between Roswell and Santa Fe \\\"as authorized by said Certificate of Public Convenience and Necessity No. 44 and operating under said certificate.\\\"\\nThe Motor Transportation Act of 1929 (Laws 1929, c. 129, \\u00a7 3), 1929 Comp. \\u00a7 11-1003,'-.prohibited all intrastate motor carriers from operating for hire between fixed termini or over a regular route upon any public highway without a certificate of -public convenience and necessity issued by the State Corporation Commission, which commission was given administration of the act. Section 11-1005 provided that no such certificate should be issued until the motor carrier had filed with the commission and obtained its approval either of a surety bond or policy of insurance from a company authorized to, do< business in New Mexico \\\" guaranteeing the payment to the public of all losses and damages proximately caused by the negligence or wilful misconduct of such motor carrier, its servants or agents, in not less than the following amounts, to-wit:\\\" -(Here follows schedule of amounts based upon seating capacity of vehicle.)\\nWithout treating as competent against American Fidelity and Casualty Company the admission in the answer of its co-defendants, Townsend and Scenic Stages, Inc., that the latter, on May 1, 1931, was operating by authority of certificate No. 44 of Townsend (Cf. 22 C.J. 362, \\u00a7 405), if, indeed, it may be so construed, we think the evidence sustains the finding of the trial court upon this branch of the case. That theory, as above stated, was that Scenic Stages operated by virtue of the certificate held by Townsend and that such operation was acquiesced in by State Corporation Commission. If so, failure to have formal transfer of the certificate from Townsend to Scenic Stages was a mere omission or default on the part of Scenic Stages upon which the insurer -expressly bound itself by policy provision not to rely. This provision, taken from the standard mortgage clause of fire policies, already has been quoted. -.\\nThe trial court found Travers Stevens was the negligent driver of the Buick seven-passenger bus, found in Closson's garage, which struck and killed Venceslao Lopez.. Travers Stevens, the man who was driving the Buick bus, labeled \\\"Roswell-Moriarity-Santa Fe\\\", had been continuously-driving the car into the garage regularly for some- time previous to May 1, 1931. It is admitted that certificate of public convenience and necessity No. 44 was issued' .to Capitol Stages, Inc., a corporation, to-operate over highways between the cities-of Roswell and Santa Fe, New Mexico, and that said certificate was endorsed to-the defendant, Charles T. Townsend, and that on the same day said endorsement was approved by the State Corporation. Commission, Scenic Stages, Inc., was incorporated; that application theretofore)had been made to defendant, American Fidelity and Casualty Company, for a policy of insurance as required by L.1929, c. 129, insuring the defendant Scenic Stages, Inc., and/or Charles T. Townsend as common carriers, and that the insurance policy was issued under said application, its issuance being pursuant to the provisions of Section 5, Chapter 129, Laws of 1929.\\nNow this much is certain. The policy became effective to cover joint operations of the two assured named in the policy or the separate operations of either. The statute provides, to be sure, that the policy must be filed with the commission before a certificate is issued. 1929 Comp. \\u00a7 11-1005. But this policy cannot be catalogued as a mere incident to an abortive attempt to secure a certificate. If so, why the repeated endorsements withdrawing and extending coverage as to described cars ? And why the annual renewal on October 1, 1930? The operations of someone related themselves to a certificate which this policy was given to secure. Was that someone Townsend or Scenic Stages, Inc.? All defendants admit Townsend was not operating on May 1, 1931. Scenic Stages was operating on May 1, 1931 and had been operating for \\\"some time\\\" previous thereto a motor carrier passenger service between Roswell and Santa Fe with Travers Stevens who drove the seven passenger Buick sedan on the day in question as one of its regular drivers.\\nTownsend held a certificate covering and rendering lawful operations by him on a route from Roswell to Santa Fe. Scenic Stages was a corporation operating this route. The insurer defendant recognized some connection between Townsend and Scenic Stages in connection with such certificate and such operations because it issued and later renewed its policy insuring the operations of one and/or the other and such policy was in force at the time of the injury. The policy stipulated that cancellation notices, effective as to both assured, might be served on Scenic Stages alone. Whatever Townsend's connection with Scenic Stages, it was sufficiently intimate that his competency to testify in detail as to the nature of Travers Stevens' employment by it, the scope of his duties as driver of its stages, the termini of its route, the kind of schedule maintained and its arriving time in Santa Fe, was in no manner questioned.\\nIt was unlawful for Scenic Stages to operate over this line without the authority of a certificate of convenience and necessity. 1929 Comp. \\u00a7 11-1003. A severe penalty was imposed for doing so. Section 11-1039. Scenic Stages operated with or without the knowledge of the commission on May 1, 1931 and for a considerable time prior thereto. It was required to file with the commission on or before the 20th day of each month a report containing data respecting operations for the preceding month for purpose of calculating the tax imposed by the act. Sections 11-1007 and 11-1008. In view of these considerations it seems improbable that Scenic Stages could operate for any appreciable period without the knowledge of the Corporation Commission. So viewing the matter, the trial court concluded that the Commission related Scenic Stages' operations to the certificate held by its co-insured, Townsend, and found that the operations of Scenic Stages under the certificate held by Townsend were \\\" prior to the 1st day of May, 1931, duly recognized by the State Corporation Commission of New Mexico.\\\"\\nWhether the Commission was authorized in this fashion to validate operations without the formal issuance or transfer to Scenic Stages of said certificate, a power vigorously challenged by the insurer defendant, we need not determine. At least, it reflects that failure to have formal transfer or issuance of certificate to it was due to default of Scenic Stages in requesting same. It is thus brought within the express policy provision quoted supra whereby insurer agrees that the right of \\\"any person to recover hereunder shall not be affected by any act or omission of the assured with regard to any condition or requirement of said policy,\\\" etc.\\nThe defendant insurer places chief reliance on Interstate Casualty Co. v. Martin, Tex.Civ.App., 234 S.W. 710; Allen v. American Fidelity & Casualty Co., 5 Cir., 54 F.2d 207. See, also, Frohoff v. Casualty Reciprocal Exchange, Mo.App., 113 S.W.2d 1026. In none of these cases does the opinion disclose language in the policy providing that the right of any person to recover thereunder shall not be affected by any act or omission of the assured with regard to any condition or requirement of the policy.\\nThe plaintiff also assigns as cross-error the following, occurring while Sheriff Baca was on the stand, to-.wit: \\\"Judge Kiker: We offer to prove by Mr. Baca that at the time (he) had this talk with Stevens, Stevens told him that he was the driver of the bus of the Scenic Stages then in the Closson Garage, and that he told him that out on the Lamy highway he struck an object in the highway, and that at the time he was driving rapidly, at a speed of about 45 miles an hour.\\\"\\nThe trial court refused the tendered testimony. In view of the result reached, it obviously is unnecessary to consider this cross-assignment. Finding no error, the judgment under review will be affirmed.\\nIt is so ordered,\\nHUDSPETH, C. J., SADLER and BICKLEY, JJ., and IRWIN S. MOISE, District Judge, concur.\"}"
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+"{\"id\": \"1569758\", \"name\": \"VAN SICKLE v. KECK et al.\", \"name_abbreviation\": \"Van Sickle v. Keck\", \"decision_date\": \"1938-07-15\", \"docket_number\": \"No. 4359\", \"first_page\": \"450\", \"last_page\": 470, \"citations\": \"42 N.M. 450\", \"volume\": \"42\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:59:40.223587+00:00\", \"provenance\": \"CAP\", \"judges\": \"BICKLEY, SADLER, and ZINN, JJ., concur.\", \"parties\": \"VAN SICKLE v. KECK et al.\", \"head_matter\": \"81 P.2d 707\\nVAN SICKLE v. KECK et al.\\nNo. 4359.\\nSupreme Court of New Mexico.\\nJuly 15, 1938.\\nJ. B. Newell and Edwin Mechem, both of Las Cruces, for appellant.\\nE. E. Young, of Roswell, for appellees.\", \"word_count\": \"9100\", \"char_count\": \"52088\", \"text\": \"BRICE, Justice.\\nThe appellant sued the appellees for an interest in, and to impress an equitable lien against, certain real estate situated in Lincoln County, New Mexico.\\nThe appellant will be styled plaintiff; the defendant Keck, defendant, and the other defendants styled defendant Woolard and defendant Franklin, respectively.\\nPlaintiff alleged in substance that in 1931 he entered into an oral agreement with the defendant and his wife, by the terms of which he was to furnish labor, material and money, sufficient to build a house for defendant on certain lots described; in consideration for which the defendant and wife agreed to board him for life, and upon his death provide for him a suitable burial. That pursuant to this contract the plaintiff did furnish the labor and material with which to build the house in question, of the value of $3550.41.\\nThat plaintiff boarded with defendant and wife until the latter's wife died, which occurred in the latter part of September, 1935; after which defendant failed and refused to longer carry out the contract. That the board furnished plaintiff was of the value of $1607, and that the balance due .him was $1943.41; being the difference between the said sum of $1607 and the amount furnished by plaintiff for the purpose stated. It was alleged that the defendant has no other property subject to execution and that plaintiff has no adequate remedy at law.\\nThe tenth paragraph of the complaint is as follows: \\\"That by reason of the premises above stated this plaintiff is entitled to an interest in said property in the sum of $1,943.41; or such sum as the Court may find remains after allowing a reasonable sum for board during the period of time that plaintiff boarded with the said Kecks.\\\"\\nThe prayer is \\\"That plaintiff's interest in and to said property 'be ascertained and adjudicated and a lien established against the same.\\\"\\nThere were certain transfers of the property in suit in which defendants Keck, Woolard and Franklin were parties, which it is alleged were fraudulent, and for the cancellation of which, the plaintiff prayed.\\nAt the close of appellant's testimony appellees moved for dismissal. 'The motion was sustained and judgment entered dismissing appellant's bill. From the judgment of dismissal this appeal was prosecuted.\\nThe motion to dismiss called for a declaration of law, the effect of which is: considering plaintiff's testimony only, and in a light most favorable to him, together with all reasonable inferences that can be deduced therefrom, has he proved a case that will support a decree? Considering the evidence under this rule we find the following facts:\\nThe plaintiff was a carpenter and builder, and went to Ruidoso in Lincoln County about 1926. The defendant moved there in April, 1929-, Plaintiff boarded with de: fendant for some time and they became friends. Plaintiff advanced money to the defendant with which to buy a lot, and on this lot plaintiff built for the defendant a house for residential and business purposes, at a total cost to plaintiff of $3564.811 After the house was built, an agreement between the two was entered into whereby in consideration of the money so advanced by plaintiff, the defendant agreed to board plaintiff for the remainder of his life and give him a decent burial at his death. In pursuance of this agreement, plaintiff boarded with defendant and his wife until the latter's death on the 13th day of Sep: tember, 1935, a period of 1628 days, the value of which was $1628. The defendant thereafter was unable to carry out his agreement further.\\nThe plaintiff assumes the measure of damages to be the difference between the value of the board furnished and the original debt, or $1943.41. This seems not to have been contested.\\nOn' the day after this suit- was brought defendant conveyed the property in question to the defendant Franklin, and a short time thereafter Franklin conveyed it to defendant Woolard. The defendants Franklin and Woolard knew of the pendency and purpose of this suit at the time of these transfers; and the evidence would warrant the inference that the two transfers were made with the intent and purpose of defrauding the plaintiff out of the debt which it was agreed was due him, and that the defendants Franklin and Woolard had full knowledge of that intent.\\nThe agreement for plaintiff's support and burial was apparently not thought of until after the house was completed. He'advanced funds to buy the lot and build the house, and when this was accomplished defendant owed the plaintiff $3564.81.\\n: As we understand plaintiff's argument, it is that he is entitled to an equitable lien against the real property in question, to secure him for the balance of the original debt, after deducting the value of his board for 1628 days at $1 per day; presumptively because he advanced the money to buy the lot. and to build the house thereon.\\nThere was no agreement in writing, or otherwise, that plaintiff should have a lien or mortgage on the property to secure his debt. An equitable lien in his favor did not arise from the fact that plaintiff furnished the money to buy the lot (Perry v. Neel, 126 Neb. 106, 252 N.W. 812) and erect the building thereon. Thorbahn v. Walker's Estate, 269 Mich. 586, 257 N. W. 892.\\nA court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another; but will leave the parties to the remedies, if any, that a court of law provides. Washington Market Co. v. District of Columbia, 172 U.S. 361, 19 S.Ct. 218, 43 L.Ed. 478; Spencer v. Williams, 113 W.Va. 687, 170 S.E. 179, 89 A.L.R. 1451; Perry v. Neel, supra; Thorbahn v. Walker's Estate, supra.\\nThe amount due plaintiff was computed by deducting from the original debt the value of board furnished the plaintiff for 1628 days at a value of $1 per day. The parties seem to have agreed to this measure of damages; and for the purposes of this suit we will assume the amount is correct. But the correct measure of damages is a sum of money which, invested in safe securities, would produce a monthly income sufficient to board plaintiff during his life (in this case $30 per month), leaving only enough at his death to decently bury him. Freeman v. Fogg, 82 Me. 408, 19 A. 907; Staiar's Adm'r v. Netter, 198 Ky. 788, 250 S.W. 89; Shover et al. v. Myrick, 4 Ind.App. 7, 30 N.E. 207; Baughan v. Baughan, 122 Ind. 115, 23 N.E. 695; Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367. In arriving at the amount of damages, recognized mortality tables may be introduced in evidence to be considered by the jury with other competent evidence to establish the probable length of plaintiff's life, as a basis for proving the time for which the defendant was paid to furnish board to plaintiff. Staiar's Adm'r v. Netter, supra; Morrison v. Atee, 23 Or. 530, 32 P. 400; Shover et al. v. Myrick, supra; Vicksburg & Meridian Ry. Co. v. Putnam, 118 U.S. 545, 7 S.Ct. 1, 30 L.Ed. 257.\\nPlaintiff cites cases in which deeds to land, given by aged persons in consideration of support for the remainder of the grantor's life, had been cancelled, or in which equitable liens had been impressed on such lands where the contracts had been breached. Contracts by which aged persons transfer all, or the major portion of their property in consideration of an agreement on the part of the grantee to support the grantor during the remainder of his life, are in a class by themselves, and are governed by different rules, or at least by different presumptions, than those governing other like contracts. Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862.\\nBut this is not a case of that class. It was not alleged or proved that plaintiff was an aged person; or that the consideration paid was any considerable portion of his property; or that he was induced by false promises to enter into the contract; or that defendant was guilty of any fraud in connection with the making or execution of the contract; or that any fiduciary relation existed between the parties. On the contrary it appears that the defendant and the plaintiff were not related; that plaintiff himself proposed to furnish the money to buy the lot and build the house; that after it was built he proposed to cancel defendant's obligation to him if defendant would board him and give him a suitable burial at his death; inferentially, that plaintiff knew defendant and his wife were without means; that defendant did not carry out the contract because of his physical, mental and financial condition, and for no other reason. Plaintiff lived in his own house and defendant's obligation was limited to furnishing to him his meals. He is a.carpenter and builder. He owns a hardware store and the house it occupies, and several cottages in Ruidoso which he rents. Apparently he is a man of considerable means and income. He offered to give the debt sued on to Mrs. Keck's nieces if defendant would sell the property and pay them the amount of the debt from the proceeds of such sale. He was not entitled to the personal care and attention contemplated by contracts like that construed in Anderson v. Reed, supra, in which we said (page 505) : \\\"But the courts of this country, with but few exceptions, treat contracts by a grantee to furnish a home for and support to a grantor, when constituting the consideration for a conveyance by the grantor of the whole or major portion of his property, as being in a class by themselves, which are not governed by the ordinary rules which apply in the construction of contracts. The value of the services, care, and attention contracted for cannot be measured in money. In this case, while others might have administered to the necessities of the grantor; in caring for and nursing him, they could not give to him that which he understood he-was contracting for, viz., the care 'and nursing by one upon whom, if the witnesses are to be believed, he bestowed his love and affection and believed that he was receiving in return, and would continue to receive, daily evidences of similar devotion and affection, the loss of which, and her ministrations to his wants, could not be supplied by others, or its loss measured in money, as stated. 'Such a consideration as the above is not regarded as an ordinary obligation, but is' of a peculiar character, imposing upon the grantee burdens which must be performed, if he would retain the benefits of the contract. Courts of equity, because \\\"of the inadequacy of any legal remedy, do 'not hesitate to set aside such contracts, up-<3n proof of failure to perform by the grantee. Such courts are not so much concerned as to the proper theory upon which such contracts may be avoided, as they are that they, must be set aside in order to prevent grave injustice and the imposition upon aged people, by unscrupulous persons, who pretend love, devotion, and friendship, yvhere no one of such elements exists. Cancellation is the only adequate remedy applicable to such a case, where there is a refusal or intentional failure to perform. This being true, it is only natural that we should find the courts at variance, upon the proper equitable ground upon which such cancellation should be predicated.\\\"\\nThe application of the rule of law invoked by plaintiff was made in Anderson v. Reed, supra, and in the following cases which illustrate it:\\n\\\"Such contracts have come to be looked upon as almost if not quite presumptively improvident in their inception, and in that view courts of equity have gone to great lengths to remedy the mischief by reading out of them a condition, where a covenant only is expressed, upon which may be founded, on principle, a right of rescission where justice requires it for t;he protection of the weak, the exercise of which will undo the mischief ab initio and restore the parties, substantially, to their original situation.\\n\\\"In this case it seems that the hope and expectation of filial regard was the moving cause on the part of respondent in transferring his property to his son. The contract reposed in appellant a trust of the most important character\\u2014that of caring for the daily wants of an aged parent in health and sickness to the end of his life, \\u2014a trust which only the trustee, under proper conditions, could properly exercise \\u2014one that never ought to be delegated, never can be properly delegated to another not in the same relation.\\\" Glocke v. Glocke, 113 Wis. 303, 89 N.W. 118, 121, 57 L.R.A. 458.\\n\\\"This court has by a long line of adjudications settled the rule that for such breach of conditions a court of equity will, upon proper pleadings, set aside such conveyance and agreement, and do equity between the parties, especially in favor of an aged woman in the condition of the plaintiff at the time of the execution of the papers in question. The principles upon which the rule is based are exhaustively considered in the cases cited, and need no repetition. It is enough to say that they go upon the theory that property thus conveyed shall remain intact for the security of the conditions thus annexed to. the grant.\\\" Morgan v. Loomis, 78 Wis. 594, 48 N.W. 109, 111.\\n\\\"The facts alleged are not sufficient to constitute a cause of action for specific performance, for the reason that the consideration which appellant agreed to pay on his part included intimate personal services of himself and his wife, expressed by the stipulation that they should 'make a home for the appellee, board and care for him.' It is obvious that the court would have no means of compelling the appellant and his wife during the remainder of appellee's life to perform all those intimate services due from a son and daughter-in-law which are implied by the undertaking to make a home for the father and to care for him; and a court will not compel one party to perform when performance by the other cannot also be enforced.\\\" Hoppes v. Hoppes, 190 Ind. 166, 129 N.E. 629, 630.\\n\\\" There is in such transactions an element of confidence reposed by the old people in their 'grantee, sacred in its nature, a breach of which, and retention of the benefits, no court should tolerate by a refinement upon technical rules and principles of law. By the modern trend of authority these transactions are placed in 'a class by themselves, and enforced without reference to the 'form or phraseology of the writing by which they are expressed, dr whether by the strict letter of the law a forfeiture of the estate is expressly provided for. The Wisconsin Supreme Court recently has taken a broad view of such contracts, and laid down a rule which commends itself as fair and equitable, and results in effectuating the intention of the parties to the transaction. The agreement of support, whatever its form, is construed by that court as a condition subsequent, and not a mere covenant.\\\" Bruer v. Bruer et al., 109 Minn. 260, 123 N.W. 813, 814, 28 L.R.A.,N.S., 608.\\nAlso, see Berry v. Heiser, 271 Ill. 264, 111 N.E. 99; Stephens et al. v. Daly, 49 App.D.C. 389, 266 F. 1009; Roudebush v. Gannon et al., 92 Wash. 508, 159 P. 680; Cooper v. Gum, 152 Ill. 471, 39 N.E. 267; Chadwick v. Chadwick, 59 Mich. 87, 26 N.W. 288; Tysor v. Adams, 116 Va. 239, 81 S.E. 76, 51 L.R.A.,N.S., 1197; Gall v. Gall, 126 Wis. 390, 105 N.W. 953, 5 L.R.A.,N.S., 603; McClelland v. McClelland, 176 Ill. 83, 51 N. E. 559; Mooney v. Mooney, 208 Ala. 287, 94 So. 131; Lowman v. Crawford, 99 Va. 688, 40 S.E. 17; Fabrice et al. v. Von der Brelie, 190 Ill. 460, 60 N.E. 835; Knutson v. Bostrak, 99 Wis. 469, 75 N.W. 156; Ptacek et ux v. Pisa et al., 231 Ill. 522, 83 N.E. 221, 14 L.R.A.,N.S., 537; White, Executor, v. Bailey, 65 W.Va. 573, 64 S.E. 1019, 23 L.R.A.,N.S., 232; O'Ferrall v. O' Ferrall et al., 276 Ill. 132, 114 N.E. 561; Payette v. Ferrier et al., 20 Wash. 479, 55 P. 629; Leary v. Corvin et al., 181 N.Y. 222, 73 N.E. 984, 106 Am.St.Rep. 542, 2 Ann.Cas. 664; Lane et al. v. Lane, 106 Ky. 530, 50 S.W. 857; Schell v. Plumb et al., 55 N.Y. 592; Grant v. Bell et ux., 26 R.I. 288, 58 A. 951; Sherrin et al. v. Flinn, 155 Ind. 422, 58 N.E. 549; Thorbahn v. Walker's Estate, supra; Washington Market Co. v. District of Columbia, supra; Spencer v. Williams, supra, Perry v. Neel, supra.\\nThe case is no different than if plaintiff had paid $3500 in cash for the promise. He parted with his debt as he would have with the money in the supposed case. He never owned any interest in the land in question nor did he convey any to defendant; and the parties had no agreement by the terms of which defendant is entitled to an equitable lien thereon.\\nAssuming that plaintiff was, at the time of the agreement, entitled to (and could have obtained) a statutory lien against the property in question to secure his debt; and assuming that, in a proper case, this court would lay hold upon this fact as a ground (or excuse) for impressing an equitable lien to secure the amount due an aged person coming within the class entitled to relief, upon the theory of a right to rescis* sion; could we do so in this case, in which none of the reasons for the rule exist, and in which no such issue was made by the pleadings or proof? The sole and only ground proved or claimed (the allegations did not conform to the proof in some respects) for granting to plaintiff this extraordinary relief, is the fact that at his solicitation defendant accepted his offer to cancel a debt in consideration of an agreement to board him for life, etc., which, after a number of years, was breached by defendant because of inability to perform further. These facts are not grounds for such relief.\\nIt is claimed that if plaintiff was not entitled to a lien, yet the court should have entered judgment for the amount of damages to which the parties had agreed that the plaintiff was entitled, upon the theory that as equity had obtained jurisdiction of the parties and the subject matter of the action it could adapt the relief to the facts and enter a proper judgment in order to prevent a failure of justice. The rule under the code system is: \\\"Thus it may be regarded as a settled rule, resulting from the statutory provision in question, that if a plaintiff has set forth facts constituting a ca.use of action, and entitling him to some relief, either legal or equitable, his action shall not be dismissed because he has misconceived the nature of his remedial right, and has asked for a legal remedy when it should have been equitable, or an equitable remedy when it should have been legal. A suit does not now fail because the plaintiff has erred as to the form or kind or extent of the remedy he demands. A party .cannot be sent out of court merely because the facts alleged do not entitle him to relief in equity, if the case which he states shows him entitled to any relief, either legal or equitable, his com plaint is not to be dismissed because he has prayed for a judgment that is not embraced by the facts. \\\" Pomeroy's Code Remedies, Sec. 11.\\nBut it was plaintiff's theory in the district court that he was entitled to an equitable lien upon the property in question to secure his debt which represented an interest in the property, not to recover a judgment or foreclose such lien. No other question was presented to the district court by either party, and it cannot be raised for the first time in this court. Thomas et al. v. Johns, 35 N.M. 240, 294 P. 327.\\nIt is not the duty of the district court to grant relief not requested in some manner by plaintiff, and not within the theory upon which his case was tried. The court might rightfully conclude that plaintiff did not desire a judgment at law for the debt, even though the court was authorized to enter it.\\nAs we view the case, plaintiff's remedy was a suit for breach of contract. The fact that the contract is a continuing one does not prevent a determination of the damages as of the time of its breach. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953.\\nIf the parties have agreed upon the measure of damages as the evidence seems to indicate, their agreement is binding on this court. Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276.\\nThe plaintiff had a remedy by judgment at law and execution thereon, or by attachment, notwithstanding the alleged fraudulent transfer of the property, N.M. Sts.1929, Sec. 46-124 and Sec. 105-1601; or perhaps by creditor's bill, Huneke v. Dold, 7 N.M. 5, 32 P. 45; Early Times Distillery Co. v. Zeiger, 9 N.M. 31, 49 P. 723; or by judgment, execution and supplementary proceedings subsequent to execution. N.M. Sts.1929, Sec. 46-125. But he had no' interest in, or claim on, the real estate by reason of his. contract for support and its breach. ! \\u2022\\nAssuming that the facts alleged authorized a personal judgment against the defendant, or constituted a sufficient creditor's bill (Early Times Distillery Co. v. Zeiger, supra); yet it appears that the case was instituted and tried in the district court solely upon the theory that plaintiff had some interest in this property, represented by his claim against defendant, by reason of which he was entitled to have impressed against it an equitable lien.\\nParties cannot upon appeal change their contentions, shift their positions nor advance new and different theories from those made and advanced in the trial court. American Investment Co. v. Lyons, 29 N.M. 1, 218 P. 183; Smith v. Borradaile, 30 N.M. 62, 227 P. 602; Springer Ditch Co. v. Wright, 31 N.M. 457, 247 P. 270; Albuquerque Lbr. Co. v. Tomei, 32 N.M. 5, 250 P. 21.\\nThe decree of the district court is affirmed, reserving to plaintiff his right of action at law, or by creditor's bill if he so elects.\\nIt is so ordered.\\nBICKLEY, SADLER, and ZINN, JJ., concur.\"}"
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+"{\"id\": \"1571030\", \"name\": \"Gloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees\", \"name_abbreviation\": \"Patterson v. Van Wiel\", \"decision_date\": \"1977-08-30\", \"docket_number\": \"No. 2805\", \"first_page\": \"100\", \"last_page\": 107, \"citations\": \"91 N.M. 100\", \"volume\": \"91\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:45:02.873560+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOPEZ, J., and REUBEN E. NIEVES, District Judge, concur.\", \"parties\": \"Gloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees.\", \"head_matter\": \"570 P.2d 931\\nGloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees.\\nNo. 2805.\\nCourt of Appeals of New Mexico.\\nAug. 30, 1977.\\nJ. Jerome Maxwell, Albuquerque, for plaintiffs-appellants.\\nRanne B. Miller, Keleher & Mcleod, Albuquerque, for Larry J. Van Wiel, M.D. & Albuq. Anesthesia Serv.\\nEric D. Lanphere, Johnson, Paulantis & Lanphere, Albuquerque, for Presbyterian Hospital Center.\", \"word_count\": \"3591\", \"char_count\": \"21557\", \"text\": \"OPINION\\nSUTIN, Judge\\nPlaintiffs sued Dr. Larry J. Van Wiel, an anesthesiologist, and Albuquerque Anesthesia Service, Ltd., his employer, for medical malpractice in administering an epidural anesthetic to plaintiff Gloria Sue Patterson (Gloria). Plaintiffs also sued Presbyterian Hospital Center, Inc. (Presbyterian) for negligent failure to furnish and have available necessary emergency equipment for injuries suffered following the anesthetic given by Van Wiel. Defendants were awarded summary judgment and plaintiffs appeal. We affirm.\\nA.General Facts of Case\\nOn January 6, 1973, Gloria entered Presbyterian for the delivery of her child. Her physician was Dr. Stephen Michael Kranz, an obstetrician and gynecologist. Induction of labor was not successful on the first day, and on the following day, January 7, induction was restarted. During the evening of January 7, her contractions became regularized and she went into \\\"good\\\" labor. At 12:15 a.m., January 8, Dr. Kranz made a request for an epidural or caudal anesthetic.\\nThe nurse on duty in the labor room advised Van Wiel that Dr. Kranz wanted an anesthetic administered. Van Wiel came into the labor room and gave Gloria a lumbar epidural anesthetic. She suffered a respiratory arrest which went into a cardiac arrest for less than a minute. Resuscitation was immediately undertaken and the baby was born.\\nB. Issues on Appeal\\n(1) Did Van Wiel obtain the informed consent of Gloria for the giving of the anesthetic?\\n(2) Was emergency equipment immediately available?\\nC. Law on Summary Judgment\\nIt requires no citation of authority of the law on summary judgment. First, defendants must make a prima facie showing that no genuine issue of material fact existed on the subject of informed consent given by Gloria to Van Wiel to administer the anesthetic, and that Presbyterian had emergency equipment available immediately after the anesthetic was given Gloria. Second, when this prima facie showing has been made, the burden shifts to the plaintiff to show that there is additional proof to the contrary which creates a genuine issue of material fact. If plaintiff fails to carry the burden, defendants are entitled to summary judgment as a matter of law.\\nD. Gloria gave Van Wiel consent to administer the anesthetic\\nVan Wiel established the following uncontroverted facts:\\nWhen he came into the labor room, he identified himself, and told her that he had been notified that she would like to have an epidural. He said something to the effect that, \\\"I understand you're ready for an anesthetic,\\\" or, \\\"Would you like to have one now?\\\" She told him that he could give her an epidural, and he told her how it would be done, that she would be put on her side, put a \\\"local\\\" in her back, put the needle in and inject the medicine and expect that she would become numb from the waist down. He also told her that with any kind of anesthetic there is some kind of risk involved; that the risk of serious complications was about one to one thousand. He asked if she had any questions, and she did not have any. \\\"She was in much discomfort at that time; she was anxious to re ceive an anesthetic.\\\" She understood the nature of his questions and there was no impairment to her ability to consent to the anesthetic.\\nThis constituted a prima facie showing that Gloria expressly consented to the anesthetic. Consent may be oral or written. Van Wiel gave a full and frank disclosure to Gloria of all pertinent facts relative to the anesthetic. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973) (Sutin, J., specially concurring), rev'd on other grounds, 86 N.M. 141, 520 P.2d 869 (1974), rev'd, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974).\\nThere is no evidence nor any fact in the record that Gloria, by language, act or conduct, refused to consent to the anesthetic given by Van Wiel. She had no memory of the presence of Van Wiel or the anesthetic shot in her back. She could not recall Van Wiel telling her anything about anesthetics. There is no evidence that Gloria suffered any brain damage nor any evidence that Van Wiel's treatment caused any impairment of memory. She was examined by a neurosurgeon and a psychiatrist, but the record is silent on their opinions. To fulfill the burden imposed on plaintiff, they had a duty to seek the opinion of an expert to determine why Gloria could not remember or recall this serious and exciting event in her life. If they did perform this duty, the results were adverse. If they did not, Gloria's lack of memory is synonymous with silence. Silence cannot defeat Van Wiel's motion for summary judgment. Baca v. Britt, 73 N.M. 1, 385 P.2d 61 (1963).\\nUpon her entrance into the hospital on January 6th, an employee of Presbyterian asked her to sign a form consenting to her being given an anesthetic. She told this employee that she had not discussed the matter with her doctor and she would not sign the consent form. She did not want an anesthetic. Dr. Kranz never discussed anesthetics with her in the hospital. Dr. Kranz is not a party to this action. Dr. Kranz may have negligently failed to advise Gloria of the need for or risk of receiving an anesthetic. Assuming arguendo Dr. Kranz' negligence or breach of duty, we cannot impute any liability to Van Wiel. No theory of imputation was pleaded by plaintiffs, suggested during trial, nor raised on appeal. Gloria could remember all the facts before and after the anesthetic was given, but for reasons which cannot be explained, she did not tell Van Wiel that she did not want an anesthetic. The law does not provide a way that we can use athletically to jump over uncontroverted facts and land on a refusal to consent.\\nE. Van Wiel and Presbyterian were not negligent as a matter of law\\nPlaintiffs' argument consists of a recitation of the facts. Van Wiel and Presbyterian meander through the facts and plaintiffs conclude that this case should be presented to the jury with instructions that they consider non-expert testimony and surrounding circumstances in conjunction with expert testimony in determining the question of negligence. No authority has been cited on those guidelines which affect the liability of doctors and hospitals on the availability of emergency equipment.\\nVan Wiel and Presbyterian established the following facts:\\nShortly after the anesthesia was administered, the patient started to show signs of difficulty in breathing and there was a drop in blood pressure. Gloria became somewhat cyanotic \\u2014 a bluish or purplish discoloration of the skin due to a deficient oxygenation of the blood. For less than a minute she may have had a cardiac arrest. In response to the drop in blood pressure, Van Wiel had the drug ephedrine administered through an intravenous device set up and placed in operation prior to administering the anesthesia. To assist her in breathing, initially, he used an oxygen mask and then an \\\"ambu-bag.\\\" An \\\"ambu-bag\\\" is a balloon-shaped face mask that, when squeezed, facilitates the patient's breathing or it \\\"breathes for\\\" the patient. An expert on anesthesiology testified by affidavit as follows:\\nEmergency Treatment\\nA. I am familiar with and have personal knowledge of the emergency equipment available in and to the labor rooms at Presbyterian Hospital on January, 1973. The equipment included devices installed in each labor room to permit administration of oxygen; the anesthesia supply cart in the room during the administration of a lumbar epidural anesthesia contained drugs such as ephedrine that could be given intravenously in case of emergency; and an ambu-bag was located a few feet from each labor room. Additional equipment and drugs for use during emergencies were located in the delivery room (a surgical suite) only a few feet from the labor room in which Mrs. Patterson was treated.\\nB. Based upon my review of the materials herein it is my opinion that after Mrs. Patterson experienced a significant drop in blood pressure while in the labor room, Dr. Van Wiel and Dr. Kranz treated Mrs. Patterson in accordance with the accepted standard of care during 1973. Specifically, a medication, ephedrine, was administered in response to the drop in blood pressure. This is a drug that is used to treat a rapid drop in blood pressure and is maintained on the anesthesia cart for that specific purpose. It was given to Mrs. Patterson through the intervenous [sic] device that had been set up and placed in operation prior to the administration of anesthesia. In addition to the giving of ephedrine, Mrs. Patterson also received oxygen from the equipment located in the labor room.\\nC. During the period of time Mrs. Patterson was receiving emergency treatment in the labor room, her vital signs were being monitored by Dr. Van Wiel. As soon as he noted that her respiration was impaired, he requested from the nurse and received an ambu-bag which he used to ventilate (breath for) the patient after she could no longer do this on her own. The patient was transferred to the delivery room, at which time an endotracheal tube was placed, the tube was connected to a ventilating machine and the patient was mechanically ventilated thereafter until her own ability to ventilate was restored. Additional medications were administered in a timely fashion after the patient was transferred to the delivery room.\\nD. As indicated above, I reviewed the records with regard to the emergency treatment by Dr. Van Wiel and Dr. Kranz and it is my opinion that the drugs and medications prescribed and administered in response to the emergency that then existed and the transfer of the patient to the delivery room for mechanical ventilation, were in full accord with the existing procedures for treatment of such emergencies in January, 1973. It is further my opinion that the rapid response of Dr. Van Wiel and Dr. Kranz to the condition that presented itself following the administration of the primary dose of anesthesia and the superior care rendered to the patient at that time was instrumental in saving the patient's life and the life of the yet undelivered baby.\\nE. It is my opinion that in treating Mrs. Patterson for the complication following the administration of anesthetic in January 1973, Dr. Van Wiel and Dr. Kranz had at their disposal all the standard emergency equipment and supplies; utilized all emergency equipment and supplies in a superior manner, and followed the proper procedures in treating the patient in this emergency situation. It is my opinion that Mrs. Patterson did not sustain any injury as a result of not having any emergency equipment available or of not being treated properly under the circumstances. In his treatment of Mrs. Patterson for the complication occurring after the administration of anesthesia, it is my opinion that Dr. Van Wiel did possess and apply the knowledge and used the skill and care which would be used by reasonably well-qualified anesthesiologists practicing under similar circumstances in Albuquerque, New Mexico in January of 1973.\\n(1) Van Wiel was not negligent\\nVan Wiel established that there was no genuine issue of material fact on the availability and utilization of emergency equipment.\\nPlaintiffs' facts differ from the above in these respects: (1) When Gloria had her first difficulty breathing, it was necessary for the nurse to leave the labor room, go down to a desk down the hall to obtain the oxygen mask. She could not estimate the amount of time involved even though she said it would not take more than a minute, if it would even take that to get the mask. (2) There was no emergency equipment in the labor room. It was all over the obstetric department. (3) The \\\"ambu-bag\\\" was not in the labor room. It was in the recovery room. The nurse did not know exactly where the \\\"ambu-bag\\\" was. She went to the desk to look for it, and requested another nurse to look for it in the recovery room. The other nurse located the \\\"ambu-bag\\\" and it was taken to the labor room. At this time, Drs. Kranz and Van Wiel were moving the bed out of the labor room to the delivery room. (4) There is a conflict in the testimony as to the people who were present and as to the sequence of events.\\nWe have carefully scrutinized the testimony, the facts and reasonable inferences to be drawn therefrom upon which plaintiffs rely. None of it establishes a genuine issue of material fact whether Van Wiel failed to exercise that degree of care that an anesthesiologist would use under the same or similar circumstances that Van Wiel exercised in the care of Gloria with the emergency equipment available. There was no evidence that Van Wiel had any knowledge that Gloria had experienced any difficulty in taking anesthesia. Graddy v. New York Medical College, 19 A.D.2d 426, 243 N.Y.S.2d 940 (1963), motion to dismiss appeal denied upon condition, 13 N.Y.2d 1175, 248 N.Y.S.2d 54, 197 N.E.2d 541 (1964); see, Matlick v. Long Island Jewish Hospital, 25 A.D.2d 538, 267 N.Y.S.2d 631 (1966). Plaintiff would have to produce some evidence that an anesthesiologist would not have given the anesthesia without an oxygen mask or \\\"ambu-bag\\\" in the labor room. There was one out of a thousand chances that this emergency would have arisen.\\nIt is claimed that the expert testimony provided by defendants took over the function of the jury. We disagree. The function of the jury begins when a conflict of the evidence arises over the material facts in a case. This conflict could not arise without the testimony of an expert as to the conduct of Van Wiel during the emergency. We know of no other legal method provided by law to establish a conflict. Plaintiffs contend that the negligence of a doctor can be demonstrated by facts which can be evaluated by resort to common knowledge. Mascarenas v. Gonzales, 83 N.M. 749, 497 P.2d 751 (Ct.App.1972). This is true. But plaintiffs did not define what is meant by \\\"common knowledge.\\\"\\nEnglish v. Miller, 43 S.W.2d 642, 644 (Tex.Civ.App.1931) says:\\nCommon knowledge as a rule of evidence is universally applied by the courts to the operation and effect of natural forces and to such scientific and mechanical facts and principles as are of such universal notoriety that they may be regarded as a part of the common knowledge of all persons.\\nShelley v. Chilton's Adm'r, 236 Ky. 221, 32 S.W.2d 974, 977 (1930) says:\\nCommon knowledge includes matters of learning, experience, history, and facts of which judicial notice may be taken.\\nSee also, Strain v. Isaacs, 59 Ohio App. 495, 13 Ohio Op. 258, 18 N.E.2d 816 (1938); Roden v. Connecticut Co., 113 Conn. 408, 155 A. 721 (1931).\\nFor examples, it is a matter of common knowledge that people smoke and light matches around motor vehicles, Stephens v. Dulaney, 76 N.M. 181, 413 P.2d 217 (1966); that snow one-fourth of an inch thick or one or two inches in depth is slippery and could cause a fall is common knowledge, Carter v. Davis, 74 N.M. 443, 394 P.2d 594 (1964), overruled on other grounds, Proctor v. Waxler, 84 N.M. 361, 503 P.2d 644 (1972).\\nHowever, \\\"[mjatters of common knowledge are not limited to those matters of which practically everyone has knowledge. In a complex society such as ours there are in many fields of activity matters which are within the knowledge of all those who are associated with the activity of which the general public knows little or nothing.\\\" Ritholz v. Johnson, 244 Wis. 494, 12 N.W.2d 738, 741 (1944).\\nWe cannot conclude that the conduct of an anesthesiologist exercising the function of caring for a patient during an emergency is a matter of common knowledge. Members of an average jury would know little or nothing about this activity, including the question of whether emergency equipment must be available in a labor room of a hospital when an anesthetic is given to a patient delivering a child. Expert testimony is essential to guide the jury.\\nGranted that it would be difficult, if not impossible to find an anesthesiologist in Albuquerque, or in New Mexico, to support plaintiffs' claim of negligence, inquiry nationally among competent members of this profession could assist the plaintiff to determine whether Van Wiel was negligent. The affidavit of one anesthesiologist that Van Wiel was negligent would bar summary judgment. Having failed in this regard, Van Wiel was not negligent as a matter of law.\\n(2) Presbyterian was not negligent\\nThe facts applicable to Van Wiel are applicable to Presbyterian. There is a standard of care which hospitals must follow. On this subject, we received no assistance from the parties.\\nThe standard of care is a matter of first impression in New Mexico.\\nThroughout the United States, five different standards have been identified. According to Annot.: Locality Rule as Governing Hospital's Standard of Care to Patient And Expert's Competency to Testify Thereto, 36 A.L.R.3d 440-41 (1971), the measure of a hospital's duty of care to a patient is that degree of care and diligence used by hospitals generally in\\n(a) the community;\\n(b) similar communities;\\n(c) the locality or area;\\n(d) similar localities;\\n(e) the general or national standard.\\nSee, 41 C.J.S. Hospitals \\u00a7 8c(3) (1944); 40 Am.Jur.2d Hospitals and Asylums \\u00a7 26 (1968). The terms \\\"community,\\\" \\\"locality\\\" and \\\"area\\\" are interchangeable. These categories may be reduced to three standards: (a)the \\\"community,\\\" (b) \\\"similar communities,\\\" and (c) the \\\"general or national standard.\\\"\\nA review of the cases shows:\\n(a) The \\\"community\\\" rule is slowly losing its validity as a part of the standard because many communities have only one hospital. To adhere to this rule means that a hospital whose conduct is attacked will be measured only by standards which it has set for itself. A hospital could establish a negligent standard of care and avoid liability by pointing to its own conduct as the standard by which its negligence should be tested. Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970), 36 A.L.R.3d 425 (1971); Faris v. Doctor's Hospital, Inc., 18 Ariz.App. 264, 501 P.2d 440 (1972); Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 (1974); Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A.2d 502 (1962).\\n(b) These authorities adopt the \\\"similar communities\\\" standard, that is competent to show the standards and practices generally in hospitals, not only in the community itself, but in similar communities under like circumstances.\\n(c) The general or national standard is an innovation in the law. This standard omits the \\\"locality\\\" rule. It means \\\"that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances.\\\" Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187, 349 A.2d 245, 254 (1975). This concept is based upon the fact that hospitals are subject to a rigorous regulatory scheme of the state, and they are nationally accredited under the Joint Commission on Hospital Accreditation.\\nPrivate hospitals in New Mexico are not regulated by statute. We have no knowledge whether they are nationally accredited. We conclude that the \\\"similar communities\\\" standard has emerged as a fair standard and should be adopted at this time.\\nIn New Mexico, a hospital is required to use that degree of care,, skill and knowledge which is expected of a reasonably competent hospital in the community or in similar communities under the same or similar circumstances.\\nUnder this standard, an admissible evidentiary showing is two-fold: (1) If the standard used is that of a comparable hospital in a similar community, a foundation must be laid that the community is similar and the hospital operates under the same or similar circumstances, and (2) upon such a showing, an expert familiar with that similar community standard is ordinarily necessary to explain the standard applicable to a reasonably competent hospital.\\nHiatt v. Groce, supra, says:\\nExpert medical testimony is ordinarily required to establish negligence on the part of either a physician or a hospital in their care and treatment of a patient, unless the medical procedures employed are so patently bad that negligence or lack of skill is manifest to a lay observer or other acts complained of could be regarded as negligent by applying the common knowledge and experience of mankind. [523 P.2d at 324.]\\nFaris v. Doctor's Hospital, Inc., supra.\\nUnder this rule, an expert medical witness is competent to testify, even though he does not practice in the community, if he has acquired knowledge of the degree of care and skill used by hospitals generally in the community. Barnes v. St. Francis Hosp. & School of Nursing, Inc., 211 Kan. 315, 507 P.2d 288 (1973).\\nIn the instant case, expert medical testimony was necessary. Savage v. Christian Hospital Northwest, 543 F.2d 44 (8th Cir. 1976); Washington Hospital Center v. Butler, 127 U.S.App.D.C. 379, 384 F.2d 331 (1967). None was presented by plaintiff. Presbyterian was not negligent as a matter of law.\\nAffirmed.\\nIT IS SO ORDERED.\\nLOPEZ, J., and REUBEN E. NIEVES, District Judge, concur.\"}"
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+"{\"id\": \"1571154\", \"name\": \"STATE of New Mexico, Petitioner-Appellant, v. John DOE, a child, Respondent-Appellee\", \"name_abbreviation\": \"State v. Doe\", \"decision_date\": \"1977-10-25\", \"docket_number\": \"No. 3196\", \"first_page\": \"158\", \"last_page\": 159, \"citations\": \"91 N.M. 158\", \"volume\": \"91\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:45:02.873560+00:00\", \"provenance\": \"CAP\", \"judges\": \"HERNANDEZ and LOPEZ, JJ., concur.\", \"parties\": \"STATE of New Mexico, Petitioner-Appellant, v. John DOE, a child, Respondent-Appellee.\", \"head_matter\": \"571 P.2d 425\\nSTATE of New Mexico, Petitioner-Appellant, v. John DOE, a child, Respondent-Appellee.\\nNo. 3196.\\nCourt of Appeals of New Mexico.\\nOct. 25, 1977.\\nToney Anaya, Atty. Gen., Roderick A. Dorr, Asst. Atty. Gen., Santa Fe, for petitioner-appellant.\\nLowell Stout, Hobbs, for respondent-appellee.\", \"word_count\": \"465\", \"char_count\": \"2890\", \"text\": \"OPINION\\nWOOD, Chief Judge.\\nThe Children's Court petition alleged the child had committed embezzlement, was delinquent and in need of care or rehabilitation. The Children's Court dismissed the petition with prejudice. The State is attempting to appeal.\\nWe assigned this case to the limited calendar. The calendar assignment invited the parties \\\"to brief the question as to whether the State may appeal this case.\\\"\\nThe child responded by moving to dismiss because of the constitutional prohibition against double jeopardy. The child relies on Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Breed held that a juvenile was put in jeopardy at an adjudicatory hearing; that is, \\\"at a proceeding whose object is to determine whether he has committed acts that violate a criminal law\\\". Jeopardy attached when the Children's Court, as the trier of facts, began to hear evidence. Breed, supra.\\nThe Double Jeopardy Clause protects against a second trial for the same offense after acquittal. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).\\nThe State's response to the motion to dismiss is that appellate counsel has insufficient facts to determine whether the Double Jeopardy Clause applies to this case; the State asks that a ruling on the motion be delayed until the transcript is filed in this Court.\\nThe docketing statement asserts that the dismissal came after an evidentiary hearing at which the child's confession was excluded. After the confession was excluded, the State tendered further evidence. After this tender, the petition was dismissed. The State does not contest the accuracy of these representations in the docketing statement. The record shows this case was set for trial on the merits. The Children's Court order states: \\\"The evidence adduced by the State was legally inadmissable to establish that the respondent committed a delinquent act and/or that the respondent is in need of supervision or rehabilitation.\\\"\\nThe only showing, undisputed, is that the petition was dismissed after a trial on the merits at which the State's evidence was held to be insufficient. This case does not involve dismissal on the basis of a pretrial motion. See Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed. 265 (1975). The dismissal after hearing evidence on the merits of the charge, and the ruling that the State's evidence was insufficient, was an acquittal.\\nFurther proceedings against the child by the State are barred by the Double Jeopardy Clause.\\nThe appeal is dismissed.\\nIT IS SO ORDERED.\\nHERNANDEZ and LOPEZ, JJ., concur.\"}"
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+"{\"id\": \"1573105\", \"name\": \"Mary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees\", \"name_abbreviation\": \"Silva v. City of Albuquerque\", \"decision_date\": \"1980-04-01\", \"docket_number\": \"No. 4231\", \"first_page\": \"332\", \"last_page\": 335, \"citations\": \"94 N.M. 332\", \"volume\": \"94\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:25:35.919134+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOPEZ and ANDREWS, JJ., concur.\", \"parties\": \"Mary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees.\", \"head_matter\": \"610 P.2d 219\\nMary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees.\\nNo. 4231.\\nCourt of Appeals of New Mexico.\\nApril 1, 1980.\\nStephen M. Simone, Farlow & Bradley, P. A., Albuquerque, for plaintiff-appellant.\\nRobert K. Patten, Asst. City Atty., Albuquerque, for City of Albuquerque.\\nJ. E. Casados, Gallagher, Casados & Martin, P. C., Albuquerque, for Albuquerque Police Dept., John Kraenzel and Francis Ford.\", \"word_count\": \"1696\", \"char_count\": \"10454\", \"text\": \"OPINION\\nWALTERS, Judge.\\nPlaintiff's decedent ran a red light within the City of Albuquerque. An officer who stopped in a police car at the intersection saw the violation and he proceeded after the deceased. When he caught up with him, he turned on his vehicle's red lights. Instead of slowing or stopping, plaintiff's decedent accelerated and tried to outrun the police car. Several miles later, decedent lost control of his vehicle, crashed into a tree and a house, and suffered fatal injuries. His personal representative appeals a summary judgment granted to the police officers, the police department, and the City of Albuquerque. We affirm.\\nAnalogizing the summary judgment in this case to the directed verdict entered in Strickland v. Roosevelt Co. Rural Elec. Coop., 19 N.M.St.B.Bull. 205, 94 N.M. 459, 612 P.2d 689 (Ct.App.), N.M., cert. granted, Feb. 26, 1980, plaintiff argues that the acts of negligence alleged against the officers, and vicariously against the City and the Police Department, should have been presented to the jury.\\nThe opinion in Strickland said:\\nLimited to contributory negligence cases [which appears to have been the basis for the entry of summary judgment in the instant case and for the directed verdict in Strickland], we hold that where a defendant leads a plaintiff to a place of danger in which plaintiff's lips are sealed by reason of death, and defendant is the sole eyewitness of decedent's conduct, defendant's testimony, though uncontradicted and undisputed, is not conclusive on the issue of decedent's contributory negligence; that the credibility of defendant's testimony, no matter how plausible is a question of fact for the jury. The trial court shall assume that decedent was in the exercise of ordinary care at the time of his death; that an issue of fact exists on the question of .his contributory negligence to avoid a directed verdict and get plaintiff to the jury. (Our emphasis.)\\nId. at 211.\\nStrickland, an opinion with which one judge of this court concurred in the result and another judge dissented, constitutes a \\\"judgment\\\" according to Art. VI, \\u00a7 28 of the New Mexico Constitution, and a \\\"decision\\\" under \\u00a7 34-5-11, N.M.S.A.1978. But it is not an opinion expressing the views of a majority of this court as now constituted; and, because one of the participating judges concurred only in the result reached, we may reasonably conclude that the rationale of the opinion does not even express the view of a majority of the panel which considered that case.\\nRegardless of its precedential value, however, the Strickland rule cannot be applied to summary judgment procedures. Unlike a motion for directed verdict, defendant does not admit negligence when he presents facts outside the pleading and argues for summary judgment on the theory that plaintiff was contributorily negligent as a matter of law. Thus, if the sole eyewitness version is not to be believed, unless there are physical facts which point unerringly to a true version of the incident, cf. Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951), or . cumstantial evidence from which a reasonable contrary inference may be drawn, see State v. Jones, 39 N.M. 395, 48 P.2d 403 (1935), then there remains no evidence from which a judge or jury could infer either plaintiff's or defendant's negligence. In such a case, plaintiff fails to make out a case against defendant, and summary judgment should be granted because no material issue of fact on defendant's negligence exists. See N.M.R.Civ.P. 56(c), 1978.\\nThat was the posture of this case when the trial judge granted summary judgment. The two pursuing police officers had given deposition testimony describing decedent's conduct and loss of control. Plaintiff has argued in this court that the police officers were negligent in continuing pursuit of the decedent when it became clear he was not going to stop; that the decedent should have been boxed in between police vehicles and forced to slow down; that the police should have used a public address system to talk to the fleeing driver, or that a traffic blockade should have been set up to compel decedent to stop. The police having failed to take any of the suggested actions, plaintiff says the chase should have been terminated, and if it had, the accident probably would not have occurred.\\nSomehow, appellant takes no note of the incongruity inherent in this argument, since it is firmly bottomed on the admission that decedent, throughout the pursuit by police, was refusing to stop or to obey the statute requiring him to stop. See \\u00a7 66-7-332, N.M.S.A.1978. Even if the police officers were required to undertake any of the other actions appellant urges (and we can imagine instances when injury to innocent third parties might occur because pursuit of a traffic offender had become dangerous to others), the availability of the options suggested in no way excuses decedent's own negligent and reckless conduct. An alternative which appellant has ignored in her argument is the simple and more expedient termination of the chase by decedent's obedience to the police officer's signals to stop.\\nConsequently, the trial court was faced with only two possible analyses of the accident: (1) that, believing the deposition testimony, decedent lost control at a high rate of speed as testified to by the officers, thus establishing decedent's contributory negligence; or (2) that, disregarding the depositions and absent any other evidence on the happening, decedent somehow suffered a one-car accident. Without some evidence before the court, neither a judge nor jury would be permitted to disbelieve the eyewitnesses and then speculate that the police car cut in and forced decedent off the road as appellant proposed during oral argument. Even if the police pursuit caused decedent to panic and lose control, another suggestion made in this appeal, how could decedent escape being held responsible for his own concurring negligence which proximately contributed to the accident?\\nSeveral courts have considered the question of the negligence of a driver who suffers an accident while intentionally attempting to outdistance an officer pursuing him, and without exception those courts have held the fleeing driver negligent as a matter of law. See, e. g., Rhea v. Green, 29 Colo.App. 19, 476 P.2d 760 (1970); MacDonald v. Hall, 244 A.2d 809 (Me.1968). In Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589, 590-91 (Ky.1952), where an injured third person sued police officers who were chasing. Shearer, the driver of the automobile which crashed into Ideal's vehicle, the court found the officer's conduct \\\"not the legal or proximate cause of the accident.\\\" It reasoned:\\nThe police were performing their duty when Shearer, in gross violation of his duty to obey the speed laws, crashed into the milk wagon. To argue that the officers' pursuit caused Shearer to speed may be factually true, but it does not follow that the officers are liable at law for the results of Shearer's negligent speed. Police cannot be made insurers of the conduct of the culprits they chase. (Our emphasis.)\\nThe same can be said in this case. If the officer's pursuit led decedent Gurule to speed, his conduct was nevertheless an unlawful response which violated both the speed laws and his statutory obligations to stop. One who violates a statute is negligent as a matter of law. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct.App.1969); N.M. U.J.I. (Civ.) 11.1. If the accident resulted from plaintiff's decedent's negligent excessive speed, regardless of the initial impetus for his unlawful speeding, defendants cannot be held liable for that result.\\nIt has even been held that since officers have a legal duty to pursue a fleeing vehicle, they cannot be held negligent in giving chase. Bailey v. Edison Charitable Foundation, 152 Ind.App. 460, 284 N.E.2d 141 (1972).\\nNothing in this record would allow a reasonable inference that the accident did not proximately result from decedent's excessive speed. We cannot agree with appellant's argument that the police set in motion the events, and \\\"but for the negligence of the police in their pursuit, the accident would never have occurred. A reasonable inference from the facts could therefore be that the loss of control was not a proximate cause.\\\" Appellant might as well argue that had decedent never have gotten behind the wheel the accident would never have occurred, either. But he did take the vehicle; he did fail to obey lawful directions to stop; he did attempt to evade arrest by leading a high-speed chase through city, interstate and residential streets; and, finally, he did lose control of his car and crash into a house. How could his loss of control not be a proximate cause, when proximate cause is defined as \\\"that which in a natural and continuous sequence produces the injury, and without which the injury would not have occurred\\\"? N.M.U.J.I. 12.10. This argument by appellant is devoid of any legal logic. If plaintiff negligently and proximately contributes to his injuries, he is barred from recovery. See Montoya v. Williamson, 79 N.M. 566, 446 P.2d 214 (1968); Restatement (Second) Torts, \\u00a7 467.\\nThe long and short of this appeal may be succinctly stated: On the evidence before the trial court, if believed, plaintiff's decedent was contributorily negligent as a matter of law and summary judgment was proper. McFarland v. Helquist, 92 N.M. 557, 591 P.2d 688 (Ct.App.1979). If the officers' testimony was not believed, there was a void respecting any negligence of defendants which proximately caused the injuries alleged and thus, as a matter of law, no issue of fact upon which to impose liability against defendants. Summary judgment under that view was proper. See, Shriners Hosp. for Crippled Children v. Kirby Cattle Co., 89 N.M. 169, 548 P.2d 449 (1976).\\nThe judgment is affirmed.\\nLOPEZ and ANDREWS, JJ., concur.\"}"
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+"{\"id\": \"1573386\", \"name\": \"MONTOYA et al. v. GURULE et al.\", \"name_abbreviation\": \"Montoya v. Gurule\", \"decision_date\": \"1934-12-11\", \"docket_number\": \"No. 3960\", \"first_page\": \"42\", \"last_page\": 44, \"citations\": \"39 N.M. 42\", \"volume\": \"39\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:32.333570+00:00\", \"provenance\": \"CAP\", \"judges\": \"SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.\", \"parties\": \"MONTOYA et al. v. GURULE et al.\", \"head_matter\": \"38 P.(2d) 1118\\nMONTOYA et al. v. GURULE et al.\\nNo. 3960.\\nSupreme Court of New Mexico.\\nDec. 11, 1934.\\nCrist & Pacheco, of Santa Fe, for plaintiffs in error.\\nM. E. Noble, of Las Vegas, for defendants in error.\", \"word_count\": \"1107\", \"char_count\": \"6632\", \"text\": \"WATSON, Chief Justice.\\nAt an election to choose members of the board of trustees of the Tecolote land grant, the parties to this proceeding in error were candidates. The defendants jn error contested the declared election of the plaintiffs in error and prevailed.\\nThe single question before us is whether the contest statute is applicable to an election of this kind. If not, the district court was without jurisdiction.\\nBy \\\"the 1927 Election Code?' it is provided .that \\\"any unsuccessful candidate for any public office may contest the election of the candidate to whom certificate of election has been issued in the manner herein provided.\\\" 1929 Oomp. St. \\u00a7 41-601. Upon this provision, defendants in error are compelled to rely, it being well understood that the right of contest and the jurisdiction to entertain it must be found in the statute law.\\nThere is controversy here as to whether the offices in question are \\\"public offices.\\\" This, in view of our other conclusions, we need' not determine. We shall assume that they are.\\nBut plaintiffs In error point out that the election law of the Tecolote grant (Id. \\u00a7 29- 1103) makes no provision for the issuance of certificates of election to the successful candidate. Hence, they contend,, they are not within the statutory description of those whose election may be contested.\\nDefendants in error say that the test expressed, if it were to be deemed the criterion, is the actual issuance of certificates of election, not a statutory requirement therefor. They claim that this record shows that certificates were in fact issued. If we were put to it to decide this question of construction, we should hesitate before adopting the view of defendants in error. It might result that the board of trustees, not being under any statutory duty to issue formal certificates of election, would have it in its power to permit or to block a contest by the mere device of issuing or refusing to issue certificates.\\nBut defendants in error contend that this is not the criterion of the right to contest; that there are many minor elections in this state, as to some of which it is prescribed and as to others not prescribed, that the result shall be evidenced by certificates of election; that it is not a reasonable test; and that the Legislature could not have intended to base so important a distinction upon a matter so formal and inconsequential.\\nWe are impressed that this reasoning is sound. Yet, further consulting the statute, we find that the issuance of certificates of election has quite an important place in the legislative scheme. Not only does the event give rise to the right to institute the contest according to the expression above quoted, but the lapse of twenty days after that event terminates the right. Id. \\u00a7 41-603. The whole plan of limiting the time for contesting elections hinges on the certificate.\\nTurning now to the recount provisions of the election code, immediately following its contest provisions, the issuance of certificates of election assumes perhaps greater importance. A candidate desiring a recount is to apply to the state canvassing board or to the district judge, according as the office involved is one for which the state canvassing board or one for which the county board of canvassers \\\"issues a certificate of election.\\\" Id. \\u00a7 41-614, 41-618. If the recount shall change the result, the proper board \\\"shall revoke the certificate of election already issued to any person for such office and shall issue\\\" a new certificate. Id. \\u00a7 41-617, 41-621.\\nHere the criterion is not the issuance of the certificate, but the statutory duty to issue it. Moreover, that duty must reside in one of these two boards. If in the case at bar, recount had been desired, to what authority might the parties have applied?\\nThe election code specifically prescribes the offices for which the board of county canvassers is to issue certificates. \\\"County officers and members of the legislature elected from such [a single} county only.\\\" Id. \\u00a7 41-350. It also prescribes the offices for which the state canvassing board is to issue certificates. Id. \\u00a7 41-356.\\nThis brings us to the result urged by plaintiffs in error, though for a somewhat different reason. The contest provisions of the election code are inapplicable to land grant elections, not because the particular grant statute fails to require issuance of certificates of election, but because tbe Legislature, in framing the contest and recount provisions of the code, contemplated their applicability to those elections only for which the code makes provision, the general elections for state, district, and county offices.\\nThis conclusion is fortified, and we think made necessary, by another provision of the election code.\\n\\\"The provisions of this act shall not apply to elections for justices of the peace, constables, school directors, municipal boards of education, officers of irrigation, drainage or conservancy districts, officers of acequias or community ditches, city, town or village officers, or elections for issuance of bonds or other evidences of indebtedness by cities, towns, villages, counties, school districts, or other municipalities, unless otherwise provided herein or by the laws governing such election.\\\" Id. \\u00a7 41-720.\\n' It is true that this section does not exactly describe an election for the constitution of a grant board. But reason and analogy compel us to place that election in the class of elections excepted from the scope of the act, rather than in the class included in it. Considering the character of the elections to which it is plain the statute is not applicable, it would be difficult indeed to impute an intent to make it applicable to grant elections.\\nThe election contest being a special statutory proceeding, the right is not to be inferred from doubtful provisions. Nor is it to be overlooked that if, in the face of all doubt, we were disposed to concede the right, out of consideration for the plight of one who has been improperly deprived of an office, we should by that very act cut him off from another right, perhaps more valuable, that of statutory quo warranto. Cf., State ex rel. Abercrombie v. District Court, 37 N. M. 407, 24 P.(2d) 265.\\nPersuaded that there was no jurisdiction to entertain the proceeding, we must reverse the judgment and remand the cause. It is so ordered.\\nSADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.\"}"
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+"{\"id\": \"1573459\", \"name\": \"BARKER, Mayor, et al. v. STATE ex rel. NAPOLEON\", \"name_abbreviation\": \"Barker v. State ex rel. Napoleon\", \"decision_date\": \"1935-08-30\", \"docket_number\": \"No. 4149\", \"first_page\": \"434\", \"last_page\": 441, \"citations\": \"39 N.M. 434\", \"volume\": \"39\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:32.333570+00:00\", \"provenance\": \"CAP\", \"judges\": \"SADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.\", \"parties\": \"BARKER, Mayor, et al. v. STATE ex rel. NAPOLEON.\", \"head_matter\": \"49 P.(2d) 246\\nBARKER, Mayor, et al. v. STATE ex rel. NAPOLEON.\\nNo. 4149.\\nSupreme Court of New Mexico.\\nAug. 30, 1935.\\nEarl D. Kenney, of Santa Fe, for plaintiffs in error:\\nReed Holloman, of Santa Fe, for defendant in error.\", \"word_count\": \"3339\", \"char_count\": \"18753\", \"text\": \"BRICE, Justice.\\nRelator applied for an alternative writ of mandamus against the respondents to compel the levy and collection of a tax to pay a judgment based upon a tort, in favor of relator against the city of Santa F\\u00e9. An alternative writ was issued by the district court to which an answer was filed admitting the facts alleged, but denying that there was legal authority for issuing a peremptory writ of mandamus alleging: \\\"That the City of Santa Fe, through its City Council has the discretionary power to levy taxes for general purposes up to a limitation of five (5) mills on the dollar of assessed valuation of property located in said municipality; that the City of Santa Fe will require all monies to be raised by taxes under such limitation for its 1935 municipal current expenses.\\\" And alleged further, in substance, that the respondents had no power or authority under any law to levy a tax to discharge the judgment in question.\\nThe district court held that the relator was entitled to the relief prayed for and thereupon issued a peremptory order commanding the respondents in their several official capacities to do the things necessary and required by law to levy and collect taxes sufficient to pay said judgment and to pay the same to the relator. A writ of error has been sued out in this court to review the final judgment of the district court entered in said cause. The parties will be referred to as relator and respondents.\\nThe case was tried upon the writ and answer. Without stating more of the allegations of the writ than is necessary to determine the case, it is alleged, after preliminary allegations with reference to the official positions of the respondents, that on the 19th day of June, 1933, the relator recovered a judgment in the sum of $8,700, with interest thereon at the rate of 6 per cent, per annum from the date of the judgment, together with costs, against the city of Santa Fe, which judgment is still in full force and effect and no part has been paid; and commanding the several respondents in their official capacity to perform the necessary official acts to the end that a tax be levied and collected for the payment of such judgment and that it he paid.\\nThe parties agree that the sole question to be determined is whether or not there is legal authority for the levying of such tax; all of the proceeds of the levy of a tax of 5 mills on the dollar, the maximum rate authorized under section 141-1001, Comp. St. 1929, being required by the city for municipal current expenses. In other words, Is there authority in the Constitution or laws of the state to levy a tax to pay the judgment in question other than section 141-1001, Comp. St. 1929? It is agreed that, under the facts, no part of the 5-mill levy can be used for such purpose.\\nRespondents contend that if relator's judgment is paid at all, it must be paid from a tax levy as limited by section 141-1001, Comp. St. 1929; that as all the funds which can be obtained from such levy are needed to pay the ordinary expenses of the city, there can be no fund provided to pay such judgment at this time. The material parts of that statute are: \\\"The maximum rate of tax to be levied for city, town or village purposes or uses shall not exceed five (5) mills on the dollar. The foregoing lim itations shall not apply to levies for the payment of the public debt or interest thereon; Provided, further, that the limitations herein contained shall not apply to tax levies authorized by the fifth legislature and exempted from similar limitations in existing laws.\\\"\\nOn the other hand, relator contends that the limitation statute has application solely to taxes levied to provide funds for ordinary current expenses and does not include judgments for torts; that the city is authorized to make such levy under its general authority to levy taxes and pay debts.\\nChapter 133 of the Session Laws of 1921, among others, had the following section (section 302), now appearing in the Comp. St. of 1929, as follows: \\\"141-302. On or before the first Monday in September of each and every year the city council or board of trustees of any city, town or villagfe, shall make and order a levy of taxes for all municipal purposes, and certify the same to the county commissioners. Such levies shall conform to and be within the budgets or estimates for such year as approved by the state tax commission and shall be within the limitations as to rate of levy as provided by law.\\\" The latter was amended as above in 1925 (Laws 1925, c. 102, \\u00a7 14). Chapter 140 passed at the same session (1921) is the limitation act in question, now appearing in Comp. St. 1929 as section 141-1001; the material parts of which have been quoted. That such statutes have reference to the ordinary municipal expenditures incurred in carrying on business, enacted to protect the public against extravagance and waste where expenditures are discretionary, and not as to items definitely fixed by law and not specifically included, or judgments for torts, or like items over which the officials of municipalities have no control; has been the view expressed by the great majority of decisions where the question was an issue.\\n\\\"Sec. 278. There is a considerable conflict .of authority upon the question as to how far a constitutional limitation upon municipal indebtedness applies to obligations imposed upon municipal corporations by law as distinguished from those which are discretionary or voluntary. It is universally agreed that limitations upon municipal indebtedness do not apply to obligations sounding in tort, and that it is not a defense to an qction of tort against \\u00e1 municipal corporation that a judgment for the plaintiff will increase the indebtedness of the defendant beyond the constitutional limit. \\\" 19 R. C. L. p. 981.\\nIt is unnecessary to quote from authorities, but we cite the following: Mayor, etc., of Anniston v. Hurt, 140 Ala. 394, 37 So. 220, 103 Am. St. Rep. 45; State ex rel. Pyle v. University City et al., 320 Mo. 451, 8 S.W. (2d) 73; State ex rel. Coolsaet et al. v. City of Veblen, 58 S. D. 451, 237 N. W. 555; Lewis v. Widber, 99 Cal. 412, 33 P. 1128; Dawson County v. Clark et al., 58 Neb. 756, 79 N. W. 822; Little v. City of Portland, 26 Or. 235, 37 P. 911; Heyman & Bro. v. Bath et al., 58 Cal. App. 499, 208 P. 981; Morris v. Sheridan, 86 Or. 224, 167 P. 593; Town of Flagstaff v. Gomez, 29 Ariz. 481, 242 P. 1003; Metropolitan Life Ins. Co. v. Deasy, Auditor, et al., 41 Cal. App. 667, 183 P. 243; State ex rel. Keck v. City of Sunnyside et al. (Wash.) 43 P.(2d) 621; Conner v. City of Nevada, 188 Mo. 148, 86 S. W. 256, 107 Am. St. Rep. 314; Burr v. Board of Supervisors of City and County of San Francisco, 30 Cal. App. 755, 159 P. 458; City of Long Beach v. Lisenby, Mayor, et al., 180 Cal. 52, 179 P. 198; State ex rel. Pool v. City of Willow Springs (Mo. Sup.) 183 S. W. 589; City of Bloomington v. Perdue, 99 Ill. 329; Rice v. Walker, 44 Iowa, 458; Menar v. Sanders, 169 Ky. 285, 183 S. W. 949, L. R. A. 1917E, 422. Also see annotations in 94 A. L. R. at page 937, the ^headnote of which is as follows: \\\"The general rule is that constitutional or statutory limitations upon municipal indebtedness or upon the amount of municipal taxation refer only to obligations volun- ^ tarily incurred by the municipality, and do not apply to its obligations sounding ^Jm tort.\\\"\\nThere are a number of cases holding that a limitation on indebtedness does not apply to judgments for tort upon the same reasoning. Chase County v. Chicago, B. & Q. Ry. Co., 58 Neb. 274, 78 N. W. 502; Thomas v. City of Burlington, 69 Iowa, 140, 28 N. W. 480; City of Bloomington v. Perdue, 99 Ill. 329; City of Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263.\\nThe Supreme Court of Missouri in State of Missouri ex rel. Emerson v. City of Mound City, 73 S.W. (2d) 1017, 1022, 94 A. L. R. 923, decided last year, has overruled the Missouri cases we have cited. The Missouri Constitution, after fixing a maximum rate, continued, \\\"said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness.\\\" Const. Mo. art. 10, \\u00a7 11. The court in that case stated: \\\"That the limitation contained in section 11, article 10, of the Constitution as to the annual rates of taxation which may be levied for municipal purposes is self-enforcing and applicable to 'taxes of every kind and description, whether general or special,' with no exceptions whatever, except the ones made by the section of the Constitution itself not applicable here, has been held many times by this court, and it makes no difference that the debt is valid or a judgment had been- rendered.\\\"\\nFrom reading the previous decisions, it would seem that exceptions had been made for many years, though the language of the Constitution is positive and may justify the change, but it is quite different from the New Mexico act. Three of the eight judges of that court dissented. Courts of the state of Texas are likewise an exception to the majority. Gould v. City of Paris, 68 Tex. 511, 4 S. W. 650; City of Clarendon v. Betts (Tex. Civ. App.) 174 S. W. 958; City of Sherman v. Smith, 12 Tex. Civ. App. 580, 35 S. W. 294.\\nIt follows that the limitation on the tax rate of cities in section 141-1001, Comp. St. 1929, has no reference to the levying l^p\\u00ed a tax to pay a judgment for tort.\\n(2) But respondents contend that the city has no authority except section 141-1001, Comp. St. 1929, for levying a tax to pay relator's judgment, and therefore no tax levy can be made. But the statute just mentioned is a limitation on^ the taxing power, not a grant of it. Unless authority can be found elsewhere in the statutes or the Constitution, then it does not exist; for a municipality can do no act for which authority is not expressly granted or which may not be .reasonably inferred from those conferred upon it. 6 McQuillen on Municipal Corporations (2d Ed.) \\u00a7 323.\\nThe power to tax and pay debts is given generally in the Comp. St. 1929 as follows:\\n\\\"90-402. The city council and board of trustees in towns shall have the following powers:\\n\\\"Second. To appropriate money for corporate purposes only, and provide for payment of debts and expenses of the corporation.\\n\\\"Third. To levy and collect taxes for general and special purposes on real and personal property.\\\"\\n\\\"141-301. The city council or board of trustees of any city, town, or village, shall have power and authority to levy taxes upon taxable property within the limits of such city, town or village, subject to taxation for state or county purposes, in accordance with the laws of the state.\\\"\\n\\\"90-201. Cities and towns organized as provided in this article shall be bodies politic and corporate, under such name and style as they may select at the time of their organization, and may sue, or be sued, contract, or be contracted with, acquire and hold property, real and personal and have such other privileges as are incident to corporations of like character or degree, not inconsistent with the laws of the state.\\\"\\nThe Territorial Supreme Court in Territory of New Mexico ex rel. Parker v. Mayor, etc., of Socorro, 12 N. M. 177, 76 P. 283, 284, compelled the city of Socorro to levy a tax to pay bonds though the tax rate required would exceed the maximum allowed by section 116, chap. 39, Laws 1884, which the court held did not apply to cities organized under the law repealed by that act. That act, as amended, is now section 90-406, Comp. St. 1929, and apparently has not been repealed unless it conflicts with section 141-1001, supra, and is as follows: \\\"90-406. No city or town having a population of less than six thousand (6000), according to the last census, shall levy an annual tax in excess of ten mills for any purpose whatsoever, except, for interest on bonded indebtedness; and no city or town having a population according to such census of six thousand shall levy any such tax in excess of eleven mills, except for interest on bonded indebtedness.\\\"\\n. This is the only case at all similar among New Mexico decisions. It was claimed, as here, that all the funds authorized to be levied were needed to pay current expenses. The court stated: \\\"But this judgment was rendered to compel the levy of a special tax to be used exclusively to pay the city's bonds and interest, and is wholly disconnected from any levy for current expenses. It does not attempt to appropriate any funds which are to be raised or could be used for current expenses.\\\" It seems that the court assumed that the city of Socorro was organized under the act of 1880, at which time there was no limitation on the authority of a city to levy taxes, and therefore section 90-406 did not apply. The effect of the decision is to hold that there being no limitation on the taxing power, the city could be compelled by mandamus to levy a tax to pay certain past-due bonds. The city also contended that the writ should not issue before judgment, but as the debt was not denied, the court held a judgment was not necessary to enforce payment. The only difference in the cases is that the Socorro Case was a contract debt while the one in the case at bar is in tort.\\nA similar question was before the Supreme Court of Arizona in Town of Flagstaff et al. v. Gomez, 29 Ariz. 481, 242 P. 1003, 1004. It was held that authority to levy a tax to pay a judgment was granted by the following provision of the Arizona Code: \\\"The common council of every such town shall have control of the finances, and all the property, real and personal, belonging to the corporation; and shall likewise have power within the limits of the town to appropriate money and provide for the payment of the debts and expenses of the town. \\\" Civ. Code 1913, par. 1831.\\nThe court, in construing this statute, said:\\n\\\"We are of the opinion that this paragraph not only gives the right but also imposes a positive duty upon the common council of the town of Flagstaff to 'provide for the payment of the debts' of the town, including all outstanding judgments, as they are the highest possible evidence of just indebtedness.\\n\\\"There are practically but two ways in which a .municipality can properly raise money to pay its debts. One is by levying taxes directly therefor, and the other by issuing bonds, which in turn will have to be paid by taxes, so that in the long run it comes back to the levy of a tax. Since the duty of paying is specifically imposed on the town, we think by reasonable implication there goes with such duty the power 4o exercise the only possible method of fulfilling it, unless there is a special statutory prohibition.\\\"\\nlt has certainly been assumed in this state that a city is authorized under the general provisions quoted, and correctly so we believe, to pay debts and to that end levy taxes within the constitutional and statutory limitations^ No contention has been made by the appellant that the judgment should not be paid as provided in the order of the court, herein, if the levy can legally be made in excess of the 5 mills required for city purposes.\\n\\\"The liabilities of a municipal corporation are an incident to and grow out of, the powers and duties conferred or exacted. It follows that if the corporation in the exercise of any of its powers or in the performance of any of its duties incurs, in contracts or in delicto, any liability whether it arises from express legislation or by implication, it cannot escape such liability unless relieved therefrom by some valid provision of law.\\\" 6 McQuillen on Municipal Corporations \\u00a7 2773.\\nThe city owes the debt and is author-^ ized to levy sufficient tax to pay it. This being true, it becomes .a duty and may be enforced by mandamus.\\n\\\"If power is granted to a municipal corporation to levy taxes, the exercise of such power for legitimate purpose is a duty and can be compelled by those who would be injured by a neglect to tax._ Power to levy taxes to pay debts or municipal expenses imposes the duty of exercising that power.\\\" 6 McQuillen on Municipal Corporations \\u00a7 2536.\\n(3) Relator calls attention to section 7 of article 8 of the State Constitution, the material parts of which are as follows, \\\"No execution shall issue upon any judgment rendered against any incorporated city or against any officer of any incorporated city upon any judgment recovered against him in his official capacity and for which the incorporated city is liable, but the same shall be paid out of the proceeds of a tax levy as other liabilities of incorporated cities and when so collected shall be paid by the county treasurer to the judgment creditor,\\\" and urges with much force and reason that it is self-executing; that under its terms he is entitled to the peremptory writ of mandamus as granted by the trial court; that it requires the funds collected from the tax levy therein provided for, to be paid directly to the judgment creditor by the county treasurer and therefore necessarily intends a special tax levy; as the ordinary city funds are required to be turned over to the city by the county treasurer '(section 141-417, Comp. St. 1929). It seems that the source of this section of the Constitution was an enlargement of section 7, chap. 1, of the New Mexico Session Laws of 1876, now section 33-3704, Comp. St. 1929. That it was adopted in a modified form from the laws of Colorado. Stoddard, Treasurer, v. Benton, 6 Colo. 508. Relator calls attention to the case of Atchison, T. & S. F. Ry. Co. v. Lopez, 20 N. M. 591, 151 P. 308, 311, in which this court construed section 33-3704, Comp. St. 1929, and stated in the opinion, \\\"It is clear, however, in our opinion, that the first act [section 33-3704, Comp. St. 1929] is in full force and effect, general in its nature, and applying to all judgments which shall be rendered against any county,\\\" and that it was then held that the general county fund limited to a 5-mill levy was not the only source from which the judgment could be paid, but that the act as there construed authorized \\\"the county to levy the amount of the judgment.\\\"\\nAs we have found that relator is entitled to the writ as prayed for, we do not find it necessary to decide the constitutional question.\\nFinding no error in the record, the judgment of the district court is affirmed.\\nIt is so ordered.\\nSADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.\"}"
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+"{\"id\": \"1575375\", \"name\": \"GENERAL MOTORS ACCEPTANCE CORPORATION v. BALLARD\", \"name_abbreviation\": \"General Motors Acceptance Corp. v. Ballard\", \"decision_date\": \"1932-12-09\", \"docket_number\": \"No. 3704\", \"first_page\": \"61\", \"last_page\": 66, \"citations\": \"37 N.M. 61\", \"volume\": \"37\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:49:50.036598+00:00\", \"provenance\": \"CAP\", \"judges\": \"BICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ., concur.\", \"parties\": \"GENERAL MOTORS ACCEPTANCE CORPORATION v. BALLARD.\", \"head_matter\": \"17 P.(2d) 946\\nGENERAL MOTORS ACCEPTANCE CORPORATION v. BALLARD.\\nNo. 3704.\\nSupreme Court of New Mexico.\\nDec. 9, 1932.\\nH. C. Buchly, of Roswell, for appellant.\\nJ. C. Gilbert, of Roswell, for appellee.\", \"word_count\": \"2280\", \"char_count\": \"13040\", \"text\": \"NEAR, J.\\nThis action was filed in the office of the clerk of the district court for Chaves county, state of New Mexico, on the 15th day of October, 1929. The complaint, in substance, alleged that on June 6, 1928, the appellee purchased from the appellant a Chrysler roadster, agreeing to pay therefor the sum of $520, of which sum $200 was paid in cash, and a conditional sales contract was executed, by which it was agreed to make ten deferred payments monthly, of $32 each, -beginning July 6,1928. The contract is attached as a-n exhibit to the complaint in the cause, and the terms of the contract are thus made a part of the complaint.\\nIt is further alleged that appellee made four payments on the said contract and defaulted in payment of the remainder. It is alleged that there is a balance due on the contract of $175.50, principal, $8.77 interest, and the complaint asked for an attorney's fee of $26 as provided in the sales contract in the event the contract is placed in the hands of an attorney for collection, and it is alleged that the same was so placed. For this sum appellant asked judgment.\\nTo this complaint the appellee interposed a demurrer, and for the grounds of the demurrer states:\\n(1) \\\"That said complaint does not state facts sufficient to constitute a cause of action.\\n(2) \\\"That said complaint on its face does not state facts sufficient to constitute a cause of action in this, that it shows that plaintiff had never parted with the title to the property described in said complaint and that at all times in said complaint mentioned was the-owner of the automobile described therein, and that by reason of said ownership being kept and retained, that defendant was never more than bailee for hire and could not be-liable to plaintiff: in any amount other than for the use of said automobile during such time as defendant might have had and used the same and that this is not any action for hire but is an action for purchase price of said car which defendant never had title to.\\n(3)\\\"That said complaint on its face does not state facts sufficient to constitute a cause of action, in this, that the allegations of said complaint show that plaintiff had any one of three causes of action, that is: (1) for the purchase price of said automobile, (2) for the use and hire of said automobile, (3) for the possession of said automobile.\\\"\\nThe court heard argument on the sufficiency of the complaint as tested by this demurrer, sustained the demurrer, and dismissed the cause. To this action the appellant duly excepted and presents this assignment of error as the grounds for reversal here.\\nThe first ground of demurrer, to wit,, that \\\"the complaint does not state facts sufficient to constitute a cause of action,\\\" is not sufficient, for the reason that it does not distinctly specify the grounds of objection, sought to be presented and is too general in its nature. Section 105-412, Compilation 1929; Williams et al. v. Kemp et al., 33 N. M. 593, 273 P. 12.\\nThe second and third grounds for demurrer present for eonsidei*ation the question as to whether the appellant, under its contract with the appellee, by which it reserved title to itself in the property, having taken possession of the same on default in payment, could sell the property, apply the proceeds of such sale to the amount of the debt, and recover the deficiency by action?\\nThe contract, so far as material to the1 determination of the question here presented, provides:\\n\\\"1. Title to said property shall not pass to the purchaser until said amount is fully satisfied in cash.\\\"\\n\\\"3. In the event the purchaser defaults on any payment or fails to comply with any condition of this contract or a proceeding in bankruptcy, receivership or insolvency be instituted against the purchaser or his property, or the seller deems the property in danger of misuse or confiscation, the full amount shall, at the election of the seller, be immediately due and payable, and purchaser hereby authorizes any attorney-at-law to appear for said purchaser in any court of record in the United States, waive the issue and service of process, and confess judgment against said purchaser for the amount due hereunder in favor of the seller or assignee.\\\"\\n\\\"6. Time is of the essence of this contract, and if the purchaser default in complying with the terms hereof, or the seller deems the property in danger of misuse or confiscation, the seller or any sheriff or other officer of the law may take immediate possession of said property without demand (possession after default being unlawful), including any equipment or accessories thereto; and for this purpose the seller may enter upon the premises where said property may be and remove the same. The seller may resell said property, so retaken, at public or1 private sale without demand for performance, with or without notice to the purchaser, (if given, notice by mail to address below being sufficient), with or without having such property at the place of sale, and upon such terms and in such manner as the seller may determine; the seller may bid at any public sale. Erom the proceeds of any such sale, the seller shall deduct all expenses for retaking, repairing and reselling such property, including a reasonable attorney's fee. The balance thereof shall be applied to the amount due; any surplus shall be paid over to the purchaser; in case of deficiency the purchaser shall pay the same with interest and the purchaser does hereby confess judgment in the amount of such deficiency. Seller may take possession of any other property in the above described motor vehicle at the time of repossession and hold the same temporarily for the purchaser without liability on the part of the seller.\\\"\\n\\\"7. Seller shall have the right to enforce one or more hereunder, successively or concurrently, and such action shall not operate to estop or prevent the seller from pursuing any further remedy which he may have hereunder, and any repossession or retaking or sale of the property, pursuant to the terms hereof shall not operate to release the pur chaser until full payment has been made in cash.\\\"\\nThe demurrer proceeds upon the theory that, since the contract of sale reserves the title to the property in the vendor, and the vendor repossesses himself of the property, the consideration for the payment of the balance of the purchase price fails, and that any further liability which might exist between the parties to the contract could only be compensation for the use of the automobile while in possession of the vendee. This might be true but for the provision of paragraph 6 of the contract above quoted. It will be seen that paragraph 6 of the contract, above quoted. specifically provides that, if the purchaser makes default in the payment, the vendor may take immediate possession of the property without demand, and resell the property so taken, at public or private sale with or without notice, and apply the proceeds arising from such sale to the expense of retaking, reselling, and repairing the property, together with a reasonable attorney's fee, and apply the balance arising from such sale on the amount due under the contract, and, if any surplus remains, it should be paid over to the purchaser, and, if the property at such sale does not bring a sufficient sum to pay the full amount contracted to be paid, the vendor may have his right of action to recover such deficiency.\\nWithout discussing the fairness or unfairness of this clause of the contract, it is clear as to its terms, and we know of no legal inhibition, preventing its enforcement.\\nThe Encyclopedia of Automobile Raw, by Mr. Huddey, vol. 11-12, \\u00a7 166, uses the following language: \\\"In some jurisdictions a stipulation for repossession of the article sold and release of the seller from his agreement to convey title to the buyer is regarded as an agreement for rescission, when found in a conditional sales contract, even though the buyer has unconditionally agreed to pay, unless the contract includes a promise upon his part to pay any balance due after the proceeds of the sale of the article have been applied upon the debt.\\\"\\nIn Campbell Motor Co. v. Spencer, 22 Ala. App. 465, 116 So. 892, 893, the Court of Appeals of Alabama had under consideration the clause of a contract almost identical with the one under consideration here. The court in that case said:\\n\\\"The serious question arising in this case is as to the rights of the seller under a contract, not only reserving title, but also authorizing a resale of the property upon reducing it to possession under the contract and the application of the proceeds of the sale to the balance due on the purchase price, together with a provision that if there is any balance remaining unpaid the buyer shall be liable for such deficiency, and if the second sale is more than the balance due, the seller shall first apply the amount received to the extinguishment of the debt and paying over to the buyer any excess of such proceeds. This clause in a conditional sale contract has been the subject of many decisions of courts of last resort, all of which, with the exception of the Supreme Courts of Minnesota and Ar kansas have held the contract to he valid and enforceable. Fulghum et al. v. General Motors, a Corporation, 30 Ga. App. 609, 118 S. E. 600; Warner v. Zuechel, 19 App. Div. 494, 46 N. Y. S. 569; Ascue v. Aultman & Co., 2 Willson, Civ. Cas. Ct. App. \\u00a7 497. To the same effect are the decisions of the Canadian courts, many of which are collated in L. R. A. 1916A, page 919. As we see it, the clause hereinabove discussed is valid and binding and permits the vendor to repossess the property upon default of the purchaser, sell it, apply the proceeds to the debt, and sue for the balance due.if any part of the debt is left unpaid.\\\"\\nMr. Estrieh, in his work on Installment Sales, \\u00a7 341, p. 704, gives a clear, and concise statement of the rights of the parties under a contract of this character. He says:\\n\\\"The repossession of the property by the seller under a contract providing that, if the buyer made the stipulated payments and complied with certain other requirements, he should be entitled to a bill of sale of the property, but that if he made default all rights under the contract were to cease, and the seller might take possession of the property, was held to prevent a recovery of the purchase price; in such a case there is a failure of consideration for the buyer's promise to pay the purchase price. The seller in such a ease obtains possession of his property and is entitled to the payments that have been made to him; the fact that he has indulged the buyer upon the latter's promise to make payments in default does not entitle the seller to recover the payments in default, or damages for the breach of contract or the fair value of the use of the property.\\n\\\"But there may be a recovery after taking possession under a contract expressly authorizing the seller'to take possession on certain conditions, and sell the property and apply the proceeds toward the payment of the note. And under such a contract a recovery against endorsers of the buyer's notes for a deficiency was sustained. It has been held that the agreement that the'proceeds of any resale should be applied to payment of the purchase price carries with it, by necessary implication, the promise on the part of the buyer to pay any balance remaining unpaid after crediting the proceeds of the sale. The Supreme Court of Oregon says:\\n\\\"The rule followed in this state is in effect that where one of the remedies provided in a contract for the sale of the property, containing a reservation of the title in the seller until payment of the purchase price, is the right, on the default of the buyer, to seize and sell the property at public or private sale and apply the proceeds toward the payment of the purchase price, and the seller exercises this right, he is entitled to recover from the buyer any balance remaining after so crediting the proceeds of the resale. The right to recover the purchase price under such a contract has been sustained, although there is no express provision that the proceeds of the sale are to be applied on the note, where there is an absolute promise to pay. If it appears from the whole contract that it was the intention of the parties that whatever remained due should be paid by the buyer, recovery may be had. [First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220.]\\\"\\nWe agree with the doctrine as thus announced, and therefore conclude that the complaint in this cause stated a cause of action and that the court erred in sustaining the demurrer of appellee thereto. For this reason the cause is reversed and remanded, with directions to proceed with the cause in accordance herewith.\\nBICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ., concur.\"}"
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+"{\"id\": \"1577088\", \"name\": \"HAMPTON et al. v. PRIDDY et al.\", \"name_abbreviation\": \"Hampton v. Priddy\", \"decision_date\": \"1946-04-10\", \"docket_number\": \"No. 4892\", \"first_page\": \"23\", \"last_page\": 28, \"citations\": \"50 N.M. 23\", \"volume\": \"50\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:15.826199+00:00\", \"provenance\": \"CAP\", \"judges\": \"MABRY, C. J., and SADLER, BICK-LEY, and BRICE, JJ., concur.\", \"parties\": \"HAMPTON et al. v. PRIDDY et al.\", \"head_matter\": \"168 P.2d 100\\nHAMPTON et al. v. PRIDDY et al.\\nNo. 4892.\\nSupreme Court of New Mexico.\\nApril 10, 1946.\\nSee also 49 N.M. 1, 154 P.2d 839.\\nR. A. Prentice, of Tucumcari, for appellants.\\nJ. V. Gallegos and C. C. Davidson, both of Tucumcari, and H. A. Kiker, of Santa Fe, for appellees.\", \"word_count\": \"2139\", \"char_count\": \"12734\", \"text\": \"LUJAN, Justice.\\nThis is an appeal from a judgment entered in separate contest proceedings initiated in the district court of Quay County by the appellants, T. W. Hampton and Clarence Massey, as contestants, involving the offices of Mayor and Councilman of the City of Tucumcari, following the municipal election held on the 4th day of April, 1944. Hampton was nominated for Mayor and Massey for Councilman from the 2nd^y/ard on the Democratic ticket. The c\\u00f3ntestees in the contest, initiated as aforesaid, were appellee, Henry R. Priddy, nominated for the office of Mayor and Clarence E. Gamble, nominated for Councilman from the 2nd Ward, on the \\\"Greater Tucumcari Ticket.\\\" The result of the election according to the initial canvass was as follows:\\nMayor Councilman\\nHampton . 721 Massey....... 685\\nPriddy . 724 Gamble....... 701\\nCertificates of election were duly issued to Priddy for Mayor and Gamble for Councilman based on the foregoing canvass. A subsequent recount as to these offices resulted in no substantial, certainly no material, change in the result. It showed:\\nMayor Councilman\\nHampton . 718 Massey....... 680\\nPriddy . 723 Gamble....... 700\\nThe results of the recount come into the case before us solely as an admission of opposing counsel and not by reason of any evidence introduced at the trial. The contests were consolidated for trial below and after hearing the court awarded judgment in favor of the appellee Priddy for the office of Mayor and in favor of the appellee Gamble for the office of Councilman from the 2nd Ward, both nominees on the \\\"Greater Tucumcari Ticket.\\\" These awards were contained in a single judgment. The appellants, who were the contestants below, prosecute this appeal, each complaining of the judgment so entered against him and they pray for a reversal thereof. While some thirteen separate errors are assigned, they are grouped for purposes of argument under two points, viz., (1) that the so called \\\"Greater Tucumcari Party\\\" was not a political party within the meaning of the governing statute and, hence, appellees' names, as its nominees, were not entitled to be printed on the ballot, nor should any votes cast for them have been counted, canvassed or returned, and (2) that at the date of said election, the appellee Clarence E. Gamble was not a resident of, but resided outside, the City of Tucumcari and, hence, was ineligible to be nominated and elected or to receive a certificate of election to the office of Councilman from the 2nd Ward in said City and that for the same reason the votes cast by him and his wife and three other named persons, all for contestees, were illegal and should- not have been cast, counted or canvassed.\\nThe ruling of the trial court on appellants' first point was made in acting on certain proposed findings of fact, one of which, at least, partakes more of the nature of a conclusion of law than a finding of fact. The proposals first made a declaration that \\\"The Greater Tucumcari Party\\\" was not a political party receiving more than fifteen per cent, of the total number of votes cast for the candidates for Governor in the last preceding election. Then appeared a proposed finding in substance that the appellees were not nominated at or by a legally called and held political convention, and that the \\\"Greater Tucumcari Political Party\\\" had never filed in the office of the County Clerk of Quay County the rules governing the organization of said party, particularly with reference to the method of selecting nominees as candidates for public office.\\nCounsel for appellants first call to our attention 1941 Comp. Sec. 14-1303, L. 1884, c. 39, Sec. 55, the material portion of which reads:\\n\\\" And all elections for municipal officers shall in all respects be held and conducted in the manner prescribed by law in cases of county elections.\\\"\\nAttention is then directed to 1941 Comp. Sec. 56-720, L. 1927, c. 41, Sec. 720, the election code of 1927, which, while expressly excepting certain elections, including municipal, from the act, provides, nevertheless, that in all municipal elections, the duties specified in said act as devolving upon the county clerk shall devolve upon the clerk of the municipality unless otherwise specifically provided. Finally, under this point, the method of nominating candidates by convention system as set out in Article 9 of Chapter 56, New Mexico Statutes Annotated (1941) \\u2014 Sections 56-901 to 56-908 of 1941 Compilation \\u2014 is pointed out as the method which should have been pursued by the \\\"Greater Tucumcari Party\\\" in order to get the names of its candidates on the ballot, since it was not a political party whose candidates received as many as fifteen per centum of the total number of votes cast for the candidates for Governor in the last general election by all political parties, whose nomination is provided for by the primary election laws of this state. See 1941 Comp. Sec. 56-908. The several omissions to comply with the provisions of this article, such as failure to file with the county clerk the rules governing the organization of the party as required by 1941 Comp. Sec. 56-903,-and in other respects, are pointed out by appellants (contestants) and it is argued the names of appellees were wrongfully on the ballot and, hence, no ballots cast for them were entitled to be counted or canvassed.\\nThe appellees argue with a vigor equal-ling that of appellants that the statute invoked is obviously inapplicable to municipal elections, reminding us that the provisions of 1941 Comp. Sec. 14-1303 rendering applicable to municipal elections the general election laws of the state, speaks of the manner of \\\"holding and conducting elections,\\\" not the manner of nominating candidates. They mention arguendo, also, the fact that if counsel for appellants be correct in their contentions in this behalf \\u2014 nominations by political parties \\u2014 then throughout the years there have been few officers, other than de facto, in many municipalities in the state, since in most of them non-partisan rather than party tickets have been the rule and not an exception to the rule.\\nWe are disposed to hold with appellees that the provisions of 1941 Comp. Secs. 56-901 to 56-908, L.1935, c. 58, are without application to a non-partisan ticket offered to the electors in a municipal election. Obviously as its whole context connotes, the act was never intended to discourage or apply to the long existing and salutary practice of offering nonpartisan tickets in city, town and village elections. If in doubt about the matter, the heavy penally imposed for non-compliance with its provisions would incline us to resolve the doubt against an application of the act which would discourage, if not prohibit, local non-partisan tickets. Section 6 of the Act, 1941 Comp. Sec. 56-906, reads:\\n\\\"Any ballot containing the name or names of any candidate or candidates of any political party which has failed to comply with the provisions of this act shall not be cast, counted, canvassed or returned. (Laws 1935, ch. 58, \\u00a7 6, p. 107.) \\\"\\nThis is contrary to the effect almost universally applied in such circumstances, 18 Am.Jur. 263, Sec. 131, under \\\"Elections\\\" and case note in 7 Ann.Cas. 839.\\nThe legislature in enacting L.1935, c. 58, certainly gave the act no specific application to municipal elections. We do not feel disposed to do so by construction when the practical effect of, so doing would be to outlaw non-partisan tickets in such elections. The statute relied on being without application to a municipal election, the appellants' first point must fail.\\nThe second claim of error relied on relates to the residence of Clarence E. Gamble, one of the appellees, and that of four other persons, all of whom are claimed to have voted and had their votes counted for the said Gamble for Councilman and Henry R. Priddy for Mayor. The argument is that the land on which Gamble and the four other questioned voters resided lay outside the corporate limits of the City of Tucumcari, thus denying to Gamble the right to hold a municipal office therein and to him and four other persons named, any right to vote at a municipal election in said city.\\nThe method by which appellants sought to meet the burden, clearly theirs, of establishing residence outside the city of contestee Gamble, and the other four persons and, hence, the illegality of the votes of all of them, as well as Gamble's ineligibility to hold the office of Councilman, was to introduce a plat bearing date, January 14, 1902, of the original town of Tucumcari showing the dedication of certain described congressional subdivisions, followed by a record of certain proceedings before the Board of County Commissioners of the County of Quay, in the Territory of New Mexico, on July 10, 1906, incorporating the Town of Tucumcari, embracing the lands shown on the above mentioned plat along with other lands. There was then introduced evidence showing the residence of the five questioned voters to be on described lands other than those embraced in the incorporation proceedings aforesaid and evidence in the nature of an admission by-Gamble in the form of tax returns that the land on which he lived was not within the outboundaries of the area included in the incorporated lands. Testimony to same effect in relation to places of residence of the four other persons whose votes were questioned was also brought out.\\nThere followed the testimony of various persons, the tendency of which was to show that the owners of the three tracts of land on which the five persons named lived on election day, April 4, 1944, had never been dedicated by them and that without a dedication, such tracts could not have been incorporated into the City of Tucumcari after July 10, 1906. Consequently, the residents on such land were not legal voters on the day of election. So runs the argument.\\nTouching this phase of the case, the trial court found:\\n\\\"The Court further finds there is no evidence in the record to show the territorial extent of the City of Tucumcari.\\n\\\"The Court further finds there is no evidence to show the out-boundaries of the City of Tucumcari.\\\"\\nThe view entertained by the trial judge is reflected by the following comment at close of the trial, to-wit:\\n\\\"The motion to dismiss will be granted by the Court for the reason that I don't believe there is sufficient evidence to show that any of the contested votes were cast illegally because there is no evidence, as far as I can determine, to justify the Court in determining where the city limits of the City of Tucumcari extend to. The fact that there are certain annexation records introduced to indicate the limits of the City of Tucumcari in the year 1902 or 1906 is no help to the Court in determining where they are at the present time. There unquestionably have been many additions to the City of Tucumcari. And, further, it is very probable that the city limits extend considerably beyond the original dedication or plat of 1902.\\n\\\"I believe the burden is on the Contestants to establish by a reasonable amount of evidence where the limits of the city are, and not place the Court in position of having to guess whether or not the contested voters lived inside or outside of the city limits.\\\"\\nOther means of annexing territory to a municipality than through dedication by the owner are recognized and have statutory sanction. See 1941 Comp. Sec. 14-601, Sec. 14-602 and Sec. 14-606. The evidence fails to show that one or the other of these means was not followed. The most that can be said of appellants' evidence on this issue is that it affords strong proof the land on which the questioned voters resided had not been annexed to the city by voluntary dedication. It does not exclude other recognized means of annexing territory to a municipality.\\nThe questioned voters were all registered as voters within the city and had voted.in previous city elections. The appellee Gamble had served on the city council for eight years immediately preceding the election in April, 1944. These important considerations were not to be ignored and the electors disfranchised save by proof which clearly established illegality of their votes. We are unable to say the trial court erroneously ruled on this issue.\\nFinding no error, the judgment of the trial court will be affirmed.\\nIt is so ordered.\\nMABRY, C. J., and SADLER, BICK-LEY, and BRICE, JJ., concur.\\nHUDSPETH, J., did not participate.\"}"
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+"{\"id\": \"1577324\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Christopher ERVIN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ervin\", \"decision_date\": \"1981-06-09\", \"docket_number\": \"No. 5085\", \"first_page\": \"366\", \"last_page\": 367, \"citations\": \"96 N.M. 366\", \"volume\": \"96\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:56:09.295426+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOPEZ and WALTERS, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Christopher ERVIN, Defendant-Appellant.\", \"head_matter\": \"630 P.2d 765\\nSTATE of New Mexico, Plaintiff-Appellee, v. Christopher ERVIN, Defendant-Appellant.\\nNo. 5085.\\nCourt of Appeals of New Mexico.\\nJune 9, 1981.\\nWrit of Certiorari Denied July 10,1981.\\nJohn B. Bigelow, Chief Public Defender, Lynne C. Corr, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\\nJeff Bingaman, Atty. Gen., Reese Fullerton, Asst. Atty. Gen., Santa Fe, for appellee.\", \"word_count\": \"603\", \"char_count\": \"3670\", \"text\": \"OPINION\\nHENDLEY, Judge.\\nConvicted of burglary of a dwelling house, defendant appeals. He contends the trial court erred in refusing to grant his motion for a directed verdict because the unoccupied house in question was not a \\\"dwelling house\\\" for purposes of \\u00a7 30-16-3(A), N.M.S.A.1978.\\nSince this ease was assigned to the legal calendar, we accept the facts recited in the docketing statement as true. State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (Ct.App. 1978). There was testimony that for more than one year the burglarized house had not been occupied. Gas, water and electricity were not being supplied to the house. Mattresses were stacked against the dining room walls and windows. The owner of the house stated that her aunt, the previous occupant, was advanced in years and extremely infirm. There was no testimony that the aunt did not expect to return.\\nWe agree with defendant that New Mexico has not expressly defined a \\\"dwelling house\\\". Our burglary statute merely differentiates between residential burglary and burglary of other structures. The common law definition of dwelling house holds that a building is not a dwelling before the first occupant has moved in; nor does it continue to be a dwelling after the last occupant has moved out with no intention of returning. Perkins on Criminal Law, p. 157 (1957); 3 Burdick, Law of Crime, \\u00a7 694 (1946); Clark and Marshall, A Treatise on the Law of Crimes, \\u00a7 13.02 (6th ed. 1958). See also, Annot., at 85 A.L.R. 428 (1933) and 78 A.L.R.2d 778 (1961).\\nDefendant contends that the facts of the prior occupant's age and infirmity indicated that \\\"she would not re-occupy the house in the foreseeable future.\\\" Assuming this to be a permissible inference, it is not the common law test to establish whether a building is a residence. There was no evidence that the occupant had abandoned the house or had no intention of returning. Compare, Hobby v. State, 480 S.W.2d 554 (Tenn.Cr.App.1972); Hargett v. State, 534 S.W.2d 909 (Tex.Cr.1976); State v. Matson, 3 Or.App. 518, 475 P.2d 436 (1970). Contrast, Moss v. State, 574 S.W.2d 542 (Tex. Cr.App.1978). Defendant was not entitled to an acquittal.\\nFinally, defendant contends that Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Reliance on Jackson v. Virginia is misplaced. The omission, if any in this case, was that of an amplification of the elements of the offense. Such an omission is not error. State v. Padilla, 90 N.M. 481, 565 P.2d 352 (Ct. App.1977). The jury was instructed, without objection, in the language of N.M.U.J.I. Crim. 16.21, N.M.S.A.1978: \\\"A 'dwelling house' is any structure, any part of which is customarily used as living quarters.\\\" Under the facts recited in the docketing statement, this instruction adequately instructed the jury on the essential elements to return a verdict of guilty of burglary of a dwelling house. The defendant did not make a tender nor was there evidence which would make this amplification a critical determination. In light of the foregoing, we find no basis for defendant's claim. Accordingly, we affirm.\\nIT IS SO ORDERED.\\nLOPEZ and WALTERS, JJ., concur.\"}"
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+"{\"id\": \"1580736\", \"name\": \"HOGUE et al. v. SUPERIOR UTILITIES, Inc., et al.\", \"name_abbreviation\": \"Hogue v. Superior Utilities, Inc.\", \"decision_date\": \"1949-10-25\", \"docket_number\": \"No. 5176\", \"first_page\": \"452\", \"last_page\": 458, \"citations\": \"53 N.M. 452\", \"volume\": \"53\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:59:03.224808+00:00\", \"provenance\": \"CAP\", \"judges\": \"BRICE, C. J., and LUJAN, SADLER and COMPTON, JJ., concur.\", \"parties\": \"HOGUE et al. v. SUPERIOR UTILITIES, Inc., et al.\", \"head_matter\": \"210 P.2d 938\\nHOGUE et al. v. SUPERIOR UTILITIES, Inc., et al.\\nNo. 5176.\\nSupreme Court of New Mexico.\\nOct. 25, 1949.\\nGlen G. Hilford, Hot Springs, for appellants.\\nDouglass K. Fitzhugh, Hot Springs, for appellees Superior Utilities, Inc., and Jane Sickle Lewis.\", \"word_count\": \"2334\", \"char_count\": \"13895\", \"text\": \"McGHEE, Justice.\\nThe appellants owned all of the stock of the defendant corporation, which operates a gas distribution system in Hot Springs, New Mexico. They sold the stock to the defendant George W. Lewis pursuant to a contract entered into on March 27, 1946, artd received in payment therefor cash, property, the assumption by the corporation of a mortgage due an Albuquerque bank the payment of which had been guaranteed by them, and the note of the corporation to the plaintiffs for $18,973.87 payable $1,000 annually beginning April 1, 1947, secured by mortgages on the personal and real property of the corporation.\\nLater the corporation issued certificates for nine shares of its stock to George W. Lewis, eight shares to his wife, Jane Sickle Lewis, and one share to his brother, Carlton T. Lewis.\\nDefault was made in the interest payments due on October 1, 1947, and January 1, 1948, and the plaintiffs declared the entire indebtedness due under an acceleration clause in the mortgages and filed an action seeking their foreclosure, and also asked reimbursement for $600 paid on the mortgage to the Albuquerque bank.\\nThe defendant corporation and Jane Sicjde Lewis answered admitting the execution and delivery of the 'note and mortgages but claimed that it was ultra vires and void, and that the corporation received no consideration therefor. By cross complaint it sought the recovery of $2,443.50 in meter deposits left with it by customers but which the plaintiffs had in their possession until it was applied on the note. It also sought the recovery of $906 paid by it as-a commission for the benefit of the plaintiffs, and also the sum of $1,777.85 it had paid on the note before suit was filed.\\nThe defendant Lunsford filed a disclaimer' and the complaint was dismissed as to him. The plaintiffs also dismissed their complaint against the defendants Cunningham, El Paso National Bank and Harrison.\\nIt was stipulated that the note and mortg\\u00e1ges were executed and delivered by the defendant corporation without submission to or the permission of the Public Service Commission of the State of New Mexico, as required by Sec. 72-506, N.M.S.A.1941. The trial court concluded that they were therefore void under the provisions of Sec. 72-511, N.M.S.A.1941 and cancelled them. It also gave the corporation judgment against the plaintiffs for the sum of $2,443.51 representing the meter deposits in their hands at the time of the transfer of the stock which they had credited on the note, but denied recovery as to the other items set up in the cross complaint.\\nApparently the parties to the stock transaction were not aware .of the fact that the permission of the Public Utility Commission was required before a public utility could mortgage its property to secure an indebtedness due in more than eighteen months until about the time the defendant filed a motion for a summary judgment, and the plaintiffs then asked permission to amend and set up that the defendant George W. Lewis was the sole owner of the stock of the corporation at the time of the execution and delivery of the note. Ruling on the motion was deferred until the hearing when another motion was filed asking that they be allowed to make George W. Lewis a party and asking that they be given a vendor's lien on the stock. The motion was denied by the trial court.\\nSec. 72-301, N.M.S.A.1941, declares the public policy of this state as to the regulation of public utilities and reads as follows:\\n\\\"72-301. Declaration of policy. \\u2014 (A) Public utilities as hereinafter defined, are affected with the public interest in that, among other things,\\n\\\"(1) A substantial portion of their business and activities involves the rendition of essential public services to large numbers of the general public.\\n\\\"(2) Their financing involves the investment of large sums of money, including capital obtained from many members of the general public.\\n\\\"(3) The development and extension of their business directly affects the development, growth, and expansion of the general welfare, business and industry of this state.\\n\\\"(B) It is the declared policy of this state that the public interest, the interest of consumers, and the interest of investors require the regulation and supervision of such public utilities to the end that reasonable and proper services shall be available at fair, just, and reasonable rates, and to the end that capital and investment may be encouraged and attracted so as to provide for the construction, development and extension of proper plants and facilities for the rendition of service to the general public and to industry.\\\"\\nThe applicable section of our statutes relating to the issuance of stocks, securities and indebtedness are Sections 72-506, 72-508, and 72-511, N.M.S.A.1941, and read as follows:\\n\\\"72-506. Issuance, assumption, or'guarantee of securities. \\u2014 The power of a public utility to issue, assume or guarantee securities, and to create liens on its property situated within this state is a special privilege, hereby subjected to the supervision and control of the commission as hereinafter in this act (\\u00a7\\u00a7 72-[ XXX-XX-XXXX ]) set forth. A public utility, when authorized by order of the commission and not otherwise, may issue stocks and stock certificates and may issue, assume or guarantee other-securities payable at periods of more than eighteen (18) months after the date thereof, for the following purposes and no other: For the acquisition of property; for the construction, completion, extension or improvement of its facilities; for the improvement or maintenance of its service; for the' discharge or lawful refunding of its obligations; for the reimbursement of moneys actually expended for said purposes from income or from any other moneys in the treasury not secured by or obtained from the issue, assumption or guarantee of securities, within five (5) years next prior to the filing of an application with the commission for the required authorization; or for any of the aforesaid purposes.\\\"\\n\\\"72-508. Exempted securities. \\u2014 A public utility may issue securities, other than stock or stock certificates, payable at periods of not more than eighteen (18) months after the date of issuance of same, and secured or unsecured, without application to or order of the commission, but no such securities so issued shall in whole or in part be refunded by any issue of stocks, stock certificates or other securities having a maturity of more than eighteen (18) months, except on application to and approval of the commission.\\\"\\n\\\"72-511. Securities void unless approved. \\u2014 All securities issued, assumed or guaranteed without application to and approval of the commission, except the securities mentioned in section 20 (\\u00a7 72-508) of'-this act, shall be void.\\\"\\nAs we held in Delgado v. Delgado, 42 N.M. 582, 82 P.2d 909, 118 A.L.R. 1175, ordinarily where parties to illegal contracts are in pari delicto, a court will leave them where it finds them, whether the contract is executory or executed, refusing relief to both. There is, however, an exception to this rule where the public interest is involved, and in such a case affirmative relief will not be denied, although one of the guilty parties may benefit. 13 C.J. Contracts, \\u00a7 441, 17 C.J.S., Contracts, \\u00a7 278a. As above stated, the trial court granted affirmative relief in cancelling the note and mortgages, and also in allowing recovery of the meter deposits. The question for determination is whether the general rule or the exception controls.\\nIt will be noted Section 72-301 declares it to be the public policy of the state to require the strict regulation of the financial affairs of public utilities, to the end that they, may be adequately financed and, among other things, render service at reasonable rates. Section 72-506 declares that the power to issue, assume or guarantee securities, and to create liens on its property situated within this state is a special privilege subject to the supervision and control of the commission. Section 72-508 exempts securities, secured or unsecured, which are payable in not more than eighteen months. Section 72-511 declares that all securities, other than those exempted, issued without application to and approval by the commission shall be void.\\nThe plaintiffs say that the Superior Utilities, Inc., was a one man corporation owned by George W. Lewis after his purchase of the stock and that it should not be allowed to urge the invalidity of the note and mortgages. We agree that debts should be paid, but we are confronted by the positive provisions of our Public Utility Act above set out. The plaintiffs contend'that securities issued in violation of the act are voidable only, and that under the facts of this case we should so construe it. We proceed to a consideration of these contentions.\\nThe plaintiffs cite our holding in State v. Southern Pacific Company, 34 N.M. 306, 281 P. 29, that statutes will be construed to prevent injustice, and say we should avoid a strict construction of the statute requiring the approval of the Public Service Commission before long term securities may be issued, to the end that a one man or family corporation may be held liable where its stockholders obtained the benefits of the transaction. This argument appeals to us but we are confronted by the legislative declaration of public policy.\\nIn discussing the question of whether an act was void or voidable Judge Cooley stated in Beecher v. Marq. & Pac. R. M. Co., 45 Mich. 103, 108, 7 N.W. 695, 697: \\\"If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris the purpose is sufficiently accomplished if they are given the liberty of avoiding it.\\\"\\nThe statement was quoted with approval by Mr. Justice Zinn in Kyle v. Chaves, 42 N.M. 21, 29, 74 P.2d 1030, in passing upon the question of whether the act of a treasurer in assigning a tax sale certificate was void or voidable.\\nExperience has taught that public utility companies cannot be allowed to contract indebtedness at will and run their affairs as it may please them, and when the legislature passed the 1941 Act for their control it gave the Public Service Commission broad powers over them. The statute is mandatory in form and declares the public policy of the state. As the intent and language is plain we must give it effect. Indebtedness created or stocks issued without permission of the regulatory bodies in states having similar statutes have been held void in Davis v. Watertown National Bank, Tex.Civ.App., 178 S.W. 593, P.U.R. 1915E, 531; Jones v. Abernathy, Tex.Civ.App., 174 S.W. 682; New York C. R. Co. v. Stevenson, 277 Ill. 474, 115 N.E. 633; Attorney General v. Massachusetts Pipe Line Gas Co., 179 Mass. 15, 60 N.E. 389; Augusta Trust Co. v. Federal Trust Co., 1 Cir., 153 F. 157; and in Re New York & R. Gas Co. (N.Y.) P.U.R.1918F, 439.\\nWithout passing upon the liability of the purchaser Lewis if suit be brought against him, we must hold that the note and mortgages are void so far as the defendant corporation is concerned, and the ruling of the trial court on this point was correct.\\nThe plaintiffs next urge that the trial court erred in granting the defendant utility company judgment for the meter deposits.\\nThis money had been deposited by customers to guarantee payment of their accounts, and as they might cease the purchase of gas they were entitled to a refund from the corporation of the amount deposited, less anything due on account. The plaintiffs had deposited this money in their individual accounts and instead of paying it over to the utility company they applied it on the note and mortgage. The corporation was liable to its customers for the amount due each from this trust fund.\\nThe plaintiffs say that the utility company is a one man or family corporation, and ask us to disregard the corporate entity, and cite State Trust & Savings Bank et al. v. Hermosa Land & Cattle Co., 30 N.M. 566, 240 P. 469, and United States Gypsum Co. v. Mackey Wall Plaster Co., 60 Mont. 132, 199 P. 249. If the public utility feature and our statutes relating to indebtedness created by public utilities Were not present, such argument would be very persuasive, but the fact remains that, the note on which this money was credited was void under our statutes. To deny affirmative relief on this item would be to dear the road for evasions of the mandatory features of the Public Utility Act. We hold that the action for the recovery of these deposits comes within the exception to the general rule.\\nThe next error claimed is on account of the refusal of the trial court to allow the piaintiffs to amend the complaint to make G.eorge W. Lewis .a party defendant and assert a vendor's lien on the stock acquired by the Lewis family.\\nThis application came late in the case and we cannot say that the court abused its discretion in denying it.\\nThe last claim of error is the refusal of the trial court to allow the plaintiffs judgment for $600 paid on a first mortgage to the Albuquerque bank. This money was paid by the plaintiffs, as they claim, to protect their second mortgage which we have held to be void. It is stated by the plaintiffs in their brief that the mortgage to the bank was also given without the per mission of the Public Service Commission. The ruling of the court on this item was also correct.\\nThe judgment will be affirmed, and it is so ordered.\\nBRICE, C. J., and LUJAN, SADLER and COMPTON, JJ., concur.\"}"
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+"{\"id\": \"1582480\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Alfredo ORONA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Orona\", \"decision_date\": \"1982-09-23\", \"docket_number\": \"No. 5730\", \"first_page\": \"668\", \"last_page\": 670, \"citations\": \"98 N.M. 668\", \"volume\": \"98\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:52:53.508956+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C. J., and LOPEZ, J., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Alfredo ORONA, Defendant-Appellant.\", \"head_matter\": \"651 P.2d 1312\\nSTATE of New Mexico, Plaintiff-Appellee, v. Alfredo ORONA, Defendant-Appellant.\\nNo. 5730.\\nCourt of Appeals of New Mexico.\\nSept. 23, 1982.\\nJohn B. Bigelow, Chief Public Defender, William P. Slattery, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\\nJeff Bingaman, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\", \"word_count\": \"676\", \"char_count\": \"4202\", \"text\": \"OPINION\\nHENDLEY, Judge.\\nDefendant appeals a denial of presentence confinement credit under \\u00a7 31-20-12, N.M.S.A.1978 (1981 Repl. Pamph.). We affirm.\\nDefendant was confined in the penitentiary at Santa Fe on a burglary charge unrelated to the perjury charge at issue here. He was transported to the Chaves County jail to answer the perjury charge. On his motion, because he was losing good time and missing school and work, he was transported back to Santa Fe after his waiver of arraignment. He was returned to Chaves County for the purpose of pleading guilty to the perjury charge and sentencing. His sentence for the perjury was one year consecutive to the burglary sentence. No provision was made for presentence confinement credit. His pro se motion sought credit for all the time he was under the perjury charges. His appeal narrows the time to only that time spent in Chaves County.\\nIn State v. Brewton, 83 N.M. 50, 487 P.2d 1355 (Ct.App.1971), defendant was serving a penitentiary sentence when he committed a misdemeanor. He pled guilty to the misdemeanor and wanted presentence confinement credit for the twenty-eight days between the time he was served with an arrest warrant for the misdemeanor and the time judgment on it was entered. This Court held \\u00a7 31-20-12, supra, inapplicable because defendant's \\\"confinement during this period was pursuant to his prior sentence.\\\"\\nState v. Barefield, 92 N.M. 768, 595 P.2d 406 (Ct.App.1979), recognized the possibility of obtaining credit for \\\"presentenee confinement even though he [defendant] was also confined, at the same time, in [another case]\\\". However, because the record in Barefield, supra, was ambiguous, this Court could not resolve the matter.\\nState v. Ramzy, 649 P.2d 504 (Ct.App.1982), however, dealt with specific facts. There, defendant was out on appeal bond in Case One when he committed the offenses for which he was charged in Case Two. Because of the Case Two charges, his appeal bond in Case One was revoked. At about the same time bond, which defendant did not make, was set in Case Two. Defendant's incarceration was, therefore, attributable to both the Case One and Case Two charges. Ramzy, supra, states that the decisive factor is \\\"whether the confinement was actually related to the charges of that particular case [for which credit is sought].\\\" Because 1) defendant was not originally confined in either case, 2) Case Two triggered the bond revocation in Case One, and 3) bond was set in Case Two, defendant's incarceration was \\\"undoubtedly partly, if not totally, caused by Case Two charges. There is sufficient connection between Case Two and the confinement . to warrant credit for such incarceration and confinement, even though he [defendant] was at the same time in custody . in Case One.\\\" Ramzy, supra.\\nOne question Ramzy, supra, directs us to ask is, is the confinement in Chaves County actually related to the perjury charge? State v. Martin, 94 N.M. 251, 609 P.2d 333 (Ct.App.1980), holds that defendant's confinement during the entire time at issue here is a penitentiary confinement. Ramzy, supra, noted three factors that caused defendant's confinement there to be related to Case Two. None of those factors are present here. First, defendant here did not start out unconfined. Second, the perjury charges did not cause his confinement in any way \\u2014 he was already confined. Third, there was nothing, such as bond being set in the perjury case, to even indicate that he was being held on the perjury charge. All we have here is a transfer of the place of confinement. The actual confinement being unrelated to the perjury charge, the trial court was correct under Brewton, Barefield, and Ramzy, supra, in denying defendant's motion for presentence confinement credit.\\nAffirmed.\\nIT IS SO ORDERED.\\nWALTERS, C. J., and LOPEZ, J., concur.\"}"
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+"{\"id\": \"1582603\", \"name\": \"Genevieve ARAGON, Plaintiff-Appellant, and Vickie Vigil, guardian of Rudy A. Aragon, Jr., Plaintiff-Appellee, v. ANACONDA MINING COMPANY, Employer and Insurer, Defendant-Appellee\", \"name_abbreviation\": \"Aragon v. Anaconda Mining Co.\", \"decision_date\": \"1982-04-20\", \"docket_number\": \"No. 5376\", \"first_page\": \"65\", \"last_page\": 69, \"citations\": \"98 N.M. 65\", \"volume\": \"98\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:52:53.508956+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C. J., and SUTIN, J., concur.\", \"parties\": \"Genevieve ARAGON, Plaintiff-Appellant, and Vickie Vigil, guardian of Rudy A. Aragon, Jr., Plaintiff-Appellee, v. ANACONDA MINING COMPANY, Employer and Insurer, Defendant-Appellee.\", \"head_matter\": \"644 P.2d 1054\\nGenevieve ARAGON, Plaintiff-Appellant, and Vickie Vigil, guardian of Rudy A. Aragon, Jr., Plaintiff-Appellee, v. ANACONDA MINING COMPANY, Employer and Insurer, Defendant-Appellee.\\nNo. 5376.\\nCourt of Appeals of New Mexico.\\nApril 20, 1982.\\nMichael G. Rosenberg, Michael G. Rosenberg & Associates, Albuquerque, for plaintiff-appellant.\\nJames G. Chakeres, Horton & Associates, Albuquerque, for plaintiff-appellee.\\nDeborah S. Davis, Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for defendant-appellee.\", \"word_count\": \"2780\", \"char_count\": \"16772\", \"text\": \"OPINION\\nLOPEZ, Judge.\\nThis case is an appeal from a judgment in a Workmen's Compensation case awarding all available death benefits of the deceased workman, Rudy A. Aragon, to his son, Rudy A. Aragon, Jr. We affirm.\\nThe appeal presents the following three issues: 1. Reduction of death benefits; 2. Apportionment of death benefits; and 3. Attorney's fees.\\nRudy Aragon was accidently killed while in the course and scope of his employment with Anaconda Mining Company. His mother claimed death benefits on the basis that she was at least partially dependent on her son. Then Aragon's acknowledged illegitimate son, Rudy Aragon, Jr., made a claim for benefits.\\nThe trial court found that the mother was partially dependent on the deceased, but it awarded no benefits to her. It awarded all available benefits to the deceased's infant son. The mother thus appeals the failure of the trial court to award her any death benefits. The son appeals the reduction of the maximum available benefits by 10% pursuant to \\u00a7 52-1-10, N.M.S.A. 1978.\\nReduction of Death Benefits\\nThe trial court made the following findings of fact regarding reduction of death benefits:\\n8. When killed, Rudy A. Aragon was working in an unsafe area of the mine despite warning signs and training by the company. He failed to use safety devices provided to him and on which he was trained by defendant, The Anaconda Company.\\nThe son challenges this finding and argues in his brief that \\\"it stretches the imagination as to how a statute designed to protect the workman can be used against his dependents to reduce their death benefits\\\". We disagree.\\nThe pertinent statute is \\u00a7 52-l-10(A):\\nA.In case an injury to or death of a workman results from his failure to observe statutory regulations appertaining to the safe conduct of his employment, or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under the Workmen's Compensation Act [52-1-1 to 52-1-69 NMSA 1978] shall be reduced 10%.\\nThere was evidence at trial to show that the deceased was aware that the area in which he was killed was unsafe and that he was not allowed there. There was substantial evidence to support the court's finding that Aragon was in an unsafe area, despite warnings and safety training, when a slab fell on him and killed him. Therefore, we conclude that the court's reduction of the available benefits was proper under \\u00a7 52-1-10(A).\\nApportionment of Death Benefits\\nThe mother challenges the judgment of the trial court, which awarded the maximum workmen's compensation death benefits minus 10% to the son of the deceased, and denied any benefits to her. Section 52-1-46, N.M.S.A.1978, governs workmen's compensation death benefits. The statute sets out a clear set of priorities in allocating these benefits:\\n52-1^46. Compensation benefits for death.\\nSubject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows:\\nA. if there be no eligible dependents, except as provided in Subsection C of Section 52 \\u2014 1\\u201410 NMSA 1978 of the Workmen's Compensation Act, the compensation shall be limited to the funeral expenses, not to exceed one thousand five hundred dollars ($1,500), and the expenses provided for medical and hospital services for the deceased, together with all other sums which the deceased should have been paid for compensation benefits up to the time of his death;\\nB. if there be eligible dependents at the time of the workman's death, payment shall consist of a sum not to exceed one thousand five hundred dollars ($1,500) for funeral expenses, and expenses provided for medical and hospital services for the deceased, together with such other sums as the deceased should have been paid for compensation benefits up to the time of his death, and compensation benefits to the eligible dependents as hereinafter specified, subject to the limitation of the maximum period of recovery of compensation of six hundred weeks;\\nC. if there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, to be computed and distributed as follows:\\n(1) to the child or children, if there be no widow or widower entitled to compensation, sixty-six and two-thirds percent of the average weekly wage of the deceased;\\n(2) to the widow or widower, if there be no children, sixty-six and two-thirds percent of the average weekly wage of the deceased, until remarriage; or\\n(3) to the widow or widower, if there be a child or children living with the widow or widower, forty-five percent of the average weekly wage of the deceased, or forty percent, if such child is not or all such children are not living with a widow or widower, and in addition thereto, compensation benefits for the child or children which shall make the total benefits for the widow or widower and child or children sixty-six and two-thirds percent of the average weekly wage of the deceased. When there are two or more children, the compensation benefits payable on account of such children shall be divided among such children, share and share alike; and\\n(4) two years' compensation benefits in one lump sum shall be payable to a widow or widower upon remarriage; however, the total benefits shall not exceed the maximum compensation benefit as provided in Subsection B of this section:\\nD. if there be neither widow, widower nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the workman for support at the time of the workman's death, twenty-five percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased workman for their care; provided, that if the father and mother, or the survivor of them, shall have been totally dependent upon such workman for support at the time of the workman's death, he, she or they shall be entitled to fifty percent of the average weekly wage of the deceased;\\nE. if there be neither widow, widower nor children, nor dependent parent, then to the brothers and sisters, and grandchildren, if actually dependent to any extent upon the deceased workman for support at the time of the workman's death, thirty-five percent of the average weekly wage of the deceased workman with fifteen percent additional for brothers and sisters and grandchildren in excess of two, with a maximum of sixty-six and two-thirds percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to partial dependents exceed the respective amounts contributed by the deceased workman for their care;\\nF. in the event of the death or remarriage of the widow or widower entitled to compensation benefits as provided in this section, the surviving children shall then be entitled to compensation benefits computed and paid as provided in Paragraph (1) of Subsection C of this section for the remainder of the compensable period. In the event compensation benefits payable to children as provided in this section are terminated as provided in Subsection E of Section 52-1 \\u2014 17 NMSA 1978, a surviving widow or widower shall then be entitled to compensation benefits computed and paid as provided in Paragraphs (2) and (4) of Subsection C of this section for the remainder of the compensable period; and\\nG. no compensation benefits payable by reason of a workman's death shall exceed the maximum weekly compensation benefits as provided in Section 52-1\\u2014 41 NMSA 1978 and no dependent nor any class thereof, other than a widow, widower or children, shall in any event be paid total benefits in excess of seven thousand five hundred dollars ($7,500) exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid for by the employer.\\nThe statute creates three classes of dependents eligible for death benefits: Class 1, surviving spouses and children of the deceased; Class 2, dependent parents of the deceased; and Class 3, dependent siblings and grandchildren of the deceased.\\nThe plain meaning of the statutory language quoted above gives children and surviving spouses priority over parents of the deceased, and both of those classes priority over the siblings and grandchildren of the deceased.\\nThe applicable subsection is (C)(1) which states that \\\"compensation shall be paid (1) to the child if there be no widow . . . sixty-six and two-thirds percent of the average weekly wage of the deceased[.]\\nThis language is very clear and unambiguous. The law in New Mexico is that when the language is clear and the intent of the legislature is understood, the provisions of the statutes are mandatory and we have a duty to follow it. See Security Trust v. Smith, 93 N.M. 35, 596 P.2d 248 (1979).\\nSubsection D, which allows benefits of a parent or a deceased workman, is not applicable in the case at bar because the workman left a surviving son. Subsection D applies only \\\"if there be neither widow, widower, nor children.\\\"\\nWe nevertheless, will discuss two New Mexico death cases involving allocation of death benefits.\\nIn Employer's Mutual Liability Ins. Co. of Wis. v. Jarde, 73 N.M. 371, 388 P.2d 382 (1963), the New Mexico Supreme Court interpreted a predecessor to \\u00a7 52-1-46, which contained similar language, with one exception, as to allocation of benefits. That exception appears in subsection C of 59-10-18.7, N.M.S.A. 1953 (Repl. Vol. 8, pt. 1, 1960), which was in effect at the time the workman in Jarde died. It reads as follows:\\nC. If there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, subject to the maximum limitation of thirty-eight dollars ($38.00 a week, as the court, bearing in mind the necessities of the case and the best interests of the dependents and of the public may determine, to be computed and distributed as follows:\\nThe pertinent quotation is \\\"bearing in mind the necessities of the case and the best interests of the dependents and of the public may determine^] \\\"\\nThe Supreme Court in Jarde held that the classes of beneficiaries set out in the statute were not mutually exclusive, and that the benefits could be divided between members of the different classes. It added the proviso that the amount awarded to all beneficiaries could not exceed the maximum amount of available benefits. In Jarde, as in the current case, the parties claiming benefits were the mother of the deceased and the child of the deceased. The trial court awarded benefits to the child and the mother, and the Supreme Court approved this award. In the Jarde case, the insurance company filed an interpleader action requesting that the mother and the son be decreed to interplead and settle among themselves their claims to benefits. Once the trial court determined that both claimants were entitled to a percentage of benefits, the insurance company appealed that part of the judgment which awarded benefits to the mother. The Supreme Court affirmed the trial judge's awards to both the mother and the child of the deceased, holding that \\\"the payment of compensation to the dependent daughter did not preclude the rights of the dependent mother.\\\" In that case, the mother and the child had agreed to the division of the benefits. In the case at bar, the mother is contesting the award of all available benefits to the son. We conclude that Jarde is not controlling because of the additional language in subsection C, as we have discussed, and because of the posture of the proceedings both at trial and on appeal and the position of the parties. However, we want to make it clear that we are not overruling Jarde. Delgado v. Alexander, 84 N.M. 717, 507 P.2d 778 (1973).\\nIn Cunnan v. Blakley and Sons, Inc., 93 N.M. 217, 598 P.2d 1177 (Ct.App.1979), this court held that the trial court's allocation of death benefits between a widow, a stepson and a son, which was presumably equitable, was not an abuse of discretion:\\nAccordingly, we cannot say as a matter of law that the trial court abused its discretion in making the allocation award. In so holding, we do not say that given a change of circumstance the trial court would be precluded from changing the percentage of distribution. Such would be within the equitable powers of the trial court, (citation omitted).\\nWe conclude that Cunnan is distinguishable from the case at bar. The parties were different. In Cunnan, the workman left a widow, a stepson and a son. In the case at bar there is no widow but only a son.\\nWe hold that the trial court followed subsection C(l) properly, and it did not err in its awards of all available benefits to the workman's son. The son had a statutory priority. There was substantial evidence to support the findings of the trial court and the findings supported the trial court's conclusions.\\nAttorney's Fees.\\nThe issue of attorney's fees is whether Anaconda should pay the appellate attorney's fees for the mother and/or the son of the deceased. Anaconda argues that no appellate attorney's fees should be awarded either party. Anaconda claims that it did not refuse to pay benefits; that it was only looking out for the child's best interests by requiring that the court decide the proper beneficiary before it would pay benefits. This court, in Lauderdale v. Hydro-Conduit Corporation, 89 N.M. 579, 555 P.2d 700 (Ct.App.1976), held contrary to Anaconda's position. The court stated as follows:\\nThe employer did refuse to pay compensation. Its answer to the claim of Pat, on behalf of the children, and its answers to the claims of Francies and Nellie were identical. The employer was willing to pay compensation to the dependents entitled thereto but did not know who they were and \\\"therefore withheld payments of compensation pending a determination by appropriate authority.\\\" This was a refusal to pay. (citation omitted)\\nAfter the employer's refusal to pay compensation, Pat, on behalf of the children, collected compensation in court proceedings. These two facts being established, the appellate court had authority to award attorney fees on appeal. Section 59-10-23(D), supra, does not limit this authority to situations where the employer appeals. The statutory authority exists even though the employer is satisfied with the trial court judgment and an unsuccessful claimant appeals in an effort to obtain a part of the compensation awarded to a successful claimant.\\nThe facts of this case show that our holding is equitable. On appeal, the employer has taken the position that it will pay compensation to the claimants held by this Court to be entitled to compensation. The employer has not attempted to defend the compensation award in favor of the children. It was left to Pat to defend the children's compensation against the efforts of Nellie and Francies to diminish the award to the children. Pat, on behalf of the children, is in the position of collecting compensation on the appeal by defending the trial court's award. Under \\u00a7 59-10-23(D), supra, the employer should pay a reasonable attorney fee for the successful defense on appeal. [\\u00a7 59-10-23(D) is equivalent to the current \\u00a7 52-l-54(D), N.M.S.A.1978.]\\nThe record shows that Anaconda did not defend the award of benefits to the son on appeal. Anaconda merely defended the decision to reduce benefits by 10%, and it argued that it should not have to pay the son's attorney's fees. Under the holding of Lauderdale, Anaconda is properly required to pay the son's appellate attorney's fees, and we award such fees in the amount of $1,800.00. We do not award any appellate attorney's fees to the mother.\\nThe judgment of the trial court is affirmed. The son is awarded appellate attorney's fees in the sum of $1,800.00.\\nIT IS SO ORDERED.\\nWALTERS, C. J., and SUTIN, J., concur.\"}"
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+"{\"id\": \"1584794\", \"name\": \"HUGHES et al. v. LIPPINCOTT\", \"name_abbreviation\": \"Hughes v. Lippincott\", \"decision_date\": \"1952-06-11\", \"docket_number\": \"No. 5437\", \"first_page\": \"473\", \"last_page\": 483, \"citations\": \"56 N.M. 473\", \"volume\": \"56\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:35:50.995536+00:00\", \"provenance\": \"CAP\", \"judges\": \"LUJAN, C. J., and SADLER, COMPTON, and COORS, JJ., concur.\", \"parties\": \"HUGHES et al. v. LIPPINCOTT.\", \"head_matter\": \"245 P.2d 390\\nHUGHES et al. v. LIPPINCOTT.\\nNo. 5437.\\nSupreme Court of New Mexico.\\nJune 11, 1952.\\nRehearing Denied July 2, 1952.\\nHenry J. Hughes, Santa Fe, for appellants.\\nSeth & Montgomery, Wm. R. Federici, Santa Fe, for appellee.\", \"word_count\": \"4536\", \"char_count\": \"25794\", \"text\": \"McGHEE, Justice.\\nThe controlling issue presented by this appeal is whether the defendant, Camilla Hare Lippincott, is to be' sustained in her contention the conveyance from which she derives title describes her property as bounded by a way, thus vesting in her an easement of passage over a private way. The plaintiffs and the defendant derive their respective titles to adjoining property from common grantors, Kenneth M. Chapman and wife. The deed in question was given October 1, 1941, to defendant's predecessor in title, Joseph T. Curtiss, and conveyed a tract of land fronting on a public street in the city of Santa Fe, New Mexico, the grantors retaining ownership of the portion directly behind the tract sold, not on a public street, together with a narrow strip approximately 20 feet wide, know as Plaza Balentin, to be used as a way to the public street, which private way extended past both properties. The property conveyed by the October 1,-1941, deed was described therein as follows:\\n\\\"Beginning at an iron pipe set for the Southeast corner, at the Northwest corner of the junction of Plaza Balentin with Acequia Madre Street, whence an iron pipe marking the Southwest corner of property of J. D. Slye at the Northeast corner of said junction bears S. 88\\u00b0 20' E. 23.0 feet distant;' thence N. 88\\u00b0 20' W. 113.95 feet along the North side of Acequia Madre Street to an iron pipe marking the Southwest corner of this property and the Southeast corner of property of Jack Davis; whence an iron pipe marking an angle point in the South \\u2022 line of said Davis property bears S. 89\\u00b0 49' W. 54.7 feet distant; thence N. 09\\u00b0 03' E. 131.2 feet to an iron pipe marking the Northwest corner; thence S. 76\\u00b0 28' E. 69.55 feet to an iron' pipe; thence N. 14\\u00b0 01' E. 11.75 feet to an iron pipe; thence S. 76\\u00b0 28' E. 30.95 feet to an iron pipe marking the Northeast corner; thence S. 32\\u00b0 02' E. 16.7 feet to an iron pipe on the West side of Plaza Balentin; thence S. 08\\u00b0 38' W. along the West side of Plaza Balentin 107.75 feet to the Southeast corner, the place and point of beginning. Bounded North by property of Mrs. K. M. Chapman; East by Plaza Balentin; South by Acequia Madre and West by Jack Davis and J. A. Lowe. Being a portion of Lots 49 and 50, Block 83, King's Official Map of the City of Santa Fe, New Mexico.\\\" (Emphasis supplied.)\\nThe plaintiffs, subsequent grantees from the Chapmans, sought to quiet title to the private way, Plaza Balentin, against the defendant's claim of easement therein. The trial court found substantially for the defendant and its pertinent findings of fact and conclusions of law were as follows:\\n\\\"2. Defendant, Camilla Hare Lippincott, is the owner of the following described real estate in the City of Santa Fe, County of Santa Fe, State of New Mexico (Being that property described in deed from Kenneth M. Chapman and wife to Joseph T. Curtiss.)\\n\\\"3. That Joseph T. Curtiss purchased the property now owned by Defendant Lippincott from Kenneth M. Chapman and Kate M. Chapman by warranty deed dated October 1st, 1941, recorded in Book 24 at Page 4 of the Records of Deeds in the office of the County Qerk of ' Santa Fe County, New Mexico, and that the description of the property in said deed is the same as set out in the warranty deed to Defendant Lippincott from Joseph T. Curtiss.\\n\\\"4. Kenneth M.. Chapman and Kate M. Chapman, his wife, were the common grantors of the land now owned by Plaintiffs and Defendant Lippincott.\\n\\\"5. Kenneth M. Chapman and Kate M. Chapman, his wife, were the owners of the fee in the way or street known as Plaza Balentin at the time they conveyed to Joseph T. Curtiss the property described in warranty deed dated October 1st, 1941, filed for record in Book 24 at Page 4 of the Records of Deeds of Santa Fe County.\\n\\\"6. That deed from Kenneth M. Chapman and Kate M. Chapman to Joseph T. Curtiss called for the way or street known as Plaza Balentin as a boundary.\\n\\\"7. The deed from Joseph T. Curtiss to Defendant Lippincott called for the way or street known as Plaza Balentin as a boundary.\\n\\\"8. Plaza Balentin is a continuous way from Acequia Madre Street to Delgado Street within the City of Santa Fe, State of New Mexico, and adjoins the property now owned by. the Plaintiffs and the Defendant Lippincott.\\n\\\"9. When Kenneth M. Chapman and Kate M. Chapman, his wife, common grantors, owned Plaza Balentin and adjoining property, the said way was used for all the premises adjoining said Plaza Balentin.\\n\\\"10. Joseph T. Curtiss has not abandoned any rights which he may have or may have had in and to Plaza Balentin.\\n\\\"11. Defendant, Camilla Hare Lip\\u2022pincott, has not abandoned any rights which she may have in and to Plaza Balentin.\\n\\\"12. Defendant, Joseph T. Curtiss, 'did not authorize any agent to abandon any rights, title or interest which he had in Plaza Balentin.\\n\\\"13. The most northeasterly corner of Defendant Lippincott's property, being an area of approximately 12 feet by 32 feet, was originally sold by Kenneth M. Chapman and Kate M. Chapman, his wife, to Joseph T. Curtiss as a site for a private garage.\\n\\\"14. If the most northeasterly portion of the property owned by Defendant Lippincott and formerly owned by Defendant Curtiss were to be used as a private garage, access to it could only be gained by and through Plaza Balentin, and thence over Plaintiffs' property.\\n\\\"15. The most northeasterly portion of Defendant Lippincott's property, being approximately 12 feet by 32 feet in area, abuts the way known as Plaza Balentin, and access to said area can not be had without first crossing any of plaintiffs'property.\\n\\u2756\\n\\\"17. Defendant Lippincott had no notice that Plaintiffs denied that her grantors had an easement in and to the Plaza Balentin.\\n\\\"18. On March 20th, 1948, Defendant Lippincott entered into an Agreement to sell her property to Aimee Seyfort Ruegg, and pursuant to said Agreement, Defendant Lippincott executed a warranty deed and placed same in escrow with the First National Bank of Santa Fe, New Mexico, and Mrs. Ruegg deposited with said Bank the balance of $17,000.00 due on the purchase price; that the said contract provided that the Bank should deliver the warranty deed to Mrs. Ruegg and the $17,000.00 to Defendant Lippincott upon receipt of approval of title by Mrs. Ruegg's attorneys; that no approval of title has been submitted to the Bank by Mrs. Ruegg's attorneys and no further delivery of either the deed or the money has been made by said Bank.\\\"\\nThe court then concluded as matters of law:\\n\\\"2. That the Defendant Lippincott is entitled to a decree quieting her title in and to the property set out in .Finding of Fact No. 2, as against the Plaintiffs herein.\\n\\\"3. Plaintiffs' fee simple title to the land and real estate described in the Complaint filed in the above cause is subject to an implied easement appurtenant to the property owned by Defendant Lippincott for the purpose of ingress and egress from and to said property for residential uses over the way known as Plaza Balentin to the full extent and, width thereof as it presently exists, insofar as it is upon Plaintiffs' property.\\n\\\"4. Where a conveyance of land calls for a way or street as a boundary, and the grantor owns the fee in the land represented as the way or street, the grantor and his heirs and those claiming under him are estopped to deny that there is a street or way to the extent so bounded on the way, and the grantee and those claiming through him acquire by the deed a perpetual easement and right of passage on and over it.\\n\\\"5. That since the deed of conveyance by Kenneth M. Chapman and Kate M. Chapman to Defendant Curtiss and the deed of conveyance by Defendant Curtiss to Defendant Lippincott called for the way or street, Plaza Balentin, as a boundary, Defendant Lippincott has an implied ease ment by law on and over Plaza Balentin appurtenant to her property.\\n\\\"6. There has been no abandonment of any rights which Defendant Lippincott may have in and to the way known as Plaza Balentin.\\n\\\"7. Under the Agreement dated March 20th, 1948, bewteen Defendant Lippincott and Mrs. Ruegg, Defendant Lippincott retained legal title to the property, and has a sufficient interest in said property, and is a proper party to defend the action brought by Plaintiffs and to prosecute her counterclaim against said Plaintiffs.\\\"\\nThe plaintiffs now contend (1) there can be easement by implication in New Mexico unless the same is \\\"by necessity\\\"; (2) that any right in the private way was excluded under the terms of the conveyance; that the sentence of the description in the deed to defendant's predecessor in title reading: \\\"Bounded North by property of Mrs. K. M. Chapman; East by Plaza Balentin; South by Acequia Madre and West by Jack Davis and J. A. Lowe.\\\" is inoperative to vest any right in the way because the first portion of the description by courses and distances excludes the way; that the reference to the way is descriptive merely and for purposes of location; and (3) that the original grantee, Curtiss, abandoned his claim to an easement and the defendant Lippincott cannot revive and assert the same.\\nAs to the first contention, plaintiffs are mistaken in their assertion there can be no easement by implication in New Mexico unless the same is \\\"by necessity.\\\"' They rely principally on the case of Michelet v. Cole, 20 N.M. 357, 149 P. 310, 311. That case involved an easement claimed to pass as an appurtenant to the property conveyed under a clause in the deed following the description, reading: \\\"together with all and singular the hereditaments and appurtenances thereto belonging.\\\" . Our court declared the grantee held no easement, in the. way contended for, on that basis, stating:\\n\\\"The general rule is, to which we know of no exception, that no right in a way, which has been used during the unity of possession, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. (Citing cases.)\\\"\\nWe did not have there before us the contention here made that an easement arises by implication from a deed describing the property conveyed as bounded by a way. As stated in 17 Am.Jur., Easements, Sec. 34, p. 948, and approved by this court in Venegas v. Luby, 49 N.M. 381, 164 P.2d 584, various elements are essential to create an easement by implication upon the severance of the unity of ownership in an estate. And it is true that among these elements is the requirement that the easement be reasonably necessary to the enjoyment of 'the dominant portion of the property. ' However, easements may be raised by ways other than by passing as an appurtenant upon the severance of unity of ownership. -As stated in a recent Ohio case, Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685, 689:\\n\\\"Easements may be implied in several ways \\u2014 from an existing use at the time of the severance of ownership in land, from a conveyance describing the premises as bounded upon a way, from a conveyance with reference to a plat or map or from necessity alone, as in the case of ways of necessity. (Citing authority.)\\\"\\nDifferent considerations are involved in the determination of easements arising in these differing ways. With the nature of the easement here contended for, necessity or the lack of it has no bearing. 28 C.J.S., Easements, \\u00a7 40, Page 704 et seq.; Anno: 122 Am.St.Rep. 216; New England Structural Co. v. Everett Distilling Co., 189 Mass. 145, 75 N.E. 85; Hill v. Taylor, 296 Mass. 107, 4 N.E.2d 1008; McPherson v. Monegan, 120 Mont. 454, 187 P.2d 542; Casella v. Sneirson, 325 Mass. 85, 89 N.E. 2d 8.\\nPlaintiffs quote from Burling v. Leiter, 272 Mich. 448, 262 N.W. 388, 100 A.L.R. 1312, to. support their claim easements are to be implied only in cases of necessity to prevent the fettering of estates; however, this case likewise involved an easement claimed to arise from an existing use at the time of severance, and the statements therein contained, as well as those in Michelet v. Cole, supra, have no application to the present determination.\\nWe now come to those matters raised under the second general contention of plaintiffs that any easement in the private way known as Plaza Balentin was excluded from the terms of the conveyance.\\nIt is the general rule and the rule followed in this state that where the-description of property conveyed calls for a road or way as a boundary and the grantor owns the fee in said way, an easement in' the way passes to the grantee and his heirs and assigns by implication of law. In Nickson v. Garry, 51 N.M. 100, 179 P.2d 524, 526, the authorities are collected and analyzed after this general assertion by our court:\\n\\\"If land is purchased under an agreement and representation that it would abut upon a street or alley, existing or to exist by the terms of the deed, and the grantor owns the land to be so used; the grantor and his heirs are estopped to deny the existence of the alley; and the purchaser acquires a right of way over the land in question.\\\"\\nIn the Nickson case a controversy arose over the ownership of a narrow strip of land being the south 15 feet of a lot in Roswell, New Mexico. The grantor conveyed away the north 35 feet of the lot in a deed containing the\\u2022 following language: \\\" and it is hereby understood and agreed that the remaining 15 feet of said lot shall be perpetually reserved for an alley.\\\" The heirs of the grantor contended for ownership of the strip in question, and we held, among other things, that the heirs of the grantor were estopped from claiming that the alley, though not in fact in existence prior to the execution of the deed, was created by the deed itself. We also quoted therein the following language from Hennessey v. Old Colony & N. R. Co., 101 Mass. 540, 100 Am.Dec. 127:\\n\\\" 'The whole extent of the doctrine is, that a grantor of land, describing the same by a boundary on a street or way, if he be the owner of such adjacent land, is estopped from setting up any claim, or doing any acts, inconsistent with the grantee's use of the street or way.' In one sense the deed operates as a conveyance of a right of way over the street; that is to say, the grantors and all claiming under them are estopped to deny the existence of the street, or do any act inconsistent with the plaintiff's use of it as such.\\\"\\nSee also, 17 Am.Jur., Easements, Sec. 46, p. 957; 14 Am.Jur., Covenants, Sec. 17, p. 494 ; 28 C.J.S., Easements, \\u00a7 40, page 704; 122 Am.St.Rep. 216 and Vol. 2 Thompson, Real, Property, Sec. 470 et seq.\\nPlaintiffs assert the deed in question does not \\\"bound the property by a way,\\\" but merely mentions .the way for purposes of description or location without any intention of making it the actual boundary of the land. It is generally stated in the .authorities cited last above that no easement is acquired by the grantee in such cases. We are referred by the plaintiffs to three cases in support of his contention: Lankin v. Terwilliger, 22 Or. 97, 102, 29 P. 268; Brizzalaro v. Senour, 82 Ky. 353; and Talbert v. Mason, 136 Iowa 373, 113 N.W. 918, 14 L.R.A.,N.S., 878.\\nIn the case of Brizzalaro v. Senour, the original owner executed a conveyance to a lot of ground defined by metes and bounds and designating one of the lines in the following manner: \\\"Thence northwardly with the east line of said bridge company sixty-five feet to a ten-foot alley (which extends from the east line of the said bridge property to Greenup street, running parallel with said Second street), thence eastwardly, The weight of the testimony was no such alley had been laid out in fact or on any map or survey by the grantor. The court recognized the grantor and his privies would be bound by estoppel but ruled a subsequent purchaser from the grantor would not be estopped on the basis that a mere recital in' the deed, although capable of work Ing an estoppel against the grantor, can neither vest or divest title.\\nIn Talbert v. Mason, supra, the exception to the general rule is recognized but the facts of that case did not place the conveyance within the exception.\\nOnly in the case of Lankin v. Terwilliger, supra [22 Or. 102, 29 P. 269] is the exception actually applied.. The description there involved read, in part, as follows:\\n\\\" commencing at a point on the west side of the county road at the south-east corner of a piece of land known as the 'Old Cemetery/ S chains south of the claim line between Terwilliger and Carruthers; thence with the meander of said road as follows: (describing by courses and distances.)\\\"\\nThe gist of the court's decision is contained in the following statement:\\n\\\"The starting point of the description is at a point on the west side of the county road at the south-east corner of a piece of land known as the 'Old Cemetery/ five chains south of the claim line. This corner of the cemetery lot is the controlling monument in the description, and is definite and certain without reference to the county road. In fact, if this corner is on the east side of the road instead of the west side, it would still be a controlling monument. The only reference to the road in the deed is for the purpose of description, as any other mark or monument might have been referred to, and with no intention of making it the actual boundary of the land, unless it should be coincident with the description as given in the deed. Such a description of the granted premises does not convey an easement in an adjoining highway. Merely referring to a highway for the purpose of description, as any other mark or monument, is very different from bounding the granted premises by a highway over the other lands of the grantor, and thereby exposing himself to the equities of an estoppel.\\\"\\nIn our opinion the present description does not fall within the rule stated in Lankin v. Terwilliger, supra. And furthermore, that portion of the description defining the property conveyed by courses and distances is, alone, sufficient on which to base the implication of an easement in the grantee in the private way known as Plaza Balentin. For convenience we again set out the pertinent part of that portion of the description:\\n\\\" thence S. 32\\u00b0 02' E. 16.7 feet to an iron pipe on the West side of Plaza Balentin; thence S. 08\\u00b0 38' W. along the West side of Plaza Bal entin 107.75 feet to the Southeast corner, (Emphasis supplied.)\\nIn American Steel Foundries v. Sibley Soap Co:, 3 Cir., 270 F. 70, 71, the common grantor first conveyed to the soap company a lot of ground:\\n\\\"Beginning at a point south 85 degrees 10 minutes and 50 seconds east, 25 feet from the northeast corner of land bargained to be sold by Daniel Grimm to the Franklin Steel Casting Company, the said point being the east side of a 40-foot street as agreed upon by said company with said Grimm; thence south 86 degrees 15 minutes 10 seconds west 73.9- feet, to the east line of said 40-foot street; and thence by the east line of said 40-foot street,\\nThis deed was duly recorded and thereafter the grantor conveyed to the predecessor in title of the steel foundry all his interest and title to a 20-foot strip which abutted the western line of the soap company's lot. In an action by the soap company to restrain the steel foundry from erecting buildings on this 20-foot strip, the soap company prevailed, the court stating:\\n\\\"The question involved is one of title and easements vested under certain deeds from a common grantor to both parties, and the determination of that question turns on the application to -those deeds of the decisions of the Supreme Court of Pennsylvania. Stated in general terms, the law of Pennsylvania is that, where an owner of lands grants a part of it, and designates as a boundary of the part sold a street on the part of the land which he retains; a right of way or easement to such street or way passes to the grantee by operation of law and the grantor cannot thereafter be heard to say no such street exists.\\n!|! *\\n\\\"This description located the western line of the lot sold as abutting on the east line of the 40-foot street. This deed the purchaser recorded on December 22, 1897. Under the then adjudged law of Pennsylvania, the grantees of said lot acquired thereby an easement or right of way of which the grantor could not, and did not, deprive them, when by his deed of November, 1900, he conveyed to the predecessor in title of the American Steel Foundaries all his interest and title to a 20-foot strip of land which abutted the western line of the soap company's lot,\\nThe similarity between the description involved in the American Steel Foundries case and the present one is apparent.\\nThe most recent case discovered in point is that of Casella v. Sneirson, 325 Mass. 85, 89 N.E.2d 8, 9, decided December, 1949. There an easement over a way between properties abutting on the way was in dispute. At one time the entire property was held by a common grantor. In 1922 the plaintiff's lot was conveyed to one, Durkiwicz, by a deed referring to the property as \\\"land in Waltham situated on the easterly side of Wall Street, a private way.\\\" The pertinent part of the description in that deed is quoted in the opinion as:\\n\\\"Beginning at the southwesterly corner of the granted premises at a point in the easterly line of said Wall Street at land of Hughes; thence running northerly on the easterly line of said Wall Street one hundred eight (108) feet more or less to a point\\nSubsequently Durkiwicz conveyed to the plaintiff employing the same description. Many years later the common grantor conveyed the remaining property held by him to the defendant's predecessors and the defendants later proposed to erect a garage on the property. It appeared that Wall Street had never been opened between the two properties, and the proposed garage would have interfered with plaintiff's right of way over what would have been a continuation of Wall Street. The ruling of the trial court that no easement was created in this portion of the property was reversed. The court stated, significantly, as follows:\\n\\\"Although there is some authority to the contrary, see McKenzie v. Gleason, 184 Mass. 452, 458-459, 69 N.E. 1076, 100 Am.St.Rep. 566; Wood v. Culhane, 265 Mass. 555, 558-559, 164 N.E. 622, we think it must be regarded as settled in this Commonwealth that a description which bounds property by the side line of a way is no less effective to give the grantee an easement in the way than a description which bounds the property by or on a way. Gaw v. Hughes, 111 Mass. 296; Cole v. Hadley, 162 Mass. 579, 39 N.E. 279; Driscoll v. Smith, 184 Mass. 221, 68 N.E. 210; Hill v. Taylor, 296 Mass. 107, 116, 4 N.E.2d 1008. we think that the judge erred in holding that the deed under which the plaintiff claims gave her no easement over Wall Street as continued beyond the point where it joins her lot and that of the defendants. To be sure, Wall Street along the plaintiff's westerly boundary had not been laid out at the time of the conveyance to Burkiwicz; nor was it shown on any plan referred to in his deed. But it was sufficiently designated by the reference in the deed so that the grantor and those claiming under him would be estopped to deny its existence,\\nSee also Malone v. Jones, 211 Ala, 461, 100 So. 831; and McPherson v. Monegan, 120 Mont. 454, 187 P.2d 542.\\nIn our opinion the deed in the present case clearly described the defendant's prop erty as bounded on the east by the private way, Plaza Balentin, in employing these terms: \\\" thence ' S. 32\\u00b0 02' E. 16.7 feet to an iron pipe on the West side of Plaza Balentin; thence S. 08\\u00b0 38' W. along the West side of Plaza Balentin 107.75 feet to the'. Southeast corner, \\u00bb'\\nBecause the precise description by courses and distances expresses the intention of the grantors to bound the premises hy the way, there is no 'conflict between it and the general description by metes and bounds appearing immediately after the description by courses and distances, in these words: \\\"Bounded North by property of Mrs. K. M. Chapman; East by Plaza Balentin; South by Acequia Madre and West by Jack Davis and J. A. Lowe.\\\" (Emphasis supplied.) It is, therefore, our view, and we so hold, when the two nonconflicting modes of description are read together the deed comes without question under the general rule as stated above and an easement of passage over the way vested in the defendant; and none other than an innocent purchaser for value without notice of the existing easement could divest the defendant's rights in the way. In the record before us plaintiffs have not brought themselves within that category. The trial court found the deed from the common grantors, Kenneth M. Chapman and Kate M. Chapman, was dated October 1st, 1941, and duly recorded in the office of the County Clerk of Santa Fe County. The deed bears the certification of the County Clerk that it was recorded October 24, 1941. The deed from the Chapmans to the plaintiffs was not executed until December 11, 1945. Nor are any other circumstances presented to defeat the easement of the defendant in the private way.\\nPlaintiffs contend lastly that the defendant or her predecessor has abandoned any right existing in the way, but it is our view the weight of the testimony supports the finding of the trial court otherwise. All other contentions by plaintiffs have either been abandoned or are deemed without merit.\\nThe judgment will be affirmed.\\nIt is so ordered.\\nLUJAN, C. J., and SADLER, COMPTON, and COORS, JJ., concur.\"}"
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+"{\"id\": \"1586422\", \"name\": \"The FIRST NATIONAL BANK OF SANTA FE, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWEST YACHT & MARINE SUPPLY CORP., et al., Defendants-Appellees and Cross-Appellants\", \"name_abbreviation\": \"First National Bank v. Southwest Yacht & Marine Supply Corp.\", \"decision_date\": \"1984-07-23\", \"docket_number\": \"Nos. 14961, 14974\", \"first_page\": \"431\", \"last_page\": 438, \"citations\": \"101 N.M. 431\", \"volume\": \"101\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:15.815755+00:00\", \"provenance\": \"CAP\", \"judges\": \"SOSA, Senior Justice, and RIORDAN and WALTERS, JJ., concur.\", \"parties\": \"The FIRST NATIONAL BANK OF SANTA FE, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWEST YACHT & MARINE SUPPLY CORP., et al., Defendants-Appellees and Cross-Appellants.\", \"head_matter\": \"684 P.2d 517\\nThe FIRST NATIONAL BANK OF SANTA FE, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWEST YACHT & MARINE SUPPLY CORP., et al., Defendants-Appellees and Cross-Appellants.\\nNos. 14961, 14974.\\nSupreme Court of New Mexico.\\nJuly 23, 1984.\\nShaffer, Butt, Thornton & Baehr, Norman L. Gagne, Rodney L. Schlagel, Albuquerque, White, Koch, Kelly & McCarthy, Benjamin Phillips, Santa Fe, for plaintiff-appellant and cross-appellee.\\nFairfield, Farrow, Hunt, Reecer & Strotz, P.C., John Farrow, Albuquerque, for defendants-appellees and cross-appellants.\", \"word_count\": \"3426\", \"char_count\": \"20756\", \"text\": \"OPINION\\nFEDERICI, Chief Justice.\\nThe opinion of this Court heretofore filed on February 20, 1984 is withdrawn and the following opinion is substituted therefor.\\nThe First National Bank of Santa Fe (Bank) brought this action in the District Court of Santa Fe County to collect amounts due pursuant to a promissory note and to replevy goods pledged as security for the payment of the promissory note. Southwest Yacht & Marine Supply Corporation (Southwest) filed a motion to dissolve the writ of replevin and an answer and counterclaim for damages for a wrongful replevin. The trial court found that the facts stated in the affidavit in replevin did not comply with the requirements of the New Mexico statutes and dissolved the writ of replevin.\\nThe Bank filed an amended affidavit in replevin to correct the defects in the original affidavit. The Bank then filed a motion for partial summary judgment on two grounds: first, that the filing of the amended affidavit cured the defects in the original affidavit in replevin; and second, that the Bank was not liable to Southwest in damages for wrongful replevin because Southwest's exclusive remedy for wrongful replevin was through NMSA 1978, Section 42-8-11. The trial court held that the amended affidavit in replevin did not relate back to cure the defects in the affidavit in replevin and denied that portion of the motion for partial summary judgment. The trial court granted the remaining portion of the motion for partial summary judgment. We reverse.\\nWe initially consider the constitutionality of New Mexico's replevin statute, NMSA 1978, Sections 42-8-1 to 22. New Mexico's present replevin statute reflects amendments adopted by the New Mexico State Legislature in 1975. 1975 N.M.Laws, ch. 249, \\u00a7 1 to 10. This Court had previously held that the law as it existed prior to these amendments, NMSA 1953, Sections 36-13-1 to 6 (Supp.1971), was unconstitutional. Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972); Accord Sena v. Montoya, 346 F.Supp. 5 (D.N.M.1972). Our decision in Montoya v. Blackhurst was based on the United States Supreme Court's decision in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In that case, replevin statutes which were substantially similar to New Mexico's were held to be unconstitutional insofar as they did not provide an opportunity for the party in possession of the chattels to be heard prior to the repossession. The Court stated that its holding was a narrow one, and it recognized the power of a state to seize goods before final judgment in certain circumstances. Id. at 96, 92 S.Ct. at 2002. Subse quent to its opinion in Fuentes, the United States Supreme Court in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), established the minimum due process requirements that a replevin statute must meet in order to be constitutional. These requirements were set out by the Supreme Court of Florida as follows:\\n(1) the law requires plaintiffs to show facts indicating a right to the property sought to be replevied, and the allegations must be verified;\\n(2) an application for replevin without notice must be presented to a judge, as opposed to a ministerial court official;\\n(3) the facts alleged must show the necessity for replevin, which is sufficiently shown if the debtor is in possession of the property and the applicant establishes that there is a possibility of waste, concealment or transfer of the property, or that the debtor is in default on his payments;\\n(4) the plaintiff must post a bond to protect the debtor from mistaken repossession; and\\n(5) the debtor must be entitled to an immediate hearing on the issue of possession.\\nGazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978).\\nThe 1975 amendments to the New Mexico replevin statute incorporated into the statute the requirements articulated by the United States Supreme Court in Mitchell. New Mexico's replevin statute now complies with the Mitchell standards, and is therefore constitutional.\\nAny replevin action initiated pursuant to New Mexico's statute must comply strictly with the statutory requirements in order not to violate a defendant's due process rights. Cf. Lowery v. Garfield County, 122 Mont. 571, 208 P.2d 478 (1949). Before a writ of replevin is issued, an affidavit must be filed in district court stating, among other things, that the plaintiff has reason to believe that during the pendency of the action the defendant may conceal, dispose of, or waste the property or the revenues therefrom or remove the property from the jurisdiction. NMSA 1978, \\u00a7 42-8-5(C). The affidavit must also state specific facts from which it clearly appears that the allegations are justified. NMSA 1978, \\u00a7 42-8-5(E).\\nIn this case, the original affidavit did not comply with the above requirements, and therefore the trial court correctly quashed the writ of replevin it had previously entered. The trial court did, however, grant the Bank leave to amend its affidavit. Such amendments are allowed by statute: \\\"[W]here an original writ of replevin has been quashed for defect in the affidavit the court shall allow an amendment thereof to cure the defect, under such circumstances as amendments of ordinary pleadings are allowed by law and with like effect \\\" NMSA 1978, \\u00a7 42-9-14. The issue presented is whether the amendment of an affidavit in replevin relates back to the date of the original affidavit. We hold that it does.\\nOur rules provide that \\\"[wjhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.\\\" NMSA 1978, Civ.P.R. 15 (Repl.Pamp.1980). Amendments to pleadings are favored, and should be liberally permitted in the furtherance of justice. Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965). This liberality extends to replevin actions. Vigil v. Johnson, 60 N.M. 273, 291 P.2d 312 (1955). Applying the cited statutes and case law to the facts in the present case, we find that the amended affidavit did relate back to the time of the filing of the original affidavit in replevin. We therefore reverse the trial court on this issue.\\nOn cross appeal, Southwest contends that the trial court erred in limiting damages recoverable for wrongful replevin to those set forth in NMSA 1978, Section 42-8-11. We agree. Southwest's counterclaim raised claims of conversion, fraud, wrongful acceleration of a promissory note, breach of contract, negligence and negligent misrepresentation in addition to the wrongful replevin claim. All of these theories rely on the operative facts of the wrongful seizure of Southwest's property pursuant to the wrongfully issued writ of replevin. Southwest's remedies for wrongful replevin are limited by the replevin statute. The replevin statute does not, however, preclude other causes of action Southwest may have which arose independent of any wrongful replevin.\\nTwo sections of New Mexico's replevin statute provide remedies for situations in which a wrongful replevin has occurred. Should the plaintiff in a replevin action fail to prosecute his suit with effect and without delay, the defendant may recover either the property taken, or its assessed value, and double damages for the use of the property from the time of its taking. NMSA 1978, \\u00a7 42-8-11. This section found its origin in the Code of Civil Procedure passed in 1847, appeared in the 1897 compilation of the laws of New Mexico, NMCL 1897, Section 2749, and has not since been amended.\\nA second remedy was added by the Legislature when it amended the replevin statute in order to meet constitutional due process requirements. 1975 NM Laws, ch. 249, \\u00a7 7. The added section provides, in part:\\nUpon the defendant's motion before trial, the district court shall determine the truth of the facts stated in the plaintiff's affidavit at a hearing, to be held without delay. If the plaintiff fails to prove the truth of the facts stated, the writ shall be dissolved, the plaintiff shall be ordered to return the property to the defendant and an order shall be entered for the defendant against the plaintiff and his sureties for the attorney's fees incurred in the dissolution of the writ and for double damages for the use of the property from the time of its delivery to the plaintiff.\\nNMSA 1978, \\u00a7 42-8-19(A).\\nThe Bank contends that these two sections are mutually exclusive; that once Southwest chose not to accept the Bank's offer to return the wrongfully replevied property it limited its remedies to those available under Section 42-8-11. We disagree. Southwest is not limited to remedies found in only one section of the replevin statute. The two sections address two separate wrongs.\\nSection 42-8-19 addresses the specific failure of the plaintiff to prove the truth of the facts stated in his affidavit. The statute was enacted to avoid due process problems that arise when property is taken in an ex parte action based on an insufficient or unsubstantiated affidavit. The statute requires the district court to order the plaintiff to return the property to the defendant. The defendant is not obligated to accept the tender, and failure to so accept does not prevent the defendant from recovering attorney fees incurred in the dissolution of the writ. NMSA 1978, \\u00a7 42-8-19. By failing to accept the tender, however, the defendant limits the damages recoverable to those suffered during the period from the wrongful taking to the date of the tender.\\nSection 42-8-11, on the other hand, was the original remedy provided by the Legislature. It allows the defendant to recover judgment in case the plaintiff fails to prosecute his suit with success and without unreasonable or unnecessary delay. Riggs v. Gardikas, 78 N.M. 5, 427 P.2d 890 (1967). The statute is merely directory, and the defendant must show injury in order to recover under this statute. Vigil v. Johnson, 60 N.M. 273, 291 P.2d 312 (1955).\\nIn construing a statute, the overriding concern of the Court is to ascertain and give effect to the intention of the Legislature. Arnold v. State, 94 N.M. 381, 610 P.2d 1210 (1980). In determining legislative intent, the Court will look primarily to the language used, yet may also consider the history and background of the statute in question. Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980). Under the language of the statutes, it is clear that the remedies provided are not mutually exclusive. Additionally, the history of Section 42-8-19 indicates that it was enacted to prevent a defendant from being forced to pay his own attorney fees to quash a writ issued based on a defective affidavit. Such payment of fees would subvert the due process requirements established in Mitchell v. W.T. Grant Co. Finally, statutes which relate to the same subject matter should, if possible, be construed to give effect to every provision of each. State ex rel. State Park and Recreation Commission v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966).\\nPursuant to Section 42-8-19, Southwest may only recover reasonable attorney fees which it may have incurred in the dissolution of the wrongfully issued writ of replevin. No attorney fees are recoverable for otherwise defending the replevin action. Riggs v. Gardikas, 78 N.M. 5, 427 P.2d 890 (1967).\\nThe final issue we address is what damages Southwest may recover under the statutory remedy of double damages for use of the property from the time of delivery to the plaintiff. In Giannini v. Wilson, 43 N.M. 460, 95 P.2d 209 (1939), the plaintiff brought a premature suit in replevin for the defendant's automobile and judgment was entered for the defendant on his cross-complaint for wrongful replevin. We recognized that the defendant's remedies were limited by the replevin statute:\\nWhether the replevin was simply a mistake of fact upon the part of the appellant or was in bad faith as found by the lower court is immaterial. The statute settles the matter for us. The measure of damages in this case as fixed by the statute is the amount of injury inflicted upon the appellee by the wrongful replevin appellant sued out against the appellee.\\nId. at 468, 95 P.2d at 213. We went on to say that the statute allows for a flexible determination of defendant's damages:\\nWhen the appellant failed in his replevin suit, he was a tortious invader of the property rights of the appellee, with double damages imposed upon him by statute. The measure of damage is the amount which will compensate for all of the detriment proximately caused by the wrongful replevy, and then doubled as provided by statute.\\nId. at 469, 95 P.2d at 214. However, after stating this rather broad definition of damages recoverable under the statute, the Court limited the amount which the defendant could recover to the reasonable rental value of the automobile.\\nIn this case the measure of damages recoverable by Southwest for the Bank's wrongful replevin is double damages for the use (or reasonable rental value) of the property wrongfully replevied, for the period of time from its wrongful taking to its tendered return.\\nAdditionally, if Southwest has any claims sounding in tort or contract which are based on action taken by the Bank independent of and apart from the replevying of Southwest's inventory, these claims are not barred by the replevin statute, and therefore summary judgment on this issue was improper.\\nThe cause is remanded to the trial court for further proceedings in accordance with this opinion.\\nIT IS SO ORDERED.\\nSOSA, Senior Justice, and RIORDAN and WALTERS, JJ., concur.\\nSTOWERS, J., dissents.\"}"
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+"{\"id\": \"1586469\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ada Sheldon GRISCOM, Defendant-Appellant\", \"name_abbreviation\": \"State v. Griscom\", \"decision_date\": \"1984-06-05\", \"docket_number\": \"No. 7539\", \"first_page\": \"377\", \"last_page\": 380, \"citations\": \"101 N.M. 377\", \"volume\": \"101\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:15.815755+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD and HENDLEY, JJ\\u201e concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ada Sheldon GRISCOM, Defendant-Appellant.\", \"head_matter\": \"683 P.2d 59\\nSTATE of New Mexico, Plaintiff-Appellee, v. Ada Sheldon GRISCOM, Defendant-Appellant.\\nNo. 7539.\\nCourt of Appeals of New Mexico.\\nJune 5, 1984.\\nCertiorari Denied June 20, 1984.\\nJanet Clow, Chief Public Defender, Katherine Pettit, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\\nPaul G. Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\", \"word_count\": \"1405\", \"char_count\": \"8624\", \"text\": \"OPINION\\nBIVINS, Judge.\\nConvicted of eight counts of fraud in violation of NMSA 1978, \\u00a7 30-16-6 (Cum. Supp.1983), defendant appeals raising two issues: (1) whether the trial court erred in refusing her requested instruction on mistake of fact; and (2) whether the trial court erred in admitting hearsay evidence under the business records exception. We affirm.\\nThe transactions which gave rise to these charges occurred over a three-month period, starting in November, 1982. Defendant arrived in Albuquerque at that time after \\\"hocking\\\" her jewelry. She had previously called her sister-in-law in Albuquerque from Texas asking for money so that she could come to New Mexico and enter a hospital.\\nAfter the sister-in-law returned from a trip during the Thanksgiving holidays, she learned that defendant had leased an expensive home with an option to purchase. She had also purchased a Cadillac and leased office space from the same people who sold her the house.\\nDefendant told her sister-in-law, the people who leased the house and office and sold her their car, and other creditors that she was the trust officer for the Saudi Arabia Bank of Belgium (SABB), which was owned by the royal family of Saudi Arabia, and that she had been directed to establish an office in the United States to place loans. Defendant claimed to work directly under Joseph Ayoub, a Lebanese, who during the course of the transactions in question was allegedly hiding, engaged in peace talks or under house arrest.\\nA flurry of activity followed defendant's representations. She purchased furniture, waterbeds, video equipment, a water filter system and other items for the house, and installed furniture, office equipment, a phone system and a telex with direct lines to Belgium and Saudi Arabia for the office. She also engaged an interior decorator to assist her.\\nFor the goods and services acquired, defendant gave drafts on SABB or promises of payment in the future. The drafts were written on sight drafts or blank checks she purchased from an office supply store. A construction worker who at the time was selling meat door-to-door was engaged by defendant as SABB's on-site inspector for developments that would be financed by SABB. He was never paid.\\nIn making her representations, defendant spoke of having a country estate in England, a flat in Paris, and numerous cars, including a Maserati. She described the SABB offices in Belgium in detail.\\nThe State's theory was that all of these trappings were part of the web defendant was spinning to lure prospective borrowers to pay an advance fee for non-existent loans. It all came to an end when the drafts were returned unpaid and the creditors became suspicious. In February, with creditors in the outer office, defendant met with and obtained from some California businessmen a check for $150,000 representing an advance fee for a loan. She displayed the check to the creditors. The people who leased defendant their house and office space attempted to negotiate that check. It never cleared. Criminal charges followed.\\n1. Mistake of fact instruction\\nDefendant tendered the following instruction:\\nEvidence has been presented that Ada Griscom believed that SABB existed and she could draw upon funds in SABB. If Ada Griscom acted (or omitted to act) under an honest and reasonable believe [sic] in the existence of those facts, you must find her not guilty____\\nNMSA 1978, UJI Crim. 41.15 (Repl.Pamp. 1982).\\nDefendant contends the refusal to give this instruction constituted reversible error because intent is an essential element of fraud and because evidence supports her theory that she acted on the honest belief that the SABB existed and that she was authorized to draw funds from an account at that bank.\\nIn support of the instruction defendant relies on two lines of evidence. First, she refers to the fact that she consistently represented herself as a trust officer of SABB, and appeared concerned, as testified to by others, when the drafts failed to clear. She also cites the testimony of the interior decorator that defendant appeared excited when it seemed that a loan had been made to a California company and that she would be receiving funds to pay her bills. Defendant implies that these and other facts prove her story was consistent.\\nSecond, defendant points to testimony by a Colorado lawyer that defendant helped set up a meeting between the lawyer and Joseph Ayoub in Brussels. This lawyer said he met Joseph Ayoub and saw papers which mentioned the name \\\"SABB\\\".\\nIntent is an essential element of fraud which may be established by inference from the evidence and surrounding circumstances. State v. Martinez, 95 N.M. 795, 626 P.2d 1292 (Ct.App.1979). In each of the elements instructions, covering the eight separate counts of fraud, the trial court instructed the jury that the State had to prove, inter alia, that \\\"defendant, by any words or conduct, made a promise she had no intention of keeping .\\\" (emphasis added). In six of those instructions we find the additional language \\\"intending to deceive or cheat\\\".\\nThus, all the tendered instruction does is restate in a slightly different manner what has already been covered by other instructions. \\\"Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions.\\\" State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981) (citation omitted). Our reading of Venegas leads us to conclude that whenever an intent instruction involving the defendant's mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction. Without deciding whether the evidence defendant presented supports her asserted defense, we hold that the instructions given adequately covered any mistake of fact claim.\\nThe trial court did not err in refusing to give defendant's tendered instruction on mistake of fact.\\n2. Business records\\nDefendant contends that the trial court erred in admitting into evidence State's Exhibits 40 and 41: telex communications between a Denver bank and a Brussels bank regarding collection on a draft drawn on the Saudi Arabia Bank of Belgium signed by defendant and made payable to a third party. The Belgian bank informed the Denver bank that \\\"Bank of Belgium totally unknown in Belgium we have checked private address appearing on check maker unknow [sic]. We also confirm drawer entertains no account in our bank.\\\" Ms. Stevens, a representative of the Denver bank through whom these exhibits were offered, testified on tender, that these communications were not actually made in the ordinary course of business at the time the check in question was returned but that they should have been, since the reason for the return was not clear. She made the inquiry sometime later at the request of the prosecutor in the present case, but said she made the follow-up inquiry in the course of the Denver bank's business in order to protect that bank.\\nDefendant complains that these records should not have been admitted under the NMSA 1978, Evid.R. 803(6) (Repl.Pamp. 1983) exception to the hearsay rule because the messages were not sent out at or near the time of the bank's attempt to collect on the draft nor were they a part of the bank's regularly conducted business activity-\\n15] Assuming, without deciding, that the messages did not fall within the business records exception, any error in admitting them was harmless. State v. Martinez, 99 N.M. 48, 653 P.2d 879 (Ct.App.1982). There was other testimony, without the message, to establish that SABB did not exist at the address shown on the checks and was unknown in Belgium. The Belgian police officer testified as to his own investigation. Defendant did not cross-examine. Ms. Stevens could find no such bank in the reference book she examined. Moreover, defendant never really challenged this evidence. She argued that SABB existed on paper but that Joseph Ayoub never got it off the ground. Thus, we hold that in light of this cumulative and unchallenged evidence, defendant was not harmed by the admission of the two exhibits.\\nWe affirm the judgment and sentence.\\nIT IS SO ORDERED.\\nWOOD and HENDLEY, JJ\\\" concur.\"}"
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+"{\"id\": \"1586546\", \"name\": \"CONTINENTAL OIL CO. v. CITY OF SANTA FE (two cases)\", \"name_abbreviation\": \"Continental Oil Co. v. City of Santa Fe\", \"decision_date\": \"1932-10-14\", \"docket_number\": \"Nos. 3796, 3800\", \"first_page\": \"343\", \"last_page\": 350, \"citations\": \"36 N.M. 343\", \"volume\": \"36\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:40:57.607902+00:00\", \"provenance\": \"CAP\", \"judges\": \"BICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur. \\u25a0\", \"parties\": \"CONTINENTAL OIL CO. v. CITY OF SANTA FE (two cases).\", \"head_matter\": \"15 P.(2d) 667\\nCONTINENTAL OIL CO. v. CITY OF SANTA FE (two cases).\\nNos. 3796, 3800.\\nSupreme Court of New Mexico.\\nOct. 14, 1932.\\nE. R. Wright and Donovan N. Hoover, both of Santa Fe, for Continental Oil Co.\\nM. W. Hamilton and Charles Fahy, both of Santa Fe, for City of Santa Fe.\", \"word_count\": \"3097\", \"char_count\": \"18207\", \"text\": \"WATSON, J.\\nChapter 159, Laws 1931, attempts to authorize a municipal excise on sales of gasoline, not to exceed one cent per gallon. Its text will be essential to an understanding of the controverted questions, and of our conclusion as to its meaning. Inserting it here, we omit section 2, which merely defines terms.\\n\\\"An Act Relating to the Assessments and Collection of License Tax Upon Gasoline and Oils Sold Within Municipalities.\\n\\\"Section 1. That the governing bodies of certain towns and villages, whether incorporated under general or special act, shall have the power to fix and have collected a license tax upon gasoline and motor fuel sold within the limits of such municipalities and shall have the power to fix the amount of the license tax to be paid thereon; Provided, that no such license tax shall exceed the sum of one cent per gallon upon such gasoline and motor fuel sold within such municipality.\\n\\\"Sec. 3. That where gasoline or motor fuel is sold by a distributor of gasoline to a retail dealer in gasoline and subsequently sold by the retail dealer in gasoline to the consumer, the sale by the distributor of gasoline shall be construed as the taxable sale for purposes of this act. Provided, how.ever, that where the sale from the distributor of gasoline to the retail dealer in gasoline takes place outside the limits of any incorporated city, town or village and the sale from the retail dealer in gasoline to the consumer takes place within the limits of any municipality, the sale by the retail dealer within the limits of such municipality shall be construed as the taxable sale for the purposes of this act and such sale by the distributor of gasoline shall not be taxed by the county in which the sale is made.\\n\\\"Provided, further, that where the sale from the distributor of gasoline to the retail dealer in gasoline takes place within .the limits of any municipality and the sale from the retail dealer in gasoline to the consumer takes place outside the limits of such municipality, the sale by the retail dealer outside the limits of such municipality shall be construed as the taxable sale for the purposes of this act and such sale by the distributor of gasoline shall not be taxed by the municipality within which the same is made.\\n\\\"Sec. 4. That the adoption and publication of an ordinance in the manner provided by law providing for such license tax shall be sufficient to put the same into effect in any municipality.\\n\\\"Sec. 5. That the legislative and governing bodies of municipalities shall have the power to provide for the payment of such license tax within their respective jurisdictions, monthly, quarterly and semi-annually, as they deem proper and shall have the power to require the filing of monthly, quarterly and semi-annual or annual reports, by distributors of gasoline and retail dealers in gasoline, showing the quantity of gasoline and motor fuel sold within such jurisdiction during such specified period. Provided, further, that upon request, the State Comptroller, or such other officer or agency as shall be authorized by law to collect the state excise tax upon the sale, of gasoline, shall furnish to any such city, town or village a statement of gasoline and motor fuel sold within the jurisdiction of such city, town or village as disclosed by the records of such officer or agency authorized by law to collect the state excise tax upon the sale of gasoline.\\n\\\"Sec. 6. That all such license taxes so collected within the limits of any -municipality shall be paid into the municipal treasury to be used for general municipal purposes or for any special purpose in the discretion of the governing authorities of the municipality.\\n\\\"Sec. 7. That where any municipality elects to assess the license tax herein provided for, the same shall be in lieu of any other license or occupation tax which said municipality may be authorized to assess and collect against such dealers in gasoline aiffi oils.\\n\\\"Sec. 8. Municipalities shall have the power to provide by ordinance for penalties for the failure to make reports and remittances as provided in this act, or who shall knowingly sell or distribute any gasoline or motor fuel without the tax thereon having been paid, as specified by the ordinance of said city. Any distributor or retail dealer who shall fail to make reports and remittances required under any resolution of the board of county commissioners, under the provisions of this act, or who shall knowingly sell or distribute any gasoline without paying the tax thereon due to such municipality shall, upon conviction, be fined not less that fifty dollars nor more than one thousand dollars for each offense.\\\"\\nUndertaking to exercise this power, the city of Santa Ee passed Ordinance 800, exacting such excise on sales made on and after June 20, 1931. Under protest, plaintiff paid the amount accrued for the remainder of June, and, upon its suit to recover the payment, had judgment. The city's appeal is here docketed as No. 3796.\\nOrdinance 800 was repealed by Ordinance 875, effective January 7, 1932. Under protest, plaintiff paid the sum accruing under this ordinance up to February 1. In its -action to recover this payment, it failed. Its appeal is here docketed as No. 3800.\\nThe two causes have been submitted together. No. 3796 presents one question not common to both. It will be reserved until the last. Continental Oil Company, being plaintiff in both cases, will be so referred to.\\nIts first point is that the enabling statute, chapter 159, supra, does not extend the power to cities, and consequently not to the city of Santa Fe. The contention is based on the language of section 1: \\\"That the governing bodies of certain towns and villages shall have the power. \\\"\\nIf section 1 stood alone, it would be impossible to conclude that cities were affected by it. But it cannot st-and alone. Even towns -and villages could not rely upon it. The power is granted, not to all, but to \\\"certain,\\\" towns and villages. What towns and villages are affected must be determined from the further provisions of the act. Examining them we find, strangely, nothing to define \\\"certain.\\\" Having implied at the outset that some towns and villages only are included, the act proceeds exactly as if all were embraced.\\nHence the statute is ambiguous on its face. It calls for construction. If \\\"certain\\\" remains, it is destructive of the whole act. No municipality can be identified as a repository of the power. Unless the act is to be entirely ineffectual, there are but two alternatives: \\\"Certain\\\" must be discarded as superfluous and meaningless, or it must be determined from the other provisions what special meaning it bears, or what different word was intended.\\nIt is very significant that if the word \\\"cities\\\" be substituted for \\\"certain,\\\" complete harmony will result. The propriety and necessity of this substitution is strongly suggested by the fact that the word \\\"cities\\\" obtrudes into the statute in manner inexplicable unless it was intended to confer this power upon cities. And, more particularly, \\\"cities, towns and villages\\\" occurs more than once as synonymous with \\\"municipalities\\\"; the latter term being used throughout the title and body of the act in describing the recipients of the power.\\nIt may also be noted that the act bears on its face conclusive evidence of haste and carel\\u00e9ssness in framing. The title and section 7 would indicate that oil as well as gasoline was to be taxed. Such purpose, no doubt once entertained, was not carried out. Sections 3 and 8 indicate that it was once proposed to confer the power on counties. Section 8 actually prescribes the penalty for failure to make reports and remittances required by resolution of a board of county commissioners.\\nThe tax may be imposed upon both distributors and retail dealers. Section 5. But as to any particular gasoline, it is evidently not the intent that more than one sale shall be taxable. Section 3. So as counties were to have the same power as \\\"municipalities,\\\" and as the retail sale might take place in a county, and the distributor's sale in a municipality, or vice versa, section 3 specifies which of the sales is to be taxed under given circumstances, and which, county or municipality, is to have the revenue. In this section we find \\\"incorporated city, town or village\\\" used as. synonymous with \\\"municipality.\\\" Here it is entirely plain that taxation by cities was contemplated.\\nSection 5, as well as section 1, directly confers the power. Here the term \\\"municipalities\\\" is used, as in the title and elsewhere. In aid of the power, this section requires the state comptroller to furnish required information to \\\"any such city, town or village,\\\" as to gasoline sold \\\"within the jurisdiction of such city, town or village.\\\" Why was this right of information given to the city of Santa Pe if it is not to be employed in collecting its revenue?\\nSection 4 makes the adoption of an ordinance sufficient to put the tax into effect \\\"in any municipality.\\\" Section 6 implies that the tax may be collected in \\\"any municipality.\\\" Section. 7 implies that \\\"any municipality\\\" may elect to assess it.\\nThese considerations lead us to the conclusion that the troublesome word \\\"certain\\\" appears in section 1 by inadvertence, and in place of the word \\\"cities.\\\" Having thus determined the legislative intent from the face of the statute alone, the question is whether we should effectuate it, or whether, being merely a court and without legislative power, we must see the statute fail.\\nInterpretation of legislative language is the constant business of the courts. It has but one legitimate purpose; to arrive at and effectuate the true intent. This is to be determined, not from any one word or phrase, but from the whole enactment. The courts may not substitute their own wisdom and policy for the Legislature's. But they should not attribute to that co-ordinate branch an utterly unreasonable, inexplicable, and inef fectual intent. This statute is before us as the will of that governmental branch responsible for public policy as to municipal revenues. We should not nullify it for anything less than a real inability to comprehend its meaning.\\nIt being plain that the Legislature did not intend to use the word \\\"certain,\\\" precedent bids us substitute the word it did intend, if it can be unerringly determined.\\nWe have substituted the word \\\"collectible\\\" for the word \\\"uncollectible,\\\" thus imputing and enforcing an intent exactly the opposite of the absurd intent expressed. Baca v. Bernalillo County, 10 N. M. 438, 62 P. 979. We have substituted \\\"they\\\" for \\\"he,\\\" thus giving the provision an entirely different and a reasonable, rather than an unreasonable, meaning. State v. Davidson, 33 N. M. 664, 275 P. 373. For the phrase \\\"for the years 1920 and 1921,\\\" we have substituted \\\"for the fiscal year 1920 and 1921,\\\" and have rejected entirely a provision that certificates of indebtedness were to be issued only \\\"after tax levies are duly made therefor.\\\" State v. Southern Pacific Co., 34 N. M. 306, 281 P. 29, 31. \\\"Additional compensation\\\" has been interpreted as \\\"additional allowance.\\\" Nye v. Board of County Commissioners, 36 N. M. 169, 9 P.(2d) 1023, 1024.\\nThese are examples of exceptional construction which we readily call to mind. The principles of those cases seem applicable and controlling here.\\nPlaintiff urges that this being a tax statute, and also the sole source of a municipal power, the construction must be strict, and that only unequivocal language will confer-the power and support the tax. The canons invoked are familiar and of unquestionable force in proper cases.\\nBut there is present here plenty of unequivocal language signifying the intent. The difficulty arises from the.one word, not so-much equivocal or ambiguous, as plainly out of place and unintended. If that word were really equivocal, leaving it doubtful whether the statute was intended for cities, towns, and villages, or for towns and villages only, the rules invoked might apply. But the word must be rejected in any event. To stop there leaves us with a senseless act. The word is-not merely superfluous. Another word was-intended, and the context unerringly discloses it.\\nCriminal statutes are to be strictly construed. But, as said by Mr. Justice Roberts, \\\" they are not to be subjected to any strained or unnatural construction in order to work exemptions from their penalties. Such statutes must be interpreted by the aid of the ordinary rules for the construction of statutes, and with the cardinal object of ascertaining the intention of the Legislature.\\\" Ex parte De Vore, 18 N. M. 246, 136 P. 47, 49. See, also, State v. Southern Pacific Co., supra, where we construed a statute authorizing a special tax levy by a county.\\nBoth ordinances, 800 and 875, prescribe as penalties for violations, a fine of from $10-to $200, or imprisonment from 5 to 60 days, or both. Plaintiff contends that such penal ty provision is | void, and that this results in the invalidity of the whole ordinance. The basis of the contention is that chapter 159, \\u2022supra, authorizing penalties, fails to limit them, and that, consequently, the city's power in the matter of penalties is controlled by 1929 Oomp. St. \\u00a7 90-901, generally limiting penalties for ordinance violations. The statute authorizes fine or imprisonment; the ordinance, both.\\nPlaintiff \\u2022 cites numerous decisions to its proposition that the penal provisions of an ordinance are void unless strictly in accord with those authorized by charter, and that the whole statute falls with its penal provisions. Many of these cases are collected in Brannon v. Wilmington, 31 Ohio App. 307, 165 N. E. 311.\\nSince no penalties are sought against plaintiff, the invalidity of those of the ordinance would he here immaterial unless it should result fatally to the ordinance as a whole, a result which the city denies and which we-doubt, but leave undecided. We shall consider the claimed invalidity of the penalty sections.\\nBrannon v. Wilmington, supra, notices a contrary view stated in 19 R. O. L., \\\"Municipal Corporations,\\\" \\u00a7 116, thus; \\\"When the penalty prescribed in the ordinance is in excess of that authorized by the charter, the ordinance is not void, and the penalty may be enforced to the extent that it does not exceed the lawful limit.\\\"\\nPlaintiff urges that City of Roswell v. Jacoby, 21 N. M. 702, 158 P. 419, commits us to its contention. There was no occasion in that case for holding the ordinance void, and we do not understand the court to have done so.\\nWe think, rather, that consistency of principle commits us to the other view, at least in a case of this kind. In Cica's Case, 18 N. M. 452, 137 P. 598, 51 L. R. A. (N. S.) 373, a judgment including both fine and imprisonment was held not void in toto, though beyond the power of the court to pronounce. We deemed it severable and void only as to the excess. Compare Jordan v. Swope, 36 N. M. 84, 8 P.(2d) 788. If the sentence may be thus saved, surely the penalty provision may be.\\nPlaintiff challenges the constitutionality of chapter 159, supra. It is contended that the municipal excise, added to the state excise, results in double taxation. Admitting that the same sale is twice taxed under state authority, we find no constitutional prohibition of it, nor do we find in State v. Ingalls, 18 N. M. 211, 135 P. 1177, relied on by plaintiff, a condemnation of it; nor in Opinion of Justices, 250 Mass. 591, 148 N. E. 889, cited by appellant, anything to argue that what has been here done is obnoxious to the due process and equal protection, or any other provision, of our Constitution.\\nThis disposes of the questions presented in No. 3800. In No. 3796, plaintiff pleaded that it had paid all license and occupation taxes demanded of it by the city for the privilege of carrying on its business as a distributor or a retail' dealer, for 1931. This the city admitted. On this fact judgment was rendered on the pleadings, on the theory, set up in plaintiff's motion therefor, that Ordinance 800 was void and unenforceable, constituting a double taxation prohibited by section 7 of the statute.\\nWe cannot agree that the pleaded and admitted fact rendered the ordinance void or unenforceable, or that it supports the judgment.\\nThe passage of Ordinance 800 was an election by the city to \\\"assess\\\" the license tax. Under section 7 of the act, existing license and occupation taxes were by such election suspended as to gasoline dealers. Plainly, the city could not exact and retain both the old and the new taxes. It does not follow that it must postpone the new tax until the next year, or that a dealer who chanced to have paid the old taxes for a period beyond the taking effect of the ordinance could escape the new taxes. All dealers must be affected alike. Liability could not depend upon payment or nonpayment of former taxes, nor upon the time of engaging in business, whether before or after the passage of the ordinance.\\nThe ordinance makes no provision for refunding or crediting sums paid. That cannot render it void. The right to refund or credit flows from the statute. No principle of law recognized in this jurisdiction would have prevented the new tax from being added to the old. That result follows from the legislative declaration that the new shall be \\\"in lieu of\\\" the old. That requirement is naturally and reasonably satisfied by recognizing former payments in reduction of the new tax accruing. Plaintiff was not satisfied with this, but we think it was entitled to no more.\\nThe judgment in No. 3796 will be reversed. That cause will be remanded, with a direction to overrule the motion for judgment on the pleadings, and to proceed further conformably to the principles herein stated.\\nThe judgment in No. 3800 is affirmed, and that cause will be remanded. It is so ordered.\\nBICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur.\"}"
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+"{\"id\": \"1587678\", \"name\": \"PRIMUS v. CLARK et al.\", \"name_abbreviation\": \"Primus v. Clark\", \"decision_date\": \"1954-08-12\", \"docket_number\": \"No. 5718\", \"first_page\": \"588\", \"last_page\": 597, \"citations\": \"58 N.M. 588\", \"volume\": \"58\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:34:37.523240+00:00\", \"provenance\": \"CAP\", \"judges\": \"McGHEE, C.J., and COMPTON and LUJAKf, JJ., concur.\", \"parties\": \"PRIMUS v. CLARK et al.\", \"head_matter\": \"273 P.2d 963\\nPRIMUS v. CLARK et al.\\nNo. 5718.\\nSupreme Court of New Mexico.\\nAug. 12, 1954.\\nRehearing Denied Sept. 25, 1954.\\nHenry J. Hughes and Fletcher A. Catron, Santa Fe, for appellant.\\nWatson, McIntosh & Watson, Santa Fe, for appellees.\", \"word_count\": \"3730\", \"char_count\": \"21930\", \"text\": \"SADLER, Justice.\\nThe present appeal represents the third appearance in this Court, on one phase or another of the litigation involving the tangled property rights of appellant (plaintiff) and her former husband, Allan B. Clark, whose death has occurred pendente lite, resulting in the substitution as defendant herein of Joy Cassidy Clark, both individually and as Executrix of the Last Will and Testament of Allan B. Clark, deceased. The defendant last named was married to Allan B. Clark, following a divorce decree severing the bonds of matrimony between appellant and Allan B. Clark. The latter and appellant, the day before their divorce, had entered into a written settlement agreement under date of June 22, 1936, the cancellation of which was sought by appellant in the suit resulting in the appeal brought before us in Primus v. Clark, 48 N.M. 240, 149 P.2d 535.\\nThe review just mentioned resulted in a reversal of the judgment appealed from and a remand to the trial court with directions, as follows:\\n\\\"This case is unusual, and the results so unjust that we will exercise our inherent power to determine whether in fact the cause of action is barred by laches or limitations, by a reversal for a finding upon two questions of fact, to-wit:\\n\\\"1. Whether the defendant at the time of the execution of the deed and contract in question had the fraudulent present intent not to perform the contract on his part, and if so\\n\\\"2. The date upon which such fraud was discovered by plaintiff.\\n\\\"Also to det\\u00e9rmine from such facts as it may find, whether plaintiff's cause of action is barred by the statute of limitation or if she is estopped to prosecute her suit by her laches.\\n\\\"The cause is reversed and remanded with instructions to the district court to set aside the decree, to hear evidence to determine the questions of fact mentioned, and with findings made therefrom, state his conclusion of law as to whether plaintiff's cause of action is barred by the statute of limitation or whether she is estopped- to prosecute her action because of her laches; and to enter a decree consistent herewith. It is so ordered. \\\"\\nFollowing remand the mandate was filed below on July 6, 1944, and no further action having been taken in the case, three separate motions to dismiss were filed by the then current defendant, the first on January 4, 1947, the second on December 30, 1949, and .the .third on February 10, 1950. Each motion was denied, in turn. Whereupon the defendant, Allan B. Clark, on February 10, 1950, applied.to this.Court for a writ of mandamus to compel a dismissal by the district court under the provisions of 1941 Comp. \\u00a7 19-101 (41) (e), authorizing same where more than two (2) years have elapsed without action by a plaintiff'to bring his case to a final determination. We ' held the statute or rule was inapplicable where the action had been previously brought to final determination, appeal had been prosecuted and a new trial had been ordered.\\nWhile the mandamus proceeding was pending before us, Allan B. Clark, the petitioner therein, died following an automobile accident and his wife', one of the present defendants, was substituted as petitioner 'therein, both individually and as executrix aforesaid. The mandamus proceeding resulted' in a holding that the alternative writ had been improvidently issued and it was discharged for the reason above stated.\\nThereafter, and on February 9, 1951, the plaintiff below, appellant here, asked leave to file a supplemental complaint and leave was granted by the trial court and supplemental complaint was filed February 23, \\u00cd.951. 'It should be stated, also, that by reason of a conveyance by the said Allan B'. 'Clark and Joy Cassidy Clark, his wife, to John T. Watson 'and Jane Wa.tson, his wife, by deed'dated January 11, \\u00cd949, of the 'ranch property involved (the grantees having rec\\u00f3nvey\\u00e9d' the' property one day later to their grantors, Allan B. Clark and Joy Cassidy Clark as joint tenants), the Watsons named were made parties defendant herein. John T. Watson entered a voluntary appearance in the case and on April 19, 1951, filed an answer to plaintiff's supplemental complaint, which had been filed pursuant to leave of the court. Likewise, and on March 29, 1952, the defendant (appellee) both individually and -as executrix aforesaid, filed in the cause her amended an.swer to the supplemental complaint filed by plaintiff.\\nThereafter and on August 18, 1952, 'a pre-trial conference in the case, participated in by the trial judge and all attorneys in the case was held, in the chambers, of the judge in Santa Fe at which the issues of law in the case were settled. On June 23, 1953, a certificate of noii-appearance as to the defendant Jane Watson-was filed to be followed a few days later,, to-wit, on June 29, 1953, by entry of an order of dismissal of plaintiff's cause of action, from which the present appeal is. prosecuted. In due course and under date of June 29, 1953, the trial, court entered, its judgment dismissing the cause. The judgment in question reads:\\n'Judgment Dismissing Cause\\n\\\"This cause coming regularly on'for hearing on the 18th day of August, 1952, on the issues of law arising upon the supplemental complaint and' the amended separate answer of Joy Cassidy Clark, individually and as Executrix of the Last Will and Testament of Allan B. Clark, Deceased, and the 'amended separate answer of Defendant John T. Watson;\\nAnd the Plaintiff appearing by Messrs. Henry J. Hughes and F. A. Catron, her Attorneys, and the Defendants appearing by Watson, McIntosh & Watson, their Attorneys;\\nAnd the Court having read the said pleadings, and having heard the arguments of Counsel, and having taken the .\\u2022said cause under advisement on the \\u2022said issues of law, and being now .fully advised -in the .premises;\\n' Now, upon said issues of law, the' Court holds, rules arid concludes:\\n\\\"1. The filing of the Supplemental complaint at Plaintiff's request, and without objection on the part'of the De- \\\" fendant, and the failure to incorporate in and bring forward into said Supplemental complaint any \\u00f3f tri\\u00e9 allegations \\u2022of the original complaint, constitute an abandonment of said, original com.plaint; and the cause is now before the Court on the allegations of the supplemental complaint only;\\n\\\"2. The mandate of the Supreme Court in cause No. 4768, being the appeal of this cause, directed this Court \\u00b1o hear evidence and make findings touching issues then in the cause, but which have been abandoned by the filing of the supplemental Complaint. Findings by this Court as directed in said mandate would be immaterial to any issue now in this cause; and any judgment for the Plaintiff based on such findings, would be without any pleading or allegations of fact to support it.\\n\\\"3. It appears on the face of said supplemental complaint that Allan B. Clark the original defendant herein, died on or about the 17th day of April, \\u00cd950, and that long prior to the filing of the supplemental complaint his last will and testament was offered for probate, admitted to probate, and that since long prior to the filing of said supplemental complaint his estate has -been \\u2022under administration in the Probate Court of- Santa Fe County.\\n\\\"4-. - This Court is without jurisdiction of any of the several causes .of 'action set forth in the supplemental complaint, it not being made- to appear that any claim on or touching the said several causes of action, or any of them, has been presented to the Probate Court of Santa Fe County as a claim against . the said estate of Allan- B. Clark, and disallowed;\\n\\\"And upon the foregoing holdings, rulings and conclusions,\\n\\\"It is ordered, adjudged and decreed, and the Court doth hereby order, ad judge and decree, that the said supplemental complaint, and each and every cause of action set forth therein, and this cause, be, and they are hereby dismissed; and that the Defendants recover and have judgment for their costs herein to be taxed.\\\"\\nWhile several points with questions ancillary thereto are argued at length in the briefs filed by counsel for appellant, there appears to be one important question confronting us at the outset which, determined as contended by the appellee (defendant), would prove decisive. It is a procedural question, to be sure. Nevertheless, it is one which must be answered and resolved as appellee contends, supports the judgment. Tersely put, the question is to be stated thus: If following remand, the appellant (plaintiff) secures leave to file and does file a supplemental complaint which omits to raise by appropriate allegation the sole issue the cause was sent back to determine may the appellant, having thus ignored the allegations of her original complaint, set up new and different causes of action foreign to the question submitted by the mandate and compel a trial thereon? The judge ruled it could not be done, and we are compelled to affirm the correctness of that ruling.\\nNow, to apply the question to the present facts.- -As disclosed by a reading of the opinion of the court in Primus v. Clark, supra,, the appellant sued to set aside a certain deed and contract, as well as verbal commitments incident thereto. This court, after reviewing the record, reversed the cause and remanded it with a specific direction to the trial court to determine an issue held to be within the pleadings, but on which no finding was made or requested, namely, whether at the time of executing the deed and contract sought to be can-celled Clark, the original defendant, entertained a present intention not to perform the promises made as contained in his deed and contracts.\\nIf he did then entertain this fraudulent intent, it next becomes important to ascertain when the appellee, his wife at the time, first learned of his fraud in the respect mentioned. Only then could the trial court pass considered judgment on the additional question submitted for determination on remand, namely, whether the appellee's cause of action was barred by limitations or laches. In other words, was she barred or estopped to prosecute the cause of action set up?\\nIt is thus to be seen that the second question mentioned does not arise unless the trial court supplies by a finding an affirmative answer to the first question. It must first affirm from the evidence existent in the mind of appellee's husband at the time he promised a preconceived intention not to d.o as promised, Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862, before it becomes important to ascertain when she, the then wife, first discovered the husband's perfidy. A negative answer to the first question submitted by our mandate excuses, of course, an answer to the second question touching limitation, or laches.\\nWith this much of background furnished from the first appeal in Primus v. Clark, supra, to the opinion on which we would refer for a fuller statement of the facts in the earlier case, we proceed now to a discussion of the controlling considerations which, as we view the matter, are determinative of this appeal. First, we look to the mandate on the former appeal. It submitted two questions, said fairly to arise on the record as it came to us on that appeal, for determination on the remand of the case. There is no need to recite them again.\\nWe start out in our consideration of the question presented mindful of this language from our opinion in State ex rel. Del Curto v. District Court of Fourth Judicial District, 51 N.M. 297, 183 P.2d 607, 614, to wit:\\n\\\"The district court lost complete jurisdiction of the Del Curto case when it was appealed to this court. Upon remand it regained only such jurisdiction as the opinion and mandate of this court conferred.\\\"\\nSee, also, Albuquerque Broadcasting Company v. Bureau of Revenue, 54 N.M. 133, 215 P.2d 819.\\nNow what jurisdiction was conferred upon the remand of this case? To do exactly one thing, certainly \\u2014 two provisionally. That much and no more. The one thing it was certainly called upon to do was to ascertain whether the husband entertained a fraudulent intent, coincident with his promise, not to perform it. If the answer to that was negative, the inquiry was at an end. If affirmative, then the further inquiry arose as to when the wife learned of this perfidy on the part of her husband, to the end that the court could say whether limitations or laches barred her suit.\\nWhether from fear she could not prove the decisive primary issue thus submitted on remand or for some other seemingly good reason; or perhaps an ill-considered one which the record does not suggest and we are unable to surmise, the appellant chose not to attempt proof of this 'decisive issue tendered in her original complaint. Instead, she asked and secured leave of the court to file a supplemental complaint setting up six (6) separate causes of action, in not one of which is to be found tendered as an issue the fundamental inquiry which under the mandate and opinion on the former appeal the cause was remanded to ascertain.\\nIn our Rules of Civil Procedure, 15(e), we find a direction that in every complaint a party shall set forth in one entire pleading all matters necessary to the proper determination of the action or defense. It reads:\\n\\\"(e) All Matters Set Forth In One Pleading. In every complaint, answer, or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense.\\\" N.M.S.A. 1947, \\u00a719-101 (15) (e).\\nWhat is the effect of appellee's failure to tender as an issue in her supplemental complaint the only matter it was given jurisdiction to ascertain on remand? We find the,answer to this pertinent inquiry in our own decisions. Albright v. Albright, 21 N.M. 606, 157 P. 662; Pople v. Orekar, 22 N.M. 307, 161 P. 1110; Klasner v. Klasner, 23 N.M. 627, 170 P. 745; State ex rel. Peteet v. Frenger, 34 N.M. 151, 278 P. 208; Weeks v. Bailey, 35 N.M. 417, 300 P. 358; Home Owners' Loan Corporation v. Reavis, 46 N.M. 197, 125 P.2d 709.\\n\\\" the plaintiff must be held to have abandoned all the allegations in his original complaint, not carried forward into his amended or supplemental complaint.\\\" Albright v. Albright, supra [21 N.M. 606, 157 P. 665].\\n\\\"A failure to comply with the statute would operate as an abandonment of the original pleading\\\". Pople v. Orekar, supra [22 N.M. 307, 161 P. 1112].\\n\\\"So long as the amended pleading stands, it alone is, no doubt, to be looked to as determining the cause of action or defense and the issues and to support the judgment.\\\" State ex rel. Peteet v. Frenger, supra [34 N.M. 151, 278 P. 209].\\nWith this much determined adversely to appellant there seems little purpose in pursuing a discussion of the other points argued at some length hy her counsel. Likewise, there is as little purpose in taking up and ruling upon the further contention of counsel for appellee that even if our decisions under Rule 15(e) do not debar appellee's suit, she is out under another -defense, namely, for failure to present her claims for allowance in the probate court within the time provided by statute, as to which appellee's counsel say that court would lack jurisdiction in the premises as to some of said claims, and as to which we answer neither yea nor nay.\\nIn view of the-numerous quotations from the opinion of Chief Justice Brice in Primus v. Clark, supra, with the writer noted as concurring, it is pertinent to ob serve before closing that what is there said does not have the concurrence of a majority of the justices, even though the three remaining justices did concur in the result. This fact is noted in the subsequent cases of Newton v. Wilson, 53 N.M. 480, 211 P.2d 776, and Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683. Hence, it is scarcely accurate to choose given passages from that opinion- and characterize them as reflecting the views of the court. Maybe they do, but. one can not say so with assurance. What we do know is that in Primus v. Clark, supra, there was unanimous concurrence in remanding the cause for the .trial court to determine a vital issue for such effect as it might- be adjudged, to have.on plaintiff's rights. She rejected the opportunity thus afforded her to have that issue determined. Why, we do not know. We are convinced, however, that the trial court correctly ruled the state of the pleadings forbade a recovery by her. Its judgment must stand affirmed.\\nIt will be so ordered. .\\nMcGHEE, C.J., and COMPTON and LUJAKf, JJ., concur.\\nSEYMOUR, J., concurring specially.\"}"
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+"{\"id\": \"1588584\", \"name\": \"STATE of New Mexico, Petitioner, v. James M. TRAMMEL, Respondent\", \"name_abbreviation\": \"State v. Trammel\", \"decision_date\": \"1983-11-23\", \"docket_number\": \"No. 15081\", \"first_page\": \"479\", \"last_page\": 481, \"citations\": \"100 N.M. 479\", \"volume\": \"100\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:58:19.561407+00:00\", \"provenance\": \"CAP\", \"judges\": \"PAYNE, C.J., DAN SOSA, Jr., Senior Justice, and FEDERICI and STOWERS, JJ., concur.\", \"parties\": \"STATE of New Mexico, Petitioner, v. James M. TRAMMEL, Respondent.\", \"head_matter\": \"672 P.2d 652\\nSTATE of New Mexico, Petitioner, v. James M. TRAMMEL, Respondent.\\nNo. 15081.\\nSupreme Court of New Mexico.\\nNov. 23, 1983.\\nPaul Bardacke, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for petitioner.\\nRichard S. Lees, Santa Fe, for respondent.\\nHinkle, Cox, Eaton, Coffield & Hensley, Thomas M. Hnasko, Santa Fe, for amicus curiae Southwestern Public Service Co.\\nKeleher & McLeod, Robert H. Clark, Albuquerque, for amicus curiae Public Service Company of New Mexico.\", \"word_count\": \"826\", \"char_count\": \"5130\", \"text\": \"OPINION\\nRIORDAN, Justice.\\nDefendant James M. Trammel (Trammel) was convicted of aggravated assault with a firearm contrary to NMSA 1978, Section 30-3-2 and NMSA 1978, Section 31-18-16 (Repl.Pamp.1981). At trial, Trammel requested a jury instruction on defense of property based on NMSA 1978, UJI Crim. 41.50 (Repl.Pamp.1982). The trial court denied Trammel's request. On appeal, the Court of Appeals reversed, holding that Trammel's requested instruction should have been given. We granted certiorari and reverse the Court of Appeals.\\nThe issue addressed is whether a person who uses force to resist the lawful termination of electric service is entitled to an instruction on defense of property.\\nThe facts are adequately presented in the Court of Appeals' opinion. The Court of Appeals determined that the trial court's reasoning in denying the requested instruction was that the only evidence of property involved was electricity and that such property did not belong to Trammel. The Court of Appeals determined that the electricity was, for purposes of the instruction, Trammel's. They held that John Raymond Johnson (Johnson), the New Mexico Electric Service Company (Electric Company) employee who was assaulted by Trammel, invaded Trammel's property. In reversing Trammel's conviction, the Court of Appeals concluded that there was sufficient evidence for submission of the instruction. We disagree.\\nThe record shows that a \\\"Connect Order\\\" was issued to the Trammel residence. The \\\"Connect Order\\\" is an agreement contract between the customer and the Electric Company in which the Electric Company agrees to serve the customer and the customer agrees to give the Electric Company access to the customer's property in order to install, service, read, or remove equipment. Since Johnson had gone to the Trammel residence to disconnect service, his presence on Trammel's property was lawful.\\nThis Court has recognized that \\\"[a] man may use force to defend his real or personal property in his actual possession against one who endeavors to disposses him without right State v. McCracken, 22 N.M. 588, 593, 166 P. 1174, 1176 (1917) (emphasis added) (quoting Carpenter v. State, 62 Ark. 286, 310, 36 S.W. 900, 907 (1896)). From McCracken, we derive the principle that an individual may not use force to defend real or personal property where the attempt to dispossess is lawful. See also Model Penal Code \\u00a7 3.06, 10 U.L.A. 481 (1974); W. La Fave & A. Scott, Handbook on Criminal Law \\u00a7 55, at 399 (1972). Since we have determined that Johnson was lawfully on the property, we also determine that Trammel was not justified in using force (pointing a gun) to remove Johnson from Trammel's property. Therefore, Trammel was not entitled to a defense of property instruction.\\nFurthermore, we have determined that when there is evidence to support a finding of every element of a defense, an instruction on that defense is required. Poore v. State, 94 N.M. 172, 608 P.2d 148 (1980). When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error. Id.; State v. Benavidez, 94 N.M. 706, 616 P.2d 419 (1980). UJI Crim. 41.50 sets forth the elements necessary for finding that a defendant acted in defense of property in non-homicidal cases, such as the present case. The first element of UJI Crim. 41.50 is that the property involved must be the defendant's. The Court of Appeals' reversal was predicated upon the assumption that the electricity that Trammel was receiving belonged to him. However, the \\\"Connect Order\\\" states that if the customer fails to make payment, the customer will not be entitled to electric service. The record shows that past-due notices and a disconnect notice were sent to Trammel's address and that the Electric Company received no response. Consequently, the Electric Company had the right to disconnect Trammel's electric service for non-payment. See Miller v. Roswell Gas & Electric Co., 22 N.M. 594, 166 P. 1177 (1917). Since the electric service to Trammel's residence had not been paid for, and since the Electric Company had the right to disconnect the service, the electricity was no longer Trammel's property nor in his lawful possession. The first element of UJI Crim. 41.50 was therefore not present.\\nThe decision of the Court of Appeals is reversed. The judgment of the trial court is reinstated.\\nIT IS SO ORDERED.\\nPAYNE, C.J., DAN SOSA, Jr., Senior Justice, and FEDERICI and STOWERS, JJ., concur.\\n. We do not discuss the question of whether the amount of force used was reasonable since it was not raised in the Court of Appeals.\"}"
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+"{\"id\": \"1588628\", \"name\": \"Evelyn Mastrantoni LeBLANC, Personal Representative of the Estate of Lawrence LeBlanc, Deceased, Plaintiff-Appellant, v. NORTHERN COLFAX COUNTY HOSPITAL and Milton Floersheim, M.D., Defendants-Appellees\", \"name_abbreviation\": \"LeBlanc v. Northern Colfax County Hospital\", \"decision_date\": \"1983-11-01\", \"docket_number\": \"No. 7123\", \"first_page\": \"494\", \"last_page\": 497, \"citations\": \"100 N.M. 494\", \"volume\": \"100\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:58:19.561407+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD and DONNELLY, JJ., concur.\", \"parties\": \"Evelyn Mastrantoni LeBLANC, Personal Representative of the Estate of Lawrence LeBlanc, Deceased, Plaintiff-Appellant, v. NORTHERN COLFAX COUNTY HOSPITAL and Milton Floersheim, M.D., Defendants-Appellees.\", \"head_matter\": \"672 P.2d 667\\nEvelyn Mastrantoni LeBLANC, Personal Representative of the Estate of Lawrence LeBlanc, Deceased, Plaintiff-Appellant, v. NORTHERN COLFAX COUNTY HOSPITAL and Milton Floersheim, M.D., Defendants-Appellees.\\nNo. 7123.\\nCourt of Appeals of New Mexico.\\nNov. 1, 1983.\\nRichard V. Earl, McCulloch, Grisham & Lawless, P.A., Albuquerque, for plaintiff-appellant.\\nNorman F. Weiss, Farlow, Simone & Roberts, P.A., Albuquerque, for defendant-appellee Northern Colfax County Hosp.\\nJoe L. McClaugherty, Debra Romero Thai, Rodey, Dickason, Sloan, Akin & Robb, P.A., Santa Fe, for defendant-appellee Milton Floersheim, M.D.\", \"word_count\": \"2081\", \"char_count\": \"12463\", \"text\": \"OPINION\\nBIVINS, Judge.\\nThis is a medical malpractice action. Claiming negligence on the part of defendants, Northern Colfax County Hospital and Dr. Milton Floersheim, plaintiff seeks damages for the wrongful death of Lawrence LeBlanc. From a summary judgment in favor of defendants, she appeals.\\nWe discuss whether fact questions exist as to the negligence of either or both defendants, and as to proximate cause.\\nLeBlanc was injured in a fight during the late evening of February 15 or the early morning of February 16, 1978. He had been kicked or hit in the stomach. After taking some Maalox and a pain pill, LeBlanc went to the emergency room of the hospital at approximately 4:00 a.m. on the morning of February 16. A triage nurse obtained LeBlanc's history and examined him before calling Dr. Floersheim at his home and relating the findings with her recommendations. The nurse felt that this was not an emergency case and could wait until regular office hours, approximately four hours later. The doctor agreed and prescribed Talwin, a pain killer, for LeBlanc, with instructions that LeBlanc see a doctor in the morning if he continued to experience pain.\\nOn February 18, LeBlanc went or was taken to the office of another doctor who was too busy to see him and referred LeBlanc back to the hospital. Because no doctor was on duty at the hospital,- the emergency room personnel suggested LeBlanc go to Dr. Floersheim's office. LeBlanc then went or was taken to Dr. Floersheim's office, but when he saw the parking lot appeared full, he decided to go home.\\nOn February 22,1978, LeBlanc was taken to Dr. Floersheim's office, and the doctor had him immediately admitted to the hospital. He died the following day. The cause of death was bile peritonitis due to traumatic laceration of the liver together with gastrointestinal hemorrhage from the patient's ulcer. According to Dr. Schwartz, \\\"[W]hereas a hemorrhage might have been a terminal event, had he [LeBlanc] not had a serious injury to his liver I do not believe that this man would have died.\\\"\\nFrom the time he left the hospital on February 16, until his admission on February 22, LeBlanc took two. unprescribed Darvon pills every four hours and drank small amounts of liquids. He ate no food.\\nAt the conclusion of the summary judgment hearing, the trial court held that while fact issues had been demonstrated as to the negligence of the defendants, \\\"that negligence was not a contributing factor of the death of Lawrence LeBlanc.\\\" The court felt that if LeBlanc h\\u00e1d died reasonably close to the time when he was instructed to return, a fact question might be presented as to proximate cause. The court noted the lack of medical or other evidence that would suggest that \\\"that negligence can be stretched so far as to show that [the negligence] was a cause of the death on the 23rd of February, some seven or eight days after that original [visit to the hospital].\\\"\\nIn analyzing this ease we look to the record, mindful that all reasonable inferences will be construed in favor of a trial on the facts. C & H Const. & Paving Co. v. Citizens Bank, 93 N.M. 150, 597 P.2d 1190 (Ct.App.1979). Dr. Floersheim testified that LeBlanc's vital signs were normal and that there was no emergency situation requiring a physician at the time LeBlanc presented himself at the emergency room. He also said that the instruction to see a doctor in the morning if the pain continued was adequate. It was the policy of the hospital to provide more detailed information to the patient only in cases involving head injuries or the need for a cast. Dr. Floersheim said that if LeBlanc had returned as late as February 19, he most likely would have survived. Even with hindsight, Dr. Floersheim said that his actions and those of the nurse would have been no different. He asserted that LeBlanc's condition at the time of the emergency room evaluation had not reached the point where a diagnosis could have, been made.\\nThe deposition of Dr. George Schwartz, a professor at the University of New Mexico School of Medicine who teaches emergency medicine, was relied on by all parties at the summary judgment hearing. Plaintiff engaged Dr. Schwartz to evaluate this case. Given the patient's history of being in a fight in which he was kicked or stomped in the abdomen and his vital signs showing elevated pulse rate, low blood pressure, and increased respiration coupled with abdominal tenderness and pain, Dr. Schwartz stated that there were sufficient \\\"red flags\\\" to require further investigation and work-up. He said the nurse's failure to recognize the potential dangers fell below the standard of care expected even in a community hospital. See Ramsey v. Physicians Memorial Hospital, Inc., 36 Md.App. 42, 373 A.2d 26 (1977) (nurse failed to relate information to physician involving removal of ticks from patient who had Rocky Mountain Spotted Fever). Notwithstanding the nurse's inadequate assessment, Dr. Schwartz said that \\\"there was enough indication of abnormality for Dr. Florsheim [sic] to be warned to wish to evaluate this patient further.\\\"\\nOn the basis of this testimony we hold that a fact question has been presented as to the negligence of the defendants.\\nThis brings us then to the issue of proximate cause. For the purpose of summary judgment, plaintiff concedes that LeBlanc's own negligence in failing to obtain medical attention after his condition worsened was a proximate cause of his death and that a jury would probably apportion most of the fault to LeBlanc. She argues, however, that the defendants' negligence constituted a concurrent cause and that, therefore, to some percentage extent they are also liable.\\nWhere reasonable minds may differ on the question of proximate cause, the matter is to be determined by the fact finder. Galvan v. City of Albuquerque, 85 N.M. 42, 508 P.2d 1339 (Ct.App.1973). It is only where the facts are not in dispute and the reasonable inferences from those facts are plain and consistent, that the issue of proximate cause becomes one of law. Galvan.\\nIn examining the facts, we focus on the quality of the instruction given LeBlanc to see a doctor in the morning if his pain continued. The nurse did not warn LeBlanc as to any potential dangers or the consequences of failing to obtain medical attention. As she stated in her deposition, \\\"[i]f I thought they had an internal injury, I wouldn't send them home.\\\" Since she failed to detect evidence of internal injury or the need to investigate further, she saw no need to advise LeBlanc as to why he should see a doctor if the pain continued. Neither did Dr. Floersheim. When medical providers fail to recognize a problem, or even danger signs indicating a need for further investigation, the law will not impose a higher duty on the patient. See Duran v. New Jersey Zinc Company, 83 N.M. 38, 487 P.2d 1343 (1971). In McNeill v. United States, 519 F.Supp. 283 (D.S.C. 1981), evidence established not only that physicians were negligent in failing to adequately examine a ten-month-old child brought to the emergency room for treatment with a swollen hand and rash, but also that one physician told the parents they were \\\"abusing the emergency room\\\" when they brought the child back a second time. The court held that the physician's negligence was the proximate cause of the meningitis the child later developed.\\nWhen asked if it was proper to have the patient return in the morning when the lab facilities would be open, Dr. Schwartz said:\\nI think that the best course of action would have been, at that point, to not release the patient from the hospital. That would have been the course of action which I believe would have been prudent.\\nAs to likely outcome, if LeBlanc had returned within 24 hours and his condition had been identified and treated, Dr. Schwartz said that the deficient examination in the emergency room and Dr. Floersheim's \\\"faulty judgment\\\" would not have mattered; the patient would have survived. Of course, the inference can be drawn that if LeBlanc had been admitted and hospital personnel had investigated further, he also would have survived. Both physicians seem to agree that LeBlanc could have lived had he received treatment as late as February 19. See Ferrara v. Leventhal, 56 A.D.2d 490, 392 N.Y.S.2d 920 (1977).\\nTo suggest that LeBlanc's failure to return was the sole proximate cause of his death not only begs the question, it oversimplifies it. Based on the nurse's assessment of a non-emergency benign situation, the fact finder may well determine that LeBlanc was lulled into thinking the pain would go away. He did not seek help until a day and a half later. At some point between February 16 and February 22, LeBlanc may have known or should have known that, notwithstanding the earlier failure to determine his injury, his worsened condition required action on his own part. Proximate cause need not be the last act or the nearest act to the injury; it need only be one which actually aided in producing the result as a direct and existing cause. Ortega v. Texas-New Mexico Railway Company, 70 N.M. 58, 370 P.2d 201 (1962). Further, the act need not be the sole cause but merely a concurring cause. Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938); Galvan.\\nWe are unable to say, based on the facts before us, that the failure of the nurse and the doctor to detect a potentially life-threatening injury and to give instructions which would apprise the patient of the seriousness of his condition could not be found to have concurred in producing the death of LeBlanc. In Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972), the court held:\\n[T]he jury could have reasonably concluded that under the circumstances of this case that if Dr. Thomas had performed his duty to attend Corso personally shortly after he was telephoned at 11:30 p.m., Dr. Thomas might well have been able to have saved his life and that this negligent conduct was one of the direct and proximate causes of Corso's death, concurrent with the negligence of the nurses.\\nWas LeBlanc's negligence an independent intervening cause which interrupted the natural sequence of events and produced a result which defendants could not have reasonably foreseen? In Harless v. Ewing, 80 N.M. 149, 452 P.2d 483 (Ct.App.1969), we said:\\nThe independent intervening cause that will prevent a recovery of the act or omission of a wrongdoer must be a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen.\\nForeseeability does not mean that the precise hazard or the exact consequences which were encountered should have been foreseen.\\n(Citations omitted.) Given the fact that LeBlanc received instructions consistent with the deficient assessment at the emergency room, a fact finder could find that a patient might delay seeking medical attention, at least until his physical condition demanded otherwise. We note also that Dr. Floersheim had treated LeBlanc previously and knew he was an alcoholic and a drug user. A jury could find that it would not be unreasonable to foresee that this patient might resort to drugs to relieve his pain and that this could affect his ability to act responsibly.\\nHad the doctor or nurse given instructions which would have alerted a reasonable person to the dangers of not obtaining medical attention, the result here might have been different. While this is admittedly a close case, we are unable to say as a matter of law that a fact question has not been presented.\\nThe summary judgment is therefore reversed, and the ease remanded for trial on the merits. Costs on appeal are to be paid equally by defendants.\\nIT IS SO ORDERED.\\nWOOD and DONNELLY, JJ., concur.\"}"
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+"{\"id\": \"1588663\", \"name\": \"In the Matter of RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE (Severance Tax) Assessment No. 270283; Ranchers-Tufco Limestone Project Joint Venture (Compensating Tax) Assessment No. 151228; Todilto Exploration and Development Corporation (Severance Tax) Assessment No. 270284. RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE, and Todilto Exploration and Development Corporation, Taxpayers-Appellants, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee; In the Matter of RANCHERS HNG JOINT PROJECT, Assessment Nos. 151450, 260352 and 270293. RANCHERS HNG JOINT PROJECT, Taxpayer-Appellant, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee\", \"name_abbreviation\": \"Ranchers-Tufco Limestone Project Joint Venture v. Revenue Division, New Mexico Taxation & Revenue Department\", \"decision_date\": \"1983-10-20\", \"docket_number\": \"Nos. 7225, 7093\", \"first_page\": \"632\", \"last_page\": 643, \"citations\": \"100 N.M. 632\", \"volume\": \"100\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:58:19.561407+00:00\", \"provenance\": \"CAP\", \"judges\": \"HENDLEY and DONNELLY, JJ., concur.\", \"parties\": \"In the Matter of RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE (Severance Tax) Assessment No. 270283; Ranchers-Tufco Limestone Project Joint Venture (Compensating Tax) Assessment No. 151228; Todilto Exploration and Development Corporation (Severance Tax) Assessment No. 270284. RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE, and Todilto Exploration and Development Corporation, Taxpayers-Appellants, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee. In the Matter of RANCHERS HNG JOINT PROJECT, Assessment Nos. 151450, 260352 and 270293. RANCHERS HNG JOINT PROJECT, Taxpayer-Appellant, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee.\", \"head_matter\": \"674 P.2d 522\\nIn the Matter of RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE (Severance Tax) Assessment No. 270283; Ranchers-Tufco Limestone Project Joint Venture (Compensating Tax) Assessment No. 151228; Todilto Exploration and Development Corporation (Severance Tax) Assessment No. 270284. RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE, and Todilto Exploration and Development Corporation, Taxpayers-Appellants, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee. In the Matter of RANCHERS HNG JOINT PROJECT, Assessment Nos. 151450, 260352 and 270293. RANCHERS HNG JOINT PROJECT, Taxpayer-Appellant, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee.\\nNos. 7225, 7093.\\nCourt of Appeals of New Mexico.\\nOct. 20, 1983.\\nCertiorari Denied Nov. 30, 1983.\\nRobert H. Clark, Margaret E. Davidson, Keleher & McLeod, P.A., Pauli Mines Poole, Tinnin & Martin, P.C. Albuquerque, for taxpayer-appellant, Ranchers-Tufco Limestone Project Joint Venture.\\nRex Throckmorton, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for taxpayer-appellant, Todilto Exploration and Development Corporation.\\nPaul Bardacke, Atty. Gen., Paula ForneyThompson, Asst. Atty. Gen., Taxation and Revenue Dept. Santa Fe, for appellee.\", \"word_count\": \"6342\", \"char_count\": \"38836\", \"text\": \"OPINION\\nWOOD, Judge.\\nThis opinion decides the issues raised in the separate appeals in Nos. 7225 and 7093.\\nThe tax collector (Revenue Division of the Taxation and Revenue Department) denied the protests of the taxpayers to certain tax assessments. The taxpayers appeal. We group the issues into four headings: (1) delay in deciding the protests; (2) severance tax; (3) resources tax; and (4) compensating tax. The severance and resources tax assessments involve uranium ore. The compensating tax assessments involve property brought into New Mexico and used at the taxpayers' mine operations where uranium ore was recovered.\\nThere are three taxpayers:\\n(a) Tufco (Ranchers-Tufco Limestone Joint Venture) is \\\"a joint venture between Ranchers Exploration and Development Corporation and Chaco Energy Company which is the successor in interest to Tufco, a subsidiary of Texas Utilities Fuel Company.\\\"\\n(b) Todilto (Todilto Exploration and Development Corporation, a New Mexico corporation).\\n(c) HNG (Ranchers HNG Joint Project) is a \\\"joint venture comprised of Ranchers Exploration and Development Corporation and HNG Oil Company\\\".\\nThe tax assessments against Tufco and Todilto are for reporting periods April 1976 through June 1979. The tax assessments against HNG are for reporting periods March 1977 through June 1979. No issue is raised as to the reporting periods involved.\\nNo issue is raised as to the arithmetic of the dollar amount of the assessments.\\nNo issue is raised as to the applicable tax statutes. A reference to a statute is to the statute appearing in NMSA 1978. Because the issues primarily involve the meaning of the applicable statutes, amendments to those statutes, not involved in resolution of the issues, are not identified.\\nDelay in Deciding the Protests\\nThe protests of Tufco and Todilto, which were timely, were filed in January 1980. An informal conference between the tax collector and these taxpayers was held on April 23, 1980. The formal hearing on these protests was not held until December 16, 1982.\\nThe protests of HNG, which were timely, were filed in February and March 1980. The formal hearing on these protests was not held until November 18, 1982.\\nPrior to or at the formal hearing each taxpayer sought abatement of the assessments against it. The hearing examiner, on behalf of the Director of the Revenue Division, denied the protests.\\nThe taxpayers claim that the assessments should have been abated because they were not given a prompt hearing on the protests. They rely on Section 7-l-24(D) which states: \\\"Upon timely receipt of a protest . the commissioner or his delegate shall promptly set a date for hearing and on that date hear the protest . . \\\" We recognize that this statute is ambiguous; it requires that a date for hearing be set promptly; only by interpretation can we hold that the statute requires a prompt hearing. That, however, is not an issue in these cases.\\nThe tax collector views the taxpayers' argument as a claim that because of delay it should be equitably estopped from collecting the assessments. The tax collector points out that estoppel does not apply, as a general rule, against the State. See United States v. Bureau of Revenue, 87 N.M. 164, 531 P.2d 212 (Ct.App.1975). The taxpayers respond that they have never relied on an estoppel concept and do not claim, in these appeals, that the tax collector is estopped. The equitable estoppel argument of the tax collector is a false issue and is not considered.\\nThe taxpayers rely on Section 7-l-24(D); they claim that they have a statutory right to a prompt hearing, and the tax collector has deprived them of this statutory right. The parties dispute whether the tax collector violated the statute, arguing over the meaning of \\\"promptly\\\", whether the delay was reasonable, and whether a taxpayer has an affirmative duty to speed up the process. We need not discuss these items.\\nAssuming, but not deciding, that the tax collector violated Section 7-l-24(D), how does a taxpayer benefit from the violation? The statute says nothing as to the consequence of a violation. The general rule is that tardiness of public officers in the performance of statutory duties is not a defense to an action by the state to enforce a public right or to protect public interests. State, ex rel. Dept. of Human Services v. Davis, 99 N.M. 138, 654 P.2d 1038 (1982). The general rule is applicable in these cases unless Section 7-l-24(D) makes it inapplicable. Section 7-l-24(D) does not make the general rule inapplicable.\\nEven if the general rule did not apply, the taxpayers have not demonstrated that they have been harmed by the delay in deciding their protests. The taxpayers assert that the delay, in itself, was prejudicial because \\\"we're uncertain as to what it's going to cost us in the future to produce uranium in the State of New Mexico, and how we can make a sales contract that will permit us to be competitive with other states and with other countries *'' They also assert: \\\"The recall of potential witnesses has been clouded by the passage of time.\\\" These items were insufficient to show prejudice. Compare State v. Duran, 91 N.M. 756, 581 P.2d 19 (1978); State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct.App.1976).\\nSeverance Tax\\nThe severance tax issues as to Tufco and Todilto involve the proper method of determining taxable value. The severance tax issue as to HNG involves a reimbursement for an increase in the severance tax.\\nA. Determining Taxable Value\\nThe assessments of severance tax and interest against Tufco and Todilto are based on the tax collector's method of determining taxable value of uranium ore. Tufco and Todilto assert the tax collector's method is incorrect. This issue involves the interrelationship of two statutes.\\n7-26-4. Determination of taxable value of natural resources.\\nsfc * sfc % \\u2021 jfc\\nF. The taxable value to be reported for severed and saved uranium-bearing material is the sales price per pound of the content of U3O8 contained in the severed and saved or processed uranium, regardless of the form in which the product is actually disposed of. It is presumed, in the absence of preponderant evidence of another value, that the taxable value means the total amount of money and the reasonable value of other consideration received, or either of them, for the severed and saved uranium ore or processed uranium \\\"yellowcake\\\" concentrate. However, if the severed and saved uranium ore or \\\"yellowcake\\\" concentrate is not sold as ore or concentrate, the gross value shall be the value of U308 in ore or \\\"yellowcake\\\" concentrate represented in the final product. Taxable value shall be gross value without deduction of any kind.\\n7-26-7. Severance tax on uranium.\\nA. The severance tax on uranium is measured by the quantity of U3O8 contained in and recoverable from severed and saved uranium-bearing material whether that material is ore or solution, measured in a standard manner established by regulation of the commissioner of revenue. The taxable event is the sale, transportation out of New Mexico or consumption of the uranium-bearing material, whichever first occurs.\\nSection 7-26-7 provides the severance tax applies to \\\"each pound of severed and saved U3O8 contained in severed uranium-bearing material\\\". The tax is measured by taxable value per pound of U3O8; the tax rate increases as the taxable value per pound increases.\\nUnchallenged findings of the hearing examiner state the factual background of the dispute as to the correct method of determining taxable value.\\n(a) Tufco and Todilto are separately engaged in the business of mining and selling uranium ore from underground mines in New Mexico. The severed uranium ore brought to the surface of the mine is \\\"saved\\\" as a uranium-bearing product which has value.\\n(b) The chemical formula for uranium in its natural state is U308. Raw uranium ore is milled in New Mexico to increase the concentration of U308. The product of the milling process is concentrated U303, called yellowcake. Neither Tufco nor Todilto owned a milling facility; they sold their raw ore to a third party. The third party did the milling which resulted in yellow-cake.\\n(c) \\\"During the milling process, some U308 is lost and becomes waste. The amount of recovered uranium from the milling process varies because ores from different sources react differently to chemical processes. For example, in milling the Todilto ore into yellowcake, the purchaser\\u2014 Homestake \\u2014 was able to recover only 81.7 percent of the U308 contained in the ore.\\\"\\n(d) Tufco and Todilto sold raw ore. The price paid by the third party for the raw ore was based on the U308 contained in the raw ore. \\\"The agreements provided for an assay of the raw ore so that the U308 content of the raw ore could be determined before sale to the purchaser.\\\"\\nThe taxable event, see Section 7-26-7, was the sale of raw ore to a third party. The price paid was based on U308 content in the raw ore and this was determined by assay prior to sale. Tufco and Todilto contend that taxable value is to be determined by the U808 content at the time of the sale. Under this approach, the U308 lost during the milling process is not involved in determining taxable value of what was sold in the raw state. The tax collector does not dispute that Tufco and Todilto sold raw ore, unmilled. Nevertheless, the tax collector contends that taxable value is to be determined by U308 recovered after milling. Under this approach, the U303 lost during milling is involved in determining taxable value.\\nThe difference in the contentions is significant. Under Section 7-26-4(F), the taxable value is based on sales price per pound. This is determined by dividing the poundage into the price paid. Tufco and Todilto would use the poundage sold as the divisor; the tax collector would use the poundage recovered as the divisor. The tax collector's \\\"approach results in a higher tax because the divisor into the total amount received for the uranium ore sold is smaller than the Taxpayers' divisor. The result is that a higher price per pound is achieved with a resulting higher tax rate \\\"\\nThe tax collector seeks to justify its position by reading certain words as interchangeable in the two statutes. Section 7-26-7 refers to U308 \\\"contained in and recoverable from severed and saved uranium-bearing material\\\". Section 7-26-4(F) refers to U308 \\\"contained in the severed and saved or processed uranium\\\". The parties do not dispute that the words \\\"contained in\\\" and \\\"recoverable\\\" are used interchangeably in Section 7-26-7. The tax collector asserts that \\\"contained in\\\" and \\\"processed (recoverable)\\\" are used interchangeably in Section 7-26-4(F). \\\"The statute [7-26 \\u2014 4(F) ] uses the disjunctive 'or' to indicate that the taxable value is to be determined by reference to either the 'recoverable' or 'contained in' amounts Thus, the terms 'contained in' and 'recoverable' have been equated by the legislature.\\\"\\nThe tax collector misreads the statutes. The wording of the two statutes differs. Section 7-26-7 deals with how the tax is measured. Section 7-26-4(F) deals with taxable value. The measure of the tax is applied to taxable value; the measure applies only after taxable value is determined. Statutory wording as to the measure is not a basis for disregarding the wording as to taxable value.\\nSection 7-26-4(F) reads: \\\"The taxable value to be reported for severed and saved uranium-bearing material is the sales price per pound of the content of U308 contained in the severed and saved or processed uranium \\\" United Nuclear Corp. v. Revenue Div., Etc., 98 N.M. 296, 648 P.2d 335 (Ct.App.1982), held that this language was unambiguous, and lack of ambiguity is the view of the tax collector at this point in these appeals. Section 7-26-4(F) states that taxable value is the sales price of U308 contained in severed and saved uranium or the sales price of U308 contained in processed uranium. There was no sales price for processed uranium; Tufco and Todilto did not sell processed uranium. The only sales price on which taxable value was to be reported was the price of the severed and saved raw unprocessed ore. The taxable event was that sale.\\nThe hearing examiner determined taxable value on a taxable event that never occurred. The hearing examiner disregarded the uncontradicted fact that sales price was based on raw ore; it determined taxable value on the basis of recovered ore. If there had been a sale of processed uranium, then the taxable value would be based on the sale price for the processed uranium. That is not the situation in this case.\\nThe tax collector seeks to avoid this result. The arguments and our answers follow.\\n(a) The assessments were presumptively correct. The presumption was overcome by the tax collector's misapplication of Section 7-26-4(F). See \\u00a7 7-l-25(D)(3).\\n(b) Statutes are to be interpreted to be internally consistent; to interpret Section 7-26-4(F) to refer to U308 contained in the raw ore while interpreting Section 7-26-7 to refer to the U308 recoverable from the ore \\\"would yield an internally inconsistent result since both sections refer to both contained in and recoverable amounts.\\\" This argument is based on the tax collector's misreading of the statute. Taxable value can be based on either the U308 contained in the raw ore or in the processed ore; it depends on the taxable event, in these cases, what was sold. Measuring the tax on the basis of recovered U308 is not inconsistent with determining taxable value on the basis of what was sold.\\n(c) Our holding is that taxable value, under the facts of this case, should have been determined on the basis of the U308 content of the severed and saved raw ore. The tax collector asserts this holding results in inconsistent treatment between those who sell raw ore and those who sell ore after it is milled into yellowcake. The tax collector also asserts that this holding is contrary to Section 7-26-4(F)\\nwhich states that the taxable value is to be based on the sales price for U308 content \\\"regardless of the form in which the product is actually disposed of\\\". This language indicates that the legislature intended that the taxable value reflect the U308 actually recovered whether the U308 was sold in ore or sold as U308.\\nThese contentions are also based on the tax collector's misreading of the statute.\\nThe form in which the product is sold may vary. It may be ore or solution. See \\u00a7 7-26-7. The ore may be sold raw or after being milled into yellowcake. Section 7-26-4(F) provides that the form does not matter. Whatever the form, taxable value depends on sales price per pound of the U308 content contained in the uranium sold. The taxable event in this case was the sale. The taxable event could also be transportation out of New Mexico or the consumption of uranium-bearing material. Section 7-26-7. These taxable events can occur without any milling and thus without any processed ore. Should a taxable event occur without a sale, Section 7-26-4(F) provides that taxable value shall be gross value, and gross value may be the value of U808 in either raw ore or yellowcake. The provisions for determining taxable value are not tied to processed or \\\"actually recovered\\\" ore. Taxable value is tied to a taxable event and being so tied provides consistent treatment to all because taxable value depends on value at the time of the event triggering the tax.\\nThe arguments of the tax collector in the foregoing paragraphs (b) and (c) represent a shift in position \\u2014 from lack of ambiguity in Section 7-26-4(F) to the need for interpretation. If the tax collector is correct, and the statute requires interpretation, this approach works against the tax collector.\\nThe issue is the proper method of determining taxable value. This issue does not involve a deduction or exemption from tax which is construed in favor of the taxing authority. Reed v. Jones, 81 N.M. 481, 468 P.2d 882 (Ct.App.1970). This issue involves the appropriate means of valuing property for tax purposes. Any ambiguity in the statute as to this situation is strictly construed against the State and resolved in favor of the taxpayer. Molycorp, Inc. v. State Corporation Commission, 95 N.M. 613, 624 P.2d 1010 (1981); Kerr-McGee Nuclear Corp. v. Property Tax Division, 95 N.M. 685, 625 P.2d 1202 (Ct.App.1980); Westland Corporation v. Commissioner of Revenue, 83 N.M. 29, 487 P.2d 1099 (Ct.App.1971); Field Enterprises Educational Corp. v. Commissioner of Revenue, 82 N.M. 24, 474 P.2d 510 (Ct.App.1970).\\nIf the provisions of Section 7-26-4(F) concerning taxable value are ambiguous and require interpretation, the ambiguity is to be construed against the tax collector. Under this approach, our holding is the same; taxable value should have been determined on the basis of the U3O8 content of the severed and saved raw ore. The hearing examiner's decision as to taxable value is erroneous.\\nB. Reimbursement for Increase in Severance Tax\\nThe assessment of severance tax and interest against HNG is based on amounts that HNG was reimbursed due to an increase in the severance tax.\\nHNG sold yellowcake to an out-of-state third party pursuant to a contract entered in 1976. The contract did not provide for a fixed dollar amount per pound of yellow-cake; rather, price was determined by a pricing formula involving several factors. The contract did provide that if certain taxes, including the severance tax, were increased subsequent to July 1, 1976, the increased taxes would be separately billed and the third party would reimburse HNG for the amount of the increased tax.\\nNew Mexico increased the severance tax in 1977. The tax stated in Section 7-26-7(A) reflects the increased tax rate. We have not quoted this tax rate because it is not material to the issues presented.\\nThe unchallenged findings of the hearing examiner outline HNG's procedures.\\n(a) At the time yellowcake was received by the third party outside of New Mexico, the third party received an invoice (invoice I) for the pounds shipped, on the basis of the pricing formula in the contract.\\n(b) After invoice I was paid,. HNG paid severance tax on the basis of 'the amount received under invoice I.\\n(c) HNG then separately sent the third party another invoice. This invoice II was for \\\"an amount equal to the incremental increase in severance taxes occuring [sic] after July 1, 1976.\\\" The third party then paid HNG on the basis of invoice II.\\n(d) HNG \\\"did not report, and it did not pay severance tax . on the amounts received pursuant to invoice II's \\\"\\n(e) \\\"Taxpayer [HNG] did not issue invoice II's to GSU [the third party] for severance taxes until after the uranium concentrate had been shipped out-of-state, title and risk of loss had passed, the initial invoice (invoice I's) for the uranium concentrate had been issued and paid, and Taxpayer [HNG] had paid severance tax on its receipts from invoice I's.\\\"\\nUnder the above findings, HNG has obtained reimbursement from its purchaser for the amount of the tax increase, but has not paid severance tax on the amount reimbursed. The correctness of the assessment depends upon whether the severance tax applies to the amount reimbursed. This issue involves only the first level of reimbursement; additional tax for subsequent reimbursements is not involved. See United Nuclear Corp. v. Revenue Div., Etc.\\nHNG asserts that the amount reimbursed is not part of the taxable value of the yellowcake sold; the assessment includes the reimbursement in taxable value. See \\u00a7 7-26-4(F). United Nuclear Corp. v. Revenue Div., Etc. held that the definition of taxable value (the first sentence in Section 7-26-4(F)) was not ambiguous, \\\"[i]t means that the taxpayer must include in the taxable value all monies, including the amount of severance tax that it has billed the customers.\\\" The hearing examiner relied on United Nuclear Corp. in denying the protest. HNG contends that United Nuclear Corp. is distinguishable on the facts, and the factual distinction results in that decision being inapplicable.\\nHNG's arguments, and our answers, follow.\\n(a)The reimbursement received by HNG was not consideration for the yellowcake.\\nHNG asserts that the taxable value of the yellowcake was established by the price in the 1976 contract, which was prior to the increase in the tax. It points out that the effective date of the sales contracts is not stated in United Nuclear Corp. It argues that the reimbursement it received due to the tax increase added nothing to the value. It also argues that the reimbursement provision in the 1976 contract could not have been designed to secure HNG any additional income; it was designed to ensure that HNG \\\"might net the same proceeds it would have realized if no tax increase had ever been passed.\\\" These arguments need not be answered on the basis of consideration under contract law because Section 7-26-4(F) presumes taxable value means the total amount of money received. Part of the money received pursuant to the 1976 contract was reimbursement for the increased tax. As United Nuclear Corp. points out, the amount added because of the tax is paid to get the goods (the yellow-cake). Assuming, but not deciding, that the taxable value was established by the price in the 1976 contract, that price is not limited to the pricing formula but includes the provision to reimburse HNG for the increased tax.\\n(b) Reimbursement of the tax increase is different from reimbursement of the total severance tax.\\nUnited Nuclear Corp. indicates that the contracts there involved provided for reimbursement of the entire severance tax. HNG's reimbursement was for the tax increase. HNG states that the customer's payment of 100% of the tax from the inception of the contract is appropriately characterized as consideration because, if not held to be consideration, the 100% pass-through shifts the incidence of the tax from the severer to the buyer. HNG asserts reimbursement limited to the tax increase does not increase the value of the yellowcake sold and provides no economic benefit to HNG. The implication in this argument is that if there is no change in value, there is no shift in the incidence of the tax. The legal incidence of the tax increase falls on HNG. United Nuclear Corp. It was HNG that received the reimbursement. The reimbursement was money received pursuant to the contract. The money received is presumed to be taxable value. A partial, rather than total, reimbursement does not change this presumption and provides no basis for HNG to be treated differently from the taxpayers in United Nuclear Corp.\\n(c) The statute deals specifically with reimbursements of increases in the severance tax.\\nThis argument is based on Section 7-26-7(B), quoted in full in United Nuclear Corp. Section 7-26-7(B) provides that notwithstanding the tax increase provisions in Section 7-26-7(A):\\n[A] taxpayer may elect, prior to August 1, 1977, to register with the bureau [division] of revenue any bona fide arms length contract for the sale of uranium-bearing material entered into prior to January 1,1977, which does not allow the taxpayer to obtain reimbursement for all of the additional taxes imposed by Subsection A of this section.\\nSales pursuant to a registered contract have a lower tax rate through 1984. HNG does not claim that Section 7-26-7(B) applies to its sale contract. It cites this section because the above-quoted provision uses the word \\\"reimbursement\\\". It asserts that Section 7-26-7(B) recognizes that reimbursement in the statute means something other than consideration for the yellowcake sold.\\nHNG's argument overlooks the statutory wording. Taxable value in Section 7-26-4(F) is presumed to mean \\\"the total amount of money and the reasonable value of other consideration received\\\". Section 7-26-7(B) is consistent. It provides:\\nThe taxpayer's right to have his liability determined under this subsection shall terminate if the registered contract is or has been amended in any manner after January 1, 1977 and the effect of the amendment is to increase the total amount of money and the reasonable value of other consideration, or either of them, received\\nSection 7-26-7(B) does not exclude reimbursement for the tax increase from the total amount of money received; rather, it includes reimbursement for the tax increase within the total amount of money received.\\n(d) If the reimbursement for the increased tax is held to be part of the consideration, then HNG has established another value.\\nThis argument involves the provision in Section 7-26-4(F) which reads:\\nIt is presumed, in the absence of preponderant evidence of another value, that the taxable value means the total amount of money and the reasonable value of other consideration received, or either of them, for the severed and saved uranium ore or processed uranium \\\"yellowcake\\\" concentrate.\\nHNG asserts that it established, by preponderant evidence, that taxable value was other than the total amount of money received. It relies on the pricing formula in the 1976 contract, reimbursement for the amount of the tax increase, the billing of the increase by separate invoice and its practice of treating the reimbursement as proceeds \\\"separate and distinct from what it received for the uranium concentrate.\\\" The hearing examiner found this contention to be without merit; it could properly do so. The 1976 contract is substantial evidence supporting the hearing examiner's finding. Under the contract, the reimbursement is part of the money received for the sale of yellowcake.\\n(e) Including the reimbursement money in the taxable value is inconsistent with Section 7-26-7(A).\\nThis argument is based on the schedule as to the amount of the tax which is set forth in Section 7-26-7(A). We do not quote the schedule; it is quoted in United Nuclear Corp. HNG's argument is that by imposing severance tax on the amount of the reimbursement, the tax exceeds that stated in the schedule. The argument is fallacious because HNG inserts the reimbursement money in the wrong place. HNG figures the tax on the reimbursement pursuant to the tax schedule; it should have included the reimbursement within taxable value per pound. The tax schedule is applied to taxable value per pound. When the reimbursement is included in taxable value per pound, there is no inconsistency.\\nThe hearing examiner correctly denied HNG's protest of the severance, tax assessment.\\nResources Tax\\nHNG was reimbursed for the amount of the severance tax increase. It did not include the reimbursed amount in \\\"taxable value\\\" in figuring the resources tax. The assessment for resources tax and interest is based on this reimbursement. HNG claims this assessment was erroneous. Its arguments, and our answers, follow.\\n(a) Taxable value is the same under both the resources tax and the severance tax.\\nWe agree. The definition of \\\"taxable value\\\" for both taxes is essentially the same. Compare \\u00a7 7-25-3(1) with \\u00a7 7-26-4(F). On the basis that the definitions are essentially the same, HNG contends that its arguments for excluding the reimbursed severance tax from taxable value for severance tax purposes also apply in excluding the reimbursed severance tax from taxable value for resources tax purposes. We have answered these arguments in holding that the reimbursement was not excluded for severance tax purposes; the answers need not be repeated in holding that the reimbursement is not excluded for resources tax purposes.\\n(b) Tax calculations required if the tax collector's position is upheld results in inordinate administrative difficulties.\\nThe claim of inordinate administrative difficulties is based on the interrelationship of three taxes on natural resources. The three taxes are the severance tax, the resources tax and the oil and gas conservation tax. See \\u00a7 7-30-5(C). HNG points out that a reimbursement for the increased severance tax increases taxable value for both the severance tax and the resources tax. HNG describes this as \\\"a never-ending cycle of one tax increasing the other (which in turn increases the first) *'' HNG then points out that in case of uranium, taxable value under the oil and gas conservation tax is based on the taxable value for resources tax purposes. HNG states: \\\"There is absolutely no way a taxpayer of average intelligence could calculate his extractive tax liabilities with this three-tax relationship.\\\"\\nNo issue of inordinate administrative difficulties was raised at the formal hearing. Section 7-l-25(A). The absence of any issue as to the interrelationship of the three taxes is illustrated by the unchallenged finding: \\\"[T]he Taxpayer contends that the Department's position makes it impossible to make normal tax calculations. However, it was agreed by all parties that if the Department's positions on the tax assessments are correct, the taxes have been correctly calculated.\\\"\\nHere, HNG seeks to raise an administrative burden issue for the first time in the appeal, but has conceded that the assessment involved in the appeal has been correetly calculated. The question of administrative burden is not an issue in this appeal.\\n(c) Time of attachment of the taxes.\\nHNG asserts that if the taxable event for the severance and resources taxes is the same event, so that the two taxes attached simultaneously, the taxes do not apply to each other. On this basis, HNG contends that the reimbursement for the severance tax is not includable in taxable value for purposes of the resources tax. This argument overlooks the fact that the legal incidence of both taxes is upon HNG. See United Nuclear Corp. and \\u00a7 7-25-4. In a similar situation, Gurley v. Rhoden, 421 U.S. 200, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975), stated: \\\"[E]ven if the liability for the excise taxes did arise simultaneously with the sales tax, we cannot see any legal distinction, constitutional or otherwise, arising from that circumstance.\\\"\\nAlternatively, HNG argues that the two taxes did not arise simultaneously, that each tax is based on a different taxable event. Assuming, but not deciding, that there were different taxable events, HNG fails to recognize that each tax is imposed on taxable value at the time of the taxable event. Taxable value for each of the taxes is based on the total amount of money received. The money received, under each tax, includes the reimbursement for the increased severance tax.\\nThe hearing examiner correctly denied HNG's protest of the resources tax assessment.\\nCompensating Tax\\nThe assessments of compensating tax, interest and penalty against Tufco and HNG are based on property purchased outside of New Mexico but used in New Mexico in the mine operations of the two taxpayers in severing uranium ore. Neither taxpayer reported or paid any compensating tax as to this property. There are two issues: Liability for compensating tax, and liability for the assessed penalty. We hold that the taxpayers are not liable for the compensating tax. Accordingly, we do not consider arguments as to the propriety of assessing a penalty.\\nThe Resources Excise Tax Act provides for three taxes \\u2014 resources tax, processors tax and service tax. Sections 7-25-4, 7-25-5 and 7-25-6. Both taxpayers are subject to the resources tax; both are severers of natural resources and are taxed for the privilege of severing natural resources.\\nSection 7-9-35 provides an exemption for persons subject to the Resources Excise Tax Act. The exemption reads:\\nWhen a privilege tax is imposed by the Resources Excise Tax Act [7-25-1 to 7-25-9 NMSA 1978], the provisions of the act shall apply and determine the full measure of tax liability for the privilege of engaging in the business stated in the act and no provision of the Gross Receipts and Compensating Tax Act shall apply to or create a tax liability for such privilege, except as is provided in Section 7-25-8 NMSA 1978.\\nThe exception to the exemption in Section 7-25-8 applies to nonfissionable natural resources and is not applicable.\\nThe tax collector contends that Section 7-9-35 is simply not involved. This contention is based on the view that the property purchased out-of-state was not subject to the resources tax and thus Section 7-9-35 is not applicable. This contention is frivolous. The resources tax, Section 7-25-4, is based on the taxable value of natural resources; it is not based on the component parts of the property used in severing the natural resources.\\nSection 7-9-7, the compensating tax, imposed a tax on the privilege of using property in New Mexico. There is no dispute that both taxpayers used the property in New Mexico, Section 7-9-3(L), and that this property was used as an integral part of their mining operations.\\nTufco and HNG claim they are exempted from the compensating tax by Section 7-9-35. The hearing examiner ruled that the exemption did not apply because the privilege taxed by the resources tax is not the same as the privilege taxed by the compensating tax. We do not agree with the hearing examiner.\\nSection 7-9-35 provides:\\n(a) The privilege tax imposed by the resources tax determines the full measure of tax liability for the privilege of engaging in the business of severing natural resources.\\n(b) No provision of the Gross Receipts and Compensating Tax Act creates a tax liability for \\\"such privilege\\\", which is the privilege of engaging in the business of severing natural resources.\\n(c) No provision of the Gross Receipts and Compensating Tax Act applies to \\\"such privilege\\\".\\nThe tax collector would subdivide a taxpayer's activity into various categories so that the word \\\"privilege\\\" in Section 7-9-35 would be given a very narrow meaning. Under the tax collector's approach, the privilege of severing natural resources is one privilege, and the privilege of using property in New Mexico is another. If successful in this approach, the tax collector could then argue that the privilege of severing natural resources is distinct from selling the severed resources so that there would be no exemption from the gross receipts tax. However, such a distinction, for gross receipts tax purposes is foreclosed. J.W. Jones Construction Co. v. Revenue Division, Dept. of Taxation and Revenue, 94 N.M. 39, 607 P.2d 126 (Ct.App.1979), held:\\nIt [Jones] is liable for any resources tax unpaid on materials extracted from contractor-designated pits and used on the highway projects. Concommitantly, Jones is entitled to the exemption from gross receipts tax of the amount of contract receipts attributable to its use of contractor-designated pit material\\nSee also Carter & Sons, Inc. v. N.M. Bureau of Revenue, 92 N.M. 591, 592 P.2d 191 (Ct.App.1979); Patten v. Bureau of Revenue, 86 N.M. 355, 524 P.2d 527 (Ct.App.1974).\\nInasmuch as Section 7-9-35 applies to exempt from the gross receipts tax the receipts from sale of severed resources, should the compensating tax be treated dif ferently? The tax collector contends the compensating tax should be treated differently because, if not, \\\"no tax at all will be charged by New Mexico on the purchase of the equipment.\\\" This argument disregards the fact that no gross receipts tax will be collected on the sale of the natural resources severed.\\nWe recognize that the incidence of the gross receipts tax is on the seller, Section 7-9-4(A), and the incidence of the compensating tax is on the buyer, Sections 7-9-7 and 7-9-9. See Edmunds v. Bureau of Revenue, 64 N.M. 454, 330 P.2d 131 (1958). However, Western Electric Co. v. N.M. Bureau of Revenue, 90 N.M. 164, 561 P.2d 26 (Ct.App.1976), states: \\\"[T]he legislature intended to make our gross receipts tax and our compensating tax correlates: an exemption from the gross receipts tax must also be treated as an exemption from the compensating tax.\\\" Compare Union County Feedlot, Inc. v. Vigil, 79 N.M. 684, 448 P.2d 485 (Ct.App.1968).\\nSection 7-9-35 states that no provision of the Gross Receipts and Compensating Tax Act applies to the \\\"privilege of engaging in the business\\\" when the resources tax applies. The business of both taxpayers is severing natural resources. The definition of \\\"severing\\\" includes mining or producing any natural resources in New Mexico for sale or profit. Section 7-25-3(H). Property used in the mine operations of the taxpayers as an integral part of the mining operation is used in the business of severing. See Carter & Sons, Inc. v. N.M. Bureau of Revenue; Patten v. Bureau of Revenue.\\nThe statement in Section 7-9-35 that no provision of the Gross Receipts and Compensating Tax Act applies is similar to the \\\"in lieu of\\\" provision discussed in Santa Fe Downs, Inc. v. Bureau of Revenue, 85 N.M. 115, 509 P.2d 882 (Ct.App.1973). The hearing examiner's decision, that the exemption did not apply, is erroneous.\\nThe decision denying the protests of Tufco and Todilto to the severance tax assessments is reversed. The decisions denying the protests of Tufco and HNG to the compensating tax assessments are reversed. The decision denying the protests of HNG to the severance tax and resources tax assessments is affirmed.\\nIf the taxpayers are to be treated fairly, Tufco and Todilto should recover their appellate costs, and HNG should recover a portion of its appellate costs. However, such fairness is foreclosed by the Supreme Court's interpretation of Section 7-l-25(B) in New Mexico Bureau of Revenue v. Western Electric Co., 89 N.M. 468, 553 P.2d 1275 (1976). Accordingly, no appellate costs may be recovered. See Addis v. Santa Fe Cty. Valuation Protests Bd., 91 N.M. 165, 571 P.2d 822 (Ct.App.1977).\\nIT IS SO ORDERED.\\nHENDLEY and DONNELLY, JJ., concur.\"}"
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+"{\"id\": \"1589282\", \"name\": \"FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Appellee, v. A. R. ANGIER, d/b/a Coronado Courts, Defendant-Appellant\", \"name_abbreviation\": \"Fidelity & Casualty Co. v. Angier\", \"decision_date\": \"1955-03-10\", \"docket_number\": \"No. 5823\", \"first_page\": \"191\", \"last_page\": 195, \"citations\": \"59 N.M. 191\", \"volume\": \"59\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:02:17.223163+00:00\", \"provenance\": \"CAP\", \"judges\": \"COMPTON, C. J., and LUJAN, McGHEE and KIKER, JJ., concur.\", \"parties\": \"FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Appellee, v. A. R. ANGIER, d/b/a Coronado Courts, Defendant-Appellant.\", \"head_matter\": \"281 P.2d 149\\nFIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Appellee, v. A. R. ANGIER, d/b/a Coronado Courts, Defendant-Appellant.\\nNo. 5823.\\nSupreme Court of New Mexico.\\nMarch 10, 1955.\\nDean S. Zinn, Santa Fe, for appellant.\\nF. Gordon Shermack, Santa Fe, for appellee.\", \"word_count\": \"1756\", \"char_count\": \"10490\", \"text\": \"SADLER, Justice.\\nThe plaintiff (appellee) recovered a money judgment against defendant for adjusted premium due on a workmen's compensation policy. Feeling himself aggrieved he brings the matter before us on appeal for a revision and correction of the judgment so entered against him.\\nThe trial was before the court without a jury and resulted as indicated above. In a decision filed the court made certain findings of fact and conclusions of law upon which it based its judgment. The findings are not complicated and their substance will be stated.\\nThe defendant owned a motel known as Coronado Courts on the outskirts of Santa Fe. When about to begin certain construction on his premises in May, 1949, he applied for and was issued two policies of insurance through plaintiff's local agent in Santa Fe. One of them was a standard workmen's compensation and employers' liability policy, identified as C-6985702 and known as \\\"C-Policy.\\\" The other was a comprehensive liability policy, referred to as the \\\"XP-Policy.\\\" Each policy was to cover a period of one year from May 18, 1949.\\nSince the amount of the premium on each policy was to be graduated according to the payroll of defendant, an unknown factor in the beginning, the first billing for premium was based on an estimated payroll, the amount of the premium for this purpose being $144.33 for C-Policy and $44.13 for Policy XP-633306. The defendant paid these estimated premiums upon receipt of statements therefor, subject to a later billing based on audit of defendant's payroll at end of the policy period.\\nSubsequently, and in due course, the plaintiff, through one of its auditors, made the audit contemplated for the policy year ending May 18, 1950. The audit was made in defendant's presence and upon completion was signed and approved by him. Due to lack of certain essential forms therefor, the audit on the XP-Policy was not made at the same time as that for the C-Policy. Thereafter, on two occasions, on August 3, 1950, and on September 12, 1950, the auditor mentioned made two requests on defendant for the right to inspect his books and records preliminary to an audit in reference to the XP-Policy mentioned. Both requests being refused, the plaintiff's auditor prepared an estimated audit based on the previous one made as to C-Policy, the figures for both audits remaining constant. Both were then forwarded to the Kansas City office of plaintiff for computation of the rates applicable and the premium due on the XP-Policy.\\nBased upon the audits mentioned, the defendant was billed for additional premiums, as follows: On C-Policy the sum of $550.22 and on XP-Policy the sum of $215.74. Though often requested, the defendant declined to pay any part of the additional premiums.\\nThe original audits made by plaintiff's auditor, as hereinabove stated, were not produced at the trial, nor was there any showing that they were not in existence or could not be produced by the exercise of reasonable diligence. Indeed, the plaintiff made no effort to support the original audits for purposes of the trial. The amount of premium to be paid under each policy is variable and cannot be determined from the policy itself and a knowledge of the amount rests peculiarly with plaintiff.\\nThe defendant was under the mistaken impression that the amounts of estimated premiums were the limit of his obligations under the terms of the policies. He never had any dispute as to the correctness of the audit made until the date of filing his answer and then, only, as to the rates of premiurns charged. However, the local agent for plaintiff verified such rates, at defendant's request, as being correct, after careful rechecking by him of the legal rates applicable to the figures shown in such audits. With reference to the so-called XP-Policy there is no legal evidence before the court as to the accuracy, correctness, details or results of the claimed audit.\\nHaving found the foregoing facts the court concluded that the defendant became bound and obligated under the terms of the policies to the extent of the actual payroll of defendant's employees during said period; that defendant accepted said policies and was bound by the terms thereof. Such policies provided for the collection of various premiums based on defendant's estimated payroll of employees for the policy period but the advance premium paid did not constitute payment in full under the policies. The final and decisive conclusions were Nos. 5 and 6, reading:\\n\\\"5. That the defendant is indebted to the plaintiff, under the provisions of the C Policy in the sum of $550.22, together with interest at 6% per annum, from the 18th day of May, 1950.\\n\\\"6. That the defendant is not indebted to the plaintiff under the provisions of the XP Policy, because of failure of proof.\\\"\\nJudgment was entered, accordingly, against the defendant in plaintiff's favor in the sum of $550.22. It is for the reversal thereof that this appeal is prosecuted by the defendant.\\nIt is clear from the foregoing findings that notwithstanding the failure on plaintiff's part to produce the original audits, the trial court deemed the evidence sufficient as to warrant judgment for premium on C-Policy and insufficient to support a judgment for the final premium due on XP-Policy.\\nThe defendant, as appellant, presents but two claims of error as grounds for reversal of the judgment against him. They are (1) that there is no substantial evidence to support the judgment as to the C-Policy; and (2) that the trial court abused its discretion in granting plaintiff a continuance when the cause first came on for trial. We shall deal with them in the order stated.\\nUnquestionably, counsel for defendant rests his challenge to the sufficiency of the evidence to support the judgment for balance of premium- on C-Policy on the trial court's finding No. 8. It recites failure of the plaintiff to produce the original audits furnishing data for calculating balance of premium due on each policy. As to XP-Policy, which extends comprehensive liability, the defendant appears in poor position to make capital out of plaintiff's failure to produce the original or copy of any audit, in view of his failure, after two requests, to permit plaintiff to see his books and records for the purpose of making an audit. This he was obligated to do under the terms of his policy. Be that as it may, the defendant is in no way prejudiced, there being no judgment against him for a balance of premium on this policy.\\nThe situation is different, however, as to unpaid premiums on C-Policy. If, actually, the original audits of defendant's books and records had furnished sole proof of the correctness of premium calculations, the exclusion from evidence of original, or authentic copies thereof, where best evidence not available, would have been fatal to recovery. Where, however, other evidence in the form of testimony and admissions leaves no doubt as to correctness of the amount of premium claimed, then the failure to get in evidence the original audit on which the premium calculation was based, is of little consequence. That is exactly the situation in the case before us.\\nBoth the local agent of the plaintiff and its auditor as well were present and testified in person. The sole purpose of getting the audits in evidence, of course, was to verify correctness of the premium calculations made in Kansas City office of plaintiff, and thereby establish the amount unpaid. It was shown by plaintiff's local agent that the audit bore defendant's signature, that he made no complaint of the auditor's findings, himself furnishing the figures to the auditor. In fact, there was evidence that he had approved same. Certainly he never disputed its correctness and a letter from local agent giving correct amount of the premium based on to C-Policy sent defendant was put in evidence. He complained only of the rate and of a mistaken impression on his part that his initial payment was in full. The letter read:\\n\\\"As you requested, we have thoroughly checked our code numbers and rates under workmen's compensation policy with our Special Agent, and find that the additional premium of $550.22 is correct, as per your copy of the final audit.\\n\\\"Your early remittance will be greatly appreciated.\\\"\\nIn addition, there was extended testimony from Joe W. Alverson, Casualty Auditor for the plaintiff. It was he who made the audit in defendant's presence and from figures given him by defendant. The defendant admitted the audit was made in his presence and would not deny that he signed it. We are fully satisfied there was sufficient evidence, independently of the audit itself, to support the court's finding that the premium unpaid was the exact amount sued for and the amount due under terms of the policy. This claim of error is denied.\\nThe second claim of error is based upon the action of the trial court in granting a four-day postponement while the defendant's motion to dismiss was pending undisposed of. The purpose was to secure either a deposition from, or the presence of, the auditor who examined the plaintiff's records. Whether viewed as what in effect it was, the granting of a motion to reopen the case and take additional evidence; or, as a simple postponement, in either case, the court possessed a broad discretion in the premises and we see no abuse in its exercise of that discretion. 17 C.J.S., Continuances, \\u00a7 5-6, page 191; 12 Am.Jur. 450, \\u00a7 5, Continuances. See, also, Waldo v. Beckwith, 1 N.M. 182; Perea v. State Life Ins. Co., 15 N.M. 399, 110 P. 559; State Bank of Commerce v. Western Union Tel. Co., 19 N.M. 211, 142 P. 156, L.R.A.1915A, 120.\\nIn view of the conclusion reached, it will be unnecessary to consider argument made by plaintiff that, regardless of trial court's' exclusion from evidence of the audit as to C-Policy, we should, nevertheless, consider it in evidence because erroneously excluded. Compare Supreme Court Rule 17(2).\\nIt is only fair to state that counsel representing appellee in this court did not represent him below. It follows from what has been said that the judgment should be affirmed.\\nIt is so ordered.\\nCOMPTON, C. J., and LUJAN, McGHEE and KIKER, JJ., concur.\"}"
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+"{\"id\": \"1590388\", \"name\": \"George A. LETTEAU, Claimant, Plaintiff-Appellee, v. REYNOLDS ELECTRICAL AND ENGINEERING COMPANY, Employer, Pacific Employers Insurance Company, Insurer, Defendants-Appellants\", \"name_abbreviation\": \"Letteau v. Reynolds Electrical & Engineering Co.\", \"decision_date\": \"1955-12-03\", \"docket_number\": \"No. 5955\", \"first_page\": \"234\", \"last_page\": 239, \"citations\": \"60 N.M. 234\", \"volume\": \"60\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:37.106936+00:00\", \"provenance\": \"CAP\", \"judges\": \"COMPTON, C. J., and LUJAN and SADLER, JJ., concur.\", \"parties\": \"George A. LETTEAU, Claimant, Plaintiff-Appellee, v. REYNOLDS ELECTRICAL AND ENGINEERING COMPANY, Employer, Pacific Employers Insurance Company, Insurer, Defendants-Appellants.\", \"head_matter\": \"290 P.2d 1072\\nGeorge A. LETTEAU, Claimant, Plaintiff-Appellee, v. REYNOLDS ELECTRICAL AND ENGINEERING COMPANY, Employer, Pacific Employers Insurance Company, Insurer, Defendants-Appellants.\\nNo. 5955.\\nSupreme Court of New Mexico.\\nDec. 3, 1955.\\nSimms & Modrall, Joseph E. Roehl, George T. Harris, Jr., A. T. Seymour, Albuquerque, for appellants.\\nJoseph L. Smith, Henry A. Kiker, Jr., Robert H. Sprecher, Albuquerque, for appellee.\", \"word_count\": \"1818\", \"char_count\": \"10465\", \"text\": \"McGHEE, Justice.\\nThe defendant employer and insurer appeal from a judgment in favor of the plaintiff claimant under the Workmen's Compensation Act. It is the contention of appellants that the claimant failed to introduce any substantial evidence of a latent injury, and, therefore, that his claim for compensation for disability filed December 21, 1953, arising out of an accident which occurred on August 1, 1951, is barred by the statute of limitations contained in \\u00a7 59-10-13, N.M.S.A.1953 Compilation; that the trial court erred in refusing to grant their timely motions for a directed verdict on such ground.\\nThe claimant was employed as an electrician by the defendant employer at Los Alamos, New Mexico, on August 1, 1951. At that time the defendant, Pacific Employers Insurance Company, carried the employer's compensation insurance. This coverage expired under the policy on September 1, 1951, at which date coverage by another insurance company, Maryland Casualty Company, went into effect. . A judgment in this cause in favor of the claimant against the employer and Maryland Casualty Company has been satisfied and is not of issue on this appeal.\\nOn August 1, 1951, claimant was engaged in threading pipe in connection with installation of underground works. He was attempting to tighten a vise which was closed and opened by inserting an iron bar about a foot long through certain holes. Leverage to operate the vise was gained by turning the bar. The bar slipped and struck claimant's left knee, thus causing him to lose his balance and twist his leg at the same time.\\nImmediately after this accident claimant filled out an accident report and Was sent to the Los Alamos Hospital by the work foreman. Claimant was seen by two doctors there, but was unable to identify one of them. However, the other, Dr. Oakes, examined claimant, took x-rays, and advised claimant he had water on the knee and possibly a strain of the muscles. After giving claimant a bandage for the knee, Dr. Oakes told him to get a heat lamp and apply heat to the knee for relief of pain one or more times during the night. He said the water on the knee would dry up in time; that there was possibly a strain of the muscles and the knee would be sore where it had been hit; that claimant would get over it. Claimant saw this doctor a short time later in connection with this injury and was told by the doctor to return again if the knee bothered him,\\nThe claimant did not return to Dr. Oakes until June 7, 1953. A written report made by Dr. Oakes to a \\u2022 claims service agent by letter of April 5, 1954, was introduced in evidence and contains this description of claimant's visits to him:\\n\\\"On August 28th, 1951, he (claimant) was seen by me at which time I stated that he had a good tight knee with pain along the lateral ligaments. Impression was knee strain and an elastoplast strapping was applied and he was to return in one week. The elastoplast was removed September 4th, 1951, he was advised to use heat at home and to return to see us again in one week. He was not seen again until the 7th of June 1953 for this injury when he came into my office stating that he was still having trouble with tire left knee. Upon examination he was found to have a stable joint with pain over the medial cartilage produced by impingement of the medial collateral ligament. I felt that this was a torn medial cartilage and that it should be excised. \\\"\\nThe claimant testified the knee was sore and painful during the year 1951 from the time of the accident; that it caused him trouble in 1952 and that off and on during that year he wore his bandage and would take heat treatments in the evening with his heat lamp; that the pain at times during 1952 and the early part of 1953 would get worse in wet weather and that it would depend on the type of work he was doing. According to his testimony the knee continued to give sporadic trouble with occasional stiffness or locking of the knee right up to June of 1953, when a second incident involving the knee occurred.\\n' During June of 1953, while still working for the defendant employer, claimant had another accident. He was climbing a ladder and had gone up a couple of steps when his knee gave way or his foot slipped and he fell two or three feet off the ladder, again twisting the left knee. Another accident report was made out and in a short while claimant again went to see Dr. Oakes, who as noted in the report above, diagnosed the injury as a torn medial cartilage and recommended an operation. Later claimant went to a doctor in Santa Fe, whose diagnosis was the same.\\nClaimant has continued with his work as an electrician and at the time of trial was employed by an Albuquerque electrical construction company doing estimating work, a job which is easier for him because of his knee than that of a supervising journeyman electrician, the work he formerly did.\\nWhen asked why he did not file a claim for compensation or seek further medical attention prior to June, 1953, claimant testified he relied on Dr. Oakes' statement that he had water on the knee and possible muscle strain and would get over it.\\nIn support of the award it is argued by claimant that the cases of Anderson v. Contract Trucking Co., Inc., 1944, 48 N.M. 158, 146 P.2d 873, and Harlow v. Hare, 1947, 51 N.M. 326, 184 P.2d 300, establish the rule that where an erroneous medical diagnosis is given by a doctor to whom a claimant is sent by his employer, the claimant has a right to rely upon such erroneous diagnosis and that the erroneous diagnosis is what forms the basis for the finding of a latent injury. In order to get around our holding in Gonzales v. Coe, 1954, 59 N.M. 1, 277 P.2d 548, that a claimant who was continuously in pain from the time of injury until the time he made claim for workmen's compensation did not suffer a latent injury but was charged.at the time of the accident with notice of his disability, claimant points out that in the Gonzales case the claimant never went to a doctor and there was, therefore, no erroneous diagnosis.\\nClaimant has misinterpreted our earlier holdings. In the Anderson case we held that a claim for compensation benefits was not barred in respect of a latent injury which was not or could not with reasonable diligence have been discovered until after one year and 31 days from the date of the accident.\\nThe important thing is whether the injury was not or could not have been discovered with reasonable diligence. The early erroneous diagnosis in the Anderson and Harlow cases was simply one circumstance or factor, to be considered 'with all the others present, in ascertaining whether the injury to claimant could have been discovered by the exercise of reasonable diligence.\\nClaimant points to testimony of the medical experts to the effect that the second accident increased and revealed the symptoms of a torn cartilage, that the injury is one which is frequently diagnosed in the beginning as a sprain, and that true diagnosis cannot be made until the situation becomes worse with the passage of time.\\nBut, we said in Gonzales v. Coe, supra, that the mere fact that a claimant, from a medical standpoint, does not know the full extent of his injury does not relieve him from timely filing his claim for workmen's compensation.\\nWe think the following language from the case of Sanchez v. Bernalillo County, 1953, 57 N.M. 217, 257 P.2d 909, 912, points up the difference between the present case and the Anderson case, although it should be noted the Sanchez case made no direct ruling on the latent injury feature:\\n\\\"This case differs from the one before us in that in the Anderson case the workman was led to believe that his injury was trivial and he attributed his growing eye weakness to natural causes and advancing age. Suit was filed within the statutory period after the discovery by him of the seriousness of his injury and the court held it to have been filed in time. In the instant case, it was evident that the workman appreciated the seriousness of his injuries as early as a few months after the occurrence of the accident but he took none of the steps required of him by the statute to acquaint his employer with the fact that he had sustained a compensable injury, .\\n\\\" It will be remembered that the workman, Sanchez, sustained ' compensable injuries in 1946 from which he (it may be conceded) died in 1951, and that although he during these years continually complained about his declining health and increasing disability, with all of which he ever blamed the damage to his head sustained while working in the jail, he did nothing to claim or assert his right to compensation until two days before his death. \\\"\\nSo it is in this case. Claimant knew that his knee was injured in the first accident. He must have known, as. a reasonable person, that he had some disability, because after the accident and for twenty-two months he had sporadic pain in the knee which he treated with bandages and heat; his knee was weakened so that he developed a noticeable limp. Although when he last consulted Dr. Oakes, in 1951 he was asked to return if the knee continued to bother him, he did not return until after the second accident.\\nWe must agree with the appellants that the original accident and injury to claimant's knee were concurring incidents; that, claimant suffered pain, discomfort and disability in his knee from the date of the original accident; and the claimant knew the causal connection between the accident and injury from the date of the original accident. We must, therefore, conclude there was nothing substantial in the evi dence to establish a latent injury and that the claim was barred under \\u00a7 59-10-13, supra.\\nOur holding makes it unnecessary to notice other errors complained of by appellants. The cause is reversed and remanded with direction to the trial court to enter judgment dismissing plaintiff's claim. It is so ordered.\\nCOMPTON, C. J., and LUJAN and SADLER, JJ., concur.\\nKIKER, J., not participating.\"}"
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+"{\"id\": \"1594889\", \"name\": \"In the Matter of Arturo J. GALLEGOS, An Attorney Admitted to Practice Before the Courts of the State of New Mexico\", \"name_abbreviation\": \"In re Gallegos\", \"decision_date\": \"1986-08-21\", \"docket_number\": \"No. 16453\", \"first_page\": \"496\", \"last_page\": 499, \"citations\": \"104 N.M. 496\", \"volume\": \"104\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:10.146802+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Arturo J. GALLEGOS, An Attorney Admitted to Practice Before the Courts of the State of New Mexico.\", \"head_matter\": \"723 P.2d 967\\nIn the Matter of Arturo J. GALLEGOS, An Attorney Admitted to Practice Before the Courts of the State of New Mexico.\\nNo. 16453.\\nSupreme Court of New Mexico.\\nAug. 21, 1986.\\nVirginia Ferrara, Chief Counsel, Disciplinary Bd., Albuquerque, for Board.\\nArturo J. Gallegos, Albuquerque, pro se.\", \"word_count\": \"1655\", \"char_count\": \"9841\", \"text\": \"OPINION\\nPER CURIAM.\\nThis matter came before this Court on July 22, 1986, after completion of disciplinary proceedings conducted pursuant to NMSA 1978, Rules Governing Discipline (Repl.Pamp.1985) wherein attorney Arturo J. Gallegos acknowledged having engaged in numerous acts of misconduct and agreed to the imposition of the sanction of disbarment. Gallegos was previously summarily suspended from the practice of law by this Court on April 10, 1985, pursuant to Rules Governing Discipline, Rule 12(a)(5)(i), pending the outcome of these proceedings. The hearing committee and the Disciplinary Board have accepted Gallegos' consent to disbarment and the Court adopts the Board's recommendation that he be disbarred and that certain costs be assessed against him.\\nIn 1982, Gallegos suggested to client James Haymon that he could invest money for Haymon and that Haymon could realize a large profit within twelve months. Haymon delivered $6,000.00 to Gallegos for this purpose, and Gallegos subsequently told him that the money had been invested in a real estate contract assigned to Haymon. After the twelve months had elapsed, Haymon requested the return of his money. Gallegos advised that the contract (a copy of which was never seen by Haymon) had been foreclosed upon and that Haymon's money was lost. Gallegos promised to repay Haymon but never did. Records pertaining to Gallegos' bank accounts indicate that Haymon's money was never placed in trust but went directly into Gallegos' office checking account, where it was apparently utilized by Gallegos for his own purposes. There is no evidence that the money was ever invested in a real estate contract. Such conduct is violative of NMSA 1978, Code of Prof.Resp., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 7-101(A)(3), 9-102(A), 9-102(B)(3), and 9-102(B)(4) (Repl.Pamp.1985).\\nIn another case, Gallegos was employed to represent petitioner Kay D. Vadala in a divorce action. The judgment awarded his client certain property in the possession of the respondent, who appealed the decision. Gallegos did not request a supersedeas bond or take any steps to enforce the judgment during the pendency of the appeal. When the judgment was ultimately affirmed, the property had been fraudulently conveyed to others by the respondent. Gallegos' client was forced to incur additional legal fees in efforts to gain possession of what was rightfully hers. These efforts were only partially successful. Gallegos advised the judge that he really had no idea how to proceed once the case was remanded, but he did not attempt to associate with counsel competent in such matters. Additionally, he totally ignored the frantic efforts of his client to reach him in order to have the case resolved. In this instance Gallegos' inaction and incompetence were violative of NMSA 1978, Code of Prof.Resp., Rules 6-101(A)(1), 6-101(A)(2), 6-101(A)(3), 7-101(A)(1) and 7-101(A)(3) (Repl.Pamp.1985).\\nMarta Torres retained Gallegos to represent her interests in the probate of her ex-husband's estate. She and the deceased had been co-owners of a liquor license and of certain real property; she wished to purchase his one-half interest in the license from the estate and to sell to the estate her interest in the real property. The Court approved Ms. Torres' purchase of the interest in the liquor license contingent upon her applying to the Department of Alcoholic Beverage Control to have the license transferred to her name. Ms. Torres had given Gallegos $150.00 for this purpose. Gallegos did not place the money in trust but deposited it in his personal account and converted it to his own use; he never submitted the appropriate forms to the Department of Alcoholic Beverage Control.\\nGallegos negotiated the sale of Ms. Torres' interest in the real property, and the buyer's attorney tendered to him a payment of $625.00 for Ms. Torres. Gallegos assured opposing counsel that the money would be held in trust pending the completion of the sale. He never advised his client of either the offer to purchase her property or of his receipt of the $625.00. When the transaction could not be consummated, opposing counsel requested a refund of the $625.00 paid by his client. Gallegos never returned this money; records pertaining to Gallegos' trust account show that the money was never deposited there.\\nGallegos' dishonest and unprofessional actions in the Torres cases violate NMSA 1978, Code of Prof.Resp., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 6-101(A)(3), 7-101(A)(3), 9-102(A), 9-102(B)(3) and 9-102(B)(4) (Repl.Pamp.1985).\\nGallegos was employed in 1982 by Heriberta Martinez to handle various probate matters; she entrusted to him the amount of $4,094.54, a small safe, and various documents. In January 1983, Ms. Martinez became dissatisfied with Gallegos' lack of action and discharged him as her attorney. In her letter of discharge to Gallegos, she requested that he send her money and other property to her new attorney. Approximately one month later, Gallegos delivered the documents and the safe to the new attorney and promised to deliver a trust account check for the $4,094.54 that afternoon. He delivered no check nor any money. The new attorney wrote and called Gallegos repeatedly for the next two months and finally threatened a lawsuit on behalf of the estate if the money were not returned. On April 29, 1983, Gallegos delivered in cash about half of the money entrusted to him but said he was holding the remainder in trust. The remaining funds, also in cash, were not delivered to the new attorney until mid-June 1983. Bank records show that the funds entrusted to Gallegos by Ms. Mar tinez were never placed in trust, and Gallegos acknowledges that he misappropriated them. Gallegos' conduct in this instance was violative of NMSA 1978, Code of Prof. Reap., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(A), 9-102(B)(3) and 9-102(B)(4) (Repl.Pamp.1985).\\nIn yet another case, Gallegos was retained by Juliette Ferrales to obtain a divorce for her. On October 14, 1981, the court granted the divorce, awarded custody of a minor child to Ms. Ferrales, and ordered the respondent to pay child support. Gallegos was directed to prepare a final decree. Gallegos claims to have prepared such a document and to have sent it to the respondent for his signature, but when he did not receive the document back he took no further action to have a decree entered. The case was subsequently dismissed for failure to prosecute. In September 1983, nearly two years later, Gallegos' client contacted him to request a copy of her divorce decree. Only then did Gallegos have the case reopened and a final decree entered. Such gross neglect by an attorney violates NMSA 1978, Code of Prof.Resp., Rules 6-101(A)(3) and 7-101(A)(1) (Repl.Pamp.1985).\\nIn October 1984, Luis Segovia paid Gallegos to represent him in a URESA action filed against him by the State of California. Gallegos never filed an answer to the URESA petition, and a default judgment was entered against Mr. Segovia in the amount of $23,362.50. Gallegos in this case committed violations of NMSA 1978, Code of Prof.Resp., Rules 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and 7-101(A)(3) (Repl.Pamp.1985).\\nGallegos prepared wills for Donna and Joseph Landis in 1982, and thereafter suggested to them that if they would each pay him $1,000.00 plus tax, he would probate their estates at the time of their deaths. Gallegos was paid the money. Mr. and Mrs. Landis subsequently wanted to make certain changes in their wills, but were unable to reach Gallegos. They then became concerned as to whether he would honor his agreement to probate their wills and wrote to the Disciplinary Board for assistance. It is clear that in this instance Gallegos simply defrauded his clients of over $2,000.00 in violation of NMSA 1978, Code of Prof.Resp., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 2-106(A) (Repl.Pamp.1985).\\nWe are appalled by the extent of Gallegos' misconduct and by the magnitude of the damage he has inflicted upon members of the public. Conduct of this sort by an attorney can lead only to disbarment. While Gallegos has conveyed to this Court an expression of regret and an apology for his actions, we can only hope that he will find some way to express his remorse to those persons whose cases he mishandled and whose money he misappropriated. In that the sanction of disbarment will be imposed, we have no wish to encourage Gallegos to apply for reinstatement by suggesting to him that the payment of restitution might insure his reinstatement at some point in the future. Any person whose dishonesty reaches heights such as these should not contemplate a career as an attorney.\\nIT IS THEREFORE ORDERED that the suspension of ARTURO J. GALLEGOS be revoked and that he be and hereby is disbarred pursuant to Rules Governing Discipline, Rule 11(a)(1).\\nIT IS FURTHER ORDERED that the Clerk of the Court publish this opinion in the State Bar of New Mexico News and Views and in the New Mexico Reports.\\nIT IS FURTHER ORDERED that Gallegos' compliance with Rules Governing Discipline, Rule 17 will not be required at this time in view of his earlier suspension pursuant to Rules Governing Discipline, Rule 12(a)(5)(i).\\nIT IS FURTHER ORDERED that in accordance with Gallegos' agreement and the recommendation of the Disciplinary Board, the costs of this action in the amount of $1,762.36 are assessed against him. These costs are to be paid to the Disciplinary Board on or before March 1, 1988.\\nIT IS SO ORDERED.\"}"
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diff --git a/nm/1595014.json b/nm/1595014.json
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+"{\"id\": \"1595014\", \"name\": \"James D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant\", \"name_abbreviation\": \"Romero v. U.S. Life Insurance\", \"decision_date\": \"1986-05-01\", \"docket_number\": \"No. 8550\", \"first_page\": \"241\", \"last_page\": 243, \"citations\": \"104 N.M. 241\", \"volume\": \"104\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:10.146802+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONNELLY and GARCIA, JJ., concur.\", \"parties\": \"James D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant.\", \"head_matter\": \"719 P.2d 819\\nJames D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant.\\nNo. 8550.\\nCourt of Appeals of New Mexico.\\nMay 1, 1986.\\nPaul A. Phillips, Dan A. McKinnon, III, Marr\\u00f3n, McKinnon & Ewing, Albuquerque, for plaintiffs-appellees.\\nLeonard G. Espinosa, Moses, Dunn, Beckley, Espinosa & Tuthill, Albuquerque, for defendant-appellant.\", \"word_count\": \"1112\", \"char_count\": \"7040\", \"text\": \"OPINION\\nMINZNER, Judge.\\nA motion for clarification having been filed by plaintiffs, the prior opinion is withdrawn and the following is substituted.\\nDefendant brings an interlocutory appeal from the trial court's denial of its motion to dismiss for failure to state a claim. This court accepted two issues for review. They are: (1) whether the trial court erred in considering matters outside the record in ruling on the motion to dismiss; and (2) whether the trial court erred in failing to dismiss the complaint on the basis the claim was time-barred. We reverse.\\nFacts and Proceedings Below\\nOn March 7,1984, plaintiffs sued defendant, claiming damages by reason of the recording of a \\\"Notice of Subrogation\\\" on October 5, 1978. Defendant's notice indicated it was entitled to be subrogated to the rights of the Internal Revenue Service because defendant had paid a federal tax lien asserted against plaintiffs' property. Plaintiffs' complaint also alleged damages by reason of defendant's suit to foreclose the tax lien and the notice of lis pendens filed November 6, 1978. The prior litigation, in which this court denied defendant's right to subrogation, is reported at 98 N.M. 699, 652 P.2d 249 (Ct.App.1982).\\nDefendant's amended answer alleged, among other things, that plaintiffs' claim was barred by the statute of limitations; defendant subsequently moved to dismiss the complaint. After a hearing, both parties filed memorandum of law. Plaintiffs argued that their cause of action had not accrued until the foreclosure suit terminated. Defendant argued that, because the counterclaims had been dismissed, plaintiffs' cause of action had not been tolled. See King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982). Plaintiffs also argued that defendant was estopped from relying on the statute because of its representation in the prior suit that the claim had been asserted prematurely.\\nThe trial court denied the motion on the ground that plaintiffs' counterclaims to defendant's foreclosure suit had tolled the statute of limitations. Alternatively, the trial court found that defendant was es-topped from asserting the statute. The trial court, however, certified issues for an interlocutory appeal. See NMSA 1978, \\u00a7 39-3-4. The trial court also granted plaintiffs' motion to amend their complaint. Discussion\\nOn appeal, defendant first contends that the trial court erred in failing to dismiss the complaint because the face of the complaint showed the claim was barred. Plaintiffs argue that their complaint and defendant's answer contained sufficient facts from which the trial court could have made its determination or, alternatively, that the trial court was entitled to take judicial notice of its own records. See NMSA 1978, Evid.R. 201 (Repl.Pamp.1983). Defendant contends the trial court erred in considering the record of the foreclosure suit because neither party had requested that the motion be treated as one for summary judgment, see Civ.P.Rule 12(b) (Repl.Pamp. 1980), and because defendant had objected to such treatment. See Emery v. University of New Mexico Medical Center, 96 N.M. 144, 628 P.2d 1140 (Ct.App.1981).\\nOn consideration of the arguments and the record on appeal, we conclude that we need not answer the first question certified. Plaintiffs' contention that the trial court properly considered matters other than the pleadings in effect asks us to affirm the trial court as right for the wrong reason. See State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972). For the reasons that follow, defendant's motion to dismiss for failure to state a claim should have been granted.\\nIn ruling on a motion to dismiss, all facts well-pleaded are accepted as true. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App.1980). Only the allegations of the complaint, however, are to be considered. McNutt v. New Mexico State Tribune Co., 88 N.M. 162, 538 P.2d 804 (Ct.App.1975). Legal conclusions or inferences that may be drawn from the allegations are not admitted. Id.\\nPlaintiffs argue that the complaint contained sufficient facts from which the trial court could infer that the statute had been tolled while the prior proceedings were pending. We disagree.\\nPlaintiffs' complaint alleges a wrongful act in 1978, from which they first suffered damages later the same year. There are no allegations concerning the counterclaims. We need not decide whether the statute of limitations for slander of title suits in New Mexico is the three-year limi tation for personal injury, NMSA 1978, Section 37-1-8, or the four-year limitation for damages to property or for no unspecified actions, NMSA 1978, Section 37-1-4. We also need not decide whether the cause of action accrued when plaintiffs suffered damages, see Shenefield v. Axtell, 274 Or. 279, 545 P.2d 876 (1976), or when defendant's notice was recorded. There being no allegations in the complaint as to tolling and estoppel, we agree that defendant's motion to dismiss should have been granted. Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); Rather v. Allen County War Memorial Hospital, 429 S.W.2d 860 (Ky.1968). Plaintiffs' complaint stated facts that showed a cause of action which by 1984 was barred by the passage of time. Cf. Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959).\\nAlternatively, plaintiffs have argued that the trial court could properly take judicial notice of its records in an earlier case involving these parties. We recognize the court's inherent power to judicially notice its own records without specifically approving the court's procedure in this case. See Frost v. Markham, 86 N.M. 261, 522 P.2d 808 (1974).\\nNevertheless, when matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Transamerica Insurance Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct.App.1981); NMSA 1978, Civ.P.R. 12(b) (Repl.Pamp. 1980). Whatever may have been the propriety of the trial court's consideration of matters outside the pleadings, we do not have before us the proceedings of the foreclosure suit, part of which apparently formed the basis of the trial court's disposition of defendant's motion. Absent the record of those facts, no question is presented to this court for review. See Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964).\\nThe trial court erred in its denial of defendant's motion to dismiss plaintiffs' claim. We reverse the trial court and remand with instructions for the trial court to grant defendant's motion. Dismissal shall be without prejudice. No costs are awarded.\\nIT IS SO ORDERED.\\nDONNELLY and GARCIA, JJ., concur.\"}"
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+"{\"id\": \"1597045\", \"name\": \"Simran Kaur KHALSA, a/k/a Elena E. Lancaster, Petitioner-Appellee, v. Simran Singh KHALSA, a/k/a David E. Lancaster, Respondent-Appellant\", \"name_abbreviation\": \"Khalsa v. Khalsa\", \"decision_date\": \"1988-02-02\", \"docket_number\": \"No. 9784\", \"first_page\": \"31\", \"last_page\": 37, \"citations\": \"107 N.M. 31\", \"volume\": \"107\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:19.183802+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONNELLY, C.J., and MINZNER, J., concur.\", \"parties\": \"Simran Kaur KHALSA, a/k/a Elena E. Lancaster, Petitioner-Appellee, v. Simran Singh KHALSA, a/k/a David E. Lancaster, Respondent-Appellant.\", \"head_matter\": \"751 P.2d 715\\nSimran Kaur KHALSA, a/k/a Elena E. Lancaster, Petitioner-Appellee, v. Simran Singh KHALSA, a/k/a David E. Lancaster, Respondent-Appellant.\\nNo. 9784.\\nCourt of Appeals of New Mexico.\\nFeb. 2, 1988.\\nCertiorari Denied March 2, 1988.\\nAna Marie Ortiz, Northern N.M. Legal Services, Inc., Santa Fe, Maritza Gonzalez Ortiz, Hato Rey, P.R., for petitioner-appellee.\\nRichard S. Lees, Scheuer & Engel, P.C., Santa Fe, for respondent-appellant.\", \"word_count\": \"3383\", \"char_count\": \"21834\", \"text\": \"OPINION\\nGARCIA, Judge.\\nFACTS\\nThe parties were married in 1973. At the time, they were Sikhs and believed in and practiced the Sikh religion. In June 1976, the parties' oldest child, Hari Jap Singh Khalsa, was born, and in January 1981, the parties had a second child, Kartar Singh Khalsa. Both children's Sikh names appear on their birth certificates and, while the parties were married, both children were raised as Sikhs. The family observed the requirements of their religion, including the wearing of distinct apparel and turbans, reading from the Guru Granath, the Sikh scriptures, and the assumption of Sikh names. Their adherence to principles and tenets of their faith continued throughout their marriage.\\nMarital discord ultimately lead to the breakdown of their marriage and in December 1982, mother filed an uncontested petition for divorce. Mother was granted the divorce and awarded sole custody of the two children.\\nIn December 1983, mother remarried. Shortly thereafter, mother abandoned the Sikh religion and began discouraging the children from practicing Sikhism. Mother also began calling the children by other than their Sikh names. Father objected to the children not being raised as Sikhs, and the parties' disagreements over religious differences escalated. In May 1984, father filed a motion requesting sole custody of the children or, in th\\u00e9 alternative, joint custody.\\nIn violation of father's discovery request, mother failed to timely disclose the names of any expert witnesses whom she planned to call at trial on her behalf. The day prior to trial, however, mother submitted a witness list naming two proposed, but previously undisclosed, experts: Dr. Lillian Gonzales-Ortiz, a psychologist, and Father William Kent Burtner, a Catholic priest. Over father's objections, both witnesses testified.\\nIn December 1986, following a hearing on the merits, the trial court entered its order regarding custody, visitation and child support. The court found that a material change in circumstances had occurred since the court's last permanent order on custody, but concluded that joint custody was not in the children's best interest. Accordingly, the court ordered that sole custody of the children remain with mother; that father have visitation with the children at his residence for one month each summer; and that the children not participate voluntarily or involuntarily in any Sikh religious activities with father. Father appeals.\\nISSUES\\nFather raises the following five issues on appeal: (1) whether the trial court erred in denying father's motion for joint custody; (2) whether the trial court erred in enjoining father from encouraging his children to practice and participate in the Sikh religion during their visits with father; (3) whether the trial court's decision maintaining sole custody of the children with mother was based on an unconstitutional religious preference; (4) whether the trial court erred in admitting certain witness testimony; and (5) whether father was denied a fair trial due to the trial court's cumulative errors. Under the specific facts of the present case, the trial court erred in allowing the surprise witnesses to testify and, thus, we reverse.\\nAlthough the first issue is dispositive of this case, we will nonetheless additionally address both the second and fourth.\\nISSUE I & IV (Whether the trial court erred in denying father's motion for joint custody based on the testimony of surprise witnesses.)\\nThe trial court's denial of father's joint custody motion in the present case rests solely on the testimony of mother's expert witness, Dr. Gonzales. All other experts indicated that both father and mother were good, loving parents, capable of serving as joint custodians. Dr. Gonzales, however, presented testimony to the effect that joint custody was not in the children's best interest. This evidence, alone, would support the trial court's finding that joint custody was not in the children's best interest. Thus, if Dr. Gonzales' testimony had been properly before the trial court, the trial court would be affirmed under our substantial evidence rule. See Sandoval v. Department of Employment Sec., 96 N.M. 717, 634 P.2d 1269 (1981).\\nA reviewing court may, however, reverse the trial court upon a finding of abuse of discretion. In State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970), this court defined abuse of discretion as:\\n\\\"[a]n erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn from such facts and circumstances. It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.\\\"\\nId. at 147, 464 P.2d at 566 (quoting Bowers, Judicial Discretion of Trial Courts \\u00a7 12 (1931)). Here, the trial court abused its discretion in allowing both surprise witnesses to testify over father's objections.\\nIn preparing for litigation on custody, father served mother with interrogatories and requests for production. The interrogatories specifically asked mother for a list of witnesses and a summary of the witnesses' testimony. Mother did not comply with her disclosure obligations. Father's request for production sought all doc uments to be used at trial, information concerning the certificates of training or qualification of proposed experts, and any psychological evaluations of mother and children. Mother did not produce any of these documents or information.\\nIn May 1985, father filed a motion to compel discovery; the motion was not heard by the court. Fifteen months later, on the afternoon before trial, father received a list of witnesses including the names of both Dr. Gonzales and Father Burtner. Attached to the list were psychological evaluation reports on mother and both children prepared by Dr. Gonzales.\\nFather immediately filed a written objection and moved to strike the proposed testimony of Dr. Gonzales and any exhibits. The following day, before trial, father again objected to the testimony of both-experts based on surprise and prejudice. Father informed the trial court that: (1) he had no prior knowledge of the witnesses' testimony; (2) he had been given no opportunity to study the basis of the psychological evaluations; and (3) he had been provided no opportunity to obtain an independent review of the evaluations. Accordingly, father asked that the witnesses be prohibited from testifying and that the evaluations not be allowed into evidence.\\nFather's objection was overruled. The judge noted, however, that mother's concealment of the identities of expert witnesses was equal to \\\"trying to have a smoking gun secreted,\\\" and that mother's counsel had frustrated the legal process. The trial court nonetheless concluded that counsel's behavior should not jeopardize the rights of the parties and, thus, the parties would proceed to trial as scheduled. The court advised father to meet with both experts during the lunch hour and if the hour proved inadequate, father could renew his objection thereafter.\\nAfter lunch, before either expert took the stand, father renewed his objection to the experts' testimony. The objection was again denied and both Dr. Gonzales and Father Burtner were allowed to testify. In the midst of Dr. Gonzales' testimony, father again objected, informing the court that Dr. Gonzales' testimony conflicted with the information she had given counsel during the lunch hour. Father moved to strike her testimony and continued to renew his objection based on surprise. His motion and objection were overruled.\\nIn State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979), overruled on other grounds, 98 N.M. 786, 653 P.2d 162 (1982), the supreme court addressed the issue of surprise witnesses. In Manus, defendant was on trial for murder. During discovery, the state submitted a list of witnesses it planned to call. At trial, however, the state called a non-disclosed witness, Seig, as a rebuttal witness. Defendant objected to Seig's testimony on the basis of surprise. Based on that objection, the trial court postponed Seig's testimony until the following day in order to allow defendant an opportunity to depose him. Subsequently, Seig was adequately cross-examined. Ultimately, defendant was found guilty of murder. Defendant appealed his conviction arguing, inter alia, that allowing Seig to testify was error.\\nAlthough the supreme court was critical of the state's failure to disclose the witness' identity prior to trial, the Manus court noted that mere failure to disclose, alone, was not grounds for reversal. The court stated that the party must show that he was prejudiced by such non-disclosure. In Manus, the court held that defendant was not prejudiced because defendant was given an opportunity to depose the witness before the witness took the stand and, as a result of such deposition, the witness was \\\"vigorously and competently\\\" cross-examined at trial. The court concluded that allowing the defendant an opportunity to depose removed the prejudice caused by the initial surprise. Such is not the case here.\\nThe pertinent facts here are similar, at least initially, to those in Manus. As in Manus, the stakes here were high. \\\"[T]he loss of a child through [the] legal process can be as serious as imprisonment in a criminal case.\\\" In re Jason Y, 106 N.M. 406, 408, 744 P.2d 181, 183 (Ct.App.1987) (quoting Hernandez v. State ex rel. Arizo na Dep't of Economic Sec., 23 Ariz.App. 32, 35, 530 P.2d 389, 392 (1975)). Here, as in Manus, mother had an obligation to comply with discovery, specifically good faith answers to interrogatories. SCRA 1986, 1-033(A). Father was not informed of the experts' identities until shortly before trial. Moreover, father objected to the testimony of both experts. The similarities, however, end here.\\nWhile the trial court in Manus allowed the defense ample opportunity to depose the surprise witness, father, here, was given only one hour in which to question both expert witnesses and prepare for cross-examination. The interview was to take place over a break during the course of the proceedings. Upon returning from the lunch break, father specifically asked the trial court for an opportunity to depose Dr. Gonzales and informed the trial court that Dr. Gonzales' testimony at trial conflicted with her statements given during the lunch hour. Without a deposition to impeach Dr. Gonzales, counsel operated at a significant disadvantage.\\nThe court in Manus refused to reverse defendant's conviction because the defense was given an adequate opportunity to depose the witness and defendant's lack of prejudice was evidenced by counsel's vigorous and competent crossexamination. In the present case, father was given an inadequate opportunity to interview both witnesses, was denied an opportunity to depose them, and was unable to vigorously or effectively cross-examine. The court's offer to allow counsel one hour to meet with, interview and prepare for the cross-examination of two experts presented a true Hobson's choice. Had father declined the offer, Manus may well have precluded a subsequent complaint.\\nIn allowing both expert witnesses to testify, the trial court noted that mother had frustrated the legal process. The court stated that mother's counsel's behavior should not jeopardize the rights of the parties, and allowed both experts to testify. The trial court's decision to allow Dr. Gonzales' and Father Burtner's testimony, however, in fact \\\"jeopardized\\\" the rights of father by not allowing him an adequate opportunity to interview, depose and prepare for an adequate cross-examination of both experts. Although the trial court admonished mother for her unwillingness to cooperate, the court nonetheless denied father's objection, thus, jeopardizing his ability to adequately defend.\\nThe surprise testimony of Dr. Gonzales is the only evidence supporting the trial court's denial of joint custody. The balance of all other evidence indicated that both parents were capable of serving as joint custodians. The trial court's decision to allow both Dr. Gonzales and Father Burtner to testify, however, was not justified by, and was clearly against \\\"the logic and effect of the facts and circumstances before the court.\\\" See State v. Hargrove, 81 N.M. at 147, 464 P.2d 566. Dr. Gonzales' testimony is the only evidence supporting the court's denial of joint custody. The balance of the evidence indicated that both parents were capable of serving as joint custodians. Thus, the trial court abused its discretion in allowing such testimony.\\nISSUE II (Whether the trial court erred in enjoining father from encouraging his children from voluntarily or involuntarily participating in Sikh religious activities.)\\nThis issue presents a matter of first impression. Although we need not address this issue because of our holding in issue 1, we deem it necessary to give guidance as to the scope of a court's intervention in religious beliefs and practices in child custody disputes.\\nWithout any finding that participation in religious activities was harmful to the children here, the trial court enjoined the parties from freely discussing their religious beliefs with their children. Specifically, the trial court ordered that when the children were with father, they could not voluntarily or involuntarily participate in any Sikh activity, including any church activity, Sikh camp or Sikh day care center.\\nIt is well established that in child custody matters the best interests and welfare of the children are the primary and controlling considerations. Schuerman v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980); In re Briggs, 91 N.M. 84, 570 P.2d 915 (1977); Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977). Similarly, where there is a conflict between the parents regarding the religious faith and training of the children, the paramount concern is the welfare of the children. See Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971) (en banc).\\nCourts should proceed cautiously and with circumspection when dealing with religious issues. \\\"[Ijntervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark.\\\" Wojnarowicz v. Wojnarowicz, 48 N.J.Super. 349, 354, 137 A.2d 618, 621 (1958). In Munoz v. Munoz, the court noted:\\nThe courts are reluctant to interfere with the religious faith and training of children where the conflicting religious preferences of the parents are in no way detrimental to the welfare of the child. The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over, another. *\\nThus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation rights from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child.\\nId. 79 Wash.2d at 812-13, 489 P.2d at 1135 (citations omitted); see, e.g., Hanson v. Hanson, 404 N.W.2d 460 (N.D.1987); In re Marriage of Murga, 103 Cal.App.3d 498, 163 Cal.Rptr. 79 (1980); Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977); Felton v. Felton, 383 Mass. 232, 418 N.E. 2d 606 (1981); Robertson v. Robertson, 19 Wash.App. 425, 575 P.2d 1092 (1978); Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983); Note, The Religious Upbringing of Children After Divorce, 56 Notre Dame Law, 160 (1980).\\nIn justifying a prohibition of religious restrictions on visitation rights, physical or emotional harm to the child cannot be assumed, but must be demonstrated in detail. Hanson v. Hanson; Felton v. Felton. Factual evidence of harm rather than \\\"mere conclusions and speculation\\\" is required. Robertson v. Robertson.\\nThus, a custodial parent's general testimony that the child is upset or confused because of the non-custodial parent's religious practice is insufficient to demonstrate harm. Felton v. Felton; Munoz v. Munoz. Further, general testimony that the child is upset because the parents practice conflicting religious beliefs is likewise insufficient. Hanson v. Hanson (mother's testimony that father, a member of the Pentecostal Apostolic church, had told the children, among other things, that the Catholic church believes in cannibalism, which upset the children, was insufficient to prohibit father from taking the children to his church); Munoz v. Munoz (parent's speculation that six-year-old son, who attended both Mormon services with his mother and Catholic services with his father, was emotionally harmed thereby, was insufficient. The court concluded that duality of religious beliefs, do not, per se, create a conflict upon young minds.).\\nAlthough most disputes involve conflicting religious practices between the divorced parents, the same principles apply equally where one parent practices no religion. Robert O. v. Judy E., 90 Misc.2d 439, 395 N.Y.S.2d 351 (Fam.Ct.1977) (mother, a nonbeliever in organized religion, sought to enjoin non-custodial father from taking child to church services. The court recognized that although the building of moral character was possible without religious beliefs or training, the child's interests were best served by allowing him to continue his religious training with father.).\\nA court's reluctance to interfere with the religious upbringing of children, however, is not absolute. Religious restric tions placed upon visitation rights have been upheld where evidence of physical or emotional harm to the child has been substantial. See Funk v. Ossman, 150 Ariz. 578, 724 P.2d 1247 (App.1986) (court upheld order enjoining non-custodial parent from taking his eight-year-old son to formal Jewish religious training. Evidence presented at trial included the testimony of three psychologists, one of whom testified that child had anxiety problems caused by the religious differences of his parents which manifested itself in encopresis); Bentley v. Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559 (1982) (court affirmed order prohibiting non-custodial father from instructing his children in the teachings of the Jehovah's Witnesses. The custodial mother was Catholic and the court found that the children were \\\"emotionally strained and torn\\\" as a result of the parties' conflicting religious beliefs).\\nThus, although the courts are reluctant to enjoin a non-custodial parent from practicing his religion with his children, the courts can and will enjoin such practice where the testimony concerning physical or emotional harm to the child is detailed and the best interests of the child will be served through the prohibition. Here, the evidence concerning the impact on the children consisted of testimony by Father Burtner and mother's general testimony that the children appeared upset and disturbed after visitations with father. Because we have held that the trial court abused its discretion in permitting Father Burtner to testify, however, the trial court could not restrict father from practicing his religion with his children based on such testimony. Mother's general testimony alone, however, was insufficient to support the restriction.\\nIn sum, we adopt the view expressed in Munoz. Courts should adhere to a policy of impartiality between religions, and should intervene in this sensitive and constitutionally protected area only where there is a clear and affirmative showing of harm to the children. Restrictions in this area present the danger that court-imposed limitations will unconstitutionally infringe upon a parent's freedom of worship or be perceived as having that effect.\\nThus, we hold that, in determining whether a parent involved in a child custody dispute should be restricted from practicing or encouraging the child in a religious belief or practice, the trial court must consider the following:\\n1. Whether there exists detailed factual evidence demonstrating that the conflicting beliefs or practices of the parents pose substantial physical or emotional harm to the child;\\n2. Whether restricting the religious interaction between the parent and child will necessarily alleviate this harm; and\\n3. Whether such restrictions are narrowly tailored so as to minimize interference with the parents' religious freedom.\\nHere, there was no evidence that either child was harmed by exposure to father's religion. Accordingly, we further hold the trial court's judgment enjoining both parents from freely discussing their religious beliefs with the children, and specifically prohibiting father from encouraging his children to participate in any Sikh activity, to be error.\\nCONCLUSION\\nThe trial court erred in allowing both surprise expert witnesses to testify. Since Dr. Gonzales' testimony provided the sole basis for the trial court's denial of father's joint custody request, and Father Burtner's testimony provided the sole basis for the religious limitations, we remand to the trial court for a new trial. Father is awarded his costs on appeal.\\nIT IS SO ORDERED.\\nDONNELLY, C.J., and MINZNER, J., concur.\"}"
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+"{\"id\": \"1597121\", \"name\": \"Gayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents\", \"name_abbreviation\": \"Richardson ex rel. Estate of Richardson v. Carnegie Library Restaurant, Inc.\", \"decision_date\": \"1988-10-18\", \"docket_number\": \"No. 17432\", \"first_page\": \"688\", \"last_page\": 755, \"citations\": \"107 N.M. 688\", \"volume\": \"107\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:19.183802+00:00\", \"provenance\": \"CAP\", \"judges\": \"SOSA, Senior Justice, concurs.\", \"parties\": \"Gayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents.\", \"head_matter\": \"763 P.2d 1153\\nGayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents.\\nNo. 17432.\\nSupreme Court of New Mexico.\\nOct. 18, 1988.\\nRehearings Denied Nov. 21, 1988.\\nShamas & Perrin, K. Douglas Perrin, Paul Snead, Roswell, for petitioner.\\nSanders, Bruin, Coll & Worley, Michael T. Worley, Roswell, for respondents.\\nWilliam H. Carpenter, Albuquerque, for amicus curiae New Mexico Trial Lawyers Ass\\u2019n.\\nMiller, Stratvert, Torgerson & Schlenker, Alice Tomlinson Lorenz, Albuquerque, for amicus curiae Defense Lawyers Ass\\u2019n.\\nPatrick A. Casey, D. Diego Zamora, Santa Fe, for amici curiae Mothers Against Drunk Driving, Students Against Drunk Driving.\", \"word_count\": \"10303\", \"char_count\": \"64653\", \"text\": \"OPINION\\nWALTERS, Justice.\\nWade Fitzsimmons Richardson was killed when a two-ton dumptruck driven by Billibob Lewis collided with the car that Richardson was operating. Lewis had become intoxicated at a bar owned by Carnegie Library, Inc.; he subsequently stole the dumptruck from the lot behind Bennett Cathey, Inc.; and he negligently drove and crashed the truck into Richardson's vehicle.\\nThe decedent's personal representative, Gayle D. Richardson, brought a wrongful death action against Carnegie and BennettCathey. Her complaint alleged that while Lewis was intoxicated, Carnegie served alcohol to him in violation of the Dramshop Act, NMSA 1978, Section 41-11-1 (Repl. Pamp.1986); that Bennett-Cathey negligently left the keys in the ignition of the unattended dumptruck; and that the negligent acts of both defendants proximately caused Richardson's death. The district court granted summary judgment in favor of Bennett-Cathey, entered a default judgment against Carnegie (for failure to answer), and found that Richardson suffered damages for which he would be entitled to recover $250,000 from Carnegie. The court awarded only $50,000, however, finding itself limited by the maximum recovery allowable under the Dramshop Act.\\nRichardson appealed the district court's ruling to the court of appeals, claiming error in the grant of summary judgment to Bennett-Cathey, and attacking the cap on liability under the dramshop act as unconstitutional. Richardson enumerated several \\\"special circumstances\\\" that would justify the imposition of liability against Bennett-Cathey: Bennett-Cathey knew that the brakes on its truck were inoperative; the lot from which Lewis stole the truck was not fenced and was easily accessible; the area where the truck was parked was frequented by transients; the truck required special skills for safe operation; and the truck was large and bulky and more capable of causing serious injuries than an automobile. She asserted that the theft of the unattended vehicle, with keys left in the ignition, was not an independent, intervening, or superseding act that would exempt Bennett-Cathey from liability. The docketing statement also presented the issue that the damage limitation on dram-shop liability violated the United States and New Mexico Constitutions. In her memorandum opposing summary affirmance, Richardson argued that the statute denied equal protection because the damage cap allowed victims of a tavernkeeper's negligence to be undercompensated although victims of other tortfeasors were entitled to obtain full recovery; and further, that the damage cap violated her right to a trial by jury as guaranteed by Article II, Section 12 of the New Mexico Constitution because the cap usurped the fundamental function of a jury to determine damages.\\nThe court of appeals, by memorandum opinion, upheld the trial court on all issues. In its first calendar notice, the court proposed affirmance of the summary judgment on grounds that the theft was not foreseeable, but instead was an intervening, superseding, criminal act by a- third person. Acknowledging that several jurisdictions look to special circumstances to determine foreseeability of the harm to be caused by the negligence of an owner leaving the keys in an unattended vehicle, and the liability which attends that foreseeability, the appellate court noted that it could not overrule our opinion in Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), by which it felt itself bound. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (lower courts should not overrule precedents set by superior court).\\nRegarding the equal protection issue, the calendar notice considered that the damage cap concerned no fundamental rights and implicated no suspect classes. The court employed, therefore, the rational basis standard of review and looked to the purposes of the challenged statute. It then reasoned that the legislature had \\\"created a cause of action\\\" subsequent to this court's \\\"creation\\\" of a common-law cause of action for tavernkeeper negligence, and that its purpose was to limit dramshop liability in exchange for creating that new cause of action. Impressed that the damage cap applied equally to all persons seeking to recover under the dramshop act, the court's notice proposed affirmance on a determination that the statute did not unconstitutionally violate the equal protection clause.\\nIn its second calendar notice, the court of appeals addressed the jury trial issue, and reiterated its conclusion that the legislature had transformed a common-law cause of action into a statutory one. It then concluded that Richardson had a right to a trial by jury on the question of liability, but that he had no right to have a jury determine the amount of his damages because the statutory action limited the amount of liability. The court of appeals, therefore, summarily dismissed Richardson's appeal and affirmed the trial court by memorandum opinion.\\nWe granted Richardson's petition for .writ of certiorari and gave leave to file amicus curiae briefs to the New Mexico Trial Lawyers Association (NMTLA), the Defense Lawyers Association (DLA), Mothers Against Drunk Drivers (MADD), and Students Against Drunk Drivers (SADD). The only issue addressed by all of the amici briefs in support of the petitioner's application for review is the constitutionality of the dramshop act.\\nMADD and SADD point out that New Mexico has one of the most severe drunk-driving problems in the United States and that every conceivable approach to resolve the drunk-driving menace is needed. They agree that dramshop liability is an effective measure in curbing drunken driving, but that the salutary impact of the dramshop act is diffused by the damage cap. Urging that the limit on recovery is inconsistent with the purpose for imposing liability, they emphasize that reinforcing dramshop liability and invalidating the damage cap would best serve the public interest.\\nNMTLA challenges the damage cap as unconstitutional violations of the due process and equal protection clauses, the right to trial by jury, and the doctrine of separation of powers. Regarding the separation of powers argument, NMTLA contends that the legislatively mandated damage cap prevents judges from exercising their historic procedural power to exercise discretion in reviewing the excessiveness of a jury's award upon a motion for a new trial under SCRA 1986, 1-059; and that it compels judges to order a remittitur, another discretionary act historically inherent in a trial judge's powers. Because procedural rules are within the sole domain of the supreme court, and because the statutory limitation on liability impinges upon the provisions of Rule 59, NMTLA insists with some logic that the damage cap constitutes a legislative usurpation of judicial power and thus violates the doctrine of separation of powers.\\nNMTLA proposes, too, that the damage cap violates the right to trial by jury, arguing that the legislature did not transform dramshop liability from an action at common law to a statutory cause of action but, rather, only narrowed and modified the judicially-created common-law liability that was established in Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982). Thus, because a plaintiff has a fundamental right to have a jury determine liability and damages in a common-law action, NMTLA argues that the damage cap unconstitutionally infringes on a party's right to trial by jury.\\nAmicus NMTLA contends that the damage cap also infringes the due process and equal protection clauses of the New Mexico Constitution because the rights to a jury trial and of access to the courts, being fundamental constitutional rights, are rendered meaningless if full and adequate recoveries are not available to all plaintiffs. NMTLA has traced these rights from their historic geneses in Spanish and Mexican laws, the Siete Partidas, the Fuero Juzgo, and the Kearney Code, and it concludes that all formed an integral part of the civil law in the days before statehood and were incorporated into the New Mexico Constitution. Accordingly, NMTLA argues that the damage cap is subject to strict scrutiny under which it surely must be invalidated, but that even under the minimal rational basis analysis, no justification exists to uphold a limitation on the award of damages.\\nDLA, from an opposing position, argues that Richardson has no standing to raise the jury trial issue because she never requested a jury trial. On the issue of recoverable damages, it takes the stance that the legislature changed dramshop liability to a statutory action from one at common law and, thus, because it created the liability, it can limit the amount of recovery. We are urged to disregard the separation of powers, due process, and right of access to the courts issues because they were not briefed or argued at trial and, therefore, are not properly before us for consideration. But DLA does respond to some of the amici arguments, urging that the separation of powers doctrine is inapplicable here because the judiciary promulgates procedural rules out of convenience and efficiency only; and the right of access to the courts merely refers to the availability of the judicial machinery to resolve disputes and is not a right guaranteed explicitly in the New Mexico Constitution.\\nRegarding the equal protection issue, DLA asserts that we are not here dealing with fundamental rights or suspect classes. Any rights found in the Kearney Code or any other civil law predating statehood, it says, were not adopted by or incorporated into the New Mexico Constitution. Moreover, characterizing the dramshop act as social and economic legislation reviewable by the rational basis test, it denies that any right to full compensation can be implied from the guarantee of certain inalienable rights in Article II, Section 4 of our constitution. DLA views the damage cap as rationally related to the dual legislative goals of compensating victims injured as the result of the negligent service or sale of alcohol but not overburdening tavernkeepers, conjecturing that recovery under the dramshop act probably will not be the only source of recovery available to such a plaintiff.\\nResponding to whether Richardson properly preserved certain constitutional issues for appeal, NMTLA points to Richardson's broad claim that the damage cap was unconstitutional, which opened the door for amici to explain in more detailed and specific analyses under the right to jury trial, due process, and equal protection clauses of the New Mexico Constitution, exactly why the statute is invalid. But DLA is correct in asserting that two of the issues, separation of powers and due process, cannot be raised for the first time on appeal. See Romero v. Sanchez, 86 N.M. 55, 56, 519 P.2d 291, 292 (1974) (court will not consider claim offered for first time on appeal); State ex rel. Brown v. Hatley, 80 N.M. 24, 25, 450 P.2d 624, 625 (1969) (same). It is not enough for a party to make a broad, general assertion that a statute is unconstitutional and then leave it to amici to develop and refine her arguments. The complainant must specify in what manner his or her constitutional rights are affected adversely. State v. Hines, 78 N.M. 471, 474, 432 P.2d 827, 830 (1967). Richardson did not request resolution, in either the trial court or the court of appeals, of the separation of powers and due process claims raised by NMTLA, and we will not consider new issues presented for the first time on appeal through amicus briefs. St. Vincent Hosp. v. Salazar, 95 N.M. 147, 149, 619 P.2d 823, 825 (1980).\\nDLA is likewise correct in observing that Richardson did not request a jury trial. Failure to demand a jury trial in a timely manner constitutes a waiver of a trial by jury. SCRA 1986, 1-038(D). Even though this issue was addressed by the court of appeals in its notices of proposed affirmance, we will not consider in this review the jury trial issue. We do not consider, therefore, whether the limit on dramshop liability violates Richardson's right to a jury's determination of damages in a common-law cause of action.\\nNMTLA, however, correctly analyzes right of access to the courts as an implicit fundamental right entitled to the equal protection guarantees of the Constitution. Richardson claimed an equal protection violation in the court below; consequently, whether a right of access to the courts is violated by the damage cap is a relevant question in determining whether a fundamental right is contravened. That, in turn, is likewise relevant in determining which standard of review to apply in analyzing the equal protection right guaranteed by Article II, Section 18 of the New Mexico Constitution.\\nRecently we discussed, in Meyer v. Jones, 106 N.M. 708, 749 P.2d 93 (1988), that in equal protection attacks upon statutes, at least three tests for reviewing such challenges have been recognized and applied. Traditionally, the United States Supreme Court long had employed a two-ti ered analysis: minimum scrutiny, or the rational basis test, when reviewing social and economic legislation, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed. 2d 393 (1961), and strict scrutiny when analyzing legislation that infringed fundamental constitutional rights or made distinctions directed toward suspect classes. The tests for reviewing equal protection challenges generally are the same under New Mexico and federal law.\\nWe have observed that a statute infringing fundamental rights or involving suspect classes must support a compelling state interest to escape judicial invalidation. State v. Edgington, 99 N.M. 715, 718, 663 P.2d 374, 377 (Ct.App.), cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983). We have also said that legislative acts are presumptively valid and normally are subjected to the rational basis test; it is well-settled that they will not be declared invalid unless the court is clearly satisfied that the legislature went outside the constitution in enacting them. Espanola Hous. Auth. v. Atencio, 90 N.M. 787, 788, 568 P.2d 1233, 1234 (1977); Board of Trustees v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971). The burden of proof is on the plaintiff to demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that it is possibly so. Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 296, 706 P.2d 158, 160 (Ct.App. 1985); Gallegos v. Homestake Mining Co., 97 N.M. 717, 722, 643 P.2d 281, 286 (Ct. App.1982). The fact that a statute appears unreasonable to the courts is not decisive; that is not enough to invalidate an act. Hutcheson v. Atherton, 44 N.M. 144, 149, 99 P.2d 462, 465 (1940). Only when a statutory classification is so devoid of rational support or serves no valid governmental interest, so that it amounts to mere caprice, will it be struck down under the rational basis test. Montano, 82 N.M. at 343, 481 P.2d at 705; Hutcheson, 44 N.M. at 149, 99 P.2d at 465; Edgington, 99 N.M. at 719, 663 P.2d at 378. When employing the minimal scrutiny test, the courts neither will inquire into the wisdom, policy, or justness of legislation, nor will they substitute their views for that of the legislature, but rather will uphold the statute if any state of facts reasonably can be conceived that will sustain the challenged classification. Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct. App.1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981). The rational basis test, therefore, employs no independent review or analysis of the factual basis of the state's goal, or of the means designated by the statute to attain that goal. Nowak, Realigning the Standards of Review Under the Equal Protection Guarantee\\u2014 Prohibited, Neutral, and Permissive Classifications, 62 Geo.LJ. 1071, 1094 (1974).\\nAn intermediate equal protection standard of review, somewhere between the rational basis and strict scrutiny standards, arose more recently out of the Supreme Court's dissatisfaction with the traditional, two-tiered analysis. See Craig v. Boren, 429 U.S. 190, 210 n. *, 97 S.Ct. 451, 463 n. *, 50 L.Ed.2d 397 (1976) (Powell, J., concurring); Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L. Rev. 1, 17-19 (1972). Accordingly, the third test has been aimed at legislative classifications infringing important but not fundamental rights, and involving sensitive but not suspect classes. L. Tribe, American Constitutional Law \\u00a7 16-33, at 1610, 1613 (2d ed. 1988). The Court first enunciated the intermediate (or \\\"heightened scrutiny\\\") test in F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), when it declared that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. See Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (employing Royster's intermediate scrutiny test to invalidate statute based on gender classification); see also City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985) (under heightened standard of review, classification fails unless it is substantially related to sufficiently important or legitimate governmental interest). The Court has applied the intermediate analysis principally to statutes that classify according to gender and illegitimacy. See City of Cleburne, 473 U.S. at 440-41, 105 S.Ct. at 3254-55.\\nAlthough we have referred to the Supreme Court's use of the third, intermediate standard of review, see McGeehan v. Bunch, 88 N.M. 308, 310, 540 P.2d 238, 240 (1975), on occasion we have muddied the constitutional waters in New Mexico by interchangeably using the rational basis and intermediate tests as if they were identical. For example, in McGeehan, the court considered the validity of an automobile guest statute, construed the act as social and economic legislation, and cited the applicable standard of review as the intermediate test that was enunciated in Reed. See McGeehan, 88 N.M. at 310, 540 P.2d at 240. The court described the facets of the rational basis test, declared the legislative classification unreasonable and arbitrary, id. at 311, 540 P.2d at 241, but said also that the statute had no \\\"fair and substantial relation\\\" to its goal. Id. at 313-14, 540 P.2d at 244. In the end, the court invalidated the guest statute as violative of the equal protection clause, but it is not clear on which standard of review it relied to do so; and if the court employed both the rational basis and intermediate tests to strike the statute, the opinion is not clear why the court used both instead of either.\\nThe imprecision was perpetuated in Pruey v. Department of Alcoholic Beverage Control, 104 N.M. 10, 715 P.2d 458 (1986). In considering an equal protection challenge to regulations prohibiting the sale of alcohol on Sundays, the court quoted the rational basis test as outlined in McGowan, and then cited the intermediate test and Reed and McGeehan in support. Id. at 12, 715 P.2d at 460. The court seemed to consider the two tests as different manifestations of the same principle; but the court upheld the statute as having a rational basis. Id. at 13, 715 P.2d at 461.\\nThe confusion probably is a result of a misinterpretation of the longstanding precedent that legislative classifications must be based upon substantial distinctions. See State v. Atchison, T. & S.F. Ry., 20 N.M. 562, 570, 151 P. 305, 307 (1915). That rule is found in Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965), an opinion often cited for its explication of the rational basis standard of review, wherein it was said that the equal protection clause \\\"does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and those to whom it does not apply Id. at 778, 399 P.2d at 107. In Gruschus, the challenged statute was found reasonable and not arbitrary, affording substantially equal treatment to all persons similarly situated. Id. at 779, 399 P.2d at 108. The test might better be stated as one assuring that classifications are based on real differences bearing a rational and proper relationship to the classification. See Community Pub. Serv. Co. v. New Mexico Pub. Serv. Comm'n, 76 N.M. 314, 317-18, 414 P.2d 675, 677, cert denied, 385 U.S. 933, 87 S.Ct. 292, 17 L.Ed. 2d 213 (1966); Burch v. Foy, 62 N.M. 219, 224, 308 P.2d 199, 202 (1957). The Espa\\u00f1ola Housing court said that the question is whether the reasons advanced for validity of a statute were \\\"real and pertinent differences or merely artificial differences not relevant to the classification involved.\\\" 90 N.M. at 789, 568 P.2d at 1235.\\nThus, the rational basis test, which requires classifications to be based on substantial or real distinctions and be rationally related to the legislative goal, is different from the intermediate test, which requires a classification to be more than just rationally related to the statutory purpose; it requires also that the classification be substantially related to an important state interest. Additionally, a key difference in the tests is that under rational basis the party objecting to the legislative classification has the burden of demonstrating that the classification bears no rational relationship to a conceivable legislative purpose whereas under heightened scrutiny the party maintaining the validity of the classification must prove that the classification is substantially related to an important governmental interest. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).\\nOur research discloses that only the Supreme Court of Minnesota has considered the constitutionality of a limitation on damages for dramshop liability. Employing the rational basis test, McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605 (Minn. 1984), invalidated the liability limitations as violative of the state equal protection clause. Id. at 613. In similar challenges to medical malpractice damage caps, however, several jurisdictions have considered the equal protection argument. We have found those cases most instructive in that for all practical purposes the constitutional analysis of medical malpractice limited liability legislation is identical to an equal protection analysis of limited dramshop liability. Thus, we discuss some of those decisions.\\nSome courts have construed the damage caps as social and economic legislation and have upheld them after reviewing the legislation under the rational basis test. Three separate intermediate courts in Texas have invalidated legislation that limited liability for medical malpractice actions, purportedly using the rational basis standard of review. The Supreme Court of Texas, also applying the minimum standard in a yet-unreleased opinion, recently affirmed the invalidity of the statutory liability limitation in Lucas v. United States, 757 S.W.2d 687 (1988), holding the cap to be \\\"unreasonable and arbitrary\\\" when balanced against the purpose and basis of the legislation. Id. at 690. In Lucas, the Texas Supreme Court had no difficulty in determining under the rational basis standard that an unreasonable and arbitrary cap on medical malpractice damages was an unconstitutional denial of a \\\" 'remedy by due course of law.' \\\" 757 S.W.2d at 690.\\nThree other jurisdictions have invalidated damage limitation provisions as violative of a plaintiff's explicit, state constitutional right to full recovery in a tort action, employing a strict scrutiny analysis to do so. See Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984); Smith v. Department of Ins., 507 So.2d 1080, 1088 (Fla. 1987); Pfost v. State, 713 P.2d 495, 503 (Mont.1985). Several other courts have held that the right to recover damages for personal injuries is not a fundamental right and that the class of victims denied full recovery is not a suspect class; but those courts have declared further that the rights infringed by medical malpractice legislation are sufficiently important and substantive, and the class of persons affected sufficiently sensitive, to justify invoking an intermediate standard of review to invalidate the statutes.\\nIn determining which standard of review to apply in the equal protection analysis of the damage cap in the present case, we note first that no suspect class is involved. A suspect class has been defined as a discrete group \\\"saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.\\\" San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973); see Lyng v. Castillo, 477 U.S. 635, 106 S.Ct. 2727, 2729, 91 L.Ed. 2d 527 (1986); Plyler v. Doe, 457 U.S. 202, 216 n. 14, 102 S.Ct. 2382, 2394 n. 14, 72 L.Ed.2d 786 (1982). Only statutory classifications based on race, national origin, or alienage so far have been treated as suspect. Wilkinson, The Supreme Court, The Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va. L.Rev. 945, 951 (1975). The class of tort victims denied full recovery for dramshop liability does not rise to the level of \\\"suspectness\\\" under existing precedent and, therefore, does not trigger strict scrutiny.\\nSecondly, we address the question of whether the damage cap infringes upon any fundamental constitutional rights. A fundamental right is that which the Constitution explicitly or implicitly guarantees. Rodriguez, 411 U.S. at 33-34, 93 S.Ct. at 1296-1297. The petitioner and amicus NMTLA argue that the damage cap violates her right of access to the courts and her right to full recovery in tort. Neither of these \\\"rights\\\" is guaranteed explicitly in our constitution. We have declared, however, that the right of access to the courts is one aspect of the right to petition for redress of grievances, and we have acknowledged that right as one guaranteed by the first amendment to the federal constitution and also protected by both the United States and New Mexico Constitutions by the prohibitions against \\\"depriving a person of life, liberty or property without due process of law.\\\" Jir\\u00f3n v. Mahlab, 99 N.M. 425, 426, 659 P.2d 311, 312 (1983). We once again recognized a \\\"plaintiffs constitutional right to petition for redress\\\" in Otero v. Zouhar, 102 N.M. 482, 486, 697 P.2d 482, 486 (1985).\\nWith regard to whether the right to full recovery reaches fundamental status, the argument is that Article II, Section 4 of the New Mexico Constitution guarantees a fundamental right to be compensated fully and adequately for injuries that result from negligent behavior. That provision reads: \\\"All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, and of seeking and obtaining safety and happiness.\\\" N.M. Const, art II, \\u00a7 4. Some commentators assert that this is \\\"textual evidence of an intent on the part of the constitutional ratifiers to afford substantive protection against the power of the state to impair economic interests.\\\" Developments in The Law \\u2014 The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1480 (1982). But because we do not think it necessary, we decline at this time to interpret this provision as implicitly guaranteeing a fundamental right to full recovery in tort actions, so as to trigger a strict scrutiny analysis.\\nAcknowledging, also, our recognition of a constitutional right of access to our courts, we do not apply strict scrutiny to the issue of full recovery, principally because we conclude that the damage cap is constitutionally invalid under the lesser, intermediate scrutiny test. It is thus unnecessary to impose the highest level of review.\\nWe are aware that in the history of the interpretation of the federal equal protection clause, the rational basis test generally has been minimal scrutiny in theory and has amounted to virtual judicial abdication in fact, whereas maximum scrutiny has been strict in theory and almost always fatal in fact. Gunther, 86 Harv.L.Rev. at 8. Strict scrutiny has operated as an anti majoritarian safeguard. Tribe, \\u00a7 16-31, at 1588; Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional \\\"Quid Pro Quo\\\" Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 152 (1981). Accordingly, the application of the strict scrutiny test has resulted in the virtual immunization of certain liberties from legislative affliction. \\\"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's fundamental rights may not be submitted to vote; they depend on the outcome of no elections.\\\" West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).\\nBy contrast, the rational basis test affords minimal scrutiny because of the concept that \\\"it is constitutionally appropriate to 'fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena,' since all the 'effective means of inducing political changes are left free.' \\\" Id.; see Cleburne, 473 U.S. at 441-42, 105 S.Ct. at 3255-56 (because of doctrine of separation of powers, courts should be reluctant to closely scrutinize economic and social legislation, but rather should employ rational basis test). The primary theoretical basis for deferring to the legislature when applying the rational basis test, then, is that political entities can respond best to the electorate and can experiment with and allocate the state's often limited resources in a manner that best reflects the concerns of their constituencies over social and economic issues. See Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759, 761 (1977); Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 366 (1949). In our own jurisprudence, we also have observed that courts should be hesitant to overturn a statute other than on fundamental rights grounds because the separation of powers doctrine mandates deference to a legislative determination of reasonableness. Edgington, 99 N.M. at 718, 663 P.2d at 377.\\nIn advancing the intermediate test as a third level of review, the Supreme Court has \\\"recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties\\\" and in those \\\"limited circumstances\\\" the Court seeks \\\"assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State.\\\" Plyler, 457 U.S. 202, 217-18, 102 S.Ct. 2382, 2395. And although even the Supreme Court has presented the heightened scrutiny test in a myriad of fashions, it has been characterized, in whatever form, at least by a \\\"sharper focus\\\" on legislative classifications \\\"poised between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny.\\\" Tribe, \\u00a7 16-32, at 1601; see Cleburne, 473 U.S. at 451, 105 S.Ct. at 3260 (Stevens, J., concurring) (standards of review for equal protection challenges reflect \\\"a continuum of judgmental responses to differing classifications which have been explained in opinions by terms ranging from 'strict scrutiny' at one extreme to 'rational basis' at the other\\\").\\nSome critics have said that when courts elect to apply the intermediate test, they abandon judicial objectivity and make subjective judgments that lack constitutional support, thereby succumbing to the temptation to usurp the legislature's function by making highly political decisions about certain social and economic issues. See, e.g., Redish, 55 Tex.L.Rev. at 782; Note, Fein v. Permanente Medical Group: Future Trends in Damage Limitation Adjudication, 80 Nw.U.L.Rev. 1643,1663-64 & 1673 (1986). But judicial scrutiny always requires judgments about legislative decisions, and that is particularly so when heightened scrutiny is called for. See Cleburne, 473 U.S. at 443, 105 S.Ct. at 3256; Coburn, 627 F.Supp. at 991. See generally Haines, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges, 17 Ill.L.Rev. 96, 112-14 (1922). We do not consider that the intermediate constitutional review process necessarily constitutes \\\"abandonment\\\" of any judicial responsibilities but, instead, hones the indispensable requirement of detached analytical examination of competing interests between legislative power and constitutional restraints.\\nTo support our application of the intermediate test we are impressed with Professor Tribe's observation that the heightened, intermediate standard of review is a judicial response to an awareness that the\\nall-or-nothing choice between minimum rationality and strict scrutiny ill-suits the broad range of situations arising under the equal protection clause, many of which are best dealt with neither through the virtual rubber-stamp of truly minimal review nor through the virtual death-blow of truly strict scrutiny, but through methods more sensitive to risks of injustice than the former and yet less blind to the needs of governmental flexibility than the latter. [Emphasis added.]\\nTribe, \\u00a7 16-32, at 1609-10; see Cleburne, 473 U.S. at 460,105 S.Ct. at 3265 (Marshall, J., dissenting) (\\\"level of scrutiny employed in an equal protection case should vary with 'the constitutional and societal importance of the interest adversely affected and the recognized invid\\u00ed\\u00f3\\u00fasness of the basis upon which the particularXclassification is drawn' \\\"). We agree that implementing, the intermediate test in appropriate circumstances narrows the wide 'gap between strict and minimal scrutiny, \\\"not by abandoning the strict but by raising the level of the minimal from virtual abdication to genuine judicial inquiry.\\\" Gunther, 86 Harv.L. Rev. at 24.\\nIt is clear from the foregoing discussion that the limitation of a full tort recovery at issue here under Section 41-11-1(1) implicates a substantial and important individual interest. For substantial and important individual interests, we invoke an intermediate standard of review because we think it best strikes the balance between the legislature's constitutional prerogative to deliberate over and counterbalance the variety of interests involved in social and economic issues, and the judiciary's constitutional responsibility to strictly scrutinize legislation that either infringes upon fundamental rights or impacts upon suspect classes. Viewing this constitutional balance within the separation of powers context, which is the gist of opposition to it, we are satisfied that we neither trample arbitrarily upon the legislature's preferred position of direct, political accountability to the electorate, nor do we forsake our duty to protect individuals from the deleterious effects of controversial social and economic legislation that, in this case at least, could result in economic devastation of innocent victims simply by the fortuitous happenstance .of the tortfeasor's status. We see no usurpation of power in a heightened scrutiny of legislation in those limited circumstances when the class implicated is so sensitive to injustice and the rights affected are so substantial and important that they warrant special judicial attention.\\nSection 41-11-1 tacitly makes three separate classifications: a class of victims suffering from injuries resulting from the negligence of a tavernkeeper as distinguished from victims of another tortfeasor's negligent conduct; a class of victims suffering from the negligence of tavernkeepers whose injuries amount to less than $50,000 lumped together with those victims whose injuries resulting from the same cause are in excess of that damage limitation; and a class of tortfeasors accorded the benefit of the $50,000 cap as distinguished from all other tortfeasors, most of whom are liable for the full amount of damages they cause. We believe that these classifications effect a substantial injustice in this case. The classifications infringe an individual's important interest to be compensated fully for his injuries, especially when, as is alleged in the instant case, they are a result of no fault of his own. This interest, in our view, certainly is amply important and substantial to justify the invocation of at least the heightened, intermediate test instead of the minimum rationality test. We are per suaded also that the class of tort victims affected by the damage cap is \\\"sensitive\\\" enough to the injustice wrought to warrant applying the heightened test. Consequently, we take the intermediate approach and analyze the constitutional challenge in this case under heightened scrutiny.\\nWe commence our examination by repeating that the court of appeals erred in its equal protection analysis of the damage limitation. A legislative classification not only must affect equally all persons within the class to which the legislation applies but, to begin with, the legislature must have a legitimate purpose for creating the class, and a constitutionally permissible reason for treating persons within that class differently from those without. See McLaughlin v. Florida, 379 U.S. 184, 190, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964). In light of those considerations, the court of appeals erred in concluding that the damage cap did not violate the equal protection clause because it applied equally to all persons affected by the dramshop act. \\\"Judicial inquiry under the Equal Protection Clause does not end with a showing of equal application among the members of the class defined by the legislation.\\\" Id. at 191, 85 S.Ct. at 288. No argument has been presented to us to persuade us that the classifications created by the legislation are constitutionally legitimate and, under the McLaughlin dictate, we have been unable to discern or discover any by our own reasoning processes.\\nPlaintiff has presented a prima facie showing of an arbitrary and unreasonable denial of equal protection and of a restriction on a plaintiffs right of access to the courts. On the other hand, respondent completely failed to carry its burden of demonstrating that any substantial interest of the state is furthered by the legislation. In the absence of any contrary showing by respondent, we cannot think of legitimate public good or supportive policy reasons that are promoted by the special protection of tavernkeepers in the dispensation of intoxicating liquor. We are distinctly unable to rationalize a legitimate or substantial reason for limiting the liability of a tavernkeeper who has a duty not to place drunks behind the wheel of a vehicle on the highway when, by contrast, a rancher or farmer is fully liable for negligently allowing his livestock to meander dumbly into the path of oncoming vehicles. See NMSA 1978, \\u00a7 30-8-13 (Repl.Pamp.1984) & 66-7-363 (Repl.Pamp.1987).\\nEven though we agree that the legislature most often is better suited to make such policy determinations, a heightened scrutiny of legislation that infringes substantial and important individual interests, such as we have here, compels us to the conviction that the liability cap works a manifest injustice on innocent tort victims and lacks any of the redeeming features entitling it to constitutional validity. Absolutely nothing was shown sufficient to overcome plaintiffs arguments, or to demonstrate that the damage limitation in Section 41-11-1(1) has a substantial relationship to a legitimate or important governmental purpose and we have been unable to fathom one. The cap on damages mandated by Section 41-11-1(1) simply does not withstand heightened scrutiny, and we hold it to be constitutionally invalid as violative of the equal protection clause.\\nTurning to the other issue, we acknowledge that, as in Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), a substantial number of courts has not held owners liable for leaving the keys in their unattended vehicles and for the injuries to third persons as a result of the thefts and subsequent negligent operation of those vehicles. Those courts have concluded either that an owner owes no duty to the general public to guard against the risk of a thief's negligent operation of a vehicle in which the owner left his keys; that the theft and subsequent negligence of the thief could not reasonably be foreseen by the owner as a natural or probable consequence of leaving the keys in the ignition of the car; or have concluded that even if the owner was negligent, his actions were not the proximate cause of the injuries because the thief's actions constituted an independent, intervening cause.\\nAn emerging group of jurisdictions, on the other hand, has rejected the contention that an intervening criminal act automatically breaks the chain of causation as a matter of law, concluding instead that a reasonable person could foresee a theft of an automobile left unattended with the keys in the ignition and reasonably could foresee the increased risk to the public should the theft occur. In addition, a few courts, including some of those that earlier denied liability, have indicated a willingness to impose liability upon the owner under \\\"special circumstances.\\\" Courts looking at special circumstances seek to determine whether an owner's conduct enhanced the probability that his car would be stolen and thus increased the hazard to third persons. Considering special circumstances, then, is just another way of examining the degree of foreseeability of injury and whether the owner is subject to a duty to exercise reasonable care. Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381 (Del.Super. 1979), listed some of the circumstances aiding the court in its resolution of a similar case:\\n(a) the vehicle in question is of a type which may attract potential intermeddlers who are unlikely to have the necessary knowledge and skill to operate it safely;\\n(b) that vehicle is capable of inflicting more serious injury and damage than an ordinary vehicle when not properly controlled;\\n(c) no security measures were taken after it became evident that the lock which secures the gate to the truck yard had been partially cut and an intoxicated individual was loitering nearby.\\nId. at 1383.\\nNMSA 1978, Section 66-7-353, which prohibits leaving a motor vehicle to stand unattended without \\\"first stopping the engine, locking the ignition, [and] removing the key,\\\" was enacted for the purpose of promoting public welfare and safety. Bouldin, 77 N.M. at 332, 378 P.2d at 372. Prevention of the kinds of unfortunate circumstances that occurred in this case from failure to comply with the statute would be conducive to promoting public safety. When \\\"a person by his own negligence produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be foreseen to occur, the original act of negligence is then regarded as [a] proximate cause of the injury which finally results.\\\" Thompson v. Anderman, 59 N.M. 400, 412, 285 P.2d 507, 515 (1955).\\nSome of the members of this Court believe that our adoption of comparative negligence as the rule of law in this jurisdiction, Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), commits us to the principles there expressed that if a jury finds more than one party to have been negligent, a verdict \\\"requiring wrongdoers to share the losses caused, at the ratio of their respective wrongdoing, fairly distributes the burden of fault\\\" and \\\"holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.\\\" Id. at 689-90, 634 P.2d at 1241-42. See, e.g., St. Sauver v. New Mexico Peterbilt, Inc., 101 N.M. 84, 87, 678 P.2d 712, 715 (1984); Ramirez v. Armstrong, 100 N.M. 538, 542-43, 673 P.2d 822, 827-28 (1983); Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 158-59, 646 P.2d 579, 585-86 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). There is a divergence in the opinions of members of this Court, however, whether questions of fact are presented in any inquiry into whether an owner reasonably could foresee that his vehicle might be stolen if he left it unattended, unlocked, and with the keys in its ignition, and whether he reasonably could anticipate that the thief might drive negligently and injure someone, see Ney v. Yellow Cab Co., 2 Ill.2d 74, 83, 117 N.E.2d 74, 80 (1954), or whether Bouldin was correct in holding, as a matter of law, that such ensuing theft and subsequent negligence resulting in injury were not natural, foreseeable events attendant upon leaving one's keys in the vehicle.\\nConsequently, a majority of the Court being unable to reach agreement on the Bouldin issue at this time, we do not disturb the summary judgment entered by the trial court in favor of Bennett-Cathey.\\nWe remand the case to the district court for entry of judgment in the amount of $250,000 against defendant Carnegie. IT IS SO ORDERED.\\nSOSA, Senior Justice, concurs.\\nRANSOM, J., specially concurring.\\nSTOWERS, J., dissenting.\\nSCARBOROUGH, C.J., not participating.\\n. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); see also Torres v. Village of Capitan, 92 N.M. 64, 69, 582 P.2d 1277, 1282 (1978); Vandoben v. Constructors, Inc., 101 N.M. 109, 112, 678 P.2d 1184, 1187 (Ct.App.), cert. denied, 101 N.M. 77, 678 P.2d 705 (1984).\\n. Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 297, 706 P.2d 158, 161 (Ct.App. 1985); Garcia v. Albuquerque Pub. Schoob Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App. 1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981).\\n.See, e.g., Lucas v. United States, 807 F.2d 414, 422 (5th Cir.1986); Hoffman v. United States, 767 F.2d 1431, 1436-37 (9th Cir.1985); Boyd v. Bulala, 647 F.Supp. 781, 787 (W.D.Va.1986) (but holding that damage cap violates seventh amendment jury trial provision); Fein v. Permanente Medical Group., 38 Cal.3d 137, 162, 695 P.2d 665, 681, 211 Cal.Rptr. 368, 386 (1985), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985); Bernier v. Burris, 113 Ill.2d 219, 228-29, 100 Ul.Dec. 585, 590, 497 N.E.2d 763, 768 (1986); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 397, 404 N.E.2d 585, 601 (1980); Prendergast v. Nelson, 199 Neb. 97, 113\\u2014 14, 256 N.W.2d 657, 669 (1977).\\n. See Detar Hosp., Inc. v. Estrada, 694 S.W.2d 359 (Tex.Civ.App.1985); Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739 (Tex.Civ.App. 1985); Baptist Hosp. of Southeast Tex., Inc. v. Baber, 672 S.W.2d 296, 298 (Tex.Civ.App.1984), cert. denied, 714 S.W.2d 310 (Tex.1986).\\n. See, e.g., Coburn v. Agustin, 627 F.Supp. 983, 995 (D.Kan.1985); Jones v. State Bd. of Medicine, 97 Idaho 859, 871, 555 P.2d 399, 411 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); Farley v. Engelken, 241 Kan. 663, 672, 740 P.2d 1058, 1064 (1987); Sibley v. Board of Supervisors of La. State Univ., 477 So.2d 1094, 1107 (La. 1985); Carson v. Maur er, 120 N.H. 925, 932, 424 A.2d 825, 830 (1980); Ameson v. Olson, 270 N.W.2d 125, 135 (N.D. 1978).\\n. See Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1340 (AIa.1976); Bennett v. Artie Insulation, Inc., 253 F.2d 652, 654 (9th Cir.1958); Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23, 26-27 (1954); Lambotte v. Payton, 147 Colo. 207, 209, 363 P.2d 167, 168 (1961); Gamble v. Kinch, 102 Idaho 335, 337, 629 P.2d 1168, 1170 (1981); Dillner v. Maudlin, 161 Ind.App. 204, 205, 314 N.E.2d 794 (1974); Roadway Express, Inc. v. Piekenbrock, 306 N.W.2d 784, 786 (Iowa 1981); Roach v. Liberty Mut. Ins. Co., 279 So.2d 775, 777 (La.Ct.App.), cert. denied, 281 So.2d 756 (La.1973); Berluchaux v. Employers Mut. of Wausau, 194 So.2d 463, 465 (La.Ct.App.), cert. denied, 250 La. 533, 197 So.2d 79 (1967); Galbraith v. Levin, 323 Mass. 255, 259, 81 N.E.2d 560, 563-64 (1948); Permenter v. Milner Chevrolet Co., 229 Miss. 385, 404, 91 So.2d 243, 252 (1956); Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932-33 (Mo.Ct.App.1976); Flannery v. Sample Hart Motor Co., 194 Neb. 244, 248, 231 N.W.2d 339, 342 (1975); Pendrey v. Barnes, 18 Ohio St.3d 27, 29, 479 N.E.2d 283 (1985); Felty v. City of Lawton, 578 P.2d 757, 760 (Okla.1977); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 28, 218 A.2d 336, 338 (1966); Keefe v. McArdle, 109 R.I. 90, 92, 280 A.2d 328, 329 (1971); Stone v. Bethea, 251 S.C. 157, 164, 161 S.E.2d 171, 174-75 (1968); Parker v. Charlie Kittle Pontiac Co., 495 S.W.2d 810, 812 (Tenn.1973); Pratt v. Thomas, 80 Wash. 2d 117, 119, 491 P.2d 1285, 1286 (1971); Meihost v. Meihost, 29 Wis.2d 537, 546, 139 N.W.2d 116, 121 (1966).\\n. See Gaither v. Myers, 404 F.2d 216, 221 (D.C. Cir.1968); Ross v. Hartman, 139 F.2d 14, 16 (D.C.Cir.1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944); Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381, 1383-84 (Del. Super.1979); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977); Kacena v. George W. Bowers Co., 63 Ill.App.2d 27, 39, 211 N.E.2d 563, 569 (1965); Davis v. Thornton, 384 Mich. 138, 146, 180 N.W.2d 11, 15 (1970); Zinck v. Whelan, 120 NJ.Super 432, 445, 294 A.2d 727, 733-34 (1972); Itami v. Burch, 59 Or.App. 400, 402, 650 P.2d 1092, 1093 (1982).\\n. See Palma v. United States Indus. Fasteners, Inc., 36 Cal.3d 171, 185, 681 P.2d 893, 902, 203 Cal.Rptr. 626, 634 (1984); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986); Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 635 (Minn. 1978); Dix v. Motor Mkt., Inc., 540 S.W. 2d 927, 932 (Mo.Ct.App.1976); Felty v. City of Lawton, 578 P.2d 757, 761 (Okla.1977).\\n. See Hosking v. Robles, 98 Cal.App.3d 98, 102-03, 159 Cal.Rptr. 369, 372 (1979) (surveying what constitutes \\\"special circumstances\\\" in California); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986) (leaving keys in unattended car's ignition in high crime area near several bars constitutes special circumstances); State Farm Mut. Auto. Ins. Co. v. Grain Belt Breweries, Inc., 309 Minn. 376, 381, 245 N.W.2d 186, 189 (1976) (same); Lavo v. Medlin, 705 S.W.2d 562, 564 (Mo.Ct.App.1986) (implying that special circumstances include parking unusually dangerous vehicle in high crime area with keys in ignition); Zinck v. Whelan, 120 N.J.Super. 432, 450, 294 A.2d 727, 736 (1972) (special circumstances are position and location of parked vehicle, access thereto, its operational condition, proximity to surveillance, and length of time elapsing from theft to accident).\"}"
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+"{\"id\": \"206006\", \"name\": \"TERRITORY OF NEW MEXICO, Appellant, v. GEORGE B. WOODWARD, et al, Appellees\", \"name_abbreviation\": \"Territory of New Mexico v. Woodward\", \"decision_date\": \"1909-08-28\", \"docket_number\": \"No. 1211\", \"first_page\": \"161\", \"last_page\": 164, \"citations\": \"15 N.M. 161\", \"volume\": \"15\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:16:42.525067+00:00\", \"provenance\": \"CAP\", \"judges\": \"Abbott, Mechem and Cooley, Associate Justices, did not participate in this decision.\", \"parties\": \"TERRITORY OF NEW MEXICO, Appellant, v. GEORGE B. WOODWARD, et al, Appellees.\", \"head_matter\": \"[No. 1211,\\nAugust 28, 1909.]\\nTERRITORY OF NEW MEXICO, Appellant, v. GEORGE B. WOODWARD, et al, Appellees.\\nSYLLABUS.\\nWhere there is no undertaking on the part of the sureties in an appearance bond that the defendant should appear-elsewhere than in the county named or that the defendant should obey the further orders of the court, there could be-no forfeiture of the bond if the defendant defaulted after having obtained a change of venue to another county.\\nAppeal from the District Court for Bernalillo County before Ira A. Abbott, Associate Justice.\\nAffirmed.\\nJames M. IIervey, Attorney General, for Appellant.\\nAdmitting a defendant to bail and fixing the amount thereof, are acts judicial in their nature. Gregory v. State, 94 Ind. 384; Hunt v. H. S. 63 Fed. 568, 11 C. C. A. 340; Callahan v. State, 60 Ala. 65; Pinson v. State,'28 Ark.. 397; Moore v. State, 28 Ark. 480; Dickinson v. Kings-bury, 2 Day. 1; Simpson v. Bobert, 35 Ga. 180; Wallenweber v. Comm., 3 Bush. 68; Wilson v. Commonwealth, 99 Ivy. 167; State v. Jones, 3 La. Ann. 9; State v. Gilbert, 10 La. Ann. 524; State y. Wyatt, 6 La. Ann. 701; State v. McKeown, 12 La. Ann. 596; State v.\\u2019 Ansley, 13 La. Ann. 298; State v. Badon, 14 La. Ann. 783; State v. Hendrick^ 5 So. 177; State v. Jenkins, 24 Mo. App. 433; State v. Houston, 74 N. C. 54-9; Hodges v. State, 20 Tex. 493.\\nIf the condition of the bond had used merely the vords of the statute, the obligation would still be the same as that which is plainly expressed in the bond as given. C. L. 1897, sec. 3386; Norfolk v. People, 43 111. 10; Gallagher v. People, 88 111. 337; State v. Byan, 23 Iowa 406; People v. Hanow, 106 Mich. 421; State v. Brown, 16 Iowa 314; State v. Benzion, 79 Iowa 467; People v. Gordon, 39 Mich. 261; Crawford v. Yinton, 302 Mich. 85-6; Beese v. H. S. Wall. 18.\\nAn order of change of venue must be considered as within the contemplation of the sureties executing a bail bond and entering into and forming part of their contract. Davis v. South Carolina, 107 H. S. 600-1; Beasley v. State, 53 Ark. 67; State v. Brown, 16 la. 314; Barney y. Comm., 83 Ky. 534; State v. Stout, 11 N. J. L. 124; Baker v. State, 22 S. W. 1039.\\nProceedings by scire facias are proper upon a -forfeited bail bond. IT. S. v. Insley, 54 Fed. 221, 4 C. C. A. 298-9; State v. Glass, 9 la. 325; State v. Heed, 62 Mo. 559; Saunders\\u2019 Pleading 750; Tidd\\u2019s Practice 1091; Sans t. People, 3 Gilm 330; Comm. v. Green, 12 Mass. 2.\\nW. B. Ci-iilders for Appellees.\\nAction on an appearance bond is a civil action for the enforcement of a private right. C. L. 1897, sec. 2685, sub-secs. 17, 19; 19 Ene. P. & P. 307; Com. v. McNeill, 19 Pac. 136; 3 Ene. P. & P. 340, and cases cited; People v. Love, 19 Cal. 676; Brooks v. H. S. 6. N. M. 72; Himiston v. Smith, 21 Cal. 134; De Baca v. Wilcox, 11 N. M. 346; Browne & Manzanares Co. v. Chaves, 9 N. M. 316; Cameron v. Young, 6 How. Pr. 372; Alelen v. Clark, 11 How Pr. 209.\\nThe bond must follow the provisions of the Statute. C. L. 1897, sees. 3385, 3386, 3387, 3394; 5 Oye. 16, 85, note 30, 110, 124, note 10; Com. v. Thompson, 33 S. W. 1103: 16 Ene. P. & P. 837; People v. Cohen, 118 Cal. 74, 50 Pac. 20; State v. Pratt, 50 S. W. 113; U. S', v. Hudson, 65 Fed. 68.\\nThe conditions of the bond cannot be varied or changed. IT. S. v. Rundlett, 27 Fed. Cases, No. 16,208; H. S. v. Brooks, 6 N. M. 72; State v. Jones^ 29 Ark. 127; Reese v. H. S., 9 Wall. 13; Davis v. S. C., 107 H. S. 601; State v. Huston, 74 N. C. '175; H. S. v. Evans, 2 Federal 147; State v. Walker, 1 Mo. 389, 546; State v. Miles, 13 N. C. 555 ; State v. Miller, 31 Texas 564; 5 Century Digest, sec. 184;'State v. Colwell, 28 S. W. 4; State v. Randolph, 26 Mo. 213; State v. Nelson, 28 Mo. 13; State v. Fergusson, 50 Mo. 409; State v. Murdock, 81 N. W. 447.\\nThe crime charged in the bond is not sufficiently described. Heilman v. State, 25 S. W. 1120; Bonner v. Com., 85 S. W. 1185; Com. v. Thompson, 33 S. W. 113; State v. McGuire, 43 N. W. 688; Griffin v. State, 48 Ind. 258.\\nWhere bail is taken contrary to the provisions of some express statute the obligation is rendered void. State v. Satterwhite, 20 S. C. 536; Duckett v. State, 51 Miss. 799.\", \"word_count\": \"1292\", \"char_count\": \"6906\", \"text\": \"OPINION OP THE COURT.\\nPARKER, J.\\nThis was a proceeding to recoven the penalty upon an .appearance bond. Several questions are presented by the record but we do not deem it necessary to consider more than the one fundamental question which, if decided correctly, shows no cause of action which can be maintained. The condition of the bond is .as follows :\\n\\\"Now, if the said C. B. Woodward shall well and truly appear at the next ensuing term of the District Court of the Second Judicial District of New Mexico to be begun and held in and for the said County of Valencia on the first Monday in March, A. D., 1903, on the first day of said term, then 4 and there to answer any indictment that may be found against him, in said court, for said alleged crime, and shall remain in attendance upon said court from day to day, and from term to term, until discharged by authority of law, then this obligation to be void, otherwise to remain in full force and effect.\\\"\\nIt appears that the defendant was examined-by the District Judge of the Second Judicial District, sitting as Committing Magistrate, and committed to await the action of the grand jury at the next term of the District Court in Valencia County. At that term the defendant was indicted on the charge. At the succeeding term he applied for and obtained a change of venue of the cause to Bernalillo County. At the next ensuing term of the District Court for that county the cause was continued. At the next term the defendant defaulted and his bond was forfeited. This proceeding was then instituted against his sureties on the bond to recover the penalty.\\nThe court below held there was no right to recover and this was correct. There was no undertaking on the part of the sureties that the defendant should appear elsewhere than in Valencia County nor was there provision in the condition of the bond that defendant should obey the further orders of the court. Had this been the case the defendant might have been ordered to give a new bond on change of venue, and,, in default thereof, have been committed. Or, perhaps, he might have been ordered by the court, on change of venue, to .appear in Bernalillo County and remain in attendance on that court until discharged, and the sureties would still be liable upon their undertaking. But this bond contained no such condition and the obligation was solely to appear in Valencia County until discharged. There could be no forfeiture of the bond for failure to appear elsewhere .and his appearance there was discharged by the order changing the venue.\\nFor the reason stated the judgment of the court below will be affirmed and it is so ordered.\\nAbbott, Mechem and Cooley, Associate Justices, did not participate in this decision.\"}"
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+"{\"id\": \"2398688\", \"name\": \"HILL v. HART, ET AL.\", \"name_abbreviation\": \"Hill v. Hart\", \"decision_date\": \"1917-08-23\", \"docket_number\": \"No. 2025\", \"first_page\": \"226\", \"last_page\": 235, \"citations\": \"23 N.M. 226\", \"volume\": \"23\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:29:10.932939+00:00\", \"provenance\": \"CAP\", \"judges\": \"HANNA, C. J., and PARKER, X, concur.\", \"parties\": \"HILL v. HART, ET AL.\", \"head_matter\": \"[No. 2025.\\nAugust 23, 1917.]\\nHILL v. HART, ET AL.\\n[Rehearing Denied October 3, 1917.]\\nSYLLABUS BY THE COURT.\\n1. There is no conflict between the written \\u25a0 and printed portions of a promissory note wher'e the written portion of the note provides for the payment of interest, and the printed portion provides, \\u201cwith interest at the rate of nine per cent-per annum from maturity date,\\u201d the word \\u201cdate\\u201d being written, it being the intention of the parties that the amount specified should draw interest only fr'om maturity date; hence there was no occasion to apply the rule that the written portion should prevail over the printed portion. 231\\n2. The principle that parol evidence is not admissible to vary the terms of a written instrument is not infringed when the evidence is used for the purpose of ascertaining the meaning; of doubtful expressions in the instrument. 232\\n3. Where a promissory note is payable to a given person or order, and is transferred to another by such person, without indorsement, such note is subject to any defense which existed against the note in the hands of the original payee.\\nPage 234\\nAppeal from District Court, Bernalillo County; M. C. Mechem, Judge.\\nSuit for specific performance by Catherine Hill against Martha E. Hart and others. Decree for plaintiff, and defendants appeal.\\nAffirmed.\\nGeorge S. Kloek, of Albuquerque, for appellants.\\nThe note and contract constituted a complete transaction and parol evidence was inadmissible to vary terms thereof.\\nLocke v. Murdoch, 151 Pac. 298.\\n\\u201cWhere a contract is partly printed and partly in writing, the written matter must prevail over the printed in ease of conflict between them.\\nHill v. Miller, 76 N. Y. 32; Clark v. Woodruff, 83 N. Y. 518; Harper v. Albany Mutual Insurance Co., 17 N. Y. 194; Thomas v. Laggart, 209 II. S. 385, 52 L. Ed. 845; Chadsey v. Guyon, 97 N. Y. 5333.\\nWhere the contract provides for the payment of a certain rate of interest per annum, it only fixes the rate to be paid and has no reference to the time when such interest shall be paid, and consequently interest so reserved becomes due and payable only with the principal.\\u201d\\nC3rclopedia of Law and Procedure, Vol. 22, pages 1482 and 1463.\\nAgain \\u201cA stipulation for interest at a specified rate per annum does not import a contract to pay interest annually. The term employed only affording a measure for the computation of interest.\\u201d\\nAmerican and English Encyclopedia of Law, Second Edition, Yol. 16, page 1071; Ramsdell v. Mulett, 50 Nans. 440 (C. E.), 31 Pac. 1092; Motsinger v. Miller, 59 Kans. 575; ICoehring v. Nrreminghoff, 61 Mo. 406 (S. C.), 21 Am. Eep. 402; Leonard v. Phillips, 39 Mich. 182 (S. C.) 33, Am. Eep. 370; Cooper v. Wright, 23 1ST. J. Law, 200.\\nEor definitions of corroborative evidence, see:\\nG-ildersleeve v. Atldnson, 6 N. M. 250, 27 Pac. 477; Ityerts v. Robinson, 9 N. M. 427, 54 Pac. 932; Eadcliffe y. Chaves, 15 N. M. 258, 110 Pac. 699; Childers v. Hub-bell, 15 N. M. 450, 110 Pae. 1051.\\nNeil B. Field, of Albuquerque, for appellee.\\nWhere terms of contract are obscure or uncertain, evi dence of antecedent negotiations is admissible to enable court to put itself in place of parties and view it as they did.\\n1 Addison on Cont. Sec. 221; Nash v. Townc, 72 U. S. 689; Bartels y. iBrain, 44 Pac. (Utah) 715; 4 Wigmoro on Evid. Sec. 2465; Gill v. Ferrin, 71 N. H. 421; Lonergan v. Beauford, 148 U. S. 581; The Barnstable, 84 Fde. 895.\\nContracts, where ambiguous, will be construed most strongly against the maker.\\nTexas and' Pacific B. C'o. y. Beiss, 183 U. S. 621, 626; Boyal Ins. Co. y. Martin, 192 U. S. 149, 162; Christian y. First Nat\\u2019l. Bank, 155 Fed. 705, 709; Noonan y. Bradley, 9 Wall. 394.\\nPerson taking negotiable paper without endorsement is not holder in due course.\\nTrust Co. y. National Bank, 101 U. S. 68; Osgoods Adm. v. Artt, 17 Fed. 575.\\nIt is a canon for the interpretation of contracts that the practice of the parties under them may furnish a solid basis upon which their construction may rest.\\nChicago Great Western B. Co. v. Northern Pacific B. Co., 101 Fed. 792.\", \"word_count\": \"3310\", \"char_count\": \"18912\", \"text\": \"OPINION OP THE COURT.\\nBOBEBTS, J.\\nThis was a suit for the performance of a contract for the purchase of certain real estate described in the complaint, entered into by appellant and one Henry, deceased, and to quiet title to the same real estate, appellants being the heirs at law of Iienry. The facts, in brief, are that some time prior to the execution of the contract which forms the subject of this action Dr. Iienry entered into a contract for the sale of certain real estate in Albuquerque with one Annie Anderson, who was the mother of the appellee, and Mrs. Anderson was placed in possession of the premises under the contract. Mrs. Anderson paid $90 on account of the contract, and then found herself unable to go on with it, and the appellee applied to Dr. ITcnry to know! if it could not be assigned over to her, as she would have to make the payments. It appears that a deed which had been executed by Dr. Henry to Mrs. Anderson, but was not delivered to her, was altered by erasing the name of Mrs. Anderson and inserting the name of Catherine Hill, as grantee, and that a promissory note was prepared by Henry and submitted to appellee for her signature. The material portion of the note is here inserted, that portion in uniting being underscored:\\n$1900. Albuquerque, New Mexico, March 12, 1917.\\n\\\"-- after' date, for value received waiving grace and protest, I, we, or either of us, jointly and severally promise to pay to the order of J. A. Henry or order at the First National Bank of Albuquerque, Nineteen Hundred dollars to bq paid as follows: \\u00a1$70 on 4-12-07 and $20 on 5-12-07 and $20 on the 12th of each and every succeeding months till the whole amount with interest is paid, Dollars with interest at the rate of nine per cent, per annum from Maturity date until paid.\\\"\\nOn the same day and concurrent with the signing of said note, the following memorandum of agreement was signed by Henry and accepted by appellee, viz.:\\nAlbuquerque, N. M., Mch. 12-07-\\n\\\"I have this day made a deed to Miss Catherine Hill to frac. Lots No. 10, 11 and 12 in block No. 3 Hughes Hiland Addition to the City of Albuquerque. Said deed to be delivered to her or assigns on the payment in full with interest a certain note of nineteen hundred dollars ($1,900) of even date (March 12-07) signed by said Catherine Hill and made payable to J. A. Henry, or his assigns. To be paid as follows: $70 Apr. 12-07 and $20 May 12-07, and $20 on the 12th of each and every succeeding month till the full amount is1 paid.\\n\\\"(Signed) J. A. HENRY.\\n\\\"The above agreement is the agreement between J. A. Henr'y and myself.\\n\\\"(Signed) MISS CATHERINE HILL.\\\"\\nThese papers, together with the deed, were placed in an envelope and Henry signed a memorandum of escrow, in words as follows:\\n\\\"Contract between J. A. Henry and Catherine Hill and deed to ber for Frac. Lots 10, 111 and 12,. Blk. 3, Hunings Highland Add. The said deed to be delivered to her when she pays in full a note for $1,900 with interest as specified in May 24, 1908-\\n\\\"(Signed) J. A. HENRY.\\\"\\nIt does not appear that Miss I-Iill was present when the escrow memorandum was signed, but that paper is dated May 24th. The deed was acknowledged May 4, 1908. The appellee, with her mother and stepfather, continued in possession of tire property until the death of her stepfather in 1907, and the death of her mother pending this suit, and until the time of the trial. Dr. Henry died in July, 1908, and appellee continued to pay the monthly installments without anything having been said to her about interest until July, 1914. Dr. Henry's estate was settled and the administrator was discharged on June 4, 1912. In July, 1914, Mrs. Hart, the administratrix, first demanded of appellee that she pay interest on the note. Appellee, however, never recognized any liability for interest. Appellant sought to show that A7ita O. Henry, one of the heirs at law, became owner of this note in 1911 through some arrangement made between the heirs of Henry, and that she thought at the time she became owner of the note that it was an interest-bearing obligation. The note was never indorsed to Yita O. Henry, and the trial court held that she took the note subject to all the defenses which might have been made against it in the hands of the original payee; that Yita O. Henry did not receive the note by indorsement, and that she was not a holder for value in due course, within the meaning of our statute or of the law merchant. The trial court admitted parol evidence to be introduced relative to the facts and circumstances attending the execution of the contract and note and as to certain statements made by Dr. Henry at that 'time. The court found that the note in question had been fully paid; that it was the intention of the parties that it should bear interest only from maturity; and decreed specific performance of the contract.\\n\\\"While appellant has assigned 51 grounds of error, we are of the opinion that three questions are decisive of the case: First, under the terms of the note and contract, was interest payable from date or from maturity ? Second, assuming that the contract was ambiguous as to the interest provision, did the court commit error in permitting parol evidence to be introduced as to the facts and circumstances attending the execution of the\\u00a1 contract and the agreement which led up to its execution? Third, the note not being indorsed to Tita O. ITenry, was it subject to any defense which existed against the original holder ?\\nAs to the first proposition, it is appellant's contention that there is a conflict between the written and the printed portions of the note,, and that under subdivision 4, \\u00a7 23, of the Negotiable Instrument Law (section 611, Code 1915), the written provision must prevail. In this same section it is provided that, where an instrument provides for the payment of interest without specifying the date from which the interest is to run, the interest runs from date of the instrument, and, if the interest is undated, from the issue thereof. In this case, however, the note, after providing for the payment of interest, specifies when the interest is to begin, namely, from maturity date. A later clause in. the note provides that if any payment becomes due and is not paid, then the whole amount becomes due. It is apparent, we think, from the face of the note, that there is no conflict between the written and printed portions, but that it was the intention of the parties that the amount specified should draw interest only from the \\\"maturity date.\\\" There being no conflict, there was no occasion for a resort to the statute, nor does this construction result in creating a conflict between the contract and the note. The note and the contract being executed at the same time and as a part of the same contract, they must, of course, be construed together. In Elliott on Contracts, \\u00a7 1522, it is said:\\n\\\"Several instruments which refer to the same subject-matter between the same parties and made as parts' of substantially one transaction are considered as one contract, and receive the same construction as if their several provisions were in one and the same instrument. This principle is of wide application and the illustrative cases are numerous. Thus, where the making of a. note is accompanied by an agreement in relation thereto, the note and the agreement are to be taken together', and form one entire transaction.\\\"\\nHeading the contract and the note together, there is no conflict between them. While the note provided for the payment of the debt in full, with interest, Ave look to the provisions of the note to see from what date the interest Avas to run, and there find it plainly expressed that it is to run from maturity date.\\nIf it be assumed that the language employed in the note and contract was ambiguous and uncertain, this uncertainty was cleared up by the introduction of parol evidence as to the facts and circumstances relative to the agreement between Dr. Henry and appellee. Appellee testified fully as to such facts and circumstances, and stated that Dr. Henry said to her that $1,900 was to be the full amount which she should pay for the house. This evidence, given by appellee, was corroborated by her brother, Avho Avas present at the time of the execution of the contract. Appellant argues that the court committed error in admitting this evidence and in holding that the testimony of appellee Avas sufficiently corroborated under our statute. It is well settled that, Avhere the terms of a contract are obscure and uncertain, evidence of antecedent negotiations and of the facts and circumstances surrounding the parties is admissible to enable the court to put itself in the place of the parties to the contract and to view it as they vieAved it. Appellee did not seek by parol evidence to show a contemporaneous oral agreement covering the subject-matter of the contract and inconsistent with the Avriting, but sought to show that the Avriting expressed the intention of the parties, and offered the antecedent negotiations only as shedding light upon the meaning of the words used by the parties to the transaction. The principle that parol evidence is not admissible to vary1 the terms of a Avritten instrument is not infringed Avhen the evidence is used for the purpose of ascertaining the meaning of doubtful expressions in the instrument.\\n\\\"To enable us also to arrive at the real intention of the parties, and to make a correct application of the words and language of the contract to the subject-matter thereof, and the objects professed to be described, all the surrounding facts and circumstances may be taken into consideration, The law does not deny to the reader the same light and information that the writer' enjoyed; he may acquaint himself with the persons and circumstances which are the subject of the allusions and statements in the writing, and is entitled to place himself in the same situation as the party who made the contract to view the circumstances as he viewed them, and so judge of the meaning of the words and of the correct application of the language to the things described.\\\" 1 Addison on Con. \\u00a7 221.\\n, \\\"Courts, ire the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They) are never shut out from the same light which the -parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the lanugage to the things described.\\\" Nash v. Towne, 5 Wall. (72 U. S.) 689, 699, 18 L. Ed. 527.\\n\\\"The evidence objected to was not admitted to add to, take from, or to change in any r'espeet the language of the writing. There was no intention of admitting any other language of the contract than that contained in the written instrument. The object of the evidence was to place the facts in view of the parties when they made the lease before the court, when construing it. In order to determine whether a man has acted reasonably, we should know the facts and circumstances in view of which he acted. And, to determine the use that the parties deemed reasonable, the court should know the facts from which they reasoned. In view of the fact that the particular use to which the land was to be put by the lessee was not mentioned in the lease, it was proper to admit evidence tending to show that the parties intended the land should be used for brickmaking purposes; and it was not error to show the understanding of the parties by their declarations in -the form of a verbal agreement, and that the lessor, after the lease was executed, saw the lessee excavating the land and making the brick of it, without objection.\\\" Bartels v. Brain, 13 Utah, 162, 44 Pac. 715.\\nProf. TYigmore says:\\n\\\"The antiquated notion, that a document must be construed solely within its four corners, no matter, how puzzling the problem, served for a time to retard the full appreciation of sound doctrine. But it was well settled by the middle of the 1800's in England; the case of Macdonald v. Longbottom, in which' 'your wool' was to be interpreted, served to mark the period of full conviction. In the United States the principle has also received ample sanction and illustration.\\\" 4 Wig-more. on Evidence, \\u00a7 2465.\\nThis court is in full accord with Mr. Wigmore. See Schwentker v. Hubbs, 21 N. M. 188, 153 Pac. 68; Ellis v. Stone, 21 N. M. 730, 158 Pac. 480, L. R. A. 1916F, 1228.\\nIn this connection it is perhaps proper to refer to the objection raised by appellant to the effect that the evidence of the brother was not sufficiently corroborative of that given by appellee to warrant the judgment, under section 2175, Code 1915. The question as to the proper construction of this statute, and as to the quantum of corroboration necessary, was fully discussed by this court in the case of Union Land & Grazing Co. v. Arce, 21 N. M. 115, 152 Pac. 1143. The evidence offered, we believe, affords sufficient corroboration, and, as the statute and its proper construction was fully discussed in the case referred to, nothing would be gained' by a further consideration of this question.\\nWhat we have heretofore said under the first proposition discussed possibly renders a consideration of the third point stated unnecessary, but, as it is strenuously urged by appellant, we will discuss it. The note was not indorsed, notwithstanding which fact appellant contends that it was not subject to extraneous proof for the purpose of explaining the claimed apparent conflict between the written and the printed portions of the same. The note was payable to order. By section 55 of the Njegotaible Instrument Act (section G43, Code 1915) it is provided:\\n\\\"Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee is a holder in due coruse, the negotiation takes effect as of the time when the indorsemnt is actually made.\\\"\\nUnder this section, the note being- so transferred, without indorsement, the holder acquired only such title thereto as the transferor had in the note, and it was subject to any defense which existed against the note in the bands of the original payee. This being truej the fact that Vita O. Henry accepted the note as an interest-bearing obligation \\\"from date\\\" becomes of no importance.\\nFor the foregoing reasons the judgment of the district court will be affirmed, and it is so ordered.\\nHANNA, C. J., and PARKER, X, concur.\"}"
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+"{\"id\": \"2736499\", \"name\": \"Marie Elaine KOTROLA, Plaintiff-Appellant, v. Joe S. KOTROLA, Defendant-Appellee\", \"name_abbreviation\": \"Kotrola v. Kotrola\", \"decision_date\": \"1968-06-17\", \"docket_number\": \"No. 8458\", \"first_page\": \"258\", \"last_page\": 260, \"citations\": \"79 N.M. 258\", \"volume\": \"79\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:30:11.193490+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOISE and CARMODY, JJ., concur.\", \"parties\": \"Marie Elaine KOTROLA, Plaintiff-Appellant, v. Joe S. KOTROLA, Defendant-Appellee.\", \"head_matter\": \"442 P.2d 570\\nMarie Elaine KOTROLA, Plaintiff-Appellant, v. Joe S. KOTROLA, Defendant-Appellee.\\nNo. 8458.\\nSupreme Court of New Mexico.\\nJune 17, 1968.\\nMcAtee, Marchiondo & Michael, Albuquerque, for plaintiff-appellant.\\nBotts, Botts & Mauney, Albuquerque, for defendant-appellee.\", \"word_count\": \"859\", \"char_count\": \"4993\", \"text\": \"OPINION\\nNOBLE, Justice.\\nJoe S. Kotrola was granted a decree of divorce from Marie Elaine Kotrola in 1961. Finding the mother unfit to have custody of two minor children, Jeannine Marie, two and one-half years old, and Yvonne Denise, one year old, the court awarded their custody to the maternal grandmother with a provision that in the event the children's father, who was on submarine duty, should thereafter be stationed in Albuquerque, a motion for change of custody would be entertained. In 1966, both the mother and father of the children filed motions seeking their custody. Custody was awarded to the father, Joe S. Kotrola, and the plaintiff below, Marie Elaine Kotrola, now Marie Elaine Clum, has appealed.\\nIn this proceeding for change of custody the court found that the mother had remarried; had conducted herself in a prop-' er manner since the 1961 divorce decree; had visited the children several times each week and had them in her home on occasions; had completed a secretarial course; and was employed. The court also found that another child of the mother by a prior marriage who had been awarded to the custody of the mother was raised in the home of the maternal grandmother.\\nThe divorce decree determined that the father was a fit person to have custody of the children and that he was on active submarine duty. In this proceeding the court further found that Joe S. Kotrola had remained on active submarine duty since h'is divorce; had remarried and maintained a home in Honolulu, Hawaii; and that' he had always been a fit person to have the children's custody.\\nBecause of the finding of the appellant-mother's changed circumstances and -the. fact that she was a proper person to have custody of the children, the appellant argues that the decree awarding custody to, the father \\\"is the result of a bias on the part of the court,\\\" or to put it differently, that the court abused its discretion in awarding custody to the father rather than to the mother.\\nWe, of course, recognize the controlling principle that the best interest of the children is of paramount consideration in determining the custody of minor children, Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261; Urzua v. Urzua, 67 N.M. 304, 355 P.2d 123; Tuttle v. Tuttle, 66 N.M. 134, 343 P.2d 838; Bassett v. Bassett, 56 N.M. 739, 250 P.2d 487, and that the same considerations form the basis for modifying a custodial decree. Fox v. Doak, 78 N.M. 743, 438 P.2d 153; Bassett v. Bassett, supra. As in Ettinger v. Ettinger, supra, we likewise agree that generally courts are reluctant to deprive the mother of a very young child. But we there said that the rule of preference in favor of the mother in the case of young children is merely an aid to the court in determining the best interests of the children. The preference in favor of the mother is not inflexible, nor is the mother entitled to the custody of daughters as a matter of law.\\nThe trial court is vested with great discretion in awarding the custody of young children and we cannot reverse unless the court's conclusion about the best interests of the children is a manifest abuse of discretion under the evidence in the case. Fox v. Doak, supra; Jones v. Jones, 67 N.M. 415, 356 P.2d 231; Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125.\\nThe only New Mexico cases called to our attention or that we have found holding that a custody determination by the trial court amounted to an abuse of discretion are Bell v. Odil, 60 N.M. 404, 292 P.2d 96; Focks v. Munger, 20 N.M. 335, 149 P. 300, and Tuttle v. Tuttle, supra. Bell v. Odil, supra, is distinguishable upon its facts. Custody was there granted to persons not parties to the action and about whom there was no proof of desire, fitness or ability to care for the children. See also Tuttle v. Tuttle, supra, with facts similar to those in Bell v. Odil, supra. The instant case is distinguishable upon its facts from Focks v. Munger, supra, where the child had been stolen from the natural mother, found to be a fit person, and to whom the child's custody had been awarded.\\nThe determination by the trial judge who saw the parties, observed their demeanor and heard the testimony is entitled to great weight. We ar\\u00e9 satisfied from an examination of the record that the court could reasonably have found and concluded as it did, having in mind the best interests of the children. The record discloses substantial support for the court's findings. We find nothing which convinces us of an abuse of discretion under the evidence. Fox v. Doak, supra.\\nWe, therefore, conclude that the order granting the change of custody was without error. The judgment should he affirmed.\\nIt is so ordered.\\nMOISE and CARMODY, JJ., concur.\"}"
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+"{\"id\": \"2739195\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Edison W. CLIETT, Defendant-Appellant\", \"name_abbreviation\": \"State v. Cliett\", \"decision_date\": \"1968-12-27\", \"docket_number\": \"No. 223\", \"first_page\": \"719\", \"last_page\": 721, \"citations\": \"79 N.M. 719\", \"volume\": \"79\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:30:11.193490+00:00\", \"provenance\": \"CAP\", \"judges\": \"OMAN and ARMIJO, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Edison W. CLIETT, Defendant-Appellant.\", \"head_matter\": \"449 P.2d 89\\nSTATE of New Mexico, Plaintiff-Appellee, v. Edison W. CLIETT, Defendant-Appellant.\\nNo. 223.\\nCourt of Appeals of New Mexico.\\nDec. 27, 1968.\\nWilliam H. Carpenter, Albuquerque, for appellant.\\nBoston E. Witt, Atty. Gen., Spencer T. King, Asst. Atty. Gen., Santa Fe, for appellee.\", \"word_count\": \"1383\", \"char_count\": \"8600\", \"text\": \"OPINION\\nWOOD, Judge.\\nThe dispositive issue is whether defendant was entitled to a hearing on the question of his competency to plead guilty. In August 1962, defendant pleaded guilty to armed robbery committed in December 1960. In November 1967, defendant moved for post-conviction relief under \\u00a7 21-1-1 (93), N.M.S.A.1953 (Supp.1967). The trial court determined that the motion, files and records conclusively showed that defendant was not entitled to relief and denied the motion without a hearing.\\nDefendant appeals, urging that the issue of his competency could not be conclusively determined from the files and records and that he was entitled to a hearing on this issue. We agree. In addition, defendant asserts that promises and threats on the part of the Assistant District Attorney induced his plea of guilty. We do not think the trial court erred in denying this point without a hearing since its basis is very-similar to that considered, and determined adverse to defendant, in State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967). Defendant also raises issues that are waived by a valid plea. We do not consider them since there must be a factual determination of whether defendant was competent to plead guilty.\\nState v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966) states:\\n\\\" It is a generally accepted rule that no person shall be called upon to stand trial or be sentenced who because of mental illness is incapable of understanding the nature and object of the proceedings, or of comprehending his own condition in reference thereto, or of making a rational defense. \\\"\\nOn December 23, 1960, counsel moved for a psychiatric examination of defendant at the expense of the state on the ground that defendant \\\" is mentally incapable of rationally cooperating in his defense. \\\"\\nThe record is incomplete at this point. We assume, however, that the motion of December 23, 1960 was granted; that there was a psychiatric examination; that the report of the examination did not indicate that defendant was incapable of cooperating in his own defense. These assumptions are made because on February 3, 1961 a hearing was held and an order entered. The order denied a motion to \\\" grant the defendant further psychiatric examinations. \\\" At the conclusion of the hearing the trial court referred to Dr. Evilsizer's report to the effect that defendant \\\" is presently so far free from mental disease, defect, or derangement so as to be able to conduct and cooperate in his own defense. \\\"\\nThus, at this point the trial court had inquired into the matter and by denying the motion for \\\"further\\\" examination in effect ruled that there was no reasonable doubt as to defendant's capacity to make a rational defense. State v. Roybal, supra; State v. Upton, 60 N.M. 205, 290 P.2d 440 (1955).\\nHowever, the order of February 1961 did not end the matter. In June 1961, defendant moved for \\\" further medical examinations as recommended by Dr. Thomas S. Evilsizer, Jr. in his report of January 16, 1961. \\\" In support of the motion, counsel referred to medical records that \\\" have now been made available. \\\" According to counsel, the records indicate that defendant suffered a head injury in March 1957 and that three surgical procedures were performed in March 1957: arteriography twice and a craniectomy once. The record does not show the disposition of the motion. Nor does the record include Dr. Evilsizer's report of January 1961; we do not know what further examinations were allegedly recommended.\\nApparently, however, defense counsel made his own arrangements for examinations and tests. Orders were entered in November and December 1961 authorizing the Sheriff to have defendant present for an \\\" electro encephalograph \\\" , neurological examination by Dr. J. M. Mosier, and a psychological examination by Dr. John Salazar. In February 1962, an order was entered authorizing the Sheriff to have defendant present for a medical examination at the Veterans Hospital in Albuquerque. We do not know whether these examinations were performed or if performed, the results.\\nIn April 1962, counsel moved for an additional examination by Dr. Evilsizer at the cost of Bernalillo County. This motion was granted. However, the record does not show the results of this examination.\\nThe record includes a certificate of discharge from the New Mexico State Hospital indicating that the District Court committed defendant to that institution on May 16, 1962; that the institution discharged him June 21, 1962 as \\\" \\u2014 without psychosis \\u2014 returned to the jurisdiction of the District Court.\\\"\\nOn August 17, 1962 defendant withdrew his plea of not guilty and entered a plea of guilty. At the time of this plea, defense counsel stated:\\n\\\" We have had him examined by two or three psychiatrists and there seems to be an apparent conflict between them. We have agreed that the conflict should be resolved in favor of a plea at this time. \\\"\\nIn consequence of the plea, defendant was committed to the penitentiary. He was transferred from the penitentiary to the State Hospital on September 21, 1962 \\\" on an emergency hospitalization status. '* \\\" The re-admission note states: \\\" According to Dr. Elsa Brumlop, the patient is psychotic. \\\" However, on November 29, 1962 the note indicates that defendant did not manifest \\\" overt abnormal behavior.\\\" and \\\" should be returned to the penitentiary on convalescent leave.\\\"\\nState v. Upton, supra, states that once the issue of \\\"present sanity\\\" is raised, the trial court has a duty to inquire into the matter. As a result of the inquiry, the trial court \\\" must rule as to whether a reasonable doubt exists as to the sanity of the accused. \\\" Compare State v. Roybal, supra.\\nThe record shows that between the ruling of February 1961, and the guilty plea of August 1962, various motions for examination had been filed, and that the trial court had committed defendant to the State Hospital. At the time of the guilty plea, counsel indicated a conflict of opinion as to defendant's mental condition. Under this record, the question of defendant's condition was before the trial court and that court had a duty to rule on the question. State v. Upton, supra. The trial court did not do so, apparently accepting counsel's statement \\\" that the conflict should be resolved in favor of a plea. \\\"\\nThe issue not having been previously determined by the trial court, the question of defendant's competency to plead could be raised in the post-conviction proceeding. State v. Guy, 79 N.M. 128, 440 P.2d 803 (Ct.App.1968); compare Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968).\\nIn denying the motion for post-conviction relief, the trial court found that defendant was discharged from the State Hospital in June 1962 as being sane and without psychosis. The trial court also found that defendant was not suffering from any mental illness at the time he pleaded guilty. We assume that the finding as to absence of \\\"mental illness\\\" is a finding that defendant was legally sane at the time of the plea. We fail to see how either the record or the trial court's findings conclusively establish \\\"no reasonable doubt\\\" as to defendant's competency since the record indicates that defense counsel called the court's attention to the conflicting opinion of the psychiatrists. But, we do not base our opinion on this point.\\nDefendant must allege a specific factual basis for the relief sought. State v. Guy, supra. Defendant did so; he alleged the transfer to the State Hospital shortly after his commitment to the penitentiary and the \\\"psychotic\\\" diagnosis, at that time, of Dr. Brumlop. These allegations of post-conviction confinement in a mental institution and diagnosis as a psychotic are sufficiently close to the date of his plea to raise a factual issue concerning his competency to plead. State v. Guy, supra.\\nDefendant was entitled to a hearing on the issue of his competency to enter a guilty plea. The order denying relief is reversed. The cause is remanded to the trial court with instructions to grant defendant an evidentiary hearing on the issue of his competency to enter a plea on August 17, 1962.\\nIt is so ordered.\\nOMAN and ARMIJO, JJ., concur.\"}"
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+"{\"id\": \"2762894\", \"name\": \"Roy HARMON, as the personal representative of the estate of Dorothy Harmon, deceased, and Roy Harmon, individually, Plaintiff, v. FARMERS MARKET FOOD STORE, a partnership consisting of Bert M. Jones and J. T. Halle, Jr., d/b/a Farmers Market Food Store, and Louis L. Martinez, its agent, servant, employee and manager, Defendants and Cross-Plaintiffs Appellants, v. KIMBELL-ALBUQUERQUE CO., (also known as Kimbell Wholesale Co. of Albuquerque, N. M.), and Douglas Shope, its agent, servant and employes, Defendants and Cross-Defendants Appellees, v. MAXON INDUSTRIES, INC., a corporation, Defendant and Cross-Defendant\", \"name_abbreviation\": \"Harmon ex rel. estate of Harmon v. Farmers Market Food Store\", \"decision_date\": \"1972-06-09\", \"docket_number\": \"No. 815\", \"first_page\": \"80\", \"last_page\": 83, \"citations\": \"84 N.M. 80\", \"volume\": \"84\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:00.915350+00:00\", \"provenance\": \"CAP\", \"judges\": \"HENDLEY and HERNANDEZ, JJ., concur.\", \"parties\": \"Roy HARMON, as the personal representative of the estate of Dorothy Harmon, deceased, and Roy Harmon, individually, Plaintiff, v. FARMERS MARKET FOOD STORE, a partnership consisting of Bert M. Jones and J. T. Halle, Jr., d/b/a Farmers Market Food Store, and Louis L. Martinez, its agent, servant, employee and manager, Defendants and Cross-Plaintiffs Appellants, v. KIMBELL-ALBUQUERQUE CO., (also known as Kimbell Wholesale Co. of Albuquerque, N. M.), and Douglas Shope, its agent, servant and employes, Defendants and Cross-Defendants Appellees, v. MAXON INDUSTRIES, INC., a corporation, Defendant and Cross-Defendant.\", \"head_matter\": \"499 P.2d 1002\\nRoy HARMON, as the personal representative of the estate of Dorothy Harmon, deceased, and Roy Harmon, individually, Plaintiff, v. FARMERS MARKET FOOD STORE, a partnership consisting of Bert M. Jones and J. T. Halle, Jr., d/b/a Farmers Market Food Store, and Louis L. Martinez, its agent, servant, employee and manager, Defendants and Cross-Plaintiffs Appellants, v. KIMBELL-ALBUQUERQUE CO., (also known as Kimbell Wholesale Co. of Albuquerque, N. M.), and Douglas Shope, its agent, servant and employes, Defendants and Cross-Defendants Appellees, v. MAXON INDUSTRIES, INC., a corporation, Defendant and Cross-Defendant.\\nNo. 815.\\nCourt of Appeals of New Mexico.\\nJune 9, 1972.\\nCertiorari Denied July 18, 1972.\\nWilliam W. Bivins, Neil E. Weinbrenner, Bivins & Weinbrenner, Las Cruces, for appellants.\\nC. Fincher Neal, J. W. Neal, Neal & Neal, Hobbs, for appellees.\", \"word_count\": \"1430\", \"char_count\": \"9060\", \"text\": \"OPINION\\nWOOD, Chief Judge.\\nThe appeal involves indemnification between joint tort-feasors. The issue is whether the trial court properly directed a verdict against the indemnification claim.\\nKimbell (Kimbell-Albuquerque Co. and Shope, its employee), had groceries to deliver to its customer, Farmers (Farmers Market Food Store, a partnership, and Martinez, its employee). Unloading the groceries was accomplished by means of carts which were rolled onto a hydraulic lift system attached to the rear of Kim-bell's trailer, and then lowered to the ground. The lift system served as a tailgate. The lift system was manufactured by Maxon (Maxon Industries, Inc.).\\nThe Kimbell truck and trailer had been parked directly in front of a \\\"front door\\\" of Farmers, as directed by Farmers. As parked the lift system extended over the sidewalk. The front door of Farmers extended outward. The space between the end of the lift and edge of the door was such that \\\" it really didn't require any customer to squeeze in between this tailgate and the door. \\\" Through this space other deliveries were being made to the Farmers store. Decedent, Mrs. Harmon, also passed through this space and had just entered the store when she was struck by a cart loaded with groceries. The total weight was between 1S00 and 1800 pounds. She died from the resultant injuries.\\nKimbell's cart, loaded with groceries, was being pushed from the trailer onto the lift when a retaining ramp plate fell, the cart \\\"got away\\\" from the Kimbell employee and the cart and groceries fell forward striking Mrs. Harmon. The cart was approximately six feet in height. The distance involved is demonstrated by the fact that the \\\" back part of the cart was on the tailgate, and the other part was nosed down on top of the lady.\\\"\\nThe jury returned a verdict for plaintiffs against Kimbell, Farmers and Maxon. This verdict is not appealed. Farmers cross-claimed against Kimbell seeking to be indemnified for such amount as Farmers was liable to plaintiffs. The trial court directed a verdict in favor of Kimbell on this indemnification claim. Farmers appeals.\\nPertinent New Mexico decisions are: Rio Grande Gas Company v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969); Lommori v. Milner Hotels, Inc., 63 N.M. 342, 319 P.2d 949 (1957); Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940). There can be no indemnification between joint tort-feasors where the tort-feasors are \\\"in pari delicto.\\\" Thus, there is no indemnification \\\" '\\nwhere their joint concurring acts were the proximate cause of the damage.' \\\" Lommori, supra; Krametbauer, supra.\\nKrametbauer, supra, indicates there may be indemnification if the negligence of the one seeking indemnification is \\\"passive\\\" and the negligence of the one against whom indemnification is sought is \\\"active.\\\" Rio Grande Gas, supra, indicates indemnification may be obtained \\\" from the one who, as between themselves [the joint tort-feasors], is primarily liable. \\\" Rio Grande Gas, supra, indicates the basis for indemnification lies in a distinction between one who was negligent \\\" in failing to discover and remedy a dangerous condition \\\" and one who \\\"created\\\" the dangerous condition.\\nFarmers asserts: \\\" it is clear that the negligence of Kimbell was active and primary in employing defective equipment and in negligently pushing the cart off of the end of the trailer while the negligence, if any, on the part of appellants was at best passive or secondary in failing to discover that Kimbell [was] using defective equipment and to either correct or warn against that condition.\\\" Farmers contends the jury verdict necessarily establishes that its negligence was passive or secondary.\\nWhile we agree that the record establishes \\\"active\\\" negligence on the part of Kimbell, the contention that Farmers' negligence consists of no more than a \\\"failure to discover\\\" misappraises the record. No such theory of negligence was submitted to the jury and, thus, the jury could not have determined Farmers was negligent on that basis.\\nIt is undisputed that Mrs. Harmon was a business invitee of Farmers. See N.M. U.J.I. 10.6; Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). The jury was instructed, without objection, that Farmers had a duty to use ordinary care for the safety of Mrs. Harmon and had a duty to exercise ordinary care to keep the premises reasonably safe for the use of Mrs. Harmon.\\nThree factual theories of negligence on the part of Farmers were submitted to the jury. They are: the location of the unloading procedure, the unsafe unloading procedure at that location and the failure to provide any warning of danger. These factual theories are all addressed to the duty upon Farmers to keep its premises reasonably safe for the use of its customers. The jury determined that Farmers was negligent. If the verdict was based upon a failure to keep its premises reasonably safe for Mrs. Harmon's use, then Farmers' negligence was \\\"active\\\" in that it breached its affirmative duty to the decedent. Such \\\"active\\\" negligence bars indemnification. Krametbauer v. McDonald, supra.\\nAnother theory of negligence is that Farmers and Kimbell jointly failed to coordinate the unloading process so as to effect the unloading safely both from the manner and time of unloading. If the jury found Farmers to be negligent under this theory, there can be no indemnification because this theory is a claim of concurrent negligence and indemnification is not allowed for concurrent negligence. Krametbauer v. McDonald, supra.\\nThe verdict necessarily determined that Farmers was negligent under at least one of the foregoing theories of negligence since these were the theories submitted to the jury.\\nNext, Farmers asserts: \\\" The question here is who created the dangerous condition. The only answer is that the appellees [Kimbell] created that condition by the use of defective equipment and by negligently pushing the cart off of the ramp.\\\" Farmers contends \\\" the mere presence of the trailer and the unloading process at its door was not the cause of the unfortunate accident. \\\" It claims the cause was Kimbell's defective equipment and the negligent manner in which the cart was pushed.\\nThe answer to both \\\"creation\\\" and \\\"cause\\\" is that Kimbell parked the trailer where it was told to park it and Farmers selected the location. The photographs and the testimony show the groceries could have been unloaded onto Farmers' sidewalk without the unloading occurring at the door through which customers entered the store. The testimony is that the location of the unloading was for the convenience of Farmers. In proceeding for its own convenience, Farmers actively participated in causing Mrs. Harmon's injury by creating the physical arrangement that placed Mrs. Harmon in the close proximity of Kimbell's defective equipment and negligent unloading procedure.\\nWe are aware of the rule that in reviewing a directed verdict we consider the evidence and inferences therefrom most favorable to the party resisting the motion. Carter Farms Company v. Hoffman-Laroche, Inc., 83 N.M. 383, 492 P.2d 1000 (Ct.App.1971); see Lommori v. Milner Hotels, supra. The previous discussion has referred only to undisputed facts. There is an additional asserted fact which is to be considered in the light most favorable to Farmers. It is that Kimbell had \\\"complete control\\\" over the unloading operation. Does this asserted fact raise a factual issue as to \\\"passive\\\" negligence on the part of Farmers and thus prevent a directed verdict?\\nWe hold that it does not. The unloading process itself cannot be divorced from the place of unloading. Farmers breached its duty to Mrs. Harmon in choosing the location. As between Farmers and Kimbell, this negligence was as \\\"active\\\" as Kimbell's negligence. There is no factual issue as to whether, as between Kimbell and Farmers, Kimbell was \\\"primarily\\\" liable because it was the combination of the location (Farmers) and the unloading (Kimbell) which resulted in the death of Mrs. Harmon.\\nThe directed verdict is affirmed.\\nIt is so ordered.\\nHENDLEY and HERNANDEZ, JJ., concur.\"}"
\ No newline at end of file
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+"{\"id\": \"2764068\", \"name\": \"Leroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee\", \"name_abbreviation\": \"Woods v. State\", \"decision_date\": \"1972-09-15\", \"docket_number\": \"No. 943\", \"first_page\": \"248\", \"last_page\": 251, \"citations\": \"84 N.M. 248\", \"volume\": \"84\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:00.915350+00:00\", \"provenance\": \"CAP\", \"judges\": \"HERNANDEZ, J., concurs.\", \"parties\": \"Leroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\", \"head_matter\": \"501 P.2d 692\\nLeroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\\nNo. 943.\\nCourt of Appeals of New Mexico.\\nSept. 15, 1972.\\nDavid W. Bonem, Quinn & Bonem, Clovis, for petitioner-appellant.\\nDavid L. Norvell, Atty. Gen., Ronald Van Amberg, Asst. Atty. Gen., Santa Fe, for respondent-appellee.\", \"word_count\": \"1340\", \"char_count\": \"7902\", \"text\": \"OPINION\\nWOOD, Chief Judge.\\nPetitioner's conviction for aggravated assault under \\u00a7 40A-3-2(A), N.M.S.A.1953 (Repl.Vol. 6) was affirmed in State v. Woods, 82 N.M. 449, 483 P.2d 504 (Ct. App.1971). Subsequently, he moved for post-conviction relief under \\u00a7 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4). Relief was denied without an evidentiary hearing and on the basis that the claims made in the motion were not claims for which relief could be granted under \\u00a7 21-1-1(93), supra. Petitioner now appeals from the denial of post-conviction relief. The four claims asserted on appeal, and our answers, follow.\\n1. He claims there was a lack of substantial evidence to support his conviction for aggravated assault. An asserted insufficiency of the evidence is not a ground upon which postconviction relief may be obtained. Andrada v. State, 83 N. M. 393, 492 P.2d 1010 (Ct.App.1971); State v. Bonney, 82 N.M. 508, 484 P.2d 350 (Ct.App.1971). Further, this issue was raised, and decided adverse to petitioner, in State v. Woods, supra. Even if the sufficiency of the evidence was a cognizable issue in postconviction proceedings, it could not be relitigated after having been previously decided on appeal. Miller v. State, 82 N.M. 68, 475 P.2d 462 (Ct.App.1970).\\n2. He claims he was never given a preliminary hearing. The record in State v. Woods, supra, shows that petitioner was indicted by a grand jury. Thus, he did not have a right to a preliminary hearing. State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.1971), cert. denied, 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271 (1971).\\n3. He claims he was never taken before a magistrate and advised of his rights. See \\u00a7 41-3-1, N.M.S.A.1953 (Repl.Vol. 6). He does not claim this prejudiced him in any way. The bare claim, without more, provides no basis for post-conviction relief. State v. Helm, 79 N.M. 305, 442 P.2d 795 (1968); Barela v. State, 81 N.M. 433, 467 P.2d 1005 (Ct.App.1970). Further, when arraigned in district court, and while represented by counsel, he pled not guilty and proceeded to trial without asserting this claim. By so doing, he waived this asserted defect. State v. Robinson, 78 N.M. 420, 432 P.2d 264 (1967).\\n4. lie claims he has been subjected to double jeopardy as follows: \\\". He was arrested on this same charge and remained in jail for four 4 days, and was find [sic] fifty, 50.00 and put back to work on his job, and was ree [sic] arrested after paying his fine. And charged all over again for the same offense of assault this is Double Jeopardy.\\nIn arguing this fourth claim, both petitioner and the State refer to a \\\"first\\\" conviction for assault in the municipal court of Clovis, New Mexico, and the \\\"second\\\" conviction for aggravated assault affirmed in State v. Woods, supra. We do not know how Clovis may define \\\"assault\\\" in its ordinance; thus, we cannot say that the \\\"assault\\\" for which petitioner alleges he was first convicted was not a lessor offense included within the aggravated assault of \\u00a7 40A-3-2, supra. Compare State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct. App.1969).\\nState v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950) approved the rule that an acquittal or conviction for a minor offense included in a greater will not bar a prosecution for the greater if the court in which the acquittal or conviction was had was without jurisdiction to try the accused for the greater offense. This rule was applied in State v. Mares, 79 N.M. 327, 442 P.2d 817 (Ct.App.1968). Under this rule, petitioner would not have been in double jeopardy by the second conviction of aggravated assault because the Clovis municipal court had no jurisdiction to try that offense.\\nI-Iowever, the Supreme Court of the United States, by Chief Justice Burger, held this rule to be erroneous in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), reh. denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970). Thus, under Waller, supra, the prior conviction in municipal court may be a bar to subsequent prosecution in district court under the constitutional prohibition against double jeopardy.\\nWhether such a bar exists depends on the facts. If the factual basis for the alleged conviction for assault in municipal court (if in fact there be one), and the factual basis for the aggravated assault conviction differ, then there would be no double jeopardy. State v. Goodson, supra; State v. Anaya, 83 N.M. 672, 495 P.2d 1388 (Ct.App.1972); State v. Gleason, 80 N.M. 382, 456 P.2d 215 (Ct.App.1969); State v. Mares, supra.\\nThe claim of double jeopardy goes outside the record in State v. Woods, supra, and thus the \\\"files and records of the case\\\" do not conclusively show Woods is not entitled to relief under that claim. He is entitled to an evidentiary hearing on that claim, \\u00a7 21-1-1(93), supra, where the burden will be on him to prove a factual basis showing double jeopardy. State v. Gorton, 79 N.M. 775, 449 P.2d 791 (Ct.App.1969).\\nThe order denying relief without an evidentiary hearing is affirmed as to all claims except the double jeopardy claim. The order denying relief on the double jeopardy claim is reversed, and as to that claim alone, the cause is remanded for an evidentiary hearing.\\nIt is so ordered.\\nHERNANDEZ, J., concurs.\\nSUTIN, J., specially concurring.\"}"
\ No newline at end of file
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+"{\"id\": \"2770128\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ronald EVANS, a/k/a \\\"Smokey\\\", Defendant-Appellant\", \"name_abbreviation\": \"State v. Evans\", \"decision_date\": \"1973-03-30\", \"docket_number\": \"No. 1007\", \"first_page\": \"47\", \"last_page\": 51, \"citations\": \"85 N.M. 47\", \"volume\": \"85\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:11:21.209207+00:00\", \"provenance\": \"CAP\", \"judges\": \"SUTIN and LOPEZ, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ronald EVANS, a/k/a \\u201cSmokey\\u201d, Defendant-Appellant.\", \"head_matter\": \"508 P.2d 1344\\nSTATE of New Mexico, Plaintiff-Appellee, v. Ronald EVANS, a/k/a \\u201cSmokey\\u201d, Defendant-Appellant.\\nNo. 1007.\\nCourt of Appeals of New Mexico.\\nMarch 30, 1973.\\nJohn H. Lawless, Jr., Alamogordo, for defendant-appellant.\\nDavid L. Norvell, Atty. Gen., Harvey Fruman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\", \"word_count\": \"1421\", \"char_count\": \"8545\", \"text\": \"OPINION\\nHERNANDEZ, Judge.\\nDefendant was convicted on two counts of unlawful sale of marijuana (\\u00a7 54-9-3, N.M.S.A.1953 (Repl.Vol. 8, pt. 2) (Repealed)) and sentenced to two concurrent terms of not less than two and not more than ten years. On appeal defendant contends: (1) that the trial court erred in denying his motion for a change of venue due to extensive pre-trial publicity and, (2) that the trial court erred in refusing to give two instructions tendered by defendant, defendant's instructions Number 1 and Number 4.\\nWe affirm.\\nPrior to defendant's apprehension and subsequent conviction there had been much publicity given to the problem of drugs, the difficulties of apprehending drug \\\"pushers\\\" and the various possibilities for eliminating drug use in the community. Sometime before defendant's arrest a reward procedure known locally as the \\\"TIP Program\\\" was initiated in Otero County by which persons could call a telephone number, give information about possible drug abuse and perhaps be eligible for a reward. Defendant introduced many exhibits consisting of newspaper clippings and transcriptions of radio broadcasts showing the extent and duration of both the \\\"TIP Program\\\" publicity and the publicity given to the drug problem generally. In addition, defendant introduced similar evidence dealing with a drug raid held on January 22, 1972 which resulted in defendant's arrest and news articles which named defendant specifically as one of the persons arrested in the raid. Of the many exhibits on the issue of pretrial publicity introduced by the defendant, he was specifically named in only two as having been arrested in the January 22 drug raid. He contends that this publicity jeopardized his right to an impartial and unbiased jury in Otero County and that he should have been granted a change of venue to some location less tainted by the pre-trial publicity on the drug problem.\\nThe trial court conducted a lengthy hearing on the issue of pre-trial publicity and the motion for a change of venue. At the conclusion of this hearing the court denied the motion and made the following findings:\\n\\\"1. None of the publicity in the news media of Alamogordo and Otero County was shown to be prejudicial to the Defendant.\\n\\\"2. It was not shown that the Defendant is well known in Alamogordo and Otero County.\\n\\\"3. The TIP Program in Otero County was the establishing of a telephone number where persons could call and give information concerning sale or use of drugs, without having to give their name and if such information lead to the conviction of a drug pusher, such person could be eligible for a reward.\\n\\\"4. A large number of people in the State of New Mexico as well as the United States are very much aware of the drug abuse programs and publicity concerning same. The Defendant has not shown that the people of Otero County are more aware of these programs than people in any other part of the State of New Mexico and if they were, that this would prevent Defendant from obtaining a fair and impartial Jury in Otero County.\\n\\\"5. The Court finds that the Defendant can receive a fair and impartial Jury before which to stand trial.\\\"\\nA motion for change of venue which is disposed of after a hearing and upon stated findings will not be disturbed on appeal unless a clear abuse of the trial court's discretion can be shown. State v. Foster, 82 N.M. 573, 484 P.2d 1283 (Ct. App.1971); Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). In order to show abuse of discretion in denying a motion for change of venue based upon improper pretrial publicity the burden of persuasion is on the defendant and he must sustain this burden even if the State offers no contradictory evidence whatsoever. State v. Foster, supra. Defendant has made no showing in our opinion that there was even the likelihood of prejudice at his trial. He has shown merely that the problem of drug abuse and the \\\"TIP Program\\\" had been given wide coverage by the news media in Otero County. The publicity given his own arrest appears to be nothing more than the conventional coverage given arrests by news media everywhere. He was not named in the earlier news items or in anyway referred to specifically. Generalized publicity given to social problems such as drug abuse and publicity given to such things as the \\\"TIP Program\\\" does not give rise to the sort of inflammatory or prejudicial news coverage necessary to warrant a change of venue. Defendant's reliance on Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) is misplaced; the abuses in Estes were in no way akin to the publicity given defendant's arrest. Cf. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L.Ed.2d 600 (1966).\\nDefendant's requested instruction Number one, refused by the trial court, stated in pertinent part:\\n\\\"The Statutes under which this Indictment is brought read as follows:\\n\\\"54-9-3. Possession, planting, manufacture, sale, delivery prohibited \\u2014 Exceptions. \\u2014 No person shall plant, manufacture, sell, deliver or have in his possession any marijuana. \\\"54-9-4. Penalties:\\nC. Any person who has in his possession marijuana with intent unlawfully to sell, deliver or otherwise dispose of, or who sells, furnishes, gives away or delivers the marijuana to another person is:\\n(1) for the first offense, guilty of a third degree felony;\\\"\\nThe trial court's instruction Number 7 duly instructed the jury on \\u00a7 54-9-3, supra, in the express statutory language. At trial defendant, argued that the portion of the instruction based on \\u00a7 54-9-4, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp.1971), was necessary because \\\"it sets forth the unlawful intent, without which a crime does not exist.\\\" But this objection disregards the court's instruction Number 6 which required that the jury be satisfied beyond a reasonable doubt \\\"[tjhat the defendant did knowingly and intentionally sell marijuana.\\\" In his brief-in-chief defendant contends that the \\u00a7 54 \\u2014 9-4 instruction, supra, was necessary so that \\\"the jury be appraised of the offense for which he was on trial.\\\" Section 54 \\u2014 9-4, supra, goes only to the possible penalties to be imposed upon one convicted under \\u00a7 54-9-3, supra. Sentencing is not normally within the jury's province in non-capital crimes. It has long been settled in New Mexico that the jury's function is to determine guilt or innocence, not to participate in the imposition of punishment. \\\"It was no concern of the jury what punishment the law prescribed.\\\" State v. Ellison, 19 N.M. 428, 144 P. 10 (1914). The instructions tendered by the trial court contained all the necessary elements of the offense including the requisite intent. There was no error in refusing to give defendant's requested instruction Number one.\\nAs his requested instruction Number 4, defendant proffered a verdict form which stated:\\n\\\"VERDICT\\nWE, the Jury, find the Defendant guilty in the manner and form as charged in the indictment and recommend clemency.\\\"\\nThe verdict forms actually used by the trial court contained.no mention of clemency. Defendant claims that \\\"We can only speculate as to what the jury might have done if they had been given the form of verdict requested by the Defendant.\\\"\\nThis argument disregards the fact that the trial court did instruct as to clemency in its instruction Number 20 :\\n\\\"Under the laws of this State, the penalty is assessed by the Trial Judge so that, by your verdict, you will only say whether the Defendant is guilty or not guilty. In the event of a verdict of guilty you or part of you may, however, recommend the Defendant to the clemency of the Court, and any such recommendation will receive due consideration.\\\"\\nThe jury was instructed on the matter of clemency. The additional submission of a verdict form including clemency language would have been merely cumulative. Moreover, a recommendation of clemency by the jury is advisory in nature and not binding on the trial court's final determination of sentence. State v. Carabajal, 26 N.M. 384, 193 P. 406 (1920). Since the trial court had properly instructed the jury on the matter of clemency in its instruction Number 20, it was not error to refuse the verdict form tendered by defendant.\\nAffirmed.\\nIt is so ordered.\\nSUTIN and LOPEZ, JJ., concur.\"}"
\ No newline at end of file
diff --git a/nm/2771216.json b/nm/2771216.json
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index 0000000000000000000000000000000000000000..a48d85a1155ab89a646fa6440123a664f050dabc
--- /dev/null
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+"{\"id\": \"2771216\", \"name\": \"Manuel APODACA, Plaintiff-Appellant, v. Felix RODRIGUEZ, Defendant-Appellee\", \"name_abbreviation\": \"Apodaca v. Rodriguez\", \"decision_date\": \"1972-10-20\", \"docket_number\": \"No. 9467\", \"first_page\": \"338\", \"last_page\": 340, \"citations\": \"84 N.M. 338\", \"volume\": \"84\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:00.915350+00:00\", \"provenance\": \"CAP\", \"judges\": \"McMANUS and MONTOYA, JJ., concur.\", \"parties\": \"Manuel APODACA, Plaintiff-Appellant, v. Felix RODRIGUEZ, Defendant-Appellee.\", \"head_matter\": \"503 P.2d 318\\nManuel APODACA, Plaintiff-Appellant, v. Felix RODRIGUEZ, Defendant-Appellee.\\nNo. 9467.\\nSupreme Court of New Mexico.\\nOct. 20, 1972.\\nRehearing Denied Nov. 28, 1972.\\nPeter B. Shoenfeld, Santa Fe, for appellant.\\nDavid L. Norvell, Atty. Gen., Thomas A. Donnelly, Sp. Asst. Atty. Gen., Santa Fe, for appellee.\", \"word_count\": \"1076\", \"char_count\": \"6564\", \"text\": \"OPINION\\nSTEPHENSON, Justice.\\nPetitioner (Apodaca), a penitentiary inmate, petitioned the District Court of Santa Fe County for a writ of habeas corpus or mandamus seeking certain relief against the respondent warden. A writ issued commanding the warden, inter alia, to \\\"show why you should not be required to change your records to show that Petitioner's full sentence will expire on November 8, 1972 rather than May 9, 1973.\\\"\\nThe case was heard on December 30, 1971 following which the court made its decision and entered an order quashing and dismissing the writ of mandamus. Apodaca appeals.\\nIn the court below, the case involved a computation of Apodaca's sentence. A complicated problem was before the court arising from successive sentences for different crimes, revocation of a deferred sentence for violation of probation, the taking away of good time and the restoration of portions thereof. On this score, suffice it to say that Apodaca prevailed, the court having in its decision found that his release date was November 7, 1972. That date was determined by deducting from Apodaca's sentence the maximum permissible allowance for good behavior permitted by \\u00a7 42-1-54, N.M.S.A.1953, and did not take into account that as matters stood at the time of trial, Apodaca had lost twenty-five days of good time.\\nNeither party questions the correctness of the trial court's computations. The only thing Apodaca seems to be complaining about here is the trial court's failure to make the writ permanent requiring the warden to enter the release date in the prison records. Petitioner relies upon \\u00a7 42-1-31.2, N.M.S.A.1953, which provides in part:\\n\\\"Upon the superintendent's register shall be entered from time to time all alterations affecting the standing or situation of such prisoner, and any subsequent facts or personal history which may be brought officially to his knowledge bearing upon the question of the parole or final release of the prisoner.\\\"\\nThat statute does not require the entry of a prisoner's release date on any record. Rather it requires the keeping of records regarding matters which bear upon the question of final release. This is doubtless in recognition of the fact that the day when the gates will swing open is subject to change, which also accounts for the method by which the trial court determined the \\\"release day.\\\" For example, good time deductions from a sentence in specified amounts are available to convicts under \\u00a7 42-1-54, supra. Any such deductions may be forfeited for conduct violations under \\u00a7 42-1-57, N.M.S.A.1953. This has happened on several occasions in petitioner's case. Forfeited good time may be restored to a convict who is later exemplary in conduct and work performance by the provisions of \\u00a7 42-1-57.1, N.M.S.A.1953. This has also occurred in petitioner's case. In fact, Apodaca's commendable improvement in these areas has been such that his remaining forfeited good time may well be restored to him. Prisoners can also earn meritorious good time under \\u00a7 42-1-55, N.M.S.A.1953, in certain circumstances.\\nThus the actual release date may, and does, fluctuate under all or any of these statutes as applied to particular fact situations, and how the date is to be specified far in advance, is a matter upon which Apodaca sheds no light here.\\nApodaca thus cannot prevail here because the act sought to be compelled is not one specially enjoined by law upon the warden. \\u00a7 22-12-4, N.M.S.A. 1953; Witt v. Hartman, 82 N.M. 170, 477 P.2d 608 (1970); State ex rel. Sun Co., Inc. v. Vigil, 74 N.M. 766, 398 P.2d 987 (1965). Moreover, he has an area of discretion in the application of the statutes we have mentioned which cannot be controlled, even indirectly, by mandamus. State ex rel. Sun Co., Inc. v. Vigil, supra.\\nWe see nothing wrong with the warden's records. Most of the evidence elicited at trial came from them. No one asserts they are inaccurate. It is true that at trial the parties placed differing legal constructions on this factual material. However, this was threshed out below and no longer is in issue. The warden has not appealed and there is no claim that he is not bound by the trial court's decision. We have no reason to suppose that he will not comply with it, and decline to assume he will not. Thus, Apodaca has suffered no prejudice by the trial court's denial of the writ, nor is prejudice to him presently threatened.\\nThis appeal typifies the patently groundless civil proceedings prosecuted by penitentiary inmates which plague the courts and drain the public purse. Our views on the subject are well stated in the following quotation from Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969):\\n\\\"We have consistently adhered to the so-called 'hands off' policy in matters of prison administration according to which we have said that the basic responsibility for the control and management of penal institutions, including the discipline, treatment, and care of those confined, lies with the responsible administrative agency and is not subject to judicial review unless exercised in such a manner as to constitute clear abuse or caprice upon the part of prison officials. (Citations omitted.) But being fully cognizant that one does not lose all his constitutional rights when he enters a prison, (citations omitted) we have never turned a deaf ear to a bona fide claim for relief based upon the deprivation of a constitutional right when asserted by a federal or state prisoner, either in the nature of a mandamus or habeas corpus proceeding or, as here, a claim under the Civil Rights Act.\\\"\\n? payment of public moneys for attorneys' fees for this appeal is authorized by the Indigent Defense Act (\\u00a7 41-22-1 et seq., N.M.S.A.1953) it must be pursuant to \\u00a7 41-22-3. Although admittedly the proper construction of that statute is in certain circumstances obscure, suffice it to say that we doubt the legislature intended that public moneys should be disbursed to pay attorneys' fees for frivolous civil proceedings by penitentiary inmates. Accordingly, of our own initiative, we direct that no public funds be disbursed for attorney's fees in connection with this appeal.\\nThe action of the trial court is affirmed.\\nIt is so ordered.\\nMcMANUS and MONTOYA, JJ., concur.\"}"
\ No newline at end of file
diff --git a/nm/2797307.json b/nm/2797307.json
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index 0000000000000000000000000000000000000000..d8eb1179501c4ae72061d81816066a401d22c536
--- /dev/null
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+"{\"id\": \"2797307\", \"name\": \"Eloy CHAVEZ, Incompetent, by Bernabe Trujillo, as Guardian of his person and Estate, Plaintiff-Appellant, v. Joan R. LOWE and John E. Lowe, Defendants-Appellees\", \"name_abbreviation\": \"Chavez ex rel. Trujillo v. Lowe\", \"decision_date\": \"1965-01-25\", \"docket_number\": \"No. 7563\", \"first_page\": \"754\", \"last_page\": 755, \"citations\": \"74 N.M. 754\", \"volume\": \"74\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:20:04.417856+00:00\", \"provenance\": \"CAP\", \"judges\": \"NOBLE and MOISE, JJ., concur.\", \"parties\": \"Eloy CHAVEZ, Incompetent, by Bernabe Trujillo, as Guardian of his person and Estate, Plaintiff-Appellant, v. Joan R. LOWE and John E. Lowe, Defendants-Appellees.\", \"head_matter\": \"398 P.2d 622\\nEloy CHAVEZ, Incompetent, by Bernabe Trujillo, as Guardian of his person and Estate, Plaintiff-Appellant, v. Joan R. LOWE and John E. Lowe, Defendants-Appellees.\\nNo. 7563.\\nSupreme Court of New Mexico.\\nJan. 25, 1965.\\nJulius Wollen, Sutin & Jones, Albuquerque, for appellant.\\nShaffer & Butt, Albuquerque, for appellees.\", \"word_count\": \"326\", \"char_count\": \"2006\", \"text\": \"CARMODY, Chief Justice.\\nThe trial court, on motion of appellees, ordered plaintiff's complaint dismissed \\\"without prejudice to the right of the plaintiff to file his complaint in Bernalillo County.\\\"\\nAppellant appealed, solely on the ground that a guardian may bring suit to recover damages for personal injuries to his ward in the county of the guardian's residence, although the residence of the ward is elsewhere.\\nBoth appellant's appointment as guardian and his residence were in Sandoval County. When this is considered together with appellees' concession in their brief \\\"that a guardian has a right to bring a suit in the county of the guardianship it is apparent that there is little reason for further comment. However, appellees urge that there was discretion in the district court to change the venue, that there was no showing of any abuse of discretion, and that because there were no findings there is nothing to be reviewed by this court.\\nWe see no reason to discuss the questions as to discretion or abuse thereof, because quite obviously no discretion as to venue was exercised; contrariwise, the case was dismissed. Also the fact that there are no findings is of no consequence; the pleadings themselves are all that were before the trial court and are likewise before us.\\nThe sole question is strictly a legal one, i. e., whether the trial court erroneously dismissed the action. This being conceded, there is no merit to further discussion.\\nThe cause will be reversed and remanded to the district court with direction to reinstate the same on the docket and proceed in a manner not inconsistent herewith. It is so ordered.\\nNOBLE and MOISE, JJ., concur.\"}"
\ No newline at end of file
diff --git a/nm/2798278.json b/nm/2798278.json
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index 0000000000000000000000000000000000000000..9b1842e9fbe2341a66790ca9bbaca950c24d3879
--- /dev/null
+++ b/nm/2798278.json
@@ -0,0 +1 @@
+"{\"id\": \"2798278\", \"name\": \"STATE ex rel. Benjamin F. BLYTHE, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of New Mexico WITHIN AND FOR the COUNTY OF BERNALILLO and the Honorable Frank B. Zinn, as Judge by designation thereof, Respondent\", \"name_abbreviation\": \"State ex rel. Blythe v. Second Judicial District Court\", \"decision_date\": \"1965-02-22\", \"docket_number\": \"No. 7819\", \"first_page\": \"811\", \"last_page\": 811, \"citations\": \"74 N.M. 811\", \"volume\": \"74\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:20:04.417856+00:00\", \"provenance\": \"CAP\", \"judges\": \"CARMODY, Chief Justice, and CHAVEZ, NOBLE, MOISE and COMPTON, Justices, concurring.\", \"parties\": \"STATE ex rel. Benjamin F. BLYTHE, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of New Mexico WITHIN AND FOR the COUNTY OF BERNALILLO and the Honorable Frank B. Zinn, as Judge by designation thereof, Respondent.\", \"head_matter\": \"399 P.2d 294\\nSTATE ex rel. Benjamin F. BLYTHE, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of New Mexico WITHIN AND FOR the COUNTY OF BERNALILLO and the Honorable Frank B. Zinn, as Judge by designation thereof, Respondent.\\nNo. 7819.\\nSupreme Court of New Mexico.\\nFeb. 22, 1965.\\nCARMODY, Chief Justice, and CHAVEZ, NOBLE, MOISE and COMPTON, Justices, concurring.\", \"word_count\": \"77\", \"char_count\": \"464\", \"text\": \"Ordered that the petition for writ of prohibition be and the same is hereby denied.\"}"
\ No newline at end of file
diff --git a/nm/2804680.json b/nm/2804680.json
new file mode 100644
index 0000000000000000000000000000000000000000..c04e4cf90bb7424d8cc58f7e419644189c85818c
--- /dev/null
+++ b/nm/2804680.json
@@ -0,0 +1 @@
+"{\"id\": \"2804680\", \"name\": \"Eugene SILVA, Petitioner, v. Harold A. COX, Respondent\", \"name_abbreviation\": \"Silva v. Cox\", \"decision_date\": \"1966-11-14\", \"docket_number\": \"No. 8273\", \"first_page\": \"145\", \"last_page\": 145, \"citations\": \"77 N.M. 145\", \"volume\": \"77\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:14:06.657969+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eugene SILVA, Petitioner, v. Harold A. COX, Respondent.\", \"head_matter\": \"420 P.2d 131\\nEugene SILVA, Petitioner, v. Harold A. COX, Respondent.\\nNo. 8273.\\nSupreme Court of New Mexico.\\nNov. 14, 1966.\\nEdward T. Johnson, Santa Fe, for petitioner.\\nBoston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for respondent.\", \"word_count\": \"178\", \"char_count\": \"1052\", \"text\": \"OPINION\\nPER CURIAM..\\nIn this original habeas corpus action, petitioner seeks his release from the New Mexico State Penitentiary following his return as a parole violator.\\nPetitioner makes two contentions, (1) that he did not have counsel at the revocation hearing, and (2) that the allegations relied itpon by the Parole Board did not constitute a valid basis for revocation of parole.\\nBoth of these contentions are laid at rest in Robinson v. Cox, 77 N.M. 55, 419 P.2d 253, decided October 17, 1966. We find nothing in the record before us to indicate that the Parole Board acted other than properly in revoking the petitioner's parole.\\nThe writ of habeas corpus should be discharged and the petitioner remanded to the custody of the warden of the New Mexico State Penitentiary. It is so ordered.\"}"
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+"{\"id\": \"2805305\", \"name\": \"Salvador GALLEGOS, Petitioner, v. STATE of New Mexico, Respondent\", \"name_abbreviation\": \"Gallegos v. State\", \"decision_date\": \"1964-07-13\", \"docket_number\": \"No. 115 HC\", \"first_page\": \"372\", \"last_page\": 372, \"citations\": \"74 N.M. 372\", \"volume\": \"74\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:20:04.417856+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Salvador GALLEGOS, Petitioner, v. STATE of New Mexico, Respondent.\", \"head_matter\": \"393 P.2d 717\\nSalvador GALLEGOS, Petitioner, v. STATE of New Mexico, Respondent.\\nNo. 115 HC.\\nSupreme Court of New Mexico.\\nJuly 13, 1964.\", \"word_count\": \"90\", \"char_count\": \"519\", \"text\": \"PER CURIAM:\\nThis matter coming on before the Court on petition for writ of habeas corpus and for free process, and the Court having considered the petition and being sufficiently advised in the premises,\\nIt is ordered that petitioner be and he is hereby allowed free process herein.\\nIt is further ordered that the petition for writ of habeas corpus be and the same is hereby denied.\"}"
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+"{\"id\": \"2826725\", \"name\": \"STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, Plaintiff-Appellant and Cross-Appellee, v. T. E. MEARS, Jr., Ruby Mears, T. E. Mears III, and Carol M. Stephens, formerly Carol W. Mears, Defendants-Appellees and Cross-Appellants\", \"name_abbreviation\": \"State ex rel. Reynolds v. Mears\", \"decision_date\": \"1974-08-23\", \"docket_number\": \"No. 9682\", \"first_page\": \"510\", \"last_page\": 516, \"citations\": \"86 N.M. 510\", \"volume\": \"86\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:29:11.380049+00:00\", \"provenance\": \"CAP\", \"judges\": \"McMANUS, C. J., and MARTINEZ, J., concur.\", \"parties\": \"STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, Plaintiff-Appellant and Cross-Appellee, v. T. E. MEARS, Jr., Ruby Mears, T. E. Mears III, and Carol M. Stephens, formerly Carol W. Mears, Defendants-Appellees and Cross-Appellants.\", \"head_matter\": \"525 P.2d 870\\nSTATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, Plaintiff-Appellant and Cross-Appellee, v. T. E. MEARS, Jr., Ruby Mears, T. E. Mears III, and Carol M. Stephens, formerly Carol W. Mears, Defendants-Appellees and Cross-Appellants.\\nNo. 9682.\\nSupreme Court of New Mexico.\\nAug. 23, 1974.\\nDavid L. Norvell, Atty. Gen., Paul L. Bloom,_ Richard A. Simms, Special Asst. Attys. Gen., Santa Fe, for appellant.\\nLynell G. Skarda, Clovis, for appellees.\", \"word_count\": \"3377\", \"char_count\": \"19790\", \"text\": \"OPINION\\nMONTOYA, Justice.\\nThe State of New Mexico, ex rel. S. E. Reynolds, State Engineer, brought suit against defendants T. E. Mears, Jr., his wife, son and daughter, setting forth two causes of action. For the sake of clarity, the parties will be referred to by their appearance in the district court.\\nUnder count I, plaintiff sought to obtain a declaratory judgment declaring that defendants had no right to use irrigation water from the Portales Underground Water Basin, claiming that no water rights had ever been perfected for the lands in question. Under count II, plaintiff asks that defendants be enjoined permanently from using such water, alleging that the defendants had not irrigated the subject land for four consecutive years prior to June 1, 1965, without lawful excuse and, therefore, had lost the right to use water from the basin by abandonment, forfeiture, or non-use.\\nThe defendants, by their answer, claim that declarations of water rights were filed in accordance with applicable statutes and that the two wells from which water was applied to beneficial use upon their lands were drilled respectively in June 1939, and March 1947, long before the lands in question were brought into a water basin by the plaintiff. As a second affirmative defense to the first count, defendants allege that water from the two wells has been put to beneficial use upon their lands without waste and in accordance with good irrigation practices. The same defenses are asserted as to count II. Defendants also assert, as an affirmative defense to count II, that by reason of their declarations of water rights they were holders of a permit from the plaintiff and that plaintiff has not given notice required under \\u00a7 75-11-8 (A), N.M.S.A., 1953 (Repl.Vol. 11, Pt. 2, 1968), and that, therefore, their rights cannot be forfeited. They further allege, by way of affirmative defense, that no notice being given, plaintiff cannot bring this action and that defendants be allowed to show reasonable cause for the delay or non-use and apply and obtain an extension of time under \\u00a7 75-ll-8(E), N.M.S.A., 1953 (Repl.Vol. 11, Pt. 2, 1968).\\nThe case was tried to the court without a jury and judgment was entered adjudicating that the defendants have the right to apply sufficient water from two wells to irrigate pasture lands on 145 acres, but limiting defendants' use to one-acre foot per year on the 145 acres for native or permanent grasses only. The plaintiff appeals and the defendants cross appeal.\\nThe findings pertinent to this appeal are as follows: That the defendants are the owners of the NE(4 Sec. 14, T. 2 S., R. 34 E., N.M.P.M., which quarter section lies within the Portales Underground Water Basin, as declared on May 1, 1950, by the plaintiff; that on June 1, 1950, the defendants' predecessor in interest T. E. Mears filed two declarations of owner of underground water right, both of which were stipulated into evidence; that the earlier declaration No. P-79 shows that the first well drilled by T. E. Mears, the father of T. E. Mears, Jr., was in June 1939, on the SWJ4 NEJ4, Sec. 14, T. 2 S., R. 34 E., N. M.P.M., and was to irrigate the Si/\\u00bf NEJ4 NE14, a total of 100 acres in the south of the NE(4> and that the \\\"Quantity of water appropriated and beneficially used 300 acre feet per annum for irrigation purposes [;]\\\" that the later declaration No. P-95 shows that the second well drilled by T. E. Mears was in March 1947, on the NW}4 of the above section, and was to irrigate the west 45 acres of the N(4 NEJ4, a total of 45 acres, and that the \\\"Quantity of water appropriated and beneficially used 135 acre feet per annum for irrigation purposes.\\\"\\nOther findings made by the trial court are as follows: Prior to the year 1967, none of the claimed 145 acres had been cultivated, although Love grass was planted on 20 acres thereof in 1952. In 1967 the defendants, through a tenant, had the acreage plowed up, leveled and planted with alfalfa and feed grain crops to prepare the land for planting grass to be irrigated as a so-called permanent pasture. Water from wells designated P-79 and P-95 was used to irrigate these crops. The amount of water used was in excess of the amount of water used prior to 1967. In 1970 the defendants planted, and have since maintained, permanent pasture grass on all of the 145 acres on which they claim water rights, except seven acres which remain in alfalfa. The use of the land for permanent pasture is substantially similar to the beneficial use to which the appropriated water was originally applied. The leveling of the land will result in more economical use of the appropriated water. The court also found that, except as to the amount of water appropriated to beneficial use, plaintiff had failed to sustain its burden of proof as placed upon it by law, and also that plaintiff had not given defendants notice and declaration of non-use since June 1, 1965.\\nThe plaintiff sets forth two points as grounds for reversal: First, that the findings of fact and conclusions of law of the trial court do not comport with the dismissal of count I; and second, that the trial court erred in concluding that .there is no pro rata forfeiture of underground water rights.\\nThe defendants cross-appeal contending first, that the trial court did not have jurisdiction to hear this case and, secondly, that the limitation with respect to the amount of water that could be used was not within the pleadings and not at issue.\\nWe consider the contention that it was error for the trial court to dismiss count I of the amended complaint. That count sought a declaration by the court that defendants - did not have perfected rights to \\u2022 use any water upon the lands in question.\\nIn the course of the trial, evidence was adduced as to the use of the water for irrigation purposes by the defendants and their predecessors in title to the land. The declarations of a water right filed with the plaintiff state engineer were also admitted by stipulation. There was evidence on the part of the plaintiff that the land in question had neither been beneficially nor consistently irrigated. There' was expert testimony submitted by plaintiff, including photogrammetric and stereoscopic interpretation of photographs of the land, and topographic maps seeking to establish the plaintiff's allegations. The trial court's findings and conclusions, in effect, declared the defendants' rights to irrigate pasture land on the 145 acres, but limited the annual duty of water to one-acre foot for the total acreage. In view of the conflicting evidence in the record, we are not prepared to hold the evidence in support of the trial court's findings was not substantial. We do, however, hold that the dismissal of count I of the amended complaint was error, since the issues actually litigated and decided were the ones raised by that count.\\nThe next point raised in plaintiff's brief is that the lower court was incorrect as a matter of law in concluding that there was no pro rata forfeiture of underground water rights. The trial court concluded as follows:\\n\\\"4. Under Sec. 75-11-8, NMSA 1953, as amended, water rights in underground basins are not forfeited, pro tanto, for partial non-user.\\\"\\nThe above statute has never been precisely construed by this court as applied to non-use, or to partial non-use. In State v. McLean, 62 N.M. 264, 308 P.2d 983 (1957), we held that continuous t non-use through waste for more than four years was the basis for forfeiting the appropriative right. That case involved a question of waste, as defined by the artesian well statutes.\\nIn considering the rights of appropriators and the law regarding appropriation of waters from underground basins, in State v. McLean, supra, we said (62 N.M. 272-273, 308 P.2d 988):\\n\\\"Water appropriators and appropriations on each of the artesian basins of the state are numerous. The State is vitally concerned in every appropriation. The need for water is imperative, and often the supply is insufficient. Such conditions lead inevitably to many serious controversies, and demand from the state an exercise of its police power, not only to ascertain rights, but also to regulate and protect them. Regulation, however, is not confiscation. The same may be said as to adjudication. In order to deal with a problem, difficult and peculiar, if for no other reasons because of the vast number of parties and interrelated rights which may be involved, and the rule that no one has a right to use or divert water except for beneficial use is clearly indicated by the framers of our Constitution.\\\"\\nIn considering forfeiture statutes, Vol. 2, Kinney on Irrigation and Water Rights, 2d Ed., \\u00a7 1118 at 2021-2022, states:\\n\\\"Although the general rule is that forfeitures are not favored in law, and even in cases of abandonment, the evidence must be clear and convincing that it was the intent of the owner to abandon the right before the Court will decree that the right was actually abandoned, it has been the policy of the legislatures of the various States and Territories to pass enactments providing for the forfeiture of these rights for the failure or neglect, to use them for a beneficial purpose. The very life of this arid country depends largely upon the use of all of the available water supply. Therefore, by the forfeiture of the rights which are claimed by certain parties, but who fail to use them, the ends of justice are met, and the water is made to do the greatest good to the greatest number. This is upon the correct theory that the continuance of the title to a water right is based only upon continuous user; and where a person claims a certain right which he does not use for a certain period of time, the statute declares that the right to the unused portion is forfeited and available for the appropriation of others. Where these provisions are enforced, it practically disposes of the 'dog in the manger' or the 'water hog.' \\\"\\nHowever, in the instant case, the issue of forfeiture was not actually litigated. The plaintiff, in requested findings of fact, conceded that there existed some water rights in favor of the defendants, but requested a finding to establish' only a right to irrigate 48.2 acres and an annual duty of water of only one-acre foot per annum for such acreage. Consequently, the forfeiture issue need not be decided. See \\u00a7 75-11-8, supra. In the instant case the trial court properly found that the notice requirements of the said \\u2022 statute were not complied with.\\nWe answer the question raised by point II on the pro tanto forfeiture of rights by holding that the findings leading to such a conclusion should be stricken as not being properly before the court, and the judgment of the district court, insofar as it is based upon such findings and conclusions, should be reversed. The only issues properly before the court were the existence of a water right owned by the defendants, and whether the same had been lost by non-use, forfeiture or abandonment. However, no forfeiture or abandonment was found by the court to have occurred.\\nWe now consider the issue of jurisdiction raised by the cross appeal. The defendants allege that by reason of \\u00a7 8, ch. 178, Laws 1949, the court lacked jurisdiction to hear the case. Defendants contend that the only statute authorizing an injunction is ch. 178, supra, codified as \\u00a7 75-11-13 to 75-11-18, N.M.S.A., 1953 (Repl. vol. 11, Pt. 2, 1968), which provided for the regulation of the use of and drilling of wells for underground water in a declared underground basin.\\nOmitted from the codification, but cited in the footnote to \\u00a7 75-11-18, supra, is \\u00a7 8, ch. 178, Laws 1949, reading in part as follows :\\n\\\"The provisions of this act shall not apply to wells commenced or drilled prior to the effective date hereof; \\\"\\nIt would appear to us that the main purpose of this act was to regulate the drilling of wells in declared underground basins, the obtaining of permits therefor, and dealing primarily with well drilling operations after the effective date of the act. It further provided for the licensing of well drillers and for injunctive relief against owners of land who drilled wells in violation of the act, or who permitted drilling by any other than a licensed driller, or produced water from any well drilled in violation of the act. It also provided for injunctive relief against any person applying water from underground sources who had no valid right for the purpose to which the water was being applied. However, in \\u00a7 4 of the said act the following provision relating to injunctive relief was made:\\n\\\" . This provision shall in no wise be construed to affect the existing right of a court of equity in the exercise of its general equity powers to grant relief to the state of New Mexico by injunction or otherwise.\\\"\\nIt would seem to us that the last section of the act, stating that the wells drilled prior to the effective date of such act are exempt from all of the provisions of the act, does not withdraw or destroy authority conferred upon the state engineer to seek injunctive relief to protect or conserve the public waters of the state. We have held that such authority exists independently of any statute.\\nIn State v. Dority, 55 N.M. 12, 17, 225 P.2d 1007, 1010 (1950), we said:\\n\\\"The public waters of this state are owned by the state as trustee for the people, Murphy v. Kerr, D.C., 296 F. 536; and it is authorized to institute suits to protect the public waters against unlawful use, or to bring any other action whether authorized by any particular statute, if required by its pecuniary interests or for the general public welfare, 49 A.J., 'States, Territories & Dependencies', Sec. 80. \\\"\\nSee also State v. W. S. Ranch Company, 69 N.M. 169, 364 P.2d 1036 (1961).\\nIn Clodfelter v. Reynolds, 68 N.M. 61, 68, 358 P.2d 626, 631 (1961), where the authority of the state engineer to grant a permit to drill wells in the Santa Fe area was questioned, we answered this contention by quoting the trial court's conclusion of law as follows:\\n\\\" 'It is the function and duty of the State Engineer to regulate and supervise the appropriation, measurement and distribution of the public waters of the State and the apportionment thereof in accordance with the law, so as to prevent waste, prevent the improper location and drilling of wells and diversion of surface waters, to the end that said waters be conserved and be put to beneficial use as contemplated by law, and so as to protect the rights therein of appropriators in accordance with their priorities.' \\\"\\nWe therefore hold that the trial court had jurisdiction to decide the issues presented in this case.\\nThe other contention raised by defendants' cross appeal is that limitation of the amount or duty of water was not within the pleadings and not at issue. As in other appropriation states, in New Mexico a water right is measured by actual beneficial use. * Under art. XVI, \\u00a7 3, New Mexico Constitution, \\\"Beneficial use shall be the basis, the measure and the limit of the right to the use of water.\\\" In McBee v. Reynolds, 74 N.M. 783, 787-788, 399 P.2d 110, 113-114 (1965), we said:\\n\\\"Since Yeo v. Tweedy, 34 N.M. 611, 286 P. 970, it has been settled in this state that waters of underground streams, channels, artesian basins, reservoirs and lakes, the boundaries of which may be reasonably ascertained, are public and subject to appropriation for beneficial use. They are included within the term 'water' as used in Art. XVI, \\u00a7 1-3, of our Constitution. \\\"\\nTherefore, we can say that the measure of the right to appropriate water is actual beneficial use. In 5 Waters and Water Rights, \\u00a7 408.2 at 76 (Robert Em-met Clark, Editor-in-chief 1972), the following is stated:\\n\\\"The term 'duty' in relation to water use refers to quantity: the amount of water necessary for effective use for the purpose to which it is put under the particular circumstances of soil conditions, method of conveyance, topography, and climate. The legislation and the pragmatic tests applied by the courts reveal the extreme difficulty in expressing a \\u00a1precise definition or formula.\\\"\\nOriginally, our statutes set up a formula describing limits of the amount of water to be allowed so as not to be in excess of the rate of one cubic foot of water per second for each seventy acres, or the equivalent thereof, delivered on the land. Section 77-517, N.M.S.A. 1941. However, that statute has been amended several times and as now in effect is \\u00a7 75-5-17, N.M.S.A., 1953 (Repl. Vol. 11, Pt. 2, 1973 Pocket Supp.), which reads as follows:\\n\\\"In the issuance of permits to appropriate water for irrigation or in the adjudication of the rights to the use of water for such purposes the amount al lowed shall be based upon beneficial use and in accordance with good agricultural practices and the amount allowed shall not exceed such amount. The state engineer shall permit the amount allowed to be diverted at a rate consistent with good agricultural practices and which will result in the most effective use of available water in order to prevent waste.\\\"\\nAs stated in 5 Waters and Water Rights, supra, at 80:\\n\\\" . However, the calculus of duty still includes these essential factors: (1) amount of water diverted; (2) place of diversion as related to use; (3) amount necessary for particular crop or land; (4) season of the year; and (5) general irrigation or water-using practices followed in the area.\\\"\\nIn the instant case, the evidence introduced clearly indicates that the nature and extent of the water rights in question were being litigated and, therefore, the question of the water rights involved necessitated the determination of the \\\"duty\\\" of water. In effect, the \\\"duty\\\" of water is that amount of water necessary for the successful cultivation of the land and it would vary with the consideration of the various factors of \\\"duty\\\" as set forth above. In determining the extent of the water rights, the trial court concluded as follows:\\n\\\"2. The declaration of beneficial use filed by defendants' predecessor in title are prima facie evidence of the truth of their contents. The plaintiff has not overcome this prima facie evidence, except as to the amount of water appropriated to beneficial use by the declarant.\\\"\\nThe trial court considered the extent and type of use of the water in the instant case, the type of crop being irrigated, resolved the conflicts in the evidence, and concluded:\\n\\\"6. The defendants are entitled to a declaratory judgment adjudicating them to have the right to apply sufficient water from wells P-79 and P-95 to irrigate pastures on the lands described in said declaration of beneficial use, not to exceed one-acre foot per acre per annum.\\\"\\nWe cannot say that the. trial court, based on the evidence before it and the issues as framed by the pleadings, erred in making its determination and declaration of the extent of the water rights to which the defendants are entitled.\\nAccordingly, the judgment of the trial court is affirmed, except as to its dismissal of count I of the amended complaint and its conclusions as to pro tanto forfeiture, and the cause is remanded to the trial court for the entry of its decision and judgment in conformity with the views herein expressed.\\nIt is so ordered.\\nMcMANUS, C. J., and MARTINEZ, J., concur.\"}"
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diff --git a/nm/2838191.json b/nm/2838191.json
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+"{\"id\": \"2838191\", \"name\": \"Walter PRINCE, Phil Foutz, Lawrence J. Stock, Karl G. Ashcroft, Jr., Raymond Comstock, Clarence H. Williams, Charles E. Beavers, John Brimhall and Bill Davie, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF CENTRAL CONSOLIDATED INDEPENDENT SCHOOL DISTRICT NO. 22, Defendant-Appellee\", \"name_abbreviation\": \"Prince v. Board of Education of Central Consolidated Independent School District No. 22\", \"decision_date\": \"1975-12-22\", \"docket_number\": \"No. 10061\", \"first_page\": \"548\", \"last_page\": 556, \"citations\": \"88 N.M. 548\", \"volume\": \"88\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:14:53.813698+00:00\", \"provenance\": \"CAP\", \"judges\": \"STEPHENSON and MONTOYA, JJ.. concur.\", \"parties\": \"Walter PRINCE, Phil Foutz, Lawrence J. Stock, Karl G. Ashcroft, Jr., Raymond Comstock, Clarence H. Williams, Charles E. Beavers, John Brimhall and Bill Davie, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF CENTRAL CONSOLIDATED INDEPENDENT SCHOOL DISTRICT NO. 22, Defendant-Appellee.\", \"head_matter\": \"543 P.2d 1176\\nWalter PRINCE, Phil Foutz, Lawrence J. Stock, Karl G. Ashcroft, Jr., Raymond Comstock, Clarence H. Williams, Charles E. Beavers, John Brimhall and Bill Davie, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF CENTRAL CONSOLIDATED INDEPENDENT SCHOOL DISTRICT NO. 22, Defendant-Appellee.\\nNo. 10061.\\nSupreme Court of New Mexico.\\nDec. 22, 1975.\\nTansey, Rosebrough, Roberts & Gerding, Charles M. Tansey, Jr., Farmington, for plaintiff s-appellants.\\nCat\\u00f3n & Hynes, Byron Cat\\u00f3n, Farming-ton, for defendant-appellee.\", \"word_count\": \"4594\", \"char_count\": \"28147\", \"text\": \"OPINION\\nMcMANUS, Chief Justice.\\nThe plaintiffs herein all reside in the Central Consolidated Independent School District No. 22 (District) in northern New Mexico. Plaintiffs brought suit against the District in San Juan County District Court asking, first, that the court set aside a school board election and determine that a six million dollar bond issue proposed was defeated because illegal votes were cast; and, second, that the court enter a declaratory judgment finding that the District could not legally construct or improve buildings on Indian reservation land neither owned by it nor under its exclusive jurisdiction. Defendant filed a motion to dismiss both claims. After a hearing, the court granted the motion to dismiss the first claim and denied the motion as to the second claim. Trial was then held on the second claim and judgment was entered in favor of the District. Plaintiffs appeal from the court's order dismissing the first claim, and from the judgment entered in favor of the District on the second claim. We affirm.\\nThe District in which the general obligation bond issue was passed contains land both on and off the Navajo reservation, though entirely within New Mexico. Approximately two-thirds of the pupils in the District are Indian children who reside on the reservation. In accordance with the provisions of the New Mexico Enabling Act, which is embodied in article XXI of the state constitution, and also in accord- anee with the interpretation of our Enabling Act by the United States Supreme Court in Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973), the lands within the Navajo Reservation are not subject to the taxes of New Mexico. The appellants argue that the Indian citizens who reside on this nontaxable land should not have been allowed to vote in the District bond election since they do not share the burden of repayment of the indebtedness created by the issuance of the bonds. In effect, they contend that there should be no representation without taxation.\\nIn support of this argument, the appellants cite N.M.Const. art. IX, \\u00a7 11, which provides:\\n\\\"No school district shall borrow money except for the purpose of erecting, remodeling, making additions to and furnishing school buildings or purchasing or improving school grounds or any combination of these purposes, and in such cases only when the proposition to create the debt has been submitted to a vote of such qualified electors of the district as are owners of real estate within the school district and a majority of those voting on the question have voted in favor of creating such debt. No school district shall ever become indebted in an amount exceeding six per cent [6%] on the assessed valuation of the taxable property within the school district as shown by the preceding general assessment.\\\" (Emphasis added.)\\nOn four separate occasions the U. S. Supreme Court has declared unconstitutional similar statutory schemes restricting the franchise to property owners as violative of the equal protection clause. Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). In addition, the Supreme Court of New Mexico has specifically declared this provision in our state constitution to be vi-olative of the equal protection clause of the United States Constitution. Board of Education of Vil. of Cimarron v. Maloney, 82 N.M. 167, 477 P.2d 605 (1970). The only issue concerning this state constitutional provision which remains to be resolved here is whether the state has a compelling interest to exclude the reservation residents from the bond election and should, therefore, have excluded them. We look to the various U. S. Supreme Court cases cited above to answer this question.\\nIn Phoenix v. Kolodziejski, supra, the City of Phoenix, Arizona, held an election to authorize the issuance of $60,450,000 in general obligation bonds as well as certain revenue bonds. The general obligation bonds were to be issued to finance various municipal improvements. Pursuant to an Arizona constitutional provision, only otherwise qualified voters who were also real property taxpayers were permitted to vote on these bond issues. In Phoenix v. Kolodziejski, supra, 399 U.S., at 212-13, 90 S.Ct. at 1995, it was stated:\\n\\\"We thus conclude that, although owners of real property have interests somewhat different from the interests of non-property owners in the issuance of general obligation bonds, there is no basis for concluding that nonproperty owners are substantially less interested in the issuance of these securities than are property owners. That there is no adequate reason to restrict the franchise on the issuance of general obligation bonds to property owners is further evidenced by the fact that only 14 States now restrict the franchise in this way; most States find it possible to protect property owners from excessive property tax burden's by means other than restricting the franchise to property owners. The States now allowing all qualified voters to vote in general obligation bond elections do not appear to have been significantly less successful in protecting property values and in soundly financing their municipal improvements. Nor have we been shown that the 14 States now restricting the franchise have unique problems that make it necessary to limit the vote to property owners. We must therefore affirm the District Court's declaratory judgment that the challenged provisions of the Arizona Constitution and statutes, as applied to exclude nonproperty owners from elections for the approval of the issuance of general obligation bonds, violate the Equal Protection Clause of the United States Constitution. (Footnote omitted.)\\\"\\nOur own New Mexico case, Board of Education of Vil. of Cimarron v. Maloney, supra, involved a special school bond election for the purpose of voting on the question of whether the school district there involved should create a debt by issuing its general obligation bonds in the sum of $97,000 for the purpose of erecting, furnishing, remodeling and making additions to school buildings.\\nThe vote was in favor of the issuance of the bonds. When the Board of Education sought a certification of approval from the attorney general, it was refused on the grounds that there was no showing that a majority of the then owners of real estate within the school district had voted in favor of creating the general obligation bond debt as required by N.M.Const. art. IX, \\u00a7 11. This court granted the petition of the Board of Education for a writ of mandamus requiring the attorney general to approve the bond issue. Citing Phoenix v. Kolodziejski, supra, as controlling, the court stated, in Board of Education of Vil. of Cimarron v. Maloney, supra:\\n\\\"The Supreme Court of the United States has considered the very same question now before this court and has declared that a provision in a state constitution, which only allows owners of real estate to vote on the question of creating a debt through the issuance of bonds, is unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.\\\" 82 N.M. at 167, 477 P.2d at 607.\\nThe United States Supreme Court applied this same reasoning in the case of Kramer v. Union School District, supra, which involved a New York law providing that in order to be eligible to vote in certain school district elections, an otherwise qualified district resident had to be (1) the owner or lessee of taxable real property located in the district, (2) the spouse of one who owns or leases qualifying property, or (3) the parent or guardian of a child enrolled for a specified time during the preceding year in a local district school. The court held that law violated the equal protection clause of the fourteenth amendment to the U. S. Constitution because such a classification permitted inclusion of many persons who had only a remote and indirect interest in school affairs, and excluded others who had a distinct interest in school district affairs. The court went on to say:\\n\\\"Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. \\\" 395 U.S. at 626-27, 89 S.Ct. at 1889-1890 (1969).\\nAs recently as May, 1975, the United States Supreme Court held unconstitutional a Texas statute that limited voting on local bond issues to persons who had \\\"rendered\\\" (i. e. listed) real, mixed or personal property with the local tax assessor-collector for taxation in the election district in the year of the election. Hill v. Stone, supra. Referring to Phoenix v. Kolodziejski, supra; Kramer v. Union School District, supra, and Cipriano v. City of Houma, supra, the court stated:\\n\\\"The basic principle expressed in these cases is that as long as the election in question is not one of special interest, any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest.\\\" 95 S.Ct. at 1643.\\nWe conclude that, as in Kramer v. Union School District, supra, the election involved in this case was one of general rather than special interest. The State of New Mexico had no compelling interest in the exclusion of Reservation residents from the district bond election, and properly included them. The parents of the children who live on the Reservation have a distinct interest in the district affairs.\\nWe also conclude that art. IX, \\u00a7 11, of our state constitution violates the equal protection clause of the U. S. Constitution by restricting the right to vote in school district bond elections to real estate owners. Likewise, that section of our statutes which implements art. IX, \\u00a7 11, of our constitution, \\u00a7 77-15-2, N.M.S.A.1953, conflicts with the equal protection clause of the U. S. Constitution insofar as it restricts the franchise in school district bond elections to real estate owners or to those who have paid a property tax on property in the school district for the preceding year. Both attempted restrictions on the franchise are unconstitutional and must fall.\\nWhile the above considerations are determinative of the issue, there is another observation which should be made in response to appellants' claim that they will be liable for the retirement of a six million dollar bond issue despite the fact that many of the schools to be constructed and maintained with the proceeds of the bond issue will be built on the Reservation. While it is true that the Reservation Indians in the District do not pay any property taxes, it is not true that the off-Reservation property owners pay the bulk of the District taxes which will be used to repay the bonds.\\nThe appellants and appellee stipulated to the fact that the bonds will be repaid from taxes on both taxable real and taxable personal property in the District. They further stipulated that the valuation of the District's property is as follows:\\nA. Corporate Property\\nArizona Public Service $ 38,632,981.00\\nSalt River Project 5,484,230.00\\nSouthern California Edison 26,040,794.00\\nTucson Electric 9,755,130.00\\nEl Paso and other corporate 38,284,000.00\\nProduction Equipment 619,405,00\\n$118,816,540.00\\nB. Non-Corporate Property\\nValuation of fee land and non-corporate personal property 3,470,427.00\\nTotal $122,286,967.00\\nCorporate property in District 97%\\nNon-corporate property and fee land 3%\\nNot all of this corporate property is located on the Navajo Reservation, but most of it is. Those corporations which do have property located on the Reservation lease their land from the Navajo tribe. The land itself is not taxable property, but the corporate buildings and equipment on the leased land are assessed and taxed by the San Juan Board of County Commissioners as taxable personal property. Thus much of the money which will be used to repay the bond debt will be derived from corporations that lease Navajo Reservation lands.\\nAppellants argue that the Navajo Reservation Indians will not share, either directly or indirectly, in the burden of repaying the bond debt. In support of this argument appellants cite that part of the New Mexico Enabling Act which is contained in art. XXI, \\u00a7 2 of the State Constitution, and McClanahan v. Arizona State Tax Comm'n., 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). This argument raises but fails to articulate the main issue which is whether the tax imposed by the State of New Mexico on the property of corporations leasing land on the Reservation from the Navajo tribe is somehow precluded by the New Mexico Enabling Act and McClanahan, supra.\\nArticle XXI, \\u00a7 2 of the New Mexico Constitution provides:\\n\\\"The people inhabiting this state do agree and declare that they forever disclaim all right and title to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through the United States, or any prior sovereignty; and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States; [and] that no taxes shall be imposed by this state upon lands or property therein belonging to or which may hereafter be acquired by the United States or reserved for its use; \\\"\\nThis section of our constitution clearly precludes the state from taxing Indian lands and Indian property on the reservation. In McClanahan, supra, the U. S. Supreme Court interpreted an identical provision in the Arizona Constitution as prohibiting the State of Arizona from imposing its personal income tax on a Reservation Indian whose entire income derived from Reservation sources. Neither that section of the New Mexico Enabling Act quoted above, nor the McClanahan case, supra, would prevent the State of New Mexico from imposing a tax on the property of non-Indian corporations leasing land from the Navajo tribe, despite the fact that the property might be located on the Reservation. The land itself cannot be taxed, but the non-Indian property can, because such property does not belong to, nor may it be acquired by the United States or reserved for its use. It is private property owned by non-Indians who are not performing a federal function. It is subject to the taxing powers of this state. Private non-Indian corporations cannot escape their obligation to pay state taxes by locating their property on Indian reservations. Nothing that the U. S. Supreme Court has ever held would imply such an absurd result, nor is there any federal statute or treaty which forbids the imposition of such a tax, since it does not in any way infringe on the right of reservation Indians to make their own laws and be ruled by them. See Mescalero Apache Tribe v. Jones, supra; Oklahoma Tax Comm'n. v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721 (1949); United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903); Thomas v. Gay, 169 U.S. 264 (1885); Agua Caliente Band of Mission Ind. v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972); Norvell v. Sangre de Cristo Development Company, Inc., 372 F.Supp. 348 (D.N.M.1974). Cf. United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958).\\nFor all of these reasons the district court was correct in dismissing plaintiff's first cause of action, and we affirm that dismissal.\\nThe second point upon which the appellants rely is that the District has no authority to apply the proceeds obtained from the issuance of the bond towards the construction and maintenance of school buildings on the Navajo Reservation. Appellants argue that art. XII, \\u00a7 3, of the New Mexico Constitution precludes school districts from building and maintaining schools on lands located on the Navajo Reservation and leased from the Navajo tribe. That section of our constitution provides:\\n\\\"The schools, colleges, universities and other educational institutions provided for by this Constitution shall forever remain under the exclusive control of the state, and no part of the proceeds arising from the sale or disposal of any lands granted to the state by Congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.\\\"\\nThe purpose of this section of our constitution is to insure exclusive control by the state over our public educational system, and to insure that none of the state's public schools ever become sectarian or denominational. Were the state public schools to become sectarian, or even overly controlled by sectarian influences, that might well be violative of the first amendment to the U. S. Constitution which prohibits Congress and, through the fourteenth amendment, the states, from making any law respecting an establishment of religion, or prohibiting the free exercise thereof. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Zellers v. Huff, 55 N.M. 501, 236 P.2d 949 (1951).\\nHowever, even assuming that art. XII, \\u00a7 3, N.M.Const., would apply to the situation here, we see no reason to doubt that any schools built by this state on leased lands shall remain under the exclusive control of the state for so long as the term of the lease. We interpret \\\"control\\\" to mean control over the curriculum, disciplinary control, financial control, administrative control and, in general, control over all of the affairs of the school. The fact that some of the schools to be constructed from the proceeds of the bond issue will be' located on Reservation lands leased from the Navajo tribe will not prevent the state from exercising exclusive control over such schools.\\nThe District does not deny that a substantial portion of the proceeds from the bond issue would be used to construct and maintain schools located on Reservation lands leased from the Navajo tribe. In fact, they offered into evidence at the trial a fifty-year lease with a fifteen-year option between the District and the Navajo tribe relating to a certain piece of property on the Reservation on which the District intends to build a new elementary school. The lease has been approved by the Secretary of the Interior as required by 25 U.S. C. \\u00a7 415 (1970) which allows the Navajo tribe to lease land on their Reservation for educational purposes for a term not to exceed ninety-nine years. The District also introduced evidence that the useful life of a school building as established by the State Board of Education is thirty years.\\nThe appellants argue that the District will be precluded from exercising exclusive control over the schools because they will be built on land leased rather than owned by the District. We disagree. See Harris v. Keehn, 25 N.M. 447, 451, 184 P. 527, 529 (1919), where the court said:\\n\\\"[A] tenant in possession has the right to such possession against the world during the continuance of his lease and may maintain an action for damages for the disturbance or deprivation of such possession. \\\"\\nSee also White v. Board of Education of Silver City, 42 N.M. 94, 75 P.2d 712 (1938).\\nIn addition, the District offered into evidence four other leases between the District and the Navajo tribe for Reservation lands, on which schools are presently located. Unlike the situation here, those schools were built primarily with federal funds rather than bond proceeds. After reviewing these leases, as well as the other evidence introduced concerning them, the trial court found that the Board of Education \\\"as an agent of the' State of New Mexico has such exclusive control of the school system throughout the District as required by the Constitution and Laws of the State of New Mexico.\\\" In our opinion, that finding of fact was amply supported by the evidence introduced at the trial.\\nThe United States Supreme Court summarized its various decisions concern ing the states' power and jurisdiction on Indian reservations in the following way:\\n\\\"The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law. \\u00bb\\nMescalero Apache Tribe v. Jones, supra. We fail to see how Navajo tribal self-government, or the rights granted or reserved by federal law would be in conflict with the state's operation and exclusive control of the schools located on Reservation lands leased by the District with the approval of both the Navajo tribe and the Secretary of the Interior.\\nIn fact, our impression is that it has long been the policy of the federal government to encourage and support the states in providing public education to Indian children, whether they live on or off a reservation. By 25 U.S.C. \\u00a7 231 (1970), Congress authorized the Secretary of the Interior to permit the states \\\"to enforce the penalties of State compulsory school attendance laws against Indian children, and parents, The tribe must, how-ever, first adopt a resolution consenting to such enforcement.\\nIn this connection we quote from 10 Navajo Tribal Code, \\u00a7 103 (1969), as follows:\\n\\\"The Tribal Council consents to the application of state compulsory school attendance laws to the Indians of the Navajo Tribe and their enforcement on Indian lands of the Navajo Indian Reservation wherever an established public school district lies or extends within such Reservation.\\\"\\nThrough the years, Congress has also provided substantial financial assistance to state and local educational agencies for the purpose of educating Indians, such as: Impact Aid funds, granted pursuant to 20 U.S.C. \\u00a7 236-40 (1970), to compensate the local agency for the tax loss it suffers due to the non-taxable Indian lands in the district; Johnson-O'Malley funds, granted pursuant to 25 U.S.C. \\u00a7 452 (1970), to be expended for the education (and other needs) of Indians in the state; Title I (of the Elementary and Secondary Education Act) funds, granted pursuant to 20 U.S.C. \\u00a7 241a et seq. (1970), to assist local educational agencies serving areas with concentrations of children from low-income families; \\\"Public Law 815\\\" funds, granted pursuant to 20 U.S.C. \\u00a7 644 (1970), to assist those local educational agencies which suffer \\\"impairment in financing abilities created by immunity from taxation of Indian lands,\\\" in the cost of constructing schools; and Emergency School Aid Act funds, granted pursuant to 20 U.S.C. \\u00a7 1601-19 (Supp. II, III 1973), to provide financial assistance to local educational agencies to eliminate or prevent minority group (specifically including Indians) isolation and to improve the quality of education for all children.\\nIn accordance with these programs, school districts in New Mexico containing concentration of Reservation and non-Reservation Indians have applied for and received millions of dollars of assistance in providing public education to Indian children. See Natonabah v. Board of Ed. of Gallup-McKinley Cty. Sch. D., 355 F.Supp. 716 (D.N.M.1973); NAACP Legal Defense & Education Fund, An Even Chance (Jan. 1971).\\nA further indication of the Congressional policy of encouraging New Mexico to provide public education to all of its citizens, including Indians, is that part of the state's enabling act which orders that \\\"provision shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of said State and free from sectarian control, Act of June 20, 1910, ch. 310, \\u00a7 2, 36 Stat. 557.\\nThe New Mexico Constitution recites this promise in two separate places: N.M. Const, art. XII, \\u00a7 1, and N.M.Const, art. XXI, \\u00a7 4. Other states with similar con stitutional provisions have concluded that Indian children are entitled to attend state public schools, even though Indian or federal schools might also be available in the same district. Jones v. Ellis, 8 Alaska 146 (1929); Piper v. Big Pine School Dist. of Inyo County, 193 Cal. 664, 226 P. 926 (1924); Grant v. Michaels, 94 Mont. 452, 23 P.2d 266 (1933); Crawford v. District School Board for School Dist. No. 7, 68 Or. 388, 137 P.217 (1913).\\nWe recognize that the federal government, in compliance with its treaty obligations to the Navajo Tribe, has a duty to provide for education and other services needed by Indians. See Warren Trad. Post Co. v. Arizona State Tax Com'n., 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). In the instant case, we need not decide whether the federal government or the State of New Mexico has the primary responsibility to provide education for the Navajo children. It is only necessary to acknowledge that under our state constitution we have some responsibility, without deciding that it is exclusively one belonging to our state.\\nIn order to provide public schools for the Reservation children, the District has built and maintained schools on the Reservation for many years. In fact, approximately 4,100 of the 5,400 District students presently attend schools located on the Reservation. Were these children to be bused to schools located off the Reservation, as the appellants urge, some of them would be making a 150-mile round trip each day. As this court has previously stated:\\n\\\"If the districts are made so large that school children are unable to make the trip to school and back home each day, then they would be denied a free school just as effectively as if no school existed.\\\"\\nStrawn v. Russell, 54 N.M. 221, 219 P.2d 292 (1950). Furthermore, were we to hold in favor of the appellants, the District would be required to make provisions off the Reservation for these 4,100 students who presently attend schools on the Reservation.\\nThe Navajo Tribe has also supported State public education as shown in 10 Navajo Tribal Code (adopted 1969), which provides as follows:\\n\\\"(a) No rent shall ever be charged or accepted for withdrawals, permits, or leases of tax exempt Tribal land used primarily for school or other legitimate educational purposes; provided, that Navajo children or adults be admitted without discrimination to schools or other educational activities conducted on such lands.\\n\\\"(b) Such withdrawals, permits, or leases shall expressly provide that they are rent-free in consideration of the tax-exempt status of the Tribal land embraced within them and other Navajo Tribal land in the same state, and that rent on the land embraced must be paid at the reasonable appraised rental value, but at not less than $10 per acre annually, whenever any Tribal land in the same state as withdrawal, permit, or lease ceases to be tax exempt.\\\"\\nThe judgment of the trial court will be affirmed.\\nIt is so ordered.\\nSTEPHENSON and MONTOYA, JJ.. concur.\"}"
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+"{\"id\": \"2846830\", \"name\": \"Jack NICHOLS and E. C. McReynolds, Plaintiffs-Appellants and Cross-Appellees, v. John SEFCIK and Callie Sefcik, Defendants-Appellees and Cross-Appellants\", \"name_abbreviation\": \"Nichols v. Sefcik\", \"decision_date\": \"1960-02-26\", \"docket_number\": \"No. 6583\", \"first_page\": \"449\", \"last_page\": 458, \"citations\": \"66 N.M. 449\", \"volume\": \"66\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:44:45.024421+00:00\", \"provenance\": \"CAP\", \"judges\": \"CARMODY, J., and GEO. T. HARRIS, D. J., concur.\", \"parties\": \"Jack NICHOLS and E. C. McReynolds, Plaintiffs-Appellants and Cross-Appellees, v. John SEFCIK and Callie Sefcik, Defendants-Appellees and Cross-Appellants.\", \"head_matter\": \"349 P.2d 678\\nJack NICHOLS and E. C. McReynolds, Plaintiffs-Appellants and Cross-Appellees, v. John SEFCIK and Callie Sefcik, Defendants-Appellees and Cross-Appellants.\\nNo. 6583.\\nSupreme Court of New Mexico.\\nFeb. 26, 1960.\\nEmmett C. Hart, Tucumcari, for appellants.\\nRowley, Breen & Bowen, Tucumcari, for appellees.\", \"word_count\": \"3445\", \"char_count\": \"20075\", \"text\": \"MOISE, Justice.\\nThis is an action commenced by Jack L. Nichols and E. C. McReynolds to recover a commission from the defendants John and Callie Sefcik for producing a customer to whom the defendants sold the Circle S Motel owned by them in Tucumcari.\\nThe action was dismissed on motion as to the plaintiff McReynolds on the ground that he was not a licensed real estate broker under the laws of New Mexico, and was accordingly barred from bringing the action.\\nThe case proceeded as between plaintiff Nichols and the defendant and was tried to a jury resulting in a verdict for defendants.\\nBoth plaintiffs appeal and defendants have filed a cross-appeal complaining of certain rulings of the court during the trial.\\nThe pertinent facts stated as briefly as possible follow. Plaintiff Nichols was a resident of Tucumcari, New Mexico, and had engaged in the real estate business there since January 12, 1952, at which time he was licensed as a real estate salesman. He was continuously so licensed until November 9, 1956, when he was licensed as a real estate broker. In 1954, while employed as a real estate salesman by Quay County Abstract Company, Nichols obtained a listing from the defendants on the Circle S Motel. This listing was on a letterhead of the motel, contained a description of the property and the terms upon which a sale could be made and was signed by defendants. In the handwriting of plaintiff Nichols there also appeared the words \\\"5% commission listing to Jack L. Nichols.\\\" There is considerable discrepancy in the.record as to when the quoted words were placed on the listing, and whether it was before or after it was signed by defendants, and whether it was with the knowledge and consent of defendants.\\nSome time in 1957, the defendants having made additions and improvements to the property, plaintiff Nichols was advised by defendants that the price for the property was now raised to $300,000.\\nPlaintiff Nichols left the employ of Quay County Abstract Company, and after being licensed as a real estate broker he went into business for himself. When he left Quay County Abstract Company- he took the listings he had obtained including the one in controversy. This was agreeable to his employers.\\nPlaintiff McReynolds is a resident of Amarillo, Texas, and is a licensed real estate broker in Texas, but has no license in New Mexico.\\nOn September 23, 1957, plaintiff McReynolds contacted plaintiff Nichols concerning some prospective customers for a motel that he wanted to bring over to Tucumcari. Plaintiff Nichols made reservations at the Circle S Motel for plaintiff McReynolds and his customers, Don Parker and Ken Dunlap. There is some dispute in the evidence as to whether plaintiff Nichols advised the prospects when he first met them that he had a listing on the motel where' they were staying. After staying one night plaintiffs Nichols and McReynolds took the prospective customers to Las Cruces and showed them two motels and then to Alamogordo and showed them one. Plaintiff Nichols then phoned back to the Circle S in Tucumcari and again made reservations for the prospects.\\nThe next day, in the presence of defendant John Sefcik, the plaintiff Nichols told Don Parker he could buy the Circle S for $300,000, or three times the gross, whereupon Mr. Sefcik said, \\\"Jack, don't make it any worse than it is. It's three and one-half times the gross.\\\" Plaintiff McRey nolds and the prospects looked over some units at the Circle S and then returned to Amarillo.\\nPlaintiff Nichols obtained a listing on another motel in Tucumcari known as the Golden W Motel, and advised plaintiff McReynolds, who passed the information on to Mr. Parker and Mr. Dunlap, who on October 12, 1957, returned to Tucumcari without plaintiff McReynolds and without advising plaintiff Nichols. They looked at the Golden W Motel and then went to the Circle S Motel. On October 15, 1957, plaintiff Nichols went to the Circle S Motel and there found defendant John Sefcik, Mr. Parker and Mr. Dunlap apparently taking an inventory. When plaintiff Nichols asked about his commission, defendant Sefcik replied that he did not have a listing. Plaintiff Nichols said he did and the defendants Sefcik said it was forged. Later, upon being shown the listing the defendants claimed it had been revoked.\\nOn October 15, 1957, defendants entered into a contract of sale for the property to Mr. and Mrs. Dunlap for a price of $295,-000.\\nThe first error claimed to have been made by the court arose out of the ruling that plaintiff McReynolds, not being licensed in New Mexico, could not bring an action for a commission in the courts of New Mexico.\\nHe bases his contention upon the claim (1) that all of the purposes of the act are accomplished by having a licensed New Mexico broker associated in the transaction; (2) on the language of Rule 12 of the Rules and regulations of the Real Estate Board which reads as follows:\\n\\\"No licensed broker shall pay a commission or any part thereof for performing any of the acts specified in this act to any person who is not a duly licensed broker or a licensed salesman in the State of New Mexico, or who is not regularly licensed as a real estate broker or a real estate salesman in any other state having enacted a real estate license law or who is not regularly engaged in the business of a real estate broker in any state not having enacted a real estate law acceptable to this board.\\\"\\nand (3) on an asserted analogy between the situation of these two brokers and a local attorney being associated in a case in court in this state with an attorney licensed in another state, but not in New Mexico.\\nThe basis for the court's ruling is \\u00a7 67-24-15, N.M.S.A.1953, which reads as follows :\\n\\\"No action for the collection of commission or compensation earned by any person as a real estate broker or salesman required to be licensed under the provisions of this act (67-24 \\u2014 1 to 67-24 \\u2014 18) shall be maintained in the courts of the state unless such person was a duly licensed broker or salesman at the time the alleged cause of action arose.\\\"\\nReal estate broker and real estate salesman are defined as follows:\\n\\\"A real estate broker within the meaning of this act (67-24-1 to 67-24 \\u2014 18) is any person, firm, partnership, copartnership, association or corporation, who for a salary, fee, commission or valuable consideration lists, sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, or rents or offers for rent, any real estate for the improvements thereon for others, as a whole or partial vocation. The term 'real estate' as used in this act shall include leaseholds and other interests less than leaseholds.\\n\\\"A real estate salesman within the meaning of this act is any person who for a compensation or valuable consideration is employed either directly or indirectly by a real estate broker, in the pursuance of his business, as a whole or partial vocation.\\\" N.M.S.A. 1953, \\u00a7 67-24-2.\\nIt would appear that generally a person who makes an isolated sale or participates in a casual transaction is not considered to be a real estate broker under statutes placing restrictions on the practice. See note in 56 A.L.R. 486 and 167 A.L.R. 783.\\nIn the case of Haas v. Greenwald, 196 Cal. 236, 237 P. 38, 41, 59 A.L.R. 1493, the Supreme Court of California held that no commission could be recovered on the one and only transaction of the plaintiff where their statute had a special provision concerning a single transaction. The analysis and disposition of this argument is fully set forth in the following quoted from that case:\\n\\\"It is, however, contended by the appellant herein that conceding that A. M. Johnson did act in the part he took in said negotiations in the capacity of a real estate broker, his action in so doing was only in a single though twofold transaction, and not in a course of business as a real estate broker, and hence that the' inhibitive provisions of said act do not apply to him. This argument, with the authorities which are cited in support of it, might have some cogency but for the express and unmistakable terms of the statute to the contrary. The language of the concluding clause of section 2 of the act is as follows: 'One act, for a compensation, of buying or selling real estate of or for another, or offering for another to buy or sell or exchange real estate, or negotiating a loan on or leasing or renting or plac ing for rent real estate, or collecting rent therefrom, shall constitute the person, copartnership or corporation making such offer, sale or purchase, exchange or lease, or negotiating said loan, or so renting or placing for rent or collecting said rent a real estate broker within the meaning of this act.'\\n\\\"The particularity with which this clause in said act is phrased leaves no room for any other interpretation than that which its plain terms import, and which are not rendered uncertain by any other phrase or clause which said section of said act or which act as a whole contains. The authorities cited in support of the appellant's position in this regard do not sustain it for the reason, as is well illustrated by the case of Miller v. Stevens, 224 Mich. 626, 195 N.W. 481, mainly relied upon by appellant, that the statute under review in said decision omitted this very provision which our statute contains, rendering a single act of the character defined, for a compensation, sufficient to constitute the person performing it a real estate broker.\\\"\\nIn Young v. Kidder, 33 N.M. 654, 275 P. 98, this Court held under a statute requiring real estate brokers to be licensed and- to pay an occupation tax, that failure to' do so did hot bar one who made an isolated sale from collecting a commission thereon. Admittedly,' the law then differed materially from our present law. However, the law in effect when this transaction took place is very like the California law, except for the specific provision as to a single transaction, and very similar to the statute in Michigan discussed in Miller v. Stevens, 224 Mich. 626, 195 N.W. 481, and in other states included in the A.L.R. citations, supra.\\nBe all this as it may, we are somewhat at a loss to .understand plaintiffs' complaint. The case was submitted to the jury on the question of whether or not plaintiff Nichols was entitled to the full commission. No question was raised about his being the real party in interest. Also, this being a suit on a contract allegedly entered into between plaintiff Nichols and the defendant in writing, as indeed it must have been to support a recovery under the statute (\\u00a7 70-1-43, N.M.S.A. 1953; also see Traub v. Nason & Childers, 57 N.M. 473, 260 P.2d 379) how were either of the plaintiffs prejudiced by the court's actions? We conclude that if he erred, it in no way prejudiced plaintiffs, or either of them and accordingly would not be grounds for reversal in this Court. See In re Englehart's Estate, 17 N.M. 299, 128 P. 67, 45 L.R.A.,N.S., 237; Goldenberg v. Law, 17 N.M. 546, 131 P. 499; Edwards v. Peterson, 61 N.M. 104, 295 P.2d 858.\\nPlaintiffs' second point arises out of the refusal of the trial court to admit in eviT deuce letters which passed between plain tiff Nichols and plaintiff McReynolds, all showing the efforts being made by them to effect the sale. They argue that if the letters were not admissible to show the truth of their contents, that at least they should have been received to show the parties were writing back and forth.\\nObjection was made to the admission of the letters on the ground they were hearsay so far as the defendants were concerned. In sustaining the objection we are. of the opinion the court ruled correctly.\\nAs stated by Jones in his work on Evidence, \\u00a7 335 (5th Ed., 1958):\\n\\\"Manifestly it would be unsafe if, without restriction, parties to litigation were allowed to support their claims by proving their own statements made out of court. Such a practice would be open not only to all the objections which exist against the admission of hearsay in general, but would also open the door to fraud and to the fabrication of testimony.\\\"\\nSee also \\u00a7 632, Jones on Evidence (5th Ed., 1958).\\nIn 12 C.J.S. Brokers \\u00a7 113, p. 274, the following is stated:\\n\\\"Self-serving declarations, regardless of their relevancy or materiality, are incompetent, as shown in the C.J.S. title Evidence \\u00a7 216, also 22 C.J. p. 220 note 26 \\u2014 p. 231 note 77.\\\"\\nThe following cases support the rule and are in point: Electric Products Co. v. St. Louis Theater Supply Co., St. Louis Court of Appeals, Mo.1925, 273 S.W. 135; McCue v. Schweer, 221 Mo.App.1029, 295 S.W. 816; Gold v. Marshall, 1927, 260 Mass. 492, 157 N.E. 699.\\nIn the case of Massachusetts Bonding & Ins. Co. v. R. E. Parsons Elec. Co., 8 Cir., 61 F.2d 264, 92 A.L.R. 218, it was held that correspondence between principal and agent was not admissible as being self, serving and hearsay. Under somewhat different circumstances this Court in the-case of Martin v. New York Life Ins. Co., 30 N.M. 400, 234 P. 673, 40 A.L.R. 406, held it was error for the court to admit a letter from defendant addressed to plaintiff's decedent containing self serving declarations, when objected to by plaintiff.\\nWe find it difficult to imagine a more obvious situation than one such as is-here present for manufacturing evidence' helpful to plaintiffs. They were working together, and if they could build up evidence merely by corresponding back and forth, and without the defendants' - knowL edge, there would be no restraints upon them whatsoever except only those imposed by their own honesty and good faith. The law has not seen fit to permit such, evidence admitted, and thus would over coin\\u00e9.' any temptation to manufacture evidence of-this type. That it should'be otherwise, we> certainly are not prepared to say.\\nAppellants next complain of the court's refusal to admit in evidence a financial statement of the defendants for the purposes of impeachment and as an admission against interest\\nThe defendants' accountant was placed on the stand and identified certain documents as having been prepared by him. Included among these papers was a financial statement setting forth the assets owned by defendants, their liabilities and their net worth as of December 31, 1957. Their income tax return for the year 1957, showing as one item of expense in connection with the sale of the motel an item of $15,000 commission, was identified and admitted in evidence, with all supporting exhibits. However, upon objection the financial statement was excluded.\\nIt is plaintiffs' theory that somehow the reduction in the price of the court from $300,000 to $295,000, which was the sale price shown on the tax return and in the contract of sale, plus $10,000 which it was testified was loaned or to be loaned to the purchasers by the defendants totaled $15,000, was in effect a reduction in price in an amount equal to the commission as shown on the tax return. The financial statement admittedly did not show any indebtedness of $10,000 owing to the defendants, which they explain by saying the money had not been advanced as of that date. Also, the commission item in the tax return is explained as being proper as a contingent indebtedness since the defendants reported their taxes on an accrual basis.\\nInasmuch as the accountant testified that no $10,000 indebtedness appeared on the financial statement, we do not perceive that plaintiffs were prejudiced by the court's refusal to admit the statement. It would have served no useful purpose and would have been prejudicial to the defendants to have evidence of their other assets not involved in the litigation and their net worth go before the jury. This certainly had nothing to do with the merits of the litigation and could very well have given the jury something entirely extraneous for their consideration in arriving at a verdict. See 20 Am.Jur. 250, \\\"Evidence\\\" \\u00a7 259. Its exclusion was not error.\\nPlaintiffs' fourth and last point relied on for reversal results from the court's refusal to allow plaintiff McReynolds to testify concerning contradictory statements made to him by the witness Hutchens.\\nThis witness, at the time of the trial, was associated with plaintiff Nichols in the real estate business, and testified that he kept the records in the office, including the listings and that there had never been a listing in the office on the Circle S. Motel. On cross-examination he was asked if he had ever discussed the transaction with plaintiff McReynolds. The witness denied ever discussing the case with Mr. McReynolds in Tucumcari or Amarillo or that lie had told Mr. McReynolds that the defendant \\\"quoted this price of 300 thousand.\\\"\\nThereafter, Mr. McReynolds was placed upon the stand and was asked whether or not he had certain conversations with the witness Hutchens both in Tucumcari and in Amarillo and to state the substance of the conversations. The court ruled that he could say whether or not he had the conversations, but could not detail the substance of these conversations. This is the ruling asserted to be erroneous.\\nWe have a statute which reads:\\n\\\"If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given that he did in fact make it, but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he did make such statement.\\\" \\u00a7 20-2-2, N.M.S.A. 1953. (Emphasis supplied).\\nIn order to impeach a witness for prior inconsistent statements it thus appears there must first be a foundation laid of the time, place and details of the statement in the examination of the witness being impeached. In the instant case even the time and place were not too definitely fixed on the cross-examination, but the court ruled that the impeaching witness could be asked about the claimed occasion which had been denied by the witness. However, the witness being impeached had not been asked whether or not at the time and place in question he had said certain things, excepting only the single statement quoted above, and where counsel for plaintiffs merely asked Mr. McReynolds to relate what was said without asking him directly if the specific statement inquired about had been made, the court excluded it. That the court properly ruled cannot be open to question.\\nHowever, plaintiffs would avoid the effect of the statute by stating that since the witness denied making any statement there was no necessity of stating the specific language it is claimed he had used. With this we do not agree. The rule is intended as a protection to the witness not the parties. State v. Carabajal, 26 N.M. 384, 193 P. 406, 17 A.L.R. 1098. Possibly, if the statement had been related to the witness he would have recalled it, or could have explained. However, if his mind is not alerted to what it is claimed he said, it is entirely possible that he might have forgotten it. Also, to permit the impeaching witness to freely state anything that he claims to recall would in effect open the doors to statements never before made or claimed to have been made and ,-would throw down all bars of restraint. See annotation in 16 A.L.R. 984.\\nSince we do not find any of the claimed errors to have any merit it is not necessary for us to consider the cross-appeal.\\nFor the reasons stated, the judgment of the trial court will be affirmed.\\nIt is so ordered.\\nCARMODY, J., and GEO. T. HARRIS, D. J., concur.\\nMcGHEE, C. J., and COMPTON, J., dissent.\"}"
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+"{\"id\": \"2847182\", \"name\": \"CITY OF ROSWELL, Plaintiff-Appellee, v. Dick FERGUSON, Defendant-Appellant\", \"name_abbreviation\": \"City of Roswell v. Ferguson\", \"decision_date\": \"1959-09-10\", \"docket_number\": \"No. 6521\", \"first_page\": \"152\", \"last_page\": 155, \"citations\": \"66 N.M. 152\", \"volume\": \"66\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:44:45.024421+00:00\", \"provenance\": \"CAP\", \"judges\": \"McGHEE, COMPTON, CARMODY and MOISE, JJ., concur.\", \"parties\": \"CITY OF ROSWELL, Plaintiff-Appellee, v. Dick FERGUSON, Defendant-Appellant.\", \"head_matter\": \"343 P.2d 1040\\nCITY OF ROSWELL, Plaintiff-Appellee, v. Dick FERGUSON, Defendant-Appellant.\\nNo. 6521.\\nSupreme Court of New Mexico.\\nSept. 10, 1959.\\nWm. W. 'Osborn, Roswell, for appellant.\\nJames B. Stapp, Roswell, for appellee.\", \"word_count\": \"1153\", \"char_count\": \"6764\", \"text\": \"LUJAN, Chief Justice.\\nThis was an action for the violation of a city ordinance on November 14, 1957, originally brought and tried before the police judge of the city of Roswell, New Mexico. The accusation was that the defendant operated a motor vehicle on the streets of the city of Roswell while under the influence of alcoholic beverages contrary to Ordinance No. 686. He was found guilty and a fine was assessed against him. From this judgment he appealed to the district court of Chaves County. On trial in the district court the defendant was found guilty of violating the above numbered ordinance and was ordered to pay a fine in the sum of $175, and his driver's license was suspended for a period of one year. In this appeal he challenges the sufficiency of the evidence to sustain the conviction and the judgment and sentence of the court, and the authority of the court to suspend his driver's license.\\nAt the conclusion of all of the evidence the trial court made the following finding of fact which it incorporated in its judgment:\\n\\\"That Defendant J. T. Ferguson is guilty beyond a reasonable doubt of the charge of operating a motor vehicle while under the influence of intoxicating liquor, contrary to the provisions of Ordinance No. 686 of the City of Roswell, as charged in the complaint herein.\\\"\\nDefendant-appellant relies for reversal of the judgment of the district court on these propositions:\\n(1) That the judgment of the district court is not supported by substantial evidence ; (2) that the evidence does not support the burden of showing that the defendant was guilty beyond a reasonable doubt, necessary in criminal prosecutions; and (3) that the court erred in revoking the appellant's driver license.\\nThe first and second propositions are untenable. An examination of the record discloses that there was substantial evidence to sustain the finding of fact upon which the judgment of guilty of violation of City Ordinance No. 686 was necessarily predicated, and that the state proved that the defendant was guilty beyond a reasonable doubt of operating a motor vehicle while under the influence of intoxicating liquor on the streets of the City of Roswell. For example, Milton W. Matson, a city policeman testified that while he and policeman Charles Crume were parked at Walnut and Main Streets they observed an automobile go by without any headlights on; that they pursued the car in order to have the driver thereof turn on the headlights; that while following the car they noticed it weaving quite badly in the traffic lane; that at Fourth and Main Streets, in obedience to a red light, the appellant stopped his car and they pulled the police car alongside his car, and told him they would like to talk to him; that Officer Crume got out of the police car and told the appellant he would like to drive his car to the curb; that appellant complied with the request; that while talking to appellant they detected a strong odor of liquor on his breath; that when he got off his car he was wobbly on his feet; and that his speech was impaired to some extent. He further testified that appellant was then and there placed under arrest and taken to police headquarters where he was charged with operating a motor vehicle while under the influence of intoxicating liquor; and that he was offered an alcoholic blood test but appellant refused to sign a consent form stating that he did not want one.\\nOn direct examination Officer Matson testified:\\n\\\" Q. From your observation of the defendant at that time and place what can you say with reference to his sobriety? A. To my knowledge and belief the defendant was in no con dition to be operating a vehicle on the Streets.\\n\\n\\\"By the Court: Can you state positively in your opinion he was under the influence of intoxicating liquor at the time you stopped him? A. Yes, sir.\\\"\\nOfficer Charles Crume corroborated Officer Matson in every particular.\\nOn direct examination he testified:\\n\\\" Q. Did you have the opportunity to observe his manner of walking? A. Yes, sir, the defendant got out of his car and we noticed at that time he was very unsteady on his feet and he had a strong odor of some intoxicant on his breath and about his person.\\n\\\"Q. From your observation of Mr. Ferguson at that time and place what can you state with reference to his sobriety? A. I believe he was not in any condition to be driving a car on the streets.\\n\\\"By the Court: Why was he not in no condition to drive? A. To me it seemed he was drunk.\\n\\n\\\"The Court: You understand that the outcome of this case must of necessity depend to some extent upon opinion evidence with reference to this man's sobriety giving the defendant the benefit of the doubt, can you state positively this man was under the influence of intoxicating liquor at the time you stopped him at Fourth and Main Streets? A. Yes sir.\\\"\\nWe are satisfied that there was ample evidence, of a substantial nature, submitted on the question of appellant's state of intoxication, which fully justified the court's finding and the same will not be disturbed by this court. Flippo v. Martin, 52 N.M. 402, 200 P.2d 366; Staley v. New, 56 N.M. 756, 250 P.2d 893.\\nUnder his third proposition appellant contends, and we agree, that the trial judge erred in revoking his driver's license, in view of the provisions of Section 64-22-2 (d) of the 1953 Compilation, which vests upon the Commissioner of Motor Vehicles, and he only, the right to revoke licenses to operate motor vehicles where the owners of such licenses are found guilty of driving .motor vehicles while under the influence of intoxicating liquors.\\nChapter 179, Section 304(a) (b) Session Laws of 1955, provides that upon the conviction of a person for operating a motor vehicle while under the influence of intoxicating liquor the court in which such conviction is had shall require the surrender of the operator's license then held by such person and shall thereupon forward the same together with a record of such conviction to the division. (Emphasis ours.)\\nSection 305 of the above chapter provides :\\n\\\"The division shall forthwith revoke the license of any operator upon receiving a record of such operator's conviction when such conviction has- become final.\\\"\\nThe judgment is reversed and the cause remanded with a direction to' the district court to set aside the judgment insofar as it revokes appellant's driver license. It is affirmed in all other respects.\\nIt is so ordered.\\nMcGHEE, COMPTON, CARMODY and MOISE, JJ., concur.\"}"
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+"{\"id\": \"2847772\", \"name\": \"William M. ROSS, Claimant, Plaintiff-Appellant, v. MARBERRY & COMPANY, Inc., Employer, and Maryland Casualty Company, Insurer, Defendants-Appellees\", \"name_abbreviation\": \"Ross v. Marberry & Co.\", \"decision_date\": \"1960-01-29\", \"docket_number\": \"No. 6606\", \"first_page\": \"404\", \"last_page\": 410, \"citations\": \"66 N.M. 404\", \"volume\": \"66\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:44:45.024421+00:00\", \"provenance\": \"CAP\", \"judges\": \"COMPTON, CARMODY and MOISE, JJ., concur.\", \"parties\": \"William M. ROSS, Claimant, Plaintiff-Appellant, v. MARBERRY & COMPANY, Inc., Employer, and Maryland Casualty Company, Insurer, Defendants-Appellees.\", \"head_matter\": \"349 P.2d 123\\nWilliam M. ROSS, Claimant, Plaintiff-Appellant, v. MARBERRY & COMPANY, Inc., Employer, and Maryland Casualty Company, Insurer, Defendants-Appellees.\\nNo. 6606.\\nSupreme Court of New Mexico.\\nJan. 29, 1960.\\nWilson, Ahern & Montgomery, Albuquerque, for appellant.\\nRodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Albuquerque, for appellees.\", \"word_count\": \"2099\", \"char_count\": \"12125\", \"text\": \"McGHEE, Chief Justice\\nThis was a claim for compensation brought under the provisions of the New Mexico Workmen's Compensation Act for injuries sustained when appellant's car swerved off the road and overturned as he was on his way to work.\\nThe case was tried on appellant's deposition and the facts contained therein were undisputed. On the basis of this testimony the trial court ordered the claim dismissed on the ground that appellant's injuries did not result from an accident arising out of and in the course of his employment.\\nThe appellant was employed by appellee as a carpenter. His normal working day began at 8:00 a. m. On the afternoon of the day prior to the accident, however, appellee directed him to report for work the next day a little earlier than usual for the purpose of accomplishing the repair and adjustment of a door which was not working properly at one of appellee's model homes so that the house would be open for inspection by prospective buyers before 8:00 a m., and so that appellant's helpers would not be idle while he performed this task. In order to complete this job before 8:00 a. m., the appellant was obliged to leave his home 25 minutes early.\\nSince appellant's tools were always kept at 1308 Valencia Dr., N.E., the route he took from his home in Los Lunas to Albuquerque was exactly the same as on any other day. He intended to pick up his tools and then proceed to the model house. As he traveled along his usual route, a mechanical failure caused his pick-up to swerve off the road and overturn, severely injuring him.\\nAppellant's employment began when he arrived at work. He was not reimbursed for traveling expense nor was he paid overtime when he began work early or ended it late. He ordinarily was paid for extra time worked by what in effect amounted to an exchange of time at the other end of the working day.\\nThe statutory language pertinent to this case is as follows :\\n\\\"The right to the compensation provided for in this act , shall obtain in all cases where the following conditions occur: (b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment. \\\" \\u00a7 59-10-6, 1953 N.M. S.A.\\n\\\" injuries to workmen, shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, \\u00a7 59-10-12(1), 1953 N.M.S.A. (Emphasis added).\\nThe latter provision incorporates into our statutes the so-called \\\"going and coming\\\" rule.\\nThis rule is subject to an exception, however. This is stated in 1 Campbell on Workmen's Compensation 173, as follows:\\n\\\"Where an employee is requested by his employer to return and do 'a service outside his regular duty,' the sole purpose of which was to help his employer in the latter's business, a different rule applies, and the employee is then on a special errand. The special request for unusual service is the decisive factor which brings the employee, throughout the entire trip to and from the place of business, in the course of rendering a service for the employer.\\\"\\nWith the foregoing in mind then, the issue decisive of this appeal may be stated thus: Does the mere fact that appellant, at the request of his employer, departed twenty-five minutes early for work and his usual destination, following his usual route, in order to accomplish a task which was one of his regular duties, constitute a \\\"special errand\\\" which takes him out of the operation of the \\\"going and coming\\\" rule?\\nIn an effort to elicit an affirmative answer to this question appellant cites several cases from other jurisdictions which have dealt with similar fact patterns.\\nThe first case on which appellant heavily relies is Cavness v. Industrial Commission, 1952, 74 Ariz. 27, 243 P.2d 459. Cavness was employed by the State of Arizona as secretary of the Livestock Sanitary Board. His office hours were set by statute at 9:00 a. m. to 5:00 p. m. on weekdays and 9:00 a. m. to 1:00 p. m. on Saturday. \\\"He received numerous telephone calls at his home after office hours and was required to expedite the business of the Sanitary Board regardless of the hour. In short, according to the testimony of all members of the Sanitary Board, he was subject to twenty-four hour call and expected to handle all matters pertaining to the Board's functions.\\\"\\nOn the morning of the accident, Cavness left his home an hour earlier than usual in order to deliver certain documents to one of his inspectors. On his way to his office he was involved in a collision and killed. The court held that he was entitled to compensation.\\nAlthough there is an obvious similarity between the' facts of this case and the one at bar, closer examination reveals a crucial distinction. As the court stated in that case:\\n\\\" the trip was made in order to discharge a duty which the board required and expected him to perform outside of and in addition to the office hours required of him\\nCavness' office hours were set by statute and he was required to maintain them in spite of special missions like the one in which he was engaged at the time of his death. In the case at bar, appellant was required to work but eight hours a day and if he started early he could quit early. He was neither expected nor required to perform duties in addition to his eight-hour work day.\\nAnother case relied on by appellant is Los Angeles Jewish Community Council v. Industrial Acc. Comm., 1949, 94 Cal.App.2d 65, 209 P.2d 991. There Mr. Cohn, a part time librarian, was requested to come to the library early that evening to inspect and discuss certain purchases. Mr. Cohn left his home approximately a half hour earlier than usual and was struck by an automobile and killed in the vicinity of the library.\\nThe court affirmed the commission's award of compensation holding that Mr. Cohn was engaged' in a \\\"special mission\\\" at the time of his death.\\nThere, however, in addition to the time element the claimant was on his way to perform services which the court held were not part of his usual duties. This very important factor is not present in the case before us since appellant was to perform his usual duties.\\nThe third case on which appellant heavily relies is Fenton v. Industrial Accident Commission, 1941, 44 Cal.App.2d 379, 112 P.2d 763. Late Saturday afternoon, Fenton was given a number of files and instructed to investigate several relief applicants before returning to the office on Monday morning and was killed at a railroad crossing which was situated on the usual route to his office a short distance before he was to turn off for the first interview.\\nThe court unanimously held that Fenton was entitled to compensation. This situation differs from our case in two important respects. First, Fenton was paid mileage by his employer and Ross was not; secondly, Fenton was not actually going directly to his usual destination, i. e. his place of business, while Ross was going directly to the place where his tools were kept as he did every day.\\nAll of the cases cited by appellant as authority for holding that leaving for work at an earlier hour than usual constitutes an exception to the \\\"going and coming\\\" rule differ from the case at bar in that they contain one or more factors in addition to the time element.\\nIn Chernick's Case, 1934, 286 Mass. 168, 189 N.E. 800, the court dealt directly with the effect of leaving home at an earlier than usual hour as in itself constituting a \\\"special mission.\\\"\\n' Chernick Was an account collector for an installment furniture house. He normally made collections during the day, returned that evening to the office, turned in the proceeds and obtained account cards for the next day's collections. On the day before he was killed, Chernick failed to return to the office in the evening and was ordered by his employer to leave his house earlier the next day in order to return some change to a customer and to perform the duties not completed the previous day. As he proceeded along his usual route, and before he reached the point where he would have turned off his regular route to the office to return the change, he was involved in the fatal collision.\\nThe court held that Chernick was not engaged in the business of his employer at the time of the accident and was not entitled to compensation and further said:\\n\\\"Nor do we think the order to leave 'earlier in the morning and take care of these (unperformed) duties' created a special employment\\nVoehl v. Indemnity Ins. Co., 288 U.S. 162, 163, 53 S.Ct. 380, 383, 77 L.Ed. 676, 87 A.L.R. 245, was an action for compensation by an injured employee brought under the Longshoremen's and Harbor Workers' Compensation Act, U.S.C.A. Title 33, \\u00a7 901-950.\\nThe workman was injured while on his way to the employer's warehouse for the purpose of clearing it of debris in accordance with his duties, and while so engaged on Sunday the terms of his employment covered the period of service from the time he left home until his return, his compensation for this service being at an agreed rate per hour for the entire time with an allowance for his transportation. Chief Justice Hughes stated:\\n\\\"While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. An agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service, and hence within the purview of the Compensation Act.\\\"\\nIt is clear that absent the agreement set out above compensation would have been denied, and the rationale of the case is authority for denying compensation here.\\nIn Church v. Ingersoll, 10 Cir., 1956, 234 F.2d 176, it was held that where a ranch hand merely returned to his employer's ranch on Sunday to complete a regular task which he had not finished on Saturday, and the only resemblance to a special errand was the fact that such employee did not ordinarily work on Sunday, the special errand exception was inapplicable to third parties' actions against the ranch hand who became involved in an accident while driving his own truck home from the ranch on Sunday even if full sweep is given to the special errand exception to the so-called coming and going rule as such exception is applied in workmen compensation cases.\\nWe believe the three cases last cited afford ample authority for holding that merely leaving for work at an earlier time is not sufficient to constitute a \\\"special mission\\\" and avoid the pronouncement of the \\\"going and coming\\\" rule as embodied in \\u00a7 59-10-12(0, 1953 N.M.S.A.\\nWe have frequently held that our Workmen's Compensation Act is to be liberally construed in favor of the claimant. Gonzales v. Chino Copper Co., 1924, 29 N.M. 228, 222 P. 903; Stevenson v. Lee Moor Contracting Co., 1941, 45 N.M. 354, 115 P.2d 342; Lipe v. Bradbury, 1945, 49 N.M. 4, 154 P.2d 1000. However, as we also held in Martin v. White Pine Lumber Co., 1930, 34 N.M. 483, 284 P. 115, liberal construction does not mean a total disregard for the statute, or repeal of it under the guise of construction.\\nWe therefore hold that appellant's injuries did not result from an accident aris-. ing out of and in the course of his employ ment and that the trial court did not err in dismissing his claim.\\nThe judgment is affirmed and it is so ordered.\\nCOMPTON, CARMODY and MOISE, JJ., concur.\\nCHAVEZ, J., not participating.\"}"
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+"{\"id\": \"2851584\", \"name\": \"Lassella M. FITZGERALD, Plaintiff-Appellee and Cross-Appellant v. Leslie M. FITZGERALD, Defendant-Appellant and Cross-Appellee\", \"name_abbreviation\": \"Fitzgerald v. Fitzgerald\", \"decision_date\": \"1962-02-28\", \"docket_number\": \"No. 6963\", \"first_page\": \"11\", \"last_page\": 15, \"citations\": \"70 N.M. 11\", \"volume\": \"70\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:08:55.049389+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHAVEZ and MOISE, JJ., concur.\", \"parties\": \"Lassella M. FITZGERALD, Plaintiff-Appellee and Cross-Appellant v. Leslie M. FITZGERALD, Defendant-Appellant and Cross-Appellee.\", \"head_matter\": \"369 P.2d 398\\nLassella M. FITZGERALD, Plaintiff-Appellee and Cross-Appellant v. Leslie M. FITZGERALD, Defendant-Appellant and Cross-Appellee.\\nNo. 6963.\\nSupreme Court of New Mexico.\\nFeb. 28, 1962.\\nEdwin L. Felter, Santa Fe, for appellant.\\nJ. H. Burttram, Santa Fe, for appellee.\", \"word_count\": \"1514\", \"char_count\": \"8752\", \"text\": \"NOBLE, Justice.\\nThis appeal is from the division of community property and an award of alimony to the wife in a divorce action. The wife has cross-appealed from the property division and the refusal to grant her attorneys fees.\\nThe division of community property is challenged by appellant on the ground that item values of the community property used as a basis for the division of the property are based upon speculation and conjecture and are not supported by substantial evidence. This court has repeatedly held that findings may not rest upon mere speculation and conjecture. Petrakis v. Krasnow, 54 N.M. 39, 213 P.2d 220; Southern Union Gas Co. v. Cantrell, 56 N.M. 184, 241 P.2d 1209. Expert testimony founded upon mere surmise, guess or conjecture is not substantial to* support a finding of fact. Citizens Finance Co. v. Cole, 47 N.M. 73, 134 P.2d 550; White v. Valley Land Co., 64 N.M. 9, 322 P.2d 707.\\nSpecifically, it is contended that the trial court necessarily arrived at its item values of the community property from the testimony of R. C. Stephens. Appellant asserts that the testimony of the witness lacks substantial character to support the findings of values and is based upon mere conjecture and speculation because he had only appraised one piece of real estate in Pecos within the past year and only three or four within a three-to five-year .period; that he could not recall prices for which specific real estate sales had been made in the immediate area; and, that in answer to a specific question as to whether his estimate of the values was based upon a guess, he answered: \\\"any appraisal is a guess.\\\"\\nUnder well-established principles, we will view the evidence in an aspect most favorable to the judgment. Southern Union Gas Co. v. Cantrell, supra; Brown v. Cobb, 53 N.M. 169, 204 P.2d 264. And, we will not disturb a finding, supported by substantial evidence, nor will we weigh conflicting evidence. Baker v. Storie, 67 N.M. 27, 350 P.2d 1039; Maryland Cas. Co. v. Jolly, 67 N.M. 101, 352 P.2d 1013; Jones v. Jones, 67 N.M. 415, 356 P.2d 231; Pentecost v. Hudson, 57 N.M. 7, 252 P.2d 511; Luna v. Flores, 64 N.M. 312, 328 P.2d 82.\\nWe have carefully reviewed the evidence. The witness Stephens testified that he has been engaged in the real estate and insurance business in Las Vegas, New Mexico for many years, and has been an appraiser for the First Federal Savings & Loan Association of Las Vegas for six or seven years. The area of his real estate business and-appraisals includes Pecos, New Mexico where the property in question is located. He testified that his opinion as to values was based upon his experience in the real estate business and as an appraiser; the appraisals he had made in the immediate area; the fact that this property is located in a recreational area; and, his knowledge of sales in adjacent areas. He personally inspected these properties and testified that the Building & Loan Association for which he appraised made loans up to 70% of his appraisals. As we view his testimony, it was not based upon mere surmise, guess, speculation or conjecture. Appellant argues that the trial court should have based' its findings of values upon the testimony of a witness produced by appellant whom they say was better qualified. Appellant's contention goes rather to the weight to be given .to the tesitmony and to the credibility of the witness and these are to be determined by the trier of the facts, not by an appellate court. Galloway v. White, 64 N.M. 470, 330 P.2d 553. We conclude that the evidence substantially supports the findings of value. Fulwiler v. Traders & General Ins. Co., 59 N.M. 366, 285 P.2d 140.\\nAppellant argues that a wife who voluntarily leaves a proper home is not entitled to alimony as a matter of law. The answer to that contention is supplied by \\u00a7 22-7-6, N.M.S.A.1953, which provides so far as material here: \\u2022 :\\n\\\" the court on final hearing, may allow the wife such a reasonable. portion of the husband's separate property, or such a reasonable sum of money to be paid by the hus band, either in \\u00e1 single sum, or in instalments, as alimony, as under the circumstances of the case may seem just and proper; and may modify and change any order in respect to alimony allowed the wife, whenever circumstances render such change proper; \\u00bb\\nand by our decisions in Cassan v. Cassan, 27 N.M. 256, 199 P. 1010; and Redman v. Redman, 64 N.M. 339, 328 P.2d 595 where it was held:\\n\\\" this section constitutes a clear and unequivocal grant of power to district courts to award the wife, in divorce actions, reasonable alimony, in installments or lump sums, independent of which spouse may have been the guilty party. The power is limited only to the grant of a reasonable sum, as that factor is limited by the facts of the particular case.\\\"\\nAppellee was 59 years of age, completely lacking in training or experience for most employment, and had some physical disability in the form of mild hypertension. She had done some clerical work for a short time, and once worked as a telephone operator before her marriage in 1920. Appellant was 60 years of age, a physician with an active practice from which he has grossed $18,000 to $20,000 per year in the past. In 1959, he had a net income of $14,500. He has become 50% disabled to practice his profession but earned $5,232 during the first nine months of 1960 even though prevented by illness from practicing during the first three and one-half months of that period.\\nThe trial court had power to grant alimony in a \\\"reasonable sum,\\\" and on appeal this court examines the evidence only to determine whether the trial court abused its discretion in fixing an amount which was contrary to all reason. Jones v. Jones, supra; Cassan v. Cassan, supra; Redman v. Redman, supra. From a review of the evidence, we are not able to say that in this case an award of $175 per month as alimony amounted to an abuse of discretion.\\nBoth parties agree that the decree contains an obvious clerical error in the division of the community property. There was testimony that the value of the four-room house was $8,600 and the furniture and personal property therein $1,250, a total of $9,850. The court found the value of the house to be $9,850 and the contents $1,250. This property was awarded to appellee. It is agreed that in the division of the community property the amount of $1,250 was duplicated in making the award to appellee. This was an obvious clerical error and should be corrected.\\nBy her cross-appeal appellee urges error in that she was awarded property having a value of less than one-half of the community property. The decree shows the value of property awarded to her to be $48,543.90; but the error of $1,250, above pointed out; must be deducted from this, leaving the value of the property awarded to her as $47,293.90. The value of the property awarded to appellant was $53,-168.50. Each party was awarded one-half of the kitchen utensils.\\nIt is the duty of the court to divide equally the property of the community. Sands v. Sands, 48 N.M. 458, 152 P.2d 399; Beals v. Ares, 25 N.M. 459, 185 P. 780.\\nFinally, appellee (cross-appellant) complains that it was error to deny her attorneys fees. The trial court has authority to award the wife attorneys fees in a divorce action, but such award is discretionary with the court and will be reviewed only as to whether there has been an abuse of discretion. Jones v. Jones, supra; Redman v. Redman, supra; Cassan v. Cr\\u00abssan, supra. In view of the value of the property awarded the wife on division of the property and the alimony granted, we cannot say that the court abused its discretion in denying her attorneys fees.\\nAppellee has filed a motion for an award of attorneys fees for this appeal. On authority of Jones v. Jones, supra, we believe there should be an. allowance to appellee of attorneys fees on appeal .of $750 taxed as costs to appellant.\\nThe-'judgment will' be affirmed except as to the division of the community property. The cause will be remanded with instructions to correct the value of the four-room house and furniture therein, and to divide the community property equally between the parties, by an award of a portion thereof in money, if that be necessary to effect an equal division. Attorneys fees in the sum of $750 are to be taxed against appellant.\\nIt is so ordered.\\nCHAVEZ and MOISE, JJ., concur.\\nCOMPTON, C. J., and CARMODY, J, not participating.\"}"
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+"{\"id\": \"2861329\", \"name\": \"Perry WELLS, Nick Pacheco and Nieves Pacheco, his wife, Plaintiffs-Appellants, v. ARCH HURLEY CONSERVANCY DISTRICT, Defendant-Appellee\", \"name_abbreviation\": \"Wells v. Arch Hurley Conservancy District\", \"decision_date\": \"1976-08-24\", \"docket_number\": \"No. 2290\", \"first_page\": \"516\", \"last_page\": 521, \"citations\": \"89 N.M. 516\", \"volume\": \"89\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:34:19.663101+00:00\", \"provenance\": \"CAP\", \"judges\": \"HERNANDEZ, J. (specially concurring), and LOPEZ, J., concur.\", \"parties\": \"Perry WELLS, Nick Pacheco and Nieves Pacheco, his wife, Plaintiffs-Appellants, v. ARCH HURLEY CONSERVANCY DISTRICT, Defendant-Appellee.\", \"head_matter\": \"554 P.2d 678\\nPerry WELLS, Nick Pacheco and Nieves Pacheco, his wife, Plaintiffs-Appellants, v. ARCH HURLEY CONSERVANCY DISTRICT, Defendant-Appellee.\\nNo. 2290.\\nCourt of Appeals of New Mexico.\\nAug. 24, 1976.\\nRehearing Denied Sept. 7, 1976.\\nHarold H. Parker, Albuquerque, for plaintiffs-appellants.\\nMichael T. Garrett, Clovis, for defendant-appellee.\", \"word_count\": \"2912\", \"char_count\": \"17901\", \"text\": \"OPINION\\nSUTIN, Judge.\\nPlaintiffs sued defendant pursuant to \\u00a7 75-31-18, N.M.S.A.1953 (Repl.Vol. 11, pt. 2), to recover for the value of property taken and for the loss of use of property which resulted from drainage of excess water into Tucumcari Lake. Over objection, the trial court, at the time of trial, transformed this claim into an eminent domain proceeding, the same as though it were brought by the defendant against the plaintiffs to condemn all of plaintiffs' properties.\\nThe jury returned verdicts for plaintiffs. Judgment was entered and plaintiffs appeal. We reverse.\\nA. The record and the applicable law show that the defendant was not entitled to an eminent domain proceeding in district court.\\n(1)Plaintiffs' Complaint\\nOn July 5, 1973, plaintiffs filed a verified claim against defendant for an assessment of damages pursuant to \\u00a7 75-31-18.\\nPlaintiff Wells sought just compensation or damages in the sum of $36,700.00, and loss of income from his hog-raising business in the sum of $51,700.00. The total property consisted of 16 acres, more or less.\\nPlaintiffs Pacheco sought just compensation or damages of $6,000.00, and loss of crops and grazing of $7,200.00. The total property consisted of five acres, more or less.\\n(2) Defendant's Answer\\nOn August 31, 1973, defendant answered plaintiffs' complaint. It alleged that the court should direct the appraisers to determine damages in accordance with \\u00a7 75-29-2, N.M.S.A.1953 (Repl. Vol. 11, pt. 2). The prayer for relief requested the court to proceed under \\u00a7 75-31-18 and 75-29-2, \\\"and direct the Board of Appraisers to determine the value of the respective Plaintiffs ['] property for acquiring full title to it in fee simple and also the sum of the damages . as compensable under law .''\\n(3) Section 75-31-18 is applicable.\\nArticle 31 of the Conservancy Act covers general provisions of the Conservancy District law. Section 75-31-18 of Article 31 provides that plaintiffs petition the court for an appraisal of damages sufficient to compensate for any injury to their property ; that the court shall direct the appraisers to appraise the damages and injuries and report; that an order of the court approving the appraisal shall constitute a final adjudication of the matter unless it is appealed within 20 days. It continues:\\n(5) Appeal from said order to a jury may be had as hereinbefore provided in case of condemnation proceedings, . by the board of the district . [Emphasis added].\\nCondemnation proceedings hereinbefore provided are set forth in \\u00a7 75-28-21. It reads:\\nThe district shall also have the right, instead of having appraisals made by the appraisers, to condemn for the use of the district, according to the procedure provided by chapter XXXIV of the Codification of 1951, and all amendatory or supplementary acts, for the appropriation of land or other property taken for public use; any land or property within or without said district not acquired or condemned by the court on the report of the appraisers. [Emphasis added],\\nIn other words, \\u00a7 75-31-18 is not a substitute for condemnation proceedings referred to in \\u00a7 75-28-21. Zamora v. Middle Rio Grande Conservancy Dist., 44 N.M. 364, 102 P.2d 673 (1940). The reason is clear. Under \\u00a7 75-31-18, the plaintiffs initiate their claims for damages. Under eminent domain proceedings, the defendant initiates its claims for condemnation of plaintiffs' property. The defendant did not initiate any proceedings to condemn all of plaintiffs' property.\\n(4) Section 75-29-2(4) is not applicable. Article 29 of the Conservancy Act provides for the appointment of appraisers and their duties. Section 75-29-2(4) of Article 29 provides:\\nBefore appraisals of compensation and damages are made, the board may report to the appraisers the parcels of land it may wish to purchase and for which it may wish appraisals to be made, both for easement and for purchase in fee simple, and the board may specify the particular purpose for which and the extent to which an easement in any property is desired, describing definitely such purpose and extent.\\nUpon such appraisals being confirmed by the court, the board shall have the option of paying the entire appraised value of the property and acquiring full title to it in fee simple, or of paying only the cost of such easement. Upon written demand by the owner, such option shall be exercised by the board within ninety (90) days after the date of the final judicial determination of such appraisals. [Emphasis added].\\nThis section is not applicable because it applies to eminent domain proceedings brought by defendant. Defendant did not have an option.\\nUnder subsection (4), supra, the defendant, before appraisals are made, reports to appraisers the land it wants to purchase in fee simple. This provision is applicable in eminent domain proceedings. The defendant has an option to purchase or pay the cost of an easement if the court confirms the appraisal. Under eminent domain proceedings, an appeal lies from the final confirmation of the appraisal. Section 22-9-8, N.M.S.A.1953 (Vol. 5).\\nIn the instant case, defendant did not, before appraisals were made, report to the appraisers the parcels of plaintiffs' land that it wanted to purchase. Under \\u00a7 75-31-18, upon plaintiffs' filing their petition, the court had a duty to direct the appraisers to appraise the damages and injuries to plaintiffs' properties.\\nDefendant did not have an option because \\u00a7 75-29-2(4) was not applicable to plaintiffs' case filed under \\u00a7 75-31-18.\\n(5) Defendant's appeal was limited to the petition filed and the appraisals made.\\nUnder \\u00a7 75-31-18, supra, when the district court approved the appraisals made, defendant had the right to appeal from that order \\\"to a jury\\\", as provided by Chapter XXXIV of the Codification of 1915. Chapter XXXIV is now \\u00a7 22-9-1, et seq., N.M.S.A.1953 (Vol. 5). Section 22-9-8 provides:\\nWithin twenty [20] days after the final confirmation of any report of such [appraisal] commissioners, . . . any person interested therein may appeal from the said order and confirmation to the district court of the proper county, by filing a notice with the clerk of said court that an appeal has been so taken, and thereupon the clerk shall docket said cause in the district court and it shall stand for trial in said court as other civil causes are tried and shall be tried de novo, and the parties . . . shall be entitled to a trial by jury as in ordinary cases. [Emphasis added].\\nOn August 27, 1974, the appraisers filed their report. On October 2, 1974, the trial court approved the report. The plaintiffs did not appeal. The defendant did.\\nOn October 22, 1974, defendant filed a notice of appeal from the order approving the report of appraisers awarding damages. In addition to the notice of appeal, the notice stated:\\nThe defendant intends to exercise the option provided in the second paragraph of Sec. 75-29-2(4) NM.S.A.1953 granting the Board of Directors the option to pay the entire appraised value of the property and acquire frill title in fee simple . . . upon the final judicial determination of the appraisals. Defendants will upon final determination make the decision whether to acquire full title in fee simple or to pay only damages for the easements. [Emphasis added].\\nBy this notice, defendant attempted to transform plaintiffs' petition and the appraisals made into an eminent domain proceeding. It was not entitled to this option. It was entitled to a trial de novo which does not mean the beginning of a new action.\\nTranswestern Pipe Line Company v. Yandell, 69 N.M. 448, 452-53, 367 P.2d 938, 941 (1961), which involved the eminent domain statute, said:\\nThis appeal to the district court for a trial de novo is, in effect, not an appeal in the usual sense, but rather a notice of dissatisfaction with the award of compensation and damage by the commissioners and a request for a new award to be made by a jury and the court, and the trial de novo is not the beginning of a new action but a continuation of the proceeding from the time of filing of the original petition in condemnation. [Emphasis added].\\nFor plaintiffs Pacheco, the appraisers awarded \\\"before and after\\\" real estate damages at $1,300.00 and special damages of $67.00.\\nFor plaintiff Wells, the appraisers awarded \\\"before and after\\\" real estate damages at $9,109.00 and special damages of $1,375.00.\\nThe trial court approved this order. The defendant was dissatisfied with this award and appealed from this order. It was entitled only to a trial on assessment of damages to plaintiffs' property based upon plaintiffs' petition and the appraisals made pursuant to \\u00a7 75-31-18.\\nReversed.\\nIT IS SO ORDERED.\\nHERNANDEZ, J. (specially concurring), and LOPEZ, J., concur.\"}"
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+"{\"id\": \"2872884\", \"name\": \"Kenneth J. STOHR, Appellant, v. NEW MEXICO BUREAU OF REVENUE, Appellee\", \"name_abbreviation\": \"Stohr v. New Mexico Bureau of Revenue\", \"decision_date\": \"1976-11-30\", \"docket_number\": \"No. 2591\", \"first_page\": \"43\", \"last_page\": 47, \"citations\": \"90 N.M. 43\", \"volume\": \"90\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:14:54.262551+00:00\", \"provenance\": \"CAP\", \"judges\": \"SUTIN and HERNANDEZ, JJ., concur.\", \"parties\": \"Kenneth J. STOHR, Appellant, v. NEW MEXICO BUREAU OF REVENUE, Appellee.\", \"head_matter\": \"559 P.2d 420\\nKenneth J. STOHR, Appellant, v. NEW MEXICO BUREAU OF REVENUE, Appellee.\\nNo. 2591.\\nCourt of Appeals of New Mexico.\\nNov. 30, 1976.\\nCertiorari Denied Jan. 25, 1977.\\nWilliam C. Erwin, Kastler, Erwin & Davidson, Raton, for appellant.\\nToney Anaya, Atty. Gen., Vernon O. Henning, Bureau of Revenue, Legal Div., Santa Fe, for appellee.\", \"word_count\": \"2496\", \"char_count\": \"15455\", \"text\": \"OPINION\\nLOPEZ, Judge.\\nStohr protested assessments for gross receipts taxes, penalty and interest. The protest of assessments for purchases of materials was denied by the bureau of revenue. The protest of assessments for wages was partially denied. Stohr appeals the decision and order of the commissioner of revenue directly to this court. Section 72-13-39, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp. 1975). We affirm in part and reverse in part.\\nStohr is a skilled union carpenter in Ra-ton, New Mexico. He had been doing carpentry work for several years and, during the taxable period, performed carpentry work for over one hundred people. For convenience we will refer to these people as customers. He was paid by the hour. On a few jobs the customer would deduct Federal Insurance Contribution Act (F.I.C.A.) taxes. When customers did not deduct F.I. C.A. taxes, Stohr would file self-employment returns. Often, Stohr would purchase materials for a particular job; subsequently, he was reimbursed by the customer. The relevant findings of the commissioner are:\\n\\\"4. During the taxable period the Taxpayer was engaged by over 100 persons . to perform carpentry work on buildings such as houses, garages and office buildings. This work included installing new window frames, room paneling, cabinets and garage doors.\\n\\\"5. The Taxpayer was engaged by customers for a specific job e. g., install new paneling in a room. Generally, the Taxpayer determined when he would perform the job. Some jobs were performed in a few hours; others lasted considerably longer. The Taxpayer did not advertise himself as a contractor in any media; satisfied customers passed the word. In no case did the Taxpayer enter into written contracts with his customers.\\n\\\"6. In most, but not all, cases the Taxpayer purchased in his own name the construction material necessary for the job and the Taxpayer paid the suppliers for the material although in some cases customers would pay the suppliers for materials purchased by the Taxpayer. In some cases customers themselves purchased the material in which case the customer paid the supplier. The Taxpayer apparently never delivered nontaxable transaction certificates to suppliers and all sales of material by suppliers were made with tax passed on to the purchaser.\\n\\\"7. The Taxpayer was always paid for hours worked plus the Taxpayer's cost of material. The Taxpayer maintained a day book which reflected payments received, which included the labor element, (hours worked times the hourly rate) and the material purchased by the Taxpayer for the job. The tax assessment in question was based on the information in the day book.\\n\\\"8. Several customers withheld federal income tax, state income tax and FICA (social security) taxes with respect to the payments attributable to the labor charges. The vast majority of customers did not withhold any taxes on payments made to the Taxpayer.\\n\\\"12. During the taxable period the Taxpayer did not have a New Mexico contractors license. For the past eight years the Taxpayer has filed gross receipts tax returns with the Bureau but such returns showed no taxable receipts. The Taxpayer filed self employment tax returns (for social security purposes) with Internal Revenue Service where customers did not withhold FICA tax. The Bureau audit report indicates that the Taxpayer filed federal income tax returns, including federal Schedule 'C's', which indicated that the Taxpayer received amounts from a business or profession. The Taxpayer is not familiar with federal tax procedures and such returns were prepared by the Taxpayer's wife.\\n\\\"14. It seems apparent that a person, such as the Taxpayer, could in some contractual relationships, be an employee within the meaning of \\u00a7 72-16A-12.5, and in other arrangements the person could be an independent contractor. In this connection it appears the Bureau treated payments made to the Taxpayer by Northeastern Fair Association as wages, and not as taxable receipts, although the Taxpayer apparently per formed carpentry services for that customer. A customer, Paul Kastler, testified at the hearing about his relationship with the Taxpayer: that he told the Taxpayer when to perform the work; that he obtained liability insurance on the Taxpayer; that he withheld federal taxes on payments made to the Taxpayer; that he often directly purchased material; that on one occasion he terminated a project prior to completion; and that he exercised control over the Taxpayer.\\n\\\"15. For purposes of the Federal Insurance Contributions Act (FICA), \\u00a7 3121(d)(2) of the 1954 Internal Revenue Code (as amended) defines 'employee' to include 'any individual who, under the usual common law rules applicable in determining the employer-employee relationship has the status of an employee'. (Emphasis added) Where such a relationship exists, federal law imposes a tax on both employees (\\u00a7 3101 of the Internal Revenue Code) and employers (\\u00a7 3111 of the Internal Revenue Code). Where a customer accepts an economic burden by paying the portion of the employer's FICA tax, there is an inference that the customer does so because under the law, he is required to do so. While affirmative evidence of withholding FICA is not determinative, it is evidence to be considered. As indicated above, it is recognized that in some contractual relationships, the Taxpayer could be an employee. The Bureau audit report . . . lists the name of customers (including Mr. Kastler) who withheld FICA from payments made to the Taxpayer. It is concluded that at least those receipts are exempt under \\u00a7 72-16A-12.5.\\\"\\nWages\\nStohr argues he was an \\\"employee\\\" and that compensation paid to him by customers were wages, therefore exempt under \\u00a7 72-16A-12.5, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1975):\\n\\\"Exempted from the gross receipts tax are the receipts of employees from wages, salaries, commissions or from any other form of remuneration for personal services.\\\"\\nStohr relies on the Gross Receipts and Compensating Tax Act Regulations of the bureau which defines an employee as follows:\\n\\\"G.R. REGULATION 12.5-1 \\u2014 EMPLOYEE DEFINED\\u2014\\n\\\"In determining whether a person is an employee, the bureau will consider the following indicia:\\n\\\"(1) is the person paid a wage or salary;\\n\\\"(2) is the 'employer' required to withhold income tax from the person's wage or salary;\\n\\\"(3) is F.I.C.A. tax required to be paid by the 'employer' and employee;\\n\\\"(4) is the person covered by workmen's compensation insurance;\\n\\\"(5) is the 'employer' required to make unemployment insurance contributions on the person;\\n\\\"(6) does the person's 'employer' consider the person to be an employee;\\n\\\"(7) does the person's 'employer' have a right to exercise control over the means of accomplishing a result or only over the result (control does not mean 'mere suggestions').\\n\\\"If all of the indicia mentioned above are present, the bureau will presume that the person is an employee. However, a-person may be an employee even if one or more of the indicia are not present.\\\"\\nThe issue is whether Stohr was an employee on the approximately \\\"fifty to one hundred and fifty\\\" jobs completed during the taxable period from January 1, 1972, to July 31, 1975. The commissioner found that on the majority of jobs Stohr was an independent contractor. The commissioner determined under finding number 15 that on' those jobs where the customer deducted F.I.C.A. taxes, Stohr was an employee and his compensation was exempt as wages. On the jobs where no deductions were made, the commissioner determined that he was an independent contractor and liable for payment of gross receipt taxes. The commissioner based his decision on \\u00a7 72- 16A-3 E and F, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1975).\\n\\\"E. 'engaging in business' means carrying on or causing to be carried on any activity with the purpose of direct or indirect benefit;\\n\\\"F. 'gross receipts' means the total amount of money or the value of other consideration, received from selling property in New Mexico, from leasing property employed in New Mexico or from performing services in New Mexico. .\\nThis Court must determine whether the findings of the commissioner were in accordance with law and supported by substantial evidence, or whether the findings were capricious and arbitrary. Section 72-13-39 D, supra. Stohr acknowledges the presumption that an assessment of gross receipts taxes is correct. Section 72-13-32 C, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp. 1975); Meare v. Bureau of Revenue, 87 N.M. 240, 531 P.2d 1213 (Ct.App.1975). In order for the taxpayer to be successful, he must clearly overcome this presumption. See Archuleta v. O'Cheskey, 84 N.M. 428, 504 P.2d 638 (Ct.App.1972). Moreover, where an exemption is claimed, the exemption is strictly construed in favor of the taxing authority. Rock v. Commissioner, 83 N.M. 478, 493 P.2d 963 (Ct.App.1972).\\nOf the seven indicia of employee status outlined in G.R. Regulation 12.5-1, supra, only three are present in this case. Although there is no dispute that Stohr was paid an hourly wage, there is conflicting evidence whether Stohr's \\\"employers\\\" considered him an employee. There is also a factual dispute whether the \\\"employers\\\" had the right to exercise control over the means of accomplishing a result. There is no dispute that in most of the jobs the \\\"employer\\\" did not withhold income tax, did not pay the employer's share of F.I.C.A. taxes, and did not make unemployment insurance contributions. Most of the time Stohr was not covered by workmen's compensation insurance.\\nOn the jobs where the employer was sophisticated enough to make provisions for F.I.C.A. contributions, the employer was likely to withhold income tax, make unemployment insurance contributions, and provide workmen's compensation insurance. This was true of one principal witness, attorney Paul Kastler. On the jobs found taxable as gross receipts, Stohr paid both the employer's and employee's share of F.I. C.A. taxes, and filed federal tax returns showing income from a business or profession. Therefore, it is reasonable to include in gross receipts the jobs on which F.I.C.A. taxes were not paid.\\nWe recognize that the bureau's regulation is not controlling, but it does provide a useful checklist. The dispositive findings are: (1) the taxpayer filed self-employment returns with the Internal Revenue Service for social security purposes where customers did not withhold F.I.C.A. taxes; (2) the taxpayer filed federal income tax returns which reported income from a business or profession; and, (3) the large number of \\\"employers\\\" indicates that the relationship with \\\"customers\\\" cannot be classified along traditional or conventional employer-employee lines. Cf. Burton v. Crawford, 89 N.M. 436, 553 P.2d 716 (Ct. App.1976). See also Albuquerque Lumber Co. v. Bureau of Revenue, 42 N.M. 58, 75 P.2d 334 (1938). The controlling factor, however, is that the taxpayer must treat transactions uniformly for all purposes within the tax laws. The taxpayer must not attempt to show one scheme for federal tax purposes, and a nontaxable event for purposes of state gross receipts tax. Co-Con, Inc. v. Bureau of Revenue, 87 N.M. 118, 529 P.2d 1239 (Ct.App.1974). See also Meare v. Bureau of Revenue, supra.\\nWe believe that the bureau's findings were correct; they were supported by substantial evidence, were in accordance with law and not an abuse of discretion. Duke v. Bureau of Revenue, 87 N.M. 360, 533 P.2d 593 (Ct.App.1975).\\nPurchases of materials\\nStohr argues he was acting as an agent for customers when he would order, buy, or come into possession of materials which he would use for different jobs. We agree.\\nSection 72-16A-3 P, supra, states in pertinent part that:\\n\\\" 'Gross receipts,' for the purposes of the business of buying, selling or promoting the purchase, sale or leasing, as factor, agent or broker, on a commission or fee basis, of any property, service, stock, bond or security, includes only the total commissions or fees derived from the business. . . .\\\"\\nThis means that the only amount properly includable in gross receipts is the commissions or fees derived. Stohr did not receive any commissions or fees, but acted merely as an agent for his customers. Stohr's purchases were erratic; sometimes the customer had the materials on hand, sometimes the customers purchased the materials, sometimes Stohr purchased the materials as a favor to the customer. It cannot be said that Stohr was in the business of buying and selling materials. He never advertised as such, and never sought any benefit from his purchases other than to expedite his work. Stohr always paid gross receipts tax to the supplier, and this tax was paid by the ultimate consumers, his customers. The purchases were merely incidental to his work as a carpenter. Cf. \\u00a7 72-16A-12.16, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1975).\\nAlthough the taxpayer did not make a profit, profit is immaterial and not conclusive. New Mexico Enterprises, Inc. v. Bureau of Revenue, 86 N.M. 799, 528 P.2d 212 (Ct.App.1974). But see \\u00a7 72-16A-3 B, supra, \\\" 'buying' or 'selling' means any transfer of property for consideration or any performance of service for consideration.\\nWe believe that the findings of the commissioner, with regard to materials, were not supported by substantial evidence.\\nPenalty\\nStohr argues that a penalty was improperly assessed. We believe that he is not liable for penalty and interest pursuant to \\u00a7 72-13-82, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1975):\\n\\\"Civil penalty for failure to pay tax or file a return. A. In the case of failure, due to negligence or disregard of rules and regulations, but without intent to defraud, to pay when due any amount of tax required to be paid or to file a return regardless of whether or not any tax is due, there shall be added to the amount two per cent [2%] per month or a fraction thereof from the date the tax was due or from the date the return was required to be filed, not to exceed ten per cent [10%] thereof, or a minimum of five dollars ($5.00), whichever is greater, as penalty, but the five dollar ($5.00) minimum penalty shall not apply to taxes levied under the Income Tax Act [72-15A-1 to 72-15A-15].\\n\\\"B. In the case of failure, with intent to defraud the state, to pay when due any amount of tax required to be paid, there shall be added to the amount fifty per cent [50%] thereof, or a minimum of twenty-five dollars ($25.00), whichever is greater, as penalty.\\\"\\nThis section is divided into two parts: penalty for fraud and penalty for negligence. We do not believe that there is evidence of fraud nor do we believe that failure to pay comes under Section A, supra. Diligent protest by the taxpayer negates the possibility of negligence. The taxpayer did not disregard the rules and regulations because there was reasonable doubt as to the correctness of the taxes imposed by the commissioner. Co-Con, Inc. v. Bureau of Revenue, supra.\\nThe decision of the commissioner is affirmed in part and reversed in part and remanded for proceedings consistent with this opinion.\\nIT IS SO ORDERED.\\nSUTIN and HERNANDEZ, JJ., concur.\"}"
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+"{\"id\": \"352591\", \"name\": \"In the Matter of Ruben D., A Child. Respondent-Appellant\", \"name_abbreviation\": \"In re Ruben D.\", \"decision_date\": \"2000-12-18\", \"docket_number\": \"No. 20,209\", \"first_page\": \"110\", \"last_page\": 116, \"citations\": \"130 N.M. 110\", \"volume\": \"130\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:25:11.880769+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: WECHSLER and SUTIN, JJ.\", \"parties\": \"In the Matter of Ruben D., A Child. Respondent-Appellant.\", \"head_matter\": \"2001-NMCA-006\\n18 P.3d 1063\\nIn the Matter of Ruben D., A Child. Respondent-Appellant.\\nNo. 20,209.\\nCourt of Appeals of New Mexico.\\nDec. 18, 2000.\\nCertiorari Denied No. 26,752, Feb. 5, 2001.\\nPatricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.\\nPhyllis H. Subin, Chief Public Defender, Jennifer R. Albright, Assistant Appellate Defender, Santa Fe, for Appellant.\", \"word_count\": \"3782\", \"char_count\": \"23001\", \"text\": \"OPINION\\nBOSSON, Judge.\\n{1} Ruben D., a juvenile, appeals an order of the children's court extending legal custody of the Children, Youth and Families Department (CYFD) over him for a year past his initial two-year commitment. See NMSA 1978, \\u00a7 32A-2-23(D) (1995). Ruben argues that the order was improper because (1) the court was without authority to commence proceedings sua sponte to extend his commitment, (2) the court lacked jurisdiction to extend his custody with CYFD after the Juvenile Parole Board (JPB) had issued a certificate of discharge, (3) the applicable time limits for such a hearing did not allow an order extending his commitment to be entered after the first order had expired, and (4) the evidence failed to justify extending his commitment. Not persuaded by Ruben's arguments, we affirm.\\nBACKGROUND\\n{2} Ruben is a delinquent child. His delinquency adjudication followed a series of referrals to CYFD, which included substance abuse and a physical altercation with his mother. These referrals culminated in CYFD petitioning the court to adjudicate Ruben a delinquent child for having committed a burglary, and the court did so on January 28, 1997. The court's disposition transferred legal custody of Ruben to CYFD for long-term commitment, measured by statute as an indeterminate period not to exceed two years. See NMSA 1978, \\u00a7 32A-2 \\u2014 19(B)(2)(b) (1996). In its disposition, the court expressly reserved jurisdiction to extend Ruben's commitment. According to the original disposition, CYFD's custody was to expire on January 28, 1999. The validity of the original two-year commitment is not at issue in this appeal.\\n{3} In September 1998, CYFD decided not to request an extension of Ruben's commitment. In preparation for terminating Ruben's commitment, CYFD forwarded a letter to the JPB outlining its decision to allow its custody to expire. After CYFD sent the letter, Ruben escaped from the Boy's School for a period of two days. At that time, Ruben's escape did not alter CYFD's recommendation to allow his commitment to expire. Although aware of the escape, the JPB issued a certificate of discharge on January 11, 1999, effective January 30, 1999, a date that reflects an extension of two days of commitment to make up for Ruben's escape.\\n{4} Meanwhile, the children's court scheduled a hearing to consider extending Ruben's commitment. Apparently unaware that the JPB was going to issue a certificate of discharge, the court issued notice to all concerned parties, drafted on January 7, 1999, that a re-commitment hearing would be held on January 20, 1999. At that hearing, Ruben's counsel argued that the court lacked jurisdiction to proceed in light of the certificate of discharge that the JPB had issued nine days earlier. The court denied Ruben's motion in light of the express reservation of jurisdiction in its original commitment order.\\n{5} Ruben's counsel also informed the court that he was unprepared to present a defense on that date because he had received notice of the hearing just the day before. The court began the hearing, but granted Ruben a continuance to call witnesses and offer testimony as soon as possible.\\n{6} At the end of the January 20 hearing, the court found that Ruben was not fit to be released and that CYFD had not arranged for a suitable place for Ruben to live if he were released. At that time Ruben was seventeen and his parent's whereabouts were unknown. The court entered an interim order on January 25 committing Ruben to CYFD's custody until Ruben could present his case. The second and final portion of the hearing was convened on February 23, 1999. Ruben renewed his motion that the court lacked jurisdiction to proceed, which was again denied. Ruben then presented his case, only to discover that CYFD had reversed its position. At the second hearing, CYFD requested an extension of Ruben's commitment so that he could be placed in a transitional living home; a home that would allow Ruben to develop the skills necessary to participate productively in society. When the hearing adjourned, the court found that it was in the best interests of both Ruben and the community to extend his commitment to CYFD for another year. An order to that effect was entered on March 4,1999. DISCUSSION\\n{7} Ruben raises issues that involve questions of statutory interpretation. We review such questions de novo. See In re Zac McV., 1998-NMCA-114, \\u00b6 5, 125 N.M. 583, 964 P.2d 144. When construing statutes that have unambiguous statutory language, \\\"we must give effect to that language and refrain from further statutory interpretation.\\\" State v. Jonathan M., 109 N.M. 789, 790, 791 P.2d 64, 65 (1990). If statutory language is ambiguous, however, we consider the legislative purpose behind the statute in conjunction with all the provisions of the children's code to resolve its meaning. See In re Zac McV., 1998-NMCA-114, \\u00b6 10, 125 N.M. 583, 964 P.2d 144.\\nWhether the Children's Court May Convene a Hearing to Extend Commitment Without a Motion From Either CYFD or the Child\\n{8} Ruben's initial argument is that the court lacked jurisdiction to convene a hearing sua sponte to consider extending his commitment. Ruben contends that statutory law divested the court of jurisdiction once Ruben was transferred to CYFD's custody. His argument is based on Section 32A-2-23(A), which states that a \\\"judgment transferring legal custody of an adjudicated delinquent child to an agency responsible for the care and rehabilitation of delinquent children divests the court of jurisdiction at the time of transfer of custody.\\\" Ruben acknowledges that despite the divestiture of jurisdiction in subsection (A), the court retains jurisdiction under subsections (D), (E), (F), and (G) of Section 32A-2-23 to hold hearings to extend or terminate a child's commitment. He argues that those subsections, and more importantly the court's jurisdiction thereunder, can be invoked only when the child, or an executive-branch actor such as the children's court attorney or CYFD, files a written motion with the court. Under Ruben's interpretation of Section 32A-2-23, the court must defer to the judgment of executive actors to decide whether an extended commitment \\\"is necessary to safeguard the welfare of the child or the public interest.\\\" Section 32A-2-23(D).\\n{9} Ruben's view of the court's jurisdiction is overly restrictive. In In re Zac McV., 1998-NMCA-114, \\u00b6 14, 125 N.M. 583, 964 P.2d 144, we interpreted subsection (F) of Section 32A-2-23, which allows the court to terminate or extend a child's commitment, to include either motions for modification filed by CYFD or similar action taken sua sponte by the court. Under In re Zac McV., the court need not wait for a party to file a motion for the court to extend a commitment under subsection (F). See id. \\u00b6 14. We believe the legislature intended the same for subsection (D), which grants the court similar authority to modify a prior commitment order.\\n{10} We recently outlined the role of the children's court in handling dispositions of delinquent children. See State v. Adam M., 2000-NMCA-049, 129 N.M. 146, 2 P.3d 883. In Adam M., we held that the children's court lacked statutory authority to order consecutive commitments in a single disposition. See id. \\u00b6 10. In so deciding, we recognized that the children's code envisioned a flexible, indeterminate commitment process; one that allows the court to \\\"address[ ] the rehabilitative purpose of a long-term commitment by permitting the children's court to extend its judgment of commitment for additional periods of one year each until the child reaches the age of twenty-one.\\\" Id. We decided that consecutive commitments were impermissible because the children's code gave the court discretionary authority to lengthen a commitment only at the end of a long-term disposition. According to our interpretation of the children's code, \\\"the children's court must exercise its discretion over a long-term commitment at the end of the commitment, after reviewing a record of the child's performance while committed, instead of at the beginning when the court has less information before it. The legislature has made this choice.\\\" Id.\\n{11} We remain steadfast in this interpretation of the code. The code intended the court to tailor a disposition to the specific needs of a child, and the legislature implemented its intent by granting the court power to review a child's progress in the custody of CYFD at the end of a commitment period. See id. Periodic review by the court provides a check on a child's improvement, and allows the court to extend a commitment, if necessary, to ensure that the rehabilitative purpose of the code is met. See id. To the extent Section 32A-2-23(D) & (F) remain ambiguous regarding the role of the court in extending a commitment order, we now make the import of our discussions in In re Zac McV. and Adam M. expressly clear. We hold that the children's code grants the court jurisdiction and authority to extend a child's commitment on its own motion under Section 32A-2-23(D) & (F). In this ease, therefore, the court's express reservation of jurisdiction to review a commitment order is irrelevant.\\n{12} Ruben's reliance on our language in a former opinion stating that \\\"the children's court may not retain jurisdiction indefinitely\\\" does not aid his cause. State v. Carlos A., 1996-NMCA-082, \\u00b615, 122 N.M. 241, 923 P.2d 608. Carlos A. concerned the court's ability to modify a disposition on a child's motion under Section 32A-2-23(G). See Carlos A, 1996-NMCA-082, \\u00b65, 122 N.M. 241, 923 P.2d 608,. The quoted language speaks to the court's ability to entertain a child's motion to reconsider a disposition after the thirty-day limit in subsection (G) has expired. The language does not address the court's ability to extend a commitment on its own under subsections (D) or (F). See In re Zac McV., 1998-NMCA-114, \\u00b6 14-16, 125 N.M. 583, 964 P.2d 144. Moreover, Carlos A. was decided as a matter of preservation, not jurisdiction. See Carlos A, 1996-NMCA-082, \\u00b6 15, 122 N.M. 241, 923 P.2d 608.\\nWhether the Children's Court Retained Jurisdiction After the JPB Issued a Certificate of Discharge\\n{13} Ruben also insists that the court lost jurisdiction to extend his commitment once the JPB issued his certificate of discharge. Ruben seeks to take advantage of a feature in the code that separates the authority to commit a child, which lies in the court, from the authority to release a child, which is granted to the JPB. Compare \\u00a7 32A-2-19(B)(2) (authorizing the court to commit a child to the custody of CYFD), and \\u00a7 32A-2-23(D) & (F) (authorizing the court to extend a child's commitment), with \\u00a7 32A-2-23(A)(l) (placing the \\\"exclusive power to parole the child\\\" in the JPB). Seizing on this feature of the code, Ruben urges us to accept his proposition that the legislature purposefully designed the authority of the JPB to trump the power of the court, once custody is transferred to CYFD. See \\u00a7 32A-2-23(A). We are unpersuaded that the legislature intended such outcome.\\n{14} The statutory divestiture of jurisdiction in subsection (A) of Section 32A-2-23 \\\"relates specifically to the jurisdiction to decide particular programs or placements for the child.\\\" In re Augustine R., 1998-NMCA-139, \\u00b6 6, 126 N.M. 122, 967 P.2d 462; see also \\u00a7 32A-2-19(B)(2); In re Zac McV., 1998-NMCA-114, \\u00b613, 125 N.M. 583, 964 P.2d 144; Health & Soc. Servs. Dep't v. Doe, 91 N.M. 675, 677, 579 P.2d 801, 803 (Ct.App. 1978) (holding, under former code, that the court had no authority to order placements or programs for a child). The divestiture of jurisdiction to oversee the rehabilitation of a child, however, does not translate to the court's loss of all jurisdiction over a child's case. Although the children's code purpose fully designates roles for given entities, it gives the court the \\\"opportunity to address [extending a] commitment at the conclusion of a long-term commitment.\\\" Adam M., 2000-NMCA-049, \\u00b6 11, 129 N.M. 146, 2 P.3d 883. The children's code clearly grants the court jurisdiction to extend a commitment and, under the facts of this ease, that authority exists even in the face of a certificate of discharge by the JPB.\\n{15} The JPB is an institution primarily concerned with making parole decisions for delinquent children before a commitment expires. See NMSA1978, \\u00a7 32A-7-6 (1993) (defining the powers and duties of the JPB); see also Adam M., 2000-NMCA-049, \\u00b6 12, 129 N.M. 146, 2 P.3d 883. The legislature has also conferred upon the JPB the authority to release a child, without parole, once the rehabilitative goal of the order is met. See \\u00a7 32A-2-23(A)(l) & (C). Vested with a statutory directive to supervise children leaving the care of CYFD, the JPB is empowered with investigative tools so that it can monitor a child's rehabilitation and determine whether early parole or release is warranted. See \\u00a7 32A-7-6(A)(2) and (3) (granting the JPB the authority to \\\"conduct or cause to be conducted investigations, examinations, interviews, hearings\\\" and \\\"summon witnesses, books, papers, reports, documents or tangible things and administer oaths\\\"). However, the court is not excluded from the JPB's decision-making. The JPB must notify the court at \\\"least thirty days before ordering any parole.\\\" See \\u00a7 32A-7-6(B). Likewise, the JPB is to promptly report to the court a child's release or termination of parole if it occurs before the expiration of a commitment order. See \\u00a7 32A~2-23(C). These provisions invite a dialogue between the court and the JPB regarding' a child. However, the ultimate decision to grant parole or an early release lies with the JPB. See \\u00a7 32A-7-6(B) (\\\"The judge may express his views on the child's prospective parole, either in writing or personally, to the board, but the final parole decision shall be that of the board.\\\"). Thus, when the JPB is acting to parole or release a child before the expiration of a commitment order, it has exclusive authority to do so.\\n{16} The children's code treats the JPB's authority in the present situation somewhat differently. Unlike an early release or parole, the JPB must release a child at the expiration of a commitment order. See \\u00a7 32A-2-23(B) (\\\"[P]roteetive supervision shall remain in force for an indeterminate period not to exceed the term of commitment from the date entered.\\\"). Because the JPB's actions were dictated by the terms of the court's original commitment, it did not invoke its \\\"exclusive power to parole or release\\\" before the expiration of the commitment order. Section 32A-2-23(A)(l). In cases such as this one, it is not the authority of the JPB, but the authority of the court as reflected in the terms of the initial commitment order that governs a child's release.\\n{17} The record here buttresses the conclusion that the JPB certificate of discharge did nothing more than formally acknowledge the termination of Ruben's commitment order. If the JPB had invoked its exclusive authority to parole Ruben before the expiration of his commitment, it would have notified the court. But the court never received such notice. Similarly, early parole would have required Ruben to appear before the JPB for an interview, which never happened. See \\u00a7 32A-7-6(C). Under these facts, it is evident that the JPB never invoked its exclusive discretion to grant Ruben an early release; it only acknowledged the limitations imposed by the court to hold Ruben any longer. Therefore, we hold that the court's jurisdiction to extend Ruben's commitment was not affected by the JPB's certificate of discharge.\\nTime Limitations for Completing a Re-commitment Hearing\\n{18} Ruben asserts that the court's extension order of March 4, 1999, must be reversed because it was filed after his original commitment had expired. His argument rests on the statutory language stating, \\\"Pri- or to the expiration of a long-term commitment . the court may extend the judgment for additional periods of one year . \\\" Section 32A-2-23(D) (emphasis added). Accordingly, Ruben urges us to overrule State v. Doe, 93 N.M. 748, 750, 605 P.2d 256, 258 (Ct.App.1980), which held that a re-commitment hearing can be held up to thirty days after the expiration of the initial commitment order. Doe is based on statutory language which directs the court to \\\"proceed to a hearing in the manner provided for hearings on petitions alleging delinquency,\\\" Section 32A-2-23(F), and its holding conflicts with the language of subsection D. Ruben asserts that the plain meaning of \\\"[p]rior to the expiration of a long-term commitment\\\" must prevail. Section 32A-2-23(D). Ruben's argument is not without force; however, under the facts of this ease it was waived.\\n{19} The court drafted its notice on January 7 for the hearing to be held on January 20, 1999. The children's court attorney received notice by facsimile the same day it was drafted. On January 20, 1999, the day of the hearing, Ruben's counsel stated that he received notice just the day before and counsel was unprepared to present a case. We are not informed why Ruben's counsel failed to receive notice earlier, but the record reveals that notice was sent to the public defender's office no later than January 13, 1999.\\n{20} Because Ruben's counsel was unprepared, the court entertained a motion to continue the hearing allowing Ruben an opportunity to call witnesses. Counsel informed the court that he would be \\\"more than happy to set this up for a later hearing,\\\" when he could rebut evidence offered to extend Ruben's commitment. The court ruled that it would begin the hearing that day to determine whether Ruben's commitment should be extended, but the court also granted Ruben a continuance to call witnesses and offer testimony at a subsequent hearing to be conducted as soon as possible. A second and final hearing was held for that purpose on February 23, 1999. On March 4, 1999, the court entered its order extending Ruben's commitment for an additional year.\\n{21} Ruben complains that the order extending his commitment must be reversed because it was entered after his commitment had already expired, contrary to statute. However, counsel never made this argument to the children's court, nor did counsel request the court to rule on the application to the proceedings of the \\\"prior to\\\" language in Section 32A-2-23(D) to the proceedings. Under these circumstances, the issue wa's not preserved for appellate review. See Rule 12-216(A) NMRA 2000 (\\\"To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked -\\\"). Preservation requires a party to apprise the court of possible error in a timely and specific manner so that the court can prevent it. See In re Candice Y., 2000-NMCA-035, \\u00b6 20, 128 N.M. 813, 999 P.2d 1045. If the court had been properly alerted that the commitment order's expiration date would bar subsequent proceedings, it still would have had ten days to recommence the hearing before the expiration date.\\n{22} The court granted Ruben a continuance so that he could prepare and present his case; everyone else was ready to proceed on January 20, 1999. Although we do not believe a child waives the right to a timely hearing simply by obtaining a continuance, once Ruben requested and received his continuance, he was obliged to inform the court that subsection (D) posed a problem.\\n{23} \\\"The procedural rules applicable to adjudicatory hearings are applicable to motions to extend custody.\\\" Doe, 93 N.M. at 750, 605 P.2d at 258. We acknowledge that the time limitations imposed by the children's code are jurisdictional, and when they are not met, dismissal is required. See Rule 10-226(E) NMRA 2000. However, the court may extend the time for a hearing upon a showing of good cause. See Rule 10-226(C). In this case, the court granted Ruben an extension of time so that he could fully prepare his ease. Under the circumstances, continuing the hearing for Ruben's benefit constituted good cause to extend the jurisdiction of the court under Rule 10-226. See State v. Doe, 90 N.M. 568, 571, 566 P.2d 117, 120 (Ct.App.1977) (outlining good cause under former code).\\nSufficiency of Evidence to Extend the Commitment\\n{24} As his final argument, Ruben asserts that the evidence failed to justify extending his commitment. We disagree. The record reflects that Ruben did not make any progress in his rehabilitation for the first eighteen months of his commitment. Not until September 1998, when Ruben became aware that his stay at the Boy's School was about to end, did Ruben begin to demonstrate improvement. The record also demonstrates that Ruben had anger management problems, leading to at least seventeen instances which resulted in disciplinary isolation. The court questioned the sincerity of Ruben's rehabilitative efforts as his violent outbursts continued after he completed anger management classes. Ruben's inability to control his anger became apparent during the February hearing when an outburst caused an interruption in the proceedings and his removal from the hearing. When coupled with Ruben's November escape and his failure to obtain his graduate equivalency diploma (G.E.D.), the evidence was sufficient to find that an extension of Ruben's commitment was \\\"necessary to safeguard the welfare of the child or the public interest.\\\" Section 32A-2-23(D).\\n{25} Ruben insists that his deficiencies were not of his own making, but were due to CYFD's neglect. He contends that his disciplinary placements in isolation were caused by being forced to live in a dorm with members of a rival gang, where he had to fight for his life. Further, while in isolation he was offered no educational assistance in regard to working on his G.E.D., even though he was diagnosed with a moderate ease of attention deficit disorder. Ruben argues that he cannot be punished with an extended commitment based on CYFD's own ineffectiveness. Ruben did not raise this issue below, and we therefore will not consider it on appeal.\\n{26} Ruben includes in his brief a passing reference that the court must establish beyond a reasonable doubt that extending his commitment was \\\"necessary to safeguard the welfare of the child or the public interest.\\\" Section 32A-2-23(D). We will not address the burden of proof argument because it was never presented to the children's court. See Rule 12-216(A).\\nCONCLUSION\\n{27} For the reasons discussed above, we affirm the order of the children's court extending Ruben's commitment to the custody ofCYFD.\\n{28} IT IS SO ORDERED.\\nWE CONCUR: WECHSLER and SUTIN, JJ.\"}"
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+"{\"id\": \"3622513\", \"name\": \"Evans and others v. Baggs\", \"name_abbreviation\": \"Evans v. Baggs\", \"decision_date\": \"1887-01-14\", \"docket_number\": \"\", \"first_page\": \"147\", \"last_page\": 148, \"citations\": \"4 N.M. 147\", \"volume\": \"4\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:04:55.243509+00:00\", \"provenance\": \"CAP\", \"judges\": \"Long, C. J. I concur.\", \"parties\": \"Evans and others v. Baggs.\", \"head_matter\": \"Evans and others v. Baggs.\\n(Supreme Court of New Mexico.\\nJanuary 14, 1887.)\\nExceptions \\u2014 Signing and Filing of Bill \\u2014Service \\u2014 Section 2198, Comp. Laws IT. M. 1884 \\u2014 Rule 24, Sup. Ct.\\nUnder section 2198, Comp. Laws N. M. 1884, providing that bills of exceptions must be settled and signed within 30 days after the judgment is entered, and under section 1 of rule 24 of the supreme court of the territory, requiring the appellant to prepare his record and bill of exceptions, and serve a copy thereof upon the appellee or his attorney within 10 days after judgment, the bill of exceptions must be served, signed, and filed within the time specified, unless it shall be extended or enlarged by order of the court or judge, the time cannot be extended by the stipulation of the parties.\\nAppeal from Third district, Dona Ana county.\\nMotion to strike record and bill of exceptions from the files. Motion sustained.\\nNewcomb & McFie, for plaintiffs. J. B. Bryan, for defendant.\", \"word_count\": \"1237\", \"char_count\": \"6897\", \"text\": \"Brinker, J.\\nOn the eighteenth day of March, 1886, plaintiffs recovered judgment against defendant in assumpsit, for the sum of $1,907. On the next day the defendant filed his motion for a new trial, which was heard and denied on March 22d. On March 23d he prayed for and was allowed an appeal to this court. The court at the same time gave him 30 days from that date in which to complete and file his bill of exceptions. On April 24th, defendant having failed to file a bill of exceptions, it was stipulated by the parties that the time allowed by the court for that purpose might be extended 15 -days, and on May 10th, by another stipulation, the time was further extended until June 1st. These stipulations were not filed until May 28th. The attention of the judge was not called to these agreements, nor were orders obtained from him enlarging the time for perfecting and filing the bill. In pursuance thereof, May 28th, the bill of exceptions was signed by the judge and filed, and a transcript forwarded to this court. Plaintiffs now move to strike this record and bill of exceptions from the files, for the reason that defendant failed to comply with rule 24 in the preparation and filing of it. 'Counsel also urges us to ignore this record, because he says that, while it purports to have been signed and filed on May 28th, it was in fact signed and filed long after that time, and offers affidavits in support of his statement. \\\"Whatever the truth may be as to this, we cannot entertain the suggestion. The bill, when signed and filed, cannot be shown to be untrue here, nor can it be altered or changed. The record imports absolute verity, and the date is as much a part of the record as its substance. A citation of authorities upon this point is unnecessary.\\nIt was further insisted on the argument that the record should be stricken out because appellant had not delivered to appellees or their counsel, ten days before the first day of this term, two printed copies of the transcript, as required by rule 23. This point cannot be considered, because it is not in the motion, and, if it were, there was no notice served upon appellant 24 hours before the filing of the motion that the motion would be filed. When it is desired to strike out records under this rule, all the requirements of the rule must be complied with. The motion must be filed on'the second day of the term, supported by affidavit, and notice must be served upon appellant or his counsel, 24 hours previous to the filing of the motion, that it will be-filed, and upon what ground it is based. We think the motion, to strike out this record, for failure to observe the requirements of rule 24, must be sustained.\\nSection 2198, Comp. Laws 1884, provides that \\\"bills of exception must be settled and signed within 30 days after the judgment is entered, unless the court or judge shall enlarge the time.\\\" Section 1 of rule 24 requires the appellant to prepare his record and bill of exceptions, and serve a copy thereof upon the appellee or his attorney within 10 days after judgment, unless the time shall be extended by the court, etc. This rule is in harmony with the statute, supra. The statute requires the bill to be signed and filed within 30-days, unless the court or judge shall enlarge the time, and the rule requires the bill to be prepared and served in 10 days after judgment as a preliminary to the signing and filing. The bill in this case was not prepared and served upon appellee within 10 days, nor did the court extend the time for that purpose. Neither was it signed and filed in 30 days after judgment, nor did the court or judge enlarge the time in which it should be done.\\nIt is true, there are stipulations that the time may be extended, but these were made and filed after the time limited by rule and statute had expired. The time cannot be enlarged by agreement of parties alone. The express, commands of both the rule and the law are that the bill shall be served, signed, and filed within the specified time, unless it shall be extended or enlarged by order of the court or judge. If it were permitted to the parties by agreement to extend these limits, great confusion and delay would result. They might enlarge the time to so great an extent that the judge, when called upon to sign the bill, might be unable to remember a single circumstance that occurred at the trial. The proper practice is for appellant to comply strictly with the letter of the law If he ascertains that this will be impossible, he must make-seasonable application to the judge for further time, and, if he shows satisfactory reasons why this indulgence should be granted, it will not be refused. But, in order to obtain this enlargement, he must apply for it before the limit prescribed has expired. It is not in the power of the judge to enlarge the-fixed periods, unless asked to do so while the parties are presumed to be before him, and the cause is under his control. Higgins v. Mahoney, 50 Cal. 444; Noble v. Thompson, 24 Ind. 346. To the same effect is the rule laid down in Muller v. Ehlers, 91 U. S. 249.\\nWe cannot conclude the consideration of this question without recording our disapproval of the unsatisfactory manner in which the motion is drawn and its grounds stated. While we have been able to glean from the motion, and the affidavit referred to in it, the reasons upon which it is founded, yet the practice of stating in general terms in the motion that the law has not been complied with, and referring to an affidavit for the particulars of the departure from the law, must not be encouraged. The motion should be complete in itself, and should set forth in clear and distinct paragraphs the specific grounds upon which the court will be asked to consider it.\\nFor the failure to file the record and bill of exceptions within the time prescribed the motion must be sustained, and it is so ordered.\\nLong, C. J. I concur.\"}"
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+"{\"id\": \"3624728\", \"name\": \"JESUS MARIA PEREA et al., Administrators, Etc., Appellants, v. CANDELARIA MONTOYA de GALLEGOS, Appellee\", \"name_abbreviation\": \"Perea v. de Gallegos\", \"decision_date\": \"1889-01-12\", \"docket_number\": \"No. 271\", \"first_page\": \"102\", \"last_page\": 110, \"citations\": \"5 N.M. 102\", \"volume\": \"5\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:13:13.836550+00:00\", \"provenance\": \"CAP\", \"judges\": \"Long, C. J., and Brinker and Henderson, JJ., concur.\", \"parties\": \"JESUS MARIA PEREA et al., Administrators, Etc., Appellants, v. CANDELARIA MONTOYA de GALLEGOS, Appellee.\", \"head_matter\": \"[No. 271.\\nJanuary 12, 1889.]\\nJESUS MARIA PEREA et al., Administrators, Etc., Appellants, v. CANDELARIA MONTOYA de GALLEGOS, Appellee.\\nPractice \\u2014 Bill in Equity \\u2014 Amendment\\u2014Pleading.\\u2014In a proceeding,, by bill in equity, where the bill w'as framed upon misinformation as-to the real facts, whieh were not disclosed till the trial, complainants-were entitled to leave to amend their bill on the final hearing- to conform to the evidence, upon such terms as the court might deem proper (Compiled Laws, N. M., sec. 1911; Beall v. Territory, 1 N. M. 507); and it was error in the court below to refuse to grant-leave to amend under such circumstances.\\nAppeal, from a decree in favor of defendant, from the First Judicial District Court, Santa Fe County.\\nDecree reversed, and cause remanded with instructions-to allow complainants to amend.\\nThe facts are stated in the opinion of the court.\\nCatron, Thornton & Clancy for appellants.\\nThe court erred in sustaining the demurrer to that-part of the bill charging appellee as trustee and praying for an account of the rents and profits received by her. She is as much bound to repay the rents and profits, as to return the property wrongfully received. 2 Pom. Eq., secs. 1057, 1058; Barnes v. Taylor, 30' N. J. Eq. 7; Greenwood\\u2019s Appeal, 92 Pa. St. 181.\\nThe court erred in refusing to permit complainants to amend their bill on the final hearing to conform to the evidence. Comp. Laws, sec. 1911; 1 Danl. Chan. 418; School District No. 3 v. MaCloon, 4 \\\"Wis. 79; Harding v. Boyd \\u00a1et al., 113 U. S. 756; Neal v. Neal, 9 Wall. 1, 8; Tremolo Patent, 23 Wall. 518; Burgess v. Graffam, 10 Fed.. Rep. 216, 219; Battle v. Mut. Life Ins. Co., 10 Blatch. 417; Ogden v. Thornton, 30 N. ' J. Eq. 569, 573; McConnell v. McConnell, 11 Yt. 291; Connelly v. Peck et al., 3, Cal. 75.\\nWhere such amendment should be allowed, it is error to refuse. Connelly v. Peck et al., 3 Cal. 75; Ogden v. Thornton, 30 N. J. Eq. 569, 573; Kuhl v. Martin, 2 Stuo. 586; Walker v. Armstrong, 8 Deb., M. & J., 534; Lewis v. Darling, 16 How. 6; Lewis v. Winn, 4 Des. 66; Groffman et al. v. Burgess, 117 U. S. 181, 195; Neal v. Neal, 9 Wall. 1; Harding v. Boydetal., 113 U. S. 756-764.\\nWhere the amendment has been wrongfully refused,' 'the appellate court has power to order the amendment, and render such judgment as justice demands. 1 Danl. Chan. 418, note.9; Ogden v. Thornton, 30 N. J. Eq. 576; Story, Eq. PL, sec. 905.\\nThe. motion to dismiss was not discretionary; it was a matter of right given by law. Comp. Laws, N. M., sec. 1859.\\nH. L. Waldo and William Breeden for appellee.\", \"word_count\": \"2768\", \"char_count\": \"15790\", \"text\": \"Reeves, J.\\nThis is an appeal from the decree of the district court for the defendant and against the complainants in the district court, and appellants in this court. The appellee in her statement of the case, as appears from the brief of her solicitors, admits that the allegations and purpose of the bill were as stated by the appellants, as were also the proceedings down to the time of the reference to the master. The appel lants in the statement of the case alleged in their bill of complaint that Jose L. Perea, in his lifetime, filed his bill of equity therein, charging the defendant as a trustee in a resulting trust; alleging, among other things, that one Jose M. Gallegos, in his lifetime, had borrowed of the complainant, Jose L. Perea, a large sum of money, amounting to about $10,000, and that he died insolvent in 1875, without having paid the same; that the appellee was his wife; and that during his lifetime, and while he was largely indebted to other parties, and after the accruing of about $3,500 of the indebtedness due to Jose L. Perea, deceased, Jose M. Gallegos, without any consideration, and for the fraudulent purpose of hindering and delaying his creditors, conveyed certain real estate described in the bill to his wife, the appellee; and praying that said transfer be declared fraudulent and void as to creditors, and that the appellee be declared a trustee of an implied trust 'for their benefit, that the property be sold to pay complainant's debt, and that an account be taken of the portion of the property sold by the appellee, and of the rents and profits received by her, and for general relief.\\nAfter the filing of the original bill, Jose L. Perea died, when the complainants were appointed administrators of his estate, and the suit revived in their names, and the amended bill of July 7, 1884, set out in the transcript, filed. To this amended bill the appellee filed a demurrer and an answer. The demurrer was sustained as to part of the bill. Respondent in her answer denied the insolvency of Jose M. Gallegos. She admitted his liabilities as one of the sureties on the bond of Beall as administrator, and the settlement and discharge of such liabilty as stated in complainant's bill. She admitted that Jose M. Gallegos conveyed to her the real estate mentioned and described in the bill of complaint, but denied that it was for the fraudulent pur pose of covering up his property so as to hinder and delay his creditors. She denied that conveyance was without consideration, but averred that it was made to satisfy her for an indebtedness due her by Jose M. Gallegos; that she accepted the conveyance in satisfaction of such indebtedness and also, as a further consideration, she risked her own individual and. unincumbered real estate. The complainants filed a replication to the answer, and the cause was referred to G. W. Pitch, as a special master, with direction to take proofs as to the truth of the material allegations contained in the pleadings, and report the same to the court, with his findings thereon.\\nThe charges that Jose Manuel Gallegos was insolvent, that his conveyance to the respondent was without consideration, and made to defraud his creditors, were the material allegations in the complainant's bill. The denial of these allegations by the respondent, and the averment that the conveyance to her was made to satisfy Jose Manuel Gallegos' indebtedness to her, and that she so accepted it, were the material allegations of her answer.\\nAbraham Staab, a witness for the complainants, testified that Jose Manuel Gallegos, with others, were sureties upon an administration bond, upon which bond a judgment was obtained against the bondsmen in the sum of about $60,000. That the judgment was compromised at about $22,000, of which sum Gallegos was to pay $4,000, as agreed among the sureties. Gallegos, not being able to pay the amount at the time, gave his note for the $4,000, with Probst and Kirchner as sureties, and, in consideration of their indorsement, he agreed to give them a mortgage upon his residence property in Santa Pe. When it was discovered that the title to the south portion of the property was vested in the respondent, and the title to the north portion of the property was vested in Jose Manuel Gallegos, Probst and Kirchner declined to become sureties on the note. That the witness and one of the sureties called on Mr. Gallegos to arrange the matter in order for him to pay his portion of the judgment. Mr. Gallegos then, in presence of witnesses, Sigmund Seligman, William Rosenthal, and the respondent, agreed to convey his portion of the property to the respondent, with the understanding that she would join in the mortgage to secure Probst and Kirchner, his indorsers on the note.\\nHenry L. Waldo, a witness for' complainants, testified that he was called upon by Probst and Kirchner to draw some papers, and guard their interest in a transaction they were about to have with Jose Manuel Gallegos, growing out of a settlement or compromise of a debt by the Beall sureties, of whom Mr. Gallegos was one. Gallegos not being able to pay his share, it was agreed to take his note for about $4,000, with good sureties. Probst and Kirchner had agreed to become such sureties, provided they were properly secured, and Gallegos had agreed to give a mortgage for such surety upon his residence property in Sante Fe, which surety was acceptable to Probst and Kirchner. At that time Gallegos lived on the inside of the plaza, in the northern part of the house, occupying rooms also on the eastern side of the plaza. At the time witness supposed that the title to the whole of the property was in Mr. Gallegos, and witness drew a mortgage covering all of what was known as the \\\"Gallegos House,\\\" including other property adjacent to it, which he considered belonged to the same property; and he went to Mr. Gallegos for the purpose of getting him and his wife, the respondent, to execute the mortgage. When the respondent came into the room, witness explained the nature of the transaction to her, when he discovered from her statements that the south part of the the property was in her name, and she refused to exe cute the mortgage unless Mr. Gallegos would convey to her that part of the property which was in his name to secure or indemnify her against loss by reason of subjecting her portion of the property to the mortgage. The witness explained to Probst and Kirchner this difficulty about the title, and informed them that the respondent refused to sign the mortgage. Probst and Kirchner insisted upon having the whole of the title included in the mortgage. When witness again saw Mr. and Mrs. Gallegos it was agreed that Mr. Gallegos should convey to Mrs. Gallegos his part of the property to induce her to sign the mortgage. Witness thinks the deed and the mortgage were executed on the same day.\\nThe complainants offered in evidence a copy of the deed from Jose Manuel Gallegos to the respondent, bearing date March 16, 1874; also the mortgage to Probst and Kirchner, dated March 16, 1874; also, the promissory note executed by Jose Manuel Gallegos, with Probst and Kirchner as sureties, for $4,000, dated March 16, 1874.\\nThe respondent testified, in her own behalf, that Jose Manuel Gallegos gave her the deed in consideration of the $4,000 which he owed her. The $4,000 was on account of five hundred sheep, forty cows, the rent of her house, which he collected, and for board which he received from boarders. After the evidence was taken the complainants filed an affidavit of surprise, and moved the court for leave to amend their bill so as to make it conform to the facts proven.\\nThe affidavit is as follows:\\n\\\"W. T. .Thornton, having been first duly sworn, upon oath states that he is a member of the firm of Catron, Thornton & Clancy, and that he has had special charge of the above entitled cause, and prepared the bill and amended bill in said cause, and that he prepared the above motion for leave to amend said amended bill. Af fiant further states that from information derived from his client, Jose Leandro Perea, who is now deceased, and who was a Mexican, and did not speak the English language, affiant was led to believe that the conveyance made from the said Jose Manuel Gallegos to the said defendant, Candelaria Montoya de Gallegos, was made with a fraudulent intent of hindering and delaying the creditors of the said Jose Manuel in collecting their debts, and that under said impression he framed the original and amended bill, and that he did not receive any information of the actual circumstances of the making of the said conveyance by the said Jose Manuel Gallegos to the said respondent until, upon the taking of the testimony, he was informed of the real facts; and that the said original deed, in place of having been intended as a gift to-the said respondent, and made with a view of covering up and defrauding his creditors, was intended as a mortgage to secure respondent from loss occasioned by said respondent joining the said Jose Manuel in the execution of a mortgage which should cover the separate property of the said respondent; that, since the information came to his knowledge, he prepared the within amended bill, so that the same might conform to the actual facts as proven by the witnesses. Affiant states that said motion is not made for vexation or delay, but that the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill; that the principal witness from whom said affiant obtained said information was one of the solicitors for respondent; and that affiant had no knowledge of what he would swear to, or of the kind of testimony he would give, until the day he was examined, nor did he believe in fact that he would be a witness in the case.\\n(Signed) \\\"W. T. Thornton.\\n\\\"Subscribed and sworn to before me this 13th day of February, 1885.\\n(Signed) \\\"S. B. Axtell, Judge of First District.\\nThe motion was overruled by the court, at the costs of the complainants.\\nThe proposed amended bill is set out in the transcript. It alleges that the conveyance from Jose M. Gallegos to the respondent, though absolute on its face, was in fact intended as a mortgage for the purpose of securing her and her property from any liability, whicmight accrue to her by reason of the execution of the mortgage to Probst and Kirchner, and praying that the conveyance to the respondent be declared to have been a mortgage made to her in trust to secure her from liability, and further praying substantially as in the former amended bill. The motion to amend was denied, and overruled, at the costs of the complainant.\\nAfterward, on the hearing of the cause, the exceptions to the master's report were overruled, and his findings and report confirmed, and the conveyance by Jose Manuel Gallegos to the respondent was adjudged and decreed by the court not fraudulent or in fraud of creditors, but made in good faith, upon a good and sufficient consideration. It was further decreed by the court that the complainants have nothing by their bill, and that it be dismissed, at their costs.\\nIt appears that the note for $4,000, signed by Probst and Kirchner as sureties, is dated March 16, 1874. The mortgage given them by Gallegos and wife, and the deed by Gallegos to his wife, bear the same date, \\u2014 all of which indicates with clearness that the giving of the note and mortgage and deed was one transaction, done at the same time. Waldo and Stand both agree that the deed was to be made to enable a mortgage on the whole property to be given, and neither of them say a word about any other consideration or indebtedness being mentioned.\\nIn the case of Connelley v. Peck and others, the court said: \\\"Where the proof does not sustain the allegations of the bill, and where, by the proof, the complainant would be entitled to relief m a court of equity, if his pleadings had been properly framed, an amendment should be allowed or directed to conform the pleadings to the facts which ought to be in issue, in order to enable the court to decree fully on the merits, and whenever this is not done, it is error. 3 Cal. Rep. 75. Where the matter has not been put in issue with sufficient precision, the court has, upon hearing the cause, given the plaintiff liberty to amend the bill, for the purpose of making the necessary alteration.\\\" 1 Danl. Chan. Pr. 418; Lewis v. Darling, 16 How. 1.\\n\\\"Each party, by leave of the court, shall have leave to amend, upon such terms as the court may think proper, at any time before verdict, judgment, or decree.\\\" Comp. Laws, N. M., sec. 1911; Beall v. Territory, 1 N. M. 507; Rule 40, p. 40, Dis'ct Courts, Equity.\\nThe proposed amendment comes within the principle laid down in the cases cited above, and comes within the statute and rules of practice in equity. The decree is reversed, and the cause remanded, with instructions to the district court to reopen the case, and allow the complainants amendment on such terms, as to the payment of the costs, as the court may impose, and for further proceedings in the cause. Reversed and remanded.\\nLong, C. J., and Brinker and Henderson, JJ., concur.\"}"
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+"{\"id\": \"3670759\", \"name\": \"Nusret DEMIR, Plaintiff-Appellant, v. FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Defendant-Appellee\", \"name_abbreviation\": \"Demir v. Farmers Texas County Mutual Insurance\", \"decision_date\": \"2006-06-28\", \"docket_number\": \"No. 26,040\", \"first_page\": \"162\", \"last_page\": 167, \"citations\": \"140 N.M. 162\", \"volume\": \"140\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:02:28.666028+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: LYNN PICKARD and MICHAEL E. VIGIL, Judges.\", \"parties\": \"Nusret DEMIR, Plaintiff-Appellant, v. FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.\", \"head_matter\": \"2006-NMCA-091 140 P.3d 1111\\nNusret DEMIR, Plaintiff-Appellant, v. FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.\\nNo. 26,040.\\nCourt of Appeals of New Mexico.\\nJune 28, 2006.\\nDamon B. Ely, Law Offices of Daymon B. E1y> Thomas J. Budd Mucci, Mucci Law, Albuquerque, NM, for Appellant.\\nDaniel J. O\\u2019Brien, Lawrence M. Glenn, O\\u2019Brien & Ulibarri, P.C., Albuquerque, NM, for Appellee.\", \"word_count\": \"3110\", \"char_count\": \"19218\", \"text\": \"OPINION\\nWECHSLER, Judge.\\n{1} Plaintiff Nusret Demir appeals from an order granting summary judgment in favor of Defendant Farmers Texas County Mutual Insurance Company. There are two issues on appeal. First, Plaintiff contends that the district court erred in applying Texas law to interpret his insurance contract with Farmers. Second, Plaintiff argues that even if Texas law applies, New Mexico courts should not enforce that law because it conflicts with our own public policy. We agree that Texas law is inapplicable because it contravenes New Mexico's public policy and we reverse.\\nBACKGROUND\\n{2} Plaintiff is a resident of Texas, and Farmers is domiciled in Texas. Farmers issued an insurance contract to Plaintiff in Texas. It is undisputed that Plaintiff was driving in New Mexico when he swerved to avoid another vehicle, resulting in a single-car accident. The driver of the other vehicle is unknown and no physical contact between the two vehicles occurred.\\n{3} Farmers denied Plaintiffs claim for uninsured motorist benefits because a provision in the policy and Texas law require physical contact between the covered vehicle and the unknown vehicle. Plaintiff brought this suit in New Mexico district court seeking to recover under his policy on two theories. First, Plaintiff argued that New Mexico law determined his right to recover under the policy. Second, Plaintiff argued that even if Texas law would normally apply, it did not apply because it was contrary to New Mexico's public policy of protecting drivers. Farmers moved for summary judgment. The district court found that Texas law applied, that Texas law permitted a restriction on recovery such as that in Plaintiffs policy, and that policy of the state of Texas was designed to prevent fraud. It granted Farmers' motion for summary judgment.\\nSTANDARD OF REVIEW\\n{4} We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to Plaintiff. See Gormley v. Coca-Cola Enters., 2005-NMSC-003, \\u00b6 8, 137 N.M. 192, 109 P.3d 280. Summary judgment is proper if there are no genuine issues of material fact and Farmers is entitled to judgment as a matter of law. See id.\\nCHOICE OF LAW\\n{5} The parties do not contest that Texas law would not allow recovery of uninsured motorist benefits from Farmers. Tex. Ins. Code Ann. art. 5.06-1 (2)(d) (Vernon Supp. 2005) (requiring that \\\"where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured\\\" to allow recovery under an uninsured motorist policy). The parties also agree that New Mexico law would invalidate the no-contact clause and allow recovery. See NMSA 1978, \\u00a7 66-5-301 (1983); Chavez v. State Farm Mut. Auto. Ins. Co., 87 N.M. 327, 329-30, 533 P.2d 100, 102-03 (1975) (\\\"[T]he only limitations on [uninsured motorist] protection are those specifically set out in the statute itself, i.e., that the insured be legally entitled to recover damages and that the negligent driver be uninsured.\\\"); see also Montoya v. Dairyland Ins. Co., 394 F.Supp. 1337, 1342 (D.N.M.1975) (invalidating the \\\"physical contact\\\" requirement in an uninsured motorist policy in part \\\"because the New Mexico State Legislature did not intend to allow the creation of a gap in coverage\\\").\\n{6} Plaintiff argues, as he did in the district court, that New Mexico law applies, relying primarily on State Farm Automobile Insurance Co. v. Ovitz, 117 N.M. 547, 873 P.2d 979 (1994). Ovitz involved a New Mexican insured who was injured in an accident in Hawaii. Id. at 548-49, 873 P.2d at 980-81. The insured collected his medical expenses from the owner of the other vehicle, but was precluded from further recovery under Hawaii's no-fault system. Id. at 548, 873 P.2d at 980. He sought to recover uninsured motorist benefits under his New Mexico insurance policy. Id. at 548-49, 873 P.2d at 980-81. State Farm filed suit for a declaratory judgment on the ground that the other vehicle was not uninsured for the purposes of the insurance contract. Id. at 548, 873 P.2d at 980. Our Supreme Court held that while New Mexico law would apply to the interpretation of the contract, Hawaii law governed the meaning of some terms under the contract. Id. at 549, 873 P.2d at 981. Specifically, it determined that because the policy only allowed recovery when the insured is \\\"legally entitled to collect from the owner or the driver of an uninsured motor vehicle,\\\" the insured was not entitled to uninsured motorist benefits because he was not legally entitled to recover from the other owner under Hawaii law. Id.\\n{7} Plaintiff argues that Ovitz requires that we apply New Mexico law to determine whether he is \\\"legally entitled to recover\\\" from Farmers. We agree with Plaintiff that Ovitz held that the law of the place of the accident governs Plaintiffs right to recover from the owner or driver of the vehicle that ran him off the road. But Ovitz also held that the law of the place of the contract, the lex loci contractus, applies to interpretation of the terms of the contract. Id. Ovitz applied Hawaii law only to determine the rights of parties involved in the accident as to each other. Id. It applied New Mexico law to determine the rights of the insured as to his insurance company. Id. Applying Ovitz to this case, New Mexico law governs whether Plaintiff would be able to recover from the tortfeasor, if known, and Texas law governs whether Plaintiff may recover from Farmers.\\nPUBLIC POLICY EXCEPTION\\n{8} Having determined that Texas law governs Plaintiffs right to recover from Farmers on his uninsured motorist coverage, we now reach the second question. Plaintiff also argues that we should not apply Texas law because it contravenes New Mexico's public policy. When differences between the law of the forum state and the law of the state where the contract was executed concern only contract interpretation, we will ap ply the law of the state where the parties entered the contract. Shope v. State Farm Ins. Co., 1996-NMSC-052, \\u00b6 9, 122 N.M. 398, 925 P.2d 515. \\\"To overcome the rule favoring the place where a contract is executed, there must be a countervailing interest that is fundamental and separate from general policies of contract interpretation.\\\" Id. We will apply New Mexico law if applying the law of another state would \\\"result in a violation of fundamental principles of justice\\\" of New Mexico. State Farm Mut. Auto. Ins. Co. v. Ballard, 2002-NMSC-030, \\u00b6 9, 132 N.M. 696, 54 P.3d 537 (internal quotation marks and citation omitted).\\n{9} Three cases guide our analysis. Plaintiff relies on Ballard and Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct.App.1978). Both cases applied New Mexico law to contracts issued out of state because applying the lex locus contractus would have resulted in a violation of New Mexico's public policy. Defendant relies primarily on Shope, which applied Virginia law to interpret a Virginia contract despite the possibility of a different outcome under New Mexico law. We address these cases in turn.\\n{10} In Ballard, our Supreme Court applied New Mexico rather than Georgia law despite the fact that the policy was executed in Georgia. Ballard, 2002-NMSC-030, \\u00b6 1, 3, 132 N.M. 696, 54 P.3d 537. Ballard arose out of a single-vehicle accident in New Mexico that resulted in the death of the driver and a passenger and serious injury to another passenger, the daughter of the insured owner. Id. \\u00b62, 5. State Farm filed an action in New Mexico district court seeking a declaratory judgment as to the extent of its liability. Id. \\u00b6 1. The insurance policy at issue contained a \\\"step down\\\" provision eliminating coverage for injury to family members of the insured in excess of the statutory minimum. Id. \\u00b64. State Farm argued that because the policy was executed in Georgia, Georgia law, permitting such provisions, should apply. Id. \\u00b6 6. The insured argued that the step down provision was invalid under New Mexico law. Id. Our Supreme Court held that the step down provision violated New Mexico's public policy and refused to enforce it. Id. \\u00b6 11.\\n{11} Ballard noted that the New Mexico Mandatory Financial Responsibility Act, NMSA 1978, \\u00a7 66-5-201 to -239 (1978, as amended through 2003), did not allow exclusion of coverage for family members. Ballard, 2002-NMSC-030, \\u00b6 11, 132 N.M. 696, 54 P.3d 537. It relied on Estep v. State Farm Mutual Automobile Insurance Co., 103 N.M. 105, 703 P.2d 882 (1985), for the proposition that step down provisions are not merely prohibited but also constitute \\\"a repudiation of New Mexico's public policy.\\\" Ballard, 2002-NMSC-030, \\u00b6 11, 132 N.M. 696, 54 P.3d 537 (internal quotation marks and citation omitted). Ballard considered step down provisions to be unenforceable because they are \\\"contrary to protecting innocent accident victims\\\" and because \\\"the reasons for [step down provisions] are no longer valid.\\\" Id. \\u00b6 12 (internal quotation marks and citation omitted).\\n{12} Farmers argues that Ballard does not mandate reversal in this case for two reasons. First, Farmers contends that the insured in Ballard reasonably expected that her coverage applied to all passengers, while in this case Plaintiff reasonably expected that Texas law would apply. See Ballard, 2002-NMSC-030, \\u00b6 3, 132 N.M. 696, 54 P.3d 537 (noting that the insured purchased insurance \\\"stating that she wanted the same coverage which she had in California\\\"). But Ballard did not rely on the insured's expectation. Rather, Ballard held that \\\"[o]nce [State Farm] sold [the insured] insurance that exceeded the 'limits required by law,' this coverage applies equally to all accident victims, whether the victim is a family member or not, as a matter of New Mexico public policy.\\\" Id. \\u00b6 14. Second, Farmers argues that Ballard involved liability coverage, which is mandatory, rather than uninsured motorist coverage, which may be rejected. Id. \\u00b6 1; see \\u00a7 66-5-301(C). We find this argument unpersuasive because Ballard also involved coverage purchased by the insured in excess of that required by law. Ballard, 2002-NMSC-030, \\u00b6 14, 132 N.M. 696, 54 P.3d 537.\\n{13} We do note, however, that Ballard addressed not only protection of innocent accident victims, but also discrimination against a discrete group: family members of the insured. Id. \\u00b6 10. Plaintiff argues that this distinction is irrelevant, but language in Ballard indicates otherwise. Specifically, for the proposition that the policy's step down provision violated fundamental principles of justice, Ballard relied in part on New Mexico's rejection of interspousal immunity in several different contexts. Id. \\u00b6 12 (\\\"Familial exclusion, whether in relation to insurance contracts . or tort law, . is an anachronism----\\\"). We are therefore not persuaded that the contact requirement in this ease implicates such a fundamental principle of justice as that invalidating the step down provision in Ballard.\\n{14} Nonetheless, Ballard is highly instructive to our analysis. Our Supreme Court in Ballard used New Mexico's public policy to invalidate a Georgia provision because it violated New Mexico insurance statutes and our common law policies and because it was not justified by other policy concerns. Id. \\u00b6 11-14. The Court rejected State Farm's argument that the contract provision at issue should be enforced because it was designed to protect insurance companies from fraud. Id. \\u00b6 13-14. The Court also rejected the argument that the provision should be enforced because of our policy favoring freedom of contract. Id. \\u00b6 13.\\n{15} As Plaintiff notes, our policy reason for disallowing exclusions from uninsured motorist coverage is the same as one of the policies at stake in Ballard: protecting innocent accident victims. See id. \\u00b6 13-14. As did our Supreme Court in Ballard, here we do not accept the proposition that protecting insurance companies from fraudulent claims justifies enforcing an exclusion from coverage purchased in another state. Id. Texas may have a policy of protecting insurance companies, but, in the context of uninsured motorist coverage, New Mexico has chosen to protect accident victims. See, e.g., Sandoval, 91 N.M. at 708, 580 P.2d at 134 (\\\"[T]he uninsured or unknown motorist statutes are designed to protect the injured party from the uninsured or unknown motorist. The statutes are not designed to protect the insurance company from the injured party.\\\") (internal quotation marks and citation omitted).\\n{16} We also do not agree with Farmers that we should balance our policy of protecting accident victims against our strong policy favoring freedom of contract. See, e.g., McMillan v. Allstate Indem. Co., 2004-NMSC-002, \\u00b6 10, 135 N.M. 17, 84 P.3d 65 (\\\"New Mexico public policy favors freedom to contract and enforces contracts that do not violate law or public policy.\\\"). Freedom of contract is not an issue in this case. Plaintiff could not have chosen to enter into an insurance contract that did not have an exclusion for uninsured motorist coverage when no physical contact occurs. Texas law required such a provision be included in his contract. See art. 5.06-1(2).\\n{17} The only meaningful distinction we see between this ease and Ballard is the source of the public policy that would invalidate the contract provision. In Ballard, that source was not merely statutory. Ballard, 2002-NMSC-030, \\u00b6 12, 132 N.M. 696, 54 P.3d 537. In this case, Plaintiff has not pointed to any fundamental public policy other than that expressed in our uninsured motorist statutes. Nonetheless, Plaintiff argues that such a policy is not required because no such policy was discussed in Sandoval. We agree.\\n{18} Sandoval applied New Mexico law to invalidate a provision in a Colorado insurance contract that limited the insured's time in which to bring a lawsuit. Sandoval, 91 N.M. at 707, 580 P.2d at 133. Sandoval found that our uninsured motorist statute embodied the public policy of protecting injured accident victims. Id. at 708, 580 P.2d at 134. We held that New Mexico law applied because Colorado law might conflict with that policy. Id. at 707-08, 580 P.2d at 133-34. We determined that the provision in the insurance contract was \\\"void [because it] place[d] a limitation upon or conflicted] with a statute granting uninsured motorist coverage.\\\" Id. at 708, 580 P.2d at 134.\\n{19} Farmers argues that Sandoval applied New Mexico law only because Colorado law was not clear. We agree that Sandoval indicated that it did not find Colorado case law addressing the issue. Id. at 707, 580 P.2d at 133. But Sandoval did not apply New Mexico law for that reason. Rather, it held the time limitation provision invalid be cause any other result would conflict with the policy of New Mexico's uninsured motorist statute. Id. at 708, 580 P.2d at 134.\\n{20} Unlike Ballard, Sandoval did not consider whether a public policy other than that embodied in our statutes would be violated by application of the lex locus contractus. Rather, Sandoval held that our uninsured motorist statutes required application of our law if it conflicted with the lex locus contractus because New Mexico's uninsured motorist statutes embody our public policy of protecting accident victims. Sandoval, 91 N.M. at 707-08, 580 P.2d at 133-34. Application of Sandoval to this case requires reversal. It is clear that Texas law violates New Mexico's public policy as expressed in our uninsured motorist statutes.\\n{21} Farmers argues, relying on Shope, that Texas law should apply because any differences between New Mexico and Texas law concern mere contract interpretation. We do not agree. In Shope, our Supreme Court applied Virginia law that allowed stacking of insurance unless \\\"clear and unambiguous language in the policy prevents it.\\\" Shope, 1996-NMSC-052, \\u00b6 1, 6, 122 N.M. 398, 925 P.2d 515. The plaintiff in Shope purchased two insurance policies in Virginia for his Virginia automobiles. Id. \\u00b6 3. He and his family then moved to New Mexico without transferring the policies. Id. \\u00b64. The plaintiffs son was killed less than two weeks later by an uninsured vehicle and the plaintiff sought to stack his uninsured motorist benefits. Id. Our Supreme Court held that New Mexico's policy favoring stacking of uninsured motorist policies \\\"does not rise to the level of a fundamental principle of justice.\\\" Id. \\u00b6 7, 9. Shope went on to note that New Mexico might enforce a \\\"truly unambiguous antistacking clause\\\" despite our policy if enforcement is fair to the insured. Id. \\u00b6 10 (internal quotation marks and citation omitted).\\n{22} Farmers' reliance on Shope is misplaced. New Mexico's public policy preventing exclusions from uninsured motorist coverage is not merely a matter of contract interpretation. Our courts will not enforce even an unambiguous provision excluding coverage for accidents involving uninsured motorists when no physical contact between the covered and the uninsured vehicle takes place. See Chavez, 87 N.M. at 329-30, 533 P.2d at 102-03. Certainly our public policy preventing exclusions from coverage is more important than our policy that merely favors stacking. Shope is inapplicable to this case because the difference between the New Mexico public policy prohibiting enforcement of an exclusion to uninsured motorist coverage and the Texas policy requiring such an exclusion is not an issue of contract interpretation.\\n{23} Thus, although we agree with Farmers that the public policy at issue in this case may not rise to the level of a fundamental principle of justice, we do not believe that the language used is the issue. Regardless of the label, Ballard and Sandoval indicate that a substantial public policy is implicated, and that policy mandates reversal in this case. We agree with Plaintiff that the exclusion of uninsured motorist coverage for accidents not involving physical contact with the uninsured vehicle violates New Mexico's public policy and cannot be enforced in courts of this state. See Chavez, 87 N.M. at 329-30, 533 P.2d at 102-03. Plaintiff seeks compensatory damages, which are designed to \\\"protect innocent accident victims consistent with the fundamental public policy purpose\\\" of our uninsured motorist statute. Ballard, 2002-NMSC-030, \\u00b6 16, 132 N.M. 696, 54 P.3d 537 (internal quotation marks and citation omitted). Plaintiff has purchased uninsured motorist coverage. We will not apply exclusions to his coverage that are prohibited by our statutes and by our public policy.\\nCONCLUSION\\n{24} We reverse the district court's grant of summary judgment and remand for further proceedings consistent with this opinion.\\n{25} IT IS SO ORDERED.\\nWE CONCUR: LYNN PICKARD and MICHAEL E. VIGIL, Judges.\"}"
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+"{\"id\": \"4002309\", \"name\": \"BANK OF AMERICA, as Trustee for The Millard Deck Estate, Plaintiff-Appellant, v. APACHE CORPORATION, Atlantic Richfield Company, BP America Production Company, Chesapeake Operating, Inc., Chevron U.S.A., Inc., Conocophillips Company, Exxonmobil Corporation, John H. Hendrix Corporation, Marathon Oil Company, ME-TEX Oil & Gas, Inc., Shell Oil Company, Texaco Exploration and Production, Inc., and XTO Energy, Inc., Defendants-Appellees, and Amerada Hess Corporation, Campbell & Hedrick, Celero Energy L.P., Gruy Petroleum Management, Pecos Production, Inc. Pure Resources, L.P., Quay Valley, Inc., RB Operating Company, Roca Production, Inc., and Stephens & Johnson Operating Co., Defendants; Bank of America, as Trustee for The Millard Deck Estate, Plaintiff-Appellant, v. Rice Operating Company, Defendant-Appellee; S & D Ranch, L.L.C., and Leo V. Sims, L.L.C., Plaintiffs-Appellants/Cross-Appellees, v. Conocophillips Company, Marathon Oil Company, Pierce Production Company, L.L.C., and Rice Operating Company, Defendants-Appellees, and Chesapeake Operating, Inc., Dynegy Midstream Services, L.P., And John H. Hendrix Corporation, Defendants-Appellees/Cross-Appellants. and Dominion Exploration & Production, Inc., Five States Energy Company, L.L.C., Sid Richardson Carbon & Gasoline Co., and Zachary Oil Operating Company, Defendants\", \"name_abbreviation\": \"Bank of America v. Apache Corp.\", \"decision_date\": \"2008-02-01\", \"docket_number\": \"Nos. 26,828, 27,062, 26,658\", \"first_page\": \"123\", \"last_page\": 132, \"citations\": \"144 N.M. 123\", \"volume\": \"144\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:20:48.124782+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: JONATHAN B. SUTIN, Chief Judge and MICHAEL D. BUSTAMANTE, Judge.\", \"parties\": \"BANK OF AMERICA, as Trustee for The Millard Deck Estate, Plaintiff-Appellant, v. APACHE CORPORATION, Atlantic Richfield Company, BP America Production Company, Chesapeake Operating, Inc., Chevron U.S.A., Inc., Conocophillips Company, Exxonmobil Corporation, John H. Hendrix Corporation, Marathon Oil Company, ME-TEX Oil & Gas, Inc., Shell Oil Company, Texaco Exploration and Production, Inc., and XTO Energy, Inc., Defendants-Appellees, and Amerada Hess Corporation, Campbell & Hedrick, Celero Energy L.P., Gruy Petroleum Management, Pecos Production, Inc. Pure Resources, L.P., Quay Valley, Inc., RB Operating Company, Roca Production, Inc., and Stephens & Johnson Operating Co., Defendants. Bank of America, as Trustee for The Millard Deck Estate, Plaintiff-Appellant, v. Rice Operating Company, Defendant-Appellee. S & D Ranch, L.L.C., and Leo V. Sims, L.L.C., Plaintiffs-Appellants/Cross-Appellees, v. Conocophillips Company, Marathon Oil Company, Pierce Production Company, L.L.C., and Rice Operating Company, Defendants-Appellees, and Chesapeake Operating, Inc., Dynegy Midstream Services, L.P., And John H. Hendrix Corporation, Defendants-Appellees/Cross-Appellants. and Dominion Exploration & Production, Inc., Five States Energy Company, L.L.C., Sid Richardson Carbon & Gasoline Co., and Zachary Oil Operating Company, Defendants.\", \"head_matter\": \"2008-NMCA-054\\n184 P.3d 435\\nBANK OF AMERICA, as Trustee for The Millard Deck Estate, Plaintiff-Appellant, v. APACHE CORPORATION, Atlantic Richfield Company, BP America Production Company, Chesapeake Operating, Inc., Chevron U.S.A., Inc., Conocophillips Company, Exxonmobil Corporation, John H. Hendrix Corporation, Marathon Oil Company, ME-TEX Oil & Gas, Inc., Shell Oil Company, Texaco Exploration and Production, Inc., and XTO Energy, Inc., Defendants-Appellees, and Amerada Hess Corporation, Campbell & Hedrick, Celero Energy L.P., Gruy Petroleum Management, Pecos Production, Inc. Pure Resources, L.P., Quay Valley, Inc., RB Operating Company, Roca Production, Inc., and Stephens & Johnson Operating Co., Defendants. Bank of America, as Trustee for The Millard Deck Estate, Plaintiff-Appellant, v. Rice Operating Company, Defendant-Appellee. S & D Ranch, L.L.C., and Leo V. Sims, L.L.C., Plaintiffs-Appellants/Cross-Appellees, v. Conocophillips Company, Marathon Oil Company, Pierce Production Company, L.L.C., and Rice Operating Company, Defendants-Appellees, and Chesapeake Operating, Inc., Dynegy Midstream Services, L.P., And John H. Hendrix Corporation, Defendants-Appellees/Cross-Appellants. and Dominion Exploration & Production, Inc., Five States Energy Company, L.L.C., Sid Richardson Carbon & Gasoline Co., and Zachary Oil Operating Company, Defendants.\\nNos. 26,828, 27,062, 26,658.\\nCourt of Appeals of New Mexico.\\nFeb. 1, 2008.\\nCertiorari Denied, No. 30,955, March 14, 2008.\\nBill Robins III, Darin M. Foster, Heard, Robins, Cloud & Lubel, L.L.P., Santa Fe, NM, L. Michael Messina, L. Michael Messina, P.A., Albuquerque, NM, for Appellants Bank of America, S & D Ranch, L.L.C., and Leo V. Sims, L.L.C.\\nHarper Estes, Steven C. Kiser, Lynch, Chappell & Alsup, P.C. Midland, TX, A.J. Olsen, Sheryl L. Saavedra, Hennighausen & Olsen, L.L.P., Roswell, NM, for Appellees Chevron U.SA., Inc. and Texaco Exploration and Production, Inc.\\nThomas M. Hnasko, Gary W. Larson, Hinkle, Hensley, Shanor & Martin, L.L.P., Santa Fe, NM, for Appellees ConocoPhillips Company and ExxonMobil Corporation.\\nModrall, Sperling, Roehl, Harris & Sisk, P.A., John R. Cooney, Earl E. DeBrine, Jr., Emil J. Kiehne, Albuquerque, NM, for Appellees Apache Corporation, Atlantic Rich-field Company, BP America Production Company, and Chesapeake Operating, Inc.\\nMichael J. Mazzone, Ann Al-Bahish, Haynes & Boone, LLP, Houston, TX, Eric M. Sommer, Sommer, Udall, Hardwick, Ahern, & Hyatt, LLC, Santa Fe, NM, for Appellee Marathon Oil Company.\\nMichael B. Campbell, Bradford C. Berge, Michael H. Feldewert, Robert J. Sutphin, Jr., Holland & Hart, L.L.P., Santa Fe, NM, for Appellees John H. Hendrix Corporation, Shell Oil Company, and XTO Energy, Inc.\\nLarry D. Beall, Jos\\u00e9 R. Blanton, Beall & Biehler, Albuquerque, NM, for Appellee Me-Tex Oil & Gas, Inc.\\nMichael R. Comeau, Jon J. Indall, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, NM, Franklin H. McCallum, Midland, TX, for Appellee Rice Operating Company.\\nJeffrey E. Jones, Law Office of Jeffrey E. Jones, Santa Fe, NM, for Appellee Pierce Production Company, LLC.\\nGary Don Reagan, Mark Terrence Sanchez, Reagan & Sanchez, P.A., Hobbs, NM, Bradley L. DeLuea, Johnson DeLuea Kennedy & Kurisky, P.C., Houston, TX, for Appellee/Cross-Appellant Dynegy Midstream Services.\", \"word_count\": \"5191\", \"char_count\": \"32356\", \"text\": \"OPINION\\nFRY, Judge.\\n{1} This opinion resolves two separate appeals that we address together because they raise the same issue. We consider whether venue that is proper as to one or more defendant foreign corporations with a statutory agent for service of process may establish venue for either (1) a defendant foreign corporation with a statutory agent in a county other than the county where venue is asserted, or (2) a defendant New Mexico corporation with a statutory agent and principal place of business in a county or counties other than the county where venue is asserted. With respect to the district courts' dismissal as to the defendants in the first category, we affirm, holding that venue that is proper for one foreign corporation defendant with a statutory agent cannot establish venue for another foreign corporation defendant if the other's agent is maintained in a separate county. With respect to the defendants in the second category, under a recent decision by our Supreme Court in Gardiner v. Galles Chevrolet Co., 2007-NMSC-052, 142 N.M. 544, 168 P.3d 116, we reverse the district courts in part, holding that venue that is proper for a foreign corporation defendant with a statutory agent may indeed establish venue for a New Mexico corporation even though the New Mexico corporation maintains an agent for service of process and a principal place of business in another county. BACKGROUND\\n{2} Although the two cases on appeal, S & D Ranch, L.L.C. v. Chesapeake Operating, Inc. (S & D) (No. 26,658), and Bank of America v. Apache Corporation (No. 26,828), are separate lawsuits arising from two separate events, they share the same legal issues and have remarkably similar facts. We first set out the facts of each case separately.\\nS & D Ranch, L.L.C. and Leo V. Sims, L.L.C. v. Chesapeake Operating, Inc.\\n{3} S & D Ranch, L.L.C. and Leo Y. Sims, L.L.C. (collectively, Plaintiffs S & D-Sims) own the surface estate rights of a ranch located in Lea County, New Mexico. Plaintiffs brought suit in Santa Fe County against multiple entities, alleging that Defendants, in conducting oil and gas operations on Plaintiffs S & D-Sims' property, caused damage by contaminating the surface and subsurface soils and the freshwater aquifer.\\n{4} We group the various Defendants in four categories, which we refer to as (1) the Santa Fe County Defendants, which are foreign corporations with statutory agents in Santa Fe County, the county where the law suit was filed; (2) the Lea County Defendants, which are foreign corporations with statutory agents in Lea County; (3) the Foreign Defendant, which is a foreign corporation without a registered agent in New Mexico; and (4) the New Mexico Defendant, which is a New Mexico corporation that maintains its principal place of business in Lea County and has a statutory agent for receiving service of process in Eddy County.\\n{5} Among other motions to dismiss, the Lea County Defendants and the New Mexico Defendant filed motions to dismiss for improper venue under NMSA 1978, \\u00a7 38-3-1(F) (1988), which is the subsection of the venue statute that applies to foreign corporations. Three Defendants, Chesapeake Operating, Inc. (Chesapeake), Dynegy Midstream Services (Dynegy), and John H. Hendrix Corporation (Hendrix), which we refer to collectively as the Cross-Appeal Defendants, also filed motions to dismiss, but their motions were based on Section 38-3-l(D), which is the subsection of the venue statute applicable when lands or any interest in lands are the object of the suit.\\n{6} The district court granted the motions to dismiss filed by the Lea County Defendants and the New Mexico Defendant pursuant to Section 38-3-1 (F). Applying the ruling the district court had made on a similar motion in a different case, Jay Anthony v. Texaco Exploration & Production, Inc. (Anthony), First Judicial District Court Case No. CV-2005-00910, the district court held that \\\"venue was improper in Santa Fe County for [Plaintiffs S & D-Sims'] claims against the foreign corporation defendants who have appointed an agent for service of process who does not reside in Santa Fe County as well as any New Mexico corporation . whose registered agent does not reside in Santa Fe County.\\\" However, the district court denied the motion brought under Section 38-3-l(D) by the Cross-Appeal Defendants.\\n{7} Plaintiffs S & D-Sims appeal the district court's order dismissing their claims against the Lea County Defendants and the New Mexico Defendant. The Cross-Appeal Defendants cross-appeal the district court's denial of their motion to dismiss that was based on Section 38-3-l(D).\\nBank of America v. Apache Corporation\\n{8} The facts of Bank of America are very similar to those in S & D. Bank of America, as the trustee of the Millard Deck Estate (Plaintiff Bank), owns the surface rights to a ranch in Lea County, New Mexico. Plaintiff Bank brought suit against multiple entities in Santa Fe County alleging that Defendants contaminated the surface and subsurface soils of the ranch and the fresh water aquifer on the ranch while Defendants were engaged in oil and gas operations on the ranch.\\n{9} We group Defendants in five categories: (1) the Santa Fe County Defendants, which are foreign corporations with statutory agents in Santa Fe County, the county where the lawsuit was filed; (2) the Lea County Defendants, which are foreign corporations admitted to do business in New Mexico with statutory agents in Lea County; (3) the San Juan County Defendant, which is a foreign corporation with a statutory agent in San Juan County; (4) the Foreign Defendants, which are foreign corporations without statutory agents for receiving service of process; and (5) the New Mexico Defendant, which is a New Mexico corporation with its principal place of business in Lea County.\\n{10} The Lea County Defendants, the San Juan County Defendant, and the New Mexico Defendant all filed motions to dismiss for improper venue under Section 38-3-l(F). In granting the motions, the district court cited the order from Anthony and the order of dismissal in S & D. The district court ruled that venue was not proper as to the multiple Defendants who were foreign corporations with statutory agents in counties other than Santa Fe County and as to the New Mexico Defendant. Plaintiff Bank appeals the district court's order of dismissal.\\nDISCUSSION\\n{11} We first address whether a foreign corporation defendant with a statutory agent in Santa Fe County can determine venue for another foreign corporation defendant with a statutory agent in a different county. Second, we consider whether a foreign corporation defendant with a statutory agent in San ta Fe County can establish v\\u00e9nue for a New Mexico corporation defendant. Third, we briefly discuss the issue raised on cross-appeal in S & D. We refer to Plaintiffs Bank and S & D-Sims collectively as \\\"Plaintiffs\\\" and also refer to them individually for purposes of our discussion as necessary.\\n{12} A district court's ruling on a motion to dismiss for improper venue is a question of law that we review de novoi Gardiner, 2007-NMSC-052, \\u00b6 4, 142 N.M. 544, 168 P.3d 116. This Court recognizes the long-standing principle underlying our venue statute that \\\"venue relates to the convenience of litigants and refleetfs] equity or expediency in resolving disparate interests of parties to a lawsuit in the place of trial.\\\" Id. (internal quotation marks and citation omitted). In interpreting the venue statute, our courts attempt to balance the right of a plaintiff to choose the forum in which to sue with the interests of the defendants in being sued in a convenient forum. Id.\\nI. Plaintiffs' Appeals Based on Subsections (A) and (F)\\n{13} In this appeal, we consider the same two provisions of our venue statute that were at issue in the recent New Mexico Supreme Court cases, Baker v. BP America Production Co., 2005-NMSC-011, 137 N.M. 334, 110 P.3d 1071, and Gardiner. Our venue statute provides in part:\\nAll civil actions commenced in the district courts shall be brought and shall be commenced in counties as follows and not otherwise:\\nA. First, except as provided in Subsection F of this section relating to foreign corporations, all transitory actions shall be brought in the county where either the plaintiff or defendant, or any one of them in case there is more than one of either, resides; or second, in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred; or third, in any county in which the defendant or either of them may be found in the judicial district where the defendant resides.\\nF. Suits may be brought against transient persons or non-residents in any county of this state, except that suits against foreign corporations admitted to do business and which designate and maintain a statutory agent in this state upon whom service of process may be had shall only be brought in the county where the plaintiff, or any one of them in case there is more than one, resides or in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred or in the county where the statutory agent designated by the foreign corporation resides.\\n\\u00a7 38-3-KA), (F).\\n{14} In both S & D and Bank of America, the district court cited to an order on a similar motion that the district court had entered in Anthony. In that order, the district court reasoned that the New Mexico Supreme Court's decision in Baker supported its position that venue was improper in Santa Fe County as to both the foreign corporation defendants with statutory agents in other counties and the New Mexico corporation defendants with statutory agents in other counties.\\n{15} In Baker, our Supreme Court confronted the question of whether, as between multiple foreign corporation defendants, proper venue for a foreign corporation without a statutory agent could establish venue for a foreign corporation with a statutory agent in another county. 2005-NMSC-011, \\u00b6 19, 137 N.M. 334, 110 P.3d 1071. The plaintiffs in Baker were California residents who filed a personal injury action in Santa Fe County based on an accident that occurred in San Juan County. Id. \\u00b6 2. The majority of the defendants in Baker were foreign corporations without statutory agents for receiving service of process, but one defendant was a foreign corporation with a statutory agent in Lea County. Id. The district court had ruled in Baker that because venue was proper in Santa Fe County for the foreign corporations without statutory agents under Section 38-3-l(F), it was also proper for the foreign corporation with the Lea County agent. Baker, 2005-NMSC-011, \\u00b6 4, 137 N.M. 334, 110 P.3d 1071.\\n{16} Reversing the district court, our Supreme Court in Baker emphasized the key differences between Subsections (A) and (F) of the venue statute and noted that Subsection (F) \\\"designates the limited venues where a foreign corporation with a statutory agent can be sued.\\\" Baker, 2005-NMSC-011, \\u00b6 14, 137 N.M. 334, 110 P.3d 1071. Therefore, \\\"[c]onsistent with legislative intent, Subsection F should be interpreted to give foreign corporations that are admitted to do business and that have designated and maintained a statutory agent in this state the same weight in the venue balance as resident defendants.\\\" Id. \\u00b6 19 (internal quotation marks, citation, and footnote omitted). The Supreme Court concluded that \\\"venue for a non-resident defendant, including a foreign corporation without a statutory agent, cannot determine proper venue for a foreign corporation with a statutory agent.\\\" Id.\\n{17} Plaintiffs argue that Baker is limited to its factual context, which differs from the present cases. They maintain that because venue was proper as to the foreign corporation Defendants with statutory agents in Santa Fe County, it was also proper as to (1) the foreign corporation Defendants with statutory agents in other counties and (2) the New Mexico Defendants with statutory agents in other counties. We address each argument in turn.\\nA. The District Court Properly Dismissed the Foreign Corporation Defendants With Statutory Agents in Counties Other Than Santa Fe County\\n{18} In arguing that venue was proper as to all Defendants in Santa Fe County, Plaintiffs rely on Subsection (A) of the venue statute, which articulates the general rule that the residency of one defendant can establish venue for all. \\u00a7 38-3-1 (A) (stating that \\\"actions shall be brought . in any county in which the defendant or either of them [if there is more than one defendant] may be found\\\"); see also Teaver v. Miller, 53 N.M. 345, 349, 208 P.2d 156, 159 (1949) (explaining that \\\"the residence of one of the defendants determines the venue of the action against all\\\" (emphasis omitted)). In making this argument, however, Plaintiffs overlook the language in Subsection (A) that excepts foreign corporation defendants from application of the general rule and that directs the reader to Subsection (F) in such cases. \\u00a7 38-3-l(A) (stating the general rule of venue \\\"except as provided in Subsection F of this section relating to foreign corporations\\\"). Our Supreme Court specifically recognized this exception in Baker, 2005-NMSC-011, \\u00b6 8, 137 N.M. 334, 110 P.3d 1071 (\\\"If the defendant is a foreign corporation, . Subsection A directs our attention to Subsection F.\\\").\\n{19} Subsection (F) allows a foreign corporation without a statutory agent to be sued anywhere. \\u00a7 38-3-l(F) (\\\"Suits may be brought against . non-residents in any county of this state[.]\\\"). As for foreign corporations with statutory agents, Subsection (F) then specifically states that suits against them \\\"shall only be brought\\\" (1) in the county in which the plaintiff resides; (2) \\\"in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred\\\"; or (3) in the county where the corporation has a statutory agent for receiving service of process. \\u00a7 38-3-l(F). Subsection (F) does not contain the same language as Subsection (A) that allows for venue to be based on proper venue for another defendant, or what might be called \\\"collective venue.\\\"\\n{20} Plaintiffs in the present cases do not argue that either of the first two venue options in Subsection (F) apply because they do not contend either that they reside in Santa Fe County or that the causes of actions arose in Santa Fe County. Therefore, absent these two options, and given the language of Subsection (F) and the holding of Baker, the only counties in which Plaintiffs could sue the foreign corporation Defendants with statutory agents are the counties in which the statutory agents are maintained. In other words, because the \\\"collective\\\" type of venue permitted by Subsection (A) is specifically inapplicable to foreign corporations, venue established by the location of a statutory agent for one foreign corporation Defendant in Santa Fe County cannot properly establish venue for any other foreign corporation Defendant whose statutory agent is maintained in another county. See Baker, 2005-NMSC-011, \\u00b6 19, 137 N.M. 334, 110 P.3d 1071 (stating that \\\"venue for a non-resident defendant . cannot determine proper venue for a foreign corporation with a statutory agent\\\"); see also Blancett v. Dial Oil Co., 2008-NMSC-011, \\u00b6 9, 143 N.M. 368, 176 P.3d 1100 (\\\"By including language about statutory agents in Section 38-3-l(F), the Legislature showed its intent to limit the counties in which certain foreign corporations are subject to suit.\\\"). In S & D, the Lea County Defendants maintained their statutory agents in Lea County, and, therefore, venue is only proper as to them in Lea County. In Bank of America, as to the Lea County Defendants, venue is only proper in Lea County. One Defendant in Bank of America, XTO Energy, Inc. (XTO), is a foreign corporation with a statutory agent in San Juan County. Therefore, venue is proper against XTO only in San Juan County.\\n{21} Plaintiffs Bank and S & D both argue that Baker does not apply in this case and that the controlling case is Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61. Plaintiffs specifically argue that dicta in Cooper suggest that the \\\"collective venue\\\" of Subsection (A), which allows proper venue for one defendant to determine proper venue for another, also applies to foreign corporations. See Cooper, 2002-NMSC-020, \\u00b6 20, 132 N.M. 382, 49 P.3d 61 (\\\"We can discern no basis for applying a separate rule to multiple defendants when venue is based on the residence of a statutory agent.\\\").\\n{22} We disagree. Plaintiffs read Cooper too broadly and ignore the context of the differences in statutory language between Subsections (A) and (F). The plaintiffs in Cooper brought suit in Santa Fe County against multiple defendants based on an incident that occurred in Lea County. 2002-NMSC-020, \\u00b6 2-3, 132 N.M. 382, 49 P.3d 61. Among the defendants, six were foreign corporations with statutory agents in Santa Fe County, two were foreign corporations with statutory agents in Chaves County, and one was a New Mexico corporation. Id. \\u00b6 3. The district court in Cooper originally dismissed the suit for improper venue pursuant to Section 38-3-l(D), finding that the suit involved an interest in land and therefore that venue was only proper in the county where the land was located, Lea County. Cooper, 2002-NMSC-020, \\u00b6 3, 132 N.M. 382, 49 P.3d 61. On appeal, this Court reversed the district court's application of Subsection (D) because the lawsuit did not involve an interest in land. Cooper, 2002-NMSC-020, \\u00b6 4, 132 N.M. 382, 49 P.3d 61. We held that venue was proper in Santa Fe County with respect to the foreign corporation defendants with statutory agents in Santa Fe County and reversed the district court's dismissal of those defendants. See id. We affirmed the district court's dismissal of the foreign corporation defendants with statutory agents in other counties. Id. The plaintiffs in Cooper did not appeal to the Supreme Court our affirmance of the dismissal of the Lea County foreign corporation defendants or the New Mexico corporation defendant. Id. \\u00b6 20 n. 2. Thus, on certiorari, our Supreme Court's opinion resolved the question of proper venue only for the parties \\\"still involved in the present case.\\\" Id. \\u00b6 1, 20 n. 2. By the time the Supreme Court filed its opinion, the only defendants remaining were the foreign corporations with statutory agents in Santa Fe County, the county where the plaintiffs filed their suit.\\n{23} Our Supreme Court granted certiorari in Cooper to respond to the argument, made by the foreign corporation defendants with statutory agents in Santa Fe County, that the registration of a statutory agent by a foreign corporation does not create \\\"residency\\\" for purposes of venue. Id. \\u00b6 11, 15. The Court held that a \\\"statutory agent who maintains an office in New Mexico for . receiving service of process 'resides' in New Mexico regardless of whether it is a foreign corporation or a New Mexico resident.\\\" Id. \\u00b6 19. In addition, the Court in Cooper stated that when the foreign corporations are the defendants, Subsection (F), not Subsection (A),- applies to determine proper venue. Cooper, 2002-NMSC-020, \\u00b6 15, 132 N.M. 382, 49 P.3d 61.\\n{24} .Contrary to Plaintiffs' arguments, Cooper did not address the issue we determine in these cases. Here, we are asked to consider whether the proper venue established for a foreign corporation defendant with a statutory agent in Santa Fe County also establishes proper venue for other foreign corporation defendants with statutory agents in other counties. Cooper informs us that venue is proper in Santa Fe County as to the foreign corporation defendants with statutory agents in Santa Fe County, but it does not speak to the actual question in the present cases. Rather, as discussed above, the plain language of the venue statute and Baker more clearly inform our decision.\\n{25} Plaintiffs also argue that the result we reach \\\"has severe implications for both judicial economy and considerations of fairness to [Plaintiffs, in that it virtually compels [PJlaintiffs to pursue multiple trials.\\\" As we explained above, under Subsection (F), proper venue for all Defendants would lie in Lea County, which is where the causes of action arose, or in the county where any Plaintiff resides. Multiple trials would be unnecessary. As to \\\"considerations of fairness,\\\" our Supreme Court observed that our venue rules are an \\\"attempt to balance the interests of the parties.\\\" Baker, 2005-NMSC-011, \\u00b6 17, 137 N.M. 334, 110 P.3d 1071. \\\"Venue is not a substantive right, but a procedural matter designed for the convenience of the litigants and for allocating judicial resources.\\\" Id. In these cases, Plaintiffs may still bring suit against all Defendants in the county in which any Plaintiff resides or in the county where the causes of action arose. We hardly think that we are being unfair to Plaintiffs by following the language of the statute and eliminating only one of the three venue options as to certain foreign corporation Defendants.\\nB. The District Court Erred in Dismissing the Claims Against the New Mexico Defendants\\n{26} Plaintiffs argue that venue as to the New Mexico Defendants was proper because venue is proper as to the foreign corporations with statutory agents in Santa Fe County. We agree and reverse the district court's dismissal of Plaintiffs' claims against the New Mexico Defendants.\\n{27} Our decision is based on the recent New Mexico Supreme Court case, Gardiner. Gardiner was decided while these appeals were pending and, because it is directly on point, it is controlling law. \\\"Absent an express statement that limits a decision to prospective application, our Supreme Court has established the presumption that a new rule adopted by a judicial decision in a civil case will operate retroactively.\\\" Padilla v. Wall Colmonoy Corp., 2006-NMCA-137, \\u00b6 12, 140 N.M. 630, 145 P.3d 110 (internal quotation marks and citation omitted).\\n{28} In Gardiner, our Supreme Court further explored the relationship between Subsections (A) and (F). The plaintiffs in Gardiner, residents of Bernalillo County, filed suit in Santa Fe County against several defendants after a car accident that occurred in Bernalillo County. 2007-NMSC-052, \\u00b6 2, 142 N.M. 544, 168 P.3d 116. Only one of the twenty foreign corporation defendants maintained a statutory agent in Santa Fe County. Id. The one resident defendant, a New Mexico corporation with a statutory agent in Bernalillo County, moved to dismiss for improper venue, arguing that it could be sued only in Bernalillo County. Id. 1HI2-3. The district court denied the motion to dismiss. Id. \\u00b6 3.\\n{29} In affirming the district court, our Supreme Court interpreted Subsection (A) of the venue statute to mean that a foreign corporation with a statutory agent may establish venue for resident defendants. Gardiner, 2007-NMSC-052, \\u00b6 12, 142 N.M. 544, 168 P.3d 116. The Court noted that the key distinction between Subsections (A) and (F) is that while \\\"the statute limits venue for foreign corporations with statutory agents to the county where the statutory agent resides, it does not so limit venue for resident defendants.\\\" Gardiner, 2007-NMSC-052, \\u00b6 12, 142 N.M. 544, 168 P.3d 116.\\n{30} In S & D, Defendant Pierce Production Co., L.L.C. (Pierce), is a New Mexico corporation with a statutory agent in Eddy County. It does not maintain a statutory agent in Santa Fe County. Venue is nonetheless proper as to Pierce in Santa Fe County under the rule articulated in Gardiner because venue is proper as to the foreign corporation Defendants who have statutory agents in Santa Fe County. Similarly, in Bank of America, venue is proper in Santa Fe County as to New Mexico corporation Defendant Me-Tex Oil & Gas, Inc. (Me-Tex), because venue is proper as to the foreign corporation Defendants with statutory agents in Santa Fe County.\\n{31} Defendants Me-Tex and Pierce argue that allowing a foreign corporation with a statutory agent to determine venue for a New Mexico resident corporation results in a venue scheme favoring foreign corporations with statutory agents over resident defendants, which cannot be consistent with legislative intent. The Supreme Court in Gardiner addressed this argument, and its analysis also lends further support to our holding that venue is improper in this case as to the foreign corporation Defendants with statutory agents outside of Santa Fe County. The Court in Gardiner stated:\\n[w]e recognize that the construction of the venue statute we articulate here appears to favor [the] foreign defendants over [the] local defendants. Foreign corporations wdth statutory agents have the most restricted venue options because they 'shall onl/ be sued where the statutory agent resides. Pursuant to Subsection F, venue for such corporations could not be established based on other resident defendants. However, this interpretation is not inconsistent with the text of the statute, policy goals, or longstanding practice. Subsection A does not have the limiting language that is present in Subsection F, and thus, there are a broader range of venue options for resident defendants. Nor is it implausible that the Legislature would adopt a policy favoring [the] foreign defendants doing business in New Mexico. There are rewards that New Mexico obtains by inducing large foreign corporations to obtain a local agent, thereby facilitating service of process and perhaps achieving other benefits as well. Moreover, regardless of the policy choices that may have motivated the particular language of the venue statute, to the extent they are not reflected in the current statute, it is for the Legislature to address.\\nGardiner, 2007-NMSC-052, \\u00b6 15, 142 N.M. 544, 168 P.3d 116. While our holding could be construed as being more favorable to a foreign corporation defendant with a statutory agent, our position is supported by the language of the venue statute and the public policy of New Mexico.\\n{32} We therefore reverse the district courts' dismissal as to the New Mexico Defendants for improper venue in both Bank of America and S &D.\\nII. The District Court Properly Denied the S & D Cross-Appeal Defendants' Motion To Dismiss Based on Subsection (D) of the Venue Statute\\n{33} In S & D the Cross-Appeal Defendants, Dynegy, Hendrix, and Chesapeake, cross-appeal the district court's decision denying their motion to dismiss based on improper venue under Section 38-3-l(D). Subsection (D) of the venue statute states that \\\"[w]hen lands or any interest in lands are the object of any suit in whole or in part, the suit shall be brought in the county where the land or any portion of the land is situate.\\\" \\u00a7 38-3-l(D). The Cross-Appeal Defendants maintain that the suit brought by Plaintiffs S & D-Sims is \\\"based on a nuisance claim related to real property\\\" and therefore falls within the ambit of Subsection (D). The holding in Cooper is directly contrary to this argument. Cooper stated: \\\"Claims for damages do not have lands or interest in lands as their object. Accordingly, a lawsuit comprised exclusively of claims for damages need not be brought in the county where the land is situated.\\\" 2002-NMSC-020, \\u00b6 8, 132 N.M. 382, 49 P.3d 61. The Court stated that \\\"[e]ven though the complaint makes reference to a continuing nuisance, [the plaintiffs' request for relief is clearly for monetary, not injunctive, relief.\\\" Id. \\u00b6 10. In the present case, Plaintiffs S & D-Sims seek only monetary relief. Because Cooper's holding does not support their argument, the Cross-Appeal Defendants maintain that Cooper should be overruled.\\n{34} This Court is bound by the decisions of our Supreme Court. \\\"The general rule is that a court lower in rank than the court which made the decision invoked as a precedent cannot deviate therefrom and decide contrary to that precedent, irrespective of whether it considers the rule laid down therein as correct or incorrect.\\\" Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (internal quotation marks and citation omitted). Because the Cross-Appeal Defendants concede that an outcome favorable to them requires rejection of the holding in Cooper, we do not address their arguments and we affirm the district court's denial of their motion to dismiss.\\nCONCLUSION\\n{35} For the foregoing reasons, we affirm the district courts' dismissal with respect to the foreign corporation Defendants with statutory agents in counties other than Santa Fe County in both Bank of America and S & D. We also affirm the district court's denial of dismissal in the cross-appeal in S & D. We reverse the district courts' dismissal for improper venue as to the New Mexico Defendants in both S & D and Bank of America, and remand for proceedings consistent with this opinion.\\n{36} IT IS SO ORDERED.\\nWE CONCUR: JONATHAN B. SUTIN, Chief Judge and MICHAEL D. BUSTAMANTE, Judge.\"}"
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+"{\"id\": \"4002731\", \"name\": \"STATE of New Mexico, Plaintiff-Petitioner, v. Robert ELLIS, Defendant-Respondent\", \"name_abbreviation\": \"State v. Ellis\", \"decision_date\": \"2008-05-28\", \"docket_number\": \"No. 30,258\", \"first_page\": \"253\", \"last_page\": 264, \"citations\": \"144 N.M. 253\", \"volume\": \"144\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:20:48.124782+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: EDWARD L. CH\\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and CHARLES W. DANIELS, Justices.\", \"parties\": \"STATE of New Mexico, Plaintiff-Petitioner, v. Robert ELLIS, Defendant-Respondent.\", \"head_matter\": \"2008-NMSC-032\\n186 P.3d 245\\nSTATE of New Mexico, Plaintiff-Petitioner, v. Robert ELLIS, Defendant-Respondent.\\nNo. 30,258.\\nSupreme Court of New Mexico.\\nMay 28, 2008.\\nGary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Petitioner.\\nTempleton & Crutchfield, C. Barry Crutchfield, Lovington, NM, for Respondent.\", \"word_count\": \"7166\", \"char_count\": \"44575\", \"text\": \"OPINION\\nBOSSON, Justice.\\n{1} During a routine traffic stop, Defendant Robert Ellis threatened Eddy County Sheriffs Deputy Ruben Castro with a tire iron, for which he was charged and convicted of aggravated assault on a peace officer, a felony. At trial, Defendant claimed that he acted in self-defense against the deputy's alleged use of excessive force, and the jury was so instructed, though imperfectly. At the heart of this case lies Defendant's claim that he was entitled to a self-defense instruction, and the related issue of whether any jury reasonably could have found Deputy Castro's use of force excessive in light of the evidence presented at trial. We conclude that Defendant did not present evidence of excessive force by Deputy Castro, and thus was not entitled to a jury instruction on self-defense. It follows that any error in the self-defense instruction actually given at trial is inconsequential. The Court of Appeals having held otherwise, we reverse and affirm Defendant's conviction.\\nBACKGROUND\\n{2} The following overview of the events that took place on August 13, 2004, provides the initial framework for our discussion, which we will supplement as necessary further in the Opinion. The facts recited in this Opinion are derived from the trial testimony of Defendant, the passenger Roy Peppers, and Deputy Castro, as well as from the videotape of the encounter, which this Court reviewed, that was recorded by Deputy Castro's in-car camera. The videotape of the encounter was admitted as evidence and was played for the jury. A large portion of the encounter was not captured on tape, and many of the key scenes take place off-camera. However, the deputy's microphone recorded the conversations that took place off-camera. Because we review the evidence in the light most favorable to the giving of the self-defense instruction, State v. Duarte, 1996-NMCA-038, \\u00b6 5, 121 N.M. 553, 915 P.2d 309, when there is contradictory testimony, we rely on Defendant's version of the events. For example, Deputy Castro denied drawing his gun during the first encounter, contrary to Defendant's testimony that the deputy drew his gun twice. For purposes of this Opinion, we consider the contested facts as alleged by Defendant.\\n{3} The events that transpired are best described as two separate encounters occur ring on the same evening. The first encounter occurred when Deputy Castro pulled Defendant over for the seatbelt violation. The second encounter occurred after Defendant refused to stay at the site of the initial encounter, contrary to the Deputy's instructions. At trial, Defendant focused on the events of the first encounter, specifically the fact that Deputy Castro drew his weapon twice, as evidence that Deputy Castro used excessive force, which justified Defendant's threat of force during the second encounter.\\n{4} The first encounter began when Deputy Castro observed that neither occupant of an oncoming truck was wearing a seatbelt. Deputy Castro activated his emergency lights, indicating that he wanted the vehicle to pull over. When Deputy Castro approached the truck, both Defendant and the passenger were wearing their seatbelts. Defendant told Deputy Castro that he was test-driving the truck, which belonged to a Terry Mann. After processing their information, Deputy Castro stated that he was going to issue Defendant a citation for failure to wear a seatbelt and a warning for lack of insurance.\\n{5} At this point, Defendant's mood appeared to change. He argued with Deputy Castro and he went so far as to grab his driver's license from the deputy's clipboard without permission. It was then, according to Defendant, that Deputy Castro first drew his gun and pointed it at the ground. Defendant started pacing back and forth between his truck and the patrol car. Defendant testified that Deputy Castro pulled his gun a second time during this initial encounter and pointed it directly at Defendant. The first encounter ended when Defendant returned to the truck and left the scene. Defendant testified that he told the deputy that he was returning to the Mann house because he was afraid that the deputy was going to shoot him, and he wanted witnesses. Deputy Castro followed Defendant with his siren activated for the mile-and-a-half trip to Mann's home.\\n{6} The second encounter began when Defendant arrived at the Mann house. Upon reaching the driveway, Defendant got out of his car in an aggressive manner, immediately approached the deputy's patrol car, and confronted him. Defendant can be heard on the video threatening the deputy, yelling, \\\"I'll whip your f------ ass,\\\" and \\\"I'll beat your ass____ Don't ever pull a gun on me.\\\" Meanwhile, Deputy Castro can be heard yelling, \\\"Get down, get down.\\\" Deputy Castro then sprayed Defendant twice with pepper spray and, testified Defendant, drew his weapon again. According to Deputy Castro, he drew his gun for the first time when he got out of his patrol car at the second stop.\\n{7} Defendant testified that at this point he needed to protect himself against Deputy Castro, and so he picked up a tire iron from the bed of the truck. With the tire iron in hand, he approached the deputy in a threatening manner, although he never actually struck the deputy. Instead, Defendant threw the tire iron away from the deputy's direction and, after it landed, returned it to the bed of the pickup truck. During this time, both Defendant and Peppers continued to threaten Deputy Castro. Eventually, other officers arrived at the house and, after a struggle, Defendant was subdued and arrested. Defendant was charged with aggravated assault upon a peace officer and with resisting, evading or obstructing a peace officer.\\n{8} Defendant's first trial ended with a conviction for the misdemeanor count of resisting, evading or obstructing, but with a mistrial on the felony count of aggravated assault upon a peace officer. Defendant was tried a second time for aggravated assault and was convicted. In both trials, Defendant argued successfully that he was entitled to a self-defense instruction, claiming that Deputy Castro used excessive force when he drew his gun twice during the first encounter for a mere seatbelt violation.\\n{9} And, in both trials, the district court agreed that Defendant was entitled to a self-defense instruction. However, the court did not include the phrase, \\\"Defendant did not act in self defense,\\\" as one of the essential elements of the crime of aggravated assault that the State was required to prove. During the jury instruction conference at the second trial, Defendant specifically requested that the phrase be included in the aggravated assault instruction, but the court refused, stating, \\\"Self-defense covers it.....That doesn't go in the elements instruction.\\\"\\n{10} After his conviction for aggravated assault, Defendant appealed to the Court of Appeals arguing that his aggravated assault conviction should be reversed because the jury was improperly instructed with regard to self-defense. State v. Ellis, 2007-NMCA-037, \\u00b6 7, 141 N.M. 370, 155 P.3d 775. The Court of Appeals agreed with Defendant, holding that the failure to include the phrase \\\"did not act in self defense,\\\" having been preserved at trial, was reversible error justifying a new trial. Id. \\u00b6 29-31. We granted certiorari to determine whether the evidence presented at trial entitled Defendant to a self-defense instruction, and thus, whether any error in the jury instruction given was harmless.\\nDISCUSSION\\n{11} The Court of Appeals, after a thorough discussion, held that \\\"the district court erred in refusing Defendant's tendered jury instruction.\\\" Id. \\u00b6 7. On certiorari to this Court, and on appeal to the Court of Appeals, the State concedes error. Nevertheless, the State contends that Defendant's conviction should be upheld because Defendant was not entitled to a self-defense instruction. For the reasons that follow, we agree that the trial court committed error below.\\n{12} As we have previously held, a failure to instruct the jury \\\"on the element of unlawfulness after self-defense evidence had been introduced\\\" is reversible error, because the jury is not instructed on all of the elements essential for conviction. State v. Parish, 118 N.M. 39, 44, 878 P.2d 988, 993 (1994). The Use Notes for the Uniform Jury Instructions on self-defense provide that, if a self-defense instruction is necessary, the district court must include the phrase \\\"[t]he defendant did not act in self defense\\\" with the essential elements of the crime that the State must prove. See UJI 14-5181 NMRA Use Note 1; UJI 14-5183 NMRA Use Note 1. When a defendant is charged with certain offenses, including assault and battery, the court should include an \\\"unlawfulness instruction.\\\" UJI 14-132 NMRA Use Note 1. The unlawfulness instruction \\\"is intended to aid the court and the parties in preparing an instruction when the statutory definition of the offense includes the term 'unlawful' and an issue is raised as to the lawfulness of the defendant's act.\\\" Id. The Use Note further instructs that if the \\\"instruction is given, add to the essential elements instruction of the offense charged, 'The defendant's act was unlawful.' \\\" Id. Finally, the Use Note states that the \\\"instruction need not be given if the unlawfulness element is included in another instruction such as self-defense or defense of another.\\\" Id.\\n{13} The district court, believing that the \\\"unlawfulness instruction\\\" was adequate, rejected Defendant's requested instruction, stating, \\\"You don't get both.\\\" The Use Notes make it clear that when a self-defense instruction is given, the district court must include the phrase, \\\"The Defendant did not act in self defense.\\\" Thus, the district court, when faced with the decision of including either the unlawfulness instruction or the phrase \\\"The Defendant did not act in self defense,\\\" erroneously chose to submit only the \\\"unlawfulness instruction.\\\" Therefore, we agree with Defendant's position, and with the State's concession, that the jury instruction on aggravated assault of a peace officer was flawed.\\nThe Error is Reversible Only if the Self-Defense Instruction was Justified\\n{14} When, as in this case, a challenge to the jury instructions has been preserved, we review for reversible error. State v. Benally, 2001-NMSC-033, \\u00b6 12, 131 N.M. 258, 34 P.3d 1134. \\\"A jury instruction which does not instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury is reversible error.\\\" Parish, 118 N.M. at 44, 878 P.2d at 993 (quoted authority omitted). \\\"The trial court's rejection of [d]efendant's submitted jury instructions is reviewed by this Court de novo, because it is closer to a determination of law than a determination of fact.\\\" State v. Lucero, 1998-NMSC-044, \\u00b6 5, 126 N.M. 552, 972 P.2d 1143.\\n{15} However, \\\"a self-defense instruction is required whenever [or if] a de fendant presents evidence sufficient to allow reasonable minds to differ as to all elements of the defense.\\\" State v. Lopez, 2000-NMSC-003, \\u00b6 23, 128 N.M. 410, 993 P.2d 727 (quoted authority omitted). When asserting self-defense against a private citizen, but not against a law enforcement officer, a defendant has an \\\"unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction.\\\" State v. Kraul, 90 N.M. 314, 318, 563 P.2d 108, 112 (Ct.App.1977), cert, denied, 90 N.M. 637, 567 P.2d 486 (1977) (emphasis added). By comparison, a person has only a qualified right to assert self-defense against a police officer, because police officers have a duty to make arrests and a right to use reasonable force when necessary. Id. at 319, 563 P.2d at 113; Alaniz v. Funk, 69 N.M. 164, 168, 364 P.2d 1033, 1035 (1961) (\\\"It was the duty of the [officer] to use every reasonable effort to apprehend the felon; . and even though the unfortunate results occurred, the [officer] should not be held liable for attempting to perform his duty.\\\"). \\\" 'Because of [the] duties devolved upon [the officer] [sic] the law throws around him a special protection. [H]is duty is to overcome all resistance, and bring the party to be arrested under physical restraint, and the means he may use must be coextensive with the duty.' \\\" State v. Vargas, 42 N.M. 1, 7, 74 P.2d 62, 66 (1937) (quoting State v. Dierberger, 96 Mo. 666, 10 S.W. 168, 171 (1888)) (citation omitted). Therefore, although \\\"[o]ne does have a right to defend oneself from a police officer,\\\" it is clear that \\\"[t]his right . is limited.\\\" Kraul, 90 N.M. at 318-19, 563 P.2d at 112-13.\\n{16} This limitation entitles one to assert self-defense only when the officer is using excessive force. \\\"One may defend oneself against excessive use of force by the officer. One does not have the right to self-defense when the officer is using necessary force to effect an arrest.\\\" Id. at 319, 563 P.2d at 113; see also People v. Sims, 374 Ill.App.3d 427, 312 Ill.Dec. 753, 871 N.E.2d 153, 157 (2007) (\\\"[A]n instruction on self-defense is required in a resisting arrest (or battery) case when the defendant has presented some evidence of excessive force on the part of the arresting officer.\\\").\\n{17} \\\"[Generally, the question of the reasonableness of the actions of the officer . is a question of fact for the jury.\\\" Alaniz, 69 N.M. at 167, 364 P.2d at 1035. However, a court may make that determination, as a matter of law, when \\\"the minds of reasonable [jurors] could not differ under the circumstances as they appeared to the [officer] at the time.\\\" Id. at 168, 364 P.2d at 1035. Therefore, when a defendant asserts self-defense against a police officer, a court must determine whether, under the evidence presented, reasonable minds could differ with respect to whether the officer used excessive force. If the court determines that reasonable minds could differ, the jury must be instructed on an officer's limited right to use reasonable and necessary force, and on the accused's limited right of defense if the officer used excessive force. If, however, the court concludes that reasonable minds could not find that the officer used excessive force, the matter ends there, and the court should not instruct the jury on the elements of self-defense.\\nEvaluating a Claim of Excessive Force Sufficient to Justify a Claim of Self-defense Against a Peace Officer\\n{18} Defendant argues that Deputy Castro's actions, particularly when he pointed his gun at Defendant during the initial encounter, constituted excessive force, or a reason able jury could so find, which triggered his right to threaten force in his own defense. Defendant contends that \\\"in the absence of evidence of great bodily harm or death, the display of a deadly weapon by an officer under the facts of this matter is not supportable.\\\" Relying on State v. Hill, 2001-NMCA-094, 131 N.M. 195, 34 P.3d 139, Defendant further asserts that the question of excessive force is an issue of fact within \\\"the fact-finding responsibility of the jury.\\\" The Court of Appeals agreed stating, \\\"because there was sufficient evidence to support a self-defense instruction, the issue of whether Deputy Castro used excessive force is best left to a properly instructed jury.\\\" Ellis, 2007-NMCA-037, \\u00b6 27, 141 N.M. 370, 155 P.3d 775 (citing Hill, 2001-NMCA-094, \\u00b6 8, 131 N.M. 195, 34 P.3d 139).\\n{19} The State takes the opposite position. It argues, both in this Court and in the Court of Appeals, that reasonable minds could not differ because the deputy's actions, no matter how Defendant perceived them, did not amount to excessive force. Therefore, Defendant had no right to threaten Deputy Castro with a tire iron in his own defense. The State suggests that excessive force claims should be analyzed under the \\\"reasonableness\\\" standard of the Fourth Amendment to the U.S. Constitution. Convinced that the deputy acted reasonably, the State requests that \\\"[t]his Court . determine as a matter of law that there was no excessive force, because reasonable minds could not differ on this point.\\\"\\n{20} The Court of Appeals rejected the State's reliance on cases setting forth the reasonableness standard of the Fourth Amendment because, it concluded, those cases \\\"address the issue of excessive force by police officers in the context of civil lawsuits,\\\" and because \\\"the bulk of [the cases cited by the State] are federal cases decided under different standards.\\\" Ellis, 2007-NMCA-037, \\u00b6 22, 23, 141 N.M. 370, 155 P.3d 775. The Court also rejected the reasonableness standard because it focuses on the need for force from the officer's perspective instead of on the officer's use of force as perceived by the defendant. Id. \\u00b6 22. The Court of Appeals concluded that an analysis of excessive force, sufficient to justify a defendant's use of force in his own defense, is properly viewed from the perspective of \\\" 'a reasonable person in the same circumstances . as the defendant.' \\\" Id. (alteration in original) (quoting State v. Hernandez, 2004-NMCA-045, \\u00b6 10, 135 N.M. 416, 89 P.3d 88, cert, denied, 2004-NMCERT-004, 135 N.M. 562, 91 P.3d 603).\\n{21} As an initial matter, therefore, we must determine the appropriate standard of analysis for determining whether an officer's use of force was excessive, sufficient to justify a limited claim of self-defense. We begin with New Mexico ease law which, though limited, offers some guidance. After reviewing New Mexico law, we turn to case law from other jurisdictions which we find instructive.\\n{22} Our examination begins with New Mexico case law discussing the use of force in contexts other than self-defense. In Alaniz, when discussing the trial court's conclusion that an officer did not use excessive force in shooting a fleeing felon, this Court examined the \\\"circumstances as they appeared to the [officer] at the time of the shooting.\\\" Alaniz, 69 N.M. at 168, 364 P.2d at 1035. We noted that \\\"[w]hen the state sends an officer to make an arrest for a felony, he must use his best judgment to make the arrest, peaceably if he can, but forcibly if he must.\\\" Id. (emphasis added). Therefore, when considering whether the officer's use of force was reasonable, we considered the perspective of the officer.\\n{23} Also, in determining whether an officer's actions provoked a defendant sufficiently to entitle him to a step-down instruction on voluntary manslaughter, this Court first had to decide whether the officer was acting lawfully, because \\\"[a]cts of a peace officer exercising his duties in a lawful manner cannot rise to the level of sufficient provocation\\\" to lower the grade of homicide. State v. Manus, 93 N.M. 95, 100, 597 P.2d 280, 285 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). Our inquiry into the lawfulness of the officer's actions focused on whether the officer was \\\"exercising reasonable and necessary force, or . unreasonable, and therefore, excessive force.\\\" Id. We looked specifically to the officer's perspective, stating that \\\" '[o]fficers, within reasonable limits, are the judges of the force necessary to enable them to make arrests or to preserve the peace.' \\\" Id. (quoting Mead v. O'Connor, 66 N.M. 170, 173, 344 P.2d 478, 479-80 (1959)); see also State v. Mantelli 2002-NMCA-033, \\u00b6 25, 131 N.M. 692, 42 P.3d 272 (holding that the standard to be applied when an officer asserts the defense of justifiable homicide is \\\"an objective analysis evaluated from [the officer's] perspective at the time of the incident and is necessarily a factual inquiry\\\"); State v. Johnson, 1998-NMCA-019, \\u00b621, 124 N.M. 647, 954 P.2d 79 (holding that the standard to be applied when a citizen asserts the defense of justifiable homicide is one of objective reasonableness from the perspective of the person applying lethal force).\\n{24} In Kraul, a case involving a claim of self-defense against a police officer, our Court of Appeals provided additional guidance by observing that \\\"[o]ne may defend oneself against excessive use of force by the officer,\\\" but not \\\"when the officer is using necessary force to effect an arrest.\\\" 90 N.M. at 319, 563 P.2d at 113. A fair reading of Kraul suggests that the police officer's privilege of using necessary force implies that the necessity of the force should be measured from the perspective of an objectively reasonable officer and not from what an arrestee might think would be reasonable. Otherwise, an officer would have to take the subjective beliefs of the person to be arrested into consideration when determining the amount of force necessary to accomplish the arrest.\\n{25} We are also informed by federal jurisprudence regarding the Fourth Amendment's protections against unreasonable searches and seizures, including the protection against excessive force (an unreasonable seizure) in the course of an arrest. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (\\\"Where . the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment....\\\"). While \\\"the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it,\\\" the officer's use of force must be reasonable. Id. at 396, 109 S.Ct. 1865 (citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).\\n{26} According to the text of Graham, any determination about the reasonableness of an officer's use of force \\\"must be judged from the perspective of a reasonable officer on the scene.\\\" Id. The standard \\\"is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.\\\" Id. at 397, 109 S.Ct. 1865. A court considers \\\"the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.\\\" Id. at 396, 109 S.Ct. 1865; see also Archuleta v. LaCuesta, 1999-NMCA-113, \\u00b6 8, 128 N.M. 13, 988 P.2d 883 (\\\"The reasonableness of the use of deadly force in any particular situation is an objective test from the perspective of the officer on the scene, with the understanding that officers must often make split-second decisions in difficult situations about what force is necessary.\\\"). Significantly, under the analysis in Graham, a court must consider \\\"the fact that police officers are often forced to make split-second judgments \\u2014 -in circumstances that are tense, uncertain, and rapidly evolving \\u2014 about the amount of force that is necessary in a particular situation.\\\" Graham, 490 U.S. at 397, 109 S.Ct. 1865.\\n{27} In an effort to distinguish its analysis from this federal constitutional jurisprudence, our Court of Appeals relied on its' opinion in Hernandez, and \\\"warned against 'borrowing legal propositions pertaining to excessive force in a civil proceeding and importing them wholesale into the context of self-defense in a criminal action.'\\\" Ellis, 2007-NMCA-037, \\u00b622, 141 N.M. 370, 155 P.3d 775 (quoting Hernandez, 2004-NMCA-045, \\u00b6 10, 135 N.M. 416, 89 P.3d 88). The Hernandez court was concerned that applying the civil rights standard, i.e., viewing the circumstances from an officer's perspective, \\\"would criminalize self-defense any time an officer believes his actions are justified, regardless of whether the officer's actions would put a reasonable citizen in fear of immediate danger of bodily harm.\\\" Hernandez, 2004-NMCA-045, \\u00b6 10, 135 N.M. 416, 89 P.3d 88.\\n{28} We appreciate the concern, expressed in both the instant appeal and in Hernandez, that we not erect an unreasonably high barrier to an appropriate claim of self-defense against the use of excessive force by a police officer. We are not persuaded, however, that analyzing an officer's use of force by using an objectively reasonable standard will necessarily \\\"criminalize self-defense.\\\" Certainly, if a court were to consider only the subjective beliefs of the officer at the scene, self-defense against a peace officer might be eviscerated. See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (adopting an objective, reasonableness standard for searches and seizures because \\\"[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects, only in the discretion of the police\\\" (quoted authority omitted)). An objective view, however, based on a reasonable officer's opinion about the use of force, and not on the officer's subjective view, comports with our view that a well-trained police officer, within reasonable limits, is in the best position to \\\"judge . the force necessary to enable them to make arrests or to preserve the peace,\\\" Manus, 93 N.M. at 100, 597 P.2d at 285 (quoted authority omitted), while at the same time remaining faithful to the tenet that \\\"[t]he right of self-defense is not barred simply because the other person in the affray is a police officer.\\\" Kraul, 90 N.M. at 318, 563 P.2d at 112.\\n{29} Most importantly, it will be the jury, not the officer, who ultimately decides whether the officer's use of force, when viewed objectively, was reasonable or excessive, assuming an adequate evidentiary record. And the State always bears the burden of persuasion that the degree of force used by the officer was reasonable and not excessive. See UJI 14-5181 (\\\"The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable.doubt as to whether the defendant acted in self defense, you must find the defendant not guilty.\\\"); UJI 14-5183 (same).\\n{30} Further, the Court of Appeals' opinion in Hernandez contains an internal inconsistency, which we resolve in this Opinion. The opinion correctly acknowledges that officers are permitted to use \\\"necessary force\\\" and that the self-defense jury instruction must be modified to reflect the \\\"sharply limited\\\" nature of self-defense against a peace officer. Hernandez, 2004-NMCA-045, \\u00b6 11, 135 N.M. 416, 89 P.3d 88. The Hernandez court, discussing the self-defense instruction, aptly noted that the instruction offered at trial \\\"precisely conveyed the limits on self-defense against a peace officer\\\" when it \\\"included the language that '[o]ne does not have the right to self defense when the officer is using necessary force to effect an arrest.' \\\" Id. (emphasis added) (alteration in original). The court concluded that \\\"[t]his language communicated to the jury the essential legal proposition that citizens must submit to necessary officer force.\\\" Id. Nevertheless, the court rejected viewing excessive force from the officer's perspective because such a perspective would \\\"criminalize self-defense any time an officer believes his actions are justified.\\\" Id. \\u00b6 10.\\n{31} For reasons previously stated, we believe that an objective reasonableness standard addresses the apparent inconsistencies in Hernandez. Such a standard acknowledges that \\\"necessary force to effect an arrest\\\" is properly viewed objectively from a reasonable officer's perspective, but also allows a citizen to assert self-defense against a peace officer, based upon a proper record, despite the officer's subjective belief that the amount of force he used was necessary. The State must prove to the jury that the officer met an objectively reasonable standard in employing force against the defendant. This standard is consistent with case law in New Mexico, recognizing that the jury should be instructed on the limited nature of self-defense against a peace officer. See Hill, 2001-NMCA-094, \\u00b6 11, 131 N.M. 195, 34 P.3d 139(noting that, on remand, the jury instruction should \\\"incorporat[e] the limitations applicable to self-defense against a police officer\\\"). To the limited extent that Hernandez conflicts with our holding, we modify that language in the Court of Appeals' opinion today.\\n{32} That the jury is called upon to determine both the reasonableness of the officer's use of force and the reasonableness of defendant's resort to self-defense is consistent with case law from other jurisdictions, where courts have indicated that self-defense against a peace officer includes an additional requirement \\u2014 that the officer used excessive force. See, e.g., Wright v. State, 705 So.2d 102, 105 (Fl.Dist.Ct.App.1998) (\\\"Whether a police officer used excessive force and whether a defendant used reasonable force in response are jury questions _\\\" (emphasis added)); Sims, 312 Ill.Dec. 753, 871 N.E.2d at 157 (\\\"[A]n instruction on self-defense is required in a resisting arrest (or battery) ease when the defendant has presented some evidence of excessive force on the part of the arresting officer.\\\"); State v. Cox, 532 N.W.2d 384, 388 (N.D.1995) (\\\"One of the disputed issues was whether the evidence showed that [the officer] was acting lawfully when he arrested Cox . Another question for the jury was whether Cox's response to any illegal conduct by [the officer] was reasonable.\\\" (Emphasis added.)); Rodriquez v. State, 544 S.W.2d 382, 384 (Tex.Ct.Crim.App. 1977) ('Whether the officer used greater force than necessary, and whether appellant's beliefs, fears and actions were reasonable as required by statute, were also fact issues for the jury....\\\" (emphasis added)).\\n{33} Importantly, neither party should be constrained in the evidence they offer with respect to the objective reasonableness of the officer's conduct. The State may want to offer the testimony of the officer involved and perhaps expert testimony as well. The defendant should be free to offer evidence with respect to his own perspective and that of a reasonable person under similar circumstances in an effort to persuade the jury that the officer's conduct fell short of an objectively reasonable standard.\\n{34} Of course, the court must first be persuaded that reasonable minds could differ on whether the officer's use of force was excessive, such that a reasonable jury could so conclude. In the case before us, we must keep in mind that Defendant has only claimed that Deputy Castro used excessive force when he drew his gun during the first encounter in response to Defendant's refusal to sign the seatbelt violation. Significantly, Defendant does not claim that any of the deputy's actions during the second encounter were excessive. Therefore, we must inquire whether reasonable minds could differ regarding Deputy Castro's use of force during the first encounter and find it excessive. We now turn to that inquiry.\\nWas evidence presented of Deputy Castro's use of excessive force so as to submit that issue to the jury?\\n{35} Reviewing the evidence in the light most favorable to giving the self-defense instruction, we determine whether reasonable minds could differ regarding whether Deputy Castro used excessive force. Defendant asserts that he had the right to defend himself against Deputy Castro because Deputy Castro twice drew his weapon during the initial encounter, the second time pointing it directly at Defendant. In reviewing the evidence, we consider the facts and circumstances of the first stop, \\\"including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.\\\" Graham, 490 U.S. at 396, 109 S.Ct. 1865. As earlier stated, when faced with conflicting evidence, we assume the truth of Defendant's version for purposes of evaluating whether Defendant sufficiently established a jury issue regarding excessive force. We now turn to the evidence in the record.\\n{36} During the first encounter Defendant did not stay in the truck, despite Deputy Castro's orders to do so, and moved about repeatedly contrary to instructions. During this time, the passenger, Peppers, also remained out of the truck. While the deputy was collecting the initial information, Defendant testified that he \\\"leaned over [Deputy Castro] to make sure everything he was writing down was right.\\\" This would not be too difficult considering Defendant's height is approximately 6'4\\\", while Deputy Castro's height is 5'5\\\". And, Deputy Castro testified that Defendant was approximately two feet from him when Defendant approached Deputy Castro at his patrol car to question him about the citation. Twenty-one feet is considered a safe distance according to Deputy Castro's testimony.\\n{37} During these first few moments of the initial stop, Defendant was polite and cooperative, but his demeanor changed dramatically when Deputy Castro informed Defendant that he was issuing him a citation. Defendant refused to sign the citation, stating, \\\"I won't sign nothing. There's no way I'm signing a ticket for a seatbelt \\u2014 You can't pull me over for a seatbelt. Not in the State of New Mexico.\\\" Defendant continued to refuse to sign the citation, stating, \\\"You better call all the backup you wanna call \\u2014 I'm not signing that ticket.\\\" At some point during this encounter, portions of which took place off-camera, Defendant admitted that he grabbed his license from the deputy's clipboard. Based on Defendant's own testimony and the video footage, it is clear that Defendant acted very aggressively, and that he was both physically and verbally hostile toward Deputy Castro.\\n{38} Defendant acknowledged that Deputy Castro had been polite and respectful toward him, but that the deputy's manner changed after Defendant refused to sign the citation and grabbed his license off the deputy's clipboard. It was at that point, according to Defendant, that Deputy Castro pulled his gun and pointed it at the ground. Deputy Castro testified that he did not feel safe because of Defendant's proximity and his hostile acts. Defendant was aware that his actions affected Deputy Castro; he testified that Deputy Castro was \\\"shaking\\\" during the encounter.\\n{39} Defendant also argues that Deputy Castro used excessive force when the deputy drew his gun a second time and pointed it at Defendant. After grabbing his license off the clipboard, Defendant began pacing back and forth between the truck and the patrol car. Defendant got back into the truck and then abruptly got out again. Defendant walked quickly and aggressively toward the deputy, at which point the deputy backed away, instructing Defendant to stay back. Deputy Castro testified that he attempted to control the situation by ordering Defendant to stay in one place, or come over to the deputy. Defendant, in response to the deputy's commands, stated, \\\"You told me to come over here and then you tell me to stay there. That's your problem.\\\" During this time, both Defendant and Peppers were outside the truck. Deputy Castro ordered Defendant to stay by the tire of the truck; Defendant acknowledged Deputy Castro's order, but then stated that he was going to leave and return to Mann's house. Deputy Castro again ordered Defendant not to leave the scene, and again Defendant refused to comply. It was at some point during these very chaotic moments that Deputy Castro pulled his gun and pointed it directly at Defendant. Defendant then drove away without Deputy Castro firing his weapon.\\n{40} While it is true that the underlying crime at issue in this appeal is relatively minor, a seatbelt violation, it is also clear that the encounter between the deputy and Defendant quickly escalated from a cooperative discussion to an outright, hostile refusal to obey the deputy's commands. Defendant refused to sign the citation, he repeatedly disobeyed the deputy's commands, he threatened the deputy, he actively resisted the deputy's attempts to regain control of the situation, he flaunted the deputy's authority, and ultimately left the scene. A review of the videotape reveals that, while Defendant did not actually harm Deputy Castro, his actions could have been perceived by Deputy Castro as threatening and hostile. In fact, Deputy Castro testified that he was afraid of Defendant, because Defendant was too close to him and that Defendant's aggressive behavior caused Deputy Castro to retreat. Defendant's own testimony reveals that Deputy Castro was shaking during the initial encounter, although Defendant denies that the deputy was shaking out of fear.\\n{41} Based on a review of the totality of the circumstances, we conclude that reasonable minds could not differ and that Deputy Castro used only reasonable and necessary force to protect himself given the \\\"tense, uncertain, and rapidly evolving\\\" circumstances with which he was faced. Graham, 490 U.S. at 397, 109 S.Ct. 1865. Deputy Castro increased his use of force incrementally and in proportion to the circumstances with which he was confronted. Even assuming Deputy Castro twice drew his weapon during this first encounter, he did so only when provoked and in an effort to control the situation and to subdue a hostile, aggressive Defendant. No reasonable jury could conclude that Deputy Castro used excessive force under these circumstances. Thus, we have little difficulty concluding, as a matter of law, that Deputy Castro used an amount of force that was reasonably necessary given the circumstances with which he was faced. Accordingly, Defendant was not entitled to a self-defense instruction. And, the instruction Defendant received, though deficient, was \\\" 'more than he was entitled to.' \\\" State v. Sutphin, 2007-NMSC-045, \\u00b6 27, 142 N.M. 191, 164 P.3d 72 (quoting State v. Heisler, 58 N.M. 446, 452, 272 P.2d 660, 664 (1954)).\\n{42} We emphasize that an officer's use of a drawn weapon to effect an arrest is not always reasonable and nothing in this Opinion should be so construed. However, a review of several cases where courts have determined that the use of force was excessive or that the question should be resolved by the jury are readily distinguishable from the case before us. See, e.g., Petta v. Rivera, 143 F.3d 895, 897-98, 900 (5th Cir.1998) (per curiam) (holding that police officer's use of force was excessive when, after plaintiff re fused to exit the car after being pulled over for speeding, the officer \\\"scream[ed] and curs[ed] her, tried to jerk her door open, . attempted to smash her driver's side window with his nightstick, . menaced her with his .357 Magnum handgun, [and allegedly] fired a shot at her car as she drove away,\\\" despite the fact that her two young children were in the car with her); Sims, 312 Ill.Dec. 753, 871 N.E.2d at 154-60 (holding that trial court erred when it refused defendant's self-defense instruction because jury could have found that the officers used excessive force when they pulled defendant out of the police car, shouted racial epithets at him, beat him while he was handcuffed, and then shackled his feet and returned him to the patrol car, where three officers continued to beat him and maced him in the eyes and mouth); State v. Williams, 367 S.C. 192, 624 S.E.2d 443, 444-46 (Ct.App.2005) (holding that trial court erred when it refused defendant's self-defense instruction because officer used excessive force when he drew his gun, threatened to kick in the defendant's door, and eventually \\\"charged [at the defendant], tackled him, pressed his gun into his ribs, and threatened to kill him\\\" in response to the defendant's unheeded attempts to cooperate with the officer).\\nCONCLUSION\\n{43} We reverse the Court of Appeals and affirm Defendant's conviction and remand to the district court for further proceedings consistent with this Opinion.\\n{44} IT IS SO ORDERED.\\nWE CONCUR: EDWARD L. CH\\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and CHARLES W. DANIELS, Justices.\\n. This Opinion does not address mistake of fact. We intend no change in those situations where, as an example, an accused alleges that he resorted to self-defense based on his mistaken belief that the aggressor was not an officer. Significantly, with respect to aggravated assault on a peace officer, the crime charged in this case, a defendant's knowledge about the identity of an officer is an element of the crime that the State is required to prove beyond a reasonable doubt. See NMSA 1978, \\u00a7 30-22-22 (1971); Reese v. State, 106 N.M. 505, 745 P.2d 1153 (1987). Thus, if the State could not prove beyond a reasonable doubt that the defendant was aware that he was assaulting a police officer, the State would not have met its burden. And, where the defendant's knowledge about the identity of the officer is not an element of a crime, this Opinion should not be read as foreclosing a defendant from asserting a mistake-of-fact defense regarding his mistaken belief about the identity of the aggressor.\\n. We acknowledge that the context of a police officer on trial for excessive force differs from the context of a citizen seeking to justify the use of force against an officer in his own defense. In each case, however, the necessity or reasonableness of the officer's use of force has to be judged by a jury according to some objective standard of police conduct.\\n. Defendant seemed to believe that Deputy Castro's attempt to issue the citation was unlawful based on his opinion that an officer may not issue a ticket simply for failure to wear a seat-belt. Despite Defendant's mistaken belief about the laws of New Mexico, Defendant was not entitled to resist what appeared to him to be an unlawful arrest. Rather than resist arrest, even if the arrest is illegal, we have noted that because \\\"[s]elf-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury.... One can reasonably be asked to submit peaceably and take recourse in his legal remedies.\\\" State v. Doe, 92 N.M. 100, 102-03, 583 P.2d 464, 466-67 (1978) (citations omitted); see also Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224, 1227 (1983) (\\\"In this era of constantly expanding legal . rights ., an arrestee may be reasonably required to submit to a possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty.\\\"). When asked by defense counsel whether his actions were \\\"the school-book solution,\\\" Defendant acknowledged that they were not.\\n. In the instant case, the district court fashioned a jury instruction that, in large part, reflects the reasoning set forth in this Opinion. The self-defense instruction contained in Jury Instruction No. 11 correctly stated that Defendant had no right to defend himself against the officer unless the officer used excessive force. The instruction further defined excessive force as \\\"greater force than reasonably necessary to the performance of the duties of the officer.\\\" The instruction then set forth the requirements of a traditional self-defense claim, and concluded by properly placing the burden on the State.\\nHaving reviewed the jury instruction crafted by the trial court in this case, as well as the existing jury instructions for self-defense, we conclude that we need a jury instruction specifically directed towards the limited right of self-defense against excessive force by a police officer. By means of this Opinion, we invite the Uniform Juiy Instruction Criminal Committee to address this matter consistent with the views expressed in this Opinion. We suggest modifying the existing self-defense instructions for both non-deadly force and deadly force as follows:\\nEvidence has been presented that the defendant acted in self-defense. A defendant has the right to defend himself against an officer if the officer used excessive force. Excessive force means greater force than reasonably necessary. The defendant acted in self-defense if:\\n1. The officer used greater force than reasonable and necessary by (insert act of officer here) and;\\nThe remaining elements of self-defense, as well as the paragraph placing the burden of proof on the State, should mirror the language currently contained in UJI 14-5181 (non-deadly force) and UJI 14-5183 (deadly force).\"}"
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+"{\"id\": \"4076964\", \"name\": \"JOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff-Appellant, v. COUNTY OF SANTA FE, Third-Party Defendant-Appellee\", \"name_abbreviation\": \"Loya v. Gutierrez\", \"decision_date\": \"2014-02-07\", \"docket_number\": \"No. 34,447; Docket No. 32,405\", \"first_page\": \"510\", \"last_page\": 518, \"citations\": \"2014-NMCA-028\", \"volume\": \"5\", \"reporter\": \"New Mexico Appellate Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:09:43.148484+00:00\", \"provenance\": \"CAP\", \"judges\": \"LINDA M. VANZI, Judge\", \"parties\": \"JOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff-Appellant, v. COUNTY OF SANTA FE, Third-Party Defendant-Appellee.\", \"head_matter\": \"Certiorari Granted, February 7, 2014,\\nNo. 34,447\\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\\nOpinion Number: 2014-NMCA-028\\nFiling Date: November 13, 2013\\nDocket No. 32,405\\nJOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff-Appellant, v. COUNTY OF SANTA FE, Third-Party Defendant-Appellee.\\nRay A. Padilla, P.C. Ray A. Padilla Albuquerque, NM for Appellant\\nLaw Office of Michael Dickman Michael Dickman Santa Fe, NM for Appellee\", \"word_count\": \"3602\", \"char_count\": \"22376\", \"text\": \"OPINION\\nVANZI, Judge.\\n{1} In this case, the issue before us is whether the County of Santa Fe (the County) has a duty to defend or indemnify a tribal police officer who, while exercising his authority as a commissioned County sheriffs deputy, unlawfully arrested a non-Indian person within the exterior boundaries of the Pueblo of Pojoaque (the Pueblo). The district court concluded that the County did not have a duty to defend and/or indemnify Officer Glen Gutierrez because he was not a \\\"public employee\\\" or \\\"law enforcement officer\\\" of a \\\"governmental entity\\\" as those terms are defined by the New Mexico Tort Claims Act (the TCA), NMSA 1978, \\u00a7 41-4-1 to -30 (1976, as amended through 2013). See \\u00a7 41-4-3. We agree with the district court and affirm.\\nBACKGROUND\\n{2} The parties do not dispute the facts. The essential allegations in the underlying complaint are that Appellant Officer Gutierrez, while on official duty for the Pueblo police department, made a traffic stop of Plaintiff Jose Luis Loya's vehicle. The stop occurred on U.S. Highway 84/285, a state-maintained road within the exterior boundaries of the Pueblo. At the time of the stop, Officer Gutierrez was dressed in his full tribal police uniform, displaying his tribal badge of office, and driving his tribally issued police vehicle. In addition to acting under tribal law, Officer Gutierrez was also on duty as a duly commissioned Santa Fe County Deputy Sheriff, which gave him the authority to arrest, charge, and jail non-Indians, such as Loya, for violations of New Mexico state law.\\n{3} Ultimately, Officer Gutierrez, along with two other tribal officers, arrested Loya for reckless driving under NMSA 1978, Section 66-8-113 (1987) and took him to the tribal police department for processing. Loya was subsequently transported to the Santa Fe County jail and later prosecuted for the offense in the Santa Fe County Magistrate Court.\\n{4} As a result of the incident, Loya filed a complaint against Officer Gutierrez and brought claims against him under 42 U.S.C. \\u00a7 1983 (1996) for false arrest, malicious prosecution, and use of excessive force. In his answer to Loya's complaint, Officer Gutierrez filed a third-party declaratory judgment action against the County, stating that the County was required to defend and indemnify him in the matter. On cross-motions for summary judgment, and after hearing argument from the parties, the district court ruled that the County did not have a duty to defend and/or indemnify Officer Gutierrez. The court based its decision on the grounds that the issue was governed by the TCA and that to receive the benefit of the defense and indemnification provisions of the TCA, Officer Gutierrez had to be a \\\"public employee\\\" or \\\"law enforcement officer\\\" of a \\\"governmental entity\\\" as those terms are defined. The district court found that Officer Gutierrez was not a full-time or part-time salaried officer employed by the County, but rather, he was a police officer hired, trained, supervised, subject to discipline, and employed by the Pueblo. Further, the court found that the Pueblo is a sovereign Indian tribe that is not a \\\"governmental entity\\\" as defined by the TCA. Therefore, the district court ruled that the County had no duty to defend and/or indemnify Officer Gutierrez. This appeal timely followed.\\nDISCUSSION\\nStandard of Review\\n{5} \\\"Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\\\" Self v. United Parcel Serv., Inc., 1998-NMSC-046, \\u00b6 6, 126 N.M. 396, 970 P.2d 582. We review the grant of summary judgment under a de novo standard of review. Id.; City of Albuquerque v. BPLW Architects & Eng'rs, Inc., 2009-NMCA-081, \\u00b6 7, 146 N.M. 717, 213 P.3d 1146 (holding that \\\"if no material issues of fact are in dispute and an appeal presents only a question of law, we apply de novo review\\\").\\n{6} In addition, we review the district court's interpretation of the TCA as a question of law subject to de novo review. Am. Fed'n of State, Cnty. & Mun. Emps., Council 18 v. City of Albuquerque, 2013-NMCA-012, \\u00b6 6, 293 P.3d 943, cert. quashed, 2013-NMCERT-008, 309 P.3d 101. \\\"In construing a statute, our charge is to determine and give effect to the Legislature's intent.\\\" Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009-NMSC-013, \\u00b6 9, 146 N.M. 24, 206 P.3d 135. \\\"In discerning the Legislature's intent, we are aided by classic canons of statutory construction, and we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.\\\" Id. (alteration, internal quotation marks, and citation omitted). \\\"We will not depart from the plain wording of a statute, unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable conflict among statutory provisions.\\\" Regents of Univ. of N.M. v. N.M. Fed'n of Teachers, 1998-NMSC-020, \\u00b6 28, 125 N.M. 401, 962 P.2d 1236.\\nThe New Mexico Tort Claims Act\\n{7} The TCA is the primary vehicle by which the state may be held liable for injuries caused by the negligence of its employees. The TCA entitles public employees to a legal defense provided by his or her employer or the state when a plaintiff alleges that the employee committed certain enumerated torts for which immunity has been waived, or if the employee violated the plaintiffs constitutional rights. See \\u00a7 41-4-4(B). Similarly, a state employer must pay a judgment or a settlement entered against a public employee if the employee acted within the scope of his duties. See \\u00a7 41-4-4 (D).\\n{8} In this case, Loya's lawsuit against Officer Gutierrez alleges only violations of federally protected constitutional rights under 42U.S.C. \\u00a7 1983. See \\u00a7 41-4-4(A) (noting the state's immunity from tort liability and its exceptions). The parties agree that the question of whether the County must defend and/or indemnify Officer Gutierrez is governed by the TCA. Section 41-4-4(B) of the TCA requires that, unless an insurance carrier provides a defense, governmental entities shall provide a public employee a defense for:\\n(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States . when alleged to have been committed by the public employee while acting within the scope of his duty.\\nLikewise, the governmental entity must provide indemnification to a public employee who has been sued for damages. Section 41-4-4(D) provides:\\nA governmental entity shall pay any settlement or any final judgment entered against a public employee for:\\n(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States . . . that occurred while the public employee was acting within the scope of his duty.\\n{9} At issue is whether Officer Gutierrez, acting in his capacity as a commissioned County Sheriff's Deputy, is a \\\"public employee\\\" of a \\\"governmental entity\\\" entitled to the defense and indemnification provisions above. See \\u00a7 41-4-4(B), (D). The TCA defines a \\\"public employee,\\\" in pertinent part, as \\\"an officer, employee or servant of a governmental entity, excluding independent contractors!.]\\\" Section 41-4-3(F). This definition goes on to include fourteen categories of persons who are considered \\\"public employees,\\\" including, as we discuss further below, \\\"law enforcement officers\\\" and those working \\\"on behalf or in service of a governmental entity in any official capacity!.]\\\" See \\u00a7 41-4-3(F)(2), (3). A \\\"governmental entity\\\" means the State ofNew Mexico and its agencies, or any local public body and its agencies. See \\u00a7 41-4-3(B), (C), (H). It does not include sovereign Indian pueblos and tribes.\\n{10} Here, Officer Gutierrez seeks the benefit of a defense and/or indemnification for claims involving the conduct of law enforcement officers. Officer Gutierrez concedes that he is not a \\\"law enforcement officer\\\" within the meaning' of the TCA; however, he argues that he fits within another of the enumerated definitions of \\\"public employee.\\\" For the reasons that follow, while we agree that Officer Gutierrez is not a \\\"law enforcement officer\\\" within the meaning and definitions of the TCA, we disagree that he meets any alternate definition of a \\\"public employee.\\\"\\nOfficer Gutierrez Is Not a \\\"Law Enforcement Officer\\\" of a \\\"Governmental Entity\\\"\\n{11} As we have noted, the County's obligation to provide Officer Gutierrez a defense and/or indemnification arises only if he is a \\\"public employee\\\" of a \\\"governmental entity.\\\" And the TCA defines \\\"public employee\\\" to include law enforcement officers. Section 41-4-3(F)(2). In relevant part, Section 41 -4-3 (D) more precisely defines a \\\"law enforcement officer\\\" as\\na full-time salaried public employee of a governmental entity, or a certified part-time salaried police officer employed by a governmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes].]\\nOur courts have construed this definition strictly. See, e.g., Silva v. State, 1987-NMSC-107, \\u00b6 17, 106 N.M. 472, 745 P.2d 380 (holding that the secretary of corrections is not a \\\"law enforcement officer\\\" under the TCA); Coyazo v. State, 1995-NMCA-056, \\u00b6 14-19, 120 N.M. 47, 897 P.2d 234 (concluding that district attorneys and staff were not \\\"law enforcement officers''); Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, \\u00b6 11, 116 N.M. 1, 859 P.2d 469 (holding that the director of the New Mexico M otor V ehicle Department, who has statutory authority to make arrests, was not a law enforcement officer because the \\\"vast majority of [his] time and effort are involved in administrative matters\\\" (internal quotation marks omitted)).\\n{12} Here, Officer Gutierrez agrees that he does not meet the definition of \\\"law enforcement officer\\\" under Section 41 -4-3(D). We nevertheless address this provision of the TCA because our analysis settles the present dispute with regard to the County's duty to defend and/or indemnify Officer Gutierrez. We start with the facts.\\n{13} Officer Gutierrez was on duty as a full-time Pueblo tribal law enforcement officer, acting in his capacity as a commissioned Deputy Sheriff for the County, when he made the traffic stop of Loya's vehicle in September 2009. At the time of the stop, Officer Gutierrez was dressed in his tribal police uniform, including wearing his tribal badge, and driving his tribally issued police vehicle. Officer Gutierrez, assisted by two other tribal officers, ultimately arrested Loya for the misdemeanor crime of reckless driving under Section 66-8-113. Loya was taken to the tribal police department for processing and then transported to the Santa Fe County jail by another tribal officer.\\n{14} As a result of the stop and arrest, Loya brought a complaint under 42 U.S.C. \\u00a7 1983 against Officer Gutierrez, alleging that Officer Gutierrez \\\"violently attacked [him]\\\" during the incident leading to the arrest and that Officer Gutierrez pinned Loya by his neck to his vehicle and then kicked him, causing Loya to have neck spasms and injuries. The complaint also asserted that Officer Gutierrez was a law enforcement and commissioned officer for the County and that he was \\\"acting under color of state law, in patrolling a state highway and enforcing state criminal statutes.\\\"\\n{15} The above facts establish that Officer Gutierrez was performing traditional law enforcement duties when he stopped and arrested Loya. Moreover, the claims against Officer Gutierrez \\u2014 unreasonable seizure and deprivation of liberty, prosecution without probable cause, and excessive force \\u2014 can only be understood to come within Section 41-4-12's waiver ofimmunity for \\\"law enforcement officers.\\\" Section 41-4-12 provides:\\nThe immunity granted pursuant to Subsection A of Section 41-4-4 . . does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.\\n{16} Although Officer Gutierrez was exercising his authority as a commissioned County Sheriffs Deputy when he stopped and arrested Loya, the district court found \\u2014 and Officer Gutierrez does not dispute \\u2014 that he does not come within the TCA's definition of a \\\"law enforcement officer\\\" as that term is defined in Section 41-4-3(D). The district court found that Officer Gutierrez was neither a full-time nor part-time salaried officer employed by the County. The court further found that Officer Gutierrez was hired, trained, supervised, and subject to discipline by the Pueblo. In addition, Officer Gutierrez does not challenge the district court's finding that the Pueblo is a sovereign Indian tribe that is not a \\\"governmental entity\\\" as defined by the TCA. The district court therefore concluded that Officer Gutierrez was not a \\\"law enforcement officer\\\" within the plain language of the definition in the TCA. Accordingly, the TCA's employee defense and indemnification provisions were not available to him on this basis. Based on the undisputed facts, we affirm the district court's ruling in this regard.\\nOfficer Gutierrez Is Not a \\\"Public Employee\\\" Under Section 41-4-3F(3)\\n{17} As we have discussed above, Officer Gutierrez freely admits that he does not meet Section 41-4-3(D)'s definition of \\\"law enforcement officer,\\\" yet he seeks the benefit of a defense and/or indemnification by contending that he instead fits within another definition of a public employee under the TCA. In particular, he argues that Section 41 - 4-3 (F)(3) is applicable to any person that has \\\"been authorized to exercise and who [does] exercise state law enforcement powers\\\" regardless of whether he receives compensation. We disagree.\\n{18} Section 41-4-3(F)(3) includes as \\\"public employees\\\" those persons \\\"acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation[.]\\\" In construing a statute, we seek to achieve the intent of the Legislature. Grine v. Peabody Natural Res., 2006-NMSC-031, \\u00b6 17, 140 N.M. 30, 139 P.3d 190. \\\"The first guiding principle in statutory construction dictates that we look to the wording of the statute and attempt to apply the plain meaning rule, recognizing that when a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.\\\" United Rentals Nw., Inc. v. Yearout Mech. Inc., 2010 NMSC-030, \\u00b6 9, 148 N.M. 426, 237 P.3d 728 (alteration, internal quotation marks, and citation omitted). We do not read a statute in such a way that \\\"would lead to injustice, absurdity, or contradiction.\\\" Otero v. State, 1987-NMCA-054, \\u00b6 11, 105 N.M. 731, 737 P.2d 90.\\n{19} Accepting Officer Gutierrez's interpretation of Section 41-4-3(F)(3) would require us to expand the definition of \\\"public employee\\\" to include law enforcement officers acting within the scope of their police duties but who are not salaried employees of a governmental entity subject to the TCA. See \\u00a7 41-4-3(D). In essence, Officer Gutierrez is asking this Court to create two classes of law enforcement officers within the TCA's definitional section of \\\"public employee\\\" \\u2014 one that is salaried and works for a governmental entity and one that is not. We decline to do so for several reasons. First, such an interpretation would go beyond the plain language of Section 41-4-3(F)(3). That section makes no mention of providing an alternate or different definition of \\\"public employee\\\" to include those persons exercising state law enforcement powers but who are not salaried employees of a \\\"governmental entity.\\\" See id. Second, reading the statute to say that a police officer who fails to meet the definition of a \\\"law enforcement officer\\\" under Section 41-4-3(D) can then allege that his same conduct falls within another definition in order to trigger the duty to defend and indemnify is an illogical distinction that makes no sense. See Ramirez v. IBP Prepared Foods, 2001-NMCA-036, \\u00b6 16, 130 N.M. 559, 28 P.3d 1100 (stating that \\\"[i]n interpreting a statute, we look to the statute as a whole [and] . . . attempt to achieve internal consistency\\\" (citation omitted)), superseded by statute on other grounds as stated in Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070. In other words, Officer Gutierrez cannot claim that he was acting in his capacity as a law enforcement officer yet disclaim that he must fit within the TCA's definition for conduct involving a law enforcement officer. Finally, if the New Mexico Legislature had intended to protect commissioned tribal officers discharging their duties under state law, it could readily have demonstrated such an intent by including language to that effect. See Starko, Inc. v. Presbyterian Health Plan, Inc., 2012-NMCA-053, \\u00b6 49, 276 P.3d 252 (noting that if the Legislature wanted to condition the applicability of a payment scheme on the dispensing of the lesser expensive, therapeutic equivalent drug, it would have included those terms within the statute), cert. granted, 2012-NMCERT-003, 293 P.3d 184. Indeed, our Legislature recently amended the TCA to include \\\"certified part-time salaried police officer[s] employed by a governmental entity\\\" within the definition of \\\"law enforcement officer.\\\" Section 41-4-3(D). Thus, the Legislature could have \\u2014 but did not \\u2014 include non-salaried commissioned officers working on behalf or in the service of a governmental entity subject to the TCA.\\n{20} Officer Gutierrez relies on several cases and statutes as sirpport for his contention that he fits within the definition of Section 41-4-3(F)(3). However, none of these cases or statutes have any bearing on the issue on appeal. For example, he cites to Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239, for the proposition that he, like the volunteer chaplain in that case, is an uncompensated person working \\\"on behalf of or in service of a governmental entity.\\\" However, the issue in Celaya was not whether the police department's volunteer chaplain came within the definition of \\\"law enforcement officer\\\" under Section 41-4-3(F)(3). Instead, that case dealt with whether the chaplain, who had been given a vehicle by the Bernalillo County Sheriffs Department to drive to and from official functions, could be acting within the scope of his duties if he was driving to or from an official function when he ran over a teenager's foot in a Wal-Mart parking lot. Celaya, 2004-NMSC-005, \\u00b6 1-3. Furthermore, in Celaya, the tort for which immunity was waived by the TCA came under the exception of negligent operation of a motor vehicle. See \\u00a7 41-4-5. In contrast, here, the only section of the TCA that waives immunity for the claims asserted against Officer Gutierrez' is the law enforcement provision of Section 41-4-12, and he identifies no other exception. Consequently, Celaya has no bearing on this case.\\n{21} Officer Gutierrez also cites to 28 U.S.C. \\u00a7 2680(h) (2006) of the Federal Tort Claims Act (FTCA) to support his argument that he is a \\\"public employee.\\\" We fail to see the relevance of the FTCA here when the statutory language defining a \\\"public employee\\\" under the various provisions of the TCA is clear and unambiguous. Further, the many federal cases cited by Officer Gutierrez are also not pertinent. The crux of those cases is not whether a tribal officer enforcing state law pursuant to a commission is a \\\"law enforcement officer\\\" entitled to a defense and/or indemnification under the TCA, but whether he may become a \\\"state actor\\\" for purposes of 42 U.S.C. \\u00a7 1983. See, e.g., Romero v. Peterson, No. CIV-89-128-JC, 1993 WL 375746, at *1-3 (10th Cir. Sept. 27,1993); Romero v. Peterson, 930 F.2d 1502, 1503-04 (10th Cir. 1991); Hebert v. United States, 438 F.3d 483, 486-87 (5th Cir. 2006); Ouart v. Fleming, No. CIV-08-1040-D, 2010 WL 1257827, at *3 (W.D. Okla. Mar. 26, 2010).\\n{22} There is no dispute that once commissioned as a sheriffs deputy, Officer Gutierrez was authorized to discharge all the law enforcement powers of a Santa Fe County sheriff, including with respect to the Motor Vehicle Code. We conclude however, that in this case, such a commission did not make Officer Gutierrez a \\\"public employee\\\" of the County but merely conferred upon him jurisdiction to act lawfully when enforcing state and local laws. Accordingly, the County has no duty to defend Officer Gutierrez in this lawsuit or indemnify him for tortious acts committed under color of his commission. We affirm the district court's decision.\\nCONCLUSION\\n{23} We affirm the decision of the district court.\\n{24} IT IS SO ORDERED.\\nLINDA M. VANZI, Judge\\nWE CONCUR:\\nRODERICK T. KENNEDY, Chief Judge\\nCYNTHIA A. FRY, Judge\\nUnder a similar factual scenario, this Court has previously held that the TCA's definition of \\\"public employee\\\" under Section 41-4-3(F) and \\\"governmental entity\\\" under Section 41-4-3(B) did not include a cross-deputized Navajo police officer who was sued after issuing a Navajo speeding ticket to a non-Indian on a state right of way through the Navajo Nation. Williams v. Bd. of Cnty. Comm'rs of San Juan Cnty., 1998-NMCA-090, \\u00b6 2, 26, 125 N.M. 445, 963 P.2d 522. Although Williams is arguably dispositive, it did not address any of the enumerated definitions raised by Officer Gutierrez on appeal. We therefore proceed to consider those arguments.\"}"
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+"{\"id\": \"4190327\", \"name\": \"CITY OF ALBUQUERQUE, Plaintiff-Appellee, v. PANGAEA CINEMA LLC d/b/a GUILD CINEMA LLC, and KEIF HENLEY, Registered Agent, Defendants-Appellants\", \"name_abbreviation\": \"City of Albuquerque v. Pangaea Cinema LLC\", \"decision_date\": \"2012-07-20\", \"docket_number\": \"No. 33,693; Docket No. 30,380\", \"first_page\": \"219\", \"last_page\": 241, \"citations\": \"2012-NMCA-075\", \"volume\": \"2\", \"reporter\": \"New Mexico Appellate Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:57:19.754837+00:00\", \"provenance\": \"CAP\", \"judges\": \"CELIA FOY CASTILLO, Chief Judge\", \"parties\": \"CITY OF ALBUQUERQUE, Plaintiff-Appellee, v. PANGAEA CINEMA LLC d/b/a GUILD CINEMA LLC, and KEIF HENLEY, Registered Agent, Defendants-Appellants.\", \"head_matter\": \"Certiorari Granted, July 20, 2012,\\nNo. 33,693\\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\\nOpinion Number: 2012-NMCA-075\\nFiling Date: May 29, 2012\\nDocket No. 30,380\\nCITY OF ALBUQUERQUE, Plaintiff-Appellee, v. PANGAEA CINEMA LLC d/b/a GUILD CINEMA LLC, and KEIF HENLEY, Registered Agent, Defendants-Appellants.\\nCity of Albuquerque Robert D. Kidd, Jr., Interim City Attorney John E. DuBois, Assistant City Attorney Albuquerque, NM for Appellee\\nACLU of New Mexico Laura Schauer Ives Albuquerque, NM Bach & Garcia LLC George Bach Albuquerque, NM Kari Morrissey Albuquerque, NM for Appellants\", \"word_count\": \"12186\", \"char_count\": \"77225\", \"text\": \"OPINION\\nCASTILLO, Chief Judge.\\n{1} The Guild Cinema (the Guild), a locally owned art-house movie theater in the Nob Hill neighborhood of the City of Albuquerque (the City), was prosecuted under the City's zoning regulations covering adult amusement establishments for showing one pornographic film during a weekend festival ofX-rated fare. The Guild argues thatthe City's crackdown on the showing of just one adult film outside of a zone designated for adult entertainment violates a mainstream theater's free-speech rights by misusing an ordinance that is unconstitutionally vague and unfairly applied in this instance. We conclude that the ordinance is not vague and was not unconstitutionally applied, and we affirm.\\nI. BACKGROUND\\n{2} The parties stipulated to the facts before the district court. Pangaea Cinema, LLC does business as a single-screen movie theater known as the Guild Cinema in the Nob Hill neighborhood of the City along East Central Avenue. Although its most common fare consists of independent feature films and documentaries, in November 2008 the Guild played host to its second annual \\\"Pornotopia\\\" festival, a weekend slate of erotic films. During the festival's second day, two code enforcement officers for the City attended two film screenings. The officers, one male and one female, both concluded that one of the films, \\\"Couch Surfers: Trans Men in Action,\\\" met the definition of an adult film under the City's Zoning Code (the Code). Albuquerque, N.M., Zoning Code ch. 14, art. XVI (2008, as amended through2011). A specific ordinance within the Code, Albuquerque, N.M., Rev. Ordinances ch. 14, art. XVI, \\u00a7 14-16-1-5(B) (the Ordinance) allows adult films to be shown only in specified zones of the City and prohibits the public screening of such films in all other areas, including the business district of Nob Hill where the Guild is situated. A criminal complaint was filed charging the Guild with operating as an adult amusement establishment outside of an area zoned for such activity. The Guild concedes that the film it showed featured \\\"specified anatomical areas\\\" and \\\"specified sexual activities\\\" as defined by the Ordinance. The City acknowledges that the exhibition of one adult film did not cause negative secondary effects, such as criminal activity. Affidavits filed by some of the Guild's commercial neighbors reported positive effects from the event, in particular, increased business at their establishments during that weekend.\\n{3} The Guild was convicted in metropolitan court, and it appealed to district court. The parties stipulated to facts and exhibits, and they agreed to forgo a trial and agreed instead to have the matter decided on the Guild's motion to dismiss the charge. The district court affirmed the findings of the metropolitan court, upheld the conviction in a thirty-one-page opinion, and fined the cinema $500 for the infraction. The Guild filed a motion for reconsideration that was denied by the district court. This appeal followed.\\nII. DISCUSSION\\n{4} The Guild argues that it should not be categorized as an adult amusement establishment under what it considers to be the City's unconstitutionally vague Ordinance and that, because no secondary effects resulted from the showing of the film, the City exceeded its zoning authority by impermissibly targeting the content of the Guild's speech in violation of the theater's free-speech rights. We take those three arguments in turn, and we review them de novo. See Gomez v. Chavarria, 2009-NMCA-035, \\u00b6 6, 146 N.M. 46, 206 P.3d 157 (stating that constitutional questions and issues of statutory construction are reviewed de novo).\\nA. The Ordinance Need Not Be More Narrowly Construed\\n{5} The Guild first asks us to avoid the constitutional issues and find that a close reading of the City's Ordinance leads to the conclusion that the Ordinance does not apply to the Guild's screening of a single adult film. The Ordinance reads, in pertinent part:\\nADULT AMUSEMENT ESTABLISHMENT. An establishment such as an auditorium, bar, cabaret, concert hall, nightclub, restaurant, theater, or other commercial establishment that provides amusement or entertainment featuring one or more of the following:\\n(1) A live performance, act or escort service distinguished or characterized by an emphasis on the depiction, description, exposure, or representation of specified anatomical areas or the conduct or simulation of specified sexual activities; or\\n(2) Audio or video displays, computer displays, films, motion pictures, slides or other visual representations or recordings characterized or distinguished by an emphasis on the depiction, description, exposure or representation of specified anatomical areas or the conduct or simulation of specified sexual activities.\\nAlbuquerque,N.M., Rev. Ordinances \\u00a7 14-16-1-5(B) (emphasis added). Another applicable ordinance states: \\\"Any use not designated a permissive or conditional use in a zone is specifically prohibited from that zone, except as otherwise provided herein.\\\" Albuquerque, N.M., Rev. Ordinances ch. 14, art. XVI, \\u00a7 14-16-1-3(B) (1980).\\n{6} When interpreting an ordinance, we look to its language: \\\"If the language makes the [ordinance] understandable and sensible, that is all that is necessary to uphold it as valid.\\\" State ex rel. Children, Youth & Families Dep't v. Shawna C., 2005-NMCA-066, \\u00b6 34, 137 N.M. 687, 114 P.3d 367 (internal quotation marks and citation omitted). \\\"Legislative intent is determined primarily from the language of the statute and from the legislative purpose to be achieved.\\\" State v. Andrews, 1997-NMCA-017, \\u00b6 5, 123 N.M. 95, 934 P.2d 289 (citation omitted). \\\"In order to construe faithfully what the Legislature meant[,] . we consider the plain meaning of the words used in the context of the statutory text as a whole.\\\" Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, \\u00b6 37, 147 N.M. 583, 227 P.3d 73 (citation omitted). \\\"A statute is read literally if its words are plain and unambiguous, provided such a construction would not lead to an injustice, absurdity, or contradiction.\\\" Andrews, 1997-NMCA-017, \\u00b65.\\n{7} In the case before us, the portion of the Ordinance italicized above defines an adult amusement establishment, in one instance, as a \\\"theater . . . that provides . . . entertainment featuring... motion pictures . distinguished by an emphasis on . . . specified anatomical areas or the conduct or simulation of specified sexual activities.\\\" The Guild first zeroes in on the word \\\"featuring\\\" and argues that it does not encompass the showing of just one adult film; rather it should be interpreted to mean \\\"regularly featur[ing]\\\" such films. The dissent agrees with the Guild and concludes that characterizing the Guild as an \\\"adult amusement establishment\\\" for its single showing of an adult film defies common understanding. Dissenting Opinion, \\u00b6 50. We disagree and explain. As we have stated, we look to the plain language of the Ordinance. To include the concept that the showing must be regular, we would have to add a word that is not there and rely on other jurisdictions that interpret differently worded statutes. \\\"Feature,\\\" in its verb form, is defined as \\\"to make a feature of; give special prominence to,\\\" with the following example given: \\\"the theater was featuring a murder-mystery film.\\\" Webster's Third New Int'l Dictionary 832 (1976). As the district court noted, movie theaters and television stations often advertise the presentation of a feature film. To bolster its argument, the Guild ventures to other jurisdictions for interpretive support. It unconvincingly relies on one case that is based on an ordinance that does not use the word \\\"feature\\\"; one case in which the ordinance explicitly uses the phrase \\\"regularly features\\\"; and two cases, including an unpublished opinion out of Alaska, that deal with live \\\"adult cabaret.\\\" See Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Schmitty's City Nightmare, LLC v. City of Fond Du Lac, 391 F. Supp. 2d 745 (E.D. Wis. 2005); Stevens v. Matanuska-Susitna Borough, Nos. A-9674, A-9683, 2007 WL 2143008 (Alaska Ct. App. July 25, 2007); People v. Super. Ct. (Lucero), 774 P.2d 769 (Cal. 1989). None is persuasive or materially on point with the statutory analysis in this case.\\n{8} Finally, the Guild points out a difference between the Ordinance's reference to live exhibition and its reference to the exhibition of films. The Ordinance uses singular language to refer to any live exhibition and plural language for the exhibition of film. According to the Guild, this language difference suggests that just one live performance could be expected to produce negative secondary effects but that it would take multiple exhibitions of films to create those effects and thus trigger enforcement. We disagree. The Ordinance explicitly provides that any plural language used includes the singular and vice versa, Albuquerque,N.M.,Rev. Ordinances \\u00a7 14-16-1-5(A)(2), and we see no reason to find an exception to that common statutory language. Cf. State ex rel. Richardson v. 5th Jud. Nominating Comm'n, 2007-NMSC-023, \\u00b6 17, 141 N.M. 657, 160 P.3d 566. Nothing in the Ordinance suggests that the City Council made a distinction between live acts and feature films.\\n{9} We are not persuaded by the Guild's arguments that the Ordinance may and should be more narrowly construed to avoid constitutional analysis. We agree with the district court's interpretation. When the Ordinance is read literally, nothing in its plain meaning compels us to transform the word \\\"featuring\\\" into \\\"regularly featuring.\\\" Thus, we conclude that any theater which features an adult film \\u2014 i.e., hosts a screening of a movie that depicts the anatomical areas and sexual acts listed in the Ordinance \\u2014 is an adult amusement establishment as defined by the Ordinance, even if only one movie is shown, and, as such, it is subject to the terms of the Ordinance.\\nB. The Ordinance Is Not Unconstitutionally Vague\\n{10} The Guild next contends that the Ordinance \\u2014 specifically its definition of an \\\"adult amusement establishment\\\" \\u2014 fails to give adequate notice that the screening of just one adult film outside a permissible zone transforms a mainstream theater into an adult amusement establishment. Thus, the Guild asks us to declare the Ordinance void for vagueness as applied to the Guild.\\n{11} \\\"A strong presumption of constitutionality underlies each statute, and the defendant has the burden to prove unconstitutionality beyond all reasonable doubt.\\\" Shawna C., 2005-NMCA-066, \\u00b6 32. The United States Constitution \\\"does not require impossible standards of clarity in statutes, only that the language convey}] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.\\\" Id. \\u00b6 34 (alteration in original) (internal quotation marks and citation omitted). Neither does the Constitution require \\\"mathematical certainty from our language},]\\\" but rather \\\"flexibility and reasonable breadth}.]\\\" Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (internal quotation marks and citation omitted). Our task is not to appraise the wisdom of the City's decision, because a city '\\\"must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.'\\\" City of Renton v. Playtime Theatres, Inc. (Renton), 475 U.S. 41, 52 (1986) (quoting Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 71 (1976)). Thus, we will \\\"strive to avoid\\\" a remedy that requires us to \\\"tamper with the text\\\" of an ordinance. United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 478 (1995). As the New Mexico Supreme Court has stated,\\nIn the enactment of statutes},] reasonable precision is required. Legislative enactments may be declared void for uncertainty if their meaning is so uncertain that the court is unable, by the application of known and accepted rules of construction, to determine what the [Legislature intended with any reasonable degree of certainty. But absolute or mathematical certainty is not required in the framing of a statute.\\nState ex rel. Bliss v. Dority, 55 N.M. 12, 29, 225 P.2d 1007, 1017 (1950).\\n{12} A statute or ordinance will be deemed to be unconstitutionally vague if it has one of two fatal characteristics: it fails to give people of ordinary intelligence a reasonable opportunity to know what activity is prohibited so as to allow them to conform their actions to the law, or it fails to provide explicit standards and thus invites police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement. State v. Laguna, 1999-NMCA-152, \\u00b6 25-26, 128 N.M. 345, 992 P.2d 896. Finally, we have observed that a defendant \\\"will not succeed if the statute clearly applied to the defendant's conduct.\\\" Shawna C., 2005-NMCA-066, \\u00b6 32. The standard two-step analysis follows.\\n1. Notice to Individuals of Ordinary Intelligence\\n{13} The Guild points to a dearth of previous similar convictions by the City and to narrow interpretations of such laws in other jurisdictions in an effort to argue that a proprietor in its position would logically conclude that the Ordinance does not apply to an independent cinema showing only one adult film. As we discussed above, the decisions of other jurisdictions are not on point or persuasive. We instead focus on how the Ordinance applies to the facts before us, based on an interpretation by a reasonable person. See Dickerson v. Napolitano, 604 F.3d 732, 745-46 (2d Cir. 2010) (\\\"The standard is an objective one. Courts ask whether the law presents an ordinary person with sufficient notice of . . . what conduct is prohibited or proscribed}.]\\\" (internal quotation marks and citations omitted)).\\n{14} Two recent federal cases offer guidance in judging whether a statute or ordinance gives adequate notice to people that their behavior is subject to a legislation's proscriptions. In Holder v. Humanitarian Law Project,__U.S.__,__, 130 S. Ct. 2705, 2712-14 (2010), United States citizens and groups sought an injunction to prohibit enforcement of a criminal ban on providing \\\"material support\\\" or \\\"expert advice or assistance\\\" to designated foreign terrorist organizations, alleging unconstitutional vagueness of the language of the statute. Id. (internal quotation marks and citation omitted). Noting that \\\"perfect clarity and precise guidance have never been required\\\" in the drafting of a statute \\u2014 even one limiting expressive activity \\u2014 the United States Supreme Court concluded: \\\"[The plaintiffs' activities . fall comfortably within the scope of'expert advice or assistance': A reasonable person would recognize that teaching [an organization] how to petition for humanitarian relief before the United Nations involves advice derived from, as the statute puts it, 'specialized knowledge.'\\\" Id. at 2719-20 (internal quotation marks and citations omitted). The Court focused on the meaning as applied to the parties before it: \\\"Of course, the scope of the material-support statute may not be clear in every application. But the dispositive point here is that the statutory terms are clear in their application to plaintiffs' proposed conduct, which means that plaintiffs' vagueness challenge must fail.\\\" Id. at 2720.\\n{15} Similarly, in Dickerson, a New York statute prohibited people from entering federal buildings while carrying unauthorized police shields or other insignia \\\"in any way resembling\\\" that worn by police officers. See 604 F.3d at 736-37 (emphasis and citation omitted). The plaintiffs, carrying authentic-looking but unauthorized police badges into a federal building, sued over unconstitutional enforcement of the statute and appealed when the case was dismissed. See id. The court stated that a literal reading of the statute could lead to such absurd results as criminalizing a children's game of cops and robbers, and might be susceptible to a facial challenge; however, the court held that an analysis of the statute, as applied to the plaintiffs, gave them notice that their actions would violate the law. See id. at 746. The court, conceding the statute suffered from \\\"ambiguity as to the margins,\\\" concluded: \\\"[N]either the widespread availability of hats and T-shirts bearing the NYPD logo, nor the prevalence of toy badges, would be likely to confuse a reasonable person as to the illegality of an adult carrying a facsimile of a police shield in his belongings while entering a government building.\\\" Id. at 747.\\n{16} Like the parties in Holder and Dickerson, the Guild challenges an ordinance that might be hampered by ambiguity in some settings. But when the Guild exhibited what both parties agree was an adult film, a reasonable theater owner would have been on notice that the Ordinance governing adult amusement establishments would come into play. The Guild, seeking to exploit any weakness it might find in the Ordinance, offers a hypothetical: If the theater had exhibited a five-minute movie featuring topless women discussing Descartes, would it be fairly punished under the Ordinance? That is a provocative question but a red herring; such a hypothetical might help sustain a facial challenge, but here, with an as-applied challenge, we deal with the concrete facts at hand. And the Guild does not dispute that it showed an adult film outside of a circumscribed zone as defined in the Ordinance. Had it merely shown an art film featuring some nudity \\u2014 as many mainstream and independent cinemas do on a regular basis \\u2014 and been cited for violating the Ordinance, then the Guild could make that argument. In this case, such a hypothetical has no bearing on our analysis. Relying on our statutory interpretation above, we determine that the Guild knew it was showing a film as defined by the Ordinance and, like the parties in Holder and Dickerson, had adequate notice that its conduct was prohibited by the Ordinance as applied in this situation.\\n2. Standards or Guidelines for Enforcement\\n{17} Alternatively, the Guild argues that the Ordinance invites arbitrary and discriminatory enforcement. A legislative body may not \\\"impermissibly delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application}.]\\\" State v. Myers, 2011-NMSC-028, \\u00b6 39, 150 N.M. 1, 256 P.3d 13 (emphasis, internal quotation marks, and citation omitted). We have acknowledged, though, that the duties of law enforcement will always require the exercise of a certain degree of police judgment. Shawna C., 2005-NMCA-066, \\u00b6 39.\\n{18} In the case before us, we are provided with no evidence that the City selectively enforced the Ordinance or singled out the Guild. We also find no evidence that the City improperly trained its officers in identifying adult films and citing violators of the Ordinance. In its argument, the Guild deals mainly in conjecture and speculation, and it relies on the suggestion that because the Guild knows of no other mainstream theater that has been prosecuted for the single showing of an adult film that the City has arbitrarily enforced the Ordinance. It cites a federal case from Colorado \\u2014 featuring a bakery owner selling a number of adult-oriented cakes \\u2014 to support its argument. See Pensack v. City & Cnty. of Denver, 630 F. Supp. 177 (D. Colo. 1986). But in Pensack, where the court found inadequate notice to the bakery and insufficient standards for law enforcement, the ordinance at issue defined adult establishments as those having \\\"substantial\\\" or \\\"significant\\\" portions of its stock emphasizing sexual activities. Id. at 178. Here, the Ordinance has no threshold standard for movie theaters exhibiting adult fare. Pensack's reasoning does not apply here. In the absence of any other evidence, we cannot conclude that the Ordinance is susceptible to arbitrary or discriminatory enforcement, particularly when applied to the Guild's screening of what it admits to be an adult film. Because the Guild fails both prongs of the analysis, we conclude that the Ordinance is not unconstitutionally vague as applied in this instance.\\nC. The Ordinance Is a Proper Time-Place-Manner Restriction and Does Not Abridge Freedom of Speech As Applied to the Guild\\n1. N.M. Constitution Article II, Section 17 vs. First Amendment\\n{19} The parties begin with a debate over whether Article II, Section 17 of the New Mexico Constitution affords free-speech rights that are greater than those declared in the First Amendment of the United States Constitution. The Guild asks that we \\\"bear this heightened protection in mind\\\" when conducting our analysis and to err on the side of favoring free-speech rights when faced with a split in the law of other jurisdictions. For that argument, the Guild relies on City of Farmington v. Fawcett, 114 N.M. 537, 843 P.2d 839 (Ct. App. 1992), an obscenity case that has no bearing on the facts of the case before us. Although the Guild pushes for an analysis under the New Mexico Constitution, it offers the alternative argument that the Ordinance also fails under the United States Constitution.\\n{20} New Mexico has adopted the interstitial approach to interpreting our state constitution. See State v. Perry, 2009-NMCA-052, \\u00b6 24, 146 N.M. 208, 207 P.3d 1185. \\\"A state court adopting this approach may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.\\\" State v. Gomez, 1997-NMSC-006, \\u00b6 19, 122 N.M. 777, 932 P.2d 1. \\\"[S]tate courts should be sensitive to developments in federal law. Federal precedent in areas addressed by similar provisions in our state constitutions can be meaningful and instructive.\\\" Id. \\u00b6 21 (internal quotation marks and citation omitted). We find none of those three situations to apply in the case before us. Further, we have previously held that \\\"the protection of the federal and state constitutions are the same, at least with respect to content-neutral restrictions.\\\" State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct. App. 1994), modified on other grounds by Gomez, 1997-NMSC-006; see State v. Rendleman, 2003-NMCA-150, \\u00b6 58, 134 N.M. 744, 82 P.3d 554, overruled on other grounds by State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105. Thus, we see no reason to depart from traditional federal jurisprudence in this area, and we proceed with a standard First Amendment analysis.\\n2. Facial vs. As-Applied Challenges\\n{21} As a threshold matter, we note that the parties spar over the distinction between facial and as-applied challenges and its application to the case before us. While we disagree with the Guild's assertion that the district court refused to conduct an as-applied analysis, we do note that the district court at times may have overemphasized the significance of the Guild's choice to not press a facial challenge in this case when analyzing the distinction between facial and as-applied challenges. The Guild has stipulated that it did not bring a facial challenge; it did not stipulate to the facial validity of the Ordinance in all its applications.\\n{22} While the Guild's choice to forgo a facial challenge to the Ordinance weakens the Guild's arguments overall, that choice does not render its action null and void, nor does it obviate the need for a full analysis of the time-place-manner zoning, which we flesh out in the section that follows. The United States Supreme Court has stated that the distinction between facial and as-applied challenges \\\"goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.\\\" Citizens United v. Fed. Election Comm'n, _ U.S. _, _, 130 S. Ct. 876, 893 (2010).\\n{23} Finally, we resist any temptation to take it upon ourselves to expand the scope of our review to analyze the constitutionality of the Ordinance in its entirety under the theory of overbreadth. The overbreadth doctrine is \\\"strong medicine\\\" to be applied \\\"sparingly and only as a last resort.\\\" Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973), superseded by statute on other grounds as stated in Bauers v. Cornett, 865 F.2d 1517 (8th Cir. 1989). The United States Supreme Court has further reasoned: \\\"It is not the usual judicial practice, however, nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily \\u2014 that is, before it is determined that the statute would be valid as applied.\\\" Bd. of Tr. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989). \\\"Such a course would convert use of the overbreadth doctrine from a necessary means of vindicating the plaintiffs own right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws.\\\" Id. at 485. We thus proceed to conduct a time-place-manner analysis of the constitutionality of the Ordinance as applied to the Guild.\\n3. Time-Place-Manner Zoning\\n{24} Our First Amendment analysis recognizes the bedrock principle of the right to free speech articulated by the framers of both the state and federal constitutions. '\\\"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.'\\\" United States v. Strandlof 667 F.3d 1146, 1156-57 (10th Cir. 2012) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)). \\\"[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.\\\" Ashcroft v. A.C.L.U., 535 U.S. 564, 573 (2002) (alteration, internal quotation marks, and citation omitted). \\\"However, this principle, like other First Amendment principles, is not absolute.\\\" Ashcroft, 535 U.S. at 573. We have long held that First Amendment rights \\\"are not immune from governmental regulation\\\" and a city \\\"may impose reasonable restrictions on the time, place, and manner in which such rights are exercised.\\\" City of Las Cruces v. Huerta, 102 N.M. 182, 186, 692 P.2d 1331, 1335 (Ct. App. 1984) (internal quotation marks and citation omitted). The zoning power of local governments, which allows limited restrictions on First Amendment freedoms, \\\"is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities.\\\" Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981). The United States Supreme Court, however, has cautioned, such zoning power \\\"is not infinite and unchallengeable].]\\\" Id.\\n{25} The rationale for allowing zoning regulations in this context is that a \\\"city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect.\\\" Young, 427 U.S. at 71. In Young, the Supreme Court upheld a Detroit zoning ordinance that prohibited adult amusement establishments, including movie theaters, from locating within 1,000 feet of one another. See id. at 52, 72-73. The plurality opinion and concurrence agreed that such a regulation of adult theaters was not an impermissible restriction ofFirst Amendment rights, because it was targeted not at the content of the speech involved but at the negative secondary effects caused by adult entertainment. See id. at 71 n.34, 78-79 (Powell, J., concurring). The Court found no restriction on the amount of speech allowed; merely that the speech was limited to certain areas. See id. at 51. Ten years later, the Court upheld an ordinance prohibiting adult amusement establishments from locating within 1,000 feet of residential areas, churches, parks, and schools. See Renton, 475 U.S. at 43, 52. The Court found that the ordinance left five percent of the city's land available for use by adult establishments, an amount deemed adequate to show that the city was not targeting the content of the speech. See id. at 53-54.\\n{26} Young and Renton thus permit municipalities to use zoning powers to reduce or eliminate the negative secondary effects of adult entertainment by either scattering such establishments or concentrating them in circumscribed zones with similar activities. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002); Renton, 475 U.S. at 52; Young, 427 U.S. at 72-73. Such zoning ordinances are subject to intermediate scrutiny. See Alameda Books, Inc., 535 U.S. at 434.\\n{27} While the Supreme Court has never veered from that line of case law, it has struggled with the \\\"fiction\\\" of using the term \\\"content neutral\\\" to cover zoning laws that clearly apply only to adult material. Alameda Books, Inc., 535 U.S. at 448 (Kennedy, J., concurring). However, the Court has endorsed the zoning power over adult amusement establishments under the idea that cities are not regulating the content of the entertainment provided by these businesses but rather the negative secondary effects that such adult material produces in the surrounding community, such as crime and sex offenses. See id. at 434; Renton, 475 U.S. at 48; Young, 427 U.S. at 54-55. Such regulations are contrasted with those that impermissibly target the direct effects of the speech on the listener or viewer. \\\"Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners' reactions to speech are not the type of 'secondary effects' we referred to in Renton.\\\" Boos v. Barry, 485 U.S. 312, 321 (1988). For instance, if the City had enacted the Ordinance based on fears of the psychological impact that adult films have on viewers, then the regulation would not be content-neutral, and thus would be subject to the highest level of scrutiny under First Amendment analysis. See Boos, 485 U.S. at 321. We must be careful to focus our \\\"principal inquiry\\\" on determining \\\"whether the government has adopted a regulation of speech because of disagreement with the message it conveys.\\\" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). \\\"Thus, the Court has recognized that this kind of regulation, though called content neutral, occupies a kind of limbo between full-blown, content-based restrictions and regulations that apply without any reference to the substance of what is said.\\\" Alameda Books, Inc., 535 U.S. at 457 (Souter, J., dissenting).\\na. Strict Scrutiny vs. Intermediate Scrutiny\\n{28} As a preliminary matter, the Guild seeks to exploit that subtle fissure between content-based and content-neutral regulations in the realm of adult entertainment. It argues that the City must be targeting the content of the film, because the City could not possibly find it necessary to police the negligible or nonexistent secondary effects from the showing of only one film. The Guild spends a good part of its brief in chief urging application of the highest standard of review in this case: strict scrutiny. We reject that argument.\\n{29} \\\"Strict scrutiny applies when the violated interest is a fundamental personal right or civil liberty guaranteed by the constitution.\\\" ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, \\u00b6 19, 139 N.M. 761, 137 P.3d 1215 (internal quotation marks and citation omitted). Under that heightened review of a legislative action, the burden of proof is on the government to show that it has a compelling interest in the challenged scheme and that it has accomplished its goals by employing the least restrictive means. See id. If the City were targeting content of adult films with the Ordinance, strict scrutiny would apply; if it were merely seeking to combat negative secondary effects of such films, then we would apply a more relaxed level of scrutiny (discussed in the next section below). See Alameda Books, Inc., 535 U.S. at 448 (Kennedy, J., concurring). The Guild argues that the City improperly targeted the content of its expression rather than the negative secondary effects, but the Guild misapplies case law in order to make its point. The Guild claims that the task of this Court is to examine whether either negative secondary effects or the content of the movie were the predominant concern behind application of the Ordinance. On the contrary, the cases cited by the Guild state that a court must examine whether secondary effects or content were the predominant concern behind the enactment of an ordinance \\u2014 not its subsequent application. See R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 409 (7th Cir. 2004) (stating that \\\"we must examine whether the [ordinance was designed to suppress the content of erotic expression or to address the negative secondary effects caused by such expression\\\" (emphasis added)); Joelner v. Vill. of Washington Park, Ill., 378 F.3d 613, 623 (7th Cir. 2004) (\\\"The 'content-neutrality' inquiry is therefore subsumed by the inquiry into a municipality's purpose in enacting the regulation.\\\"). The rest of the Guild's strict-scrutiny argument proceeds from that faulty premise.\\n{30} Here, without a full trial below on the issues, there is no evidence that the City was targeting the content of adult films in enacting the Ordinance; in fact, the City asserts that its predominant concern in enacting the Ordinance was combating the secondary effects of such films. The Guild does not rebut that contention. Absent evidence that the City was going after content when enacting the Ordinance, we refrain from analyzing its actions under the strict scrutiny that would favor the Guild. See BBI Enters., Inc. v. City of Chicago, 874 F. Supp. 890, 895 (N.D. Ill. 1995) (\\\"There is no need to elaborate further on the deficiencies in either party's proof, for where as here neither side has supplied entirely reliable information, the party having the burden of persuasion . . . must suffer the consequences of such uncertainty.\\\"). W e thus proceed with the intermediate level of time-place-manner scrutiny.\\nb. Time-Place-Manner Analysis\\n{31} The United States Supreme Court starts the analysis of time-place-manner regulations by asking two threshold questions: (1) Does the ordinance ban adult establishments altogether, and (2) does the regulation target the content of the expression? See Alameda Books, Inc., 535 U.S. at 434. If the answer to each question is \\\"no,\\\" then the ordinance can be analyzed under time-place-manner regulation. See id. The New Mexico Supreme Court has outlined three requirements for valid time-place-manner zoning: (1) the restriction on speech must be content neutral, that is, \\\"justified without reference to the content of the regulated speech\\\"; (2) the restriction must serve a \\\"significant governmental interest\\\"; and (3) the restriction must \\\"leave open ample alternative channels for communication of the information.\\\" Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 319, 600 P.2d 258, 265 (1979) (internal quotation marks and citation omitted). The United States Supreme Court expands on the second prong by requiring that the ordinance in question be \\\"narrowly tailored\\\" to serve that significant governmental interest. Renton, 475 U.S. at 52, 63 (citation omitted).\\n{32} The appropriate standard for \\\"reviewing challenges to content-neutral zoning ordinances targeting the secondary effects of adult establishments\\\" applies \\\"regardless of whether that challenge is styled as facial or as-applied.\\\" Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 155 n.3 (4th Cir. 2009). Lower courts have faithfully applied the analysis during the past quarter century: \\\"Renton's constitutional framework grants the city broad discretion to choose the means and scope of its regulation of sexually oriented businesses.\\\" Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 689 (10th Cir. 1998).\\nI. Content Neutral\\n{33} We first dispose of the two threshold questions. First, the City has not entirely banned adult amusement establishments from operating in the City, either directly or indirectly. Cf. Schad, 452 U.S. at 76 (\\\"As we have observed, Young . . . did not purport to approve the total exclusion from the city of theaters showing adult. . . materials.\\\"). The City, in an unrebutted assertion, states that about five percent of the municipality's acreage is zoned to allow the exhibition of adult films. That level of set-aside comports with the amount of land mass deemed reasonable by the Court in Renton. See 475 U.S. at 53. Second, the Guild does not challenge the City's assertion that, in enacting the Ordinance, the City was not regulating content but rather the secondary effects that flow from the showing of adult films. The Guild also concedes that the City has that zoning authority under its powers to regulate the time, place, and manner of the entertainment offered by adult amusement establishments.\\n{34} It is when we get to the time-place-manner analysis that the Guild challenges the City's actions. The Guild contends that, as applied in this case, the City fails the two prongs of the Renton test: that the Ordinance is not narrowly tailored to serve a significant governmental interest and that it does not leave the Guild with adequate alternative channels of communication.\\nii. Narrowly Tailored to Serve a Significant Governmental Interest\\n{35} An ordinance qualifies as narrowly tailored \\\"so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest. If these standards are met, courts should defer to the government's reasonable determination.\\\" Ward, 491 U.S. at 782-83. \\\"The government's purpose is the controlling consideration.\\\" Id. at 791. While the regulation must be narrowly tailored, \\\"it need not be the least restrictive or least intrusive means of doing so.\\\" Id. at 798; see Fox, 492 U.S. at 477 (\\\"We have refrained from imposing a least-restrictive-means requirement \\u2014 even where core political speech is at issue \\u2014 in assessing the validity of so-called time, place, and manner restrictions.\\\").\\n{36} The City asserted that its goal in enacting the Ordinance was to combat the negative secondary effects produced by adult theaters in general, and the Guild offers no rebuttal. The stated purpose of the City's zoning regulations is \\\"to create orderly, harmonious, and economically sound development in order to promote the health, safety, convenience, and general welfare of the citizens of the city.\\\" Albuquerque, N.M., Rev. Ordinances \\u00a7 14-16-1-3(A). The City asserts, without challenge by the Guild, that the drafters of the Ordinance relied on \\\"numerous studies and other evidence\\\" concerning the adverse secondary effects emanating from adult amusement establishments. Because the Guild does not rebut that assertion, we defer to the City's presumptively reasonable determination in the name of public health, safety and welfare.\\nThe municipality's evidence must fairly support the municipality's rationale for its [adult amusement] ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets its burden.\\n6A Eugene McQuillin, The Law of Municipal Corporations \\u00a7 24:128, at 472 (3d ed. 2007) (footnote omitted).\\n{37} It is well-established New Mexico law that \\\"[t]o be within the authorized purposes the zoning ordinance must bear some reasonable relationship to the general welfare.\\\" City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 413, 389 P.2d 13, 15 (1964). In the case before us, no evidentiary hearing was conducted to flesh out the details of the City's reasons for legislating against the negative secondary effects of adult entertainment. Specifically, we have no way of divining whether the \\\"numerous studies and other evidence\\\" relied on by the City in any way address the negative secondary effects of the screening of adult films on a rare or occasional basis.\\n{38} When similar regulations fail, a municipality tramples on protected speech and ignores ample alternative means of combating secondary effects. In a recent case, Ascherl v. City oflssaquah, No. C11-1298MJP, 2011 WL 4404145, at *2-3 (W.D. Wash. 2011), a municipality sought to limit the distribution of leaflets to a \\\"free[-]speech zone\\\" in order to \\\"serve public safety concerns, minimize congestion, and facilitate the orderly flow of pedestrian traffic\\\" during an annual festival. The court found the ordinance inadequately tailored and ruled in favor of a pamphleteer who ventured outside the zone, because the court found \\\"no evidence that leafleting by itself causes congestion or prohibits the orderly flow of pedestrian traffic, let alone creates a public safety concern.\\\" Id. at *3. In contrast, the respondent was found to have properly tailored its adult entertainment ordinance by showing its \\\"great interest in protecting and preserving the quality of its neighborhoods through effective land-use planning\\\" and its \\\"sincere and sustained effort to enhance and improve the quality of life in Seattle.\\\" Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153, 1158-59 (Wash. 1978) (en banc). The Washington Supreme Court said of the ordinance that is similar to the one before us and the Court in Young'. \\\"It demonstrates a reasonable decision that the public welfare is best served by having this particular type of speech take place only in certain areas of the community. The ordinance thus remains neutral regarding the content of the films[.]\\\" Northend Cinema, Inc., 585 P.2d at 1158. The court concluded that the ordinance was not \\\"a disguised form of censorship.\\\" Id. at 1159.\\n{39} Absent evidence to the contrary, we take the City at its word that the Ordinance was designed to promote its significant interest of combating the negative secondary effects of adult entertainment. And we believe that the City, like Seattle in Northend Cinema, Inc. and like numerous other towns in the wake of Young, took a reasonable route in accomplishing its goal. To that end, we refuse to place ourselves in the position of legislators acting on behalf of the health, safety, and welfare of the public. See Ward, 491 U.S. at 800 (stating that the validity of time-place-manner regulations \\\"does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted\\\" (internal quotation marks and citation omitted)).\\n{40} As noted above, the Guild directs our attention from the enactment of the Ordinance and focuses on its application. It attacks the City on the grounds that, in this instance, the showing of one adult film produced no negative secondary effects. Although the Guild does not rebut the City's assertion that the Ordinance was enacted to combat the negative secondary effects associated with the exhibition of adult films, it asserts that the City failed to produce evidence of negative secondary effects resulting from the Guild's single showing of the adult film in this instance. The Guild's argument fails, because it is well-established that cities, in enforcing a time-place-manner restriction, need not prove the existence of negative secondary effects in each instance: \\\"[T]hat fact is beside the point, for the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case.\\\" Id. at 801; see Independence News, Inc., 568 F.3d at 156 (stating that a city \\\"does not have to show that a particular adult establishment generates adverse secondary effects each time it seeks to enforce\\\" such a zoning ordinance); BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 607 (8th Cir. 2001) (\\\"[A] city would have the burden of showing precisely how many adult performances were capable of producing an unacceptable level of antisocial activity before the city could regulate those performances. We are satisfied that neither the [F]irst [AJmendment nor Supreme Court precedent requires a city to do the impossible.\\\"); City of Columbia v. Pic-A-Flick Video, Inc., 531 S.E.2d 518, 521 (S.C. 2000) (\\\"Municipalities do not have to show negative secondary effects in order to enforce adult zoning provisions.\\\"); BBI Enters., Inc., 874 F. Supp. at 891 n.4 (stating that \\\"once an ordinance is rendered facially valid by legitimate legislative findings as to the general problem to be dealt with, a specific operation does not necessarily escape the [ojrdinance's provisions by showing that those genericallyfjvalidating characteristics do not in fact apply to that operation\\\").\\n{41} We conclude that the Ordinance serves a significant governmental interest and is narrowly tailored to achieve that interest.\\niii. Leaves Open Alternative Channels for Communication\\n{42} The Guild makes a brief argument and cites to only one out-of-state federal district court case that is not on point for the proposition that the Ordinance does not provide it with \\\"practical alternative avenues for showing an occasional adult film.\\\" It may be true that the Guild's regular customers prefer not to frequent an adult cinema, and it may be inconvenient for the Guild to rent out such a cinema in another part of town properly zoned for such an exhibition. But just recognizing such an option acknowledges that at least one alternative exists for the Guild to present adult films in Albuquerque, and it is not an entirely unreasonable one. Zoning laws inevitably create hurdles for various behavior and forms of expression in certain parts of town; there is no evidence to suggest that this one rises to the level of an unconstitutional burden on the Guild's free-speech rights. As the Washington Supreme Court stated: \\\"[Ajlthough potential viewers would be able to see the films only in those downtown areas, there is no evidence that this places any burden on the adult movie market.\\\" Northend Cinema, Inc., 585 P.2d at 1158. In the case before us, the Guild has produced no evidence that it was left with no reasonable alternative channels of communication. We thus conclude that the Ordinance is a constitutionally valid regulation of the time, place, and manner of the exhibition of adult films as applied to the facts of this case.\\nIII. CONCLUSION\\n{43} We are aware of the problems of line-drawing that this case represents. The Ordinance does not provide a threshold level of adult film screenings that would be tolerated outside the permissible zones. The City voices a concern about the potential cumulative effect of allowing even occasional showings of adult films in areas not zoned for such behavior. Cf. F. C. C. v. Fox Television Stations, Inc., 556 U.S. 502, 521 (2009) (supporting a federal agency's enforcement action against isolated uses of profanity on television and stating that \\\"[t]o predict that complete immunity for fleeting expletives . will lead to a substantial increase in fleeting expletives seems to us an exercise in logic\\\"). We recognize that the Ordinance affects First Amendment rights. We also recognize that the Guild's position is that the Ordinance regulating adult amusement establishments is overbroad and reaches some speech that does not create the type of secondary effects it seeks to protect against. This case, however, does not present us with that question, and the record before us does not provide the proper basis on which to declare that the City may not prosecute mainstream movie theaters that occasionally exhibit pornographic films.\\n{44} As discussed above, we generally defer to the zoning power of municipalities, even though it is inevitable that the lines drawn pursuant to that power will result in winners and losers. \\\"[E]very line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function.\\\" Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (footnote omitted). We applaud the wisdom of Justice Oliver Wendell Holmes:\\nWhen a legal distinction is determined . a point has to be fixed or a line has to be drawn . to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. . . . But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the [legislature must be accepted unless we can say that it is very wide of any reasonable mark.\\nLouisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).\\n{45} Based on the record before us, we cannot say here that the Ordinance missed the mark in confining the exhibition of adult films to specified zones within the City limits. The enforcement of the Ordinance \\u2014 even against a mainstream theater screening one adult film \\u2014 was not unconstitutionally applied in this case. For the foregoing reasons, we affirm the decision of the district court.\\n{46} IT IS SO ORDERED.\\nCELIA FOY CASTILLO, Chief Judge\\nI CONCUR:\\nMICHAEL E. VIGIL, Judge\\nJONATHAN B. SUTIN, Judge, dissenting\"}"
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+"{\"id\": \"4241926\", \"name\": \"T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP, a New Mexico limited partnership; KAREN ANN HANDLEY ANDERSON, an individual; SUSAN R. HANDLEY MCGREW, an individual; BILLIE L. PHILLIPS, an individual; BILLIE L. PHILLIPS RECOVERABLE TRUST DATED APRIL 23, 1996, BILLIE L. PHILLIPS TRUSTEE, JUDY LYNN QUINT, an individual; RONALD CHARLES WEEBER, an individual; LUCILE ALICE NORTHCOTE TRUST DATED MAY 29, 1996, BILLIE L. PHILLIPS, SUCCESSOR TRUSTEE, Plaintiffs-Appellants, v. GROUP I: BENSON-MONTIN-GREER DRILLING CORP., INC., a Delaware corporation; ELIZABETH JEANNE TURNER CALLOWAY, an individual; KELLY R. KINNEY, an individual; KATHERINE P. MILLER, an individual; RONALD MICHAEL MILLER, an individual; VICKIE ROANN MILLER, an individual; THOMAS R. MILLER, an individual; FRED E. TURNER, LLC, a Delaware limited liability company; JOHN LEE TURNER, an individual; LINDA VOITL a/k/a LINDA DAVIS, an individual; ESTATE OF WILLIAME G. WEBB, deceased, JOHN G. TAYLOR, independent executor, GROUP II: CHERYL U. ADAMS, an individual; E'TWILA J. AXTELL, an individual; BP AMERICA PRODUCTION COMPANY, a Delaware corporation; COASTAL WATERS PETROLEUM COMPANY, INC., a Louisiana corporation; ENERGEN RESOURCES CORPORATION, an Alabama corporation; THE ESTATE OF ANNE B. LITTLE, FIRST SECURITY BANK OF NEW MEXICO, as personal representative; LANA GAY PHILLIPS, an individual; HENRIETTA SCHULTZ, an individual; THE FRANK AND HENRIETTA SCHULTZ REVOCABLE TRUST DATED JANUARY 2,1990, HENRIETTA SCHULTZ TRUSTEE; SCHULTZ MANAGEMENT LTD., a Texas limited partnership; J. GLENN TURNER, JR. LLC, a Delaware limited liability company; MARY FRANCES TURNER JR. TRUST, JP MORGAN CHASE BANK, NA TRUSTEE, GROUP III: ALL UNKNOWN CLAIMANTS OF INTEREST IN THE PREMISES ADVERSE TO THE PLAINTIFFS, Defendants-Appellees\", \"name_abbreviation\": \"T.H. McElvain Oil & Gas Ltd. Partnership v. Group I: Benson-Montin-Greer Drilling Corp.\", \"decision_date\": \"2014-12-19\", \"docket_number\": \"No. 34,993; Docket No. 32,666\", \"first_page\": \"143\", \"last_page\": 159, \"citations\": \"2015-NMCA-004\", \"volume\": \"7\", \"reporter\": \"New Mexico Appellate Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:31:04.950375+00:00\", \"provenance\": \"CAP\", \"judges\": \"JONATHAN B. SUTIN, Judge\", \"parties\": \"T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP, a New Mexico limited partnership; KAREN ANN HANDLEY ANDERSON, an individual; SUSAN R. HANDLEY MCGREW, an individual; BILLIE L. PHILLIPS, an individual; BILLIE L. PHILLIPS RECOVERABLE TRUST DATED APRIL 23, 1996, BILLIE L. PHILLIPS TRUSTEE, JUDY LYNN QUINT, an individual; RONALD CHARLES WEEBER, an individual; LUCILE ALICE NORTHCOTE TRUST DATED MAY 29, 1996, BILLIE L. PHILLIPS, SUCCESSOR TRUSTEE, Plaintiffs-Appellants, v. GROUP I: BENSON-MONTIN-GREER DRILLING CORP., INC., a Delaware corporation; ELIZABETH JEANNE TURNER CALLOWAY, an individual; KELLY R. KINNEY, an individual; KATHERINE P. MILLER, an individual; RONALD MICHAEL MILLER, an individual; VICKIE ROANN MILLER, an individual; THOMAS R. MILLER, an individual; FRED E. TURNER, LLC, a Delaware limited liability company; JOHN LEE TURNER, an individual; LINDA VOITL a/k/a LINDA DAVIS, an individual; ESTATE OF WILLIAME G. WEBB, deceased, JOHN G. TAYLOR, independent executor, GROUP II: CHERYL U. ADAMS, an individual; E\\u2019TWILA J. AXTELL, an individual; BP AMERICA PRODUCTION COMPANY, a Delaware corporation; COASTAL WATERS PETROLEUM COMPANY, INC., a Louisiana corporation; ENERGEN RESOURCES CORPORATION, an Alabama corporation; THE ESTATE OF ANNE B. LITTLE, FIRST SECURITY BANK OF NEW MEXICO, as personal representative; LANA GAY PHILLIPS, an individual; HENRIETTA SCHULTZ, an individual; THE FRANK AND HENRIETTA SCHULTZ REVOCABLE TRUST DATED JANUARY 2,1990, HENRIETTA SCHULTZ TRUSTEE; SCHULTZ MANAGEMENT LTD., a Texas limited partnership; J. GLENN TURNER, JR. LLC, a Delaware limited liability company; MARY FRANCES TURNER JR. TRUST, JP MORGAN CHASE BANK, NA TRUSTEE, GROUP III: ALL UNKNOWN CLAIMANTS OF INTEREST IN THE PREMISES ADVERSE TO THE PLAINTIFFS, Defendants-Appellees.\", \"head_matter\": \"Certiorari Granted, December 19, 2014,\\nNo. 34,993\\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\\nOpinion Number: 2015-NMCA-004\\nFiling Date: October 24, 2014\\nDocket No. 32,666\\nT.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP, a New Mexico limited partnership; KAREN ANN HANDLEY ANDERSON, an individual; SUSAN R. HANDLEY MCGREW, an individual; BILLIE L. PHILLIPS, an individual; BILLIE L. PHILLIPS RECOVERABLE TRUST DATED APRIL 23, 1996, BILLIE L. PHILLIPS TRUSTEE, JUDY LYNN QUINT, an individual; RONALD CHARLES WEEBER, an individual; LUCILE ALICE NORTHCOTE TRUST DATED MAY 29, 1996, BILLIE L. PHILLIPS, SUCCESSOR TRUSTEE, Plaintiffs-Appellants, v. GROUP I: BENSON-MONTIN-GREER DRILLING CORP., INC., a Delaware corporation; ELIZABETH JEANNE TURNER CALLOWAY, an individual; KELLY R. KINNEY, an individual; KATHERINE P. MILLER, an individual; RONALD MICHAEL MILLER, an individual; VICKIE ROANN MILLER, an individual; THOMAS R. MILLER, an individual; FRED E. TURNER, LLC, a Delaware limited liability company; JOHN LEE TURNER, an individual; LINDA VOITL a/k/a LINDA DAVIS, an individual; ESTATE OF WILLIAME G. WEBB, deceased, JOHN G. TAYLOR, independent executor, GROUP II: CHERYL U. ADAMS, an individual; E\\u2019TWILA J. AXTELL, an individual; BP AMERICA PRODUCTION COMPANY, a Delaware corporation; COASTAL WATERS PETROLEUM COMPANY, INC., a Louisiana corporation; ENERGEN RESOURCES CORPORATION, an Alabama corporation; THE ESTATE OF ANNE B. LITTLE, FIRST SECURITY BANK OF NEW MEXICO, as personal representative; LANA GAY PHILLIPS, an individual; HENRIETTA SCHULTZ, an individual; THE FRANK AND HENRIETTA SCHULTZ REVOCABLE TRUST DATED JANUARY 2,1990, HENRIETTA SCHULTZ TRUSTEE; SCHULTZ MANAGEMENT LTD., a Texas limited partnership; J. GLENN TURNER, JR. LLC, a Delaware limited liability company; MARY FRANCES TURNER JR. TRUST, JP MORGAN CHASE BANK, NA TRUSTEE, GROUP III: ALL UNKNOWN CLAIMANTS OF INTEREST IN THE PREMISES ADVERSE TO THE PLAINTIFFS, Defendants-Appellees.\\nDufford & Brown, P.C. Herbert A. Delap Denver, CO Cuddy & McCarthy, LLP John F. McCarthy Jr. Arturo L. Jaramillo Santa Fe, NM for Appellants\\nGallegos Law Firm, P.C. J.E. Gallegos Michael J. Condon Santa Fe, NM Briones Law Firm, P.A. Felix Briones Jr. Farmington, NM for Appellees Henrietta Schultz, The Frank and Henrietta Schultz Revocable Trust, Henrietta Schultz Trustee, Schultz Management Ltd., Elizabeth Jeanne Turner Calloway, Fred E. Turner, LLC, John Lee Turner, J. Glenn Turner, Jr. LLC, Mary Frances Turner Jr. Trust, JP Morgan Chase Bank, N.A. Trustee, and Benson-MontinGreer Drilling Corp., Inc.\\nMiller Stratvert P.A. Dylan O\\u2019Reilly William T. Denning Farmington, NM for Appellees E\\u2019Twila J. Axtell, Lana Gay Phillips, and Cheryl U. Adams\", \"word_count\": \"8889\", \"char_count\": \"54850\", \"text\": \"OPINION\\nSUTIN, Judge.\\nThe Opinion filed in this case on October 16, 2014, is withdrawn and the following Opinion is substituted in its place.\\nThis case presents a difficult issue of whether constructive notice of an action to quiet title to property, including underlying oil and gas interests located in San Juan County, New Mexico, was effective. Title was quieted in 1948 to property in .which the oil and gas interests had been reserved by the grantors of the property in a 1928 warranty deed. Presumably unbeknownst to the grantors who had reserved their oil and gas interests, the decree quieted title to those oil and gas interests in favor of the quiet title plaintiff whose title clearly stemmed from a warranty deed that contained the reservation.\\nEvidence indicated that the quiet title plaintiff knew or should have known in 1948 that the grantors who reserved the oil and gas interests resided in San Diego, California at the time of the 1928 deed. Evidence also indicated that upon inquiry in San Diego, the quiet title plaintiff may have been able to locate the grantors. Yet, service of process was obtained solely through constructive notice published in a local San Juan County newspaper with no attempt shown in the record to discover the location of those grantors for personal service or to otherwise give notice of the action to those grantors.\\nIn 2002 a group searching for locations to pursue oil and gas exploration discovered, by examining the chain of title to the property, that the oil and gas interests had been reserved by the 1928 warranty deed before the 1948 quiet title action. Based on that discovery, the group was able to locate heirs (the Wilson heirs) to the reserved interests with the result that Plaintiffs sued the heirs of the quiet title plaintiff's purchasers to establish the Wilson heirs' ownership rights in the reserved oil and gas interests. From an unfavorable district court summary judgment, Plaintiffs appeal, contending that the constructive notice was not effective to permit adjudication of their reserved interests and thus violated due process. We conclude that the Millers failed to undertake a good faith effort to provide the Wilson heirs adequate notice of their 1948 quiet title suit. We, therefore, reverse the district court's grant of summary judgment to Defendants and remand for further proceedings.\\nBACKGROUND\\nPlaintiff T.H. McElvain Oil & Gas Limited Partnership (McElvain) entered into a mineral lease agreement in 2002 with the Wilson heirs, specifically, Judy Lynn Quint and Ronald Charles Weeber, pertaining to the mineral interests associated with 160 acres of property in San Juan County (the property). Ms. Quint, Mr. Weeber, and a number of other individuals, are heirs of one of the original grantors, Mabel G. Wilson (later known by her married name, Weeber). Mabel Weeber, who, along with her mother and father, Eva C. Wilson and Judson Wilson (the Wilsons), sold the' property to David Miller in 1928, reserving in their warranty deed to David Miller the \\\"oil and gas existing or found\\\" on the property. McElvain and the Wilson heirs are Plaintiffs in the present case.\\nThe property consists of 160 acres lying beneath the surface of Navajo Lake in San Juan County. In 1927 the Wilsons, as joint tenants, acquired a general warranty deed to the property from W.W. McEwen. The 1927 deed from McEwen to the Wilsons listed \\\"Judson Wilson and Eva C. Wilson and Mabel G. Wilson of San Diego, California\\\" as purchasers of the property. When the Wilsons conveyed the property to David Miller in 1928, the warranty deed contained the following express exception and reservation:\\nexcepting and reserving to the grantors herein the oil and gas existing or found therein, with the right to enter on for prospecting or developing same, provided they must pay all damage to land or crops in prospecting or development.\\n.The deed from the Wilsons to David Miller was recorded in San Juan County in 1928.\\nBy a 1931 quitclaim deed, David Miller conveyed his interest in the property to his brother, Thomas Miller, who had paid one-half of the purchase price for the property at the time that David Miller purchased it from the Wilsons. The quit claim deed executed by David Miller, in which he conveyed his interest in the property to Thomas Miller was recorded in 1937, four days after David Miller's death. By a 1948 quiet title action in the San Juan County district court, Thomas Miller was adjudged to be the fee simple owner of the property.\\nThe numerous named Defendants in the present case were the various lessees and lessors of the mineral interests in the property whose interests stemmed from Thomas Miller's fee simple ownership in the property. The district court appointed a special master \\\"to assist... in determining the ownership of the mineral rights}.]\\\" The following background is based on the special.master's statement of undisputed facts.\\nJudson Wilson died in 1929, and Eva Wilson died in 1944. By the time that Eva Wilson died, Mabel Wilson had married and changed her name to Mabel Weeber. Mabel Weeber, the remaining jointtenant in the 1927 warranty deed to the property, died in 1970.\\nIn'October 1948, Miller filed a quiet title action in the district court for San Juan County alleging, in relevant part, that he was the fee simple owner of the property. In his complaint to quiet title in the property, Miller named Judson Wilson, Eva Wilson, and Mabel Wilson, along with other individuals who are not relevant to this appeal, as defendants \\\"if living, or if deceased, by their unknown heirs.\\\" Miller's complaint included a sworn statement by Miller's attorney that, in relevant part, the Wilsons' heirs were \\\"unknown to . . . Plaintiff, and Plaintiff [had] been unable to learn or determine the names, places of residence, [p]ost [o]ffice addresses[,] and whereabouts of the . . . unknown heirs [] after diligent search and inquiry[.]\\\" Additionally, the San Juan County Sheriff submitted a sheriffs return stating that he had \\\"diligently searched and inquired for the [Wilsons],\\\" but \\\"after such search and inquiry, [was] unable to find [them] in San Juan County . . . and [was] unable to find [their p]ost [o]ffice addresses, places of residence, or whereabouts [.]\\\"\\nMiller served the Wilsons and their heirs (hereinafter, the Wilsons) with notice of his quiet title action by publication in a Farmington, New Mexico newspaper for four successive weeks. The Wilsons did not respond to the notice. On December 20,1948, the district court entered judgment quieting title to the property in favor of Miller. In its judgment, the court determined \\\"that after [a] diligent search and inquiry},] the post office addresses, places of residences, and whereabouts of . . . the [defendants\\\" were \\\"unknown\\\"; and, therefore, the defendants could not \\\"be personally served with process in this cause.\\\" The judgment concluded that Miller was the owner of the property in fee simple title.\\nIn 1950 Miller conveyed the property to V.H. McRee, but reserved three-fourths of the mineral rights therein. In 1953 Miller and McRee entered into oil, gas, and mineral leases; as of September 24, 2012, those leases remained in effect. The heirs of McRee's purchasers, who are Defendants in this case, claim royalty interests from those leases.\\nAfter Mabel Weeber's death in 1970, her estate, which was probated in San Diego, did not identify or include any interest in any New Mexico property. Mabel Weeber's husband, Charles Weeber, died in 1978; his estate also did not mention any interest in any New Mexico property.\\nBetween 1928, when they deeded the property to David Miller, and 2002, when a landman representing McElvain wrote a letter to Judy Lynn Quint and Ronald Charles Weeber informing them that they were the \\\"current owners of the oil and gas\\\" under the property, neither the Wilsons nor their heirs took any action in regard to the property. By September 2012, the mineral interests in the property were valuable because in 2007 Energen Resources, a named Defendant in this case, successfully drilled under Navajo Lake, thus including the property in two Fruitland coalbed well spacing units.\\nIn September 2010, Plaintiffs (the Wilson heirs and McElvain) filed a lawsuit against Defendants (McRee's purchasers' heirs and their mineral lessors) seeking a declaration that, owing to the Wilsons' 1928 oil and gas reservation, Defendants were barred and enjoined from asserting any claim to the mineral interests in the property, and seeking a decree quieting title in Plaintiffs' favor to all of the mineral interests in the property. Defendants answered and also filed counterclaims seeking a declaration of certain Defendants' ownership of the mineral interests in the property. All of the parties moved for summary judgment.\\nOwing to \\\"the highly complex issues contained\\\" in the case, the district court determined that it was necessary to appoint a special master \\\"who has an expertise in dealing with the specific issues of determining the ownership of mineral rights.\\\" Ultimately, the parties chose a retired New Mexico District Court judge to serve as special master in this case. We are not made aware of whether the special master held any evidentiary or other hearing. The special master filed a report on September 24, 2012.\\nIn his report, the special master identified the central issue in the case as \\\"the validity of the [jjudgment in the 1948 quiet title action which purports to grant fee simple title in [the property to] . . . Miller.\\\" In the proceedings before the special master, Defendants' position was that the judgment was valid, therefore, their interests that flowed from Miller's title were also valid while Plaintiffs posited that the judgment was void because the 1948 service by publication failed to satisfy the Wilsons' right to due process. Having reviewed the parties' evidence that was attached to their motions for summary judgment, the special master recommended that the district court grant summary judgment in favor of Defendants because (1) the undisputed material facts supported the legal conclusion that there was no violation of due process in connection with the 1948 quiet title proceeding; (2) Plaintiffs' effort to challenge the validity of the 1948 judgment constituted a collateral attack on the judgment that would only succeed if the judgment reflected an absence of jurisdiction, and an absence of jurisdiction was not reflected in the 1948 judgment; and (3) the undisputed facts established that Plaintiffs' claims of ownership were, barred by laches, waiver, and judicial estoppel. Plaintiffs objected to the special master's report by submitting to the special master a motion to reconsider the report and moving the district court to reconsider the special master's findings before entering judgment. The district court's judgment adopted the special master's report in its entirety. In its summary judgment order, the district court quieted title to the property in favor of Defendants. Plaintiffs appeal from the court's judgment.\\nOn appeal, Plaintiffs argue that the district court erred in each of the foregoing legal determinations. We conclude that Plaintiffs' evidence established that, as a matter of law, Miller failed to exercise diligence and good faith to notify the Wilsons of his quiet title action against them. We also conclude that Plaintiffs' action is not an improper collateral attack, and we further conclude that the evidence in this record does not support the court's conclusion that equitable principles barred Plaintiffs' lawsuit. We therefore hold that the district court erred in granting summary judgment in favor of Defendants.\\nDISCUSSION\\nSummary Judgment Standard of Review\\n\\\"We review the district court's decision to grant summary judgment de no vo.\\\" Hydro Res. Corp. v. Gray, 2007-NMSC-061, \\u00b6 14, 143 N.M. 142, 173 P.3d 749. Summary judgment is appropriate where the facts are undisputed, and the movant is entitled to judgment as a matter of law. Id. We review the facts in a light most favorable to the non-moving party. Wilde v. Westland Dev. Co., 2010-NMCA-085, \\u00b6 12, 148 N.M. 627, 241 P.3d 628. Further, \\\"[a]ll reasonable inferences from the record should be made in favor of the non[-]moving party[.]\\\" J.R. Hale Contracting Co. v. Union Pac. R.R., 2008-NMCA-037, \\u00b6 27, 143 N.M. 574, 179 P.3d 579 (internal quotation marks and citation omitted). New Mexico courts view summary judgment with disfavor. Romero v. Philip Morris Inc., 2010-NMSC-035, \\u00b6 8, 148 N.M. 713, 242 P.3d 280.\\nI. The Due Process Issue\\nPlaintiffs argue that because the Wilsons were not personally served with notice of the 1948 quiet title action, or, at a minimum, notified of the lawsuit by publication in a San Diego newspaper or by mail at the Pershing Avenue address, the 1948 judgment that effectively deprived the Wilsons of their oil and gas interests in the property violated their right to due process and was, therefore, void. Plaintiffs argue that the undisputed facts show that Miller knew or with reasonable diligence could have learned of the Wilsons' address of 3767 Pershing Avenue in San Diego (the Pershing Avenue address) at which Mabel Weeber could have been personally served in 1948. They argue further thatMiller's 1948 complaint contained a conclusory and self-serving representation that despite a diligent inquiry, he was unable to learn of the Wilsons' whereabouts to effect personal service upon them. Plaintiffs contend that the court in the 1948 action compounded the due process violation by finding, based on the sheriffs return, that the Wilsons could not be personally served with process when, in fact, the return merely stated that they could not be served in San Juan County.\\nThe issue whether the Wilsons were afforded due process is a question of law. See Burris-Awalt v. Knowles, 2010-NMCA-083, \\u00b6 15, 148 N.M. 616, 241 P.3d 617. Because we are reviewing the due process issue in the context of an appeal from a summary judgment, we indulge all reasonable inferences in favor of Plaintiffs who.opposed Defendants' summary judgment motion. See Smith v. Durden, 2012-NMSC-010, \\u00b6 5, 276 P.3d 943 (stating that in reviewing an appeal from a summary judgment, we indulge all reasonable inferences and view the facts in the light most favorable to the party opposing the summary judgment); see also Turner v. Bassett, 2003-NMCA-l 36, \\u00b6 9-10, 134 N.M. 621, 81 P.3d 564 (reviewing a quiet title decree entered in the context of summary judgment and viewing the evidence in a light most favorable to the nonmoving party), rev 'd on other grounds by 2005-NMSC-009, 137 N.M. 381, 111 P.3d 701. Whether the district court had jurisdiction over the Wilsons in the 1948 quiet title action is a question of law that we review de novo. See Sproul v. Rob & Charlies, Inc., 2013-NMCA-072, \\u00b6 6, 304 P.3d 18 (\\\"The determination whether a district court has personal jurisdiction over a nonresident defendant is a question of law that we review de novo.\\\").\\nIn rejecting Plaintiffs' due process argument, the special master concluded that the undisputed facts did \\\"not support the proposition that the 1948 mailing address for the Wilsons would have been identified through the exercise of reasonable diligence.\\\" In support of its conclusion, the special master stated that the sheriffs return \\\"specifically found that, after [a] diligent search and inquiry, . . . Defendants could not be located and personally served with process.\\\" Further, the special master stated, \\\"[b]y 1948, both Judson Wilson and Eva Wilson had died; only Mabel Wilson was alive to potentially receive personal service\\\"; and \\\"[b]y 1948, Mabel Wilson had married and was known as Mabel Weeber.\\\" The special master observed that there were no facts in the record indicating that Miller knew of Mabel's married name or the name of her husband. The special master rejected \\\"Plaintiffs}'] attempt to raise an issue of fact as to the availability of information regarding the location of Mabel Weeber\\\" by showing that phone listings for Mabel and Charles Weeber included the Pershing Avenue address on the basis that these listings only reflected Mabel's married name.\\nInorderto comportwith due process, Miller was required to undertake a diligent and good faith effort to ascertain the location of the Wilsons and to personally serve them with process in the 1948 quiet title action. See Campbell v. Doherty, 1949-NMSC-030, \\u00b6 27, 30-31, 53 N.M. 280, 206 P.2d 1145 (examining the record from a 1946 lawsuit and recognizing the requirement of diligence and good faith in attempting to discover the names and places of residence of the defendants and or his or her heirs); Owens v. Owens, 1927-NMSC-053, \\u00b6 2, 11, 14, 32 N.M. 445, 259 P. 822 (requiring a diligentand good faith effort to effect personal service of process); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 309, 314-18 (1950) (considering the adequacy of notice given to necessary parties in a 1947 lawsuit and explaining that within the bounds of reasonableness and practicality, notice of process must be certain to reach the affected party). In 1948 notice by publication would have been permissible only out of necessity. See Campbell, 1949-NMSC-030, \\u00b6 31 (\\\" 'Constructive service is in derogation of the common law. It is harsh. It lends itself to abuse. It is only resorted to from necessity.' \\\" (quoting Owens, 1927-NMSC-053, \\u00b6 2));see Mullane, 339 U.S. at 315, 317 (recognizing that notice by publication comports with due process only where the parties are unknown or missing).\\nTo supporttheirargumentthatMiller knew or with reasonable diligence could have learned of Mabel Weeber's identity and whereabouts, Plaintiffs rely on the following evidence in the record that was before the special master. The 1928 deed from the Wilsons to David Miller was notarized in San Diego. In 1926 and in 1930, the San Diego city directory listed the Wilsons' address at the Pershing Avenue address. In 1928, when David Miller acquired the property from the Wilsons, Thomas Miller paid half the purchase price of the property. Eva Wilson's death certificate, which was issued by the Assessor/Recorder/County Clerk of San Diego County reflected that Eva Wilson lived at the Pershing Avenue address, and it listed Mrs. Weeber, who also lived at the Pershing Avenue address, as the \\\"informant.\\\" - An obituary for Eva Wilson was printed in \\\"The San Diego Union\\\"- newspaper in December 1944 and stated, in relevant part, that Mrs. Wilson was survived by her daughter, Mrs. Mabel W. Weeber. Evidence presented to the special master showed that Mabel Weeber resided at the Pershing address from 1926 until her death in 1970. No evidence in the record shows that the Wilsons ever resided in San Juan County.\\nAdditionally, Plaintiffs look to Miller's knowingly false allegation in his 1948 quiet title action stating he was \\\"the owner in fee simple\\\" of the property. Plaintiffs argue that this information could only have been gleaned by Miller or his attorneys having conducted a title examination of the property. Miller's 1948 complaint stated that Miller had diligently searched and inquired for the \\\"unknown heirs\\\" of the defendants and for the \\\"unknown persons and parties\\\" who claimed \\\"some right, title, interest, equity, lien, claim[,] or demand in, to, or against\\\" the property, but that he could not determine the identities or whereabouts of the unknown heirs and the unknown claimants. Miller's complaint did not, however, state that he had searched diligently or otherwise for the living defendants who were not residents of New Mexico, that is, for Mabel Wilson who was alive and going by her married name, Mabel Weeber. Further, the 1948 sheriffs return stated, in relevant part, that the \\\"Sheriff of San Juan County, New Mexico\\\" certified that he had \\\"diligently searched and inquired for the [defendants . . . ; that after such search and inquiry, I have been unable to find any of the [defendants in San Juan County, New Mexico, and I have been unable to find the [p]ost [o]ffice addresses, places of residence, or whereabouts of the [d]efendants[.]\\\" Relying on the sheriffs return that indicated a search limited to San Juan County, th\\u00e9 1948 court found, in relevant part, that the Wilsons could not be personally served there with process.\\nBased on the foregoing, Plaintiffs argue that because Miller contributed to his brother's purchase of the property and because the information regarding the Wilsons' residence was in his chain of title, Miller knew or should have known that the Wilsons lived in San Diego and that they had reserved the oil and gas interests in the property. They argue that had Miller wished to fulfill his due process obligations, with reasonable diligence, he could have ascertained Mabel Weeber's identity and address, and have personally sent notice to her of his quiet title action. At the very least, they argue Miller could have effected notice by publication in a San Diego newspaper. Plaintiffs argue further thatMabel Wilson was a named defendant in the quiet title action and, as such, she was neither an unknown heir nor was she an unknown claimant; therefore, Miller's complaint blatantly lacked any attestation as to a diligent search for her whereabouts.\\nPlaintiffs also argue that the 1948 district court erred in finding, based on the sheriffs return, that the Wilsons could not be personally served. In Plaintiffs' view, the sheriffs return merely confirmed that the sheriff was unable to find any of the defendants in San Juan County, New Mexico; therefore, according to Plaintiffs, the 1948 court's finding went \\\"well beyond\\\" what the sheriffs return stated.\\nPlaintiffs theorize that Miller's failure in good faith to attempt to personally serve Mabel Weeber with notice of his quiet title action may reasonably be viewed as having been intentional and self-serving, as Miller's aim in seeking to quiet title to the property was to acquire the rights to the Wilsons' oil and gas interests in the property. Plaintiffs support their ascription of Miller's mal-intent by pointing to the fact, also in the record, that \\\"shortly after\\\" the 1948 quiet title action, in 1950, Miller conveyed his interest in the property to McRee, but reserved three-fourths of the mineral interests for himself. Plaintiffs argue that Miller's failure to attempt to personally serve Mabel Weeber with process or at least to publish notice of the action in a San Diego newspaper or to mail notice of the action to the Pershing Avenue address was in derogation of the principle that the notice employed must be more than a mere gesture, it must reflect a desire on behalf of the party effecting service of actually informing the absentee of the lawsuit. See Mullane, 339 U.S. at 315 (\\\"[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.\\\"). In sum, according to Plaintiffs, because Miller's obvious goal in quieting title to the property was to gain ownership of the Wilsons' oil and gas interests in the property, his actions were designed to avoid giving the Wilsons notice of his lawsuit.\\nIn response, Defendants argue that summary judgment should be affirmed because Plaintiffs failed to demonstrate that Mabel Weeber was not on notice of the 1948 quiet title action. Because our standard of review mandates that we view the evidence in the light most favorable to and indulge all reasonable inferences in favor of Plaintiffs in this case, we reject this argument. See Wilde, 2010-NMCA-085, \\u00b6 12 (stating the standard of review applicable to an appeal from summary judgment); J.R. Hale Contracting, 2008-NMCA-037, \\u00b6 27 (same). Although it is true that Plaintiffs have failed to affirmatively demonstrate that Mabel Weeber did not see the notice published in the Farmington paper, it is axiomatically difficult to prove something in the negative, particularly several decades after the death of the knowledgeable party. Based on the fact that Mabel Weeber did not enter an appearance in the 1948 action, and the further facts that while Mabel Weeber only lived in San Diego from 1926 and notice of Miller's lawsuit was published exclusively in a Farmington, New Mexico newspaper, a reasonable inference is that Mabel Weeber was not on notice of Miller's 1948 action.\\nAlternatively, Defendants argue that the special master correctly concluded that Plaintiffs' evidence failed to raise a question of fact as to the validity of the 1948 court's finding that, notwithstanding a diligent search or inquiry, Miller could not locate the Wilsons. In support of their argument, Defendants point to the special master's conclusions that (1) \\\"there is nothing to indicate that . . . Miller had information regarding Mabel Weeber's whereabouts . in 1948\\\"; and (2) \\\"[tjhere are no facts in the record which would indicate that... Miller or anyone attempting to achieve service on Mabel knew of Mabel's married name or the name of her husband.\\\" Defendants contend that Plaintiffs' evidence does not contradict these conclusions. We disagree.\\nEvidence in the record reflects that every transaction involving the Wilsons and the property showed that the Wilsons resided in San Diego during 1926-28, and no evidence showed that the Wilsons had resided any place except San Diego. Thus, as noted earlier, it is reasonable to infer that Miller was aware of the Wilsons' San Diego residence in 1927 and 1928 and likely could have ascertained their San Diego residence in 1948. Further, with nothing to suggest otherwise, it would be reasonable for Miller to have, in good faith, assumed that in 1948 the Wilsons were still in San Diego.\\nThe absence of anything in the record to indicate that Miller knew that Mabel Wilson had become Mabel Weeber does not support summary judgment for Defendants. Having apparently made no attempt to locate the Wilsons in San Diego, Miller's inability to learn of Mabel Wilson's married name was not caused by the fact that her name had changed, but by the fact that his efforts to locate her were limited to the State of New Mexico. See Owens, 1927-NMSC-053, \\u00b6 10 (stating that one cannot remain willfully, studiously, or deliberately ignorant of a means of personal service and honestly swear that the adversary's residence is unknown). It is possible that had Miller attempted to locate the Wilsons in San Diego, he would have been stymied by Mabel Wilson's changed name. It is equally possible that a phone call or letter to the county clerk in San Diego, who had issued Eva Wilson's death certificate, which listed Mrs. Weeber as the informant of Eva Wilson's death, would have led to the Wilsons' address, at which Mabel Weeber continued to reside with her husband as reflected by the 1947-48 San Diego City Directory that listed \\\"Weeber Chas E (Mabel W)\\\" at the Pershing Avenue address.\\nThe special master concluded that Mabel Weeber's due process was not violated in the 1948 case because \\\"there is nothing to indicate that . . . Miller had information regarding Mabel Weeber's whereabouts or that her whereabouts could be identified through reasonable diligence}.]\\\" But reasonable inferences drawn from the evidence in favor of Plaintiffs require the conclusion that had Miller been interested in serving the Wilsons in 1948 with notice of the quiet title action, his search would and should have included San Diego and would have likely led to the possibility of learning Mabel Weeber's identity and address. Thus, the attempted constructive service in this case did not pass constitutional due process muster, and summary judgment in favor of Defendants was not appropriate.\\nThe Collateral Attack Issue\\nBecause Plaintiffs sought, in the present lawsuit, to have the 1948 judgment declared void as to the Wilsons, their lawsuit constituted a collateral attack on the 1948 judgment. See Hanratty v. Middle Rio Grande Conservancy Dist., 1970-NMSC-157, \\u00b6 4-5, 82 N.M. 275, 480 P.2d 165 (defining a \\\"collateral attack\\\" as an attempt in a separate action to impeach \\\"a judgment by matters dehors the record\\\" (internal quotation marks and citation omitted)). A judgment entered against a party who did not receive effective service of process is subject to a collateral attack because a court has no jurisdiction over parties who have not been notified of a lawsuit against them. See Rodriguez v. La Cueva Ranch Co., 1912-NMSC-028, \\u00b6 1, 19, 22, 17 N.M. 246, 134 P. 228 (permitting a collateral attack on a land grant partitioning decree by a party that claimed adverse possession in the at-issue land, but who had not received notice of the partition suit and was, therefore, not subject to the decreeing court's jurisdiction); see also Harlan v. Sparks, 125 F.2d 502, 505 (10th Cir. 1942) (applying New Mexico law to hold that a probate court's decree of heirship and apportionment of the decedent's property was open to a collateral attack on the ground that certain interested parties did not receive effective service of process); Jueng v. N.M. Dep't of Labor, 1996-NMSC-006, \\u00b6 8, 121 N.M. 237, 910 P.2d 313 (stating that \\\"failure to serve a party with process in a proper manner generally means only that the court has no power over that party and cannot render a judgment binding that party\\\" (alteration, internal quotation marks, and citation omitted)). In this case, based on his having stated no more than that there was \\\"nothing in the 1948 [\\u00a1judgment indicating a lack of jurisdiction},]\\\" the special master concluded that \\\"Plaintiffs' collateral attack on the judgment fails as a matter of law.\\\"\\nRelying on the principle that a judgment cannot be collaterally attacked unless the judgment or the record affirmatively shows that the court lacked jurisdiction over the party contesting its validity, Defendants argue that the 1948 judgment is not subject to Plaintiffs' collateral attack because, on its face, the judgment does not reflect an absence of jurisdiction. See In re Estate of Baca, 1980-NMSC-135, \\u00b6 11, 95 N.M. 294, 621 P.2d 511 (stating that judgments cannot, be collaterally attacked \\\"unless lack of jurisdiction appears affirmatively on the face of the judgment or in the judgment roll or record, or is made to appear in some other permissible manner\\\"); Swallows v. Sierra, 1961-NMSC-063, \\u00b64, 68 N.M. 338, 362 P.2d 391 (holding that a former judgment could not be collaterally attacked because the party contesting its validity had not claimed that the judgment failed to affirmatively show a lack of jurisdiction). Because the permissibility of a collateral attack of the 1948 judgment on the basis of lack of personal jurisdiction over the Wilsons was considered in the context of a summary judgment, we view the facts in the light most favorable to Plaintiffs and indulge all reasonable inferences in their favor. See Smith, 2012-NMSC-010, \\u00b6 5 (stating that in reviewing an appeal from a summary judgment, we indulge all reasonable inferences and view the facts in the light most favorable to the party opposing the summary judgment). We review de novo whether the court correctly applied the law to the facts. Gomez v. Chavarria, 2009-NMCA-035, \\u00b6 6, 146 N.M. 46, 206 P.3d 157.\\nDefendants point to the fact that the 1948 judgment states that the Wilsons could not be located or served in San Juan County, notice of the lawsuit was published, and the Wilsons were named in the publication. The court found that the Wilsons could not be personally served, the Wilsons did not answer the published notice, and the judgment stated that the court had jurisdiction over the Wilsons. Defendants also assert that the sheriff's return supports the 1948 district court's finding that the Wilsons could not be personally served. We are not persuaded.\\nAs discussed earlier in this Opinion, Plaintiffs' evidence supports a reasonable inference that Miller, either by having contributed to the purchase price of the property when his brother purchased it from the Wilsons, or by the title examination that led him to name each of the Wilsons as defendants in his quiet title action, knew or should have known that the Wilsons lived in San Diego at the time of the deed. Nevertheless, neither Miller's complaint nor the sheriff s return show that the search for the Wilsons or their \\\"unknown heirs\\\" exceeded the bounds of San Juan County or New Mexico, nor did the complaint acknowledge the fact or the possibility of the Wilsons' out-of-state residence. By omitting from his 1948 complaint the fact that the Wilsons were nonresidents of San Juan County or of New Mexico, Miller avoided having to aver that he had, in good faith, attempted to locate them in their home state. See Bowers v. Brazell, 1926-NMSC-003, \\u00b6 4, 11, 31 N.M. 316, 244 P. 893 (stating that where a plaintiff sought to provide service by publication of a defendant residing in a foreign jurisdiction, the plaintiff was required to state in an affidavit that a defendant who is owed service of process resides out of the state); see also Campbell, 1949-NMSC-030, \\u00b6 30 (recognizing the continuing validity, in 1949, of the Bowers decision related to notice and jurisdiction). Further, because Miller did not advise the 1948 court of the Wilsons' non-residence, the court had no basis on which to consider the effectiveness of notice by publication in a Farmington, New Mexico newspaper, nor did it have the opportunity to consider whether, owing to the possibility of ineffective notice, it lacked jurisdiction over the Wilsons.\\nAdditionally, Defendants argue that an averment in Miller's complaint that \\\"if [the Wilsons] . are living, and reside in or have their places of residence in the State of New Mexico, [they] have secreted themselves so that service of process cannot be had upon them\\\" was sufficient to comport with the then-applicable Rule of Civil Procedure. Defendants' argument is premised on the notion that the then-applicable rule, stated in Campbell, provided that the plaintiff was required to \\\"file a sworn pleading . . . stating that any defendant resides or has gone out of the state, or has concealed himself within the state, . so that process cannot be served upon . . . them\\\" and, if this was done, service by publication was permissible. 1949-NMSC-030, \\u00b6 24 (internal quotation marks and citation omitted). Thus, Defendants argue, under the rule stated in Campbell, Miller could, in keeping with due process, either state that the Wilsons resided out of State or he could state that if they lived in New Mexico, they had secreted themselves. We disagree.\\nIt would run contrary to due process to interpret the then-applicable service of process rule to allow a plaintiff to avoid making any effort beyond only publishing in a local newspaper where the property was located to pursue service on a quiet title defendant, who was known to reside in a foreign jurisdiction at the time that the parties conducted their business related to the property, and who was never known to have resided in New Mexico, merely by stating that the defendant may have secreted himself in New Mexico. See Campbell, 1949-NMSC-030, \\u00b6 31 (recognizing that in accord with the \\\"plain purpose\\\" of the then-applicable constructive notice statute, one may not willfully, studiously, and deliberately avoid knowledge of an adversary's residence and yet claim that the adversary's residence is unknown). Under the circumstances of this case, where a reasonable inference is that Miller knew of the W ilsons ' residence outside New Mexico at the time that the Wilsons purchased the property from McEwen and at the time that the Wilsons conveyed the property to Thomas Miller, due process required that he so state and that he exert a good faith effort to effect personal service. See Campbell, 1949-NMSC-030, \\u00b6 35 (\\\"Diligence is a relative term and must be determined by the circumstances of each case.\\\"); Owens, 1927-NMSC-053, \\u00b6 4 (holding that due process required personal service of a plaintiff whose whereabouts, in another state, could have been ascertained but for the plaintiff having wholly failed to make an effort to do so); see also Mullane, 339 U.S. at 315 (\\\"The means [of notice] employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.\\\").\\nIn sum, the 1948 quiet title record, including the complaint and the judgment, affirmatively shows that Miller failed to either investigate strong indications known to him of the Wilsons' whereabouts as required, or to fully apprise the court of the circumstance of the Wilsons' San Diego residence during their transactions in regard to the property. In turn, he was able to effectively avoid any requirement or potential mandate that he attempt to personally serve the Wilsons in San Diego. See Owens, 1927-NMSC-053, \\u00b6 4, 10 (holding that the plaintiff, who avoided a requirement to notify the non-resident defendant of his action by stating that he did not know the defendant's address, acted in bad faith because, had he so desired, he could easily have found the defendant's address). We hold that the district court erroneously determined that Plaintiffs' claim was barred under the collateral attack doctrine.\\nII. The Equity Issues\\nThe district court concluded that an alternative ground for granting summary judgment in favor of Defendants was that the undisputed facts demonstrated that Plaintiffs' claim was barred by the equitable doctrines of laches, waiver, and judicial estoppel. Defendants argue that the district court's application of laches, waiver, and judicial estoppel should be reviewed for an abuse of discretion. We disagree. When an equitable determination is made in the context of summary judgment, the appellate court reviews the evidence in the light most favorable to the nonmoving party to determine whether the district court erred as a matter of law in applying the equitable principles. See Brown v. Trujillo, 2004-NMCA-040, \\u00b6 20, 135 N.M. 365, 88 P.3d 881 (recognizing that ordinarily an equitable determination is reviewed for an abuse of discretion, but where the equitable determination was made \\\"in the context of summary judgment, we view the evidence in the light most favorable to the nonmoving party\\\"). We review issues of law de novo. Helena Chem. Co. v. Uribe, 2013-NMCA-017, \\u00b6 28, 293 P.3d 888.\\nIn order to permit a legal conclusion that the doctrine of laches applied, the undisputed facts before the district court had to show that (1) Defendants' conduct gave rise to the situation of which the complaint was made and for which Plaintiffs seek a remedy; (2) Plaintiffs had knowledge or notice of Defendants' conduct and an opportunity to institute a lawsuit, but delayed in asserting their rights; (3) Defendants lacked knowledge or notice that Plaintiffs would assert the right on which they based their lawsuit; and. (4) D efendants would suffer injury or prejudice in the event Plaintiffs were to prevail or their lawsuit was allowed to proceed. See Garcia v. Garcia, 1991-NMSC-023, \\u00b6 31, 111 N.M. 581, 808 P.2d 31 (stating the elements of laches).\\nIn order to support the legal conclusion that the doctrine of waiver applied, the undisputed facts had to demonstrate that Plaintiffs knew they were entitled to enforce a right, but neglected to do so for so long that Defendants could fairly infer that Plaintiffs waived or abandoned the right. See Magnolia Mountain Ltd. P'ship v. Ski Rio Partners, Ltd., 2006-NMCA-027, \\u00b6 29, 139 N.M. 288, 131 P.3d 675 (defining waiver by acquiescence). \\\"[A] trial court should not infer acquiescence from doubtful or ambiguous acts.\\\" Id. (internal quotation marks and citation omitted).\\nThe court based its laches and waiver conclusions on the facts that (1) neither the Wilsons nor their successors did anything to claim ownership in the oil and gas interests connected to the property from the date of the deed to David Miller in 1928 until 2002 when McElvain sought to enter into a lease with them, and (2) Plaintiffs only \\\"stepped forward to contend they [had] an interest in the property after\\\" a well was successfully completed in 2007. While Defendants maintain that each of the district court's laches and waiver holdings should be affirmed, at oral argument before this Court, Defendants did not discuss waiver and concentrated on and emphasized their view that the doctrine of laches was properly applied in this case. Accordingly, although we hold that neither laches nor waiver were properly applied here, we address Defendants' laches argument in some detail.\\nIn regard to laches, Defendants argue in their answer brief and emphasized at oral argument that because Miller recorded his quiet title judgment pursuant to NMSA 1978, Section 14-9-1 (1886, amended 1991), and because subsequent conveyances of the property were likewise recorded as required by law, the Wilsons and their heirs were, pursuant to NMSA 1978, Section 14-9-2 (1915), charged with \\\"notice\\\" of Miller's quiet title action and of subsequent transactions involving the property. See \\u00a7 14-9-1 (requiring all writings affecting the title to real estate, including deeds, mortgages, and leases, to be recorded in the office of the county clerk in the county in which the property is located); \\u00a7 14-9-2 (stating that county clerk records of instruments affecting real estate, as required by Section 14-9-1, \\\"shall be notice to all the world of the existence and contents of the instruments so recorded from the time of recording\\\"). In Defendants' view, this notice was sufficient to meet the laches element of Plaintiffs' notice of Defendants' quiet title decree and later lease transactions and their opportunity to institute a lawsuit but delayed in asserting their rights. See Garcia, 1991-NMSC-023, \\u00b6 31 (stating the elements of laches). Defendants' reliance on Sections 14-9-1 and -2 is misplaced.\\nThe phrase \\\"all the world\\\" as it is used in Section 14-9-2 \\\"has been limited to mean persons who are bound to search the record,\\\" such as subsequent purchasers. Allen v. Timberlake Ranch Landowners Ass'n, 2005-NMCA-115, \\u00b6 34, 138 N.M. 318, 119 P.3d 743. Neither Section 14-9-2 nor any authority of which we are aware imposes a duty upon the owner of an interest in real property to constantly peruse the records of the county clerk to determine whether he or she has been divested of his or her property right in a lawsuit of which he or she was not notified. In this case, we will not interpret Section 14-9-2 to stand for the proposition that the Wilsons were \\\"bound to search the record,\\\" Allen, 2005-NMCA-115, \\u00b6 34, after they sold the property subject to an oil and gas reservation, such that they should be held to have had constructive notice of Miller's, quiet title action as a result of the recording of a quiet title judgment and later leasehold transactions in the San Juan County records.\\nD efendants argue further that Skaggs v. Conoco, Inc., 1998-NMCA-061, 125 N.M. 97, 957 P.2d 526, and Farrar v. Hood, 1952-NMSC-095, 56 N.M. 724, 249 P.2d 759, support the application of the doctrine of laches to the circumstances here. In Skaggs, in 1994 the plaintiffs sought to declare void a 1927 drilling and operating agreement between Mr. Skaggs (the decedent) and the prospecting company, Marland Oil Company of Colorado, permitting Marland to explore, drill, develop, produce, and market any oil and gas on the at-issue property. 1998-NMCA-061, \\u00b6 3-4, 7. The plaintiffs claimed that the 1927 agreement was void because the decedent's wife at the time of the conveyance had not joined in the conveyance, and as a result of the allegedly void conveyance, the plaintiffs, who were the decedent's wife's heirs, sought to quiet title to the property in their favor'. Id. \\u00b6 2-3, 7-8, 10. The defendants claimed that laches, among other defenses, barred the plaintiffs' lawsuit. Id. \\u00b6 7. The record on appeal before the Skaggs Court included undisputed evidence that as early as 1951, the decedent's wife knew of her husband's allegedly void conveyance to Marland and of his subsequent conveyance to third parties of any royalty interest from Marland's activities. Id. \\u00b6 11. The Skaggs Court held that under those circumstances, where it was evident that the decedent's wife was on notice of her husband's conveyances, yet neither she nor the heirs attempted to enforce any rights related to the.property until more than forty years later, during which time the defendants had invested \\\"substantial sums in prospecting and developing\\\" the property, the doctrine of laches was properly applied. Id. \\u00b6 13.\\nFarrar involved a transaction in which one party, the conveyor, conveyed mineral interests in exchange for a share of a speculative security sold by another party, the seller. 1952-NMSC-095, \\u00b6 3. The seller was not authorized to engage in the sale of speculative securities at the time of the transaction. Id. \\u00b62, 8-11. The seller induced the conveyor into the sale by representing that the speculative security venture would be profitable, however, five years after the transaction, the seller informed the conveyor that the venture was less than half as valuable as the seller had earlier represented. Id. \\u00b6 12, 14. Nevertheless, the conveyor did not attempt to escape the effect of his mineral deed transfer to the seller until nineteen years later, when the conveyor sought to void the original transaction based on a prohibition against the unauthorized sale of speculative securities. Id. \\u00b6 14, 16, 33. By the time the conveyor sought to void the original transaction, the mineral interests that the conveyor had \\u2022 conveyed to the seller had become twenty times more valuable than they were at the time of the conveyance. Id. \\u00b6 33. The Farrar Court held that laches barred the conveyor's lawsuit because it violated the principle that \\\"[a] person may not withhold his claim, awaiting the outcome of an enterprise, and then, after a decided turn has taken place in his favor, assert his interest, especially where he has thus avoided the risks of the enterprise.\\\" Id. \\u00b6 35 (internal quotation marks and citation omitted).\\nIn both Skaggs and Farrar, the parties that were barred by laches were on notice of the allegedly wrongful transaction underlying their lawsuits years before they sued to vindicate their rights. Notably, in concluding that waiver and laches applied in the case now before this Court, the district court did not find that the undisputed facts of this case demonstrated that the Wilsons knew or had notice of Miller's quiet title action, or of Miller's subsequent actions in regard to the mineral interests in the property. Nor, on this record, with regard to the question whether the Wilsons' due process right to notice was violated, could the district court reasonably have concluded that, as a matter of undisputed fact, the Wilsons were on notice of Miller's quiet title action. Unlike the plaintiffs in Skaggs and Farrar, Plaintiffs have not been shown to have delayed legal action to vindicate a wrong of which they were indisputably on notice. We conclude, therefore, that the record did not support a legal determination thatPlaintiffs' lawsuit was barred by laches, and we further conclude that Skaggs and Farrar do not support Defendants' laches argument. See Garcia, 1991-NMSC-023, \\u00b6 31 (stating that a finding of laches requires that the complaining party had notice of the defendant's actions).\\nThere is no evidence to support an inference or a conclusion that the Wilsons or their heirs knew that they were entitled to enforce their right to the oil and gas interest in the property against Miller or his heirs, but neglected to do so. The district court could not properly have determined that waiver applied. See Magnolia Mountain, 2006-NMCA-027, \\u00b6 29 (defining waiver). Having not been notified that their ownership of the oil and gas interests in the property were threatened and later unlawfully terminated by Miller's quiet title action, the Wilsons and their heirs cannot be said to have waived their rights.\\nJudicial estoppel is applied to prevent a party from maintaining inconsistent positions in judicial proceedings. Citizens Bank v. C & H Constr. & Paving Co., 1976-NMCA-063, \\u00b6 36, 89 N.M. 360, 552 P.2d 796. \\\"Where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position, [judicial estoppel precludes him from] thereafter assuming] a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.\\\" Id. Here, the special master determined that judicial estoppel barred Plaintiffs' lawsuit because Mabel Weeber and her husband, Charles Weeber, whose estates have gone through probate, did not indicate ownership in the subject property at the time of their respective deaths. Thus, according to the special master, Plaintiffs' present lawsuit was inconsistent with their actions in the probate proceedings.\\nIn our view, judicial estoppel does not apply under the circumstances of this case. That the inventories in Mabel and Charles Weeber's probate proceedings omitted the oil and gas interests in the property is of little, if any, probative value on the matter of ownership of or right to the oil and gas interests in the property. The wills did not mention any particular properties and the inventories were prepared after the two were deceased. Indeed, it is not unheard of that a will would dispose of some, but not all, of a decedent's property. See Cal. Probate Code, \\u00a7 6400 (West2014) (stating that \\\"[a]ny part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs\\\"); see also NMSA 1978, \\u00a7 45-2-101(A) (1993) (stating that \\\"[a]ny part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs\\\"). Moreover, the parties do not point to any evidence in the record that reflects that Mabel Weeber or, later, her husband, affirmatively acknowledged their lack of ownership or right to the oil and gas interests in the property. Thus, what this record shows is an absence of any legal position taken by Mabel or Charles Weeber or their heirs in regard to the oil and gas interests in the property. Under these circumstances, we conclude that judicial estoppel is not supported by the undisputed facts in the record.\\nIn sum, the record demonstrates that the Wilsons, particularly Mabel Weeber, did not receive constitutionally adequate notice of Miller's 1948 quiet title action. Further, nothing in the record reflects that they were placed on notice of the quiet title decree or later oil and gas transactions. Under these circumstances, we cannot uphold the district court's application of the equitable principles as a bar to Plaintiffs' lawsuit.\\nDefendants' Presumed Grant Argument\\nDefendants argue that we should affirm the district court's summary judgment on the basis of the doctrine of presumed grant. Neither the special master nor the district court considered or ruled on this issue. It is therefore not properly before this Court, and we decline to consider the issue. See Luginbuhl v. City of Gallup, 2013-NMCA-053, \\u00b6 41, 302 P.3d 751 (stating that, where the district court did not consider or rule on an issue, the issue was not properly before this Court).\\nCONCLUSION\\nHaving concluded that Miller failed to attempt, in good faith and with reasonable diligence, to serve Mabel Weeber with notice of his 1948 quiet title action, we hold that the quiet title action was subject to a collateral attack and was void as to the Wilsons. We also hold that the facts in this record did not support the district court's application and determinations of laches, waiver, and judicial estoppel. We reverse the order of the district court granting summary judgment in favor of Defendants. We remand for further proceedings consistent with this Opinion.\\nIT IS SO ORDERED.\\nJONATHAN B. SUTIN, Judge\\nWE CONCUR:\\nRODERICK T. KENNEDY, Chief Judge\\nMICHAEL E. VIGIL, Judge\"}"
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+"{\"id\": \"4242751\", \"name\": \"BUDGET RENT-A-CAR SYSTEMS, INC., Plaintiff-Appellant, v. BRIDGESTONE Firestone North American Tire, LLC, a Delaware limited liability company, Defendant-Appellee\", \"name_abbreviation\": \"Budget Rent-A-Car Systems, Inc. v. Bridgestone\", \"decision_date\": \"2008-12-30\", \"docket_number\": \"No. 27,877\", \"first_page\": \"623\", \"last_page\": 630, \"citations\": \"145 N.M. 623\", \"volume\": \"145\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:46:42.440036+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: JAMES J. WECHSLER and CELIA FOY CASTILLO, Judges.\", \"parties\": \"BUDGET RENT-A-CAR SYSTEMS, INC., Plaintiff-Appellant, v. BRIDGESTONE Firestone North American Tire, LLC, a Delaware limited liability company, Defendant-Appellee.\", \"head_matter\": \"2009-NMCA-013\\n203 P.3d 154\\nBUDGET RENT-A-CAR SYSTEMS, INC., Plaintiff-Appellant, v. BRIDGESTONE Firestone North American Tire, LLC, a Delaware limited liability company, Defendant-Appellee.\\nNo. 27,877.\\nCourt of Appeals of New Mexico.\\nDec. 30, 2008.\\nCiverolo, Gralow, Hill & Curtis, PA, William P. Gralow, Edward F. Messett, Denise Archuleta, Albuquerque, NM, for Appellant.\\nKeleher & McLeod, P.A., Arthur 0. Beach, Lynn E. Mostoller, Albuquerque, NM, for Appellee.\", \"word_count\": \"3505\", \"char_count\": \"22220\", \"text\": \"OPINION\\nVIGIL, Judge.\\n{1} Plaintiff, Budget Rent-A-Car Systems, Inc. (Budget), appeals the district court's order dismissing its complaint against Defendant Bridgestone Firestone North American Tire, LLC (Bridgestone). Bridge-stone filed motions to dismiss Budget's complaint, arguing that Budget's claim was a subrogation claim, which was barred because it was not filed within the applicable statute of limitations. In response, Budget argued that its claim was for indemnity, not subrogation. The district court granted Bridge-stone's motions to dismiss Budget's complaint. We reverse the district court order dismissing Budget's complaint against Bridgestone.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n{2} Two individuals (Underlying Plaintiffs) rented a truck from Budget. While driving the truck on July 6, 2003, Underlying Plaintiffs were involved in a rollover accident and suffered injuries as a result. At that time, Budget retained an expert to inspect the truck and determine the cause of the accident. On August 26, 2003, Budget's expert issued a report on the investigation of the accident. The report stated that the accident was caused by a defective tire, which was manufactured by Bridgestone. In early 2004, Budget informed Bridgestone about the findings of its expert. Bridgestone conducted its own inspection of the tire and determined that the failure of the tire was due to an \\\"impact break\\\" and not the result of \\\"a defect in either materials or workmanship.\\\"\\n{3} On July 15, 2004, Underlying Plaintiffs filed suit against Budget for personal injuries suffered as a result of the accident. Underlying Plaintiffs alleged in pertinent part:\\n7. Defendant Budget owed a duty to [Underlying] Plaintiffs to provide them with a product \\u2014 a rental truck-free of defects.\\n8. Budget breached this duty by providing [Underlying] Plaintiffs with a defectively designed or manufactured product.\\n9. At all times the product was in substantially the same condition as when [Underlying] Plaintiffs received it.\\n10. [Underlying] Plaintiffs were using the product in the manner Budget intended and were unaware of any defects in the product making it unsafe for its intended use.\\n11. [Underlying] Plaintiffs' injuries were the direct and proximate result of their use of the product in its defective condition and [Underlying] Plaintiffs suffered damages and injuries in amounts to be determined at trial.\\n12. Budget also failed to exercise ordinary care in the inspection and maintenance of the vehicle, which was a duty owed to [Underlying] Plaintiffs.\\n13. As a direct and proximate result of this breach, [Underlying] Plaintiffs suffered injuries and damages in amounts to be determined at trial.\\n14. Budget also breached implied warranties of merchantability and fitness, because the product was not fit for its ordinary purpose and did not conform to standards of merchantability.\\n15. As a direct and proximate result of the breach of these warranties, [Underlying] Plaintiffs suffered damages in amounts to be determined at trial.\\n{4} Budget engaged in settlement negotiations with Underlying Plaintiffs; Bridgestone chose to not participate in those negotiations. Budget settled with Underlying Plaintiffs for $72,161.00, on March 30, 2006, and secured a \\\"Release in Full of All Claims and Rights\\\" from Underlying Plaintiffs. The Release discharges Budget, Continental Casualty Company, their agents, and their representatives. In addition, the Release signed by Underlying Plaintiffs states, \\\"We understand that this is all the money we will receive as a result of this accident.\\\"\\n{5} On August 23, 2006, Budget filed suit against Bridgestone alleging strict products liability, breach of warranty, and negligent design and manufacture based on its claim that the tire on the rented truck was defective and that the defective tire was the cause of the accident. Budget sought \\\"reimbursement\\\" in the form of a judgment for the settlement amount paid to Underlying Plaintiffs, plus pre-judgment interest, post-judgment interest, fees, and costs. Bridgestone filed a motion to dismiss the counts listed in the complaint \\\"to the extent they seek to recover for the personal injuries of [Underlying Plaintiffs].\\\" Bridgestone claimed that Budget had asserted a subrogation claim and that such a claim for the personal injuries of Underlying Plaintiffs was barred because it was filed more than three years from the date of the accident. Bridgestone filed a second motion to dismiss Budget's complaint, again arguing that Budget had filed a subrogation claim, and adding that because Budget voluntarily settled with Underlying Plaintiffs without a contractual obligation to do so, it had no viable subrogation claim. Budget responded.\\n{6} The district court held a hearing at which Bridgestone and Budget generally repeated the arguments contained in their pleadings. The district court allowed the parties to file supplemental briefs regarding indemnification and contribution. After considering the arguments of the parties and all of the pleadings filed by the parties, the district court granted Bridgestone's motions. Budget appeals.\\nDISCUSSION\\n{7} Bridgestone presented its motions as motions to dismiss. During the course of the proceedings, however, the district court was presented with a number of exhibits, including the report filed by Budget's expert, reports filed by Bridgestone, affidavits, and letters written by both parties. When \\\"matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.\\\" Rule 1-012(B) NMRA; see Gulf Ins. Co. v. Cottone, 2006-NMCA-150, \\u00b6 7, 140 N.M. 728, 148 P.3d 814 (stating that an appellate court will treat a district court order as a summary judgment order when matters outside the pleadings are considered on a motion to dismiss for failure to state a claim). Summary judgment is warranted if there are no genuine issues of material fact in dispute and the party moving for summary judgment is entitled to judgment as a matter of law. Id. Bridgestone contends that Budget filed a subrogation claim and that the statute of limitations for such a claim prohibits the action at this time. Budget contends that its claim was one for indemnification and that the action remains viable.\\nSubrogation\\n{8} Dairyland Ins. Co. v. Herman, 1998-NMSC-005, \\u00b6 23, 124 N.M. 624, 954 P.2d 56 (internal quotation marks and citation omitted) states:\\nSubrogation . is an equitable remedy of civil law origin whereby through a supposed succession to the legal rights of another, a loss is put ultimately on that one who in equity and good conscience should pay it. It is a remedy for the benefit of one secondarily liable, who has paid the debt of another and to whom in equity and good conscience should be assigned the rights and remedies of the original creditor.\\n{9} We agree that the allegations included in Budget's complaint could be read to fit within the definition of subrogation to the extent that Budget claimed that it paid a debt owed by Bridgestone to Underlying Plaintiffs and to the extent that Bridgestone is the entity that in equity and good conscience should pay the debt. Bridgestone also argues that, in Budget's response to Bridgestone's first motion to dismiss, Budget did not dispute that the claim was a subrogation claim, and, in fact, Budget \\\"characterized its claim as one for subrogation.\\\" Bridgestone refers to a portion of Budget's response in which it argues that the statute of limitations for a subrogation claim would run from the date of the underlying accident, but the statute of limitations for a products liability claim runs from the date when a plaintiff knows, or should know, that he or she has been injured. Contrary to Bridge-stone's contention, Budget did not characterize its claim as one for subrogation, but merely explained the difference between the statute of limitations for a subrogation and a products liability claim. Budget points out that its claim is for products liability due to a defective tire, and therefore, the statute of limitations did not run from the date of the accident as a subrogation claim would.\\n{10} We do agree, however, that because Budget continually denied that it was seeking subrogation and maintained that its claim was one for indemnification, Budget abandoned any claim for subrogation. See Citizens Bank v. C & H Constr. & Paving Co., 89 N.M. 360, 366, 552 P.2d 796, 802 (Ct.App. 1976) (explaining that when a party takes a certain position in a proceeding and maintains that position, the party is not permitted to change to a contrary position). Therefore, to the extent Budget's claim could be considered a claim for subrogation, Budget is no longer able to maintain it under any circumstances.\\nIndemnification\\n{11} The question remains whether Budget's claim can be construed as a claim for indemnification in addition to, or instead of, a subrogation claim. See generally Trujillo v. Berry, 106 N.M. 86, 90, 738 P.2d 1331, 1335 (Ct.App.1987) (holding that the supplier of a defective product manufactured by another was entitled to seek indemnity from a manufacturer based on strict products liability).\\n{12} Traditional indemnification provides an indemnitee, who has been held liable for damages, the right to be made whole by a third party, such as the primary wrongdoer. See In re Consol. Vista Hills Retaining Wall Litig. (Amrep), 119 N.M. 542, 545, 893 P.2d 438, 441 (1995). A right to indemnification is based in equity and may arise without an agreement, by express or implied contract, or by operation of law in order to prevent an unjust result. Id. at 545-46, 893 P.2d at 441-42. Traditional indemnification applies in negligence, breach of warranty, and strict liability cases where the indemnitee is in the chain of supply of a product. Id. at 546, 893 P.2d at 442. Under traditional indemnification, a party who has been held liable for a wrong but whose conduct in causing the harm was \\\"passive\\\" can recover from a party who was \\\"actively\\\" at fault in causing the harm. Id. Active conduct occurs when the indemnitee \\\"personally participated in an affirmative act of negligence, was connected with negligent acts or omis sions by knowledge or acquiescence, or has failed to perform a precise duty, which the indemnitee had agreed to perform.\\\" Id. at 547, 893 P.2d at 443 (internal quotation marks and citation omitted). \\\"Passive conduct occurs when the party seeking indemnification fails to discover and remedy a dangerous situation created by the negligence or wrongdoing of another,\\\" or when a party is only the retailer in the chain of distribution of a defective product. Id. The passive/active principles do not apply in strict liability cases when determining the liability to a victim. Id. at 549, 893 P.2d at 445. However, the passive/active principles do apply in strict liability cases, and as a result, the party seeking indemnification may recover for damages due to a defective product from an active wrongdoer if that party's conduct was passive. Id. As discussed in Amrep, when a defective product is proven to have caused the harm, there remain factual questions such as whether liability is based on the passive negligent failure to discover the defect or the active negligent omission to correct a known defect. Id. at 548^49, 893 P.2d at 444-45. In our case, Budget essentially maintains it was a passive participant in a transaction involving a defective product and is therefore entitled to indemnification from Bridgestone.\\nANALYSIS\\n{13} We now turn to the specific arguments made by the parties. Bridgestone, relying on Restatement (Third) of Torts: Apportionment of Liability \\u00a7 22(a) (2000) (Restatement), claims that in order to state a claim for indemnification, Budget was required to allege in its complaint that both Budget and Bridgestone owed a duty to Underlying Plaintiffs, that Budget discharged Bridgestone's liability in whole or in part by settlement or discharge, and that Bridge-stone is actually or primarily liable for the injuries to Underlying Plaintiffs.\\n{14} The Restatement states:\\n(a) When two or more persons are or may be liable for the same harm and one of them discharges the liability of another in whole or in part by settlement or discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the plaintiff, plus reasonable legal expenses, if:\\n(1) the indemnitor has agreed by contract to indemnify the indemnitee, or\\n(2) the indemnitee\\n(i) was not liable except vicariously for the tort of the indemnitor, or\\n(ii) was not liable except as a seller of a product supplied to the indemnitee by the indemnitor and the indemnitee was not independently culpable.\\nIn other words, under the Restatement, the right to seek indemnification arises when one party discharges the liability of another party \\\"in whole or in part\\\" by settlement or discharge of judgment. See generally N.M. Pub. Sch. Ins. Auth. v. Gallagher & Co., 2008-NMSC-067, \\u00b6 22-26, 145 N.M. 316, 198 P.3d 342 (2008) (discussing general principles concerning indemnity).\\n{15} First, Bridgestone claims that the wording in Budget's complaint was not sufficient to bring a cause of action for indemnification because Budget did not include all of the elements of indemnification. In addition to the Restatement, Bridgestone cites to various cases in support of its argument that in order to bring a claim for indemnification, Budget was required to allege in its complaint all of the elements of indemnification, including the \\\"element\\\" that Bridgestone's liability was discharged, in whole or in part, by settlement or discharge of judgment. We do not read the authorities cited by Bridgestone as requiring that the complaint contain such a specific allegation. For example, Bridgestone relies on Rio Grande Gas Co. v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969), in which our Supreme Court held that one joint tortfeasor could not recover from a second joint tortfeasor based on contribution or indemnity where the law does not allow contribution among joint tortfeasors and that indemnification is not available when one joint tortfeasor is in pari delicto with the other. Id. at 434, 437, 457 P.2d at 366, 369. We find no discussion in Rio Grande Gas Co. that would support Bridgestone's claim that Budget was required to allege in its complaint that Bridgestone's liability was discharged.\\n{16} Furthermore, as discussed above, the motions to dismiss were converted to motions for summary judgment. Therefore, arguments concerning the sufficiency of the complaint are not dispositive when deciding whether the district court's decision was correct. Instead, we must decide whether, based on all of the evidence that was presented to the district court, there remain genuine issues of material fact to be decided. In cases involving summary judgment, we view all pleadings and other matters that were presented to and considered by the district court in the light most favorable to allow a trial on the merits, and we construe all reasonable inferences in favor of the party against whom summary judgment was entered. See Upton v. Clovis Mun. Sch. Dist, 2006-NMSC-040, \\u00b6 7, 140 N.M. 205, 141 P.3d 1259.\\n{17} As we have stated, Bridgestone bases its argument on Section 22 of the Restatement, claiming that Budget did not satisfy the relevant requirements: that Budget discharged the liability of Bridgestone in whole or in part by settlement or discharge of judgment, and Bridgestone has agreed by contract to indemnify Budget; or that Budget was not liable except vicariously for Bridgestone's tort; or that Budget was not liable except as a seller of a product supplied to Bridgestone. Budget presented evidence that it was a supplier of a product manufactured by Bridgestone. Even if we were to adopt Section 22 of the Restatement as New Mexico law, we do not agree with Bridge-stone. See Yelin v. Carvel Corp., 119 N.M. 554, 556, 893 P.2d 450, 452 (1995) (noting that indemnification principles apply to strict liability cases involving parties in the chain of supply of a product). In addition, Budget presented evidence that the tire, manufactured by Bridgestone, was defective and was the cause of the accident in which Underlying Plaintiffs suffered injuries. The evidence presented to the district court was therefore clearly sufficient to raise a genuine issue of fact as to whether Budget qualified for indemnification under the Restatement's third example as a supplier of a defective product manufactured by another.\\n{18} As to Bridgestone's argument that Budget did not discharge Bridgestone's potential liability to Underlying Plaintiffs, we are not persuaded. Bridgestone argues that another requirement of the Restatement\\u2014 that Budget discharged Bridgestone's potential liability to Underlying Plaintiffs \\u2014 was not satisfied. Bridgestone claims that the release obtained by Budget did not extinguish Bridgestone's potential liability, and therefore, Underlying Plaintiffs could possibly seek to recover additional damages from Bridgestone. Comment b to Section 22 explains that a party seeking indemnification may extinguish the liability of the third party \\\"by a settlement with the plaintiff that by its terms or by application of law discharges the indemnitor from liability.\\\" Restatement, supra, \\u00a7 22, at 272 (emphasis added). In this vein, the Oregon Court of Appeals has declared that discharge \\\"must operate to protect [a] defendant against a claim by [the original plaintiff]\\\" on the same issue that was litigated between the original plaintiff and the party seeking indemnification. Moore Excavating, Inc. v. Consol. Supply Co., 186 Or.App. 324, 63 P.3d 592, 595 (2003) (internal quotation marks and citation omitted). In Moore, the original plaintiff sued the party seeking indemnification for negligence. Id. at 593-94. The Oregon court concluded that the party seeking indemnification did not provide evidence that it \\\"bought peace for defendant in a way that is legally binding on the third party.\\\" Id. at 595-96 (internal quotation marks and citation omitted).\\n{19} It thus appears that the question before us is not whether the release itself achieves discharge because it was possible for Budget to discharge Bridgestone's debt even without a release if Budget's settlement made it legally impossible for Underlying Plaintiffs to bring suit against Bridge-stone on the same issues that Budget settled. The question is also not whether there is evidence to suggest that Underlying Plaintiffs have no interest in pursuing suit against Bridgestone. See id. at 595. The question is, as a matter of law, can Underlying Plaintiffs maintain a suit against Bridgestone for products liability after settling with Budget? In a defective-product case in New Mexico, the supplier of the product is liable for one hundred percent of the plaintiffs injuries, even if the supplier was without fault. See Aalco Mfg. Co. v. City of Espa\\u00f1ola, 95 N.M. 66, 67, 618 P.2d 1230, 1231 (1980). The supplier is then entitled to proceed against the manufacturer to obtain indemnification. See id. Underlying Plaintiffs settled with Budget on the issue of product liability, and Budget paid one hundred percent of the liability for the allegedly defective product. Id. As a result, there is no more recovery available to Underlying Plaintiffs from Bridge-stone as related to product liability. Therefore, if Budget can establish that the tires were in fact defective, it sufficiently discharged Bridgestone's debt to Underlying Plaintiffs for products liability as a matter of law, and Budget is entitled to indemnification.\\n{20} To summarize, it is proper to consider Budget's claim as one for indemnification. Because there remain issues of fact as to whether Budget met the legal requirements for an indemnification claim, summary judgment was improper.\\nStatute of Limitations\\n{21} The parties dispute what specific statute of limitations is applicable to Budget's claims. Budget brought a claim for indemnification. The statute of limitations for Budget's indemnification claim began to run from the date that Budget paid the settlement to Underlying Plaintiffs. See, e.g., Maurice T. Brunner, Annotation, When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 A.L.R.3d 867, \\u00a7 4[a], at 881-86 (1974) (citing numerous cases from many jurisdictions for the proposition that a claim of indemnity accrues at the time of payment of the underlying claim, payment of a judgment, or payment of a settlement by the party seeking indemnity); Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990) (affirming that an indemnity action runs from the payment of an underlying claim, payment of judgment, or settlement, and not from the time that the underlying damage occurs). Budget paid the settlement on March 30, 2006, and filed its complaint on August 23, 2006, less than five months after the settlement was paid. We hold that Budget brought its claims well within any statute of limitations provided by New Mexico law. See, e.g., NMSA 1978, \\u00a7 37-1-1 to -30 (1880, as amended through 1995).\\nCONCLUSION\\n{22} Budget properly pled a cause of action against Bridgestone for indemnification. As discussed, there remain genuine issues of material fact to resolve with respect to Budget's claim for indemnification. We therefore reverse the district court's grant of summary judgment to Bridgestone and remand for reinstatement of Budget's complaint and for further proceedings consistent with this opinion.\\n{23} IT IS SO ORDERED.\\nWE CONCUR: JAMES J. WECHSLER and CELIA FOY CASTILLO, Judges.\"}"
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+"{\"id\": \"4243133\", \"name\": \"Stella R. KIRBY, Plaintiff-Appellee, v. LONG-TERM DISABILITY PLAN OF TAD RESOURCES INTERNATIONAL, INC., and Guardian Life Insurance Company of America, Defendants-Appellants\", \"name_abbreviation\": \"Kirby v. Long-Term Disability Plan of TAD Resources International, Inc.\", \"decision_date\": \"2008-08-20\", \"docket_number\": \"No. 27,624\", \"first_page\": \"264\", \"last_page\": 269, \"citations\": \"145 N.M. 264\", \"volume\": \"145\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:46:42.440036+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: LYNN PICKARD and MICHAEL E. VIGIL, Judges.\", \"parties\": \"Stella R. KIRBY, Plaintiff-Appellee, v. LONG-TERM DISABILITY PLAN OF TAD RESOURCES INTERNATIONAL, INC., and Guardian Life Insurance Company of America, Defendants-Appellants.\", \"head_matter\": \"2008-NMCA-154\\n196 P.3d 965\\nStella R. KIRBY, Plaintiff-Appellee, v. LONG-TERM DISABILITY PLAN OF TAD RESOURCES INTERNATIONAL, INC., and Guardian Life Insurance Company of America, Defendants-Appellants.\\nNo. 27,624.\\nCourt of Appeals of New Mexico.\\nAug. 20, 2008.\\nCertiorari Granted, No. 31,329, Nov. 5, 2008.\\nMettler & Lecuyer, P.C., Earl Mettler, Albuquerque, NM, for Appellee.\\nModrall, Sperling, Roehl, Harris & Sisk, P.A., Donald A. DeCandia, Albuquerque, NM, for Appellant Guardian Life Insurance.\", \"word_count\": \"3450\", \"char_count\": \"21531\", \"text\": \"OPINION\\nWECHSLER, Judge.\\n{1} The opinion filed in this case on June 23, 2008 is hereby withdrawn and the following substituted therefor. The motion for rehearing of Plaintiff Stella Kirby is denied.\\n{2} Defendant Guardian Life Insurance Company of America appeals the district court order granting summary judgment in favor of Plaintiff. The district court order allows Plaintiff to garnish the insurance policy sold by Defendant to the Long-Term Disability Plan of TAD Resources International, Inc. (the Plan) in order to satisfy the Plan's default judgment debt owed to Plaintiff. On appeal, Defendant argues that (1) garnishment was an inappropriate remedy; (2) its due process rights were violated as a result of the summary judgment order; (3) various provisions of the Employment Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. \\u00a7 1001 to 1461 (2000), should have precluded the granting of Plaintiffs motion for summary judgment; and (4) Plaintiff was absolutely barred by the doctrine of res judicata from seeking recovery from Defendant. We conclude that Defendant is neither indebted to the Plan nor does it hold any property of the Plan subject to garnishment; therefore, the district court erred in granting Plaintiffs motion for summary judgment on its garnishment claim. We reverse.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n{3} Between April 15, 1996 and May 14, 1997, Plaintiff was receiving long-term disability benefits from Defendant under a group insurance policy purchased by her employer, TAD Resources International, Inc. (Employer). Pursuant to ERISA, Employer had set up the Plan and purchased the insurance policy from Defendant, which served as the Plan's third-party administrator. See 29 U.S.C. \\u00a7 1101-1102. After May 14, 1997, Defendant stopped paying Plaintiff benefits under the policy. As a result, Plaintiff filed suit against Defendant and Employer in 1999 in state district court seeking relief from Defendant's decision to terminate her benefits. In her initial complaint, Plaintiff pleaded only state law claims; she did not include the appropriate federal statutory claims under ERISA. In reaction, Defendant filed a motion to dismiss the complaint based on ERISA preemption. See 29 U.S.C. \\u00a7 1144(a) (stating that ERISA \\\"shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described\\\" in Section 1003(b)); see also Alliance Health of Santa Teresa, Inc. v. Nat'l Presto Indus., Inc., 2005-NMCA-053, \\u00b6 32, 137 N.M. 537, 113 P.3d 360 (explaining that ERISA expressly preempts state law claims that sufficiently relate to ERISA plans). The district court granted the motion and allowed Plaintiff fifteen days to amend her complaint. Plaintiff then filed an amended complaint, which named Employer as a defendant, but failed to name either Defendant or the Plan. Subsequently, Plaintiff filed another amended complaint, which again included claims against Defendant along with claims against Employer and the Plan. Defendant responded by arguing that Plaintiff was, as a result of failing to include it in the amended complaint following the initial dismissal of the case, barred by the doctrine of res judicata from suing it for benefits. The district court ultimately agreed and dismissed Plaintiffs claims against Defendant with prejudice. Following the dismissal of Plaintiffs claims against Defendant, the district court also (1) granted summary judgment in favor of Employer, releasing it from liability to Plaintiff for benefits because Defendant \\\"had sole discretion to determine and pay benefits under\\\" the ERISA plan and (2) denied Plaintiffs motion for summary judgment against the Plan, reasoning that summary judgment was improper when Plaintiff was already \\\"precluded from recovering against the party that fund[ed] the Plan.\\\"\\n{4} Eventually, the case was presented to this Court on appeal. The issue that Plaintiff raised was whether she was permitted to seek judgment against the Plan \\\"as an entity\\\" even though Defendant (the \\\"disability insurer in control of administration of the plan\\\") had been dismissed on res judicata grounds. Kirby v. TAD Res. Int'l, Inc., 2004-NMCA-095, \\u00b6 1, 136 N.M. 148, 95 P.3d 1063. We concluded that Defendant and the Plan were not \\\"identical or inseparable in regard to Plaintiffs benefits claim under [ERISA].\\\" Id. \\u00b638. Accordingly, we also concluded \\\"that Plaintiffs benefits claim against the Plan [was] not barred under res judicata or collateral estoppel,\\\" but we declined to render an opinion regarding \\\"whether Plaintiff, were she to obtain a judgment against the Plan, [could] succeed in some action or proceeding to enforce the judgment.\\\" Id. Finally, we held that the district court was correct in ruling that Employer was an improper party to the lawsuit since it was merely a \\\"sponsor and plan administrator with no control over the administration of the Plan and no authority or discretion in regard to acting on a benefits claim.\\\" Id. \\u00b6 45.\\n{5} On remand following that appeal, Plaintiff filed a motion in state district court seeking benefits directly from the Plan under ERISA. At a subsequent hearing on Plaintiffs motion, no one entered an appearance on behalf of the Plan. As a result, the district court entered a default judgment against the Plan, concluding that (1) Plaintiff was totally disabled, (2) Plaintiffs circumstances met the definition of \\\"disability\\\" under the Plan's insurance policy, (3) Defendant's denial of benefits to Plaintiff was \\\"arbitrary and capricious and without support in the record,\\\" and (4) Plaintiff was therefore entitled to future monthly benefits as well as benefits retroactive to the date that Defendant terminated payments in 1997. Shortly thereafter, Plaintiffs counsel contacted the Plan and requested satisfaction of the judgment. The Plan responded by asserting that it was Defendant's obligation to pay benefits under the policy; therefore, it refused to pay Plaintiff anything. Defendant also refused to pay Plaintiff, reasoning that the default judgment was entered exclusively against the Plan and that Plaintiffs claims against it had previously been dismissed with prejudice.\\n{6} Plaintiff proceeded to file suit in federal district court under ERISA's judgment enforcement provision, see 29 U.S.C. \\u00a7 1132(a)(1)(B), in an attempt to compel Defendant to satisfy the Plan's state district court judgment debt. After that court granted Defendant's motion to dismiss, Plaintiff returned to state district court in order to file pleadings requesting, among other things, that she be allowed to collect on the Plan's judgment debt from Defendant by way of garnishment. Subsequently, Defendant moved to dismiss all of Plaintiffs claims, and Plaintiff filed a motion for summary judgment on her garnishment claim. After a hearing, the district court granted Plaintiffs motion for summary judgment. In doing so, the district court found that \\\"the insurance policy sold by Defendant . is an asset of the . Plan\\\" and that \\\"[t]he policy imposes an obligation on [Defendant] to pay the benefits awarded to Plaintiff.\\\" Accordingly, the district court concluded that Plaintiff was permitted to recover on the Plan's judgment debt directly from Defendant by garnishing the group insurance policy that was sold by Defendant to Employer. Defendant presently appeals from that order.\\nGARNISHMENT OF THE INSURANCE POLICY\\n{7} In this appeal, we must determine whether Plaintiffs motion for summary judgment on her garnishment claim was properly granted. The parties do not frame their arguments so as to allege or deny the existence of a genuine issue of material fact; rather, the question presented focuses on the propriety of the district court's application of our garnishment law to allow Plaintiff to garnish the group insurance policy at issue as an \\\"asset\\\" of the Plan. We therefore focus exclusively on the second prong of the summary judgment standard \\u2014 whether Plaintiff is \\\"entitled to a judgment as a matter of law.\\\" See Rule 1-056(0 NMRA. We afford such a question de novo review. See Bd. of Educ. v. Thunder Mountain Water Co., 2007-NMSC-031, \\u00b6 6,141 N.M. 824, 161 P.3d 869 (\\\"Because the material facts are undisputed, we review the district court's grant of summary judgment de novo.\\\").\\n{8} Plaintiff argues in her answer brief that \\\"[i]t is well-recognized that garnishment of insurance coverage is a remedy that lies to collect a judgment against an insured defendant\\\" if \\\"(1) there is a non-voidable underlying judgment in favor of the judgment creditor and (2) the garnishee insurance carrier's policy of insurance covered the obligation that is the subject of the judgment.\\\" Her argument follows that because there is an enforceable judgment against the Plan and the insurance policy purchased from Defendant \\\"covers the obligation sued upon,\\\" the insurance policy is subject to garnishment in the amount of the future and retroactive benefits awarded against the Plan in the default judgment. However, none of the cases that Plaintiff cites in support of her argument considered situations in which the garnishor was a beneficiary under a long-term disability policy; rather, they all considered situations in which the garnishor was a third-party beneficiary seeking to recover under the judgment debtor's liability insurance policy following vehicular accidents. See, e.g., Howard v. Quality Xpress, Inc., 1999-NMCA-121, \\u00b6 1-2, 128 N.M. 79, 989 P.2d 896 (considering a judgment creditor's attempted garnishment of a judgment debt- or's liability insurance policy following a truck accident). We note that liability insurance policies and long-term disability insurance policies are fundamentally different and that only the latter is at issue in this case. See Cipala v. Lincoln Technical Inst, 179 N.J. 45, 843 A.2d 1069, 1075 (2004) (concluding that a long-term disability policy cannot be considered either a liability or an indemnity policy for the purpose of awarding attorney fees). Applying the facts of this case to our garnishment law, we disagree with Plaintiffs legal conclusion that she may garnish the long-term disability insurance policy that Employer purchased from Defendant on her behalf.\\n{9} Garnishment proceedings are governed by state statutory law. See NMSA 1978, \\u00a7 35-12-1 to -19 (1968, as amended through 1979); see also Jemko, Inc. v. Liaghat, 106 N.M. 50, 52, 738 P.2d 922, 924 (Ct.App.1987). Section 35-12-19 gives district courts the authority to issue writs of garnishment, but a district court may not issue such a writ unless it has been shown that the garnishee is either \\\"indebted to the defendant,\\\" see \\u00a7 35-12-1 (D)(1), or \\\"holds personal property belonging to the defendant.\\\" See \\u00a7 35 \\u2014 12\\u20141 (D)(2). Based on this standard, our question becomes whether (1) Defendant is indebted to the Plan under the group insurance policy or (2) the group insurance policy may be considered garnishable, personal property of the Plan.\\n{10} With respect to garnishment based on the garnishee's indebtedness to the judgment debtor, this Court has explained that \\\"[t]he purpose of the garnishment proceeding is to subrogate the plaintiff to [the] defendant's rights against the garnishee.\\\" Jemko, Inc., 106 N.M. at 54, 738 P.2d at 926. \\\"The test as to whether funds in the hands of another are subject to garnishment is whether the defendant in the original action [i.e., the Plan] could recover such funds directly against the garnishee [i.e., Defendant].\\\" Id. at 55, 738 P.2d at 927. In this case, the question is therefore whether the Plan has any right to recovery directly from Defendant under the insurance policy. Plaintiff affirmatively admits in her answer brief, as Defendant argues in its brief in chief, that such recovery is not possible by stating that \\\"the insurance policy requires [Defendant] to pay benefits directly to Plan beneficiaries.\\\" (Emphasis added.) Accordingly, regardless of whether Plaintiff is considered an insured under the policy, any conceivable debt for benefits owed to Plaintiff would necessarily have to flow directly from Defendant to Plaintiff. There is no possible situation under the insurance policy in which any debt could flow from Defendant to the Plan. As such, Defendant cannot be considered to be indebted to the Plan, and there is therefore no monetary obligation or other right that Plaintiff would be able to garnish.\\n{11} To the extent that Plaintiff argues in her motion for rehearing that she has a right to garnish the Plan's chose in action or a contract right under Section 35-12-3 to enforce Defendant's obligation to pay under the insurance policy, we are not persuaded. In making her argument, Plaintiff relies on Section 1132(a)(3) of ERISA for the proposition that the Plan \\\"may sue its insurer to enforce obligations under an insured plan.\\\" However, the applicable federal case law dictates that an ERISA plan does not have standing to sue under Section 1132(a)(3) because it cannot be considered a plan participant, beneficiary, or fiduciary, as the statutory language requires. Local 159, 342, 343 & 444 v. Nor-Cal Plumbing, Inc., 185 F.3d 978, 983 (9th Cir.1999). Even if we were to conclude that the Plan does, in fact, have standing to sue Defendant, Section 1132(a)(3) requires any civil action brought under its authority to be exclusively for equitable (i.e., not legal) relief. See BlueCross BlueShield of S.C. v. Carillo, 372 F.Supp.2d 628, 638 (N.D.Ga.2005) (concluding that a party's claim seeking \\\"to enforce a provision of a plan document that would require\\\" the payment of money cannot be considered \\\"equitable in nature\\\" so as to be permissible under Section 1132(a)(3)). Accordingly, and because (1) Plaintiff does not argue that any chose in action exists outside the ERISA context and (2) we are unable to identify any other contract right subject to garnishment in the record proper, we conclude that there is no garnishable chose in action in this case.\\n{12} With respect to garnishment based on the garnishee's possession of personal property belonging to the judgment debtor, Defendant contends that it does not hold property of the Plan that may be garnished. The district court concluded, based on Section 1101(b)(2) of ERISA, that the insurance policy purchased by Employer from Defendant is a garnishable \\\"asset\\\" of the Plan. Section 1101(b)(2) directs that ERISA guaranteed benefit policies that are issued by insurers must be considered \\\"assets\\\" of ERISA plans. With this foundational idea, Plaintiff argues that the \\\"obligations contained in the policy are the property of the Plan, and that property is subject to garnishment.\\\" Plaintiffs argument follows that \\\"[t]he obligations that inure in such assets are then enforceable in favor of the judgment creditor\\\" and \\\"the right that inures in the insurance policy is the right to the disability payments provided for therein.\\\"\\n{13} We understand Plaintiff to argue that, by virtue of holding the insurance policy as an \\\"asset\\\" of the Plan, Defendant may be ordered to pay benefits to Plaintiff under the policy as a garnishee in order to satisfy the Plan's default judgment debt. In support of her position, Plaintiff cites federal appellate cases for the proposition that the insurance policy constitutes \\\"an obligation enforceable by the Plan\\\" that is somehow garnishable against Defendant. But see 6 Am. Jur.2d Attachment and Garnishment \\u00a7 164 (1999) (\\\"[T]he liability of an insurance company to its insured can neither be created nor enlarged by the institution of garnishment proceedings.\\\"). The cases that Plaintiff cites, however, do not address the issue of garnishment; rather, they focus on the respective fiduciary duties of the various actors within the ERISA scheme. See, e.g., IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1419 (9th Cir.1997) (concluding that summary judgment in favor of the insurance company administrator of an ERISA plan was improper when an ERISA plan and an employee sued for a breach of fiduciary duty because the record was insufficient to establish that the insurance company was not a fiduciary as defined by ERISA); Mack Boring & Parts v. Meeker Sharkey Moffitt, Actuarial Consultants of N.J., 930 F.2d 267, 277 (3d Cir.1991) (concluding that an insurance company was not acting as a fiduciary of an ERISA plan based on the nature of the contract at issue). In this case, any ERISA claim that Plaintiff may have originally brought directly against Defendant is now barred by the doctrine of res judicata. See Hope Cmty. Ditch Ass'n v. N.M. State Eng'r, 2005-NMCA-002, \\u00b610, 136 N.M. 761, 105 P.3d 314 ('We have ruled that a dismissal with prejudice is an adjudication on the merits for purposes of res judicata.\\\"). Therefore, to the extent that Plaintiff claims entitlement to garnish the insurance policy based on the fiduciary duties owed and the intricacies of the relationships between the parties under ERISA, she is precluded from doing so. Our focus must remain on the relationships and duties of the parties in the context of our garnishment law, not ERISA law.\\n{14} We agree with Defendant that the remedy that Plaintiff seeks is not within the scope of our garnishment law. Even if the insurance policy is considered to be the property of the Plan for the purposes of Section 35-12~3(A), it does not necessarily follow that any potential, unrealized proceeds under the insurance policy in the form of benefits to Plaintiff are also the property of the Plan and therefore subject to garnishment. Cf. Barela v. Barela, 95 N.M. 207, 209, 619 P.2d 1251, 1253 (Ct.App.1980) (differentiating between the ownership of an insurance policy and the ownership of the proceeds of the policy in the context of a community property dispute). Ultimately, we do not understand, and Plaintiff does not explain in her answer brief, how a transfer to her of the insurance policy held by Defendant could help to satisfy the Plan's judgment debt.\\n{15} Essentially, Plaintiff is asking this Court to allow her to collect on the Plan's judgment debt directly from Defendant without any court order adjudicating Defendant, as a named defendant, liable to her under the insurance policy. The garnishment of an insurance policy is not intended to work in that manner. On the contrary, garnishment \\\"come[s] into play in insurance when a creditor of the insured or a beneficiary, or an injured third party attempts to . garnish some interest of the insured or bene f\\u00edciary: the right to receive policy proceeds, the right to sue the insurer, and the like.\\\" 16 Lee R. Russ & Thomas F. Segalla, Couch on Insurance \\u00a7 232:198, at 232-169 (3d ed.2000); accord \\u00a7 35-12-3(A) (stating that \\\"rights\\\" are subject to garnishment). In other words, when an insured or beneficiary has secured some right against an insurer, a third party to whom the insured or beneficiary owes a judgment debt may garnish the right of the insured or beneficiary against the insurer in order to satisfy the debt. See 16 Russ & Segalla, supra, \\u00a7 232:198, at 232-169. The only right that Plaintiff has secured in this case is the right to recover directly from the Plan for the Plan's default judgment debt. As discussed above, Defendant owes no debt to the Plan because the Plan is not the beneficiary of the insurance policy. There is therefore no right flowing from Defendant to the Plan for Plaintiff to garnish. Ultimately, Plaintiff is not entitled to recovery by garnishing the insurance policy in this case because she is essentially attempting to garnish her own alleged right to recover benefits from Defendant under the insurance policy. Our garnishment law does not contemplate such an action. See \\u00a7 35-12-3.\\n{16} In making our decision, we note that Plaintiff may have had a right to recover directly from Defendant if she had properly sued Defendant pursuant to ERISA in the original action and Defendant had not been dismissed with prejudice. However, Plaintiff lost the possibility of direct recovery from Defendant when she decided not to appeal the district court's dismissal of her claims against it in the underlying action. See Kirby, 2004-NMCA-095, \\u00b6 12, 136 N.M. 148, 95 P.3d 1063 (\\\"Plaintiff does not appeal from or otherwise attack on appeal the dismissal of her ERISA claim against [Defendant].\\\"). Under the facts of this case, garnishment of the insurance policy held by Defendant on behalf of the Plan is an inappropriate means to achieve recovery for the default judgment debt that the Plan owes Plaintiff.\\nCONCLUSION\\n{17} We conclude that Plaintiff may not satisfy the Plan's judgment debt by garnishing the insurance policy sold by Defendant to Employer. Accordingly, we reverse the district court's order granting summary judgment in favor of Plaintiff and remand to that court for any further proceedings that may be necessary. As a result of our conclusion, we need not address the remaining arguments that Defendant makes in this appeal.\\n{18} IT IS SO ORDERED.\\nWE CONCUR: LYNN PICKARD and MICHAEL E. VIGIL, Judges.\"}"
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+"{\"id\": \"4243540\", \"name\": \"Richard D. DURAN, Petitioner, v. Hon. George P. EICHWALD, District Court Judge, Thirteenth Judicial District Court, Respondent, and Boglarka Foghi, Assistant District Attorney, and Lemuel Martinez, Thirteenth Judicial District Attorney, Real Parties in Interest\", \"name_abbreviation\": \"Duran v. Eichwald\", \"decision_date\": \"2009-06-17\", \"docket_number\": \"No. 31,372\", \"first_page\": \"341\", \"last_page\": 346, \"citations\": \"146 N.M. 341\", \"volume\": \"146\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:41:15.239651+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richard D. DURAN, Petitioner, v. Hon. George P. EICHWALD, District Court Judge, Thirteenth Judicial District Court, Respondent, and Boglarka Foghi, Assistant District Attorney, and Lemuel Martinez, Thirteenth Judicial District Attorney, Real Parties in Interest.\", \"head_matter\": \"2009-NMSC-030\\n210 P.3d 238\\nRichard D. DURAN, Petitioner, v. Hon. George P. EICHWALD, District Court Judge, Thirteenth Judicial District Court, Respondent, and Boglarka Foghi, Assistant District Attorney, and Lemuel Martinez, Thirteenth Judicial District Attorney, Real Parties in Interest.\\nNo. 31,372.\\nSupreme Court of New Mexico.\\nJune 17, 2009.\\nDaniel J. Tall\\u00f3n, Albuquerque, NM, for Petitioner.\\nBoglarka Foghi, Assistant District Attorney, Bernalillo, NM, Lemuel Lawrence Martinez, District Attorney, Grants, NM, for Real Parties in Interest.\", \"word_count\": \"2657\", \"char_count\": \"16315\", \"text\": \"OPINION\\nPER CURIAM.\\n{1} We are faced in this case with the difficult task of dismissing a criminal prosecution without a trial on the merits because of the prosecution's failure to bring this matter to trial in a timely manner. The charges of child abuse alleged in this case are, of course, serious ones, which we do not dismiss lightly. But for the reasons set forth below, we conclude that dismissal is the only option available to us under the circumstances of this ease. We nevertheless take this opportunity to express our dissatisfaction with the procedural dilemma posed by this case and take steps to provide our courts with greater discretion to address situations like this one in the future.\\nBACKGROUND\\n{2} The problem we must address in this extraordinary writ proceeding has its origins in a prior proceeding before this Court filed under Rule 5-604 NMRA of our Rules of Criminal Procedure for the District Courts. Rule 5-604(B), commonly referred to as the six-month rule, requires the commencement of trial in a criminal proceeding within six months of the latest of several different triggering events. If it becomes apparent that trial cannot commence within the six-month time period, the district court, for good cause shown, may extend the time for commencing trial up to an aggregate of six additional months. See Rule 5-604(C). Any additional extensions of time must be sought from this Court. See Rule 5-604(D).\\n{3} In the underlying criminal proceeding, the defendant (Petitioner, in this case), Richard D. Duran, was indicted for two counts of negligent child abuse resulting in great bodily harm, contrary to NMSA1978, Section 30-6-l(D) (2005, as amended). Petitioner was arraigned on August 27, 2007, which therefore required the commencement of trial no later than February 27, 2008. See Rule 5-604(B)(1). Thereafter, the State petitioned and the district court granted a six-month extension of time, which extended the commencement of trial until August 27, 2008. On September 24, 2008, twenty-eight days after expiration of the trial deadline, the State filed a petition with this Court asking for an additional six-month extension of time until February 27, 2009. In its petition, the State represented that Mr. Duran objected to the petition for an extension of time and that the district court had set a definite trial setting for October 7, 2008. Mr. Duran did not file a response to the State's petition, and after the time for doing so had expired, this Court partially granted the State's request for an extension of time until November 28, 2008.\\n{4} On October 14, 2008, Mr. Duran filed with this Court a petition for a writ of prohibition or superintending control. Mr. Duran's petition asked this Court to reconsider its order granting the State an extension of time to commence trial and to enter an order prohibiting the district court from setting the underlying criminal proceeding for trial until this Court could rule on his petition. Mr. Duran represented that the State (1) never served him with a copy of the petition for extension of time filed in this Court, (2) never inquired whether he opposed the request for an extension of time, (3) failed to obtain a definite trial setting from the district court as required by Rule 5-604(E), and (4) failed to disclose in its petition to this Court that Mr. Duran had already filed a motion to dismiss in the district court for violation of the six-month rule. After receiving the State's response and Mr. Duran's subsequent reply, we set the matter for hearing.\\n{5} At the conclusion of the hearing, we announced our decision ordering the district court to dismiss the charges against Mr. Duran because the State failed to file a timely petition for extension of time and failed to establish any exceptional circumstances to excuse the delay. We also expressed our reluctance to dismiss the charges because of the public's interest in seeing the charges resolved on their merits. But because there was no alternative to dismissal under Rule 5-604, we also announced from the bench our decision to immediately suspend the operation of Paragraph F of the rule until further order of the Court, so that dismissal would not be automatically required in future cases like this one.\\nDISCUSSION\\n{6} As noted above, the State failed to request an extension of time to commence trial from this Court until twenty-eight days after the expiration of the prior extension of time granted by the district court. Rule 5-604(E) provides that a petition for extension of time to commence trial \\\"may be filed within ten (10) days after the expiration of the applicable time limit if it is based on exceptional circumstances beyond the control of the parties or trial court which justify the failure to file the petition within the applicable time limit.\\\" Because the State's untimely petition did not fall within the ten-day grace period in Paragraph E of the rule, the State forfeited its right to seek an extension of time from this Court. Moreover, for the reasons set forth below, even if the State's petition had been filed within the ten-day grace period, the State failed to establish exceptional circumstances to justify its untimely request for an additional extension of time.\\n{7} Although the State filed its petition for extension of time with this Court twenty-eight days late, the petition failed to acknowledge the untimeliness nor did it recognize the need to establish exceptional circumstances justifying the untimely filing. During the hearing before this Court, the State conceded that the petition did not detail the exceptional circumstances justifying the delay in filing. In a belated attempt to provide that justification, the State sought to rely on the existence of ongoing plea negotiations and defense counsel's purported agreement several months earlier to concur in a request for an additional extension of time. We assume, without deciding, that plea negotiations were ongoing and that at one point defense counsel may have been willing to concur in an extension of time in furtherance of those plea negotiations. Nevertheless, neither circumstance explains nor justifies why it was beyond the State's control to at least request an extension of time from this Court in a timely manner. See State v. Sandoval, 2003-NMSC-027, \\u00b63, 134 N.M. 453, 78 P.3d 907 (recognizing that a timely petition is required under Rule 5-604 \\\"[a]b-sent exceptional circumstances beyond the control of the State or the trial court\\\"); cf. State v. Dominguez, 2007-NMCA-132, \\u00b6 11, 142 N.M. 631, 168 P.3d 761 (noting that the prosecutor's inability to reach defense counsel to obtain and state the defendant's position with respect to a petition for extension of time, did not prevent the prosecutor from timely filing the petition).\\n{8} We also reject the State's attempt to equate inadvertence with an exceptional circumstance, justifying the filing of the untimely petition. To do otherwise would allow prosecutorial neglect to swallow the requirement in the rule that exceptional circumstances beyond the control of the parties or court must be present if an untimely petition for extension of time is to be considered. By definition, neglect or inadvertence simply are not matters beyond the control of the prosecution. See Dominguez, 2007-NMCA-132, \\u00b6 11 (rejecting prosecutorial inadvertence due to a heavy caseload as an exceptional circumstance justifying the late filing of a petition for extension of time).\\n{9} Given the State's complete failure to establish exceptional circumstances justifying its untimely petition, and given that the petition was nonetheless filed beyond the ten-day grace period in Rule 5-604(E), dismissal of the charges with prejudice is mandatory. See Rule 5-604(F) (providing that when the trial of a person is not commenced within the time limits prescribed by the rule \\\"the information or indictment filed against such person shall be dismissed with prejudice\\\" (emphasis added)); see also State v. Carreon, 2006-NMCA-145, \\u00b6 6,140 N.M. 779,149 P.3d 95 (noting the mandatory nature of the word \\\"shall\\\"). While dismissal is unavoidable in this ease, we are troubled by an outcome that precludes a trial on the merits because of a procedural rule violation for which there has not been a clear showing of prejudice to the accused. We do not mean to suggest that unnecessary delay is of no consequence to the accused. The mere fact that unresolved charges remain hanging over the accused can cause a great deal of anxiety and financial burden. Cf. Salandre v. State, 111 N.M. 422, 425, 806 P.2d 562, 565 (1991) (recognizing within the speedy trial context the prejudice that the accused can suffer from a delay in trial even if the defense itself is not impaired by the delay).\\n{10} The six-month rule is the mechanism by which we \\\"assure prompt disposition of criminal cases.\\\" State v. Cardenas, 2003-NMCA-051, \\u00b6 12, 133 N.M. 516, 64 P.3d 543 (internal quotation marks and citation omitted). Accordingly, application of the six-month rule should account for the delay inherent in bringing cases to trial, but because the six-month rule gives district courts the authority to grant extensions up to twelve months, it is generally up to the district courts to keep cases moving toward trial with reasonable promptness. Therefore, we urge the district courts to rely on this rule to manage inordinate delay in prosecutions and grant extensions cautiously.\\n{11} That said, most procedural rule violations will not automatically result in a new trial or the outright dismissal of charges, unless the accused can demonstrate actual prejudice to the defense. See generally State v. Padilla, 2000-NMCA-090, \\u00b6 19, 129 N.M. 625, 11 P.3d 589 (noting that ordinarily a \\\"harmless error analysis is applied where the procedural requirement determined to have been violated is thought to contribute to the reliability of the truth-finding process\\\"). No showing of that kind of prejudice was established in this case, though of course, no such showing is required for a six-month rule violation. See State v. Cardenas, 2003-NMCA-051, \\u00b6 12, 133 N.M. 516, 64 P.3d 543; see also Padilla, 2000-NMCA-090, \\u00b6 20 (noting also that a harmless-error analysis may be \\\"inappropriate where the procedural right determined to have been violated serves 'an independent value besides reliability of the outcome' \\\" (quoting United States v. Lane, 474 U.S. 438, 474, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (Stevens, J., concurring in part, dissenting in part))).\\n{12} But even if we had the discretion not to impose dismissal for the six-month rule violation in this case, it would be just as troubling to let the State's tardiness and miscommunications pass without any sanction. In particular, as mentioned above, the circumstances of this case suggest that the State's petition may not have provided this Court with a full disclosure of all the relevant facts bearing on the State's request for an extension of time. For example, although the State's petition for extension of time contained a perfunctory statement that \\\"Defendant objects to this Petition,\\\" the petition did not advise this Court that Mr. Duran had actually filed a motion to dismiss in district court because of the six-month rule violation. When asked at the hearing before this Court why the petition did not contain that information, the prosecutor represented that she was unaware of the motion to dismiss at the time the petition was filed with this Court. However, when asked to explain how the prosecutor ascertained whether defense counsel opposed or consented to the State's petition, the prosecutor inconsistently stated that she simply assumed the petition would be opposed, given that the defense had already filed a motion to dismiss in the district court.\\n{13} The prosecution fostered a similar misperception regarding whether the State had already obtained a definite trial setting from the district court in support of its extension request. See Rule 5-604(E) (requiring as part of the showing of good cause in the petition, \\\"a statement of a definite trial date that the petitioner has already obtained from the district court within the time period of the extension request\\\"). The petition included a statement of a definite trial date of October 7, 2008 and attached in support of that representation an amended scheduling order dated April 7, 2008. However, it came to light during the hearing before this Court that the April 7, 2008 scheduling order was replaced by a second amended scheduling order dated April 10, 2008, which changed the trial date to July 8, 2008, a date that was not within the period of the State's extension request. Moreover, during a hearing before the district court on June 27, 2008, the district court reminded the parties that the six-month rule was set to expire on August 27, 2008 and specifically alerted the prosecutor of the need to obtain a definite trial setting from the district court in anticipation of the State filing a request for an extension of time from this Court.\\n{14} In light of the State's failure to properly attend to its duties under the six-month rule, there must be some consequence for the State's missteps and miscommunications in this case. And while dismissal may seem like an excessive remedy, unfortunately, no less drastic remedies are available to us under the version of the six-month rule in effect for this case. Not having the discretion to consider lesser sanctions for the State's failure to bring this case to trial in a timely manner, we are left with no choice but to order the charges against Mr. Duran dismissed with prejudice.\\n{15} Because of our dissatisfaction with the way the dismissal provision of the six-month rule operated in this case, as noted above, we immediately suspended the provisions in Paragraph F of the rule as part of our ruling from the bench at the conclusion of the hearing in this case. Shortly after issuing the writ in this case, we subsequently amended Rule 5-604(F) and the corresponding versions of the six-month rule for courts of limited jurisdiction and the children's court, to give the lower courts and this Court the discretion to decide whether the failure to timely commence trial should result in dismissal of the charges or whether some other sanction would be more appropriate under the circumstances of the case, such as monetary sanctions against the attorney or a change in the defendant's conditions of release. See Supreme Court Order 08-8300-052 (amending to Paragraph F of Rule 5-604 to provide that upon violation of the rule the indictment or information \\\"may be dismissed with prejudice or the court may consider other sanctions as appropriate\\\"); see also Supreme Court Orders 08-8300-053 to -058 (amending Rules 6-506, 6-703, 7-506, 7-703, 8-506, 8-703, and 10-343 NMRA); Supreme Court Order 09-8300-003 (amending Rule 10-243 NMRA). In addition, we have directed our rules committees to consider whether to recommend different or additional revisions to the rules that might more effectively address the problems revealed by this ease. In the interim, we expect that our six-month rule provisions, as currently amended, will be applied in a manner that holds the prosecution accountable for its duty to bring the accused to trial in a timely manner. Dismissal is no longer the only available sanction. Of course, if the trial of the case is not commenced on or before the deadline allowed by this Court, the matter shall be dismissed with prejudice.\\nCONCLUSION\\n{16} Because of the State's violation of Rule 5-604, this case is remanded to the district court to dismiss the pending charges against Defendant in cause number D-1329CR-2007-439.\\n{17} IT IS SO ORDERED.\"}"
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+"{\"id\": \"4243813\", \"name\": \"Hillrey BEGGS, individually, Melvina Lancaster Crockett, individually, Jose M. Gutierrez, individually, Arly V. Hamner, individually, Pete O. Lucero, individually, Miguel S. Lucero, individually, Betty L. Olson, individually, Peggy Newbanks, individually, Ralph Pellicott, individually, Marcario Saiz, individually, Curtis Wagner, individually, Gary Watkins, individually, Alan Wofford, individually, and Jim Wood, individually, Plaintiffs-Petitioners, v. CITY OF PORTALES, a municipality existing under the laws of the State of New Mexico, Defendant-Respondent\", \"name_abbreviation\": \"Beggs v. City of Portales\", \"decision_date\": \"2009-05-20\", \"docket_number\": \"No. 30,558\", \"first_page\": \"372\", \"last_page\": 378, \"citations\": \"146 N.M. 372\", \"volume\": \"146\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:41:15.239651+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: EDWARD L. CH\\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and RICHARD C. BOSSON, Justices.\", \"parties\": \"Hillrey BEGGS, individually, Melvina Lancaster Crockett, individually, Jose M. Gutierrez, individually, Arly V. Hamner, individually, Pete O. Lucero, individually, Miguel S. Lucero, individually, Betty L. Olson, individually, Peggy Newbanks, individually, Ralph Pellicott, individually, Marcario Saiz, individually, Curtis Wagner, individually, Gary Watkins, individually, Alan Wofford, individually, and Jim Wood, individually, Plaintiffs-Petitioners, v. CITY OF PORTALES, a municipality existing under the laws of the State of New Mexico, Defendant-Respondent.\", \"head_matter\": \"2009-NMSC-023\\n210 P.3d 798\\nHillrey BEGGS, individually, Melvina Lancaster Crockett, individually, Jose M. Gutierrez, individually, Arly V. Hamner, individually, Pete O. Lucero, individually, Miguel S. Lucero, individually, Betty L. Olson, individually, Peggy Newbanks, individually, Ralph Pellicott, individually, Marcario Saiz, individually, Curtis Wagner, individually, Gary Watkins, individually, Alan Wofford, individually, and Jim Wood, individually, Plaintiffs-Petitioners, v. CITY OF PORTALES, a municipality existing under the laws of the State of New Mexico, Defendant-Respondent.\\nNo. 30,558.\\nSupreme Court of New Mexico.\\nMay 20, 2009.\\nEric D. Dixon, Attorney and Counselor at Law, P.A., Eric D. Dixon, Portales, NM, for Petitioners.\\nDoerr & Knudson, P.A., Stephen E. Doerr, Randy J. Knudson, Portales, NM, Hinkle, Hensley, Shanor & Martin, L.L.P., Richard E. Olson, Rebecca N. Johnson, Roswell, NM, for Respondent.\", \"word_count\": \"3775\", \"char_count\": \"24041\", \"text\": \"OPINION\\nDANIELS, Justice.\\n{1} This case requires us to analyze the legal consequences of a written personnel policy provision enacted by a city ordinance that required the City of Portales (\\\"the city\\\") to offer to its retiring employees the option of continuing their health care coverage under the city's group plan at the active employee premium reimbursement rate. The Petitioners (\\\"Retirees\\\") accepted the city's offers at the time each of them retired, before the city council enacted an ordinance deleting the retirement insurance provision from the city's \\\"Personnel Policy Manual\\\" (\\\"the Manual\\\").\\n{2} The question before us is whether the city is correct in its position that the later change in the Manual necessarily extinguished any enforceable rights Retirees may continue to have under the terms that were applicable when they retired and accepted the city's offers. We hold that the circumstances of this case present genuine issues of material fact as to whether the city's offers and Retiree's acceptances constituted binding contracts, and we reverse the district court's entry of summary judgment in favor of the city.\\nI. BACKGROUND\\n{3} In 1994, the Portales city council enacted an ordinance adopting a comprehensive personnel policy manual governing its relationships with its employees. Section 629 of the Manual, \\\"Retiree Health Care Insurance,\\\" provided:\\nThe City of Portales shall offer employees upon their retirement the option of continuing their group health and life insurance coverage through the City's group plan, provided they are enrolled in the group plan at least one year prior to retirement. The cost of the insurance for the retiree shall be the same as the cost for regular employees. If the City is paying 75% of the premium for employees, the City shall pay 75% of the premium for the retiree and shall be budgeted out of the department from which the employee retires. Retirees shall be responsible for paying their portion of the premium on a monthly, timely basis, in order to avoid the lapse of their policy coverage.\\nConditions of the policy coverage shall apply in accordance with the retiree's age and circumstances on an individual basis.\\nBetween 1995 and 2000, nine of the fourteen Retirees retired and elected to accept the city's offer to continue receiving health care benefits and reimbursements on the same terms as active employees.\\n{4} In 2000, the city council adopted an ordinance opting into the New Mexico Retiree Health Care Act, NMSA 1978, \\u00a7 10-7C-1 to -19 (1990) (\\\"NMRHCA\\\"), an act providing an alternative retiree health care benefit program for government employers and employees, which the Portales city council expressly had rejected for its employees in 1990. Even after the city's adoption of NMRHCA, the nine Retirees who had already retired continued receiving health coverage and reimbursements from the city under the Section 629 personnel policy option, which had not yet been repealed. Over the next several years, the remaining five Retirees retired and also accepted the city's still-continuing offers to receive health care coverage under its still-applicable terms.\\n{5} In 2005, city officials began to reconsider Retirees' rights to the reimbursement rates embodied in Section 629, in light of increasing health care costs and the city council's provision in 2000 of alternative retiree health care benefits through NMRHCA. In March, the city manager and the city's finance and administration committee agreed that Retirees should continue receiving coverage and reimbursements under the terms of Section 629. In May, the city council adopted a new ordinance that modi fied the Manual by deleting Section 629's health care reimbursement option entirely.\\n{6} After elimination of the Section 629 policy, Retirees met with the city attorney and others regarding the continuing rights of those who had previously accepted the city's Section 629 health insurance offer. After no consensus was reached, the city attorney submitted a resolution to the city council that would have interpreted its 2000 ordinance opting into NMRHCA as having rescinded Section 629 and as having terminated the rights of any retirees to its health care reimbursement provisions. The city council, in a divided vote, refused to adopt the resolution. Despite the city council's rejection of the resolution, the city manager notified Retirees that the city would discontinue reimbursing their health care insurance premiums on the terms contained in former Section 629 and offered to Retirees at the time of their retirement.\\n{7} Retirees filed suit in the district court of Roosevelt County to determine and enforce their rights. The district court granted summary judgment against Retirees on the ground that no vested or contractual rights could have been created by the terms of the ordinance adopting the health care policies.\\n{8} The Court of Appeals affirmed the grant of summary judgment in a divided opinion. Beggs v. City of Portales, 2007-NMCA-125, \\u00b6 32, 34, 142 N.M. 505, 167 P.3d 953. The two-judge majority, as had the district judge, focused on the fact that the retiree health insurance provisions of the Manual had been enacted through an ordinance, and relied on a body of law that rejected implications of enforceable private contractual rights from general governmental policies embodied in statutes. Id. \\u00b6 9-12. The dissenting judge concluded that the city had in fact entered into a specific binding contract with Retirees for provision of health care benefits for the duration of their retirement, and that not only should the grant of summary judgment for the city be reversed, but summary judgment should be entered in favor of Retirees. Id. \\u00b6 35, 48.\\n{9} This case is now before us on Retirees' petition for writ of certiorari. Beggs v. City of Portales, 2007-NMCERT-009, 142 N.M. 716, 169 P.3d 409.\\nII. STANDARD OF REVIEW\\n{10} On appeal, the grant of a motion for summary judgment is a question of law that is reviewed de novo. Tafoya v. Rael, 2008-NMSC-057, \\u00b6 11, 145 N.M. 4, 193 P.3d 551. Summary judgment is appropriate where there is no evidence raising a reasonable doubt that a genuine issue of material fact exists. Cates v. Regents of N.M. Inst. of Mining Tech., 1998-NMSC-002, \\u00b6 9, 124 N.M. 633, 954 P.2d 65. On the other hand, where any genuine controversy as to any material fact exists, a motion for summary judgment should be denied and the factual issues should proceed to trial. GardnerZemke Co. v. State, 109 N.M. 729, 732, 790 P.2d 1010, 1013 (1990). To that end, \\\"[a] summary judgment motion is not an opportunity to resolve factual issues, but should be employed to determine whether a factual dispute exists.\\\" Id.\\n{11} In employing this test, all reasonable inferences from the record are construed in favor of the non-moving party. Garcia v. Underwriters at Lloyd's, London, 2008-NMSC-018, \\u00b612, 143 N.M. 732, 182 P.3d 113; see State v. Integon Indem. Carp., 105 N.M. 611, 612, 735 P.2d 528, 529 (1987) (stating that courts are \\\"obliged to view the pleadings, affidavits and depositions in the light most favorable to the party opposing the [summary judgment] motion.\\\"). \\\"If there are [any] reasonable doubts, summary judgment should be denied.\\\" Koenig v. Perez, 104 N.M. 664, 666, 726 P.2d 341, 343 (1986) (internal quotation marks, citation, and emphasis omitted).\\nIII. DISCUSSION\\n{12} There are two separate lines of authority that have been argued to be applicable to this case, and each leads to different analyses and different potential results. The city relies on a line of authority that rejects finding personal contractual or vested rights in general statutory policies. See Whitely v. New Mexico State Pers. Bd., 115 N.M. 308, 312, 850 P.2d 1011, 1015 (1993) (rejecting a finding of any continuing right to future ac cruals of annual leave at previous statutory rates, because \\\"[c]ontractual rights are not created by statute unless the language of the statute and the circumstances . manifest a legislative intent to create private rights of a contractual nature enforceable against the State\\\" (internal quotation marks and citation omitted)); Pierce v. State, 1996-NMSC-001, \\u00b6 47, 121 N.M. 212, 910 P.2d 288 (finding no private rights of retirees to tax exemptions on retirement income after a prior tax exemption statute was repealed, on the theory that \\\"the principal function of a legislature is not to make contracts, but to make laws that establish the policy of the state\\\" (internal quotation marks and citation omitted)).\\n{13} Retirees, on the other hand, point to decisions recognizing that government employees can rely on the terms of employment contracts with their governmental employers, including implied-in-fact employment contracts based on provisions in personnel manuals and on other representations and conduct of the parties. See Garcia v. Middle Rio Grande Conservancy Dist., 1996\\u2014 NMSC-029, \\u00b6 11, 121 N.M. 728, 918 P.2d 7 (\\\"In New Mexico, a personnel manual gives rise to an implied contract if it controlled the employer-employee relationship and an employee could reasonably expect his employer to conform to the procedures it outlines.\\\" (internal quotation marks and citation omitted); Whittington v. State Dep't of Pub. Safety, 2004-NMCA-124, \\u00b6 1, 136 N.M. 503, 100 P.3d 209 (finding that a state police employee manual and its \\\"policies and procedures governing the employment of state police officers create an implied contract regarding terms of employment____\\\").\\n{14} We conclude that this case is controlled by Garcia and Whittington, and not by Pierce and Whitely. The general policy provisions in the statutes in Pierce and Whitely did not purport to create an employment manual that would control the terms of the employer-employee relationship, as this Court found existed in Garcia. 1996-NMSC-029, \\u00b6 11. In Whitely, the judicial employees alleged that the very terms of the statute at issue, without more, had given them vested rights to future accruals of personal leave, even after the statutory rate was changed. 115 N.M. at 310, 850 P.2d at 1013. In Pierce, not only were the tax exemption provisions of the statutes relied on for alleged contractual or vested rights not contained in an employee handbook, they were also \\\"not contained within the [statutory] provisions defining the substantive rights of employees to receive benefits.\\\" 1996-NMSC-001, \\u00b6 47. Retirees in this case, however, assert rights based not simply on the policies expressed in an ordinance alone, but specifically on contractual rights based on the Manual, the conduct of the parties, and various oral and written representations, allegedly evidencing a binding contractual offer and acceptance.\\n{15} The record contains substantial evidentiary support for Retirees' contractual claims, including evidence to support findings (1) that the city council had specifically authorized the comprehensive terms of its ordinance to be considered a \\\"Personnel Policy manual . to inform employees of policies that affect their employment with the City of Portales\\\" and to \\\"ensure that the personnel system provides . policies and procedures for . fringe benefits . retirement, and other related activities\\\"; (2) that employees were required to be provided with, and to sign acknowledgments of receipt of, the Manual; (3) that employees were bound by terms of the Manual; (4) that the city itself felt bound to comply with the terms of its Manual; (5) that city officials made representative admissions by statements and conduct that the city was obligated to continue paying health insurance premiums for those Retirees who had accepted the city's offer to do so after they had met the requirements of the ordinance existing at the time of their retirements; and (6) that city officials made representative admissions that provisions of the Manual became terms of an \\\"employee contract\\\" and that Retirees had a \\\"vested interest\\\" in continued health insurance benefits.\\n{16} The city's course of conduct, as alleged over a period of many years, easily distinguishes the present case from Pierce and Whitely. Here, a jury could reasonably conclude that the city not only promised to make an offer for a contract, but actually engaged in a course of conduct over an ex tended period of time, including use of its employee manual, in which the city both made and performed contractual commitments to its employees, thereby obligating itself into the future. In contrast, Pierce and Whitely arose solely from enactments of our state legislature that concerned appropriations and taxation' \\u2014 core functions of state sovereignty for which no law-making body can bind its successor.\\n{17} New Mexico case law has emphasized the importance of precisely that kind of evidence in determining the existence of contractual obligations in public employment contexts. See Garcia, 1996-NMSC-029, \\u00b6 10 (\\\"Whether an implied employment contract exists is a question of fact, and it may be 'found in written representations!}] . in oral representations, in the conduct of the parties, or in a combination of representations and conduct.' \\\") (quoting Hartbarger v. Frank Paxton Co., 115 N.M. 665, 669, 857 P.2d 776, 780 (1993)); Campos de Suenos, Ltd. v. County of Bernalillo, 2001-NMCA-043, \\u00b6 27, 130 N.M. 563, 28 P.3d 1104 (distinguishing government employment contracts from other forms of government contracts: \\\"As a practical matter, most employment agreements in the public sector are implied-in-fact, rooted in the conduct of the parties and in a maze of personnel rules and regulations, as well as employee manuals that apply generically to all employees\\\"). Garcia emphasized the comprehensive nature of the written personnel policies in finding them sufficient to create contractual obligations by a governmental employer. 1996-NMSC-029, \\u00b6 13. Similarly, in this case, the Manual exhaustively addressed \\\"all phases of Personnel Administration\\\" and was meant to \\\"serve as conditions of employment for all employees of the City of Portales.\\\" It covered every aspect of the employment relationship between the city and its employees, including sections relating to the Manual's mission to provide for consistent application of personnel policies, effects of separate labor relations contracts, recruitment, probationary periods, transfer, promotion, holiday pay, salary increases, travel expenses, vacation and sick leave, disciplinary procedures, termination, and grievance procedures. As this Court said in Garcia, \\\"if an employer does choose to issue a policy statement, in a manual or otherwise, and, by its language or by the employer's actions, encourages reliance thereon, the employer cannot be free to only selectively abide by it.\\\" Id. (citation omitted). Not surprisingly, the city has referred us to no authority which has ever held that a governmental employer's contractual obligations created through an employment manual may be ignored simply because the manual was initially adopted through an ordinance. We see no principled reason to create such an exception here. In fact, the official endorsement of the city's governing body should provide additional safeguards against unintentional or unauthorized incurring of contractual obligations by the city.\\n{18} In arguing against any finding of contractual or vested rights, the city points to a number of factors that would be inconsistent with the creation of the contractual rights Retirees are seeking to enforce. One of those is that the Manual and its creating ordinance provided that \\\"[n]othing shall restrict or prohibit the City Council from making changes in this manual as it determines necessary at any time.\\\" Another is the argument that \\\"it makes no sense that all retirees [who satisfied the Manual's minimum one-year premium payment requirement before retiring] would receive the same benefit regardless of their years of service, and that they would receive it for life.\\\" While those arguments may be relevant, admissible, and perhaps even ultimately successful in persuading a jury that the city in fact neither intended to nor did enter into the contracts alleged by Retirees, they do not foreclose a fact finder's decision that the city actually did enter into such contracts, in light of the totality of the evidence that may be presented at trial.\\n{19} With regard to the city's reliance on the right to amend its ordinance creating the Manual, it is important to note that nothing in either the Manual or the ordinance contained language stressing that no contractual rights would be created between the city and its employees during the time the Manual's provisions were in effect, nor that later amendments would be argued to void obli gations that had been incurred before the changes.\\n{20} Moreover, it is important to remember that this case does not involve simply the interpretation of a change of benefits in an ordinance, it involves also the terms of a personnel manual and statements and actions of the parties surrounding the alleged formation of a contract at the time Retirees allege that they accepted an offer made by their employer in connection with their retirement. As this Court observed in Cockrell v. Board of Regents of New Mexico State University, \\\"employers are certainly free to issue no personnel manual at all or to issue a personnel manual that clearly and conspicuously tells them employees that the manual is not part of the employment contract____\\\" 2002-NMSC-009, \\u00b626,132 N.M. 156, 45 P.3d 876 (alteration in original) (internal quotation marks and citations omitted). However, even where a personnel manual purports to disclaim any intentions of forming contractual obligations enforceable against an employer, a fact finder may still look to the totality of the parties' statements and actions, including the contents of a personnel manual, to determine whether contractual obligations were created. Id.\\n{21} The fundamental dispute in this case relates to exactly what, if anything, the city and Retirees contractually agreed to at the time Retirees retired and accepted the city's offer that was authorized by Section 629 of the Manual, in its direction that the city \\\"shall offer\\\" retiring employees certain health insurance benefits. The city did not appear to dispute Retirees' evidentiary showings that there was an offer of health benefits of some kind by the city at the time of their retirement, that Retirees manifested their acceptance, that there was consideration in the form of their required participation in the health plan for the minimum one-year period before retirement, in declining other employment and staying employed by the city until retirement, and in paying Retirees' portions of the premiums after retirement. However, the city and Retirees vigorously dispute whether the offer made to Retirees and accepted by them was for permanent health benefits or was for monthly benefits only during the time the city chose to continue providing them, and both sides point to substantial evidentiary support for their respective theories.\\n{22} We are persuaded that this record shows that the evidence submitted in opposition to the city's motion for summary judgment, while not conclusive either way, was sufficient to show the existence of genuine issues of material fact regarding the existence of contractual rights on behalf of Retirees to continue receiving health insurance benefits at the rate they allege they and the city agreed upon at the time of their retirement. Those disputed factual issues are inappropriate for determination by summary judgment, and they should be submitted to a jury. \\\"Reviewing this evidence in the light most favorable to [Retirees], we conclude that [Retirees are] entitled to have the factual issue of whether an implied contract exists resolved by a fact-finder at a trial on the merits.\\\" Gormley v. Coca-Cola Enters., 2004-NMCA-021, \\u00b6 21, 135 N.M. 128, 85 P.3d 252 (2003) (holding summary judgment improper, even where employer and employee \\\"essentially agree[d] on the conversation giving rise to the alleged implied contract\\\" because finding an implied-in-fact contract is a factual question meant for the jury). The district court therefore erred in granting summary judgment, and the Court of Appeals majority erred in affirming it.\\n{23} Plaintiffs also relied on a theory of promissory estoppel in support of their complaint and in opposition to the city's summary judgment motion in the district court. The district court did not separately address that theory at all in relying on Pierce and Whitely in granting summary judgment in favor of the city. The Court of Appeals majority addressed the theory only briefly, holding that it did not have to decide whether promissory estoppel would apply against a city, because its decision on the central contract issue led it to conclude that Retirees could not have legitimately relied on any promises or offers a city agent may have made that, as the court determined, were unauthorized by law. Beggs, 2007-NMCA-125, \\u00b6 15-16. The city addresses the promissory estoppel theory only in passing in its briefing in this Court, although Retirees continued to press the point. Given our determination that a jury could find that the city may in fact have made legally enforceable promises to Retirees, we therefore reverse on this issue as well. By doing so, we do not prejudge any resolution of issues that potentially could have been, but were not, properly presented to this Court.\\nIV. CONCLUSION\\n{24} Because we determine that there were genuine issues of material fact regarding whether a contract was formed and the scope of its terms, we hold that the district court's entry of summary judgment was error. We reverse the Court of Appeals and the district court, and we remand this matter to the district court for further proceedings consistent with this opinion.\\n{25} IT IS SO ORDERED.\\nWE CONCUR: EDWARD L. CH\\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and RICHARD C. BOSSON, Justices.\\n. The New Mexico Retiree Health Care Act contains language that clearly does not create contractual rights:\\nThe legislature declares that the expectation of receiving future benefits may be modified from year to year in order to respond to changing financial exigencies, but that such modification must be reasonably calculated to result in the least possible detriment to the expectation and to be consistent with any employer-employee relationship established to meet that expectation. The legislature does not intend for the Retiree Health Care Act to create trust relationships among the participating employees, retirees, employers and the authority administering the Retiree Health Care Act nor does the legislature intend to create contract rights which may not be modified or extinguished in the future; rather the legislature intends to create, through the Retiree Health Care Act, a means for maximizing health care services returned to the participants for their participation under the Retiree Health Care Act.\\nNMSA 1978, \\u00a7 10-7C-3(B) (1990).\"}"
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+"{\"id\": \"4244916\", \"name\": \"Marc PRUYN, Petitioner-Appellee, v. Amy M. LAM, Respondent-Appellant\", \"name_abbreviation\": \"Pruyn v. Lam\", \"decision_date\": \"2009-06-30\", \"docket_number\": \"No. 28,103\", \"first_page\": \"39\", \"last_page\": 45, \"citations\": \"147 N.M. 39\", \"volume\": \"147\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:15:11.691404+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: JONATHAN B. SUTIN and MICHAEL E. VIGIL, Judges.\", \"parties\": \"Marc PRUYN, Petitioner-Appellee, v. Amy M. LAM, Respondent-Appellant.\", \"head_matter\": \"2009-NMCA-103\\n216 P.3d 804\\nMarc PRUYN, Petitioner-Appellee, v. Amy M. LAM, Respondent-Appellant.\\nNo. 28,103.\\nCourt of Appeals of New Mexico.\\nJune 30, 2009.\\nCertiorari Denied, No. 31,850, Aug. 18, 2009.\\nKeithly & English, P.C., Shane A. English, Anthony, NM, for Appellee.\\nRosner & Chavez, LLC, Mary Rosner, Las Cruces, NM, for Appellant.\", \"word_count\": \"3649\", \"char_count\": \"22620\", \"text\": \"OPINION\\nGARCIA, Judge.\\n{1} Mare Pruyn (Husband) stipulated to an award of spousal support to Amy Lam (Wife) as part of their divorce. This appeal arises out of the trial court's subsequent termination of the spousal support awarded to Wife. Wife argues that the district court did not have jurisdiction to modify the spousal support agreement because Subsection 40-4-7(B)(2)(a) does not expressly permit modification of the type of spousal support set out in the parties' agreement. NMSA 1978, Section 40-4-7(B)(2)(a) (1997). Husband argues that the district court did have jurisdiction to modify the spousal support under Subsection 40-4-7(B)(2)(a) and pursuant to Rule 1-060(B) NMRA. We reverse the determination by the district court that Wife's spousal support was modifiable under Subsection 40-4-7(B)(2)(a). We further remand to the district court to complete its analysis and to issue a ruling regarding whether Wife's spousal support can be modified under Rule 1-060(B).\\nFACTS AND PROCEDURES\\n{2} Wife and Husband lived together for twenty-three years, and they were married for seventeen of those years. On December 27, 2004, without assistance from counsel, the parties devised and filed a marital settlement agreement (MSA) that contained the parties' spousal support arrangement. In August 2005, both parties appeared in district court for the final divorce hearing and stated that they fully understood their agreement and were willing to abide by the terms. Husband specifically answered the district court's questions regarding the MSA as follows:\\nJudge: Do you understand that if I accept this and incorporate it by reference into the final decree that you'll be ordered to comply with the terms and the conditions stated therein?\\nHusband: Yes, I do your Honor.\\nJudge: And that if you fail or refuse to comply with these conditions, not only are you in breach of contract of the settlement agreement, but you also can be sanctioned by the court, up to and including going to jail?\\nHusband: Yes, your Honor.\\nJudge: And you understand that you've agreed to pay alimony on the amounts that we've discussed until the year 2019?\\nHusband: Yes, I do.\\nJudge: And that by making reference in the agreement that this is non-modifiable, that you will not be allowed to come back into court at a later date should you have a change of financial circumstances and ask the court to reduce that obligation. Do you understand that?\\nHusband: Yes, I do.\\nThe district court entered the final divorce decree (final decree) adopting the MSA on August 10, 2005.\\n{3} The spousal support language set forth in the MSA that was adopted by the final decree included the following handwritten provision, \\\"[Husband] WILL PAY [Wife] 1/12 OF THE YEARLY AMOUNTS BY THE 1st OF EACH MONTH. 2005-2009 $31,375 per year; 2010-2014 $39,000 per year; 2015-2019 $23,000 per year. THIS IS NON-MODIFIABLE.\\\" Approximately one year later, Husband filed a motion to modify alimony. In response, Wife filed a motion for summary judgment that was granted by the district court. Husband then filed a timely motion for reconsideration of the court's denial of his motion to modify. After a hearing on the legal issues, the district court concluded that the judgment incorporating the spousal support was modifiable, stating that \\\"the alimony award contained in the [judgment] does not qualify as a single[-]sum award.\\\" See NMSA 1978, \\u00a7 40-4-7(B)(l)(d) and -7(B)(2)(a) (1997). The district court then held a three-day merits trial to determine whether changed circumstances justified a modification of the judgment that incorporated the spousal support. After the hearing, the district court terminated Wife's spousal support based upon the evidence of the parties' changed circumstances. Namely, Husband was no longer \\\"reasonably able to continue paying alimony to [Wife],\\\" and Wife was able to \\\"provide her own reasonable needs without assistance from [Husband].\\\" The district court and the parties used the term \\\"alimony.\\\" For clarity throughout the remainder of this opinion, only the term \\\"spousal support\\\" shall be used. See Galassi v. Galassi 2009-NMCA-026, \\u00b6 9, 145 N.M. 630, 203 P.3d 161 (pointing out that the Legislature changed the nomenclature by substituting the term \\\"spousal support\\\" for \\\"alimony\\\").\\nDISCUSSION\\n{4} The central issue on appeal is whether the district court had jurisdiction to modify the judgment incorporating spousal support under Subsections 40-4-7(B)(l) and (2) or Rule 1-060(B). The primary arguments before the district court concerned the applicability of Subsections 40 \\u2014 4\\u20147(B)(1) and (2).\\n{5} In Subsection 40^1-7(B)(1), the Legislature described the following five categories for spousal support:\\nB. On final hearing, the court:\\n(1) may allow either party such a reasonable portion of the spouse's property or such a reasonable sum of money to be paid by either spouse either in a single sum or in installments, as spousal support as under the circumstances of the case may seem just and proper, including a court award of:\\n(a) rehabilitative spousal support that provides the receiving spouse with education, training, work experience or other forms of rehabilitation that increases the receiving spouse's ability to earn income and become self-supporting. The court may include a specific rehabilitation plan with its award of rehabilitative spousal support and may condition continuation of the support upon compliance with that plan;\\n(b) transitional spousal support to supplement the income of the receiving spouse for a limited period of time; provided that the period shall be clearly stated in the court's final order;\\n(e) spousal support for an indefinite duration;\\n(d) a single sum to be paid in one or more installments that specifies definite amounts, subject only to the death of the receiving spouse; or\\n(e) a single sum to be paid in one or more installments that specifies definite amounts, not subject to any contingencies, including the death of the receiving spouse[.]\\nGalassi, 2009-NMCA-026, \\u00b6 10, 145 N.M. 630, 203 P.3d 161 (describing \\\"five categories or types of spousal support that a district court may order\\\"). In Subsection 40-4-7(B)(2)(a), the Legislature allowed modifications to spousal support by the district court as follows:\\n(2) [the district court] may:\\n(a) modify and change any order in respect to spousal support awarded pursuant to the provisions of Subparagraph (a), (b) or (c) of Paragraph (1) of this subsection whenever the circumstances render such change proper[.]\\n{6} At the hearing on Husband's motion to modify spousal support and Wife's motion for summary judgment, Wife argued that spousal support was non-modifiable because the award fell into the single-sum category set forth in Subsection 4(M-7(B)(l)(e). At a subsequent hearing, she admitted that she made an error and that Subsection 40-4-7(B)(1)(d) was the correct subsection. Wife also argued that Subsection 40-4-7(B)(2)(a) does not allow modification of these two categories of spousal support. Wife further argued that Husband failed to set forth specific allegations for relief under Rule 1-060. Husband countered that the district court had equitable jurisdiction under both the statute and Rule 1-060 to amend the spousal support agreement made by the parties. The district court denied Husband's motion to modify spousal support and granted Wife's summary judgment motion. The court reasoned that because a discernable total amount can be calculated from all the payments, the award constituted a non-modifiable single sum under Subsection 40-4-7(B)(l)(e) and that Husband had not presented sufficient evidence to modify that sum under Rule 1-060.\\n{7} Husband then filed a timely motion for reconsideration. Husband asserted that because the parties failed to state a specific sum, Subsection 40-4-7(B)(l)(d) did not apply and the spousal support was modifiable pursuant to Subsection 40-4-7(B)(2)(a). In addition, he argued that spousal support was modifiable under Rule 1-060(B). Wife countered with the same arguments presented at the previous hearing. At the conclusion of the hearing on the motion for reconsideration, the district court asked for supplemental briefing to address whether a single sum must be stated or whether the sum can be calculated from the payment amounts to qualify under Subsection 40-4-7(B)(l)(d). The district court never specifically addressed the motion under Rule 1-060(B). After receiving the supplemental briefing, the court granted Husband's motion for reconsideration, finding that \\\"the [spousal support] award contained in the [MSA] does not qualify as a single[-]sum award and that [the e]ourt has equitable authority to modify the [spousal support] award.\\\" This Court does not fault the district court for rendering a decision that chooses only one of Husband's alternative arguments regarding the jurisdiction to modify the spousal support award.\\nANALYSIS OF SECTION 40-4-7(B)\\n{8} Wife argues on appeal that the district court lacked statutory jurisdiction to modify the judgment incorporating spousal support. We interpret Section 4CMf-7(B) de novo. Edens v. Edens, 2005-NMCA-033, \\u00b6 27, 137 N.M. 207, 109 P.3d 295.\\n{9} Under our current divorce statutes, Subsection 40-4-7(B)(2)(a) grants the district courts authority to modify judgments incorporating certain types of spousal support. See 2A Norman J. Singer, Statutes and Statutory Construction \\u00a7 69:7, at 393 (6th ed.2003) (stating that divorce is a statutory action and therefore court authority is limited by statutory language). Subsection 40-4-7(B)(2)(a) references Subsection 40-4-7(B)(1), so we must read the two subsections together. Subsection 40-4-7(B)(2)(a) grants district courts jurisdiction to modify judgments incorporating support awards only if the awards fall into the categories listed in Subsections 40^4-7(B)(l)(a) to (c). Edens, 2005-NMCA-033, \\u00b6 27, 137 N.M. 207, 109 P.3d 295 (\\\"[Subsection] 40-4-7(B)(2)(a) plainly limits the support awards subject to modification.\\\"). Subsections 40-4-7(B)(l)(a) to (c) describe spousal support that is rehabilitative, transitional, and indefinite in nature. The parties both acknowledge that the spousal support set forth in the MSA is not rehabilitative, transitional, or indefinite. The statutory \\\"provision permitting modification does not apply to [single-sum] awards under [Subsection] 40-4-7(B)(l)(d).\\\" Edens, 2005-NMCA-033, \\u00b6 27, 137 N.M. 207, 109 P.3d 295; see Galassi, 2009-NMCA-026, \\u00b6 18, 145 N.M. 630, 203 P.3d 161 (referring to spousal support in Subsection 40-4-7(B)(l)(d) as non-modifiable). The statute, therefore, does not provide the district court jurisdiction to modify the spousal support awarded pursuant to the parties' MSA and adopted in the final decree.\\n{10} Husband argues that the spousal support award does not fit into any of the categories listed in Subsections 40-4-7(B)(l)(a) to (e). He asserts that \\\"[a]n ambiguity therefore exists in the statute as applied to the award in this case and the statute should be construed according to its obvious spirit or reason and not in such a way that would lead to injustice, absurdity or contradiction.... [T]he logical construction of the statute consistent with its spirit or reason is that it grants the court authority to modify the award if warranted by the circumstances.\\\" (Internal quotation marks and citation omitted). We disagree with Husband's position for two reasons. First, based on our analysis in Deeds v. Deeds, 115 N.M. 192, 194-95, 848 P.2d 1119, 1121-22 (Ct.App.1993), the spousal support in the MSA can be categorized under Subsection 40 \\u2014 4\\u20147(B)(1)(d). Second, Husband's reliance on the spirit of the statute is misplaced because the standards for modification established under prior versions of the statute are no longer applicable.\\n{11} Subsection 40-4-7(B)(l)(d) describes a spousal support award as \\\"a single sum to be paid in one or more installments that specifies definite amounts, subject only to the death of the receiving spouse[.]\\\" Husband argues that the spousal support does not fit into this category because the MSA does not state a specific single sum but rather several fractional amounts payable over a definite duration. This Court has defined single-sum spousal support as \\\" 'the award of a definite sum of money; and if the sum is payable in installments},] the payments run for a definite length of time.'\\\" Deeds, 115 N.M. at 194, 848 P.2d at 1121 (alteration in original) (quoting 24 Am.Jur.2d Divorce and Separation \\u00a7 635, at 632 (1983)); see Edens, 2005-NMCA-033, \\u00b6 27, 137 N.M. 207, 109 P.3d 295 (using interchangeably the terms \\\"single sum\\\" and \\\"lump sum\\\" to describe spousal support). Single-sum spousal support is usually stated as a specific amount of money awarded either all at once or in payments. In Deeds, this Court analyzed whether spousal support in that case was properly categorized as a lump sum in order to determine whether the district court had jurisdiction to modify the judgment incorporating the spousal support award. 115 N.M. at 193-94, 848 P.2d at 1120-21 (applying the previous version of the spousal support statute). This Court acknowledged that a single sum could be calculated by adding together the payment amounts stated in the marital settlement agreement. Id. at 194, 848 P.2d at 1121.\\n{12} The spousal support language in the MSA conforms with Subsection 40^4-7(B)(1)(d) in all regards except that it does not state a single-sum amount. As was the ease in Deeds, it is a simple calculation to determine the total single-sum amount awarded to Wife under the final decree. Id. The amount of payments stated are for a definite fifteen-year duration (2005-2019). The parties checked \\\"B.2.1\\\" on the MSA form that states, \\\"The support will end if the person to receive the support dies.\\\" This designation by the parties terminates payments upon Wife's death and conforms to the language in Subsection 40-4-7(B)(l)(d). The parties included a handwritten provision at the end of the spousal support section of the MSA form that states, \\\"THIS IS NON-MODIFIABLE.\\\" In August 2005, the district court stated that the judgement incorporating the spousal support agreement was a non-modifiable contract. The district court specifically explained to Husband that he could not change the terms of the agreement regardless of future events, and Husband acknowledged this restriction. The district court also explained that if Husband failed to comply with the terms of the agreement, he would be in breach of contract and could receive sanctions including jail time. Unlike Deeds where there was no indication of the parties' intent, the evidence in this case clearly expresses the intentions of the parties.\\n{13} We next address Husband's argument that the district court has jurisdiction to modify the judgment based on the spirit and construction of the statute. Husband states two reasons to support his position:\\n(1)historically the district court could modify any order incorporating a marital settlement agreement if the circumstances justified such a change and (2) the language in the current statute does not \\\"suggest a legislative intent to restrict the district court's authority to modify\\\" judgments incorporating marital settlement agreements.\\n{14} Prior to the 1993 amendment to Subsection 40-4-7(B)(2), the district court had authority to amend all judgments incorporating spousal support if the circumstances warranted such a change. NMSA 1953, \\u00a7 22-7-6(B)(l)-(3) (Vol. 5, 1975 Pocket Supp.); NMSA 1953, \\u00a7 22-7-6 (Vol.5, 1943); Galassi, 2009-NMCA-026, \\u00b6 7, 145 N.M. 630, 203 P.3d 161. However, in 1993, the Legislature \\\"worked a dramatic change in the statute.\\\" Galassi, 2009-NMCA-026, \\u00b6 9, 145 N.M. 630, 203 P.3d 161. The Legislature listed five specific types of available spousal support, including four new types of spousal support. Sections 40^-7(B)(l)(a)-(e). Significantly, the Legislature amended the modification provisions and added language that limits jurisdiction to modify judgments incorporating spousal support. Section 40^1-7(B)(2)(a); Galassi, 2009-NMCA-026, \\u00b6 11, 145 N.M. 630, 203 P.3d 161. Instead of continuing to allow district courts to modify all judgments incorporating spousal support, the Legislature enacted a new subsection limiting such modifications. Section 40-4-7(B)(2)(a); Galassi, 2009-NMCA-026, \\u00b6 11, 145 N.M. 630, 203 P.3d 161. The new language signals the Legislature's intent to reduce the district court's statutory authority to modify spousal support judgments. See Galassi 2009-NMCA-026, \\u00b6 15-16, 145 N.M. 630, 203 P.3d 161; see also Bettini v. City of Las Cruces, 82 N.M. 633, 635, 485 P.2d 967, 969 (1971) (\\\"[W]e must presume that the [Legislature, in enacting a statute, intended to change the law as it had theretofore existed.\\\"). Today's courts have less statutory authority to amend judgments incorporating spousal support, even if equitable justification might exist. Section 40-4r-7(B)(2). We will not read into the statute broad language that is not there. Burroughs v. Bd. of County Comm'rs of Bernalillo County, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975) (stating that an appellate court \\\"will not read into a statute . language which is not there, particularly if it makes sense as written\\\"). We determine that the parties' spousal support is a single sum pursuant to Subsection 40-4h-7(B)(l)(d), which is not statutorily modifiable under Subsection 40-4-7(B)(2)(a).\\nAPPLICATION OF RULE 1-060\\n{15} Husband argues that Rule 1-060(B)(5) and (6) provide the district court with an alternative basis for jurisdiction to amend the 2005 award of spousal support. Rule 1-060(B) sets out the criteria under which a party can seek relief from a final judgment or order. Husband first raised this Rule 1-060 argument at the hearing on the motion to modify spousal support. The court denied the motion insofar as it was grounded in Rule 1-060, stating in part that insufficient evidence was presented to grant the motion under Rule 1-060. Husband again raised a Rule 1-060(B) issue in his motion for reconsideration, and both parties argued its applicability at the hearing on the motion. The district court, however, never expressly ruled on the Rule 1-060(B) issue at the reconsideration hearing.\\n{16} The district court did enter findings of fact and conclusions of law following the reconsideration hearing and the review of the supplemental briefing. In the findings and conclusions, the court ruled only on the statutory basis for modification pursuant to Section 40-4-7(B). In the conclusions of law, the court specifically stated, \\\"The [spousal support] award contained in the [MSA] does not qualify as a single[-]sum award and this [c]ourt retains equitable authority to modify the [spousal support] award.\\\" No final reference was made to Rule 1-060. Although the court failed to state the basis for its \\\"equitable authority\\\" for modification, the analysis set forth in the district court's findings indicate that it was based upon the change in circumstances allowed under Subsection 40^4-7(B)(2)(a).\\n{17} There is no clear evidence in this case that the court addressed the parties' Rule 1-060(B) arguments with finality when it reconsidered its original ruling. On appeal, we cannot decide an issue that the district court failed to address with finality. See Palmer v. Palmer, 2006-NMCA-112, \\u00b6 24, 140 N.M. 383, 142 P.3d 971 (remanding to the district court for a final ruling regarding attorney fees); State ex. rel Children, Youth & Families Dep't v. Frank G., 2005-NMCA-026, \\u00b6 40, 137 N.M. 137, 108 P.3d 543 (\\\"The general rule in New Mexico for determining the finality of a judgment is whether all issues of law and fact have been determined and the case disposed of by the [district] court to the fullest extent possible.\\\" (internal quotation marks and citation omitted)), aff'd, In re Pamela A.G., 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. The district court failed to rule with finality on the alternative theory of applying Rule 1-060(B), failed to identify any analysis under Rule 1-060(B), and failed to render specific findings and conclusions pursuant to Rule 1-060(B). Therefore, we remand and instruct the district court to address Husband's motion for reconsideration pursuant to Rule 1-060(B). We further instruct the district court to address the Rule 1-060(B) issues consistent with the previous rulings from this Court set forth in Galassi and Edens. See Galassi, 2009-NMCA-026, \\u00b6 17, 145 N.M. 630, 203 P.3d 161; Edens, 2005-NMCA-033, \\u00b6 13-25, 137 N.M. 207, 109 P.3d 295.\\nADDITIONAL ISSUES\\n{18} Wife raises additional issues that require little discussion. First, she argues that the language, \\\"THIS IS NON-MODIFIABLE,\\\" in the MSA contractually prevents the parties from seeking modification. Wife provided no authority for this argument and failed to rebut the applicable authorities cited by Husband in his brief. See Bustos v. Bustos, 100 N.M. 556, 559, 673 P.2d 1289, 1292 (1983). This Court will not address arguments presented by a party that are not supported by authority. Stockton v. N.M. Taxation & Revenue Dep't, 2007-NMCA-071, \\u00b6 16, 141 N.M. 860, 161 P.3d 905. Additionally, we hold that Subsections 40^4-7(B)(1) and (2) and Rule 1-060(B) are controlling. See Galassi, 2009-NMCA-026, \\u00b6 6, 145 N.M. 630, 203 P.3d 161; Edens, 2005-NMCA-033, \\u00b6 13-25, 137 N.M. 207, 109 P.3d 295. Next, Wife contends that the district court erred when it did not grant her interlocutory appeal. This issue is now moot because we have addressed the jurisdictional concerns on appeal. Finally, Wife challenges the district court's findings of fact. This issue also is now moot because we reverse the district court's grant of Husband's motion for reconsideration pursuant to Section 40-4-7(B), and we remand for further consideration and a final ruling on the motion for reconsideration.\\nCONCLUSION\\n{19} We reverse the district court's ruling on Husband's motion for reconsideration regarding whether Wife's spousal support was modifiable under Subsection 40-4-7(B)(2)(a), and we remand for further consideration and a final ruling on the motion for reconsideration pursuant to Rule 1-060(B).\\n{20} IT IS SO ORDERED.\\nWE CONCUR: JONATHAN B. SUTIN and MICHAEL E. VIGIL, Judges.\"}"
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+"{\"id\": \"4250059\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Lawrence GALLEGOS, Defendant-Appellant\", \"name_abbreviation\": \"State v. Gallegos\", \"decision_date\": \"2011-06-15\", \"docket_number\": \"No. 31,204\", \"first_page\": \"704\", \"last_page\": 720, \"citations\": \"149 N.M. 704\", \"volume\": \"149\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:11:54.693303+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES and EDWARD L. CH\\u00c1VEZ, Justices.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Lawrence GALLEGOS, Defendant-Appellant.\", \"head_matter\": \"2011-NMSC-027\\n254 P.3d 655\\nSTATE of New Mexico, Plaintiff-Appellee, v. Lawrence GALLEGOS, Defendant-Appellant.\\nNo. 31,204.\\nSupreme Court of New Mexico.\\nJune 15, 2011.\\nLaw Office of Craig C. Kling, Craig Charles Kling, San Diego, CA, for Appellant.\\nGary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellee.\", \"word_count\": \"10245\", \"char_count\": \"64840\", \"text\": \"OPINION\\nBOSSON, Justice.\\n{1} In this first-degree murder case, we affirm the convictions for murder, aggravated arson, and conspiracy to commit murder. We find, however, that Defendant's convictions for two other conspiracies violate constitutional principles against double jeopardy. In so doing, we apply for the first time our unit of prosecution analysis from double jeopardy jurisprudence to multiple conspiracy convictions. In the course of that analysis, we clarify existing case law and set a new course for the future application of double jeopardy principles to multiple conspiracy convictions.\\nBACKGROUND\\n{2} A jury convicted Defendant of one count of first-degree murder in violation of NMSA 1978, Section 30-2-l(A) (1994); one count of kidnapping in violation of NMSA 1978, Section 30-4-1 (2003); one count of aggravated arson in violation of NMSA 1978, Section 30-17-6 (1963); and three counts of conspiracy in violation of NMSA 1978, Section 30-28-2 (1979). The trial court vacated Defendant's kidnapping conviction because it was subsumed within the first-degree murder conviction. Defendant was sentenced to life imprisonment for first-degree murder, he was given a fifteen-year concurrent sentence for conspiracy to commit first-degree murder, a nine-year consecutive sentence for aggravated arson, a three-year consecutive sentence for conspiracy to commit aggravated arson, and a nine-year consecutive sentence for conspiracy to commit kidnapping.\\n{3} Defendant raises numerous issues on appeal. Defendant contends (1) there is insufficient evidence of deliberate first-degree murder, (2) there is insufficient evidence to support a conspiracy to commit murder, (3) his convictions on multiple counts of conspiracy violate prohibitions against double jeopardy, (4) the trial court improperly denied Defendant's request for a continuance, (5) all convictions rest on testimony that is inherently improbable as a matter of law, and (6) the trial court improperly denied Defendant's motion for new trial based on newly discovered evidence.\\n{4} We have jurisdiction to review Defendant's direct appeal pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. See State v. Smallwood, 2007-NMSC-005, \\u00b6 6, 141 N.M. 178, 152 P.3d 821 (\\\"[Ojur appellate jurisdiction extends to appeals from district court judgments imposing a sentence of life imprisonment or death.\\\"). We first conclude that substantial evidence supports these verdicts. We dispose of issues 4-6 with only brief discussion. The third issue, multiple counts of conspiracy and double jeopardy, occupies most of our attention in this Opinion. We reverse all but one conspiracy conviction and remand to the district court for further, appropriate action.\\n{5} The record at trial supports the following factual summary. On September 6, 2003, at approximately 11 p.m., Juan Alcantar (\\\"Victim\\\") was socializing at Richard \\\"Red\\\" Anaya's home in Taos when someone at the residence placed a phone call to the cell phone of Ivan Romero, also known as \\\"Diablo.\\\" A little after midnight, September 7, 2003, Victim and Steve Tollardo arrived at a local Taos bar, where security denied them entry. Before leaving the premises, Victim got into a fight with Ivan Romero after Tollardo \\\"called out\\\" Romero, who was inside that bar. Before security broke up the fight, Ivan Romero struck Victim. Victim's girlfriend testified at trial that Victim, at the time, owed Ivan Romero money for drugs.\\n{6} After leaving the bar, Victim and Tollardo returned to Anaya's home. At approximately 1:15 a.m., someone placed another phone call from Anaya's home to Ivan Romero's cell phone. At approximately 1:45 a.m., Victim went to Allsup's, during which time someone placed an additional phone call from Anaya's home to Ivan Romero's cell phone. Around the same time, Defendant, along with Luis \\\"Tablas\\\" Trujillo and Raquel \\\"Quela\\\" Gonzales, Defendant's girlfriend or wife at the time, stopped by Anaya's home after the bars were closed. After Defendant, Trujillo, and Gonzales arrived at Anaya's home, one or two phone calls were placed between Ivan Romero's cell phone and Anaya's home.\\n{7} Soon after these phone calls, \\\"out of nowhere,\\\" Defendant and Trujillo attacked Victim. After the assault began, Defendant instructed Gonzales, Anaya, and another individual to wait in the back bedroom. Thirty to forty-five minutes later, Defendant came to the back room and instructed Gonzales to clean up Victim's blood from the floor. The only people in the living room and kitchen area at that time were Defendant and Victim. Defendant remained at Anaya's home in charge of Victim, who was still alive.\\n{8} At approximately 3:00 a.m. on September 7, Tollardo and Trujillo arrived at Elias Romero's shack. Tollardo and Trujillo told Elias Romero that Victim was tied up at Anaya's home and was threatening to kill Ivan Romero, Elias Romero's son. Elias Romero loaded a syringe with heroin and instructed Michelle Martinez, his girlfriend at the time, \\\"[t]o go take care of it.\\\" Ultimately, Martinez testified for the State, and much of this evidentiary recitation comes from her testimony. As a long time drug user, Martinez knew that the amount of heroin she was given was a lethal dose and that Elias Romero was asking her to kill Victim. When Tollardo and Trujillo returned to Ana-ya's home with Martinez, Victim was on the floor with his hands tied behind his back, and Defendant was standing over him with a knife.\\n{9} When Victim saw Michelle Martinez come into the house, he began to ask for her help. Martinez, who was wearing gloves, immediately pulled out the heroin-filled syringe. When Victim saw the syringe, he began crying in fear for his life. Martinez attempted to grab Victim's arm, but he managed to kick her away. As Defendant continued to stand over him with a knife, Victim eventually stopped resisting, and Martinez was able to inject the full dose of heroin. Following injection, Victim continued crying and asking for help. Tollardo responded by telling Victim that \\\"he shouldn't have fucked with Diablo.\\\" Defendant told Victim to ask for forgiveness.\\n{10} Once the heroin had taken effect, Defendant, Tollardo, and Trujillo moved Victim onto a tablecloth, at which point Victim began to moan and toss about. Michelle Martinez was of the opinion that sudden movements can potentially jolt an individual out of a heroin overdose, and therefore she instructed Defendant and the others to prevent Victim from moving. Several phone calls were again placed from Anaya's home to Ivan Romero's cell phone.\\n{11} Defendant, Martinez, and Tollardo eventually carried Victim, who at this point was unconscious, to Victim's car, where he was placed in the fully-reclined passenger seat. Defendant sat on top of Victim, and Martinez drove Victim's car to the parking lot of a remote, local church. Once there, Victim again started making noises. In response, Defendant and Martinez tried to kill Victim with other means. Specifically, Defendant tried to snap Victim's neck at least three times, and Martinez tried to suffocate Victim with a plastic shopping bag. When these methods proved ineffective, Defendant removed the shoelace he had been using as a belt and attempted to strangle Victim. This also proved ineffective. Just as Defendant and Martinez were preparing to throw Victim into nearby brush, Tollardo and Trujillo arrived in a separate ear. Defendant and Martinez got into Trujillo's car and the group drove off, leaving Victim alone and unconscious, or barely conscious, in the passenger seat of his car.\\n{12} After stopping at Allsup's, Defendant, Martinez, Tollardo, and Trujillo returned to Elias Romero's shack. As they were driving, Defendant mentioned that fingerprints had been left at the scene and suggested returning to the church to set Victim on fire. When the group arrived at the shack, Elias Romero asked if they had done it, to which they responded in the affirmative. After someone again mentioned burning Victim, Elias Romero instructed Martinez to get some lantern fuel, which she retrieved and placed on a table. Defendant took the fuel and left the shack with Tollardo and Trujillo.\\n{13} After some time, the three returned to the shack bragging about setting Victim on fire. Tollardo said that he had started the blaze with a cherry bomb. They also mentioned driving to the house of Ivan Romero, who paid Defendant, Tollardo, and Trujillo $50 each. Shortly thereafter, all three men left the shack in Trujillo's car. Several hours later, a series of phone calls was placed from Trujillo's residence to Ivan Romero's cell phone and then from Ivan Romero's cell phone to the same house.\\n{14} At trial, Victim's cause of death was attributed to both the drug overdose and the church parking lot fire. Victim's lungs contained residue of smoke and soot, indicating that Victim was still alive when he was set ablaze.\\nDISCUSSION\\nSufficient Evidence of Deliberation to Support First-Degree Murder\\n{15} Defendant claims the record is insufficient to support a first-degree murder conviction. In applying our standard of review, we first \\\" 'view the evidence in the light most favorable to the state, resolving all conflicts . and indulging all permissible inferences . in favor of the verdict.' \\\" State v. Graham, 2005-NMSC-004, \\u00b6 6, 137 N.M. 197, 109 P.3d 285 (quoting State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)). We then \\\" 'determine[ ] whether the evidence, [when] viewed in this manner, could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.'\\\" Id. (quoting State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994)). We are at all times mindful of \\\"the jury's fundamental role as factfinder in our system of justice and the independent responsibility of the courts to ensure that the jury's decisions are supportable by evidence in the record, rather than mere guess or conjecture.\\\" State v. Flores, 2010-NMSC-002, \\u00b6 2, 147 N.M. 542, 226 P.3d 641.\\n{16} Our Legislature has defined first-degree murder as \\\"any kind of willful, deliberate and premeditated killing.\\\" Section 30-2-KAX1).\\n\\\"Deliberate intention\\\" is intention that is \\\"arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action.\\\" [State u] Cunningham, 2000-NMSC-009, \\u00b6 25, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted). We have emphasized that circumstantial evidence alone can amount to substantial evidence. Id. \\u00b6 29; see also [State v] Rojo, 1999-NMSC-001, \\u00b6 23, 126 N.M. 438, 971 P.2d 829. Indeed, \\\"[i]ntent is subjective and is almost always inferred from other facts in the case.... \\\" [State v.] Duran, 2006-NMSC-035, \\u00b6 7-8, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted) (\\\"Deliberate intent may be inferred from the particular circumstances of the killing....\\\").\\nFlores, 2010-NMSC-002, \\u00b6 19, 147 N.M. 542, 226 P.3d 641.\\n{17} To demonstrate that he did not act with the requisite \\\"deliberate intent,\\\" Defendant emphasizes that he was not at Elias Romero's shack when the plot to kill Victim was likely hatched and that there is no direct evidence showing Elias Romero passed along instructions for Defendant to harm Victim in any way. Defendant also argues that, after Trujillo and Tollardo returned to Anaya's home with Michelle Martinez, Martinez immediately pulled out a syringe and injected Victim with heroin, leaving Defendant with no opportunity to weigh the consequences of his actions. Defendant additionally claims that his multiple attempts to kill Victim in the church parking lot were not the legal cause of death and, therefore, do not support his conviction for murder. Even assuming the fire could have been the cause of death, Defendant insists that he did not intend to kill Victim but only meant to destroy incriminating evidence by setting the fire.\\n{18} The State responds that Defendant is engaged in a classic case of \\\"divide-and-conquer,\\\" whereby each piece of evidence is viewed in isolation, ignoring reasonable inferences from the totality of the circumstances that support guilt. See Graham, 2005-NMSC-004, \\u00b6 13, 137 N.M. 197, 109 P.3d 285. We agree with the State.\\n{19} The jury reasonably could have concluded that Defendant possessed a deliberate intent to kill throughout the evening. First, the jury could have determined that Defendant possessed a deliberate intent to kill even before Michelle Martinez arrived at Anaya's home and that his intent continued through Victim's death. Such a finding is supported by the timing of the phone calls placed between Anaya's home and Ivan Romero's cell phone; Defendant's participation in the initial, unprovoked assault; and his subsequent acts of clearing witnesses from the area, covering up evidence of the assault, and preparing the house for subsequent criminal conduct. See State v. Sosa, 2000-NMSC-036, \\u00b6 9, 129 N.M. 767, 14 P.3d 32 (\\\"Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.\\\" (internal quotation marks and citation omitted)).\\n{20} The jury could have also determined that Defendant continued to possess a deliberate intent to kill when Martinez injected Victim with heroin. By this time, Defendant had been standing guard over the bound Victim with a knife while awaiting the return of Tollardo and Trujillo. Defendant continued his menacing conduct as a gloved Martinez struggled to inject the heroin. Then, when Victim began to cry in fear for his life, Defendant taunted him.\\n{21} Defendant's actions at Anaya's home, which actually took place over the course of a few hours, clearly support the jury's conclusion that Defendant had a sufficient opportunity to weigh the consequences of his actions. See id. Of course, Defendant's culpability did not end with the events at Anaya's home. When viewed in the light most favorable to the verdict, Defendant's subsequent conduct in the church parking lot, including his attempt to snap Victim's neck and strangle him with a shoelace, further supports a reasonable finding by the jury that Defendant continued to possess a deliberate intent to kill as the evening unfolded.\\n{22} Defendant's contention that he did not intend to kill Victim when starting the fire is also unavailing. The jury reasonably could have found that Defendant and his co-conspirators knew Victim was alive and returned to the church parking lot to finish the task. Indeed, Martinez testified that Victim was alive when they initially left him in the car at the church parking lot. Furthermore, a forensic pathologist testified that Victim was breathing when the fire started. The jury could have used this evidence to conclude that after several, less-than-suceessful attempts to kill Victim, Defendant, along with Tollardo and Trujillo, returned to the church parking lot with the deliberate intent to finish the job.\\n{23} \\\"Typically, criminal liability is premised upon a defendant's culpable conduct, the actus reus, coupled with a defendant's culpable mental state, the mens rea.\\\" State v. Padilla, 2008-NMSC-006, \\u00b6 12, 143 N.M. 310, 176 P.3d 299; accord United States v. Bailey, 444 U.S. 394, 402, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Here, the forensic pathologist opined that Victim's death was caused by drug intoxication with inhalation of smoke and soot as a \\\"significant contributing condition[ ].\\\" Based on this testimony, the jury reasonably could have concluded that both the heroin overdose and the fire killed Victim. See State v. Simpson, 116 N.M. 768, 772, 867 P.2d 1150, 1154 (1993) (\\\"General principles of criminal law do not require that a defendant's conduct be the sole cause of the crime. Instead, it is only required that the result be proximately caused by, or the natural and probable consequence of, the accused's conduct.\\\" (internal quotation marks and citation omitted)). Substantial evidence in this case supports a finding of \\\"concurrence\\\" between Defendant's actus reus and requisite mens rea for willful, deliberate murder of Victim. See State v. Lopez, 1996-NMSC-036, \\u00b6 23, 122 N.M. 63, 920 P.2d 1017.\\nEvidence of a Conspiracy to Commit IVIurder\\n{24} Defendant claims his conviction for conspiracy to commit first-degree murder is not supported by substantial evidence because, again, he was not present at Elias Romero's shack when the agreement to kill Victim was likely formed. We review this claim for a sufficiency of the evidence. Sanders, 117 N.M. at 456, 872 P.2d at 874.\\n{25} \\\"The gist of conspiracy under the statute is an agreement between two or more persons to commit a felony.\\\" State v. Deaton, 74 N.M. 87, 89, 390 P.2d 966, 967 (1964). \\\"In order to be convicted of conspiracy, the defendant must have the requisite intent to agree and the intent to commit the offense that is the object of the conspiracy.\\\" State v. Varela, 1999-NMSC-045, \\u00b6 42, 128 N.M. 454, 993 P.2d 1280. \\\"It is the agreement constituting the conspiracy which the statute punishes.\\\" State v. Gilbert, 98 N.M. 77, 81, 644 P.2d 1066, 1070 (Ct.App.1982).\\n{26} That Defendant was not physically present at Elias Romero's shack has little bearing on whether he agreed to commit murder, because the State was not required to define the precise moment in time when Defendant entered into a conspiratorial agreement. \\\"A conspiracy may be established by circumstantial evidence. Generally, the agreement is a matter of inference from the facts and circumstances.\\\" State v. Ross, 86 N.M. 212, 214, 521 P.2d 1161, 1163 (Ct. App.1974). \\\"The agreement need not be verbal, but may be shown to exist by acts which demonstrate that the alleged co-conspirator knew of and participated in the scheme.\\\" State v. Trujillo, 2002-NMSC-005, \\u00b6 62, 131 N.M. 709, 42 P.3d 814. \\\"[T]he prosecutor need not prove that each defendant knew all the details, goals or other participants.\\\" United States v. Perez, 280 F.3d 318, 347 (3d Cir.2002). A review of the complete evidentiary record supports a jury finding that Defendant agreed to murder Victim, making it immaterial whether this agreement occurred before Trujillo and Tollardo returned to Anaya's home with Martinez or at some point later that evening.\\nDefendant's Multiple Conspiracy Convictions Constitute Double Jeopardy\\n{27} Defendant argues that he has been improperly convicted of three counts of conspiracy: (1) conspiracy to commit first-degree murder, (2) conspiracy to commit kidnapping, and (3) conspiracy to commit aggravated arson. According to Defendant, his three convictions for violating the same conspiracy statute runs afoul of the prohibition against double jeopardy. The State responds that the existence of one or more conspiracies is purely a factual issue for the jury to decide, one that does not implicate double jeopardy principles. Applying a deferential, sufficiency-of-the-evidence standard, the State relies on substantial evidence to support each of the three conspiracy convictions.\\n{28} We find ourselves squarely faced with a conflict in terms of how our courts should analyze a double jeopardy challenge to multiple conspiracy convictions. Proceeding as the State suggests, with a pure substantial evidence review, would lead almost inevitably to affirmance. There is no doubt that each of the three conspiracy convictions is supported by substantial evidence in the record, but substantial evidence does not address legislative intent. Proceeding as Defendant proposes leads to a more nuanced, analytical review, which acknowledges the court's role in determining whether multiple punishments for violation of the same criminal statute conflicts with legislative intent.\\n{29} Strangely, the question of which body of law to apply to multiple conspiracy convictions has never been directly presented to this Court, and so we are faced with an issue of first impression. State v. Bernal, 2006-NMSC-050, \\u00b6 23,140 N.M. 644,146 P.3d 289; cf. State v. Turner, 2007-NMCA-105, \\u00b6 10-12, 142 N.M. 460, 166 P.3d 1114; State v. Jackson, 116 N.M. 130, 133-34, 860 P.2d 772, 775-76 (Ct.App.1993). Before taking that question head on, we begin with a brief discussion of basic double jeopardy principles.\\n{30} The double jeopardy clause of both the federal and state constitutions affords three levels of protection to a criminal defendant. \\\"Tt protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' \\\" Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). Defendant has been convicted three times of violating the same conspiracy statute, and therefore this is a multiple punishment case.\\n{31} We classify multiple punishment cases in two ways. First, there are \\\" 'double description [cases] in which a single act results in multiple charges under different criminal statutes.' \\\" Bernal, 2006-NMSC-050, \\u00b6 7, 140 N.M. 644, 146 P.3d 289 (quoting Swafford, 112 N.M. at 8, 810 P.2d at 1228). Second, there are \\\"unit of prosecution [cases] in which an individual is convicted of multiple violations of the same criminal statute.\\\" Id. (quoting Swafford, 112 N.M. at 8, 810 P.2d at 1228). This being three convictions under the same conspiracy statute, we apply a unit of prosecution analysis. For unit of prosecution cases, we have previously instructed courts to engage in the following two-step analysis:\\nFirst, we review the statutory language for guidance on the unit of prosecution. State v. Barr, 1999-NMCA-081, \\u00b6 13-14, 127 N.M. 504, 984 P.2d 185. If the statutory-language spells out the unit of prosecution, then we follow the language, and the unit-of-prosecution inquiry is complete. Id. \\u00b6 14. If the language is not clear, then we move to the second step, in which we determine whether a defendant's acts are separated by sufficient \\\"indicia of distinctness\\\" to justify multiple punishments under the same statute. Id. \\u00b6 15. In examining the indicia of distinctness, courts may inquire as to the interests protected by the criminal statute, since the ultimate goal is to determine whether the legislature intended multiple punishments. See State v. Alvarez-Lopez, 2004-NMSC-030, \\u00b6 42, 136 N.M. 309, 98 P.3d 699. If the acts are not sufficiently distinct, then the rule of lenity mandates an interpretation that the legislature did not intend multiple punishments, and a defendant cannot be punished for multiple crimes. Barr, 1999-NMCA-081, \\u00b6 14 [127 N.M. 504, 984 P.2d 185],\\nBernal, 2006-NMSC-050, \\u00b6 14, 140 N.M. 644, 146 P.3d 289.\\n{32} We are mindful that both stages of the unit of prosecution analysis turn on legislative intent. See Herron v. State, 111 N.M. 357, 359, 805 P.2d 624, 626 (1991) (\\\"The issue, though essentially constitutional, becomes one of statutory construction.\\\"). As we have previously recognized, \\\"the only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.\\\" State v. Pierce, 110 N.M. 76, 84-85, 792 P.2d 408, 416-17 (1990) (internal quotation marks and citation omitted); see also Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (The prohibition against multiple punishment \\\"preventfs] the sentencing court from prescribing greater punishment than the legislature intended.\\\").\\n{33} Accordingly, even when analyzing whether an \\\"indicifum] of distinctness\\\" sufficiently separates the acts of the accused to justify multiple punishment, we remain guided by the statute at issue, including its language, history, and purpose, as well as the quantum of punishment that is prescribed. State v. Vallejos, 2000-NMCA-075, \\u00b6 7, 129 N.M. 424, 9 P.3d 668; see also State v. Frazier, 2007-NMSC-032, \\u00b6 50 n. 3, 142 N.M. 120, 164 P.3d 1 (Chavez, C.J., specially concurring) (\\\"[I]f the defendant was charged with multiple violations of the same statute, a unit-of-prosecution case, then the only question to be answered in determining whether two charges are the 'same offense' is whether the defendant's conduct underlying each charge was part of the 'same act or transaction' as defined by the legislature.\\\" (emphasis omitted)).\\n{34} We have not, however, had occasion to apply our unit of prosecution case law to the crime of conspiracy. In fact, as the State suggests, our case law currently treats the question of more than one conspiracy as an issue of fact for the jury, whose determination is reviewed by our courts for a mere sufficiency of the evidence. See Ross, 86 N.M. at 215-16, 521 P.2d at 1164-65. This is the position advocated by the State as the basis for review here. We codified this deferential standard in Sanders, where we wrote the following:\\nThe standard for determining whether one who has conspired to commit a number of crimes is guilty of one or more conspiracies was established in [Ross, 86 N.M. at 214-15, 521 P.2d at 1163-64]. In Ross, our Court of Appeals held that the number of agreements is the focus for determining the number of conspiracies: Where there is one agreement to commit two or more criminal acts, the perpetrators are guilty of a single conspiracy. Because the conspiracy statute, NMSA 1978, Section 30-28-2 (Repl. Pamp. 1984), criminalizes the agreement constituting the conspiracy, [Gilbert, 98 N.M. at 81, 644 P.2d at 1070], the number of agreements to break the law determines the number of criminal conspiracies subject to prosecution. We review the question whether there was one agreement or several under the sufficiency-of-evidence standard set out above. See State v. Hernandez, 104 N.M. 268, 278, 720 P.2d 303, 313 (Ct.App.) (stating that determination of number of conspiracies is fact question for jury; jury findings reviewed under sufficiency-of-evidenee principles), cert. denied, 104 N.M. 201, 718 P.2d 1349 (1986).\\n117 N.M. at 457, 872 P.2d at 875.\\n{35} Neither Sanders nor Boss purports to be a double jeopardy case or makes a conscious decision not to apply double jeopardy principles. It appears that our courts have looked at multiple conspiracies in terms of substantial evidence almost by default. Accordingly, the case before us presents the first opportunity, or at least the first of which we are aware, to bring together both analytical points of view \\u2014 sufficiency of the evidence and multiple punishment/double jeopardy \\u2014 and to determine the proper role for each.\\n{36} Our holding in Sanders is largely based on the United States Supreme Court's opinion in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). The defendants in Braverman were convicted of seven counts of conspiring to violate portions of the U.S. Internal Revenue Code relating to the unlawful production, possession, transportation, and distribution of liquor. Id. at 50 n. 1, 63 S.Ct. 99. The Supreme Court reversed all but one of the seven convictions after the government conceded that the defendants had entered into only one agreement to commit an assortment of crimes. The Court reasoned that \\\"[t]he single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute____For such a violation only the single penalty prescribed by the statute can be imposed.\\\" Id. at 54, 63 S.Ct. 99.\\n{37} Braverman also cautioned against defining a conspiracy in terms of the criminal objects that were intended to be accomplished. Rather, \\\"the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects.\\\" Id. at 53, 63 S.Ct. 99.\\nWhether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.\\nId.\\n{38} While Braverman teaches that the number of prosecutable conspiracies from an evidentiary perspective under the federal conspiracy statute is based on the number of agreements, the opinion does not address how to define the number of agreements and whether this is an issue for the judge or jury. Of course, under the specific facts of Braver-man, there was no need for the Court to engage in such analysis in light of the government's concession. Accordingly, we turn elsewhere \\u2014 to jurisdictions outside New Mexico, both state and federal \\u2014 for guidance on whether the existence of more than one conspiracy is a question of law for the court, or one of fact for the jury to determine.\\n{39} Our review of state cases in this area demonstrates a significant split in authorities. Some states, such as Pennsylvania, have decided that the number of conspiracies is an evidentiary issue for the jury. See, e.g., Wade v. State, 581 So.2d 1255, 1256 (Ala. Crim.App.1991) (\\\"The problem is a factual one and each case is unique.\\\" (internal quotation marks and citation omitted)); People v. Morocco, 191 Cal.App.3d 1449, 1453, 237 Cal. Rptr. 113 (Cal.Ct.App.1987) (\\\"It is well-settled law that the question whether one or multiple conspiracies are present is a question of fact, to be resolved by a properly instructed jury.\\\" (internal quotation marks and citation omitted)); Commonwealth v. Andrews, 564 Pa. 321, 768 A.2d 309, 314 (2001) (\\\"[T]he issue is more properly presented as a challenge to the sufficiency of the evidence, with the facts being reviewed in the light most favorable to the verdict winner.\\\"); Commonwealth v. Marinez, 777 A.2d 1121, 1125-26 (Pa.Super.Ct.2001) (same); Williams v. Commonwealth, 12 Va.App. 912, 407 S.E.2d 319, 322 (1991) (\\\"The question of whether the evidence presented in a single trial establishes the existence of one conspiracy or multiple conspiracies is a factual issue for the jury's determination.\\\").\\n{40} In contrast, other states such as Washington have determined that multiple conspiracies raise double jeopardy con cerns \\u2014 questions of law for the court. See, e.g., State v. Pham, 281 Kan. 1227, 136 P.3d 919, 934-35 (2006) (\\\"[Wjhether convictions are multiplicitous is a question of law subject to unlimited review.\\\"); State v. Day, 925 A.2d 962, 976 (R.I.2007) (\\\"In eases such as this, where a defendant has been charged with multiple conspiracies but only one exists in actuality, in order to safeguard the defendant's constitutional right not to be placed in double jeopardy, he or she should be sentenced with respect to only one of the counts with the other count(s) being dismissed.\\\"); State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340, 352 (1988) (\\\"[T]he defendant's conviction of two conspiracy offenses constituted a violation of the . established double jeopardy principles.\\\"); State v. Bobic, 140 Wash.2d 250, 996 P.2d 610, 617-20 (2000) (explaining that convictions for more than one count of conspiracy is a double jeopardy unit of prosecution problem).\\n{41} A review of federal case law reveals a greater uniformity among the federal circuits than among the states. The federal circuits frame challenges to multiple conspiracy convictions as constitutional matters that must be resolved by the court as a matter of law. See United States v. Singleton, 177 F.Supp.2d 12, 21 (D.D.C.2001); William H. Theis, The Double Jeopardy Defense and Multiple Prosecutions For Conspiracy, 49 SMU L.Rev. 269, 299 n. 159, 306-07 (1996). Federal circuits have adopted this position, in part, because the \\\"[t]he Double Jeopardy Clause prohibits subdivision of a single criminal conspiracy into multiple violations of one conspiracy statute.\\\" United States v. Montgomery, 150 F.3d 983, 989 (9th Cir.1998) (internal quotation marks and citation omitted); see also United States v. Daniels, 857 F.2d 1392, 1393 (10th Cir.1988) (\\\"[I]f two charges of conspiracy are in fact based on a defendant's participation in a single conspiracy, the [double] jeopardy clause bars the second prosecution.\\\").\\n{42} Every federal circuit to have considered this issue, except the Tenth Circuit, applies a multi-factor \\\"totality of the circumstances\\\" test for the court to determine \\\"whether there are two agreements or only one,\\\" and hence several conspiracies or one. United States v. Rigas, 605 F.3d 194, 213 (3d Cir.2010) (internal quotation marks and citation omitted); cf. United States v. Sasser, 974 F.2d 1544, 1549 n. 4 (10th Cir.1992). Among the factors used by the federal circuits to analyze the number of agreements are whether:\\n(a) the [location] of the two alleged conspiracies is the same; (b) there is a significant degree of temporal overlap between the two conspiracies charged; (c) there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted co-conspirators); and (d) the overt acts charged and [(e)] the role played by the defendant . [in the alleged conspiracies are] similar.\\nRigas, 605 F.3d at 213 (first and second alterations in original) (quoting United States v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987)); see Susan R. Klein & Katherine P. Chiarello, Successive Prosecutions and Compound Criminal Statutes: A Functional Test, 77 Tex. L.Rev. 333, 348-49 (1998). The Third Circuit asks several related questions, including \\\"(1) whether there was a common goal among the conspirators; (2) whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and (3) the extent to which the participants overlap in the various dealings.\\\" Rigas, 605 F.3d at 213 (internal quotation marks and citation omitted).\\n{43} With this background in mind, we proceed to the question at hand. Should New Mexico treat multiple conspiracies merely as an issue of evidentiary sufficiency, or should unit of prosecution principles apply as well? First, it is not readily apparent why the crime of conspiracy should remain an outlier from our double jeopardy jurisprudence. We have consistently applied unit of prosecution principles to criminal statutes as far flung as attempt, Bernal, 2006-NMSC-050, \\u00b6 13-31, 140 N.M. 644, 146 P.3d 289; child abuse, State v. Castaneda, 2001-NMCA-052, \\u00b6 12-18, 130 N.M. 679, 30 P.3d 368; and defacing tombs, State v. Morro, 1999-NMCA-118, \\u00b6 7-26, 127 N.M. 763, 987 P.2d 420; and presumably conspiracy should be no different. We are unable to offer any principled basis for isolating conspiracy from all other criminal statutes.\\n{44} Second, given the nature of conspiracy, good reason exists for our courts to take greater precautions and exercise more judicial oversight when presiding over multiple conspiracy prosecutions. We are mindful of former U.S. Supreme Court Justice Robert Jackson's admonition more than sixty years ago:\\nThe modern crime of conspiracy is so vague that it almost defies definition.... It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself.... However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought....\\nKrulewitch v. United States, 336 U.S. 440, 446-49, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring). Numerous scholars have likewise criticized conspiracy as overly vague, such that the nature of the crime creates a distinct advantage for the prosecution over the accused. See 2 Wayne R. La-Fave, Substantive Criminal Law \\u00a7 12.1(b)(1), at 256-57 (2d ed. 2003) (describing the various scholarly critiques of conspiracy law).\\n{45} For instance, \\\"[a] conspiracy is complete when the agreement is reached.\\\" State v. Villalobos, 120 N.M. 694, 697, 905 P.2d 732, 735 (Ct.App.1995); see also State v. Lopez, 2007-NMCA-049, \\u00b6 21, 142 N.M. 613, 168 P.3d 743 (noting that New Mexico does not require proof of an overt act). Yet, \\\"[b]ecause most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement.\\\" 2 LaFave, supra \\u00a7 12.2(a), at 267. The jury may therefore infer the existence of an agreement based on the defendant's conduct and surrounding circumstances, which raises at least the specter of conviction by guess and speculation. See generally Ross, 86 N.M. at 214, 521 P.2d at 1163.\\n{46} Conspiracy is also described as a continuing crime. Villalobos, 120 N.M. at 697, 905 P.2d at 735. \\\"A single conspiracy can last for years, with many of its substantive offenses being completed during that time____\\\" Pham, 136 P.3d at 939. It ends only when \\\"the purposes of the conspiracy have been accomplished or abandoned.\\\" United States v. Eppolito, 543 F.3d 25, 47 (2d Cir.2008) (internal quotation marks and citation omitted). Furthermore, a conspiracy may \\\"mature and expand\\\" over time, adding more members and embracing additional criminal objectives without changing the fundamental nature of the single agreement. See State v. Orgain, 115 N.M. 123, 129, 847 P.2d 1377, 1383 (Ct.App.1993) (Hartz, J., specially concurring) (\\\"[A] single conspiracy may mature and expand as more conspirators and objectives are added.\\\"); see also United, States v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 59 L.Ed. 1211 (1915) (\\\"[A] single conspiracy might have for its object the violation of two or more of the criminal laws.\\\"); Model Penal Code \\u00a7 5.03, cmt. (1985) (\\\"[T]he original agreement subsequently came to 'embrace' additional objects.\\\").\\n{47} These characteristics of conspiracy do not impugn its validity. They do, however, underscore the need for judicial vigilance, since courts are in the best position to assure that multiple conspiracies and their underlying agreements are sufficiently distinct that the accused is not twice placed in jeopardy for the same offense. Given the \\\"inherent dangers\\\" and the \\\"looseness and pliability\\\" of conspiracy noted by Justice Jackson, it is particularly important that the judiciary embrace its unique responsibility to assure the basic fairness and adherence to legislative intent that only the courts can afford.\\n{48} Parenthetically, it is worth observing that the amount of deference our earlier cases granted the jury cannot be justified in light of how the jury is instructed. Under cases such as Ross and Sanders, we review the jury's determination of one or more agreements for sufficiency of the evidence, yet we do not provide the jury with a multiple conspiracy instruction. We do not explain to the jury that each conspiracy conviction must be supported by evidence of a distinct agreement beyond a reasonable doubt. Nor do we provide the jury with guidance on how to differentiate between agreements. Essentially, we have been deferring to the decision of the jury without ever asking the jury the necessary questions.\\n{49} This approach has invited needless confusion. When the jury is not explicitly instructed that multiple conspiracy convictions require multiple agreements, we run the risk'of conflating the existence of multipie conspiracies with the existence of multiple objectives \\u2014 not multiple agreements\\u2014 contrary to the holding in Braverman. See United States v. Mallah, 503 F.2d 971, 985 (2d Cir.1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975) (\\\"Measuring only overt acts provides no protection against carving one larger conspiracy into smaller separate [conspiracies].\\\").\\n{50} Accordingly, whether a defendant has entered into one or more conspiracies inevitably presents a double jeopardy question. Of course, once past the unit of prosecution test, a properly instructed jury must still find, subject to our traditional deferential review, that substantial evidence supports each separate conspiracy.\\n{51} We now turn to the particular facts and circumstances of the case before us and begin our unit of prosecution analysis. As a constitutional matter, our courts apply double jeopardy analysis as a matter of law. State v. Saiz, 2008-NMSC-048, \\u00b6 22, 144 N.M. 663, 191 P.3d 521 (\\\"Double jeopardy presents a question of law, which we review de novo.\\\" (citing Bernal, 2006-NMSC-050, \\u00b6 6, 140 N.M. 644, 146 P.3d 289), abrogated by State v. Belanger, 2009-NMSC-025, \\u00b6 36 n. 1, 146 N.M. 357, 210 P.3d 783); see also State v. Rodriguez, 2006-NMSC-018, \\u00b6 3, 139 N.M. 450, 134 P.3d 737 (\\\"We generally review double jeopardy claims de novo. However, where factual issues are intertwined with the double jeopardy analysis, we review the trial court's fact determinations under a deferential substantial evidence standard of review.\\\" (citations omitted)). The first question we generally ask is whether the \\\"statutory language spells out the unit of prosecution. .\\\" Bernal, 2006-NMSC-050, \\u00b6 14, 140 N.M. 644, 146 P.3d 289. \\\"If the statutory language for [conspiracy] were clear regarding the unit of prosecution, then the language would control, and the . analysis would be complete.\\\" Id. \\u00b6 19. New Mexico's conspiracy statute reads: \\\"Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without this state.\\\" Section 30-28-2. In Subsection B, the appropriate level of punishment has been set at the \\\"highest crime conspired to be committed.\\\" Section 30-28-2(B).\\n{52} While our case law makes clear that the \\\"gist\\\" of any conspiracy is the agreement, the plain language of the statute defines the crime in terms of the act of \\\"combining\\\" without specifically requiring an agreement. While it appears, based on the plain language of the statute, that our Legislature intended to define the unit of prosecution for conspiracy in terms of the number of conspiratorial combinations, case law teaches that the unit of prosecution for conspiracy is more properly framed in terms of an agreement. It is difficult to say what difference there is, if any, between a combination and agreement. However, irrespective of whether we refer to the prosecutable unit as a combination or as an agreement, the statutory language evinces a clear intent on the part of the Legislature to follow the rule set forth in Braverman and reject a definition that focuses on the criminal objectives of the agreement, i.e., the individual crimes that each combination or agreement sets out to accomplish.\\n{53} It is also worth observing that the Legislature in 1979 amended the conspiracy statute to add Subsection B, which prescribes only one increasingly severe punishment for a conspiracy conviction regardless of the number of underlying crimes that may be the objectives of that agreement. Compare \\u00a7 30-28-2(B), with 1963 N.M. Laws, ch. 303, \\u00a7 28-2. The one punishment is calibrated at the level of the \\\"highest crime to be committed\\\" pursuant to the one conspiracy. For example, a conspiracy to commit first-degree murder and other lesser crimes would be punished as one second-degree felony. If the highest level of crime under the conspiracy is a second-degree felony, the conspiracy is punished as a third-degree felony, and so forth. Prior to amendment, conspiracy was punished as a lesser fourth-degree felony no matter how diverse its criminal objects.\\n{54} By amending the statute to set punishment at the highest crime, it is reasonable to assume that the Legislature foresaw that in many, if not most, cases there would be a single combination or agreement, and a single punishment, regardless of how many underlying criminal objectives were envisioned. Indeed, the statute would not contemplate a \\\"highest\\\" penalty unless the Legislature determined that a single conspiracy could encompass committing a multitude of crimes.\\n{55} Based on the foregoing principles, a fair inference to draw from the text, history, and purpose of our conspiracy statute is that the Legislature established what we will call a rebuttable presumption that multiple crimes are the object of only one, overarching, conspiratorial agreement subject to one, severe punishment set at the highest crime conspired to be committed. At trial, the state has an opportunity to overcome the Legislature's presumption of singularity, but doing so requires the state to carry a heavy burden.\\n{56} The totality of the circumstances test utilized by the federal circuits is the best mechanism to determine the exceptional instances in which the Legislature's presumption of singularity may be overcome by demonstrating the existence of more than one conspiracy. This multi-factored approach most appropriately tracks the specific language of our statute and the special considerations that inform the crime of conspiracy.\\n{57} When applied to the case at hand, it becomes clear that the State cannot rebut the presumption that Defendant entered into only one agreement and took part in only one conspiracy. First, the three charged conspiracies involve only one victim. Not only is there one victim, but each charged conspiracy intended to inflict a similar type of harm upon that victim. To be convicted of conspiracy, the jury found that Defendant possessed the intent to commit the substantive offense that was the object of the conspiracy. See Varela, 1999-NMSC-045, \\u00b6 42, 128 N.M. 454, 993 P.2d 1280. For conspiracy to commit kidnapping, the jury found that Defendant \\\"intended to hold [Victim] against [his] will: to inflict death or physical injury.\\\" See \\u00a7 30-4-1. For conspiracy to commit first-degree murder, the jury found that Defendant's \\\"deliberate intent\\\" was to kill Victim. See \\u00a7 30-2-KA). For conspiracy to commit aggravated arson, the jury found that Defendant intended to burn Victim's car, causing him great bodily harm. See \\u00a7 30-17-6. That each charged conspiracy required Defendant and his confederates to contemplate inflicting great bodily harm or death upon the same individual strikes us as \\\"a strong indicator of legislative intent,\\\" Bernal, 2006-NMSC-050, \\u00b6 18, 140 N.M. 644, 146 P.3d 289, to impose no more than one, severe punishment set by statute at the \\\"highest crime to be committed,\\\" \\u00a7 30-28-2(B).\\n{58} The relatively short time frame also supports the existence of one conspiracy. The entire series of events, from the fight at the bar up through the murder by arson, took place between the hours of midnight and seven in the morning of September 7, 2003. While a six-to eight-hour time frame might support a finding of distinctness in the context of other crimes, the time frame for conspiracy depends upon the unique nature of the crime.\\n{59} Conspiracy was criminalized to address \\\"the special and continuing dangers incident to group activity.\\\" 2 LaFave, supra \\u00a7 12.1, at 254. Conspiracy is also an inchoate crime, developed as \\\"a means for preventive intervention against persons who manifest a disposition to criminality\\\" without necessarily ever committing the underlying crime which is the object of the agreement. 2 LaFave, supra \\u00a7 12.1(c), at 263; see also Boyle v. United States, 556 U.S. 938, -, 129 S.Ct. 2237, 2246, 173 L.Ed.2d 1265 (2009) (\\\"[A] conspiracy is an inchoate crime that may be completed in the brief period needed for the formation of the agreement and the commission of a single overt act in furtherance of the conspiracy.\\\").\\n{60} Because the crime is characterized by multiple individuals who have agreed to achieve illegal objectives, a single conspiracy may take longer to develop than crimes such as criminal sexual penetration, robbery, or shooting at a motor vehicle, where group activity is not inherent to the offense and where planning and consensus building are less relevant. Under the facts presented here, we think that the modest time line, which was continuous and undisturbed by any intervening event, strongly suggests that Defendant and his co-conspirators formed one overarching agreement, rather than three distinct agreements, separated by time and space.\\n{61} Another factor that points to the existence of a single conspiratorial combination is that the actions of all conspirators were overlapping and mutually dependent. The same conspirators are implicated in all three charged conspiracies, and without their concerted action and continued communication, none of the substantive crimes would have otherwise taken place.\\n{62} Finally, it is unclear how this Court can meaningfully distinguish between the three charged conspiracies in a way that would justify multiple punishment under the conspiracy statute. For instance, even if we credit Defendant's argument that he was unaware of the plot to murder while taking part in the initial kidnapping, it does not follow that Defendant entered a new combination when he later joined his confederates in their efforts to kill. Such a finding would be contrary to the plain language of our conspiracy statute, which punishes the act of combining with another, not the objects that were to be committed, and contrary to the holding in Braverman, which adopted a similar rationale. That the same agreement evolved over time to embrace a murderous new objective upon the introduction of Michelle Martinez and her heroin overdose did not create a new crime but simply added a new objective to the same criminal combination. Because the objectives of a single agreement may change over time without such changes creating a new agreement, the conspiracy to commit kidnapping should be understood as one aspect of a larger continuous combination that eventually embraced murder as its central objective. Orgain, 115 N.M. at 129, 847 P.2d at 1383 (Hartz, J., specially concurring). Under the terms of our statute, the addition of this objective would justify greater liability, but only insofar as first-degree murder is now the \\\"highest crime conspired to be committed.\\\" Section 30-28-2(B). The agreement, and hence the combination, would remain the same.\\n{63} In a similar sense, the conspiracy to commit aggravated arson is subsumed within the larger agreement. By the time Defendant and Tollardo left Elias Romero's shack to burn Victim alive, there had been numerous attempts on Victim's life, all of which were unsuccessful or not yet fully effective. The fact that Defendant and his hapless confederates decided to light Victim on fire after their previous attempts to kill' \\u2014 a heroin overdose, a broken neck, and strangulation\\u2014 had proven ineffective was not tantamount to forming an additional agreement to kill by use of fire. Their actions did not create a new criminal combination.\\n{64} We are persuaded that this is the type of routine case on which the Legislature clearly intended to impose one punishment. Because the State cannot overcome the strong presumption of singularity embodied in the conspiracy statute, we conclude that the Legislature did not intend to allow multiple punishments in this case. We have held that double jeopardy problems are not cured \\\"by the trial court imposing concurrent sentences for the multiple convictions\\\" because \\\"a separate conviction is itself punishment that has potential adverse consequences.\\\" Barr, 1999-NMCA-081, \\u00b6 12, 127 N.M. 504, 984 P.2d 185 (citing Pierce, 110 N.M. at 87, 792 P.2d at 419). For this reason, the appropriate remedy is to vacate Defendant's redundant convictions with punishment imposed on the single remaining conspiracy at the level of the \\\"highest crime conspired to be committed,\\\" which is a conspiracy to commit first-degree murder. See \\u00a7 30-28-2(B). Accordingly, we remand this case to the district court to vacate Defendant's convictions for conspiracy to commit kidnapping and conspiracy to commit aggravated arson and re-sentence Defendant in a manner consistent with this Opinion.\\nRequest for a Continuance to Secure the Presence of Defense Witnesses\\n{65} Defendant claims the district court erred by refusing to grant a continuance to secure the attendance of two defense witnesses at trial. Those witnesses are Kami Ramsey, a guard at the Cibola County Detention Center during Michelle Martinez's incarceration at that facility, and Surtina Co-hoe, Martinez's former cell mate at the Cibola County facility. The court ultimately read their testimony to the jury in the form of a stipulation which the parties jointly drafted. We review Defendant's claim for an abuse of discretion. See State v. Salazar, 2007-NMSC-004, \\u00b6 10, 141 N.M. 148, 152 P.3d 135 (\\\"The grant or denial of a continuance is within the sound discretion of the trial court, and the burden of establishing abuse of discretion rests with the defendant.\\\").\\n{66} Both parties agree that our opinion in State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20, controls. In Torres, we promulgated a number of factors for courts to consider when evaluating a motion for a continuance. Id. \\u00b6 10. These factors include \\\"the length of the requested delay, the likelihood that a delay would accomplish the movant's objectives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legitimacy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion.\\\" Id.\\n{67} In applying the Toires factors to the present ease, we conclude that the district court did not abuse its discretion in denying Defendant's motion for a continuance. When prompted, defense counsel could not provide the court with an estimate for the amount of time needed to bring either Ramsey or Co-hoe to court. Nor did counsel attempt to explain why granting a continuance would likely result in their ultimate appearance. Regarding the degree of inconvenience, by the time defense counsel motioned the court for a continuance on the third day of the three-day trial, the State had already called its final witness, and one of the two alternate jurors had been excused.\\n{68} The district court properly ascribed fault to defense counsel in creating the need for a delay. The district court raised significant questions about whether the witnesses had been properly subpoenaed. While defense counsel insisted that his investigator was prepared to testify as to service of process, the court's offer of a stipulation was accepted without counsel ever providing proof of service. Regarding Cohoe, even assuming she was properly served, defense counsel did not timely notify the court that Cohoe had failed to appear on the appropriate subpoena date. This was a particularly egregious oversight in light of defense counsel's repeated assurances that Cohoe was reliable and trustworthy and would show up to testify as she promised. The court was justified in holding defense counsel accountable for creating the need for a delay to secure Ramsey's attendance. On the first day of trial, defense counsel refused the court's offer to issue a warrant and admitted that Ramsey's testimony was not sufficiently important to justify any kind of delay.\\n{69} As to the final Torres factor \\u2014 prejudice \\u2014 Defendant argues that Cohoe's live testimony was vital to his defense, as she was prepared to refute Martinez's version of events and undercut her credibility. Despite these contentions, Defendant cannot show how Cohoe's live testimony would have differed from what was presented by stipulation. In addition, as Martinez's cell mate, Cohoe had credibility problems of her own; even her stipulated testimony was subject to character-based impeachment by way of her prior convictions.\\n{70} Finally, Cohoe's testimony was cumulative. The record reveals that defense counsel attacked Martinez's credibility throughout the trial. Specifically, Defendant demonstrated that Martinez had changed her story several times, she had committed numerous crimes of dishonesty, she had accepted a generous plea deal, she had engaged in a litany of related misdeeds, and she had a reputation in jail for lying. In light of the voluminous evidence presented on Martinez's credibility, including the stipulated testimony itself, we cannot conclude that Defendant was prejudiced by his inability to present live testimony from either Ramsey or Cohoe.\\nImprobability of Michelle Martinez's Testimony as a Matter of Law\\n{71} Defendant argues that Michelle Martinez's uncorroborated testimony is inherently improbable as a matter of law. See State v. Trujillo, 60 N.M. 277, 291, 291 P.2d 315, 319 (1955) (\\\"an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable\\\" (internal quotation marks and citation omitted)); State v. Boyd, 84 N.M. 290, 292, 502 P.2d 315, 317 (Ct.App.1972) (\\\"The rule is that testimony is not inherently improbable unless what is claimed to have occurred could not in fact have occurred.\\\").\\n{72} Notwithstanding Defendant's position, any potential inconsistencies in Martinez's testimony or questions regarding her veracity do not justify reversal, since weighing the evidence, like credibility determinations, falls within the \\\"exclusive province of the jury.\\\" Orgain, 115 N.M. at 126, 847 P.2d at 1380. Furthermore, even assuming Martinez's testimony was improbable, the record contains ample evidence that independently corroborates Martinez's version of events.\\nDefendant's Motion for a New Trial\\n{73} The district court denied Defendant's motion for a new trial based on newly discovered evidence. In general, \\\"we will not disturb a trial court's exercise of discretion in denying or granting a motion for a new trial unless there is a manifest abuse of discretion.\\\" See State v. Garcia, 2005-NMSC-038, \\u00b6 7, 138 N.M. 659, 125 P.3d 638. A motion for new trial based on newly discovered evidence may be properly granted where the newly discovered evidence: (1) \\\"will probably change the result if a new trial is granted,\\\" (2) \\\"must have been discovered since the trial,\\\" (3) \\\"could not have been discovered before the trial by the exercise of due diligence,\\\" (4) \\\"must be material,\\\" (5) \\\"must not be merely cumulative, and\\\" (6) \\\"must not be merely impeaching or contradictory.\\\" Id. \\u00b68 (internal quotation marks and citation omitted).\\n{74} The alleged newly discovered evidence is that Michelle Martinez committed perjury at Elias Romero's criminal trial. According to Defendant, Martinez admitted to lying about the color and type of gun that Elias Romero was known to possess. Since the district court did not have access to the transcript of Martinez's perjurious testimony when it denied Defendant's motion for a new trial, Defendant claims that the district court could not have properly evaluated this new evidence. Defendant requests that we order a remand for the district court to conduct a more searching review of Martinez's testimony during Elias Romero's trial.\\n{75} We reject Defendant's claim. Defendant cannot show why the district court needed Elias Romero's trial transcript before it could rule on his motion for a new trial. Defendant never asked the district court to consider the transcript and never disputed the district court's characterization of Martinez's testimony.\\n{76} In any event, the newly discovered evidence fails to satisfy many of the factors set forth in Garcia. First, the newly discovered evidence is not substantive, as Martinez's perjury is \\\"merely impeaching.\\\" In addition, Defendant cannot explain why a new jury would likely reach a different result based on new evidence, when a description of Elias Romero's gun is not material to Defendant's case. Martinez did not admit to lying about Defendant's degree of involvement in the crime. Finally, the newly discovered evidence is cumulative. In light of Defendant's sustained attacks against Martinez at trial, we are unpersuaded that impeaching her credibility with this new act of perjury would have provided the jury with information that it had not already heard.\\n{77} Given the wide latitude we provide to district courts in resolving motions for a new trial based on newly discovered evidence, we cannot conclude that an abuse of discretion occurred on these facts. See State v. Sosa, 1997-NMSC-032, \\u00b6 16, 123 N.M. 564, 943 P.2d 1017 (explaining that motions for a new trial based on newly discovered evidence are \\\"not encouraged\\\" and the \\\"denial of such a motion will only be reversed if the district court has acted arbitrarily, capriciously, or beyond reason\\\").\\nCONCLUSION\\n{78} Accordingly, we affirm in part, reverse in part, and remand to the district court for further proceedings.\\n{79} IT IS SO ORDERED.\\nWE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES and EDWARD L. CH\\u00c1VEZ, Justices.\\n. Under federal case law, the multiple conspiracy issue is occasionally raised in the context of a variance defense. \\\"A variance [defense] arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies.\\\" United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir.2008). Asserting a variance following conviction on a single count of conspiracy permits a defendant to defeat criminal liability by arguing that, although he belonged to multiple uncharged conspiracies, he did not take part in the conspiracy alleged at trial. See United States v. Abbamonte, 759 F.2d 1065, 1068 (2d Cir.1985), overruled on other ground by United States v. Macchia, 41 F.3d 35, 39 (2d Cir.1994). As opposed to double jeopardy claims, the existence of a variance is a question of fact for the jury. See Ninth Circuit Manual of Model Criminal Jury Instructions, Multiple Conspiracies \\u00a7 8.22 (2010 ed.), available at http://207.41.19.15/web/ sdocuments.nsi/ddfcae883f401d45882576f 10066 Ibbb/lc90435a46b389358825773f005e73d 9?OpenDocument; Tenth Circuit Criminal Pattern Jury Instructions No. 2.20 (2005 ed.), available at http: /federalcriminaljuiyinstructions. com/uploads/10th_Circuit_Jury_Instructions_ CriminaL2006_PDF.pdf.\\n. In federal court, multiple conspiracies most frequently present in the context of successive conspiracy prosecutions. See, e.g., United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985); United States v. Dortch, 5 F.3d 1056, 1061-64 (7th Cir.1993). However, the U.S. Supreme Court has repeatedly noted that whether a defendant is subject to multiple punishments for the same offense does not depend upon whether the charges were brought at a single trial or a successive trial. See Frazier, 2007-NMSC-032, 1147 n. 2, 142 N.M. 120, 164 P.3d 1 (Chavez, C.J., specially concurring). \\\"If two offenses are the same . for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.\\\" Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). \\\"We have often noted that the [Double Jeopardy] Clause serves the function of preventing both successive punishment and successive prosecution, but there is no authority . for the proposition that it has different meanings in the two contexts.\\\" United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citations omitted).\\n. One of the federal factors analyzes the nature of the overt acts committed by conspiracy participants. See, e.g., Rigas, 605 F.3d at 213. While New Mexico law does not require the existence of an overt act, our courts may still rely on this factor to help determine whether a defendant entered into one or more conspiratorial agreements.\\n. As we have previously indicated, a reasonable inference that the jury could have drawn from the evidence is that Defendant and his confederates held Victim against his will with the understanding that he was to be killed later that evening. According to this view of the evidence, the conspiracy to commit kidnapping was subsumed within the scheme to kill because an intent to kill was fully formed by the time the kidnapping occurred. In other words, we would be justified in concluding, in the alternative, that the conspiracy to commit kidnapping was a \\\"necessary immediate step\\\" to the conspiracy to commit murder. See Andrews, 768 A.2d at 316-17 (discussing Commonwealth v. Richbourg, 260 Pa.Super. 438, 394 A.2d 1007, 1011 (1978), where a conspiracy to commit robbery was a \\\"necessary intermediate step\\\" to a conspiracy to commit burglary, because the \\\"robbery was committed for the purpose of obtaining keys to a restaurant that was later burglarized\\\").\"}"
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+"{\"id\": \"4250176\", \"name\": \"PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff-Appellee, v. WEED WARRIOR SERVICES and Brenda Etcheverry, Defendants-Appellants\", \"name_abbreviation\": \"Progressive Northwestern Insurance v. Weed Warrior Services\", \"decision_date\": \"2010-10-18\", \"docket_number\": \"No. 32,220\", \"first_page\": \"157\", \"last_page\": 162, \"citations\": \"149 N.M. 157\", \"volume\": \"149\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:11:54.693303+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: CHARLES W. DANIELS, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and EDWARD L. CH\\u00c1VEZ, Justices.\", \"parties\": \"PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff-Appellee, v. WEED WARRIOR SERVICES and Brenda Etcheverry, Defendants-Appellants.\", \"head_matter\": \"2010-NMSC-050\\n245 P.3d 1209\\nPROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff-Appellee, v. WEED WARRIOR SERVICES and Brenda Etcheverry, Defendants-Appellants.\\nNo. 32,220.\\nSupreme Court of New Mexico.\\nOct. 18, 2010.\\nGeorge Wright Weeth, Albuquerque, NM, for Appellants.\\nSimone, Roberts & Weiss, P.A., Meena H. Allen, Albuquerque, NM, for Appellee.\\nModrall, Sperling, Roehl, Harris & Sisk, P.A., Lisa Mann, Jennifer Noya, Albuquerque, NM, for Amici Curiae American Insurance Association and Property Casualty Insurers Association of America.\", \"word_count\": \"2625\", \"char_count\": \"16544\", \"text\": \"OPINION\\nSERNA, Justice.\\n{1} In this case we consider the duty imposed on insurers to offer uninsured/underinsured motorist (UM/UIM) coverage under NMSA 1978, Section 66-5-301 (1983). We answer in the affirmative the question, certified to us by the United States Court of Appeals for the Tenth Circuit, of whether the election by an insured to purchase UM/UIM coverage in an amount less than the policy liability limits constitutes a rejection of the maximum amount of UM/UIM coverage permitted under Section 66-5-301. This Opinion responds to the certified question only; application is discussed in the consolidated cases of Jordan v. Allstate Insurance Co., Romero v. Progressive Northwestern Insurance Co., No. 32,065, and Lucero v. Trujillo, No. 32,203, filed this same day. See Jordan v. Allstate Ins. Co., 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214 (2010).\\nFACTUAL AND PROCEDURAL BACKGROUND\\n{2} Brenda Etcheverry was injured in a car accident and settled her claim against the tortfeasor for his policy limits of $100,000. Progressive Nw. Ins. Co. v. Weed Warrior Servs., 588 F.Supp.2d 1281, 1282 (D.N.M. 2008). Mrs. Etcheverry filed a claim with Progressive Northwestern Insurance Company (Progressive), with whom her husband's company, Weed Warrior Services, insured their vehicles. Id. The Progressive policy included liability limits of $1,000,000 and UM/ UIM coverage of $100,000 for each accident. Id. The United States District Court for the District of New Mexico entered a declaratory judgment in favor of Progressive, because the amount of UM/UIM coverage available under the Progressive policy was offset by the settlement with the tortfeasor. Id. Mrs. Etcheverry was permitted to amend her complaint and argued that the Progressive policy should be reformed to provide UM/ UIM coverage equal to the liability limits of $1,000,000, rather than $100,000, because the purchase of UM/UIM coverage at an amount lower than the liability limits was not evidenced with a written rejection. Id. at 1282, 1284.\\n{3} The district court predicted that this Court would interpret New Mexico law to provide that \\\"the affirmative selection of a level of UM/UIM coverage in an amount less than full liability coverage [does not] constitute[ ] a 'rejection' of coverage such that an insurer must obtain a written waiver of coverage and include it in the policy.\\\" Id. at 1288, Mrs. Etcheverry and Weed Warrior Services appealed the district court's ruling to the Tenth Circuit Court of Appeals, which certified the following question pursuant to Rule 12-607 NMRA and NMSA 1978, Section 39-7-4 (1997):\\nDoes the election to take UM/UIM coverage for less than the general policy liability limits constitute a rejection under the New Mexico uninsured motorist statute, [Section] 66-5-301[]?\\n{4} Although an issue of first impression for this Court, it is not the first time the question has arisen in the federal or state courts of New Mexico. Our Court of Ap peals considered the offer and rejection requirements of UM/UIM coverage in Romero v. Progressive Northwestern Insurance Co., 2010-NMCA-024, 148 N.M. 97, 230 P.3d 844, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055, and reh'g granted, 2010-NMCERT-003, 148 N.M. 560, 240 P.3d 15 (No. 32,065, Mar. 1, 2010). See also Farmers Ins. Co. of Ariz. v. Chen, 2010-NMCA-031, 148 N.M. 151, 231 P.3d 607, cert. granted, 2010-NMCERT-004, 148 N.M. 573, 240 P.3d 660 (No. 32,243, Apr. 1, 2010) ; Lucero v. Trujillo, No. 29,859, slip op., 2010 WL 3968651 (N.M.Ct.App. Jan.7, 2010), cert. granted, 2010-NMCERT-003, 148 N.M. 560, 240 P.3d 15 (No. 32,203, Mar. 1, 2010); Jordan v. Allstate Ins. Co., No. 28,638, slip op., 2009 WL 6634039 (N.M.Ct.App. Oct.29, 2009), cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055, and reh'g granted, 2010-NMCERT-003, 148 N.M. 560, 240 P.3d 15 (No. 32,063, Mar. 1, 2010). The question also was addressed by a federal district court in Farm Bureau Mutual Insurance Co. v. Jameson, 472 F.Supp.2d 1272 (D.N.M. 2006). With the exception of the district court in Mrs. Etcheverry's case, the courts determined that the purchase of UM/UIM coverage in an amount less than the policy's liability limits constitutes a rejection of the maximum amount of UM/UIM coverage statutorily available. Farm Bureau Mut., 472 F.Supp.2d at 1280-81; Romero, 2010-NMCA-024, \\u00b6 24, 148 N.M. 97, 230 P.3d 844. We agree with that conclusion.\\nANALYSIS\\n{5} Section 66-5-301 of the New Mexico statutes governs uninsured and underinsured motorist coverage. The UM/ UIM statute is \\\"intended to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists.\\\" Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990). Subsection A of Section 66-5-301 mandates uninsured motorist coverage:\\nNo motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property of others . shall be delivered or issued for delivery in New Mexico . unless coverage is provided therein or supplemental thereto in minimum limits for bodily injury or death and for injury to or destruction of property . and such higher limits as may be desired by the insured, but up to the limits of liability specified in bodily injury and property damage liability provisions of the insured's policy, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles____\\n(Emphasis added.) The minimum limits are defined in the Mandatory Financial Responsibility Act as $25,000 per person, $50,000 per accident, and $10,000 for property damage. NMSA 1978, \\u00a7 66-5-215(A)(2)-(3) (1983). Underinsured motorist coverage is addressed in Subsection B of Section 66-5-301:\\nThe uninsured motorist coverage described in Subsection A . shall include underinsured motorist coverage for persons protected by an insured's policy____\\\"[Ujnderinsured motorist\\\" means an operator of a motor vehicle . which the sum of the limits of liability under all bodily injury liability insurance applicable at the time of the accident is less than the limits of liability under the insured's uninsured motorist coverage.\\nThe ability of the insured to reject UM/UIM coverage is set forth in Subsection C: \\\"The named insured shall have the right to reject uninsured motorist coverage as described in Subsections A and B____\\\"\\n{6} Our analysis of whether the election to purchase UM/UIM coverage in an amount less than the policy liability limits is a rejection under our insurance laws requires us to construe our UM/UIM statute, a task we undertake de novo. See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, \\u00b6 13, 147 N.M. 678, 228 P.3d 462.\\nWhen deciding a statute's meaning, our goal is to determine and give effect to legislative intent. We do not depart from the plain language of a statute unless we must resolve an ambiguity, correct a mistake or absurdity, or deal with a conflict between different statutory provisions.... [I]n light of the purpose of New Mexico's UM/UIM statute to expand coverage to protect members of the public against uninsured motorists, the statute is interpreted liberally to implement that remedial purpose, and any exception will be strictly construed.\\nId. \\u00b6 14 (internal quotation marks, citations, brackets and ellipsis omitted).\\n{7} This Court in Marckstadt interpreted Section 66-5-301 to determine how a valid rejection of UM/UIM coverage is made. We stated that \\\"the insurer may not exclude UM/UIM coverage from an automobile liability policy unless it has offered it to the insured and the insured has exercised the right to reject the coverage through some positive act.\\\" Marckstadt, 2010-NMSC-001, \\u00b6 15, 147 N.M. 678, 228 P.3d 462 (internal citation omitted). We discussed the importance of offering UM/UIM coverage to the realization of the statute's purpose: \\\"[I]n order for the offer and rejection requirements of Section 66-5-301 to effectuate the policy of expanding UM/UIM coverage, the insurer is required to meaningfully offer such coverage and the insured must knowingly and intelligently act to reject it before it can be excluded from a policy.\\\" Id. \\u00b6 16.\\n{8} Our task is to determine whether the statute imposes the offer and rejection requirements on all levels of UM/UIM coverage: Must insurers \\\"meaningfully offer\\\" the maximum amount of UM/UIM coverage permitted by the statute, e.g., the liability limits of the policy, or does our statute merely require insurers to offer the minimum amount, e.g., $25,000 per person per accident? The only New Mexico case to affirmatively define Section 66-5-301 in terms of its offer requirements is Pielhau v. RLI Insurance Co., 2008-NMCA-099, 144 N.M. 554, 189 P.3d 687. In Pielhau, the Court of Appeals construed the UM/UIM statute in the process of holding that an insurer had no duty to offer UM/UIM coverage as part of an umbrella policy. Id. \\u00b6 19. Pielhau stated that New Mexico's UM/UIM statute is a \\\"minimum liability\\\" statute because \\\"[UM/UIM] coverage is statutorily required only to the minimum amounts set by the legislature. Accordingly, the policy purpose of the statute is met when the insured's underlying automobile coverage provides minimum UM/UIM coverage.\\\" Id. \\u00b6 12 (internal quotation marks and citation omitted).\\n{9} In reaching this conclusion, Pielhau relied on Archunde v. International Surplus Lines Insurance Co., 120 N.M. 724, 905 P.2d 1128 (Ct.App.1995). In Archunde, the Court of Appeals held that Section 66-5-301(A) applied only to automobile insurance policies, and \\\"in an excess policy, there is no statutory requirement mandating the inclusion of such coverage.\\\" Id. at 726, 905 P.2d at 1130. Pielhau's conclusion, that an umbrella policy need not include UM/UIM coverage, was supported by Archunde, and we do not disturb that holding today. Pursuant to the discussion that follows, however, to the extent that Pielhau may be read as holding that our UM/UIM statute directs insurers to offer only the minimum amount of UM/UIM coverage, it is overruled.\\n{10} The requirement that insurers offer UM/UIM coverage in an amount greater than the minimum is apparent from the language of Section 66-5-301. In the Mandatory Financial Responsibility Act, the Legislature determined that $25,000 insurance coverage for injury or death per accident is an adequate amount of coverage. See \\u00a7 66-5-215(A)(l). Section 66-5-301(A) requires that same amount of coverage for UM coverage. Read together, an uninsured motorist is one who does not carry the statutory minimum for liability coverage, or $25,000, and injury caused by such a driver would be covered by the injured individual's UM coverage. Section 66-5-301(B) defines UIM coverage as part of UM coverage. If the tortfeasor carried the statutory minimum of liability insurance and the injured driver carried the statutory minimum of UM/UIM coverage, the injured driver would have no recourse for injuries suffered over the minimum amount of $25,000. The injured driver, though in theory having purchased UIM coverage, would in fact have purchased only UM coverage \\u2014 rendering the inclusion of \\\"UIM\\\" in the statute superfluous. See State ex rel ENMU Regents v. Baca, 2008-NMSC-047, \\u00b6 10, 144 N.M. 530, 189 P.3d 663 (per curiam) (\\\"[W]e refrain from reading statutes in a way that renders provisions superfluous.\\\"). An insured carries UIM coverage only if the UM7UIM limits on her or his policy are greater than the statutory minimum of $25,000.\\n{11} In interpreting statutes, we presume that the Legislature intends the application of the words it uses. See State v. Davis, 2003-NMSC-022, \\u00b6 6, 134 N.M. 172, 74 P.3d 1064. With Section 66-5-301, the Legislature intended to expand UM/UIM coverage, a goal accomplished through the meaningful offer of UM/UIM coverage to insureds. Marckstadt, 2010-NMSC-001, \\u00b6 16, 147 N.M. 678, 228 P.3d 462. As in our example above, the inclusion of UIM coverage in Section 66-5-301 would be meaningless if insurers were not required to offer UM/UIM coverage in an amount more than the statutory minimum, which presumes a certain amount of coverage by the tortfeasor. Subsection C explicitly permits the rejection of UIM coverage; this cannot be done if only the minimum limits of UM coverage are offered by the insurer.\\n{12} The policy behind our UM/UIM statute is consistent with the requirement that the insurer offer the maximum amount of UM/UIM coverage to the insured. The requirement that UM/UIM coverage be offered by insurers is \\\"to encourage insureds to purchase such coverage.\\\" Montano v. Allstate Indem. Co., 2004-NMSC-020, \\u00b6 16, 135 N.M. 681, 92 P.3d 1255. In Montano we discussed the importance of insureds being able to choose the amount of stacking to carry in their auto insurance policies; we stated that mandatory stacking, and thus increased premiums, \\\"could result in some lower-income insureds who own multiple vehicles being effectively 'priced out' of UMI/UIM] coverage.\\\" Id. \\\"The legislature intended that an injured person be compensated to the extent of liability coverage purchased for his or her benefit.\\\" Found. Reserve Ins. Co. v. Marin, 109 N.M. 533, 535, 787 P.2d 452, 454 (1990). From these cases we draw the conclusion that the Legislature intended for drivers to have the option of carrying UM/UIM coverage equal to their policy limits, but that lower levels of UM/ UIM coverage are preferred to none at all for those who affirmatively choose not to carry equal levels of coverage.\\n{13} We reject outright any suggestion that Section 66-5-301 places a burden on the insured to request UM/UIM coverage. See Montano, 2004-NMSC-020, \\u00b6 16, 135 N.M. 681, 92 P.3d 1255 (stating that 66-5-301 \\\"requir[es] insurers to offer UMI/UIM] coverage\\\"). The \\\"right to reject\\\" UM/UIM coverage in amounts equal to liability limits, Marckstadt, 2010-NMSC-001, \\u00b6 15, 147 N.M. 678, 228 P.3d 462, cannot be meaningfully exercised without an offer of those amounts. The courts of New Mexico assume the average purchaser of automobile insurance \\\"will have limited knowledge of insurance law,\\\" and we will not impose on the consumer an expectation that she or he will be able to make an informed decision as to the amount of UM/UIM coverage desired or required without first receiving information from the insurance company. Computer Corner, Inc. v. Fireman's Fund Ins. Co., 2002-NMCA-054, \\u00b6 7, 132 N.M. 264, 46 P.3d 1264.\\n{14} Recalling that Section 66-5-301 is a remedial statute that must be construed liberally, we hold that the offer of UM/UIM coverage must include the maximum amount statutorily available in order to effectuate the policy of the Legislature. As Section 66-5-301 requires insurers to offer UM/UIM coverage up to the liability limits of the policy, it follows that the choice by the insured to purchase any lower amount is a rejection. Adding to what we stated in Marckstadt, we hold that the insurer may not exclude the maximum possible level of UM/UIM coverage in an auto liability policy \\\"unless it has offered it to the insured and the insured has exercised the right to reject the coverage through some positive act.\\\" 2010-NMSC- 001, \\u00b6 15, 147 N.M. 678, 228 P.3d 462 (internal citation omitted).\\nCONCLUSION\\n{15} We conclude that Section 66-5-301 requires an insurer to offer UM/UIM coverage in an amount equal to the liability limits of the policy and that the choice of the insured to purchase any lower amount functions as a rejection of that maximum amount of coverage statutorily possible. Accordingly, we answer the certified question from the Tenth Circuit Court of Appeals in the affirmative.\\n{16} IT IS SO ORDERED.\\nWE CONCUR: CHARLES W. DANIELS, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and EDWARD L. CH\\u00c1VEZ, Justices.\\n. Chen was held in abeyance pending the outcome of this case and Jordan, 2010-NMSC-051, 149 N.M. 162, 245 P.3d 1214.\"}"
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+"{\"id\": \"4651470\", \"name\": \"DEMETRIO PEREZ, Territorial Auditor, Appellant, v. TERRITORY OF NEW MEXICO ex rel. WILLIAM H. WHITEMAN, Appellee\", \"name_abbreviation\": \"Perez v. Territory ex rel. Whiteman\", \"decision_date\": \"1892-08-24\", \"docket_number\": \"No. 474\", \"first_page\": \"618\", \"last_page\": 623, \"citations\": \"6 N.M. 618\", \"volume\": \"6\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:06:42.864186+00:00\", \"provenance\": \"CAP\", \"judges\": \"O\\u2019Brien, O. J., and Seeds and Freeman, JJ., concur.\", \"parties\": \"DEMETRIO PEREZ, Territorial Auditor, Appellant, v. TERRITORY OF NEW MEXICO ex rel. WILLIAM H. WHITEMAN, Appellee.\", \"head_matter\": \"[No. 474.\\nAugust 24, 1892.]\\nDEMETRIO PEREZ, Territorial Auditor, Appellant, v. TERRITORY OF NEW MEXICO ex rel. WILLIAM H. WHITEMAN, Appellee.\\nDistrict Attorneys, Payment of Pees of \\u2014 Act February 26, 1891\\u2014 Construction of Statutes. \\u2014 Held: That clause of the finance bill of February 26, 1891, appropriating $7,000, for the \\u201csalary fund of district attorneys,\\u201d ineludes the fees as well as salaries of such attorneys, and when there is a balance in the' territorial treasury, sufficient for the purpose, it is subject to the payment of such fees.\\nAppeal, from an order directing a peremptory writ of mandamus to issue to compel the territorial auditor to audit a claim for district attorneys\\u2019 fees and draw his warrant upon the treasurer for the payment of the same, from the Second Judicial District Court, Bernalillo County.\\nJudgment affirmed.\\nThe opinion states the facts.\\nEdward L. Bartlett, solicitor general, for the territory.\", \"word_count\": \"1820\", \"char_count\": \"10650\", \"text\": \"McFie, J.\\nOn the eleventh day of May, 1891, the territory, on the relation of William H. Whiteman, filed in the office of the clerk of the Second judicial district, county of Bernalillo, and territory of New Mexico, a petition for a writ of mandamus, alleging, in substance, that said Whiteman had been appointed and duly confirmed as district attorney of the counties of Bernalillo and Yalencia, in said district, and in the discharge of his duties as such there was due him the sum of $230; for fees earned in the prosecution and defense of criminal cases in said district, as provided by law; that he had made a demand upon the auditor for a warrant for the amount, but that said auditor refused to draw a warrant for the amount upon the treasury, and that he still refuses to audit said account and draw said warrant, upon the ground that there is no appropriation made by the legislative assembly to pay fees of district attorneys. The petition further alleges that the legislative assembly of the territory of New Mexico, at its twenty-ninth session, passed an act to provide funds and making appropriations for the forty-second and forty-third fiscal years, and for other purposes, approved February 26, 1891, and that by said act made an appropriation of $7,000 for the payment of district attorneys for the forty-second fiscal year, and the same amount for the forty-third fiscal year. The petitioner further represented that there are eight district attorneys in said territory; that they are entitled by law to receive $500 per annum each as salary; and that the payment of such amounts to each of said district attorneys would make an amount of $4,000, leaving a balance of $3,000 in the territorial treasury, to the credit of the fund provided for district attorneys; and from this fund the petitioner seeks to compel the respondent to audit his account and draw his warrant upon the treasurer, as auditor of said territory, for the payment of the amount due petitioner. Upon this petition the court ordered the alternative writ of mandamus to issue, directing the respondent as such auditor to audit said account and draw said warrant, or show cause why he did not do so. The respondent declined to. audit said account and draw said warrant in response to said writ, and on the eighteenth day of May filed an answer to the same in the nature of showing cause why he did not comply with the writ. The respondent in his answer admits that said Whiteman was district attorney as alleged; that the services were rendered, and that the amount claimed therefor was a proper and legitimate charge under the law, against the territory of New Mexico; admits the presentation to him of a verified account, and his.refusal to audit the same, and draw his warrant on the territorial treasurer for the amount; and places his refusal upon the ground that there was no money available for the payment thereof, and that he was therefore prohibited by law from drawing such warrant, under section 10, chapter 95, Laws, 1891, which is as follows: \\\"Sec. 10. If the auditor of the territory shall draw any warrant on the treasurer of the territory or if the treasurer of the territory shall pay any warrant when there is no money in the treasury in the particular fund for which the warrant is drawn, he shall be liable to a fine of not less than one thousand dollars ($1,000) and imprisonment for not less than one year, and shall be summarily removed from office by the governor.\\\" Respondent further admits that there was an appropriation for the forty-second fiscal year of the sum of $7,000, included in the finance bill, and designated therein as \\\"salary fund for district attorneys.\\\" It is further admitted that the total amount of salary due the several district attorneys for the forty-second fiscal year, would be $4,000, leaving a balance of $3,000, which would be covered into the treasury for the redemption of outstanding warrants, at the close of the fiscal year. The respondent further says in his answer that the said funds provided for in the finance bill were to be raised by specific levies of taxation; that said levies had been made; and further says \\\"that such specific levies were by said law apportioned among ten separate and distinct funds therein provided, among which there were none for the fees of the district attorneys.\\\" Appended to the answer of the respondent is the following certificate of the territorial treasurer:\\n\\\"I, Rufus J. Palen, territorial treasurer of the territory of New Mexico, do hereby certify that the balance on hand of the entire salary fund of the territorial funds of said territory on the 16th day of May, A. D. 1891, is ten thousand, six hundred and four and 35-100 dollars. Witness my hand and seal this 16th day of May, A. D. 1891. Rueus J. Palen,\\n\\\"Treasurer.\\\"\\nTo the answer of the respondent, petitioner filed a demurrer, in which the special causes of demurrer are set up as follows: First. That the twenty-ninth legislative assembly of the territory of New Mexico, in an act approved February 26, 1891, appropriated the sum of $7,000 for the payment of salaries and fees of the district attorneys for the forty-third fiscal year, out of the salary fund. Second. That the appropriation of $7,000 for the payment of salaries and fees of district attorneys for the forty-third fiscal year was the appropriation of money actually in the territorial treasury at the date of said act, and was derived from taxes paid into said treasury during the forty-second fiscal year. The court sustained the demurrer to the answer, and awarded the peremptory writ of mandamus against the respondent. From these pleadings it is clear that the question to be determined is whether the relator was entitled to have his account audited and warrant drawn by the auditor for the amount demanded by him, as fees of district attorneys. The respondent refused to audit the account or issue the warrant, upon the ground that there was no appropriation for the \\\"fees of district attorneys,\\\" although admitting that there were $3,000 in the fund set apart in the finance bill for salaries of district attorneys, and admitting that it was probably the intention of the legislature that the overplus of said fund should be applied in payment of the fees of district attorneys.\\nWe are therefore required to declare the proper construction of that clause of the finance bill appropriating $7,000 for the \\\"salary fund of district attorneys.\\\" On the part of the reia\\u00a301, contention is that the term is broad enough to include both salary and the fees of district attorneys to the extent of the fund provided for district attorneys, that is, that the term should be construed as being equivalent to \\\" comp\\u00e9nsation for district attorneys,\\\" including both salary and fees; while on the part of the respondent the contention is that nothing but the salaries provided by law, excluding fees, are included in the terms. We believe that this clause in the finance bill should be liberally construed. It could not have been the intention of the legislature to appropriate the sum of $7,000 specifically for district attorneys, and make that appropriation in such a manner that only $4,000 of that sum could be paid to them. It is admitted by the respondent that the $3,000 remaining in the fund, after the statutory salaries were paid out of it, would be covered into the treasury, as a general fund for the redemption of outstanding warrants at the close of the fiscal year by operation of law. This shows very clearly that the legislature did not intend by the said act to appropriate $7,000 for district attorneys, and then deprive them of $3,000 of the amount. We think the legislature intended, by the terms used in the finance bill, that the entire amount of $7,000 should be paid to the district attorneys for the compensation due them, either for statutory salary, or for fees, and that, if such compensation did not amount to the full sum appropriated, the balance should be covered into the treasury. The language used in the finance bill is susceptible of such a construction, and is consistent with the evident intention of the legislature. By thus construing this act, it is clear that the relator was entitled to have the account audited, and a warrant drawn upon the treasury for the amount; and the statement of the treasurer shows that there were funds in the hands of the treasurer at the time the answer of the respondent was filed. In view of the law prohibiting the auditor from auditing accounts and drawing his warrant where there are no funds in the treasury to pay them, and in view of the question raised by the answer of the respondent, which was dependent upon a construction of the statute as to whether or not there were funds in the treasury upon which he could properly draw his warrant in favor of the .relator, we can but commend the course of the respondent in refusing to issue the warrant as commanded by the alternative writ, prior to a judicial determination of his right to draw upon this fund. Still, we think the court properly awarded the peremptory writ, and that there was no error in the court's action in doing so. The record shows that the respondent immediately complied with the commands of the peremptory writ, and issued the warrant to the relator. The appeal in this case did not operate as a supersedeas, and hence the money has doubtless been paid. The forty-second fiscal year having expired, and all surplus funds having been covered into the treasury, there seems to remain only a question of costs. The judgment of the court below will therefore be affirmed, at the costs of the respondent.\\nO'Brien, O. J., and Seeds and Freeman, JJ., concur.\"}"
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+"{\"id\": \"4675409\", \"name\": \"TERRITORY OF NEW MEXICO, Appellee, v. J. M. NEWMAN, Appellant\", \"name_abbreviation\": \"Territory of New Mexico v. Newman\", \"decision_date\": \"1905-02-24\", \"docket_number\": \"No. 1084\", \"first_page\": \"98\", \"last_page\": 110, \"citations\": \"13 N.M. 98\", \"volume\": \"13\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:06:34.786190+00:00\", \"provenance\": \"CAP\", \"judges\": \"William J. Mills, C. J., Frank W. Parker, A. J., John E. McFie, A. J., concur.\", \"parties\": \"TERRITORY OF NEW MEXICO, Appellee, v. J. M. NEWMAN, Appellant.\", \"head_matter\": \"[No. 1084,\\nFebruary 24, 1905.]\\nTERRITORY OF NEW MEXICO, Appellee, v. J. M. NEWMAN, Appellant.\\nSYLLABUS.\\nCriminal law; constitutional law;- class legislation.\\n1. In the trial of one charged with practicing medicine without having obtained a license, as required by Chapter 40 of the Session Laws of 1903, an instruction to the jury that there was no evidence to justify conviction on the first and third sub-divisions of Section 6 of said act, as made by the court for the purpose of a trial, and that they should consider only the evidence bearing on the second sub-division, was sufficiently favorable to the defendant.\\n2. The defendant was not entitled to have the jury instructed to return a verdict of not guilty on the ground that there was no evidence to show that he had at any time engaged, or offered to engage in the practice of medicine.\\n3. Chapter 40 of the Session Laws of 1903, is not class legislation within the meaning of the 14th amendment of the constitution of the United States.\\nAppeal from tbe district court of Chaves county, before William H. Pope, Associate Justice.\\nAffirmed.\\nA. J. Nisbet, and J. L. Johnson, for appellant.\\nThe court erred in refusing to instruct the jury to Teturn a verdict of not guilty as requested by counsel for appellant because there was no evidence tending to show that appellant ever at any time engaged or offered to engage in the practice of medicine.\\nBishop\\u2019s New Criminal Procedure, Yol. 1, Sec. 977.\\nChapter 40 of the Session Acts of 1903, is unconstitutional, as being class legislation.\\nState v. McKnight, 131 N. C. 723; 59 L. R. A. 187.\\nOn the unconstitutionality of this statute see also:\\nState v. Biggs, 133 N. C. 720, 64 L. R. A. 139; McAden v. Jenroy, 64 N. C. 801.\\nGeorge W. Prichard, Solicitor General, for appellee.\\nEvery presumption is in favor of the constitutionality of a legislative enactment, and the court will be justified in pronouncing it unconstitutional only when it becomes a manifest usurpation of power.\\nCooper v. Telfair, 4 Dali. (TT. S.) 14; Eletcher v. Peek, 6 Cranch; D. S. 128.\\nThe' wisdom or expediency of a law is a matter entirely for the legislature.\\nFlint River Steam Boat Co. v. Foster, 5 Ga. 194; Germand v. Tacoma, 6 Wash. 365; Perkins v. Phila. 156 Pa. St. 554.\\nNo privilege or immunity has been abridged by the act referred to.\\nSultan v. State, 96 Tenn. 710; Yanzant v. Waddell, 2 Yerg. (Tenn.) 260; Am. and Eng. Eney. of Law, Yol. 10, p. 302.\\nThe constitutionality of statutes regulating the practice of medicine has been frequently upheld as a valid exercise of police power, and not in violation of either federal or state constitutions.\\nDent v. West Yirginia, 129 TJ. S. 114; Ex-parte McNulty, 77 Cal. 164; 2 Am. St. Rep. 257; State v. Creditor, 44 Has. 565; In-re-Chung, Petitioner 9 New Mexico, 130; State v. State, Med. Ex-Board, 32 Minn. 324; State v. Green, 112 Ind. 462; State v. Webster, 150 Ind. 166; People v. Phippin, 70 Mich. 6; Dow-ell v. McBride, 92 Tex. 239.\\nSTATEMENT OP PACTS.\\nThe defendant was indicted October 31st, 19-04, for practicing, or offering to practice medicine without having-obtained a license, as required by'Section 9 of Chapter 40-of the Session Laws of 1903; and was tried and convicted by a jury, November 3rd, 1904; a motion for a new trial was filed in his behalf, and overruled after hearing and on the same day he was sentenced by the court to pay a fine and to be imprisoned, but the sentence to imprisonment was suspended. From said judgment and sentence the defendant appealed. The essential facts of the statute in question appear in the opinion.\", \"word_count\": \"4320\", \"char_count\": \"25154\", \"text\": \"OPINION OP THE COURT.\\nABBOTT, J.\\nWe take up the appellant's objections to the judgment appealed from in the inverse order of their importance; and, first, the claim that it was error to instruct the jury that there was no evidence to warrant a conviction on the first and third subdivisions. of Section 6, of Chapter 40, of the Session Laws of 1903, and that they should take into consideration only the evidence bearing on the second sub-division. The instruction objected to was as follows: \\\"The practice of medicine. . . means (1) to open an office for the practice of medicine, or (2) to announce to the public or to any individual in any way, a desire or willingness, or readiness, to treat the sick or afflicted-, or investigate or diagnose or offer to investigate or diagnose, any physical or mental ailment or disease, of any person, or (3) to suggest, recommend, prescribe or direct for the use of any person any drug, medicine, appliance, or other agency, whether material or not material, for the use, relief or palliation of any ailment or disease of the mind or body, or the cure or relief of any wound, fracture, or bodily injury or deformity, after having received or with the intent to receive therefore, either directly or indirectly any bonus, gift or compensation.\\\"\\nThis instruction seems to us to have been favorable to the defendant rather than otherwise, since it greatly restricted the number of acts which the jury might otherwise have found the defendant committed in violation of the statute. The sub-division complained of was a proper and appropriate one, under the circumstances.'\\nThe appellant objects, further, that by the statute in question a new, unusual and false meaning was given to the phrase \\\"practicing medicine;\\\" that he never engaged or offered to engage in the practice of medicine, that on the contrary the evidence showed him to be a practitioner of a system of drugless healing, and that the legislature could not so extend the meaning of said words \\\"practice of medicine\\\" as to cover and include methods of healing diametrically opposed to the practice of medicine as theretofore commonly understood and defined, and he cites in support of his contention, State of North Carolina v. Biggs, 133 N. C. 720, in which that doctrine is strongly set forth and adopted as the opinion of the court. But it seems to us that the opinion makes the question one of form rather than substance, whereas, it is the thing prohibited, and not the words by which it is described that is alone important. It would perhaps have been possible for the legislature to choose a better phrase under which to group healing methods of all lands, although the use of the expression \\\"practicing medicine\\\" to mean the art of healing is by no means new, but rather a return to the original meaning of the word medical.\\nBut whatever may be thought of the terms in which . the prohibition-of the statute is expressed, there can be no doubt of their meaning, -and the appellant was clearly forbidden to do that which the evidence shows, and he does not deny, that he did, without a license from the board of health provided for by the statute. That it is not claimed, he had, and, if the.statute is valid, he is liable to the penalty imposed by it.\\nThe appellant, however, contends that the statute is invalid; first, if we correctly understand the brief submitted in his behalf, because certain acts are made punishable if done for fee or reward, which otherwise are not prohibited, and generally because it is contrary to the 14th amendment of the constitution of the United States which forbids class legislation. It should be noted at the outset that the statute does not forbid the use of methods which the appellant- says he follows for the cure of disease or any other methods whatever; but only requires that those who prescribe or make use of them in the practice of medicine as defined by the statute shall have qualified' themselves for such practice and received a license as evidence of .such qualification.\\nThat the practice of the art of healing in whatever form and under whatever name it may be followed, is subject to regulation-by legislative enactment, under the police power of the state, is not questioned by the appellant, and, indeed, the principle is so well established that it is no longer open to question. If there were no such rights and regulations it would be necessary to create it for the protection of the public against those who take advantage of the wide spread ignorance which exists in relation to the human organism to impose their useless and often- harmful nostrums, and treatments on those who are, or may be led to believe they are in some way diseased. In Bent v. West Virginia, 132 U. S. 114, Field, J., says:\\n\\\"Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those -subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts' and their relation to each other as well as their in fluence upon the mind. Every one may have occasion to consult him, (the physician). But comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications.\\\" State ex rel. Burrough v. Webster, et al., 150 Ind. 607.\\nIt is equally certain that the right to regulate should be exercised only in the public interest and not to create monopolies, or otherwise to violate those fundamental rights which are secured to all citizens.\\nHave the rights of the appellant been thus infringed by the statute in question ?\\nThat certain acts should be made punishable if done for gain which are not prohibited if done without bad motive, seems to us to be a matter properly within the discretion of the legislature. It may reasonably have been assumed that the public needed no protection against charitable or friendly ministrations in which the elements of good faith and sincerity of belief in the remedies prescribed would naturally be present, and in which greed could have no place.\\nThe appellant further contends that by the statute in question a favored class is created, and that he is prevented from following his calling and is deprived of a valuable right without process of law. This he says is accomplished by requiring him to obtain a license, as a prerequisite to the exercise of his art, from a board composed exclusively of doctors of medicine, whereas he uses no medicine and is in fact a disbeliever in and opposed to the practice of medicine as commonly understood. It is true that the statute commits the licensing power to a board composed of physicians who shall be graduates of some medical school in good standing, but the inclusion under the term \\\"practice of medicine\\\" of what it is made to cover by the statute might reasonably be construed to extend the meaning of the words used to describe the members of the board, in like manner. Whether that view be taken or not, it is certain that the board provided for could be held by the courts to the exercise of its powers in a reasonable and just manner and would have no right to refuse to issue a license to any one merely because of his being a practitioner of some school of healing different from that to which the members of the board belong.\\nThe appellant claims, also, that -the educational qualifications imposed by the statute are not adapted to or required in the simple method of healing which he follows and that they amount to a prohibition of his constitutional right to follow his calling. In an able and exhaustive opinion on the construction of a statute differing in no essential feature frorii the one under consideration, G-illett, X, says, in Parks v. State, 159 Ind. 211; 59 L. R. A. 190: \\\"We think the legislature is the appropriate tribunal to determine' the degree of learning that those who gain a livelihood by seeking to relieve the bodily ailments of .others should posess,\\\" and in Dent. v. West Virginia, supra. it is said: \\\"The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession and attainable bv reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling ox profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to' pursue a lawful vocation.\\\"\\nIt is true that \\\"no impediment should be interposed to the pursuits of any one except as applied to the same pursuits bv others under like circumstances.\\\" Barbier v. Connely, 113 U. S. 27. But the requirements are the same for all who purpose to engage in the practice of medicine as defined by the statute in question, and therefore not open to the objection that any particular class is unduly favored.\\nWilliam J. Mills, C. J., Frank W. Parker, A. J., John E. McFie, A. J., concur.\\nMann, -A. J., dissents.\\nPope, A. J., having heard the case below did not participate in this decision.\"}"
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+"{\"id\": \"4694579\", \"name\": \"MARY BELLE WHITEHILL, Appellee, v. VICTORIO LAND & CATTLE COMPANY, Appellant\", \"name_abbreviation\": \"Whitehill v. Victorio Land & Cattle Co.\", \"decision_date\": \"1914-01-12\", \"docket_number\": \"No. 1586\", \"first_page\": \"520\", \"last_page\": 531, \"citations\": \"18 N.M. 520\", \"volume\": \"18\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:35:56.275097+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARY BELLE WHITEHILL, Appellee, v. VICTORIO LAND & CATTLE COMPANY, Appellant.\", \"head_matter\": \"(No. 1586,\\nJanuary 12, 1914.)\\nMARY BELLE WHITEHILL, Appellee, v. VICTORIO LAND & CATTLE COMPANY, Appellant.\\nSYLLABUS (BY THE COURT)\\n1. An attempted exercise of jurisdiction by the land department in the acceptance of an entry, including lands reserved from entry by the government, where the reservation from entry appears as a matter of record in the land office, is void, as to the lands reserved, for the reason that it is an assumption of power in excess of its jurisdiction, and the same can be shown by a defendant in an action at law.\\nP. 531\\nAppeal from the District Court of Luna County; Colin Neblett, District Judge;\\nreversed and new trial granted.\\nWilson & Walton, Silver City, N. M., for appellant.\\nCourt erred in refusing to instruct the jury that plaintiff could not recover for injuries to that portion of the land covered by plaintiff\\u2019s desert entry which was can-celled Scott v. Carew, 196 H. S. 100; Doolan v. Carr, 125 D. S. 618; Burfenning v. Chicago, etc., By. Co., 163 L. S. 321; Morton v. Nebraska, 21 Wall. 660; Lake Superior, etc., Co. v. Cunningham, 155 D. S. 354; Grisar v. McDowell, 6 Wall. 363; Kraus v. Congdon, 161 Fed. Bep. 18.\\nJames S. Fielder, Deming, N. M., for appellee.\\nFencing of lands. Session Laws 1909, chap. 70.\\nFencing laws have no application where cattle are driven upon unfenced land in order that they may feed there. Light v. Dnited States, 220 U. S. 537; Lazarus v. Phelps, 152 IJ. S. 81; Monroe v. Cannon, 24 Mont. 316; St. Louis Cattle Co. v. Vaught, 1 Tex. App. 388; Dnion Pac v. BoJlins, 5 Kans. 165.\\nThe granting or refusal of a motion for new trial, being addressed to the sound discretion of the trial court, will not, unless it plainly appears that such discretion has been abused, be reviewed on appeal. Duncan v. Holder, IS N. M. 323. \\u25a0\\nAppellate court will not disturb a verdict where there is substantial evidence to support it. Territory v. Clark, 13 N. M. 353.\\nAn entry of land, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the Public Domain, and appropriate it to private use; and even though the entry may be in fact invalid, no lawful entry or settlement can be made on the land by another person. 32 Cyc. 808, et seq.; Holy v. Murphv, 207 U. S. 407; McMichael-v. Hnited States, 197 H. S. 304; 32 Cyc. 818; H. S. v. Waddell, 112 H. S. 76; Stearns v. U. S., 152 Fed. 900; Wormouth v. Gardner, 105 Cal. 149; Hodges v. Colcord, 12 Okla. 313.\\nUntil the entryman has become entitled to a patent, he has no vested rights in the land as against the United States, such as will deprive Congress of the right to dispose of the land otherwise than by a patent to him. 32 Cyc. 817: Campbell v. Wade, 132 U. S. 34.\\nAs against defendant, plaintiff\\u2019s title was perfect at the time of the trespass committed by defendant. Holt v. Murphjn 207 U. S. 407; McMichael v. Murphy, 197 U. S. 304; Hartman v. Warren, 70 Fed. 946; Germania Iron Co. v. .Tames, 89 Fed. 811.\\nSTATEMENT OF FACTS.\\nThis was an action brought by Mary Belle Whitehall,, appellee, against the Yictorio Land & Cattle Company, appellant, in the District Court of Luna Countjr, for the recovery of damages for trespass by cattle upon certain lands claimed by appellee, in Grant County, under a desert land entry. The desert entry being for the Southeast Quarter of the Northwest Quarter, and the Southeast Quarter of Section Twelve, in Township Twenty, South of Range Twelve West, and Lots numbered Three and Four in Section Seven, and Lot numbered One in Section Eighteen, in Township Twenty South, Eange Eleven West, (being 318.25 acres.)\\nThe complaint alleged residence of the plaintiff, corporate capacity, domicile and place of business of the defendant, and appellant herein, and further alleged possession of the lands described by plaintiff; that the defendant between July 20 and August 4, 1911, did wrongfullly and without right or authority and against the will and protest of the plaintiff, cause and allow a large number of its - cattle to go upon the lands described, and tread down, eat and destroy grass then growing thereon, to the damage of the plaintiff in the sum of $3200, for which she prayed judgment.\\nThe defendant, appellant here, answering, denied knowledge or information, sufficient to form a belief, as to the ownership and right to the possession in plaintiff of the lands described, and denial of the trespass alleged; and further answering, set up that the lands were unfenced, that the defendant had no knowledge of plaintiff\\u2019s claim to the land, and was the owner of a large number of cattle then ranging upon the public domain of the United States. Plaintiff, by way of reply, denied all new matter in the defendant\\u2019s answer.\\nThe cause being tried to a jury, resulted in a verdict for plaintiff, assessing her damages at $1591.25.\\nThe testimony showed that on May 6, 1911, plaintiff, Mary Belle Whitehall, filed her desert entry declaration in the United States Land Office, at Las Cruces, New Mexico, for the land within described, at which time a portion of said land, to-wit: the Northeast-Quarter'of the Northeast Quarter, being lot One in Section Eighteen, Township Twenty South, Eange Eleven West, had been reserved by lire government of the United States, for which reason this portion of the desert land entry was subsequently cancelled by letter of October 17, 1911. The trespass complained of in the complaint, and for which damages was sought according to the testimony, occurred between the 20th day of July and-the 4th day of August, 1911.\", \"word_count\": \"3940\", \"char_count\": \"22310\", \"text\": \"OPINION OP THE COURT.\\nHANNA, J.\\nThe first error assigned and presented for the consideration of this Court is based upon a refusal of the District Court to instruct the jury that plaintiff could not recover for injuries to that portion of the land, covered by plaintiff's desert entry, which-was subsequently cancelled. It appears from the record that, prior to the time when plaintiff filed her desert land entry declaration in the local land office, a forty-acre tract included in her entry had been reserved from entry by the government-Subsequent to her entry, plaintiff was cited to show cause why that portion of her entry should not be cancelled, and failing to make a showing, the entry was cancelled as to the forty acres in question, but not until after the trespass complained of in this action.\\nIt is contended by the appellant that the sub-division \\u2022of plaintiff's entry not being subject to entry, the receiving and allowing of entry by officers of the local land office was without authority, and, therefore, void.\\nOn the other hand,, appellee contends that an entry of land valid on its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and appropriate it to private use; and even though the entry may be in fact invalid, no lawful-entry or settlement can be made on the land by another person.\\nWith this contention we -agree, and we find the principle supported by the following well considered authorities: James v. Ger. Iron Co., 107 Fed. 597; Hasting & Etc. Railroad Co. v. Whitney, 132 U. S. 357; Parsons v. Yenzke, 164 U. S. 89; Hodges v. Colcord, 193 U. S. 192; McMichael v. Murphy, 197 U. S. 304; Holt v. Murphy, 207 U. S. 407.\\nWe do not overlook appellant's contention that the rule, referred to, is applicable only to cases where the entries or filings are valid when made, or at least are only voidable by reason of facts not apparent upon the records; and, that, in the case under present consideration, the same records by which were proved the making of the entry showed a portion of the land included therein had been theretofore reserved, for which reason the land was not subject to entry and as to the portion reserved the entry was void.\\nThe record in this case is not clear as to the character of reservation, or withdrawal from entry, which the subdivision of land included within the desert entry had been subjected to.\\nThe language is that the land had been reserved from \\u2022entry- by the government of the United States. We are not to consider the question -as one arising between the government and the entryman, but as affecting the status of the entry at the time of the alleged trespass by appellant. It would seem to.turn upon the point of whether a portion of the entry was void or only voidable, by reason of the pre-existing reservation. -. It is apparent that the officials of the land office have, in the matter of the cancellation of that portion of the entry cancelled, pur sued a course which it may be argued recognized the entry as one of prima facie validity. The withdrawal of the land was a fact peculiarly within the knowledge of the officials of the land office. The fact that the officers of the land office were in error in overlooking an order of withdrawal of the land from entry, would not, as a matter of' first impression, make the entry void, but rather voidable, upon the question being raised by the party entitled to> raise it, i. e., the government.\\nThe cases cited, supra, are those where latent defects exist. The entry being so far as could be known, at tile time of its making, prima facie valid, but investigation subsequently developing that the entryman was disqualified to make the entry, or had perpetrated fraud, conditions to lie discovered by evidence dehors the record, and being essentially questions of fact.\\nIt has long been settled that as to matters of fact, within the scope of the authority of the officers of the Land Department of the Dnited States, their findings must bn taken as conclusive in the absence of fraud and mistake,, upon the principle of estoppel by former adjudication. Johnson v. Towsley, 13 Wall. 12; Moore v. Robbins, 96 U. S. 530. Smelting Co. v. Kemp, 104 U. S. 936; Sanford v. Sanford, 19 Or. 3, 13 Pac. 602.\\nIf the reservation of the land in question from entry is a question of fact to be determined by the land officials, then the District Court would be concluded by the findings of the officials, as evidenced by the acceptance of the' entiy, and no error could now be predicated upon the refusal of that court to instruct the jury that plaintiff could not recover for injuries to that portion-of the land reserved, from entry.\\nIf the reservation from entry, however, deprived the officials of all jurisdiction over the land, and left them devoid of authority to consider a filing upon the land reserved, then the acceptance of the entry would be without jurisdiction and absolutely void, all of which could be inquired into in an action at law.\\nNo cases in point have been cited, nor have we been able to find any, where the facts were analogous to those- now before us. Appellant lias cited the case of Burfenning v. Chicago, St. P., etc., Ry. Co., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 176, where the United States Supreme Court, speaking by Mr. Justice Brewer, said:\\n\\\"It has undoubtedly been affirmed over and over again that in die administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the Land Department, one way or the other, in reference to these questions is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be reexamined. Johnson v. Towsley, 13 Wall. 73; Smelting Company v. Kemp, 104 U. S. 636; Steel v. Smelting Company, 106 U. S. 447; Wright v. Roseberry, 121 U. S. 488; Heath v. Wallace, 138 U. S. 573; McCormick v. Hayes, 159 U. S. 333.\\n\\\"But it is also equally true that when by Act of Congress a tract of land has been reserved from homestead and preemption, or dedicated to any special purpose, proceedings in the Land Department in defiance of such reservation or dedication, although culminating in a patent, transfer no title, and may be challenged in an action at law. In .other words, the action of the Land Department cannot override the expressed will of Congress, or convey away public lands in disregard or defiance thereof. Smelting Co. v. Kemp, 104 U. S. 636-646; Wright v. Roseberry, 121 U. S. 488, 519; Doolan v. Carr, 125 U. S. 618; Davis' Admr. v. Weibbold, 139 U. S. 507, 539; Knight v. U. S. Land Assn., 143 U. S. 161.\\\"\\nIt is to be noted that the illustrations given of the rule by Mr. Justice Brewer, were specifically limited to cases not presenting facts resting on record, which is not a condition in the present case, the records of the land office, in this instance, showing a reservation.. Were the present case one where a reservation had been made by Act of \\u2022Congress, there would be no question but the authorities last cited would be analogous and controlling upon this Court. What distinction can there be, however, as a matter of principle, between a reservation from homestead of certain lands by Act of Congress and a reservation from entry of lands by executive proclamation or departm\\u00e9ntal withdrawal? Is not the jurisdiction of the Land Department as effectively cut off in the one case as in the other?\\nIn the case of the New Dunderberg Min. Co. v. Old, 79 Fed. 602, speaking of the jurisdiction of the Land Department, the Court said:\\n\\\"Jurisdiction of the subject matter is the power to deal with the general abstract question. The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry, not whether its conclusion in the course of it is right or wrong.\\\"\\nOur inquiry is thus, limited to the question of the power of the local land office officials to accept and give validity to an entry upon lands reserved from entry by the government, where the reservation is shown upon the records of the land office.- A case more nearly in point than all others we have examined, is Morton v. Nebraska, 21 Wall. 660, cited in the Burfenning case, where the facts disclose that patent had issued for saline lands, noted as such on the field books, although the notes thereof had not been transferred to the register's general plats. It is true that known salines were reserved from entry by Act of Congress, but the character of the land was a matter of record in the land office as the fact of the reservation in this case was a matter of the record.\\nThe Supreme Court said in the case last cited, (Morton v. Neb.),\\n\\\"It does not strengthen the case of the plaintiffs that they obtained certificates of entry, and that patents were subsequently issued on these certificates. It has been repeatedly decided by this Court that patents for lands which have been previously granted, reserved for sale, or appropriated, are void. The executive officers had no authority to issue a patent for the lands in controversy, because they were not subject to entry, having been previously reserved, and this want of power may be proved by a defendant in an action at law.\\\" .\\nThe Supreme Court of the United States, in the Burfenning case, supra, said, in commenting on the Morton v. Neb. case:\\n\\\"It will be observed that the records disclosed that the-lands were saline lands when the proceedings in the Land Department were had. So the case was not one in which the department determined a fact upon parol evidence,, but one in which it acted in disregard of an established and recorded fact.\\\"\\nThus it is to be observed that if the decision as to-whether lands were salines rested upon parol evidence the first principle and rule should apply and the conclusion of the land officers would be final, whereas if the character of the lands had been determined and was disclosed by the-record there would be a failure of jurisdiction and a want of power which might be proved by a defendant in an action at law.\\nIn another case, Davis' Administrator v. Weibbold, 139 U. S. 507-529, we find an expression of opinion by Mr. Justice Field as to the conclusiveness of the patents of theLqnd Department when assailed collaterally in actions at law. Justice Field said:\\n\\\"We have had occasion to assert their unassailability in such cases in the strongest term\\u00a3, both in Smelting Co. v. Kemp, 104 U. S. 636, 640-646, and in Steel v. Smelting Co., 106 U. S. 447, 451, 452. They are conclusive in such actions of all matters of fact necessary to their issue, where the department had jurisdiction to act upon such matters, and to determine them; but if the lands patented were not-at the time public property, having been previously disposed of, or no provision had been made for their sale, or other disposition, or they had been reserved from sal\\u00e9, the-department had no jurisdiction to transfer the land, and their attempted conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed.\\\" See, also, Knight v. U. S. Land Ass'n, 142 U. S. 161-176.\\nWhile it is true we are not concerned with a patent, in this case, we do not consider that an entry can be held to have any greater validity than would a patent which might be subsequently issued and based upon such entry.\\nJudge Sanborn, in the case of United States v. Winona & St. P. R. Co., 67 Fed. 948, 959, after reviewing numerous authorities illustrating the distinction between the case in which the Land Department has acted upon a subject matter within and one without its jurisdiction, said:\\n\\\"A careful study and analysis of these decisions will show that none of them are inconsistent with the following rules: (1) A patent or certificate of the land department to land, over which that department has no power of disposition and no jurisdiction to determine the claims of applicants for, under the acts of Congress, is absolutely void, and conveys no title whatever. Land the title to which had passed from the government to'another party before the claim on which the patent was based was initiated, land reserved from sale and disposition for military and other like purposes, land reserved by a claim under a Mexican or Spanish grant sub judice, and land for the disposition of which the acts of Congress have made no provision, is of this character. Polk v. Wendal, 9 Cranch. 87, and cases cited under it supra. (2) A patent or certificate of the Land Department to land over which that department has the power of disposition and the jurisdiction to determine the claims of applicants for, under the Acts of Congress, ,is impregnable to collateral attack, whether the decision of the department is right or wrong, and it conveys the legal title to the patentee or to the party named as entitled to that title in the patent or certificate. Minter v. Crommelin, 18 How. 87, 89, and cases cited under it supra. (3) A court of equity may, in a direct proceeding for that purpose, set aside such a patent or certificate, or declare the legal title under it to be beld in trust for one who has a better right to it, in cases in which the action of the Land Department has resulted from fraud, mistake, or erroneous views of the law. Bogan v. Mortgage Co., 11 C. C. A. 128, 63 Fed. 192, 195; Cunningham v. Ashley, 14 How. 377; Barnard's Heirs v. Ashley's Heirs, 18 How. 43; Garland v. Winn, 20 How. 6; Lytle v. State, 22 How. 193; Lindsey v. Hawes, 2 Blank 554, 562; Johnson v. Towsley, 13 Wall. 72, 85; Moore v. Robbins, 96 U. S. 538; Bernier v. Bernier, 147 U. S. 242. 13 Sup. Ct. 244; Mullan v. U. S., 118 U. S. 271, 278, 279, 6 Sup. Ct. 1041; Moffat v. U. S., 112 U. S. 24, 5 Sup. Ct. 10.\\\"\\nThe question now under consideration was referred to by Mr. Justice Field in Smelting Co. v. Kemp, 104 U. S. 636, at 641, where he said:\\n\\\"Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a ease where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the Hnited States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction hr transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.\\\"\\nIn a proceeding, entitled 'John Campbell,\\\" before the Secretary of the Interior, (6 L. Dec. 317), it was held that\\n\\\"The President is vested with general authority in the matter of reserving land for public uses, and land so set apart is not subject to disposition under the public land laws during the existence of such reservation.\\\" See also John C. Irwin, 6 L. D. 585.\\nIt is a settled rule of decision in the Federal courts that so long as an executive withdrawal of public lands continues in force, the lands covered thereby are not subject to entry, and no lawful settlement on them can be acquired. Wolsey v. Chapman, 101 U. S. 768; Bullard v. Railroad, 122 U. S. 167; Spencer v. McDougal, 159 U. S. 62.\\nIn conclusion, therefore, we are of the opinion that an attempted exercise of jurisdiction by the Land De~ partment in the acceptance of an entry, including lands reserved from entry by the government, where the reservation from entry appears as a matter of record in the land office, is void, as to the lands reserved, for the reason that it. is an assumption of power in excess of, its jurisdiction, and the same can be shown by a defendant in an action at law.\\nWe conclude that the District Court committed error in refusing the instruction asked by appellant. Our conclusion makes it unnecessary to pass upon the remaining assignment of errors.\\nThe judgment of the lower court is, therefore, reversed, and a new trial granted.\"}"
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+"{\"id\": \"4694861\", \"name\": \"PAUBLITA CANDELARIA, et al., appellees, v. EPIMENIO A. MIERA, appellant\", \"name_abbreviation\": \"Candelaria v. Miera\", \"decision_date\": \"1913-07-25\", \"docket_number\": \"No. 1501\", \"first_page\": \"107\", \"last_page\": 119, \"citations\": \"18 N.M. 107\", \"volume\": \"18\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:35:56.275097+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PAUBLITA CANDELARIA, et al., appellees, v. EPIMENIO A. MIERA, appellant.\", \"head_matter\": \"[No. 1501,\\nJuly 25, 1913.]\\nPAUBLITA CANDELARIA, et al., appellees, v. EPIMENIO A. MIERA, appellant.\\nSYLLABUS (BY THE COURT)\\n1. A defendant may not as a matter of right introduce a new cause of action by way of counter claim by means of a trial amendment.\\nP. 115\\n2. A testamentary trustee, where he is negligent or unfaithful, is responsible for the amount the property coming into his hands ought to have yielded.\\nP. 117\\n3-, Where the report of an executor is so imperfect, partial and misleading as to amount to a fraud in law, items in said report may be re-examined by a court of equity notwithstanding the prior approval of the Probate Court.\\nP. 118\\n4. Monies received from the sales of possessory rights to real estate, even if said sales were void, must be accounted for by the Executor.\\nP. 119\\nAppeal from the District Court of Sandoval County; Herbert F. Raynolds, District Judge;\\naffirmed.\\nA. A. Sedillo, Albuquerque, N. M., for appellant.\\nCourt erred in excluding evidence in support of items of counter-claim. Amendment C. L. 1897, sec. 2685, sub-secs. 85 and 94; Perea v. Gallegos, 5 N. M. 110; Brown v. Gise, 14 N. M. 282; Friday v. Railway, 16 N. M. 437 and 438.\\nFormer adjudications are not res judicata as to items of counter-claim. 1 Van Fleet\\u2019s Former Adjudications, sec. 1, p. 2; 2 Black on Judgment, sec. 611; 1 Van Fleet\\u2019s Former Adjudication, sec. 2, p. 27; Belden v. State, 103 N. Y. 1, 8 N. E. 363; Lindauex v. Mercantile Co. v. Boyd, 11 N. M. 475; 21 Am. & Eng. Ene. L. (1st ed.) 227; 2 Bouv. L. Die. 551; 37 Cyc. 342; 2 Black on Judgments, sec. 610; Trammell v. Thorman, 17 Ark. 203; 10 Enc. of H. S. Rep. 736; Kennedy v. Scovial, 14 Conn. 61; Eaton & H. R. Co. v. Hunt, 20 Ind. 557; Garrot v. Johnson, 35 Am. Dec. 272, (Md.); Tajdor v. Dustin, 43 N. H. 493; Richmond v. Hayes, 3 N. J. L. (2 Penning) 84; Maybee v. Avery, 18 Johns. 352; Same Party v. Dickerson, 85 N. Y. 435, 39 Am. Rep. 663; Horton v. Hamilton, 20 Tex. 606; King v. Chase, 15 N. E. 9, 41 Am. Dec. 675; Met-calf v. Gillmore, 60 N. H. 174; Oglesby v. Attrill, 20 Fed. 570; Faires v. McClellan, 24 S. W. 365; Aiken v. Peak, 22 Vt. 255; Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354; Hunt v. Collins, 4 la. (4 Coles) 56; Henry v. Davis, 13 W. V. 230; Duncan v. Holcomb, 26 Ind. 278; Height v. City of Keokuk, 4 Iowa 199; Ferra v. Chavot, 63 Cal. 564; Van Camp v. Fowler, 133 N. Y. 600, 30 N. E. 1147; In re Wright, 6 N. Y. Sup. 773; Crandall v. Gallup, 12 Conn. 365; In re Wilcox, 11 C. C. Rep. 115; Clark v. Blair, 14 Fed. 812; Untereiner v. Shapard, 23 So. 219, 52 La. An. 1809; Parks v. Libby, 37 Atl. 357; Jackson v. Thompson, 64 Atl. 421, 215 Pa. St. 209; Selbie v. Graham, 100 N. W. 65, 18 S. D. 365; American Cotton Co. v. Iieierman & Co., 83 S. W. 845, 37 Tex. App. 312; Hubbard Mill Co. v. Roche, 113 111. App. 602; Prall y. Prall,. 50 So. 867, 58 Fla. 496; McKinnison v. Johnson, 52 So. 88; Kean v. Pittsburg Lead Min. Co., 105 Pac. 60, 17 Idaho 179; LeRoy v. Collins, 130 N W. 635; Smith v. Town of Ontario, 4 Fed. 386; 23 Cyc. 1204 and cases-cited; 2 Black on Judgments (2nd ed.) sec. 617 and cases cited; 23 Cyc. 1523 and cases cited; Ortiz v. Bank, 12 N M. 519; McLean v. Baldwin, 69 Pac. 259 (Cal.); Boston & C. Smelting Co. v. Reed, (Col.) 48 Pac. 515; Sumner y. Sumner, (Ga.) 48 S. E. 727; Henderson v. Scott, 37 Hun. 412;\\u2019Willis v. McKinnon, 70 N E. 962; Interstate' National Bank v. Clayton, (Tex.) 77 S. W. 44, 65 L. R. A. 820; Evans v. Woodsworth, (111.) 72 N. E. 1082.\\nCounterclaim. 18 Cyc. 563 and cases cited; Peter v. Beverly, 10 Pet. 466, 9 L. 522; Oheever v.- Ellis, (Mich.) 108, N. W. 392; Roberts v. Bartlett, 26 Mo. App. 316; Martin v. Foster, 38 Ala. 688; Woods v. Ridley, 27 Mass. (5 Cush.) 119; Doty v. Cox, (Ky.) 22 S. W. 321; Clayton v. Somers, 277 N. Y. Eq. (12 C. E. Green) 230; Mc-Kenehan v. Crawford\\u2019s Exec., 29 Pa. St. 390; Hill v. Buford, 9 Mo. 886; Milan v. Ragland, 19 Ala. 85; Roberts v. Bartlett, 26 Mo. App. 611; Livingston v. Newkirk, 3 Johns. Ch. 312; Appeal of Kost, 107 Pa. St. 143; Manson v. Duncanson, 166 H. S. 533; 41 L. 1105; Swift v. Harley, (Ind.) 49 N. E. 1069; In re Woolsey\\u2019s Est., (N. J.) 59 Atl- 463; In re Meagley\\u2019s Est., 56 N. Y. Sup. 503; Reed v. Franklin, 60 S. W.215; In re Gill, 92 N. E. 390; Coldill v. Succession of McCullough, 20 Ann. (La.) 174; Birkholm v. Barrett, 4 Paige 148; Hart v. Bryan, 17 N. C. (Dev. Eq.) 147; Hall v. Griffith, 2 Har. & J. 143; Hearrin v. Savage,. 16 Ala. 286; Billingsley v. Hendrie, 20 Md. 282.\\nStatute of limitations must be specially pleaded. C. L. 1897, sec. 2685, sub-sec. 66; Phillips Code Pleading ,secs. 336-337; Pomeroy Code Remedies, secs. 589-590; Laguna v. Amnia, 1 N. M. 220; 25 Cyc. 1401 and cases cited.\\nEights and claims are purely equitable. Roberts v. Bartlett, 26 Mo. App. 615; Harwood y. Harper, 54 Ala. 659; Knight v.' Godbolt, 7 Ala. 304; Payne v. Pusey, (Ky.) 8 Bush 564; 18 Cyc. 917; Semmes v. Magruder, 10 Md. (Ch.) 456; Brown v. Stewart, 4 Md. Ch. 368; State v. Reigart, 1 Gill (Md.) 1 ,39 Am. Dec. 628; Moore v. Bryant, (Tex.) 31, S. W. 22; Harwood v. Harper, 54 Ala, 659; Baker v. Bush, 25 Ga. 571, 71 Am. Dec. 193; Huston v. Becker, 47 Pac. 10, 15 Wash. 586.\\nExecutor is entitled to his- expenses and attorneys fees and costs sustained in any litigation. C. L. 1897, sec. 2001; Laws 1901, c. 81, secs. 32 and 34; 18 Cyc. 265, 273, 564 and 566 (D) and cases cited.\\nSame rule applies to a trustee. 39 Cyc. 340, 478, and 480 and cases cited; 18 Cyc. 353; 39 Cyc. 430 and cases cited; 40 Cyc. 1807 and 1809 and cases cited; 40 Cyc. 2061 and cases cited.\\nReal and personal estate of decedent subject to payment of debts. Laws 1907, ch. 107; C. L. 1897, sec. 2065; 18 Cyc. 182 and cases cited; 40 Cyc. 2069 gnd 2070 and cases cited.\\nLegatee entitled to nothing until debts are paid. Leake y. Leake, 75 Ya. 794; 1 Story Eq. Jur., sec. 90; Bermingham y. Forsythe, 26 S. C. 358; Lewis w. Overby\\u2019s Adm\\u2019r., 31 Grat. (Ya.) 601, 2 S. E. 286; Succession of Willis, 33 So. 643, 107 La. 139; Horner y. Hosbrouck, 41 Pa. (5 Wright) 169.\\nAppellant not liable for rentals of real estate of decedent as charged by the court. Patterson v. Gaines, 6 How. 600, 12 L. 553; C. L. 1897, secs. 1995, 1996, 1997; 10 Cyc. 180 and cases cited; C. L. 1897, secs. 1995 and 2065; Laws 1907, ch. 107, art. 17; 18 Cyc. 182, 303 and cases cited; 1 Woerner, Am. Law of Admin., sec. 300; 21 Cyc. 145; 18 Cycv 826; Wood v. Ridley, 27 Mass. (5 Cush.) 149; 2 Woerner Am. L. Admin., sec. 484; New Orleans v. Christmas, 131 H. S. 191, 33 L. 99; Burney\\u2019s Heirs v. Ludeling, (La.) 17 So. 877; Green v. Biddle, 8 Wheat. 75, 5 L. 547; 24 Cyc. 1176; Laws 1907, ch. 107, sub-see. 257; Moore v. Meat Co., 16 N. M. 107; Nelier y. Armijo, 11 N. M. 67; 18 Cyc. 1136.\\nClaims approved by the Probate Court can only be reviewed on appeal or impeached on the ground of fraud. C. L. 1897, secs. 929 and 2015; Laws 1901,-ch. 81, see. 40; Gutierrez v. Scholle, 12 N M. 328; Gray v. Carroll, 101 Mo. App. 110, 74 S. W. \\\"468; Nelson v. Barnett, 123 Mo. 564, 27 S. W. 520; Bell v. Altheimer, 138 S. W. 993; Patton v. Webb, 2 Me. 257; Merrill v. Harris, 57 Am. Dec. 359; 26 N. H. 142; Dickinson v. Hayes, 31 Conn. 417; Hill v. Berger, 10 How. Bac. 264; Churchill v. Conner, 25 Va. 479; Seawell v. Buekly, 54 Ala. 592; App v. Dreisbach, 21 Am. Dec. 447; Tate v. Norton, 94 U. S. 746, 24 L. Ed. 222; Townsend v. Townsend, 60 Mo. 246; In re Bell\\u2019s Est., 75 Pae. 679; In re-Marshall Est., 50 Pac. 540; Barnett v. Vanmeter, 33 N. E. 666, 7 Ind. App. 45; State v. Gray, 106 Mo. 526, 17 S. W. 500; Starr v. Willoughby, 75 N. E. 1027; 2 L. B. A. (ns) 623; State v. Stuart, 74 Mo. App. 182; Floyd v. Newton, 134 S. W. 934; Young v. B3rd, 124 Mo. 590, 46 Am. St. 461; Sever v. Russell, 58 Mass. 7, 9 Am. Dec. 528.\\nReal Estate means lands, tenements and hereditaments. C. L. 1897, sec. 3940.\\nPossessory rights in real estate are not personalty. Probst v .Presbyterian Church, 125 H. S. 182, L. Ed. 642; Gildersleeve v. N. M. Min. Co., 6 N. M. 27; Solomon v. Yrisarri, 9 N. M. 480.\\nStatute of Frauds in force in New Mexico. Childers v. Talbott, 4 N. M. 336; Kingston v. Walton, 14 N. M. 368.\\nProperty' still remains in specie. Beall v, New Mexico, 16 Wall. 535, 21 L. Ed. 294; Chamberlain\\u2019s Appeal, 41 L. R. A. 204.\\nExecutor is entitled to expenses of administration. C. L. 1897, sec. 2001; Laws 1901, ch. 81, secs. 32 and 34; 18 Cyc. 265, 564 and 566.\\nSummers Burkhart, Albuquerque, N. M., for appellees.\\nFacts therein found (paragraph 7 of decree) were Res Judicata. Cromwell v. Sac County, 94 TJ. S. 331, 24 L. Ed. 197, 198.\\nRefusal of court to allow amendment rested in sound discretion of the court. C. L. 1897, sec. 2685, sub-secs. 81 and 82.\\nRentals from real estate proper charges against appellant. C. L. 1897, secs. 2065-2094; Dingman v. Beal, 213 111. 238; C. L. 1897, secs. 1445-1446; 2 Perry on Trusts, secs. 527, 608, 609; .C. L. 1897, secs. 2052, 2053; Taylor v. Culbert, 138 Ind. 67; Delavan v. German Sav. Bank, 124 N. W. 350; Landis v. Scott, 32 Pa. St. 495; Owens v. Williams, 130 N. C. 165, 41 S. E. 93; C. L. 1897, secs. 3160-3178; Laws 1907, page 285.\\nEquity has jurisdiction to open final report of an executor for fraud, especially where plaintiffs are infants. Perea v. Barela, 5 \\u00d1. M. 458, 468, et seq.; 2 Perry on Trusts, sec. 603. \\u25a0\\nAppellant properly charged for full value of goats. 2 Perry on Trusts, sec. 266.\\nTrustee must keep clear, accurate and distinct accounts, 2 Perry on Trusts, sec. 841; 39 Cyc. 464 and cases cited.\", \"word_count\": \"4385\", \"char_count\": \"23961\", \"text\": \"OPINION OP THE COURT.\\nPARKER, J. \\u2014\\nThis is a suit brought to open and vacate an account of the appellant as executor of the last will and testament of Paula Garcia de M\\u00edreles, the grandmother of the appellees, and for the taking of an account under the direction of the court of all the property and moneys coming into the hands of appellant as such executor, and as trustee under the will. The action resulted in the decree against appellant for $3444.43. It appears that long prior to the institution of this suit the appellees, by Emigran Candelaria, their guardian, each brought action against appellant for money had and received to and for their use, respectively, in the sum of $1125.00, and obtained judgment, which was paid and satisfied by appellant. The record in these cases, which is in evidence in this case, discloses that the said appellees are the grandchildren of one Dionicio M\\u00edreles and said Paula Garcia de M\\u00edreles, his wife; tliat said Dionicio departed this life, leaving a will which was duly probated and. of which said Paula and another were duly appointed executors; that the father of appellees, as guardian, demanded of said executors their share of their grandfather's estate coming to them through their mother, and were about to bring suit when a compromise was effected, whereby it was agreed that $2500.00 was the amount of their share of the personal property of said estate; that an order was afterwards made by the probate court, authorizing the loaning of said money at not less than 4% per annum; that thereafter Paula, the widow of Dionicio and grandmother of the appellees, loaned the said $2500.00 to appellant, and afterwards died. Thereupon the two actions above mentioned were brought for this money so loaned, resulting in the two judgments before mentioned. .In those cases the appellant admitted the receipt of $2500.00, and accounted for the same as follows:\\nThat by the direction of said Paula he paid $250.00 to an attorney for his services in effecting the said settlement and obtaining the said $2500.00, and paid out the balance upon the debts of the deceased Dionicio, by direction of said Paula; that he did not borrow the money and did not receive it as the money of said appellees. The court found against him upon these facts and awarded judgment.\\nIn the present case, after denying many of the allegations of the complaint, the appellant, by way of counter claim, attempted to bring forward and obtain credit for the amount he was compelled to pay on these judgments. The court disallowed the claim on the ground that this issue was settled by the adjudication in the two former actions. The court was clearly correct. The issue in the former actions was whether the appellant had received $2250.00 of the money of the appellees, and the court found that he had. And so in this case the issue tendered is whether he had so received said money, because, if he had, he was entitled to no credit in the settlement of his accounts with the estate of said Paula on account of such payment of said judgments, and if he had not so received said money he might be so entitled to such credit. In his original answer in this case by way of counter claim, the defendant alleged the receipt of $2250.00, and alleged that he had paid out the same and more, prior to the death of said Paula as hereinbefore stated, but he did not allege that he was entitled to credit for having so paid out the said money, and, on the contrary, alleged that he was entitled to credit on account of the amount paid in satisfaction of said judgments together with expenses and disbursements in defending said former actions. During the trial appellant offered an amendment to his answer as follows:\\n\\\"And the defendant further answering plaintiff's complaint herein and by way of defense and counter claim, alleges:\\n\\\"That on or about June 27th, 1899, Paula Garcia de M\\u00edreles deposited the sum of $2,250.00 for the purpose of paying certain debts of the estate of Dionicio M\\u00edreles, deceased, and to pay out and disburse subject to the order of the said Paula Garcia de M\\u00edreles, to-wit, January 23rd, 1901, the said money was expended and disbursed by the defendant as directed by the said Paula Garcia de M\\u00edreles as well as other divers sums of money and that at the time of her death the said Paula Garcia ele M\\u00edreles was indebted to the defendant in the sum of $2300.00, which said, sum is still due and unpaid to the defendant.\\n\\\"2. That the said Paula Garcia de M\\u00edreles is indebted to the defendant for money, goods, wares and merchandise turned over, sold and delivered by the defendant to the said Paula Garcia de M\\u00edreles at her request from June 14th, (27th), 1899, to January 23rd, 1901, and of the reasonable value thereof, in the sum of $2300.00, which said sum is wholly due and unpaid.\\n\\\"3. That the plaintiffs, Pablita Candelaria and Andres Candelaria, infants under the age of twenty-one years, are indebted to the defendant for money, goods, wares, and merchandise turned over, sold and delivered by the defendant to Paula Garcia de M\\u00edreles, deceased, from June 14th, (27th), 1899, to January 23rd, 1901, and of the reasonable value thereof, in the sum of $2300.00, -which said sum is wholly due and unpaid.\\\"\\nIt thus appears that appellant endeavored to introduce by his amended answer an entirely new and different issue into the case. Upon the trial he evidently sought to shift his position and to accept the results of the litigation in the two former actions and to assert a claim against the estate of the said Paula, and'Consequently against the appellees, for the sum of $2300.00, alleged by him to have been paid, laid out and expended for the said Paula at her request, as hereinbefore stated. The court refused to allow the amendment and appellant assigns error upon the action of the court. He argues, if we understand him, that appellant was entitled as a matter of. right to make this trial amendment.\\nWe do not so understand the law. We recently have had occasion to examine the question of trial amendments, and in Loretta Literary Society v. Garcia, just decided, we held the power of the court to permit such amendment was limited by sub-section 82 of sec. 2685, C. L. 1897, so as to prevent the introduction of a new cause of action. That the cause of action sought to be introduced by the amended answer by w.ay of counter claim, was a new and different one from that originally pleaded would seem to be plain, and, in fact, it is so argued by counsel- for appellant in support of his contention that the two former judgments did-not adjudicate the issue therein tendered. So, even had the court permittted the amendment, it would have been erroneous under the circumstances. The conclusion renders it unnecessary to discuss the doctrine of res adjudicatei, to which much space is devoted in the briefs, except in one particular. Counsel for appellant argue that the doctrine of res adjudicata is not available to appellees because the estoppel arising out of the former adjudications is not pleaded. In this he is mistaken. It is distinctly alleged in the complaint that the $2250.00 was received by appellant to the use of appellees and that appellees were compelled to bring the suit to recover the same, and that they were successful. In support of this allegation the records in the former cases were introduced, and, so far as disclosed, without objection. It is true the allegation in the complaint was not in form a plea of res adjud\\u00edcala, but more designed to characterize the conduct of appellant as antagonistic to the rights of appellees. It is likewise true that the answer of appellant is in form a counter claim, but in fact it is, in this regard, more in the nature of a denial of the allegations of the complaint, and puts them squarely in issue. Appellees in their,reply simply denied the allegations of the answer by way of counter claim. They do not in terms again plead the estoppel arising out of the former judgments; but all of the facts out of which the estoppel arises were set forth in the complaint. That the estoppel was not intended to be waived, sufficiently appears throughout the case. Under such circumstances it cannot be said that the estoppel of the former judgments was not pleaded. Besides no such question was presented to the trial ocurt, so far as we can see from the record.\\nIt appears that appellant was nominated executor, guardian and administrator by the last will and testament of said Paula, qualified and took possession of the estate. Shortly thereafter he obtained an order from the probate court authorizing him to sell all of the real estate, which he proceeded to do, and realized therefrom $1040.00, in various sums. Some of the deeds were executed as guardian, some as executor, and some as both. The court below computed interest at 4% to the date of the decree and charged the appellant with that amount. This was evidently done upon the theory that under the terms of the will of Paula, appellant was to pay 4% on all of the moneys coming into his hands as executor and guardjan. That these sales were void, both sides agree. Counsel for appellant argues that this fact leaves the real estate so sold still the property of appellees and that the money so received by appellant is not their money, and he is consequently not chargeable to them for any interest thereon. He further argues that if appellant is to be charged for rentals, as such, he is chargeable only for rentals actually received by him, and in this case he received none. On the other hand counsel for appellees argues in support of the judgment that inasmuch, under the will, appellant had no power to sell, but was charged with the duty of holding the property until the infants had attained their majority, he necessarily took charge of the real estate more as guardian of the infants than as executor, and, as such, it became his duty to rent the same for their benefit. At least, he argues, he was a trustee by the terms of the will and, as such, it was his duty to preserve the estate and to realize from it the reasonable rental value for the benefit of the infants.\\nIn this position he is correct. Appellant was not only executor of the will, but was charged with the duty of preserving the estate as trustee. He had no duty as executor in regard to the real estate, but as testamentary trustee his duty extended to the whole estate, including the real estate. Under such circumstahces he is chargeable with the rental value of the real estate where, as appears, he neglected to rent it, but, on the other hand, he proceeded to sell it contrary to law. That a trustee is responsible for the amount the property ought to have yielded, when he is negligent or unfaithful, see, 39 Cyc. 323, 324, note 58; Taylor v. Calvert, 138 Ind. 67; Delavan v, Bank, 124 N. W. 350; Landis v. Scott, 32 Pa. St. 495; Gwens v. Williams, 130 N. C. 165.\\nThe fact that the charge was made against appellant upon what was possibly an erroneous theory will not avail him here, as the amount of the reasonable rental value of the real estate, according to all the evidence, is greatly in excess of the amount allowed by the court against him.\\nAppellant complains of the disallowance of two items of $75.00 and $40.20, respectively. The argument in support of the assignment of error 'is that these items were included in appellant's final report, and were approved by the probate court, and that, consequently, they can be reviewed only by appeal from that judgment. The court found appellant to have been grossly negligent in the exe eution of his trust; that his so-called final report in no respect complied with the requirements of law, and that appellees were entitled to have the same opened and the accounts surcharged; that he kept no account of the moneys or property received by him, and that appellees were entitled to an accounting of all of appellant's doings as executor and testamentary trustee. The court found that over $1000.00 worth of property had been received by appellant which had never been inventoried or accounted for, and, on the other hand, allowed him over $800.00 for disbursements which were not included in his final report. It is true that the court did not specifically find that the judgment of approval of his so-called final report was obtained by fraud, but all of the circumstances would seem to show that his said report was so imperfect, partial and misleading as to amount to a fraud in law. Whether a judgment of approval of a final report of an executor by a probate court under circumstances different from those appearing from this record could be reviewed only by appeal, it is not necessary for us to decide. But under the circumstances shown here, the case falls clearly within the doctrine laid down in Perea v. Barela, 5 N. M. 458, 472, where it is said:\\n\\\"The case presented by the bill and made out by the evidence involves a trust fraudulently executed, and necessitates a discovery and an' accounting. The existence of these is all that is necessary to invoke the.equitable jurisdiction of the court.\\\"\\nIt appears, that the decedent had a possessory right to two ranches known as the Salada and Narajo Ranches. Appellant disposed of or sold this right, as the court found, and realized $490.00 therefrom, for which he was charged. He executed no writing for the same but simply took the money of the transferee in the case, and a ranch in exchange for the other. We are unable to understand upon just what theory appellant objects to this charge. lie suggests that the right was real estate, and that a verbal sale would be void under the statute of frauds, and that the property still remains in specie. But, even so, he has received the money and certainly must account for the same. If at some future time the appellees seek to contest the appellant's vendees this possessory right, they may have to settle with such vendees concerning the purchase price paid for such right. That is a matter of no concern of appellant.\\nAll of the other errors assigned arise upon either the disallowance of charges by appellant, or the charging against him of items. In each ease the evidence was conflicting and the findings can not be disturbed 'by this court. No questions of law are involved.\\nThis disposes of all of the contentions of appellant and for the reasons stated \\\" the decree of the court below will be affrmed, and it is so ordered.\"}"
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+"{\"id\": \"5321929\", \"name\": \"J. L. GUY, Jr., Petitioners, v. The FIRST JUDICIAL DISTRICT COURT, Respondent\", \"name_abbreviation\": \"Guy v. First Judicial District Court\", \"decision_date\": \"1964-01-27\", \"docket_number\": \"No. 48 HC\", \"first_page\": \"395\", \"last_page\": 395, \"citations\": \"73 N.M. 395\", \"volume\": \"73\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:34:03.088330+00:00\", \"provenance\": \"CAP\", \"judges\": \"COMPTON, Chief Justice, and CARMODY, CHAVEZ, NOBLE and MOISE, Justices, concurring.\", \"parties\": \"J. L. GUY, Jr., Petitioners, v. The FIRST JUDICIAL DISTRICT COURT, Respondent.\", \"head_matter\": \"388 P.2d 398\\nJ. L. GUY, Jr., Petitioners, v. The FIRST JUDICIAL DISTRICT COURT, Respondent.\\nNo. 48 HC.\\nSupreme Court of New Mexico.\\nJan. 27, 1964.\\nCOMPTON, Chief Justice, and CARMODY, CHAVEZ, NOBLE and MOISE, Justices, concurring.\", \"word_count\": \"69\", \"char_count\": \"411\", \"text\": \"Order that the motion for removal of habeas corpus to the Supreme Court be and the same is hereby denied for the reason that Anthony Albert, Esq., is advising with the petitioner.\"}"
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+"{\"id\": \"5322715\", \"name\": \"Kathlyn E. FOX, formerly Kathlyn E. Doak, Plaintiff-Appellant, v. Rodney Orville DOAK, Defendant-Appellee\", \"name_abbreviation\": \"Fox v. Doak\", \"decision_date\": \"1968-03-04\", \"docket_number\": \"No. 8516\", \"first_page\": \"743\", \"last_page\": 747, \"citations\": \"78 N.M. 743\", \"volume\": \"78\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:08:47.938917+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHAVEZ, C. J., and CARMODY, J., concur.\", \"parties\": \"Kathlyn E. FOX, formerly Kathlyn E. Doak, Plaintiff-Appellant, v. Rodney Orville DOAK, Defendant-Appellee.\", \"head_matter\": \"438 P.2d 153\\nKathlyn E. FOX, formerly Kathlyn E. Doak, Plaintiff-Appellant, v. Rodney Orville DOAK, Defendant-Appellee.\\nNo. 8516.\\nSupreme Court of New Mexico.\\nMarch 4, 1968.\\nWalker & Hensley, Portales, for appellant.\\nDan B. Buzzard, Clovis, for appellee.\", \"word_count\": \"1807\", \"char_count\": \"11114\", \"text\": \"OPINION\\nWOOD, Judge, Court of Appeals.\\nThis is a dispute over child custody and child support. The issues are: (1) whether the findings are supported by substantial evidence, (2) whether refused findings should have been made and (3) whether there was an abuse of discretion by the order entered concerning custody and support.\\nThe parties were divorced in 1962. The decree approved an agreement of the parties concerning the custody and support of their two boys, then five and two years old. Neither party has been satisfied with the custody arrangements; each unsuccessfully sought to have them changed. The last attempt prior to this action was in June 1966.\\nIn February 1967, defendant father sought a change in the custody and support arrangements. After a hearing, the trial court modified the custody and support provisions. The changes are substantial. Defendant's custody is increased; he is not required to pay support during the time the boys are in his custody. Plaintiff's custody and the money she is to receive as child support is correspondingly decreased. In addition, the trial court ordered a temporary reduction in the amount of support payments. Plaintiff, the mother appeals.\\nThe trial court has a wide discretion in determining whether a custodial decree should be modified. In making that determination, the controlling influence should be the welfare and best interests of the child. Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963).\\nWhether the findings are supported by substantial evidence.\\nThe findings show the trial court's concern for the best interests of the children. The trial court found that:\\n(a) The circumstances have changed materially;\\n(b) Plaintiff had failed to provide a stable environment for rearing the boys;\\n(c) Defendant had a suitable home for rearing them;\\n(d) Educational opportunities and benefits are better in defendant's home;\\n(e) The children would have a better opportunity to develop a stable life in defendant's home;\\n(f) It was in the best interests of the children that their custody be with defendant during each school term after the current school year.\\nPlaintiff attacks each of these findings.' She admits there is evidence to support them. Her claim is that the evidence \\\"is lacking in substantiality.\\\"\\nWhat is \\\"substantial evidence\\\" ? Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967), states:\\n\\\"Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. \\\"\\nPlaintiff asserts that for four reasons the admittedly supporting evidence should not be considered as substantial. None of these contentions reach the issue of \\\"substantial evidence.\\\" Accordingly, we do not review the evidence.\\nThe four contentions, and our answers, are:\\n(1) Evidence \\\"in support of each finding has almost entirely been contradicted and undermined by other evidence in the record.\\\" Admittedly, the evidence is conflicting. On appeal, however, all disputed facts are resolved in favor of the successful party; evidence and inferences to the contrary are disregarded. Tapia v. Panhandle Steel Erectors Co., supra. Disregarding the conflicting evidence, the only evidence left is evidence which supports the findings. An assertion that evidence at trial was conflicting is not an assertion that the supporting evidence is not substantial.\\n(2) \\\"Statements and conclusions reached by defendant and his relatives were admittedly based upon something that the minor children allegedly told them.\\\" Some of the testimony which supports the findings was based on statements made by the children and thus hearsay evidence. There was no objection to this testimony. Hearsay evidence received without objection is considered in the same manner as other relevant evidence and has sufficient probative worth to support a finding. Kitts v. Shop Rite Foods, Inc., 64 N.M. 24, 323 P.2d 282 (1958). An assertion that some of the evidence supporting the findings is hearsay evidence is hot an assertion that the supporting evidence is not substantial. ;\\n(3) At conclusion of the evidence the trial court made some remarks from the bench. According to plaintiff, \\\"it appears that the Court was only impressed by the fact that the parties had heretofore been unable to agree on anything at any time and that he was of the opinion that he mighty just reverse the situation not has-1 ing his decision to reverse on anything other than the fact that the parties could never agree.\\\" Plaintiff then sets forth! asserted inconsistencies between the trial court's remarks and the findings.\\nSection 21-1-1(52) (B), N.M.S.A. 1953, provides for a written decision of the court. The remarks from the bench were not such a decision. Error cannot be predicated on these remarks. Pack v. Read, 77 N.M. 76, 419 P.2d 453 (1966). The remarks do not raise the question of whether the evidence supporting the findings is substantial.\\n(4) Evidence on defendant's motion was taken on February 27. Plaintiff rested her case at the conclusion of the evidence. On March 10, plaintiff moved to reopen in order to present additional evidence on two matters concerning which there was some testimony at the February hearing. In denying the motion to reopen, the trial court commented that the issues had been fully litigated and additional evidence would serve no useful purpose. Plaintiff asserts that the trial court could not determine what was best for the children \\\"without all the evidence being presented.\\\"\\nThe motion to reopen is addressed to the trial court's discretion. Holthoff v. Freudenthal, 22 N.M. 377, 162 P. 173 (1916); Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934). Because of the nature of the additional evidence offered, we cannot say denial of the motion was an abuse of discretion. Compare Primus v. City of Hot Springs, 57 N.M. 190, 256 P.2d 1065 (1953); Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960). The denial of a motion to reopen does not reach the question of whether the evidence which has been introduced and which supports the findings is substantial.\\nWhether refused findings should have been made.\\nMost of the refused findings were opposed to or inconsistent with the findings made by the trial court. The findings made are supported by substantial evidence. The trial court could reasonably find as it did. Therefore, the refusal of opposing or inconsistent findings is not error. Hines v. Hines, 64 N.M. 377, 328 P.2d 944 (1958).\\nThe other refused findings concerned evidentiary as opposed to ultimate facts. Findings are to consist only of ultimate facts necessary to determine the issues. Goldie v. Yaker, 78 N.M. 485, 432 P.2d 841 (1967). Since these refused findings did not pertain to ultimate facts, it was not \\\"error to refuse them.\\nWhether there was an abuse of discretion by the order entered.\\nThis issue has two parts: (a) the order temporarily reducing the support payments ' and (b) the custody order.\\n(a) The temporary reduction. Plaintiff contends that the trial court had no factual nor legal basis for this temporary reduction. Thus, she asserts that the modification was an abuse of discretion.\\nThe trial court found that defendant's income had been reduced because of a partial crop failure. The evidence supporting this finding is undisputed.\\nThe legal basis for the temporary reduction is \\u00a7 22-7-6, N.M.S.A. 1953. This section states that the court \\\"may modify and change any order in respect to the care, maintenance or education of said children whenever circumstances render such change proper.\\\"\\n(b) The custody order. The trial court found that circumstances had changed materially \\\"since the entry of the decree herein.\\\" This is not the proper basis for ordering a change of custody in this case. At three prior hearings, a change in custody was denied. The orders denying a change in custody were res judicata on the issue. Kerley v. Kerley, 69 N.M. 291, 366 P.2d 141 (1961). Upon a showing of changed circumstances subsequent to the last order, custodial provisions could be modified. Tuttle v. Tuttle, 66 N.M. 134, 343 P.2d 838 (1959).\\nAt the last prior hearing, in June 1966, the trial court found \\\"there is no reason for changing the child custody arrangements.\\\" Since the reason for a change in custody is a material change of circumstances, the previous orders denying a change impliedly found that a material change had not been established. Thus, the finding in this proceeding that the circumstances had changed materially, is based on changes which occurred subsequent to the hearing in June 1966. While the finding, as made, is too broadly worded, the finding necessarily applies to the time subsequent to the last hearing.\\nPlaintiff contends that the circumstances before the court in the current proceeding do not differ from circumstances present at the prior hearings. Thus, plaintiff asserts the trial court abused its discretion in ordering a change in custody. In support of this contention, she reviews the testimony at the prior hearings and refers to remarks made by the trial court.\\nThere is evidence of a change of circumstances since the last prior custodial hearing. On the basis of this evidence the trial court determined that a change in custody was in the best interest of the children. As stated in Ettinger v. Ettinger, supra:\\n\\\" Such a finding, by the trial judge who saw the parties observed their demeanor and heard the testimony of the witnesses, is entitled to great weight. No matter if our inclination might have been different from a reading of a cold record, we would not be inclined to substitute our judgment for the facts found by the trial court, based upon substantial evidence.\\nWe are satisfied that the trial court could reasonably find as it did, in view of the evidence before it.\\\"\\nThe remarks made by the trial court were not carried forward into the findings, conclusions or the order effecting the custodial change. No statement made by the trial judge is of any binding effect except as included in the findings of fact, conclusions of law and judgment. Wray v. Pennington, 62 N.M. 203, 307 P.2d 536 (1956).\\nJudicial discretion \\\"is a discretion governed by principle and regular procedure for the accomplishment of the ends of right and justice.\\\" Urzua v. Urzua, 67 N. M. 304, 355 P.2d 123 (1960). Here, the trial court temporarily reduced support payments and made custodial changes. In doing so it was governed by the applicable principles of law and followed regular procedure in making its findings of fact. The results were pursuant to judicial discretion; not in its abuse.\\nThe order of the trial court is affirmed.\\nIt is so ordered.\\nCHAVEZ, C. J., and CARMODY, J., concur.\"}"
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+"{\"id\": \"5332128\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ray WILSON, Defendant-Appellant\", \"name_abbreviation\": \"State v. Wilson\", \"decision_date\": \"1970-11-13\", \"docket_number\": \"No. 526\", \"first_page\": \"142\", \"last_page\": 144, \"citations\": \"82 N.M. 142\", \"volume\": \"82\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:08:46.023556+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD and HENDLEY, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ray WILSON, Defendant-Appellant.\", \"head_matter\": \"477 P.2d 318\\nSTATE of New Mexico, Plaintiff-Appellee, v. Ray WILSON, Defendant-Appellant.\\nNo. 526.\\nCourt of Appeals of New Mexico.\\nNov. 13, 1970.\\nMayo T. Boucher, Belen, for defendant-appellant.\\nJames A. Maloney, Atty. Gen., Santa Fe, John A. Darden, Asst. Atty. Gen., for plaintiff-appellee.\", \"word_count\": \"569\", \"char_count\": \"3494\", \"text\": \"OPINION\\nSPIESS, Chief Judge.\\nDefendant was convicted upon two \\u2022charges of knowingly issuing and transferring forged writings, namely, checks, with intent to injure and defraud. He is now in custody under a sentence imposed by the court. He has appealed to this \\u2022court from an order denying his motion filed pursuant to Rule 93 [\\u00a7 21-1-1(93), N.M.S.A.1953 (Supp.1969)].\\nThe first point asserted by defendant is:\\n\\\"THAT THE COURT ERRED IN HOLDING THAT THE DEFENDANT'S OBJECTION TO THE JUDGMENT AND SENTENCE, ON THE -GROUNDS THAT HE WAS NOT AFFORDED AN ATTORNEY AT THE ARRAIGNMENT, WAS NOT WELL TAKEN OR MERITORIOUS.\\\"\\nThe record actually discloses that -defendant was represented by counsel at arraignment and entered a plea of not guilty. Counsel appointed to represent defendant on this appeal concedes that defendant, was so represented but he nevertheless has submitted the point for the reason that the question was raised by defendant in his pro se motion. . . , ,\\nDefendant next contends:\\n\\\"THAT THE COURT ERREp'.JN HOLDING THAT THE DEFENDANT'S MOTION TO VACATE JUDGMENT AND SENTENCE BECAUSE HIS COUNSEL FAILED . TO SUBPOENA WITNESSES WHO COULD HAVE TESTIFIED TO HIS INNOCENCE WAS NOT WELL TAKEN OR MERITORIOUS.\\\"\\nIt is argued that a Ted Kennedy, who had been charged contemporaneously with defendant and later released by the prosecution, should have been subpoenaed to testify in defendant's behalf; had Kennedy's testimony, been secured it would have supported defendant's innocence. In- substance, defendant's position is that he. was denied effective assistance of counsel because Ted Kennedy was not subpoenaed. We see no merit to this contention.\\nWe have uniformly held that before a defendant can be heard to complain of the inadequacy of his counsel he must show that the proceedings leading to his conviction amounted to a sham, a farce, or a mockery. State v. Ramirez, 81 N.M. 150, 464 P.2d 569 (Ct.App.1970); State v. Tapia, 80 N.M. 477, 457 P.2d 996 (Ct.App.1969); State v. Dominguez, 80 N.M. 328, 455 P.2d 194 (Ct.App.1969). No such showing is presented here.\\nIt is finally contended:\\n\\\"THAT THE COURT ERRED IN HOLDING THAT DEFENDANT'S MOTION TO VACATE JUDGMENT AND SENTENCE BECAUSE OF FAILURE OF THE STATE OF NEW MEXICO TO HOLD A CO-DEFENDANT AS A MATERIAL WITNESS WHO COULD HAVE TESTIFIED TO DEFENDANTS [SIC] INNOCENCE WAS NOT WELL TAKEN OR MERITORIOUS.\\\"\\nUnder this point defendant argues that the state suppressed evidence, namely, that which could have been supplied by Ted Kennedy, which resulted in a denial of due process of law.\\nSuppression of evidence by the prosecution is not supported by the record. Ted Kennedy was known to defendant, and it could be inferred that defendant knew what Ted Kennedy's testimony would be if called as a witness in his behalf. There is, further, no showing that Ted Kennedy could not have been subpoenaed to appear at the trial.\\nThe suppression of evidence to be violative of due process of law generally involves evidence which is known to the prosecution and not to the defendant. See Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965).\\nThe order denying the Rule 93 motion should be affirmed.\\nIt is so ordered.\\nWOOD and HENDLEY, JJ., concur.\"}"
\ No newline at end of file
diff --git a/nm/5332163.json b/nm/5332163.json
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+"{\"id\": \"5332163\", \"name\": \"Bobbie JEWELL, and the minors, Tommie E. Jewell, III, and Michelle M. Jewell, by their next friend, Bobbie L. Jewell, Plaintiffs-Appellees and Cross-Appellants, v. Leonard SEIDENBERG and Louise Geng Seidenberg, Defendants-Appellants and Cross-Appellees\", \"name_abbreviation\": \"Jewell v. Seidenberg\", \"decision_date\": \"1970-06-12\", \"docket_number\": \"No. 446\", \"first_page\": \"88\", \"last_page\": 89, \"citations\": \"82 N.M. 88\", \"volume\": \"82\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:08:46.023556+00:00\", \"provenance\": \"CAP\", \"judges\": \"SPIESS, C. J., and OMAN, J. concur.\", \"parties\": \"Bobbie JEWELL, and the minors, Tommie E. Jewell, III, and Michelle M. Jewell, by their next friend, Bobbie L. Jewell, Plaintiffs-Appellees and Cross-Appellants, v. Leonard SEIDENBERG and Louise Geng Seidenberg, Defendants-Appellants and Cross-Appellees.\", \"head_matter\": \"475 P.2d 785\\nBobbie JEWELL, and the minors, Tommie E. Jewell, III, and Michelle M. Jewell, by their next friend, Bobbie L. Jewell, Plaintiffs-Appellees and Cross-Appellants, v. Leonard SEIDENBERG and Louise Geng Seidenberg, Defendants-Appellants and Cross-Appellees.\\nNo. 446.\\nCourt of Appeals of New Mexico.\\nJune 12, 1970.\\nCertiorari issued June 29, 1970.\\nAllen C. Dewey, Jr., Leland S. Sedberry, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellants.\\nO. R. Adams, Jr., Edward P. Chase, Albuquerque, for appellees.\", \"word_count\": \"448\", \"char_count\": \"2814\", \"text\": \"OPINION\\nHENDLEY, Judge.\\nDefendants appeal from adverse verdicts in a medical malpractice action. Defendauts' Point III is dispositive of the appeal. We reverse.\\n\\\"THE TRIAL COURT'S FAILURE AND REFUSAL TO FOLLOW THE NEW MEXICO UNIFORM JURY INSTRUCTIONS DEPRIVED DEFENDANTS OF A FAIR TRIAL.\\\"\\nBy Supreme Court Order No. 8000 Misc. dated May 5, 1966, Rule 51 of the Rules of Civil Procedure [\\u00a7 21-1-1(51), N.M.S.A. 1953 (Supp.1969)] was amended to read in part:\\n\\\"(c) the U.J.I. instruction shall be used unless under the facts or circumstances of the particular case the published Uniform Jury Instruction is erroneous or otherwise improper, and the trial court so finds and states of record its reasons. [As amended May 5, 1966. Effective September 1, 1966.]\\\"\\nAlso stated in Order No. 8000 Misc. is the iollowing:\\n\\\"NOW, THEREFORE, IT IS ORDERED that the instructions prepared by the New Mexico Supreme Court Advisory Committee on Uniform Jury Instructions, together with directions as to use or non-use of instructions on certain subjects, -contained in a volume published by West .Publishing Company and attached hereto, shall be in effect as New Mexico Uniform Jury Instructions (U.J.I.) and shall be used as provided in Rule 51 of Rules -of Civil Procedure (Sec. 21-1-1(51) N.M.S.A.1953), in cases filed on and .after September 1, 1966.\\\" (Emphasis added).\\nThe \\\"Directions for Use\\\" of U.J.I. 17.1 .states:\\n\\\"This instruction shall be given to the jury in every case and shall replace .all instructions of similar import gen-erally much longer but in essence stating the same principle.\\\"\\nBoth plaintiff and defendant requested U.J.I. 17.1. Both were refused. The record fails to reflect why the instruction was refused.\\nThe \\\"Committee Comment\\\" on U.J.I. 17.1 states:\\n\\\"The jury should be impressed with the seriousness of their part in the administration of justice. This instruction is a basic statement of law ordinarily applicable in all jury cases.\\\"\\nAs we stated in Chapin v. Rogers, 80 N.M. 684, 459 P.2d 846 (Ct.App.1969) the purpose of the Order of the Supreme Court, where applicable, was to make it mandatory upon the trial court to use the U.J.I.\\nA refusal of a mandatory direction is reversible error.\\nReversed.\\nIt is so ordered.\\nSPIESS, C. J., and OMAN, J. concur.\"}"
\ No newline at end of file
diff --git a/nm/5335149.json b/nm/5335149.json
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index 0000000000000000000000000000000000000000..5fc7f530350904fdf3e2d4f4792d72e0ea266812
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+"{\"id\": \"5335149\", \"name\": \"Luis P. ANDRADA, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee\", \"name_abbreviation\": \"Andrada v. State\", \"decision_date\": \"1971-12-22\", \"docket_number\": \"No. 768\", \"first_page\": \"393\", \"last_page\": 394, \"citations\": \"83 N.M. 393\", \"volume\": \"83\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:26:44.528249+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD, C. J., and COWAN, J., concur.\", \"parties\": \"Luis P. ANDRADA, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\", \"head_matter\": \"492 P.2d 1010\\nLuis P. ANDRADA, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\\nNo. 768.\\nCourt of Appeals of New Mexico.\\nDec. 22, 1971.\\nOliver H. Miles, Las Cruces, for petitioner-appellant.\\nDavid L. Norvell, A tty. Gen., James B. Mulcoclc, Asst. Atty. Gen., Santa Fe, for respondent-appellee.\", \"word_count\": \"395\", \"char_count\": \"2470\", \"text\": \"OPINION\\nHENDLEY, Judge.\\nPetitioner's conviction of aggravated burglary was affirmed in State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971). He now appeals from a denial of post-conviction relief, without hearing, pursuant to \\u00a7 21-1-1 (93), N.M.S.A. 1953 (Supp.1971).\\nWe affirm.\\nPetitioner contends that he should not have been charged with and convicted of aggravated burglary; that the state failed to prove criminal intent; and, that he was intoxicated at the time the offense was committed and could not have had the requisite specific intent to commit aggravated burglary. None of these claims were raised by petitioner in his direct appeal. Post-conviction relief is not a method of obtaining consideration of those questions which should have been raised on appeal. Miller v. State, 82 N.M. 68, 475 P.2d 462 (Ct.App. 1970). These contentions at'tack the sufficiency of the evidence to support the conviction. Sufficiency of the evidence does not provide a basis for post-conviction relief. State v. Hibbs, 82 N.M. 722, 487 P.2d 150 (Ct.App.1971); Herring v. State, 81 N.M. 21, 462 P.2d 468 (Ct.App.1969).\\nPetitioner's assertion that the aggravation of the offense was prompted by discrimination against him because of his Mexican heritage does not present a claim since it is not set forth with adequate specificity or factual basis to afford relief. State v. Clark, Ct.App., 493 P.2d 969, 1971.\\nPetitioner contends that the facts presented to establish aggravation of the offense were false. Petitioner has done no more than state a vague conclusion. Petitioner must allege a specific factual basis for the relief sought. State v. Guy, 79 N. M. 128, 440 P.2d 803 (Ct.App. 1968). To the extent this is a claim that defendant was convicted on prejudiced testimony, it states no basis for relief. State v. Hibbs, supra, and cases therein cited.\\nSince the record conclusively shows that petitioner was not entitled to an evidentiary hearing on his Rule 93 motion, the order denying post-conviction relief without hearing is affirmed. State v. Sanders, 82 N.M. 61, 475 P.2d 327 (1970).\\nAffirmed.\\nIt is so ordered.\\nWOOD, C. J., and COWAN, J., concur.\"}"
\ No newline at end of file
diff --git a/nm/5353814.json b/nm/5353814.json
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index 0000000000000000000000000000000000000000..89e72bad03d9c6c1c910550c20ce12d4137cd19d
--- /dev/null
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+"{\"id\": \"5353814\", \"name\": \"Ricardo M. MONTOYA, State Labor Commissioner of the State of New Mexico, Petitioner, v. Honorable Samuel MONTOYA, District Judge of the First Judicial District of the State of New Mexico, Respondent\", \"name_abbreviation\": \"Montoya v. Montoya\", \"decision_date\": \"1969-11-21\", \"docket_number\": \"No. 8960\", \"first_page\": \"785\", \"last_page\": 785, \"citations\": \"80 N.M. 785\", \"volume\": \"80\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:49:20.575777+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOISE, Chief Justice, and COMPTON, TACKETT and WATSON, Justices, concurring.\", \"parties\": \"Ricardo M. MONTOYA, State Labor Commissioner of the State of New Mexico, Petitioner, v. Honorable Samuel MONTOYA, District Judge of the First Judicial District of the State of New Mexico, Respondent.\", \"head_matter\": \"461 P.2d 918\\nRicardo M. MONTOYA, State Labor Commissioner of the State of New Mexico, Petitioner, v. Honorable Samuel MONTOYA, District Judge of the First Judicial District of the State of New Mexico, Respondent.\\nNo. 8960.\\nSupreme Court of New Mexico.\\nNov. 21, 1969.\\nMOISE, Chief Justice, and COMPTON, TACKETT and WATSON, Justices, concurring.\", \"word_count\": \"68\", \"char_count\": \"424\", \"text\": \"Ordered that petition for writ of prohibition be and the same is hereby denied.\"}"
\ No newline at end of file
diff --git a/nm/711374.json b/nm/711374.json
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index 0000000000000000000000000000000000000000..426ff736d8034018bd87aeac1d11e6516c494020
--- /dev/null
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+"{\"id\": \"711374\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Clinton CHAMBERS, Defendant-Appellant\", \"name_abbreviation\": \"State v. Chambers\", \"decision_date\": \"1986-01-21\", \"docket_number\": \"No. 8537\", \"first_page\": \"784\", \"last_page\": 788, \"citations\": \"103 N.M. 784\", \"volume\": \"103\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:12:59.312629+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONNELLY, C.J., and BIVINS, J\\u201e concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Clinton CHAMBERS, Defendant-Appellant.\", \"head_matter\": \"714 P.2d 588\\nSTATE of New Mexico, Plaintiff-Appellee, v. Clinton CHAMBERS, Defendant-Appellant.\\nNo. 8537.\\nCourt of Appeals of New Mexico.\\nJan. 21, 1986.\\nPaul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\\nJanet Clow, Chief Public Defender, Wendy York, Asst. Public Defender, Santa Fe, for defendant-appellant.\", \"word_count\": \"2407\", \"char_count\": \"15152\", \"text\": \"OPINION\\nGARCIA, Judge.\\nDefendant was convicted of trafficking in a controlled substance, Meperidine (Demerol) in violation of NMSA 1978, Section 30-31-20 (Repl.Pamp.1980). He filed a timely appeal from this conviction. The issues raised by defendant on appeal relate to the disclosure of the identity of the confidential informant under NMSA 1978, Evid. Rule 510 (Repl.Pamp.1983). Defendant asserts that the trial court erred in failing to conduct an in camera hearing on the necessity of disclosure at the pretrial stage of the proceeding. Alternatively, defendant argues that because the identity of the informant was known to defendant, Evid. Rule 510 did not operate to protect the informant's identity, and thus, the court's refusal to allow defendant to cross-examine witnesses on the nature of the informant's relationship to the police amounted to prejudicial error. Defendant also asserts that the trial court erred in refusing to give his requested entrapment instruction, NMSA 1978, UJI Crim. 41.35 (Repl.Pamp.1982), and further, in allowing the state to present evidence of defendant's prior felony conviction.\\nUpon review of the docketing statement, we proposed summary reversal on the grounds that the informant privilege had been voluntarily waived and that the court erred in denying disclosure. The state filed a memorandum in opposition, and accordingly, the case was reassigned to the limited calendar.\\nDefendant did not brief one issue previously listed in his docketing statement; instead he sought to add alternative issues (cumulative error and ineffective assistance of counsel). Issues not briefed are deemed waived. State v. Gardner, 103 N.M. 320, 706 P.2d 862 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985). We find no merit in defendant's request to add additional issues and deny the request. Accordingly, the issues presented for the court's determination are: (1) whether the trial court erred in its refusal to order disclosure under Evid. Rule 510(c)(2) or in its ruling that Evid. Rule 510 prevented defendant's inquiry into the confidential informant's bias and the nature of the relationship between the state and the informant; (2) whether the trial court erred in denying defendant's requested instruction on entrapment, UJI Crim. 41.35.\\nFACTS\\nK.C. Rogers, an undercover narcotics agent, was told by a confidential informant that defendant had 100 milligrams of Demerol tablets to sell. The informant took Rogers to defendant's home and introduced him to defendant and to Helen Jackson, a friend of both defendant and the informant. Shortly after arriving at defendant's residence, there was a brief discussion between Rogers and defendant concerning drugs. Helen Jackson and defendant went to another room and returned. Ms. Jackson produced a vial of pills, removed two and gave them to defendant, who then handed them to Rogers. In turn, Rogers gave $30.00 to the confidential informant who handed it to defendant. The pills given Rogers were Meperidine, a controlled substance.\\nAt trial, Rogers testified that he had been taken to the residence by the female confidential informant. Helen Jackson, the other woman present at defendant's home, testified that Rogers had been accompanied by a woman named May Parker. May Parker was also identified by defendant as the woman who accompanied Rogers to his residence.\\nDefendant called May Parker as a witness. While the court did not allow defendant to ask if Parker was the confidential informant, or allow defendant to inquire into the nature of her arrangement with the police, Parker nevertheless confirmed that she had accompanied Rogers to defendant's house. Defendant testified that Helen Jackson and May Parker had been together earlier in the day. He testified that Helen had 100 milligrams of Demerol she wanted to sell to supplement funds for a mortgage payment. He said the pills belonged to Helen and that the money was paid to her. Defendant also testified that later on, Rogers came back and tried to buy drugs from defendant, and defendant did not sell any, even though he had Demerol which was obtained through a legitimate prescription. Helen Jackson professed to having no memory of the events and could not, or would not, provide any information.\\nTHE CONFIDENTIAL INFORMANT PRIVILEGE AND THE PRETRIAL MOTION TO DISCLOSE\\nDefendant argued in a pretrial motion that the circumstances of the case triggered the disclosure requirements of Evid. Rule 510. On appeal defendant argues that the trial court erred in its refusal to conduct an in camera hearing to determine if disclosure was required under Evid. Rule 510. The state argues that defendant did not make a showing sufficient to require the trial court to hold an in camera hearing on the issue of disclosure.\\nBecause we find that Evid. Rule 510 is inapplicable to the facts in this case, we decline to reach the issue of the necessity for an in camera hearing under that rule. We discuss: the misapplication of Evid. Rule 510; the trial court's refusal to allow defendant's cross-examination of May Parker.\\nVOLUNTARY DISCLOSURE AND THE SIXTH AMENDMENT CLAIM\\nDefendant focuses his complaint on the trial court's refusal to disclose the informant's identity. The gist of defendant's argument, however, does not go to the question of identity, because it was obviously known to defendant. While the state never expressly admitted that May Parker was the confidential informant, this was the logical and inescapable conclusion drawn from the evidence. Defendant asserts, as he asserted repeatedly at trial, that the Evid. Rule 510 privilege is inapplicable to a situation where the identity of the informant is known to defendant. Defendant's real claim of error is predicated on a denial of the sixth amendment right to confrontation. Defendant contends the trial court's refusal to allow defense counsel to question the confidential informant on her relationship with the police effectively foreclosed defendant's presentation of his entrapment defense.\\nEvid. Rule 510(c)(1) provides:\\nVoluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the state.\\nDefendant contends that May Parker herself disclosed her identity as an informant by her own actions. At a bench conference just prior to trial, the trial court ruled that defendant might call the confidential informant as a witness as long as her identity as the confidential informant was not disclosed. The state responded to defendant's assertion that Ms. Parker had given herself up to be disclosed by her presence at the transaction, by asserting that the privilege belonged to the state and that Ms. Parker could not give it up. The state's argument is clearly incorrect considering the plain wording of the rule. See Westinghouse Electric Corp. v. City of Burlington, Vermont, 351 F.2d 762 (D.C.Cir.1965).\\nThe state argues that even if the identity of the informant can be \\\"inferred,\\\" absent a direct disclosure, Evid. Rule 510 prevents inquiry into the identity of the confidential informant. The Advisory Committee's Note to Standard 510, (identical to our Evid. Rule 510), states: \\\"Disclosure may be direct, or the same practical effect may result from action revealing the informant's interest in the subject matter.\\\" 2 Weinsteins Evidence, at 510-4 (1985). Thus, whether Parker's action waived the privilege or whether the privilege never applied because defendant always knew the identity of the confidential informant, Evid. Rule 510 was not a ground for the trial court's denial of defendant's right to cross-examine Parker as to her relationship with the police. See Dowd v. Calabrese, 101 F.R.D. 427 (D.C.Cir.1984). No Evid. Rule 510 privilege existed going into trial.\\nAt trial the undercover narcotics agent testified that Parker was instrumental in setting up the drug transaction; that beside the confidential informant, \\\"another female\\\" was at defendant's home; that Parker directed the agent to defendant and told the agent that defendant possessed 100 milligrams of Demerol. When defense counsel attempted to cross-examine the agent as to the deal Parker had with the police, the state objected to the relevancy of the question. At the bench conference immediately thereafter, the state argued that because there had been no disclosure, the confidential informant's relationship with the police was irrelevant. Defense counsel asserted that the informant's identity was not a secret and that his case required him to bring out the informant's relationship with the police. The judge ruled that the relationship was not yet relevant, but that if the informant testified, it might become relevant. Agent Rogers further admitted on cross-examination that he did not know if the Demerol was Helen Jackson's. He also testified that Jackson cooperated with defendant in selling the Demerol. Finally, when questioned about why he did not further investigate Helen Jackson, Rogers admitted, \\\"However the more you've talked, the more I see there is probably a good case on the other person.\\\"\\nDefendant contends that the confidential informant's deal with the police was relevant to his defense of entrapment and to the credibility and bias of May Parker. During defense counsel's direct examination of Parker, Parker testified that she went to defendant's house with Rogers; that she did not know who the pills belonged to; that Helen handed defendant some pills to sell to Rogers; that Rogers asked for pills; that Helen was a close friend of defendant; and that Helen and defendant had both been to her (Parker's) house earlier that day. Helen Jackson had no memory of the day in question and defendant testified that he had not been at Parker's house.\\nTestimony concerning bias and credibility is always relevant. State v. Santillanes, 86 N.M. 627, 526 P.2d 424 (Ct.App.1974); see also State v. Hermosillo, 88 N.M. 424, 540 P.2d 1313 (Ct.App.1975). Defendant was precluded from examining Ms. Parker on these issues. The court recognized that Parker was an adverse witness and allowed defense counsel to use leading questions in his direct examination. This is tantamount to cross-examination. The real issue presented to this court is whether the trial court's limitation on counsel's right of examination infringed on defendant's right of confrontation. While the admission or exclusion of evidence is largely left to the discretion of the trial court, where the court exercises its discretion on \\\"untenable grounds,\\\" the exclusion constitutes an abuse of discretion. Weiland v. Vigil, 90 N.M. 148, 560 P.2d 939 (Ct.App.1977). Defendant must demonstrate prejudice to a substantial right in order for a denial of cross-examination to amount to reversible error. State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984). For error to be prejudicial, the improperly refused evidence must form an important part of defendant's case. Id. at 725, 676 P.2d 247. To warrant reversible error in denial of admission of testimony, a defendant must show that there is a reasonable probability that the trial court's failure to allow the answers to the questions propounded contributed to defendant's conviction. State v. Garcia, 100 N.M. 120, 666 P.2d 1267 (Ct.App.1983).\\nAfter the court's refusal to allow defendant to examine Parker on her arrangement and relationship with the police, counsel, at the court's direction, made an oral tender as to the evidence he would present. Counsel stated that he would show that the nature of Parker's deal with the police made it necessary for her to deliver people to be \\\"busted.\\\" He also stated he would show that Jackson and Parker set defendant up. This offer of proof made known the substance of the evidence defendant wished to elicit. See State ex rel. Nichols v. Safeco Insurance Co. of America, 100 N.M. 440, 671 P.2d 1151 (Ct.App.1983). Without a question- and-answer tender, we are left to speculate whether Ms. Parker would or would not have confirmed counsel's assertions, and whether Ms. Parker could have bolstered defendant's entrapment theory. We must assume that defense counsel could have shown what he offered to show in his oral tender.\\nThe trial court based its refusal to allow cross-examination of Rogers and Parker on the confidential informant privilege, a privilege which we conclude did not apply in this case. Defendant's entire case revolved around the issue of entrapment by Parker and possibly Jackson. The denial of the requested cross-examination effectively prevented defendant from exploring Ms. Parker's motives and from presenting his entrapment defense. See Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969); State v. Lovato, 91 N.M. 712, 580 P.2d 138 (Ct.App.1978); State v. Curtis, 87 N.M. 128, 529 P.2d 1249 (Ct.App.1974).\\nThe state asserts that defendant did not dispute the drug sale and, thus, the denial of cross-examination was harmless error. There are two problems with this contention: first, defendant did deny that he sold drugs; second, even if defendant's testimony is read as an admission of guilt, the admission is an essential element of an entrapment defense. State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App.1972). Under these circumstances, the trial court's denial of cross-examination was an abuse of discretion amounting to prejudicial error. Cf. State v. Guess, 98 N.M. 438, 649 P.2d 506 (Ct.App.1982).\\nIt is the denial of cross-examination that lies at the heart of this case. Whatever the error may have been in not conducting an in camera hearing at the pretrial stage, the fact is that the confidential informant was known to defendant; she did testify as a witness for the defense. The error we perceive was the trial court's ruling that Evid. Rule 510 applied to this case at all and its consequent denial of cross-examination. This ruling handicapped defendant's presentation of his case and denied him a right guaranteed by the federal and state constitutions. See State v. Baldizan, 99 N.M. 106, 654 P.2d 559 (Ct.App.1982). Accordingly, we reverse defendant's conviction and remand for a new trial.\\nTHE ENTRAPMENT INSTRUCTION\\nThe trial court's refusal to give the entrapment instruction cannot be separated from its refusal to allow defendant to present an entrapment defense. Because we resolve this case on the issue of the applicability of the Evid. Rule 510 privilege and the violation of defendant's right to confront the witnesses against him, we need not further consider the issue of the entrapment instruction.\\nDONNELLY, C.J., and BIVINS, J\\\" concur.\"}"
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+"{\"id\": \"716999\", \"name\": \"McCONAL AVIATION, INC., Plaintiff-Appellee, v. COMMERCIAL AVIATION INSURANCE COMPANY, Defendant-Appellant\", \"name_abbreviation\": \"McConal Aviation, Inc. v. Commercial Aviation Insurance\", \"decision_date\": \"1990-10-10\", \"docket_number\": \"No. 18466\", \"first_page\": \"697\", \"last_page\": 704, \"citations\": \"110 N.M. 697\", \"volume\": \"110\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:13.758672+00:00\", \"provenance\": \"CAP\", \"judges\": \"BACA, J., concurs.\", \"parties\": \"McCONAL AVIATION, INC., Plaintiff-Appellee, v. COMMERCIAL AVIATION INSURANCE COMPANY, Defendant-Appellant.\", \"head_matter\": \"799 P.2d 133\\nMcCONAL AVIATION, INC., Plaintiff-Appellee, v. COMMERCIAL AVIATION INSURANCE COMPANY, Defendant-Appellant.\\nNo. 18466.\\nSupreme Court of New Mexico.\\nOct. 10, 1990.\\nCarpenter, Crout & Olmsted, Rebecca Dempsey, Santa Fe, McClure & Eyler, Richard R. Eyler, Ann C. Rice, Denver, Colo., for defendant-appellant.\\nHinkle, Cox, Eaton, Coffield & Hensley, Nancy S. Cusack, Albert L. Pitts, Roswell, for plaintiff-appellee.\", \"word_count\": \"3775\", \"char_count\": \"23374\", \"text\": \"OPINION\\nWILSON, Justice.\\nDefendant Commercial Aviation Insurance Company, Inc. (Commercial) appeals a trial court judgment awarding Plaintiff McConal Aviation, Inc. (McConal) $65,000 in damages plus interest and costs, without credit for amounts paid by another settling defendant. We affirm the trial court. FACTS\\nIn October 1984 Falcon Insurance Agency (Falcon) and McConal agreed that Falcon would obtain property insurance for an aircraft owned by McConal. McConal executed an installment contract to pay for the insurance and Falcon indicated that the policy was effective beginning October 12, 1984. Falcon then contacted Aviation General Insurance Company, Inc. (Aviation), an insurance broker, to obtain an insurance binder for McConal's policy. At Aviation's request Commercial issued a binder for a thirty-day period, ending November 12, 1984. Commercial then sent Aviation a letter requesting that McConal fill out an application for insurance and return it before the binder expired. Although Aviation apparently received a timely completed application and subsequently forwarded it to Commercial, Commercial did not receive it until November 25, 1984, thirteen days after the binder expired.\\nMcConal was unaware that its aircraft was insured for only one month. On November 21, 1984 the aircraft was involved in a crash and sustained $47,369.30 in damages. When McConal requested monies to repair the aircraft, Falcon disclosed that the insurance was not in effect at the time of the crash and refused to pay.\\nOn August 26, 1985 McConal sued Falcon, Aviation, and Commercial alleging breach of contract, negligence, bad faith, and deceptive trade practices. Specifically, McConal alleged: (1) Falcon breached its contractual duty to procure property insurance for the aircraft; (2) Falcon was Commercial's agent and Commercial was thus liable as its principal; and (3) Aviation was negligent in failing to forward to Commercial the information necessary to continue McConal's policy. McConal sought compensatory damages, punitive damages, and treble damages pursuant to the Unfair Trade Practices Act, NMSA 1978, Section 57-12-1 et seq.\\nFalcon never appeared in the action. A week prior to trial, Aviation settled with McConal for $40,000 and trial was held solely against Commercial. The trial court granted Commercial's motion for a directed verdict as to the negligence count, and McConal withdrew the deceptive trade practices claim. Thus the only claim remaining for the jury was for breach of contract against Commercial.\\nAmong the proposed jury instructions Commercial submitted was a modified version of SCRA 1986, 13-1825 (UJI 1825), which the court rejected on grounds that the jury was not entitled to be informed of a prior settlement. The jury was not told of the other original defendants and was merely instructed as to McConal's damages. The jury returned a $65,000 verdict in McConal's favor.\\nAfter the verdict, Commercial argued that it should receive a $40,000 credit towards the judgment, representing the amount of Aviation's settlement with McConal. The trial court denied Commercial's motion for a credit for the settlement amount and entered judgment against Commercial for $65,000. Commercial appeals the trial court's judgment.\\nISSUES\\nOn appeal Commercial claims the trial court erred in: (1) refusing to submit Commercial's requested jury instruction based on UJI 1825, and (2) refusing to credit the amount of Aviation's settlement with McConal toward the judgment against Commercial. We address each issue in turn.\\nDISCUSSION\\n1. Jury Instruction\\nCommercial first claims the trial court erred by refusing to submit its modified version of the uniform jury instruction on contribution among tortfeasors.\\nThe directions for use of UJI 1825 state that \\\"[t]his instruction is to be used only where a joint tortfeasor has been released in conformity with the Uniform Contribution Among Tortfeasors Act, 41-3-1, NMSA 1978 \\\" (emphasis added). For purposes of the Contribution Among Tortfeasors Act, \\\"the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.\\\" NMSA 1978, 41-3-1 (Repl.Pamp.1989) (emphasis added).\\nIn this case Commercial successfully obtained a dismissal of the complaint of negligence and the matter went to the jury only on the breach of contract claim. Therefore, the jury was not deciding a tort claim but a contract claim. Also, there was never a determination of liability against Aviation, so there has been no finding that any defendant is a tortfeasor. Thus the trial court did not err; the instruction was properly refused.\\n2. Credit of McConal's Settlement\\nCommercial contends that the trial court committed reversible error by refusing to credit the amount paid in settlement by Aviation to the verdict entered against Commercial. Commercial asserts that the failure to credit the amount paid by Aviation results in an impermissible double recovery by McConal. The argument is based on the contention that \\\"McConal sued several Defendants to redress the one wrong which it suffered. It was clearly seeking only one recovery arising from the one incident.\\\" We cannot agree.\\nThe jury found that a valid contract existed between McConal and Commercial and then found damages of $65,000 resulted from Commercial's breach of the contract. The claim against Aviation was for negligence in failing to forward the application. Had that claim also gone to the jury it might well have awarded McConal additional damages caused by Aviation's negligence. That would not have represented double recovery for the same wrong, and this fact is not changed by Aviation's decision to settle any claims against it.\\nMcConal, on the other hand, asserts that the settlement with Aviation falls squarely within the confines of Exum v. Ferguson, 97 N.M. 122, 637 P.2d 553 (1981), and therefore should not be credited against the jury award against Commercial. We agree that Exum controls in this case.\\nIn Exum the plaintiff sued two defendants, one of whom settled with the plaintiff prior to trial. The case proceeded against the remaining defendant based on a breach of contract claim. The defendant requested that the amount of the settlement be credited against the jury award, based on the Uniform Contribution Among Tortfeasors Act. The trial court refused to credit the settlement amount against the damages awarded by the jury for breach of contract. This court upheld the trial court, pointing out that no tort claim had been made against the remaining defendant. We held that \\\"[bjecause Occidental's and Ferguson's suits were based on different theories of liability, they are not joint tortfeasors and Ferguson is not entitled to a credit of Occidental's settlement.\\\" Id. at 125, 637 P.2d at 556. Likewise, this case was not tried under a tort theory. Therefore, Commercial and Aviation are not joint tortfeasors, and Commercial is not entitled to credit for the settlement paid by Aviation.\\nCommercial attempts to distinguish Exum by pointing out that in that case it was the insurer that had settled with the plaintiff on a breach of contract claim and the case proceeded to trial on tort claims against another defendant, whereas in this case an alleged tortfeasor settled with McConal and only the breach of contract suit against the insurer was tried. We find this distinction to be irrelevant. As in Exum, there are no joint tortfeasors involved in this case.\\nCommercial also argues that in New Mexico a plaintiff cannot recover more than his actual losses. While this is a correct statement of the general rule, an exception is the collateral source rule. The collateral source rule allows a plaintiff to recover his full losses from the responsible defendant, even though he may have recovered part of his losses from a collateral source.\\nAs a general rule, benefits received by the plaintiff from a source collateral to the tortfeasor or contract breacher may not be used to reduce the defendant's liability for damages. This rule holds even though the benefits are payable to the plaintiff because of the defendant's actionable conduct and even though the benefits are measured by the plaintiff's losses.\\nD. Dobbs, Handbook on the Law of Remedies \\u00a7 3.6, at 185 (1973).\\nWe find persuasive the case of Rose v. Hakim, 335 F.Supp. 1221 (D.D.C.1971) cited by McConal. The Hakim case involved a malpractice claim where the plaintiff settled with two of the medical practitioners for the sum of $270,000 and then took the defendant hospital to trial, recovering a jury verdict of $294,777.25, representing full compensation to the plaintiff. After the jury verdict the defendant hospital claimed the right to credit for the $270,000 paid by the settling defendants.\\nIn rejecting the hospital's claim, the court noted that the settling defendants were found to be free of fault by the jury and that they were therefore not tortfeasors, as they had committed no tort. The amounts paid by the settling defendants were, \\\"in the legal sense, voluntary. They were, in legal terminology, collateral sources.\\\" Id. at 1236. The court then quoted Hudson v. Lazarus, 217 F.2d 344, 346 (D.C.Cir.1954):\\n\\\"In general the law seeks to award compensation, and no more, for personal injuries negligently inflicted. Yet an injured person may usually recover in full from a wrongdoer regardless of anything he may get from a 'collateral source' unconnected with the wrongdoer. Usually the collateral contribution necessarily benefits either the injured person or the wrongdoer. Whether it is a gift or the product of a contract of employment or of insurance, the purposes of the parties to it are obviously better served and the interests of society are likely to be better served if the injured person is benefitted than if the wrongdoer is benefitted.\\\"\\n335 F.Supp. at 1236. We agree with the Hudson court that if a collateral resource is to benefit a party, it should better benefit the injured party than the wrongdoer.\\nThere are also sound policy reasons for not permitting the offset. The policy of New Mexico is to favor amicable settlement of claims without litigation. Ratzlaff v. Seven-Bar Flying Serv., Inc., 98 N.M. 159, 646 P.2d 586 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). We feel compelled to enforce the terms and expectations of the settling parties. See D. D. Williamson & Co. v. Allied Chem. Corp., 569 S.W.2d 672 (Ky.1978). In Williamson, one defendant (Allied) argued that it was entitled to a credit against a jury award to the extent of a settlement paid by another defendant (PB & S). The plaintiff Williamson, like McConal, insisted that he should retain the benefit of his bargain and settle ment with PB & S and that Allied should not benefit from the settlement to which it was not a party. The Williamson court said:\\nWilliamson and PB & S reached an arms length negotiated settlement. PB & S bought its peace and Williamson sold its claim against PB & S for a price satisfactory to the settling parties. Allied and Williamson took their dispute to the jury. To now allow Allied to benefit from PB & S's generosity discourages the policy of encouraging and finalizing partial settlements .\\n\\nWe conclude in this case that the same policy militates in favor of allowing the plaintiff to enjoy a favorable settlement or being bound by a poor settlement.\\n569 S.W.2d at 674.\\nIn agreeing to settle, McConal and Aviation both gambled that they were faring better than if they had gone to trial. Both remain bound to that settlement, even if subsequent events should prove them wrong. Yet if we were to allow Commercial the offset it seeks, the odds would be better for a defendant who refuses to settle and proceeds to trial; he might well have part of his liability borne by a party who had not been adjudged liable and might never have been even if he had gone to trial. In short, Commercial would reap the benefit of a settlement to which it was not a party.\\nCONCLUSION\\nWe conclude that the same policy which binds a plaintiff to a poor settlement permits him to enjoy a favorable settlement. There was no error in refusing to offset the judgment and therefore the trial court is affirmed.\\nIT IS SO ORDERED.\\nBACA, J., concurs.\\nMONTGOMERY, J., specially concurring.\"}"
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+"{\"id\": \"720173\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Frank Steven APODACA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Apodaca\", \"decision_date\": \"1991-04-25\", \"docket_number\": \"No. 12274\", \"first_page\": \"302\", \"last_page\": 307, \"citations\": \"112 N.M. 302\", \"volume\": \"112\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:27:29.043201+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONNELLY and BIVINS, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Frank Steven APODACA, Defendant-Appellant.\", \"head_matter\": \"814 P.2d 1030\\nSTATE of New Mexico, Plaintiff-Appellee, v. Frank Steven APODACA, Defendant-Appellant.\\nNo. 12274.\\nCourt of Appeals of New Mexico.\\nApril 25, 1991.\\nCertiorari Denied July 8, 1991.\\nTom Udall, Atty. Gen., Margaret B. Al-cock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\\nTodd Hotchkiss, Timothy M. Padilla & Associates, P.C., Albuquerque, for defendant-appellant.\", \"word_count\": \"2563\", \"char_count\": \"16015\", \"text\": \"OPINION\\nHARTZ, Judge.\\nDefendant was convicted of possession with intent to distribute marijuana. He was stopped while driving north on Interstate 25 south of Socorro. Officer Pete Conticelli stopped the vehicle for an alleged violation of the New Mexico safety-belt statute. After inquiry regarding the ownership and destination of the vehicle, Officer Conticelli obtained permission to look in the trunk. There he found a suitcase from which he claimed he detected the odor of marijuana. With the assistance of a passing border patrol agent, Officer Conticelli broke open the suitcase; it contained the marijuana that formed the basis of defendant's conviction.\\nOn appeal defendant challenges the denial of his motion to suppress the marijuana. He contends: (1) the officer did not have reasonable suspicion to justify the initial stop of his vehicle, (2) the stop was pretextual, (3) consent to search was illegally obtained during the course of an unjustifiably prolonged detention, (4) any consent to search was withdrawn before the suitcase was opened, and (5) the warrantless search of the suitcase was unlawful. Defendant also contends that there was insufficient evidence to establish that the alleged crime occurred in New Mexico. We affirm.\\nWe view the evidence in the light most favorable to support the district court's ruling on the motion to suppress and the jury's verdict. See State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978); State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App. 1983).\\nI. THE STOP\\nThe New Mexico safety belt statute, NMSA 1978, Section 66-7-372(A) (Repl. Pamp.1987) states in pertinent part:\\n[E]ach front seat occupant of a passenger car manufactured with safety belts in compliance with federal motor vehicle safety standard number 208 shall have a safety belt properly fastened about his body at all times when the vehicle is in motion, unless all seating positions equipped with safety belts are occupied.\\nOfficer Conticelli testified that he stopped defendant's vehicle because the shoulder harnesses for the driver and front seat passenger were dangling from the ceiling. Defendant contends that the dangling shoulder harnesses did not establish noncompliance with the statute because the statute required only fastening the lap belt, which could be disconnected from the shoulder harness. Therefore, in his view, Officer Conticelli did not have reasonable grounds to believe that defendant and his passenger were violating the law.\\nWe find it unnecessary to decide whether defendant's construction of Section 66-7-372 is correct. Even if it is, Officer Conticelli possessed sufficient information to establish reasonable suspicion justifying the stop. We agree with the district court that police officers should not be required to know the design of the safety-belt system in every motor vehicle. Moreover, regardless of whether Officer Conticelli knew that the lap belt could be detached from the shoulder harness in defendant's vehicle, it was reasonable for him to believe that a driver or passenger who permitted the shoulder harness to dangle free was not wearing his lap belt either. A reasonable suspicion may be a mistaken one. Cf. State v. Eden, 108 N.M. 737, 779 P.2d 114 (Ct.App.1989) (reasonable but mistaken belief that snowmobile was a motor vehicle did not invalidate arrest).\\nII. PRETEXT\\nDefendant argues that the stop of his vehicle was unconstitutional under the doctrine expressed in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988). Guzman held that a stop is unconstitutional if \\\" 'under the same circumstances a reasonable officer would [not] have made the stop in the absence of the invalid purpose.' \\\" Id. at 1515 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986) (emphasis in original). As in State v. Benjamin C., 109 N.M. 67, 781 P.2d 795 (Ct.App.1989), we need not decide whether to follow Guzman, because the Guzman pretext doctrine would not invalidate the stop in this case.\\nThe district court rejected defendant's claim under Guzman, making a specific finding that \\\"the stop was not pretextual in nature.\\\" Officer Conticelli testified that he had a practice of stopping vehicles for violations of the safety-belt law. He stated that in the past year he had issued some fifty citations and an additional fifty warnings for such violations. He testified that he had consulted with his superiors about this practice. Defense counsel vigorously cross-examined the officer concerning his motivations for the stop, and defendant's testimony at the suppression hearing could have cast suspicion on the officer's testimony. The issue, though, is whether the evidence at the hearing was sufficient to justify the district court's determination that the stop was not pretextual. It was. See United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990).\\nIII. PROLONGATION OF THE STOP\\nDefendant contends that even if the initial stop was lawful, he should have been released prior to the request to search the trunk. We disagree.\\nAfter defendant was stopped, he exited his vehicle and approached Officer Conticelli, who requested defendant's driver's license. Officer Conticelli noted that defendant carried a Texas driver's license while the vehicle bore Oklahoma license plates. During a period of less than ten minutes Officer Conticelli pursued this discrepancy. He requested the vehicle registration. Defendant could not produce one. Defendant stated that he was buying the vehicle from someone named \\\"Jason.\\\" He also stated that he had been in El Paso and was returning the car to Jason in Oklahoma. When Officer Conticelli asked defendant how he had travelled to El Paso in the first place, defendant did not respond. When the officer asked the passengers in the vehicle where they were going, they said Ruidoso. Defendant did not respond when the officer asked him why the passengers and defendant declared different destinations. During the conversation defendant appeared nervous as he repeatedly removed and put on his sunglasses. At some point during these discussions Officer Conticelli ran a computer check on defendant's vehicle. The check came back \\\"not on file,\\\" which the officer interpreted as meaning that the vehicle was newly registered. His suspicions aroused by the information he had obtained, Officer Conticelli requested permission to look in the trunk of the vehicle. Defendant does not challenge the district court's finding that he voluntarily consented.\\nWe hold that the information acquired by Officer Conticelli was sufficiently suspicious to justify the relatively brief detention of defendant and his vehicle. Officer Conticelli's inquiries were appropriate police work. When Officer Conticelli requested permission to look in the trunk, there were still several suspicious circumstances that had not been resolved. Therefore, we need not rely on our holding in State v. Bolton, 111 N.M. 28, 801 P.2d 98 (Ct.App. 1990), that even after reasonable suspicion has been dissipated, an officer may detain a motorist momentarily to request permission for a search. Also, because Officer Conticelli had reasonable grounds to detain defendant, we need not decide whether the latter part of the conversation took place during a detention or during a consensual encounter. See United States v. Werking (encounter between officer and driver became consensual citizen encounter once officer returned license and registration to driver); United States v. Deases, 918 F.2d 118 (10th Cir.1990) (following Werking).\\nOn appeal defendant makes much of Officer Conticelli's testimony that defendant and his passengers were free to leave while the officer was conducting his inquiry. Defendant suggests that this testimony meant that any suspicion must have lapsed. The officer's subjective belief, however, is not relevant to the existence of reasonable suspicion. See Bolton, 111 N.M. at 42, 801 P.2d at 112; 1 W. LaFave, Search and Seizure \\u00a7 3.2(b) (2d ed. 1987). The information known to Officer Conticelli justified the detention. Nothing more was required.\\nIV. SEARCH OF THE SUITCASE\\nDefendant contends that the search of the suitcase found in the trunk cannot be justified as a consent search. The state does not challenge that contention. The findings of the district court refer only to consent to search the trunk. The court justified the search of the suitcase itself on the basis of probable cause. Therefore, we consider whether there was probable cause to search the suitcase and whether that probable cause justified a search without a warrant.\\nThe district court found \\\"[t]hat probable cause existed for the search once the trunk was open and the officer identified marijuana on the outside of the suitcase.\\\" That finding was supported by the evidence. Officer Conticelli testified that when the trunk was opened he observed three small overnight bags and a suitcase. On the handle of the suitcase was a green substance that he believed to be marijuana. He leaned his head near the suitcase and smelled the odor of marijuana. He had considerable training and experience in detecting marijuana by its odor. Thus, Officer Conticelli had probable cause to believe that the suitcase contained marijuana. See State v. Capps, 97 N.M. 453, 641 P.2d 484 (1982); State v. Sandoval, 92 N.M. 476, 590 P.2d 175 (Ct.App.1979).\\nTo justify searching the suitcase without a warrant, however, the officer needed probable cause to search not just the suitcase but the entire vehicle. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the United States Supreme Court held that if officers possess probable cause to justify the search of a motor vehicle, they can search without a warrant every part of the vehicle and its contents, including sealed containers, that may conceal the object of the search. Id. at 825, 102 S.Ct. at 2173. The New Mexico Supreme Court followed Ross in State v. Pena, 108 N.M. 760, 779 P.2d 538 (1989). Boss overruled in part Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (ordinarily need warrant to search luggage in automobile), upon which we relied in State v. White, 94 N.M. 687, 615 P.2d 1004 (Ct.App.1980), and State v. Walker, 93 N.M. 769, 605 P.2d 1168 (Ct.App.1980). Although we have previously recognized the rule in Boss, see State v. Miles, 108 N.M. 556, 775 P.2d 758 (Ct.App. 1989), we have not expressly overruled White and Walker to the extent that they are inconsistent with Ross. It is appropriate for us to do so now, particularly given our Supreme Court's approval of Ross in its decision in Pena.\\nIn this case Officer Conticelli had probable cause to search the entire vehicle. Having identified marijuana on (and in) one container in the vehicle, he had probable cause to believe that elsewhere in the vehicle there was additional marijuana and other evidence of the offense, such as documentation identifying the perpetrators. See State v. Pena (discovery of marijuana residue on roach clip in vehicle ashtray established probable cause to search entire vehicle); State v. Capps (odor of marijuana provided probable cause to search passenger compartment and trunk); State v. Sandoval (same).\\nThe fact that the evidence of the presence of contraband may have focused on a specific container did not dispel probable cause to search the entire vehicle. In United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), officers who had been conducting surveillance on two pickup trucks smelled marijuana as they approached the vehicles. In the back of the trucks they recognized packages of the sort commonly used for marijuana. The Supreme Court wrote:\\nGiven their experience with drug smuggling cases, the officers no doubt suspected that the scent was emanating from the packages that they observed in the back of the pickup trucks. The officers, however, were unaware of the packages until they approached the trucks, and contraband might well have been hidden elsewhere in the vehicles.\\nId. at 482, 105 S.Ct. at 884. The Court held that Ross applied because there was probable cause to search the vehicles.\\nIn our view, the United States Supreme Court decision in Johns, as well as New Mexico precedents such as Pena, Capps, and Sandoval, compel the conclusion that Officer Conticelli had probable cause to search the entire vehicle. Therefore, no warrant was required to search the suitcase.\\nV. PROOF THAT THE CRIME OCCURRED IN NEW MEXICO\\nThe state bore the burden of proving beyond a reasonable doubt that the alleged offense occurred within New Mexico. See State v. Benjamin C.. Defendant contends that the state failed in meeting this burden because of the absence of affirmative evidence that defendant was seized at a particular place in New Mexico. We reject this contention. Circumstantial evidence sufficed to establish the location of the crime. See State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976).\\nThe state's summary of the pertinent evidence, which has not been challenged by defendant, includes:\\n1. Officer Conticelli testified that he was a New Mexico State Police Officer residing in Socorro and that he was on his regular patrol when he stopped defendant on Interstate 25.\\n2. Officer Conticelli testified that he ran a registration check through the State of Oklahoma on the license plate displayed on defendant's vehicle. When asked how long the check took, he responded: \\\"From out of state it takes longer than New Mexico. It took a couple of minutes.\\\"\\n3. When cross-examined about the identity of the border patrol agent who assisted him in opening the suitcase, Officer Conticelli testified that the agent regularly transported illegal aliens back and forth through Officer Conticelli's patrol area and routinely stopped to offer Offi cer Conticelli assistance. Asked where the agent patrolled, Officer Conticelli answered: \\\"He doesn't patrol. All he does is transport prisoners from Albuquerque to down south \\u2014 T or C or wherever their holding area is for the illegals.\\\"\\n4. A state police narcotics agent called to establish the chain of custody of the marijuana testified that he took custody of the blue suitcase containing the marijuana from Officer Conticelli in Socorro.\\n5. State's Exhibit 3, a New Mexico State Police form entitled \\\"Drug Control Report,\\\" records that the marijuana was seized on Interstate 25 in Socorro County-\\nTo this summary we need add only that there was no need to tell a jury in Socorro County that Socorro and T or C (whose official name is \\\"Truth or Consequences\\\") are within New Mexico.\\nVI. CONCLUSION\\nFor the above reasons, we affirm defendant's conviction.\\nIT IS SO ORDERED.\\nDONNELLY and BIVINS, JJ., concur.\\n. The state also contends that defendant abandoned the suitcase, thereby waiving any fourth amendment protection with respect to the suitcase. We do not address that argument. The district court made no finding regarding abandonment. Nor does the state's brief or our review of the record indicate that the issue was preserved in the district court.\\n. We note that this is not \\u00e1 case where an officer with probable cause to search a suitcase delayed seizing it until it was placed in a vehicle. In that circumstance it may be unreasonable to search the suitcase without a warrant despite probable cause to search the entire vehicle. Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (unlawful to conduct warrantless search of footlocker seized as it was being placed in trunk of vehicle): United States v. Barrett, 890 F.2d 855, 862 (6th Cir.1989) (probable cause acquired after container placed in vehicle).\"}"
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+"{\"id\": \"723257\", \"name\": \"STATE of New Mexico, Plaintiff-Appellant, v. Moises ALVAREZ, Defendant-Appellee\", \"name_abbreviation\": \"State v. Alvarez\", \"decision_date\": \"1991-10-04\", \"docket_number\": \"No. 12643\", \"first_page\": \"82\", \"last_page\": 85, \"citations\": \"113 N.M. 82\", \"volume\": \"113\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:05:19.761843+00:00\", \"provenance\": \"CAP\", \"judges\": \"ALARID, C.J., and DONNELLY, J., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellant, v. Moises ALVAREZ, Defendant-Appellee.\", \"head_matter\": \"823 P.2d 324\\nSTATE of New Mexico, Plaintiff-Appellant, v. Moises ALVAREZ, Defendant-Appellee.\\nNo. 12643.\\nCourt of Appeals of New Mexico.\\nOct. 4, 1991.\\nCertiorari Denied Dec. 4, 1991.\\nTom Udall, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\\nJacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellee.\", \"word_count\": \"1756\", \"char_count\": \"10700\", \"text\": \"OPINION\\nFLORES, Judge.\\nOn August 30, 1990, the trial court entered an order suppressing evidence law enforcement officers seized pursuant to a search warrant. On September 13, 1990, the state filed a notice of appeal. The state argues that the affidavit supporting the warrant contained sufficient information to establish probable cause. During the calendaring process, this court raised the issue of whether we should dismiss the state's appeal for failure to timely file a notice of appeal. See NMSA 1978, \\u00a7 39-3-3(B) (Repl.Pamp.1991); Rice v. Gonzales, 79 N.M. 377, 444 P.2d 288 (1968) (court will sua sponte consider whether it properly has jurisdiction). The parties have briefed both issues. The state's position rests on the premise that an appeal from a suppression order is a constitutional appeal as of right. Defendant's rejoinder is that there is no constitutional appeal as of right from a suppression order. We agree with defendant. We dismiss the appeal as non-timely and do not reach the question of whether probable cause supported the search warrant.\\nRelevant Statutes and Rules\\nThis case requires we construe a constitutional provision, a statute and a supreme court rule. Section 39-3-3(B)(2) allows the state ten days within which to file a notice of appeal of a suppression order. SCRA 1986, 12-201(A) (Cum.Supp.1991) allows the state thirty days within which to file a notice of \\\"[a]n appeal permitted by law as of right SCRA 1986, 12-202(A). In this case, the state filed its notice of appeal in the district court on the fourteenth day after entry of the suppression order. If the ten-day limitation in Section 39-3-3(B)(2) controls, then the state's notice of appeal is late. A timely notice of appeal is a \\\"mandatory\\\" requirement. Govich v. North Am. Sys., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). When the state has filed an untimely notice of appeal in the past, our supreme court has refused to consider the merits of the appeal. See State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947) (appeal properly dismissed for failure to comply with procedural rules; failure to procedurally perfect appeal deprives court of jurisdiction); but see Govich v. North Am. Sys. (failure to comply with mandatory appeal requirements of time and place of filing notice of appeal is an improper attempt to invoke jurisdiction but is not jurisdictional defect; court may properly exercise its discretion and invoke jurisdiction if substantive rights of the parties are not negatively affected thereby).\\nThe State's Argument\\nTo demonstrate the applicability of Rule 12-201(A), the state makes the following arguments: It has a constitutional appeal as of right. See N.M. Const. art. VI, \\u00a7 2. An appeal of a suppression order is not an appeal of a final order, and is thus interlocutory. Cf. State v. Hernandez, 95 N.M. 125, 619 P.2d 570 (Ct.App.1980) (court of appeals has discretion to refuse to consider interlocutory appeals). The state further asserts that because the court of appeals must consider a Section 39-3-3(B) appeal, it is an interlocutory appeal as of right. The state contends its appeal in the instant case is more than a statutory ap peal as of right because Section 39-3-3(B) is not a grant of appellate jurisdiction but a mere codification of a constitutional right to appeal. See State v. Santillanes, 96 N.M. 482, 632 P.2d 359 (Ct.App.1980), rev'd on other grounds, 96 N.M. 477, 632 P.2d 354 (1981). Consistent with this notion is the state's reading of Rule 12-202 together with Section 39-3-3(B). In sum, the state argues that since an appeal from a suppression order is a constitutional right, rather than a statutory right, it follows that only the supreme court may regulate the time within which the state must exercise that right. See State v. Arnold. Thus this court is bound by this supreme court regulation of time, even if it conflicts with the statute. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).\\nWe have two difficulties with the arguments that the state makes to suggest that it has a constitutional appeal as of right from suppression orders. First, as the state admits, an appeal of a suppression order is fundamentally an interlocutory appeal. It generally occurs at the beginning or middle of litigation. We can foresee in many criminal cases there may be contemplation of further action in the case, such as where the evidence suppressed relates to one of many charges. Cf. Texas Pac. Oil Co. v. A.D. Jones Estate, Inc., 78 N.M. 348, 431 P.2d 490 (1967) (appeal of preliminary injunction interlocutory in nature because court contemplated further action in case). Yet the state's characterization of a suppression order appeal as an exception to our usual discretion in considering interlocutory appeals does not transform the appeal into one of constitutional dimension. The mandatory nature of suppression order appeals is rooted in Section 39-3-3(B), not the constitution.\\nIn Santillanes, the state's key authority in this case, the district court dismissed an enhancement proceeding with prejudice. The state's appeal of this disposition was not one that Section 39-3-3(B) expressly included. This court had to determine if the appeal was still viable by determining whether the state had a constitutional right to the appeal. The constitution allows appeals as of right only when \\\" '[t]he state is aggrieved by a disposition contrary to law State v. Santillanes, 96 N.M. at 485, 632 P.2d at 362, (quoting State v. Doe, 95 N.M. 90, 92, 619 P.2d 194, 196 (Ct.App.1980)). Because the \\\"disposition\\\" at hand in Santillanes was a dismissal with prejudice, we read the case to only proclaim a constitutional appeal as of right from the dismissal with prejudice.\\nThe state misreads the import of the Santillanes allusion to Section 39-3-3 as being a codification of the constitutional appeal as of right. We stated that Section 39-3-3 \\\"recognizes the State's constitutional right to appeal, and identifies circumstances permitting ordinary and interlocutory appeals State v. Santillanes, 96 N.M. at 486, 632 P.2d at 363. By these words we meant that Section 39-3-3 recognizes the constitutional right. In addition to and apart from that recognition, the statute \\\"identifies\\\" particular types of appeals. The statute does not subsume interlocutory appeals with constitutional appeals as of right. We did not read the statute as doing so. The fact remains that the state does not always have a constitutional right to appeal. See State v. Aguilar, 95 N.M. 578, 624 P.2d 520 (1981).\\nFurthermore, the fact that the prosecutor must certify that a Section 39-3-3(B) appeal is not for delay and is about material evidence is a positive indication that such appeals are not constitutional appeals as of right. See \\u00a7 39-3-3(B)(2). If the prosecutor cannot make this certification, then there is no statutory right to appeal. The certification is the legislature's way of assuring the prudence of our consideration of what is essentially an interlocutory appeal. The state does not persuade us that even if the prosecutor cannot make the proper certification there still exists a constitutional right to appeal an interlocutory order for the purposes of delay or about immaterial evidence. This court could exercise its discretion and refuse to consider such an appeal because it would be interlocutory and of isolated gravity. See State v. Aguilar.\\nSantillanes does not assist the state's position. Section 39-3-3(B) excepts sup pression order appeals from our usual discretionary consideration. N.M. Const. art. VI, Section 2 does not. We find no merit in the statement that the appeal in this case is a constitutional appeal as of right because we must consider it.\\nThe second difficulty we have with the state's suggested arguments is that we cannot agree with the state's reading of Rule 12-202. This rule, the state points out, applies to appeals as of right and specifically refers to a certificate that the prosecutor must file with the notice of appeal. See \\u00a7 39-3-3(B)(2). Because of this reference, the state suggests that the supreme court must have considered suppression order appeals to be appeals of right. Rule 12-202, however, does not limit its applicability to only constitutional appeals as of right. We will not say that the supreme court left such a limitation to attenuated conjecture, but would have expressly limited Rule 12-202 to that which the state argues. Cf. Burroughs v. Board of County Comm'rs of Bernalillo County, 88 N.M. 303, 540 P.2d 233 (1975) (courts should not read language into codified law when it makes sense as written). We find no merit in the state's reading of Rule 12-202.\\nThis appeal is not one of constitutional right. Absent a constitutional right, the state must look to a statutory grant of appellate jurisdiction. See \\u00a7 39-3-3(B). The statutory grant of ten days within which the state must follow mandatory notice of appeal requirements is .within the legislative power. See Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). The supreme court cannot create its own appellate jurisdiction for an extra twenty days by virtue of Rule 12-201(A). To interpret the rule in this fashion would be to assume the supreme court adopted a rule inconsistent with controlling statutory law. We will not do so. Cf. Quintana v. New Mexico Dep't. of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983) (when interpreting statutes, courts should assume legislature did not intend to enact law inconsistent with existing law). The state had to file its notice of appeal within ten days.\\nThe state provides us with no reason to exercise our discretion in favor of hearing the merits of this appeal. Accordingly, we deny to hear this appeal on its merits. Cf. Govich v. North Am. Sys. (exercising discretion to consider merits when appellant failed to follow mandatory requirement of proper record designation); State v. Duran, 105 N.M. 231, 731 P.2d 374 (Ct.App.1986) (exercising discretion to consider merits when appellant failed to follow mandatory requirement of timely notice of appeal).\\nFor the reasons stated above, the state's appeal is dismissed.\\nIT IS SO ORDERED.\\nALARID, C.J., and DONNELLY, J., concur.\"}"
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+"{\"id\": \"727686\", \"name\": \"VALLEY IMPROVEMENT ASSOCIATION, Plaintiff-Appellee, and Insurance Company of North America, Plaintiff-in-Intervention-Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellant\", \"name_abbreviation\": \"Valley Improvement Ass'n v. Hartford Accident & Indemnity Co.\", \"decision_date\": \"1993-10-26\", \"docket_number\": \"No. 20315\", \"first_page\": \"426\", \"last_page\": 431, \"citations\": \"116 N.M. 426\", \"volume\": \"116\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:19.397727+00:00\", \"provenance\": \"CAP\", \"judges\": \"BACA and FRANCHINI, JJ., concur.\", \"parties\": \"VALLEY IMPROVEMENT ASSOCIATION, Plaintiff-Appellee, and Insurance Company of North America, Plaintiff-in-Intervention-Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellant.\", \"head_matter\": \"863 P.2d 1047\\nVALLEY IMPROVEMENT ASSOCIATION, Plaintiff-Appellee, and Insurance Company of North America, Plaintiff-in-Intervention-Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellant.\\nNo. 20315.\\nSupreme Court of New Mexico.\\nOct. 26, 1993.\\nKlecan, Childress & Huling, Mark J. Klecan, Albuquerque, for defendant-appellant.\\nDines, Wilson & Gross, P.C., Alan R. Wilson and James M. Dines, Albuquerque, for plaintiff-appellee Ins. Co. of North America.\\nEaves, Bardacke & Baugh, P.A., John M. Eaves and David A. Garcia, Albuquerque, for plaintiff-appellee Valley Improvement Ass\\u2019n.\\nSheehan, Sheehan & Stelzner, P.A., Judith D. Schrandt, Albuquerque, for amicus curiae Atlanta Intern. Ins. Co.\\nCarpenter, Comeau, Maldegen, Brennan, Nixon & Templeman, Michael W. Brennan, Stephan J. Lauer and Grey W. Handy, Santa Fe, for amicus curiae Allstate Ins. Co.\\nGallagher, Casados & Mann, Nathan H. Mann and M. Clea Gutterson, Albuquerque, for amicus curiae Nat. Union Fire Ins. Co.\\nRobert B. Collins, Albuquerque, for amicus curiae U.S. Fidelity & Guar. Co.\\nAtwood, Malone, Mann & Turner, P.A., Lee M. Rogers, Jr., Roswell, for amicus curiae Royal Ins. Co.\\nSimone, Roberts & Weiss, P.A., Stephen M. Simone, Albuquerque, for amicus curiae Bituminous Cas. Corp., and Bituminous Fire & Marine Ins. Co.\", \"word_count\": \"2268\", \"char_count\": \"14548\", \"text\": \"OPINION\\nFROST, Justice.\\nIn this case we consider whether a final judgment was rendered in a declaratory action brought by an insured to establish its insurer's contractual obligations of defense and indemnification. The district court ruled that the insurer was liable to the insured, but it expressly reserved jurisdiction to rule later on the amount of the damages award, including the percentage of defense and liability costs the defendant-insurer would owe in light of certain non-party insurers' contributory liability. Because the district court awarded damages but failed to quantify them, the district court's judgment was not final. We therefore dismiss the appeal for lack of jurisdiction.\\nPROCEDURAL HISTORY\\nPlaintiff-appellee Valley Improvement Association, Inc. (\\\"VIA\\\") filed a declaratory action for damages against defendant-appellant Hartford Accident and Indemnity Company (\\\"Hartford\\\"). Pursuant to its Hartford insurance policies, VIA sought judgment declaring that Hartford must indemnify it for any liability resulting from Yates Exploration, Inc. v. Valley Improvement Association, Inc., No. VA-86-61-CV (N.M.Dist.Ct. filed Feb. 13, 1986) (the \\\"Yates\\\" action), a lawsuit alleging various types of misconduct by VIA regarding its management and development of certain investment property in central New Mexico. VIA also sought a declaration that Hartford must pay for its defense of the Yates action. Insurance Company of North America, Inc. (\\\"INA\\\"), an insurer of VIA that voluntarily assumed its duty to defend VIA in the Yates action, intervened on the side of VIA.\\nWhile this declaratory action was pending, VIA and INA brought a similar lawsuit in federal district court against seven other insurance companies. Valley Improvement Association, Inc. v. Atlanta International Insurance Co., No. CIV 88-0846 SC (D.N.M. filed July 19, 1988), (the \\\"federal\\\" action). The seven defendants in the federal action were, like Hartford, alleged to have a duty to defend and indemnify VIA for expenses of the Yates litigation. The federal action has been stayed pending our resolution of this appeal. The seven defendant-insurers in the federal action are not parties to the declaratory action before us against Hartford.\\nAfter trial on the merits, the district court concluded that Hartford had a duty to defend and indemnify VIA in the Yates action, but the court expressly left certain matters open for later resolution. The court specifically held that \\\"Hartford is liable to indemnify VIA for all amounts paid to date by VIA to defend or settle the Yates Action,\\\" that \\\"Hartford is obligated to contribute to the costs of defense incurred by both VIA and INA in defending the Yates Action,\\\" and that for INA's cost of defending the Yates action, \\\"Hartford is obligated to make full and complete contribution to INA.\\\" The trial court further stated in its conclusions of law:\\n15. VIA is entitled to receive damages as a result of Hartford's breach of contract and this Court shall retain jurisdiction for the purpose of determining damages owed by Hartford to VIA.\\n19. The Court will hold in abeyance and retain jurisdiction of this matter Findings of damages and attorney fees until the pending Federal case between VIA and its other liability insurers is resolved in Federal Court.\\nThe Court will use the formula for contribution to be developed by the Federal Court to determine which parties are liable for what amounts, and specifically the contributions that will be made by Defendant, Hartford to Plaintiffs, VIA and INA.\\nThe district court's Final Judgment and Order of November 1, 1991 fully incorporates these conclusions of law. The order states:\\n5. Hartford is liable to VIA for damages caused by Hartford's breach of the [Hartford insurance policy] issued to VIA, including, but not limited to, loss of income on funds advanced by VIA to pay defense costs in the Yates Action, attorney's fees and costs incurred by VIA in defense of the Yates Action and in prosecuting this case, and amounts paid to settle with Plaintiffs in the Yates Action.\\n8. The Court shall retain jurisdiction for the purposes of apportioning Hartford's liability for the continuing duty to defend and indemnify VIA in the Yates Action until this Court is satisfied that it can reasonably determine all damages, contribution amounts, attorneys fees and future legal expenses for which Hartford is liable to INA and VIA. Otherwise, this Court will use the formula for contribution developed in pending final judgments in [the federal action].\\nThis Court shall retain jurisdiction to determine the percentage of liability and damages to be assigned each party.\\nDISCUSSION\\nIn Principal Mutual Life Insurance Co. v. Straus, 116 N.M. 412, 863 P.2d 447 (1993), we discussed the final judgment rule, the attorney's fees exception to the final judgment rule adopted in Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 824 P.2d 1033 (1992), and the distinction between Kelly Inn-type attorney's fees and awards of compensatory damages that include attorney's fees from previous litigation. The concepts addressed in Principal Mutual are applicable and dispositive here.\\nWhen the issue of damages is before the district court, whether the action pursues coercive or declaratory relief, a judgment or order that reserves the issue of assessment of damages for future determination is not a final judgment for purposes of appeal. Principal Mutual, 116 N.M. at 413, 863 P.2d at 448. There is strong policy in New Mexico disfavoring piecemeal appeals, and although some judgments are appealable even though further proceedings are necessary to implement them, it is clear from our recent holding in Principal Mutual that quantification of damages is integral to the question of liability on the merits. Thus, if damages are awarded, they must be quantified precedent to final judgment and appeal. This rule is not applicable when the issue of damages is properly severed from a case adjudicating liability as may be done in some suits for declaratory relief.\\nThe district court's judgment was not final because it failed to quantify damages awarded to VIA and INA on its claim for indemnification against Hartford. The district court found Hartford liable for compensatory damages assessed against VIA in the Yates action, the cost of defending the Yates action including VIA's attorney's fees for its defense of Yates, amounts paid by VIA to settle with some Yates plaintiffs, and future expenses of defending the Yates litigation. None of these damages were quantified, and the district court expressly retained jurisdiction to \\\"determin[e] damages owed by Hartford to VIA,\\\" and \\\"to determine the percentage of liability and damages to be assigned each party.\\\"\\nThe district court apparently chose to assess damages later because the seven insurers defending the federal action could potentially share Hartford's indemnification liability to VIA and INA for the costs of the Yates action. If any of the seven insurers defending the federal action were found liable, Hartford's liability to VIA and INA could be affected accordingly. The district court probably reasoned that it should delay apportionment and quantification of the damage award against Hartford pending resolution of the federal action, rather than rule immediately and have to revisit later these issues in light of other insurers' contributory liability. But despite the fact that the district court may have had a logical rationale for retaining jurisdiction to apportion and quantify damages, its decision is not appealable; a judgment that awards damages as in this case but fails to quantify them is simply not final. See Principal Mutual, 116 N.M. at 416, 863 P.2d at 451.\\nBecause the damages award included elements of attorney's fees, we want to clarify the significance of Principal Mutual and Kelly Inn under the facts presented here. Principal Mutual held that a declaratory judgment for indemnification was not final because it awarded compensatory damages for the expenses of previous litigation including attorney's fees but failed to quantify the damages award. At 414, 863 P.2d at 449. In contrast, Kelly Inn held that a judgment resolving all issues of liability but not quantifying an attorney's fees award for the litigation in question was final and appealable because the attorney's fees were analogous to costs, supplementary to relief on the merits. 113 N.M. at 239, 241-42, 824 P.2d at 1041, 1043-44.\\nHere, two types of attorney's fees were awarded. Paragraph Five of the district court's Final Judgment and Order awarded \\\"attorney's fees and costs incurred by VIA [1] in defense of the [Yates ] [a]ction and [2] in prosecuting this case.\\\" The attorney's fees incurred by VIA in defense of the Yates action originated in previous, underlying litigation (the Yates action). Because these attorney's fees were not incurred to litigate the suit before us, they are not Kelly Inn-type attorney's fees quantifiable after appeal. Instead they are more like Principal Mutual-type attorney's fees, awarded to an indemnitee for expenses of previous, underlying litigation and redressing the core injury prompting the indemnification claim.\\nDecisions from other jurisdictions support our view that the first type of attorney's fees awarded in the district court's judgment does not fall within the Kelly Inn exception to the final judgment rule. Distinguishing attorney's fees that can be assessed after appeal from attorney's fees that cannot, the Eighth Circuit has explained that attorney's fees \\\"necessary to remedy the damage or injury sustained by a plaintiff\\\" must be quantified prior to appeal. Justine Realty Co. \\u00b6. American Nat'l Can Co., 945 F.2d 1044, 1048-49 (8th Cir.1991). Such fees include \\\"in an action against an insurer for failure to defend an underlying action as required by an insurance policy, plaintiff's costs and fees in defending the underlying action.\\\" Id. Additionally, the Third Circuit has held that in a lawsuit for breach of an insurer's duty to defend its insured in underlying litigation, damages awarded for attorney's fees incurred by the insured when defending itself in the underlying litigation are part and parcel of the relief sought on the merits and must be quantified before the judgment containing the award can be final. Beckwith Mach. Co. v. Travelers Indem. Co., 815 F.2d 286, 290-91 (3d Cir.1987).\\nThe second set of attorney's fees were incurred by VIA in prosecuting this case. These are Kelly Inn-type attorney's fees because they were incurred to litigate the case before us, assumably awarded pursuant to the Hartford insurance contract in question on the merits.\\nThus, the district court's judgment contains awards for damages on the merits of the indemnification claim, including the cost of defense {Principal Mutual-type attorney's fees), settlement, and damages incurred by VIA in the Yates action, and an award of Kelly Inn-type attorney's fees. Although the failure to quantify Kelly Inn-type attorney's fees does not preclude finality, 113 N.M. at 233, 824 P.2d at 1035, the other damages must be quantified precedent to appeal. The inclusion of Kelly Inn-type attorney's fees does not somehow bestow finality on the rest of the unquantified judgment for damages.\\nOur conclusion remains sound when tested by traditional finality principles. The general rule for determining finality is that \\\" 'an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible.' \\\" Kelly Inn, 113 N.M. at 236, 824 P.2d at 1038 (quoting B.L. Goldberg & Assocs. v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985)). The amount of Hartford's contribution for defending and indemnifying VIA for the costs of the Yates litigation is a substantive issue of fact and law that is still open. Although the seven insurers defending the federal action are not parties to this action and the trial court is powerless to rule on their contribution percentages at this time, INA is a party here, and the apportionment of liability between INA and Hartford is an unresolved issue that the district court could have disposed of more fully. Furthermore,- we see no reason why the damages award against Hartford could not have been quantified by the district court, even though Hartford's ultimate monetary exposure might be affected in future litigation adjudicating the apportionment of liability among Hartford and the seven insurers defending the federal action.\\nCONCLUSION\\nThe district court's failure to quantify damages renders its judgment non-final, even in the presence of currently unresolvable questions concerning the proper apportionment of indemnification liability among parties and non-parties. Before we may consider the merits of this dispute, the damage award against Hartford must be adjudicated to quantification. Whether final disposition by the district court is postponed until resolution of the federal action or not, the district court's judgment cannot undergo appellate review in its current state.\\nThe appeal is dismissed without prejudice.\\nIT IS SO ORDERED.\\nBACA and FRANCHINI, JJ., concur.\"}"
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+"{\"id\": \"77184\", \"name\": \"Jim ARAGON, et al., as homeowners in the Vista Land Subdivision, Plaintiffs-Appellants, v. George F.M. BROWN and Yvette Brown, Defendants-Appellees\", \"name_abbreviation\": \"Aragon v. Brown\", \"decision_date\": \"2003-08-28\", \"docket_number\": \"No. 22,472\", \"first_page\": \"459\", \"last_page\": 466, \"citations\": \"134 N.M. 459\", \"volume\": \"134\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:31:58.152695+00:00\", \"provenance\": \"CAP\", \"judges\": \"I CONCUR: JONATHAN B. SUTIN, Judge (specially concurring).\", \"parties\": \"Jim ARAGON, et al., as homeowners in the Vista Land Subdivision, Plaintiffs-Appellants, v. George F.M. BROWN and Yvette Brown, Defendants-Appellees.\", \"head_matter\": \"2003-NMCA-126\\n78 P.3d 913\\nJim ARAGON, et al., as homeowners in the Vista Land Subdivision, Plaintiffs-Appellants, v. George F.M. BROWN and Yvette Brown, Defendants-Appellees.\\nNo. 22,472.\\nCourt of Appeals of New Mexico.\\nAug. 28, 2003.\\nJohn P. Hays, Kenneth J. Cassutt, Cassutt, Hays & Friedman, P.A., Santa Fe, NM, for Appellants.\\nJames A. Chavez, James A. Chavez, P.C., Albuquerque, NM, for Appellees.\", \"word_count\": \"4241\", \"char_count\": \"26642\", \"text\": \"OPINION\\nVIGIL, Judge.\\n{1} This case presents an issue of first impression: whether validly enacted, unambiguous restrictive covenants running with the land (covenants) that do not violate public policy, statutory, or constitutional provisions are subject to a separate requirement of \\\"reasonableness\\\" before they are enforced by injunctive relief. Sixty-seven landowners in the Vista Land Subdivision (Subdivision) filed a complaint for injunctive relief seeking to remove a manufactured home Defendants (the Browns) placed in the Subdivision. The manufactured home violates pre-existing, valid covenants which clearly and unambiguously exclude the Browns' manufactured home. The covenants do not violate public policy, statutory, or constitutional provisions. However, the trial court ruled that insofar as the covenants exclude the Browns' manufactured home, they are \\\"not reasonable and should not, in equity, be enforced\\\" and denied injunctive relief. We hold that the trial court imposed an unnecessary requirement of \\\"reasonableness\\\" to issue an injunction in the circumstances of this case and reverse.\\nFACTS\\n{2} In 1971 the Vista Land Company established the Subdivision in Santa Fe County, New Mexico, to sell residential lots. The Vista Land Company established and recorded restrictive covenants in a Declaration of Restrictions binding all purchasers and successors in interest. The covenants, in pertinent part, provide that all lots in the Subdivision shall be known and described as residential lots, that only a single-family dwelling and other structures associated with a dwelling may be constructed on the lots, and that \\\"[n]o building shall be erected, placed or altered on any lot of this subdivision that does not conform\\\" to the covenants. The covenants originally stated, \\\"[n]o trailer . shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.\\\" The lot owners formed the Vista Landowners Association (Association) to enforce the covenants.\\n{3} The Association always allowed conventional homes which were not built on site, such as those built by Preferred Building Systems (Preferred), if they otherwise complied with the covenants. There are several such homes in the Subdivision, and not all of them were built by Preferred. However, when lot owners attempted to place manufactured homes on their lots, the Association told them manufactured homes were not allowed under the covenants, and asked that the manufactured homes be removed. All complied.\\n{4} The terminology of trailers versus mobile homes versus manufactured homes started getting confusing. Since the original covenants were binding until January 1, 2000, and automatically extended for successive periods of ten years unless a majority of the lot owners agreed to a change, the Association decided to clarify the covenants on the recommendation of their attorney. The ballot sent to the lot owners with the proposed change states in pertinent part:\\nI [We} approve [ ] do not approve [ ] (mark one) the proposed amendment to paragraph E of the Covenants, clarifying that manufactured homes are not permitted in the Subdivision, but offsite conventional homes (such as are built by Preferred Builders) are permitted.\\n{5} Sixty-six owners voted in favor of the amendment, and five voted against it. As amended, effective January 1, 2000, the covenants at issue read:\\nNo trailer, trailer house, motor home, mobile home, manufactured home, premanufactured home, modular home or other non site built home shall be moved onto or placed upon any lot in the Subdivision for use as a temporary or permanent residence, regardless of whether siMch home meets any federal or state standards for construction of such homes, and regardless of whether such home is placed on a permanent foundation. Notwithstanding the foregoing, conventional homes constructed offsite, similar to those currently sold by Preferred Building Systems in Albuquerque, New Mexico, shall be permitted, provided that the home meets all regulations and standards promulgated by the New Mexico Construction Industries Division for such homes. (Emphasis added.)\\n{6} Mr. and Mrs. Wilkinson had owned Lot 10-B in the Subdivision for approximately seventeen years. Mrs. Wilkinson served on the board of the Association and held various positions with the Association during the time she owned Lot 10-B. Mr. and Mrs. Wilkinson voted in favor of the amendments to the covenants. On October 13, 2000, the Browns acquired Lot 10-B from the Wilkinsons in a quitclaim deed. Mrs. Brown is the daughter of the Wilkinsons. The Browns had previously lived in the Subdivision in a Preferred home. They knew there were covenants, and they knew Preferred homes complied with the covenants. The Browns called Preferred to purchase a home, but because Preferred was going to take three months to provide a home, and the Browns wanted a home immediately, they decided to buy their home elsewhere. The Browns bought their home in July 2000, before they actually received title to their lot.\\n{7} When the home was delivered, neighbors immediately complained to the Browns that the home did not comply with the covenants. The president of the Association met with them and their builder and told them the home did not comply. The Association formally demanded that the home be removed, and the Browns refused. This suit to remove the home followed.\\n{8} The undisputed evidence is that the Browns' home does not meet all regulations and standards promulgated by the New Mexico Construction Industries Division (CID) for such homes, but it is built in conformance with all applicable federal Housing and Urban Development (HUD) regulations for a manufactured home built off-site. The trial court found that federal regulations:\\nAre intended to addi'ess and meet all local building codes. The match is not perfect and there can arise variances between the HUD standards and any given local building code but, in the main, there is no practical difference between homes built to HUD standards and homes built to New Mexico's standards as set by the State's Construction Industries Division.\\nBased upon this finding, the trial court concluded, \\\"[t]he Browns' home meets federal building standards which are substantially equivalent to the State's building standards and is functionally the same as the types of homes acceptable under the [covenant] Restrictions.\\\" It was on this basis that the trial court concluded that in excluding the Browns' home, the covenants are not reasonable and should not, in equity, be enforced. Plaintiffs appeal, and we reverse.\\nSTANDARD OF REVIEW\\n{9} The complaint seeks injunctive relief which is directed to the sound discretion of the trial court. Wilcox v. Timberon Protective Ass'n, 111 N.M. 478, 485, 806 P.2d 1068, 1075 (Ct.App.1990). However, the trial court abuses discretion when it applies an incorrect standard, incorrect substantive law, or its discretionary decision is premised on a misapprehension of the law. See N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, \\u00b6 7, 127 N.M. 654, 986 P.2d 450 (stating decision premised on a misapprehension of the law may be characterized as an abuse of discretion); LaBalbo v. Hymes, 115 N.M. 314, 318, 850 P.2d 1017, 1021 (Ct.App.1993) (stating trial court may abuse its discretion by applying incorrect standard or incorrect substantive law for preliminary injunction). Whether the \\\"reasonableness\\\" of pre-existing, validly enacted, unambiguous covenants that do not violate public policy, statutory, or constitutional provisions may be considered when enforcing such covenants by injunctive relief presents a question of law, which we review de novo. See Cafeteria Operators, L.P. v. Coronado-Santa Fe Assocs., 1998-NMCA-005, \\u00b6 19, 124 N.M. 440, 952 P.2d 435 (stating injunction left to discretion of trial court so long as consistent with well established standards).\\nANALYSIS\\n{10} Montoya v. Barreras, 81 N.M. 749, 751, 473 P.2d 363, 365 (1970), teaches that restrictive covenants have historically been \\\"used to assure uniformity of development and use of a residential area to give the owners of lots within such an area some degree of environmental stability.\\\" They have allowed the creation of stable arrangements of land use, and because their use is a concomitant right of property ownership, they can be used for any purpose that is not illegal or against public policy. See generally Restatement (Third) of Property (Servitudes) \\u00a7 1.1 cmt. a (2000). Furthermore, \\\"such covenants constitute valuable property rights of the owners of all lots in the tract,\\\" Montoya, 81 N.M. at 751-52, 473 P.2d at 365-66, and we have repeatedly recognized that reliance on restrictive covenants is a valuable property right. Wilcox, 111 N.M. at 485, 806 P.2d at 1075; see Appel v. Presley Cos., 111 N.M. 464, 466, 806 P.2d 1054, 1056 (1991); Cunningham v. Gross, 102 N.M. 723, 725, 699 P.2d 1075, 1077 (1985); see also Gorman v. Boehning, 55 N.M. 306, 310, 232 P.2d 701, 704 (1951) (stating a restrictive covenant is something of value to all lots in a tract which cannot be divested by a stranger acquiring title adverse to the common owner).\\n{11} In Montoya, the Supreme Court recognized that each owner of a lot has a contractual right to have the restrictions enforced against the owner of any other lot. 81 N.M. at 752, 473 P.2d at 366. The reason is that a restrictive covenant is part of the valuable contract consideration given and relied upon in the conveyance of land. Focus Entm't Int'l, Inc. v. Partridge Greene, Inc., 253 Ga.App. 121, 558 S.E.2d 440, 446 (2001); see also Garden Lakes Cmty. Ass'n, v. Madigan, 204 Ariz. 238, 62 P.3d 983, 986 (2003) (stating covenants \\\"constitute[ ] a contract between the subdivision's property owners as a whole and the individual lot owners.\\\" (internal quotation marks and citation omitted)); Colandrea v. Wilde Lake Cmty. Ass'n, 361 Md. 371, 761 A.2d 899, 915 (2000) (stating covenants constitute a contract between landowners and association); Namleb Corp. v. Garrett, 149 Md.App. 163, 814 A.2d 585, 591 (2002) (stating a restrictive covenant is contractual in nature). The trial court has a duty to enforce the expressed intentions as set forth in covenants when they are unambiguous. Wilcox, 111 N.M. at 484, 806 P.2d at 1074.\\n{12} The public policy in New Mexico is to uphold the valuable property right of all the lot owners to establish standards they deem appropriate, the concomitant right of all the lot owners in the subdivision to rely on those standards, and the reciprocal obligation to comply with those standards when one acquires a lot with notice, actual or constructive, of the standards. To determine what those interests are in this case, we look to the language, intent, and history of the covenants.\\n{13} The covenants begin with an all-inclusive prohibition: no non-site built home may be moved onto or placed upon any lot in the Subdivision, regardless of whether the home complies with any federal or state standards for construction of such a home, and regardless of whether the home is placed on a permanent foundation. There is only one exception: conventional homes similar to those of Preferred provided they meet all state CID regulations and standards. As to intent, the covenants recognize that excluded non-site built homes may be functionally equivalent in certain respects to homes that are allowed. Homes that are placed on a permanent foundation may be functionally equivalent in that respect, as are homes that are built to certain structural tolerances that comply with both state and federal building standards. The covenants intend to exclude non-site built homes regardless of the equivalency if they do not otherwise comply. Finally, the history shows that non-site built conventional homes like Preferred have always been allowed, and other non-site built homes were never allowed.\\n{14} The covenants make the distinction between state and federal standards material. Why the landowners made the distinction they did is irrelevant. Wilcox specifically states, \\\"[t]he secret, unexpressed intentions of the developer [in adopting covenants] are not admissible to interpret the meaning of a covenant running with the land.\\\" 111 N.M. at 484, 806 P.2d at 1074.\\n{15} The distinction which the landowners made between federal and state standards is also recognized by the legislature. The Manufactured Housing and Zoning Act, NMSA 1978, \\u00a7 3-21A-1 to -8 (1987, as amended through 2001), states that a zoning ordinance cannot exclude a manufactured home like the Browns' built to HUD standards, from a specific-use district in which site-built, single-family housing is allowed. \\u00a7 3-21A-2(A), -3. However, the legislature also mandates that nothing in the Act or any ordinance or regulation adopted pursuant thereto, \\\"shall be construed as abrogating or limiting a recorded restrictive covenant or deed restriction.\\\" Section 3-21A-6(A). The distinction made by the Subdivision landowners in this case is not contrary to public policy. Compare Hill v. Community of Damien of Molokai, 1996-NMSC-008, \\u00b6 26, 121 N.M. 353, 911 P.2d 861 (finding that if use violated restrictive covenants, such covenants violated the Federal Fair Housing Act).\\n{16} The trial court made a finding that, \\\"[t]here is no claim that the [Browns'] home is unattractive, unsafe or otherwise not suited to the subdivision.\\\" (Emphasis added.) This finding is not supported by substantial evidence. Sixty-seven homeowners filed the lawsuit to remove the Browns' home because it does not comply with the covenants, and the undisputed facts establish the home violates the covenants. The Browns' home is \\\"otherwise not suitpd to the subdivision.\\\" The net effect of the trial court's decision is that not only are homes built to CID standards allowed in the Subdivision, homes built to HUD standards are also allowed, in violation of the covenants. This is not permissible. See Appel, 111 N.M. at 466, 806 P.2d at 1056 (stating that to permit individual lots to be relieved of covenant burdens destroys right to rely on covenants).\\n{17} This is not a case in which a developer or committee exercised discretion under covenants to grant a variance to certain lots, Appel, or in which a developer reserved the right to approve or disapprove specified uses, Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007, \\u00b6 21, 124 N.M. 472, 952 P.2d 467. In these situations, inquiry into whether the exercise of discretion was \\\"reasonable\\\" is necessary. In contrast, no exercise of discretion is required in this case. The covenants clearly and unambiguously exclude the Browns' home.\\n{18} We hold that a general inquiry into whether restrictive covenants running with the land are reasonable is not a proper inquiry in considering whether to grant an injunction to enforce such covenants. In doing so we uphold the historical recognition of covenants as valuable property rights, coupled with the duty to enforce the expressed intentions set forth in unambiguous covenants that do not violate public policy.\\n{19} The discretion of the trial court was premised on a misapprehension of the law and it therefore abused its discretion. See N.M. Right to Choose/NARAL, 1999\\u2014 NMSC-028, \\u00b6 7, 127 N.M. 654, 986 P.2d 450. INJUNCTIVE RELIEF IS APPROPRIATE\\n{20} In considering whether to grant an injunction, New Mexico courts have generally considered a number of factors:\\n(1) the character of the interest to be protected; (2) the relative adequacy to the plaintiff of an injunction, when compared to other remedies; (3) the delay, if any, in bringing suit; (4) plaintiffs misconduct, if any; (5) the interests of third parties; (6) the practicability of granting and enforcing the order or judgment; and (7) the relative hardship likely to result to the defendant if an injunction is granted and to the plaintiff if it is denied.\\nWilcox, 111 N.M. at 486, 806 P.2d at 1076.\\n{21} We have already discussed the character of the interest to be protected and the Browns' right to free use of their land when balanced against the restrictions of the covenants, factors (1) and (5). Both weigh in favor of the Association and against the Browns.\\n{22} The second factor, relative adequacy of an injunction when compared to other remedies, also weighs in favor of the Association. The mere breach of the covenants affords sufficient grounds for granting an injunction because the court is doing nothing more than requiring execution of the very thing covenanted to be done. Id. at 486-87, 806 P.2d at 1076-77.\\n{23} The third and fourth factors, delay if any, in bringing suit, and Plaintiffs' misconduct, if any, also weigh in favor of Plaintiffs. There was no delay or misconduct on the part of the Association.\\n{24} The final two factors, the practicability of granting and enforcing the order or judgment, and the relative hardship likely to result to the Browns if an injunction is granted and to Plaintiffs if it is denied, also weigh in favor of the Association. Mrs. Brown estimated that the cost to remove the home, including the price of land to put it on, would amount to $25,000 to $30,000. Here, the benefits secured by the covenants are difficult to quantify, and the value the Association seeks to protect is a value to the community of which they are a part. Id. at 489, 806 P.2d at 1079; Cafeteria Operators, L.P., 1998-NMCA-005, \\u00b6 19, 124 N.M. 440, 952 P.2d 435.\\n{25} We make one final observation. Wilcox cites Gladstone v. Gregory, 95 Nev. 474, 596 P.2d 491, 495 (1979), to hold that when one takes land with notice of restrictions, equity and good conscience will not permit that person to act in violation of the restrictions. In Gladstone, the defendants had constructive notice of the building limitations at issue and after they commenced construction, they received actual notice from the plaintiffs that the proposed building was contrary to the recorded restrictions. Id. at 495. The facts here are more compelling. The Browns knew that restrictions existed. They previously had a home which they knew complied with the restrictions and Mrs. Brown's mother was a past member of the board of the Association. The Wilkinsons voted in favor of the amendments before they gave the lot to their daughter and her husband, the Browns. The Browns had actual notice of the restrictions in the covenants and chose to ignore them.\\nCONCLUSION\\n{26} The Wilcox trial court allowed the defendants to keep several nonconforming mobile homes on their lots in violation of the applicable restrictive covenant. We reversed and remanded for entry of an order granting the requested injunctive relief. We likewise do so in this ease.\\n{27} IT IS SO ORDERED.\\nI CONCUR: JONATHAN B. SUTIN, Judge (specially concurring).\\nMICHAEL D. BUSTAMANTE, Judge (dissenting).\"}"
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+"{\"id\": \"834309\", \"name\": \"STATE of New Mexico, Plaintiff-Appellant, v. Bradley WASSON, Defendant-Appellee\", \"name_abbreviation\": \"State v. Wasson\", \"decision_date\": \"1998-04-16\", \"docket_number\": \"No. 18646\", \"first_page\": \"656\", \"last_page\": 661, \"citations\": \"125 N.M. 656\", \"volume\": \"125\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:24:24.944860+00:00\", \"provenance\": \"CAP\", \"judges\": \"HARTZ, C.J. and ALARID, J., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellant, v. Bradley WASSON, Defendant-Appellee.\", \"head_matter\": \"1998-NMCA-087\\n964 P.2d 820\\nSTATE of New Mexico, Plaintiff-Appellant, v. Bradley WASSON, Defendant-Appellee.\\nNo. 18646.\\nCourt of Appeals of New Mexico.\\nApril 16, 1998.\\nCertiorari Denied June 24, 1998.\\nTom Udall, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Plaintiff-Appellant.\\nPhyllis H. Subin, Chief Public Defender, Will O\\u2019Connell, Assistant Appellate Defender, Santa Fe, for Defendant-Appellee.\", \"word_count\": \"2777\", \"char_count\": \"17399\", \"text\": \"OPINION\\nARMIJO, Judge.\\n{1} The State appeals the district court's order dismissing three counts of forgery arising from allegations that Defendant signed his brother's name to a set of traffic citations issued by a sheriffs deputy. Because we determine that these allegations fall within the forgery statute, NMSA 1978, Section 30-16-10(A) (1963), we reverse the district court's order and remand for further proceedings consistent with this opinion.\\nI. BACKGROUND\\n{2} On February 28, 1997, a San Juan County sheriffs deputy stopped a vehicle driven by Defendant. According to the sheriffs deputy, Defendant identified himself as \\\"Ryan Wasson\\\" and said his birth date was September 14, 1978. After determining that there was no driver's license corresponding to the name and date of birth given by Defendant, the sheriffs deputy issued three traffic citations for failure to stop at a stop sign, no insurance, and no driver's license. Defendant allegedly signed the name \\\"Ryan Wasson\\\" to all three traffic citations. The sheriffs deputy later ascertained that \\\"Ryan Wasson\\\" is Defendant's brother.\\n{3} On March 27, 1997, the State filed a criminal information alleging that Defendant committed three counts of forgery by making false signatures on the traffic citations. Defendant waived the preliminary examination on March 13, 1997, and responded with a motion to dismiss all the forgery charges on June 12, 1997. Defendant's motion asserted that his alleged conduct did not constitute the crime of forgery or, in the alternative, that his alleged conduct could be prosecuted only under the statute making it a petty misdemeanor to conceal one's identity. NMSA 1978, \\u00a7 30-22-3 (1963).\\n{4} On June 23, 1997, the district court granted Defendant's motion to dismiss based on its conclusion that Defendant destroyed the legal efficacy of the traffic citations by signing his brother's name on them. Without any legal efficacy, the district court reasoned, the citations could not evince any intent to injure or defraud Defendant's brother. This appeal followed.\\nII. DISCUSSION\\nA. Standard of Review\\n{5} For purposes of this appeal, we assume the truth of the factual allegations in the State's pleadings. Cf. Rule 5-601(B) NMRA 1998 (defense may be raised by pretrial motion if it is \\\"capable of determination without a trial on the merits\\\"); 1 Charles A. Wright, Federal Practice and Procedure \\u00a7 194, at 714 (1982) (standard of review for pretrial motion attacking sufficiency of indictment or information under Fed.R.Crim.P. 12(b)). But cf. State v. Ogden, 118 N.M. 234, 238-41, 880 P.2d 845, 849-52 (1994) (authorizing limited evidentiary hearing regarding factual basis for aggravating circumstances in capital-murder prosecution). Defendant's motion to dismiss does not attempt to contradict these allegations, see State v. Mares, 92 N.M. 687, 688-89, 594 P.2d 347, 348-49 (Ct. App.1979), and thus it presents a purely legal issue of whether forgery charges can be predicated on Defendant's alleged conduct, see State v. Foulenfont, 119 N.M. 788, 790, 895 P.2d 1329, 1331 (Ct.App.1995); State v. Tabaha, 103 N.M. 789, 789, 714 P.2d 1010, 1010 (Ct.App.1986).\\n{6} Whether forgery charges can be predicated on Defendant's alleged conduct is a question of statutory interpretation to which we afford de novo review. See State v. Arellano, 1997-NMCA-074, \\u00b6 3, 123 N.M. 589, 943 P.2d 1042. \\\"[T]he language of penal statutes should be given a reasonable or common sense construction consonant with the objects of the legislation, and the evils sought to be overcome should be given special attention.\\\" Ogden, 118 N.M. at 243, 880 P.2d at 854.\\nB. Legal Efficacy of Uniform Traffic Citations\\n{7} We first address the district court's conclusion that forgery charges could not be predicated on the traffic citations because Defendant destroyed their legal efficacy by signing his brother's name on them. The forgery statute provides, in relevant part, that \\\"[fjorgery consists of . falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud.\\\" Section 30-16-10(A). Interpreting the forgery statute, this Court has defined the element of \\\"legal efficacy\\\" in terms of \\\" 'an instrument which upon its face could be made the foundation of liability' and 'an instrument good and valid for the purpose for which it was created.' The writing must be such that, if genuine, it would apparently operate to the legal prejudice of another.\\\" State v. Nguyen, 1997-NMCA-037, \\u00b6 14, 123 N.M. 290, 939 P.2d 1098 (quoting State v. Cowley, 79 N.M. 49, 52, 439 P.2d 567, 570 (Ct.App.1968)). Although forgeries often involve documents relied upon to establish financial obligations and entitlements in the conduct of private business, see id. \\u00b6 13, 15, 123 N.M. 290, 939 P.2d 1098, they also may involve \\\"any document required by law to be filed or recorded or necessary or convenient to the discharge of a public official's duties.\\\" 4 Charles E. Torcia, Wharton's Criminal Law \\u00a7 491, at 94 (15th ed.1996).\\n{8} Uniform traffic citations are relied upon in the discharge of a law enforcement officer's duties. When an arrested person does not contest the violations with which he or she is charged, the uniform traffic citation functions as an agreement to pay a penalty assessment. See NMSA 1978, \\u00a7 66-8-123 (1989). When the arrested person declines to accept a penalty assessment notice, the uniform traffic citation functions as a complaint which provides the arrested person with notice to appear in court. See id.; NMSA 1978, \\u00a7 66-8-131 (1990). Moreover, uniform traffic citations may have legal efficacy because, \\\"[i]n order to secure his release, the arrested person must give his written promise to appear in court or to pay the penalty assessment prescribed.\\\" Section 66-8-123(D). Even when the arrested person does not assume a financial obligation by agreeing to pay the penalty assessment, uniform traffic citations provide the foundation for liability because \\\"[i]t is a misdemeanor for any person to violate his written promise to appear in court, given to an officer upon issuance of a uniform traffic citation, regardless of the disposition of the charge for which the citation was issued.\\\" NMSA 1978, \\u00a7 66-8-126(A) (1978). For these reasons, other states have analogized a traffic citation to an appearance bond. See Rushing v. State, 684 So.2d 856, 857 (Fla.Dist.Ct.App.1996).\\n{9} Based on these authorities, we conclude that the forgery statute includes uniform traffic citations among the types of writings which may purport to have legal efficacy. The district court's concern that Defendant's false signatures may have destroyed the legal efficacy of the traffic citations at issue here does not alter this conclusion because the statute plainly is not limited to writings which actually have l\\u00e9gal efficacy. Rather, the statute applies to any writing which purports to have legal efficacy, see \\u00a7 30-16-10(A), and the crime of forgery is complete as soon as the false signature is made on such a writing with the requisite intent, see Nguyen, 1997-NMCA-037, \\u00b6 16, 123 N.M. 290, 939 P.2d 1098. Here the allegations are sufficient to show that the traffic citations purported to have legal efficacy because Defendant allegedly made the signatures to appear as if they were valid acknowledgements that he agreed to pay a penalty assessment or appear in court to answer the charges. See \\u00a7 66-8-123; Black's Law Dictionary 1236 (6th ed.1990) (defining \\\"purport\\\" as \\\"to have the appearanee of being, intending, claiming, etc.\\\"). Thus, it was error to dismiss the information based on a lack of purported legal efficacy.\\nC. Intent to Injure or Defraud\\n{10} We next address the trial court's ruling that Defendant's conduct did not provide a basis for charging him with forgery because he had no intent to injure or defraud his brother, Ryan Wasson. The forgery statute does not require that the forger intend to injure or defraud a particular person. See State v. Smith, 32 N.M. 191, 204-05, 252 P. 1003, 1009 (1927); 4 Torc\\u00eda, supra \\u00a7 477, at 73. In addition, there is no requirement that the person whom the forger intends to defraud or injure be the same person whose name is forged. See State v. Nation, 85 N.M. 291, 292, 511 P.2d 777, 778 (Ct.App.1973) (forger had requisite intent to injure or defraud pharmacist by knowingly presenting prescription containing doctor's false signature); 4 Torcia, supra \\u00a7 477, at 73 (intent may relate to person not named in the forged writing). Hence, the inquiry is not limited to whether Defendant intended to injure or defraud his brother.\\n{11} Moreover, a forgery conviction does not depend on whether Defendant actually succeeded in defrauding or injuring someone. The forgery is complete when the forger makes the false signature with the requisite intent, regardless of whether its falsity is detected before the forger absconds with the fruits of the crime or shifts liability to another person. See Nguyen, 1997-NMCA-037, \\u00b6 16, 123 N.M. 290, 939 P.2d 1098; Nation, 85 N.M. at 292, 511 P.2d at 778. Thus, the forgery charges against Defendant are not precluded by the allegation that the arresting officer detected the falsity of the signatures before any further effort was made to hold Defendant or his brother liable for a penalty assessment or a failure to appear.\\n{12} The current procedural posture of this case presents an additional obstacle to Defendant's contention that he lacked the requisite intent to sustain a forgery conviction. A defendant's knowledge or intent generally presents a question of fact for a jury to decide. See Nation, 85 N.M. at 292, 511 P.2d at 778. Further, since a defendant's intent is rarely subject to direct proof, it may be proven by circumstantial evidence. See State v. Pisio, 119 N.M. 252, 259, 889 P.2d 860, 867 (Ct.App.1994); cf. State v. Esquivel, 71 Wash.App. 868, 863 P.2d 113, 115 (Wash.Ct.App.1993) (intent to commit forgery may be inferred from surrounding facts and circumstances if they plainly indicate such intent as a matter of logical probability). Thus, in the context of a pretrial motion that simply tests the legal sufficiency of the criminal information and assumes the State's factual allegations to be true, we must limit our inquiry to the purely legal question of whether Defendant's false signatures on the traffic citations were capable of evincing an intent to injure or defraud anyone under the facts and circumstances alleged by the State. Cf. Esquivel, 863 P.2d at 115 (ruling on issue of intent to defraud in context of pretrial motions).\\n{13} In answering this question, we need not speculate about what injury might befall the person whose name Defendant falsely signed on the traffic citations because we determine that such false signatures are sufficiently capable of evincing an intent to injure or defraud the arresting officer and the court in which the traffic citations are filed. The signatures on the traffic citations were to serve as Defendant's promise that he would pay the penalty assessments or appear in court. See \\u00a7 66-8-123(D). The arresting officer was required to secure such a promise as a condition of Defendant's immediate release. See id. However, making false signatures on the citations would render Defendant's promises meaningless, thus allowing him to obtain his release without actually agreeing to pay a penalty assessment or appear in court. See State v. Bedoni 161 Am. 480, 779 P.2d 355, 359 (Ariz.Ct.App. 1989).\\n{14} Under these circumstances, making a false signature could give rise to a reasonable inference that Defendant intended \\\"to obtain the release, without incarceration, of someone not entitled to release.\\\" Id. at 359; see also Esquivel, 863 P.2d at 115. For the purposes of the forgery statute, such a fraudulent intent to obtain an individual's release from custody is essentially the same as the fraudulent intent involved in other cases where people forge documents in order to obtain something that is not rightfully theirs. See People v. Gaul-Alexander, 32 Cal. App.4th 735, 38 Cal.Rptr.2d 176, 180 (Cal. Dist.Ct.App.1995). In addition, Defendant's false signatures on the traffic citations may evince an intent to injure or defraud law enforcement officers or the courts by \\\"concealing] the true identity of the perpetrator of the alleged crime,\\\" Bedoni, 779 P.2d at 359, \\\" 'temporarily hiding] from the authorities his prior criminal history[, and] hampering his identification by the police in future investigations.' \\\" Thornton v. State, 636 N.E.2d 140, 141-42 (Ind.Ct.App.1994) (quoting People v. Kirk, 115 A.D.2d 758, 497 N.Y.S.2d 139, 140 (1985)).\\n{15} We determine that the forgery statute encompasses the above-described types of fraudulent intent. Thus, it was error to dismiss the information based on a lack of intent to injure or defraud.\\nD. GeneraNSpecific Rule\\n{16} Defendant's next contention is that the general-specific rule requires Defendant to be charged with concealing his identity under Section 30-22-3 instead of forgery. The district court did not rely on the general-specific rule in its order dismissing the criminal information. However, we may affirm the district court's order on grounds not relied upon by the district court if those grounds do not require us to look beyond the factual allegations that were raised and considered below. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994). Defendant's contention regarding the general-specific rule does not require us to look beyond the factual allegations that were raised and considered below. However, in light of these allegations, we determine that the general-specific rule does not provide a basis for affirming the district court's order.\\n{17} When the same conduct is punishable under both a general statute and a more specific statute, the general-specific rule ordinarily requires the State to prose cute only under the more specific statute if the two statutes cannot be harmonized. See Arellano, 1997-NMCA-074, \\u00b64, 123 N.M. 589, 943 P.2d 1042. However, for purposes of the general-specific rule, there is not an irreconcilable conflict between two statutes if each defines an offense containing an element that the other does not. See State v. Ibn Omar-Muhammad, 102 N.M. 274, 277, 694 P.2d 922, 925 (1985). When each offense contains an element that the other does not, it may be problematic to determine which one is more specific and which one is more general. See Arellano, 1997-NMCA-074, \\u00b6 9, 123 N.M. 589, 943 P.2d 1042. Hence, a court should not strain to apply the general-specific rule in such instances. See id.\\n{18} Applying these principles in the present case, we determine that the forgery statute and the concealing-identity statute can be harmonized because each defines an offense containing an element that the other does not. The elements of forgery include falsely making or altering a writing which purports to have legal efficacy, or knowingly issuing or transferring a forged writing. See \\u00a7 30-16-10; State v. Ruffins, 109 N.M. 668, 670, 789 P.2d 616, 618 (1990). The elements of concealing identity include concealing one's true name or identity, or disguising oneself. See \\u00a7 30-22-3; United States v. Stenzel, 49 F.3d 658, 662 (10th Cir.1995).\\n{19} Forgery differs from concealing identity because only the former crime specifically requires the use of a writing, and only the latter crime specifically pertains to one's own true name or identity. Thus, it is possible to commit the crime of concealing identity without making, altering, issuing, or transferring any writing. See, e.g., Stenzel, 49 F.3d at 662 (affirming conviction for concealing identity where the defendant refused requests to produce written identification). It is equally possible to commit the crime of forgery without concealing one's true name or identity or disguising oneself. See, e.g., Esquivel, 863 P.2d at 114-15 (vacating orders dismissing forgery charges where the defendants presented police with identification cards that revealed the defendants' true identities but were not authentic). See generally 4 Torcia, supra, \\u00a7 481 (use of one's own name in commission of forgery). Moreover, it is problematic to discern which of the two statutes is the more specific one because forgery may be more specific with regard to the use of a particular physical object (a writing), while concealing identity may be more specific with regard to the use of a particular subject matter (one's true name or identity). For these reasons, we determine that the general-specific rule is inapplicable in this case and does not preclude the State from charging Defendant with forgery.\\nIII. CONCLUSION\\n{20} For the foregoing reasons, we reverse the district court's order of dismissal and remand for further proceedings consistent with this opinion.\\n{21} IT IS SO ORDERED.\\nHARTZ, C.J. and ALARID, J., concur.\"}"
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+"{\"id\": \"8512715\", \"name\": \"STATE v. ADAMS\", \"name_abbreviation\": \"State v. Adams\", \"decision_date\": \"1918-04-24\", \"docket_number\": \"No. 2165\", \"first_page\": \"239\", \"last_page\": 242, \"citations\": \"24 N.M. 239\", \"volume\": \"24\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:00:33.965740+00:00\", \"provenance\": \"CAP\", \"judges\": \"BobeRts, J. concurs.\", \"parties\": \"STATE v. ADAMS.\", \"head_matter\": \"[No. 2165,\\nApril 24, 1918.]\\nSTATE v. ADAMS.\\nSYLLABUS BY THE COURT.\\nAn \\u201cinhabited bouse,\\u201d as used in section 1705, Code 1915, is a bouse which, at the time o\\u00ed the discharge of a deadly 'weapon within 300 yards thereof, is occupied by persons as a \\u25a0dwelling.\\nHanna, C. J., dissenting.\\nAppeal from District Court, Grant County; Ryan, \\u25a0Judge.\\nCecil Adams was convicted of unlawfully discharging a pistol within the limits of a settlement, and he appeals.\\nReversed and remanded, with instructions.\\nTerrill & Dashiell, of Silver City, and Weeks & Owens, of El Paso, Tes., for appellant.\\nC. A. Hatoh, Assistant Attorney General, for the State.\", \"word_count\": \"1139\", \"char_count\": \"6434\", \"text\": \"OPINION OP THE COURT.\\nPARKER, J.\\nAppellant was tried and convicted in the district court of Grant county upon the charge of unlawfully discharging a pistol within the limits of the settlement of Rodeo. At the conclusion of the evidence the appellant moved the court for a directed verdict of not guilty upon the ground that the evidence failed to disclose that he had discharged the pistol within 300 yards of an inhabited house, as is required by section 1705, Code 1915, under which the indictment was drawn. It appears from the evidence that the pistol was discharged by the appellant close to and within 300 yards of a house belonging to one Harry C. Wilson. The house was referred to in the testimony as the \\\"Wilson house\\\" and the \\\"Country Club.\\\" There was evidence introduced to the effect that the house in question was used as a house of prostitution. There is evidence for the defendant, and not denied, that the house in question on the occasion of the shooting was unoccupied by any person; at least, no response was obtained from within when the appellant knocked on the door of the house. He had gone to the house to see the owner, Wilson, who was not there at the time, and so far as. appears, no one else was there.\\n. The offense created by statute is the offense of discharging a deadly weapon within a settlement, a \\\"settlement\\\" is defined in the section of the act as any point within 300 yards of an inhabited house. The section is as follows:\\n\\\"Any person who shall unlawfully draw, flourish or discharge a rifle, gun or pistol within the limits of any settlement in this state, or- within any saloon, store, public hall, dance hall or hotel, in this state, except the same he done by lawful authority, or in the lawful defense of himself, his family or his property, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or 'by imprisonment for a term of not more than three years, or- by both such fine and imprisonment, in the discretion of the court. The word 'settlement,' as used in this article, shall be construed to mean any point within three hundred yards of any inhabited house, in the state of New Mexico.\\\"\\nIt is to be observed from tbe language used in this section that a distinction is made between a settlement and any saloon, store, public ball, dance ball, or hotel. Tbe crime consists in discharging a deadly weapon within any of the named buildings, while in regard to discharging a weapon near an inhabited house it is contemplated that the offense shall be committed outside of the house and within 300 yards thereof. This distinction we deem of considerable importance in determine ing the true definition of \\\"inhabited house\\\" as used in the statute. In regard to a saloon, store, public hall, dance hall, or hotel, it is immaterial whether any persons, other than the offender, are in these 'buildings when the offense is committed. On the other hand, where the offense is committed outside of a house, it must be at the time an inhabited house, a house in which persons are then living. Taking into consideration the plain object of this statute, we deem the words \\\"inhabited house\\\" to require that the house is at the very time when the offense is committed inhabited by people who are living there. The statute was designed to prevent the indiscriminate and careless shooting of firearms in the vicinity of dwellings where people are living at the time. In this way all danger of annoyance, fright, or accidental injury from the careless or other use of firearms in the immediate vicinity of a dwelling house was to be obviated. The statute was designed for the protection of the families living in their homes, and in this view of the statute the house must be inhabited at the very time the deadly weapon is discharged. If a dwelling house is habitually occupied by people, and they should on the occasion of the discharge of the deadly weapon be absent from such house, no harm could possibly result to them from the commission of the act. The object to be subserved by the statute would not exist under such circumstances. The offense is not malum in se, but is malum prohibitum. There is nothing illegal or immoral in discharging a deadly weapon within 300 yards of an inhabited house, and the same is an offense against the law simply because the statute so declares. If the conditions which the statute was designed to remedy do not exist, that is, if the house is not then and there inhabited or occupied by persons, then there is no reason for the prohibition mentioned in the statute.\\nIn this case there is no evidence whatever that this \\u2022house was occupied by any person whomsoever at the time the pistol was discharged, and, \\\"on the other 'hand, the evidence would tend to indicate that no persons were within the house o^l th^t occasion. We define an \\\"inhabited house,\\\" as used m this statute, as a house which at the time,is occupied by persons as a dwelling. We do not wish to be understood that the house must be the dwelling house of a family. A house of prostitution may be a dwelling house within the meaning of the statute if somebody in fact is dwelling therein at the time of the discharge of the deadly weapon. But in this case there is no evidence whatever that anybody ever used this house as a dwelling place, and, upon the occasion of |he offense charged, the evidence rather tends to show that no person was in the house.\\nFor the reasons stated, the motion to instruct a verdict for the defendant should have been granted. The cause will be reversed, and remanded to the district court, with instructions to award a new trial; and it is so ordered.\\nBobeRts, J. concurs.\\nHANNA, C. J. It is my opinion that the record discloses that the house was an inhabited one. I therefore dissent.\"}"
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+"{\"id\": \"8841689\", \"name\": \"FRANK A. HUBBELL CO. v. CURTIS et al.\", \"name_abbreviation\": \"Frank A. Hubbell Co. v. Curtis\", \"decision_date\": \"1936-06-08\", \"docket_number\": \"No. 4100\", \"first_page\": \"234\", \"last_page\": 241, \"citations\": \"40 N.M. 234\", \"volume\": \"40\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:02:57.655733+00:00\", \"provenance\": \"CAP\", \"judges\": \"SADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.\", \"parties\": \"FRANK A. HUBBELL CO. v. CURTIS et al.\", \"head_matter\": \"58 P.(2d) 1163\\nFRANK A. HUBBELL CO. v. CURTIS et al.\\nNo. 4100.\\nSupreme Court of New Mexico.\\nJune 8, 1936.\\nMarr\\u00f3n & Wood, of Albuquerque, for appellant.\\nJoseph Gill, of Albuquerque, and E. M. Grantham, of Clovis, for appellees.\", \"word_count\": \"2832\", \"char_count\": \"16116\", \"text\": \"BRICE, Justice.\\nThis appeal is prosecuted from a judgment in favor of appellant for $2,361.12 for the value of improvements placed on lands under a saline lease from the state of New Mexico by appellant while he or his predecessors in title were lessees from the state. The land was subsequently leased to appellee Curtis by the appellee commissioner of public lands.\\nThis proceeding originated in the state land office. The appellant had been lessee from the state of certain saline lands which were subsequently leased to the ap-pellee Curtis. The lease, under which appellant had held the land, provided among other things: \\\"4. It is agreed that the lessee shall have the right to erect and maintain buildings of a permanent nature for its use in storing and caring for salt \\\"that may be extracted from the leased premises and for all proper purposes incidental thereto. Upon the expiration of this lease or upon its termination for any other reason the lessee shall be entitled to be paid the reasonable value of all such necessary improvements erected on said lands before the premises shall be leased to another lessee.\\\"\\nThe commissioner of public lands appraised the improvements placed on the lands involved at a value of $2,100. From this appraisement an appeal was taken to the district court of the First judicial district. Upon trial it was determined by the court that the value of the improvements was $5,653.29. The judgment for this amount was set aside on appellee's motion, and a second trial resulted in a judgment for appellant for $2,361.12, from which this, appeal is prosecuted.\\nThe sustaining of appellees' motion for, and the granting of a new trial, is assigned as error. Among the grounds alleged in. the motion upon which appellee claimed he was entitled to a new trial is that new evidence had been discovered since the trial, which would change the result of the case; that it could not have been discovered before the trial by the exercise of due diligence; that the evidence is material to the cause and is not merely cumulative or contradictory to the evidence-theretofore admitted. The alleged new evidence, supported by affidavits, was largely to the effect that numerous buildings and. improvements upon the property which the court had appraised as the property of appellant had not been placed there by appellant or its predecessors in title and were not owned by it; but were in fact the-property of the state of New Mexico.\\nWe are not inclined to interfere with the discretion of the court in granting a new trial unless it should clearly appear that such discretion was abused. The-court was authorized to believe from the-affidavits presented in support of the motion that he had been imposed upon by unwarranted claims of appellant to property that did not belong to it. It was peculiarly in the province of that court to determine whether the motion had been providently made and properly supported. We cannot say from the record there was such . abuse of discretion as would require a re- \\u2022 versal of the case, in view of the affidavits \\u2022 supporting the motion, and order of the court, in which, among other things, it was stated: \\\" and it appearing to the court that appellant asserted ownership to all the improvements on the saline lands, and that the same were placed there at his sole cost and expense, that it is shown by the newly discovered evidence that a portion of the said improvements did not belong to the said .appellant and that it is necessary to grant a new trial in order to prevent a miscarriage of justice.\\\"\\nAppellant, however, claims that it is the owner of all improvements placed upon the lands by other parties, for no other reason, apparently, than that it was lessee from the state at the time of or subsequent to the making of such improvements by third persons. Appellant states in its 'brief at page 22: \\\" Ever since 1878, it has been the law in this jurisidiction, established by Chapter 6 of the laws of that year, that persons making improvements upon public lands have ownership .and right in such improvements. \\\" Sections 3 and 4 of the Act of 1878, referred to, are brought forward as sections 105-1816 and 105-1817, Comp.St.Ann. 1929, \\u2022under the title of Ejectment. The Territorial Supreme Court held that these statutes could not apply to public lands, as a lien therein given to one placing improvements on public lands would interfere with its disposition. Chavez v. Chavez de Sanchez, 7 N.M. 58, 32 P. 137. Neither do they apply to state lands, as they would violate section 10 of the Enabling Act, which limits.the power of the state in the disposition and leasing of such lands, and prohibits it from mortgaging or incumbering the land in any manner. This court in Sandoval v. Perez, 26 N.M. 280, 191 P, 467, has held that the statutes in question could not be invoked by one who did not have color of title to the lands. It is only by virtue of section 132-115 Comp.St.Ann. 1929, that appellant can claim pay for improvements on the lands. But it does not follow, as appellant contends, that improvements, placed on these lands by another, become the property of appellant, though it subsequently leased the land from the state, or even had it under lease at the time such improvements were made. It owns only such improvements as it placed upon the lands or purchased from one authorized by law to dispose of them.\\nThe court did not err in refusing to fix any value on \\\"a pipe line or the water appurtenant there to\\\" as being recoverable items. The evidence discloses that the appellant, while lessee of the land involved, laid a pipe line from a fresh water spring situated on land owned by it, to the place where the salt is obtained from the lake. It is argued that it is necessary to have fresh water for certain purposes in connection with mining salt. This water is situated a little more than a mile from the place of its use. It is stated by appellant that the pipe line has no value except in connection with the supply of water and the right to its use. That because of the lack of value in the pipe line without the right to use water that \\\"the appellant tendered with the pipe line the right to take sufficient water from its spring from which the pipe is laid\\\" to supply the water necessary to operate the lease during the life of the pipe, and asked the court to fix, first, the value of the pipe in the ground in its present condition; and, second, the reasonable value of a water right from the spring to operate the lease during the life of the pipe line, which is now badly corroded.\\nAppellant then tenders a conveyance of such water right, or a contract or any document necessary to convey it, and asked the court to adjudicate and prescribe the nature and the value of the water right necessary for the purposes stated. The court refused to find any value in the pipe \\\"apparently putting it on the ground that before the appellant was entitled to the value of his pipe line he must offer and tender a perpetual water right for the use of salt lakes.\\\" Appellant calls attention to section 132-115 Comp.St.1929, which is as follows: \\\"Any person applying to lease any state lands upon which there are fences, buildings, reservoirs, ditches, dams, wells or other improvements or water rights appurtenant to said land belonging to another person or lessee shall before a lease shall be issued to him, file in the office of the commissioner a receipt showing that the price of such improvements and water rights, as agreed upon between him and-owner thereof, or as may be fixed by the commissioner, has been paid to such owner, or deposit with the commissioner the price.so agreed upon or fixed.\\\"\\nIf appellant had a water right, that would come within the terms of the above-statute, if the statute applies to saline leases, then it is appurtenant to the land' and could be used without the necessity of paying a rental therefor. Appellant wishes the court to establish a water right by the judgment of the court and force the appellee to pay its value and accept it. The statute in question refers to existing, water rights. If there is a water right in the spring mentioned appurtenant to this land, then appellee may use the water without cost. It is not shown that this, land has an appurtenant water right; but, to the contrary, appellant claims to be the owner of the spring and the right to the use of the water, and only concedes appel-lees' right to use it if he pays its full value. Such is not our understanding of the meaning of the water right contemplated by the statute mentioned, if indeed this statute has reference to saline land leases; a-question unnecessary to decide.\\nAnother contention is: \\\"The Court erred in concluding as a matter of law that in-order to be recoverable, the improvements, in the nature of houses must at the time-be fit for human habitation, and in denying-any value for the two structures to which, that applied.\\\"\\nWhether the court erred in placing, no value on these structures depends upon the evidence. If their condition is such that it would cost more to repair them than they would, be worth when repaired, then the court would be justified in holding that they are of no value. The testimony with reference to their condition and value is not cited in appellant's brief, even if included in the transcript (only a part of the evidence is brought here), nor is the record cited where \\\"the court ruled that any structure intended for a house unfit for human habitation, in its then condition, would be entirely excluded in determining the damages notwithstanding the fact that by repairs or restoration, regardless of how much or little was necessary,\\\" that would be required to make it fit for human habitation, and this court will not read the whole record to find it. It does not appear in the findings or judgment of the court. The ruling \\\"of the court, if 'error, would be harmless if the houses in fact would cost more to repair than they would be worth. The question cannot be answered by us because the record is not cited where the court made such ruling, nor is any testimony cited showing there is some actual value in these properties. Reversible error cannot be predicated on an erroneous conclusion of law, unless it be shown that appellant was injured thereby, and no such showing is made here.\\nThe court did not err in refusing to sustain a motion to strike all of the evidence of the witness Fenwick, who testified as to the values of the various buildings. No particular part of the testimony was moved against, but all of it. The basis of the motion was the lack of knowledge of the witness Fenwick of the matters about which he was testifying as an expert. We think the objection goes more to the weight that should have been given to this testimony than to the fact that none of it should have been considered by the court. We have examined the testimony and conclude that it was not all inadmissible, if any was.\\nIt is urged that the court erred in refusing a certificate allowing the fees and expenses of more than four witnesses to be charged* as costs in the case. It seems that appellant used twelve witnesses in the trial and submitted a motion and request to the court to certify that more than four witnesses were necessary to properly present his case, as provided by section 105-1305 Comp.St.Ann. 1929, which the court denied. This statute is as follows: \\\"It shall not be legal in any civil suit for the clerk of any district court to tax in favor of the prevailing party the costs of more than four witnesses, unless the court shall certify upon the record that the attendance of more than four witnesses was necessary in the case.\\\"\\nAfter stating the necessity for the twelve witnesses, appellant closes the motion in the following words:\\n\\\"Wherefore, and to enable the appellant to charge for the said witnesses and tax their witness fees as costs, appellant requests the'Court to certify, pursuant to sec-. tion 105-1305 [Comp.St.1929] C.L. '97, [\\u00a7 3155] that more than four witnesses were necessary upon the trial thereof.\\n\\\"Should the Court refuse to make the certification herewith tendered, appellant requests the Court to find and state the facts upon which such refusal is based.\\\"\\nWe think it was unnecessary for the court to more than deny the motion, the effect of which is to hold that not more than four witnesses were necessary to present appellant's case. Section 105-1305 Comp.St.Ann.1929. We are unable to say from the record whether more than four witnesses-were necessary, as the whole record is not before us. The presumption is in the correctness of the court's judgment, and that no more witnesses were necessary, as the court refused payment for more; and this presumption will prevail unless it is shown that more than four witnesses were necessary to properly present appellant's case; and appellant has made no such showing. Appellant cites Morrow v. Martinez, 27 N.M. 354, 200 P. 1071, in which it was held it is the duty of the trial court, in a case tried to it, to make specific findings of fact and conclusions of law when requested. This has no reference to the question here presented, but to the trial of a case on the merits.\\nWe do not agree that appellant became the owner of any property placed by others than itself on the land leased merely, because, as appellant contends, it held a saline lease thereon. The statute gives no such right. All property placed on state land which became a part of the realty is the property of the state unless otherwise provided by law. The state is a landowner and as such it has the same rights as that of any other owner with reference to ownership of improvements placed upon its property. Appellant was not entitled to pay for any buildings, etc., except such as it or its predecessors in interest, placed thereon, or purchased under authority from the state from a prior lessee, and the district court did not err in so holding.\\nOne of appellant's points is: \\\"If the order granting the new trial is to be construed as imposing the costs on the appellant, this was error.\\\" The order with reference to costs reads as follows: \\\"It is hereby ordered that a new trial be and the same is hereby 'granted in this cause and that the costs be taxed to appellant.\\\" It does not appear from this order that the costs of the first trial were taxed to appellant ; which, as we view it, would have been error. It is probable that the court intended to tax the costs of the proceeding on motion for new trial, to appellant. Whether this could be done in view of our statute is unnecessary to decide, as the question is not raised. Swallow v. First State Bank, 35 N.D. 323, 160 N.W. 137.\\nOur statute with reference to costs is as follows: \\\"In all civil actions <?r proceedings of any kind, the party prevailing shall recover 'his costs against the other party; Provided, however, that in all cases triable in the supreme court in the first instance, or removed to the supreme court upon ap peal or writ of error, the taxation of costs shall be in the discretion of the supreme court, except in those cases in which a different provision is made by law.\\\" Section 105-1301 Comp. St. Ann. 1929.\\nWhile' the Supreme Court is given discretion in assessing costs, no such authority is given to the district court, at least not in law actions. It must award costs in favor of the prevailing party. While in interlocutory orders some discretion may be exercised in the assessment of costs, no such discretion is given to the district court in the general trial of the case.\\nAs we read the final judgment entered herein, costs were, awarded to the appellant, and properly so. Finding no error in the record, the judgment of the district court is affirmed.\\nIt is so ordered.\\nSADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.\"}"
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+"{\"id\": \"8841912\", \"name\": \"FIRST STATE BANK OF MOUNTAINAIR v. STATE TAX COMMISSION\", \"name_abbreviation\": \"First State Bank of Mountainair v. State Tax Commission\", \"decision_date\": \"1936-06-25\", \"docket_number\": \"No. 4141\", \"first_page\": \"319\", \"last_page\": 324, \"citations\": \"40 N.M. 319\", \"volume\": \"40\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:02:57.655733+00:00\", \"provenance\": \"CAP\", \"judges\": \"SADLER, C. J., and BICKLEY and BRICE, JJ., concur.\", \"parties\": \"FIRST STATE BANK OF MOUNTAINAIR v. STATE TAX COMMISSION.\", \"head_matter\": \"59 P.(2d) 667\\nFIRST STATE BANK OF MOUNTAINAIR v. STATE TAX COMMISSION.\\nNo. 4141.\\nSupreme Court of New Mexico.\\nJune 25, 1936.\\nA. M. Fernandez, of Santa F\\u00e9, for appellant.\\nE. R. Wright, of Santa F\\u00e9, for appel-lee.\", \"word_count\": \"2060\", \"char_count\": \"12033\", \"text\": \"ZINN, Justice.\\n\\\\ [1] Appellee sought a correction of its taxes, proceeding under the provisions of Comp.St.1929 \\u00a7 141-306. Appellee is a state banking corporation, having a capital stock of $25,000 and a surplus of $5,000. As required by the provisions of Comp. St. 1929 \\u00a7 141-504, appellee made its return to the state tax commission. Said section 141-504 provides in substance the method of valuing shares of bank stock. The tax in question is assessed against the shareholder, and not against the bank. State v. State Trust & Savings Bank, 31 N.M. 282, 245 P. 253. The bank is merely paymaster for its stockholders.\\nThe method of determining the assessment is as follows: The officers of the bank are required to file a report showing the amount and number of shares of capital stock, the amount of surplus or reserve fund, undivided profits, and the amount of its legally authorized investment in real estate. The tax commission is directed to deduct the bank's investment in real estate from the aggregate amount of such capital, surplus, reserve fund, or undivided profits, and the remainder is taken as the basis of the valuation of such shares in the hands of stockholders. It is then provided that the amount carried by any bank as surplus, up to an amount equal to 50 per cent, of the capital stock of the bank, shall not be considered as adding anything to the actual value of such capital stock.\\nIn the instant case, the appellee's surplus of $5,000 would not be considered as adding to the value of the capital stock. Owning real estate in the amount of $7,886, such amount is also deducted from the capital amount, thereby leaving an ascertained value of $17,114, at which amount the assessment is shown on the rolls.\\nThe appellee claims that this amount is excessive and erroneous because an examination of the bank made by the state bank examiner on the 25th day of November, 1933, showed the capital stock of the bank to be impaired to the extent of $14,339. Appellee asserts that the tax commission should credit against such impairment first the $5,000 surplus, and deduct the remainder of $9,490.31 from the sum of $17,114, being the capital amount less the real estate investment, which would leave the amount upon which the assessment could be based at $7,623.69.\\nTo this petition the appellant demurred, urging, among other theories, that section 141-504 definitely sets out all the elements which are to be considered in valuing shares of stock, and inasmuch as the statute fails to make any provision for taking into account any impairment -of capital in arriving at the valuation thereof, the tax commission was without power to assess shares of stock in a banking corporation in any other manner than by the \\\"yard-stick\\\" set out in said section 141-504. The court reserved ruling on the demurrer, and the ap-pellee introduced testimony in support of the allegations in its petition. At the close of appellee's case, the appellant again demurred upon the same grounds, and the court overruled the demurrer, made findings of fact (generally following the allegations of the petition), and entered judgment for appellee commanding a correction of the tax rolls of Torrance county by striking the assessment against the petitioner as originally valued in the sum of .$17,114, and to insert in lieu thereof the sum of $8,725.94, which latter item is the total of $7,623.69 plus a recoverable value of 25 per cent, of the amount of the claimed impairment, or $1,102.25.\\nFrom this order and judgment the case is here for review on appeal.\\nThree grounds of error are alleged by appellant. Each would be determinative of the case if decided against appellee. We deem the proposition as to whether the state tax commission can use any method of evaluating shares of bank stock other than that provided by section 141-504, and whether such statute is constitutional, of such vital importance to the state of New Mexico that we prefer to settle this question rather than either of the other points.\\nThe appellee contends that the owner of bank stock is entitled to the full protection of article 8, \\u00a7 1, N.M.Const., and that his shares of stock cannot be assessed for more than their true value, whether such true value be called actual value, cash value, or simply value of the shares. It is the contention of the appellee that the phrase \\\"subject to the provisions of law requiring all property to be assessed at its true and full value,\\\" as found in section 141-504, is a qualification upon the method prescribed for assessing bank stock so that shares of bank stock cannot be assessed in any manner, upon complaint of an owner of bank stock, except at their actual value.\\nAt the outset we must admit that the owner of shares of bank stock, like any other property owner, is entitled to the protection of the Constitution. Article 8, \\u00a7 1, reads as follows: \\\"Taxes levied upon tangible property shall be in proportion to the value thereof, and taxes shall be equal and uniform upon subjects of taxation of the same class.\\\"\\nThe appellee does not question the power of the state to tax shares of bank stock. Neither is it questioned that shares of bank stock are intangible property.\\nThe appellee here does not complain that it is being discriminated against, or that the action of the tax commission is capricious or malicious. Appellee takes the position that it was as much the duty of the tax commission to consider the undivided profit item, whether this item showed a profit of $10,000, whether it showed a profit of $1,000, or whether, on the other hand, it showed a loss of $10,000. Appellee argues that it was the duty of the tax commission to consider the loss as much as it was their duty to consider the gains iri determining the true and full value of stock.\\nShares of bank stock under section 141-504 are not taxed in proportion to their value. In the first place, there is a deduction from the value of the capital for the purpose of taxation of the assessed value of the real estate in which part of the capital of the bank is invested. The capital stock of the bank and the shares into which such stock may be divided, and held by individual shareholders, are two distinct pieces of property. The real estate owned by the bank is a part of the capital stock of the bank. The shareholder has no constitutional right to have the value of the real estate which goes to make up the true value of his stock deducted from the capital structure. 26 R.C.L. 184, \\u00a7 155. See, also, In re First National Bank of Hillsboro, 25 N.D. 635, 146 N.W. 1064, L.R.A.1915C, 386, and note. It is only by statute, as here, a deduction of the value of the real estate owned by the bankTs allowed to determine the value of the shares of stock owned by the individual. If true value be the criterion for assessing shares of stock owned by the individual stock holder, then the allowed deduction of surplus up to 50 per cent, of the capital would not be accepted, because clearly the capital, surplus, good will, continuity of dividend payments over many years, reputation, monopoly of a field, and many other intangible elements of value would enter into a determination of the value of the shares of stock owned by individuals in a corporation.\\nThe appellee merely contends that because in the instant case the bank examiner found an impairment in the capital, that such impairment so found is binding upon the tax commission, the appellant, who should first be required to deduct from the impairment so found the amount of the surplus, and then the remainder to be deducted, not from the capital value, but from the capital amount less the amount invested in real estate.\\nThe contention of appellee is unsound. If capital impairment is to be considered in determining value, so then should the surplus and real estate value be added to the capital value, as well as other intangible values, in arriving at the true value of the shares of bank stock. If the former is to be deducted, then the latter is to be f added.\\nHowever, article 8, \\u00a7 1, relates to tangible property and not to intangible property. As before stated, shares of bank stock are intangibles. Section 141-504 provides a uniform method of taxing shares of bank stock owned by individuals. We do not deem it essential to a determination of\\nthe question before us to go into a complete history of the legislation respecting the method provided by the Legislature to assess shares of bank stock. An identical method of determining such values has been part of our statutory law since 1891. The appellee does not question the fairness of the statute as a rule. Appellee merely seeks to have the court become the assessor in the instant case and to provide a different method of valuing his property than that pointed .out by the Legislature. Taxation is a legislative function without any limitation except such as is imposed by constitutional provisions. The state tax commission is the administrative body which has been designated by the Legislature to secure uniformity throughout the state on property of certain classes, to act for the state in making certain assessments. The Legislature has taken from the local assessors the right to determine the valuation of certain property. For example, railroad, telegraph, telephone, and transmission or pipe line company property are assessed by the tax commission. Also shares of the capital stock of all banks, trust, and mortgage loan companies. Also mineral property; the shares of mutual building and loan associations and savings and loan associations, Comp.St.1929 \\u00a7 141-502. The Legislature also vested in the tax commission the power to determine and fix the actual valuations of the different classes of grazing lands and live stock. Comp.St.1929 \\u00a7 141-510.\\nAs to shares of bank stock, the Legislature provided a mathematical rule for determining such assessments. This rule is found in section 141-504. The tax commission cannot deviate from this specific rule. Under this system the assessment is mathematically deduced from facts submitted to it by the officers of the bank. No other elements can be considered except those specifically provided by the statute. Impairment of capital is not an item to be considered. Though the impairment was found by the bank examiner before the date when the return required by section 141-504 is to be filed, yet the capital and surplus was not adjusted by appellee accordingly. Had the adjustment been made, then the impairment would have been reflected in the capital structure. To permit a daily adjustment of impairment or addition to the capital structure would be unreasonable. A \\\"yard-stick\\\", has been set by the Legislature to determine the method of assessing shares of bank stock. It is not a daily average value. The value must be determined from the return made by the officers of the bank. This return must be made before January 15th in each year. Though the statute is not specific, yet is sufficient to indicate that the capital structure as of December 31st is the accepted set-up. It is from this return that the mathematical computation is made and then certified to the local assessor as required by section 141-502. The method provided is fair and not arbitrary, and is a valuation on a fair basis of all property of the same class and does not contravene the Constitution of New Mexico.\\nFor the reasons given, the appellant's demurrer should have been sustained, the judgment of the district court will be therefore reversed and the cause remanded to the district court, with instructions to dismiss the appellee's petition below and to enter judgment for appellant in accordance with this opinion, and for appellant's costs.\\nIt is so ordered.\\nSADLER, C. J., and BICKLEY and BRICE, JJ., concur.\\nHUDSPETH, J., did not participate.\"}"
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+"{\"id\": \"8842482\", \"name\": \"WELLS v. COE et al.\", \"name_abbreviation\": \"Wells v. Coe\", \"decision_date\": \"1925-10-01\", \"docket_number\": \"No. 3013\", \"first_page\": \"599\", \"last_page\": 602, \"citations\": \"30 N.M. 599\", \"volume\": \"30\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:58:20.011388+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER, C. J., and BICKLEY, J., concur.\", \"parties\": \"WELLS v. COE et al.\", \"head_matter\": \"(No. 3013.\\nOctober 1, 1925.)\\nWELLS v. COE et al.\\nW. T. Brothers, of El Paso, Tex., for plaintiff in error.\\nA. H. Hudspeth, of Carrizozo, for defendants in error.\", \"word_count\": \"705\", \"char_count\": \"3986\", \"text\": \"OPINION OF THE COURT\\nWATSON, J.\\nThe writ of error in this case was sued out November 11, 1924. January 27, 1925, an order was made by the district judge extending the time for settling the bill of exceptions, which was finally settled February 27, 1925. The transcripts were filed in this court March 17, 1925.\\nDefendant in error moves to strike the bill of exceptions on the ground that the extension was unauthorized, because it did not appear from the record and files in the office of the clerk of the district court that within 30 days after the writ of error was sued out the plaintiff in error had \\\"ordered the transcribing of the testimony, to be included in his bill of exceptions.\\\" Section 36, c. 43, Laws of 1917.\\nThere is nothing in the record before us to show that the stenographer was ever ordered to transcribe his notes. The praecipe, filed November 18, 1924, covers merely the record proper.\\nIn Security Ins. Co. v. City of Socorro, 25 N. M. 200, 179 P. 748, it was held that failure to file praecipe within 30 days was fatal to the jurisdiction to extend time. There was pointed out the purpose of the statute to require diligent prosecution of appeals. In this case, however, the praecipe for the record proper was filed in time. The fault is in failing to order the transcribing of the testimony. The effect of such failure has not been decided.\\nPlaintiff in error urges that the statute does not, in terms, require the order for the transcribing of the testimony to be in writing, nor require the filing of the original or a copy of such order in the clerk's office, and that it would be illogical, in the praecipe filed with the clerk, to call for a bill of exceptions not up to that time settled or filed.\\nWhenever review is sought involving questions raised at the trial, two things are necessary before the transcript can be filed here. The clerk must transcribe the record proper, and the stenographer must transcribe the proceedings of the trial. Delay is likely to occur in either. The same reason exists for setting the stenographer in motion as in the case of the clerk. We cannot impute ta the Legislature an intent to require no diligence or show of diligence in the one case, while providing so strictly in the other. Counsel for plaintiff in error, while insistent that the proviso does not require. record showing of the ordering of the transcript, makes no suggestion as to any other reason for its incorporation in the statute. As interpreted and acted upon in this case, it is a nullity. Counsel, in applying for the extension, did not even state that he had ordered the transcript of the testimony. To adopt counsel's view would destroy the statute. The two requirements complement each other to effect a practical and useful result. If one fails the other is valueless. While the proviso is not framed with entire grammatical precision, we think it is clearly apparent that the record and files must show the ordering of the stenographer's transcript.\\nIt is the office of the praecipe to instruct the clerk exactly what to include in the transcript to be filed here. If, when the praecipe is filed, the bill of exceptions has not been settled, it may be referred to as \\\"the bill of exceptions hereafter to be settled and to be included when filed,\\\" or in equivalent language. Such is the usual practice, and it seems unobjectionable.\\nThe motion to strike the hill of exceptions must be sustained.\\nDefendant in error further moves for an affirmance of the judgment, because the errors assigned relate to matters shown only by the bill of exceptions, citing Security Ins. Co. v. City of Socorro, supra. Plaintiff in error does not contest this point, and it seems to be well taken.\\nThe judgment will therefore be affirmed, and it is so ordered.\\nPARKER, C. J., and BICKLEY, J., concur.\"}"
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