NMDLA Civil Case Summaries
May – July 2012
State Court Opinions
By John S. Stiff, Esq., Ann L. Keith, Esq., and Nels D. Orell, Esq.
Stiff, Keith & Garcia, LLC – Albuquerque
Appealable Order
NM Bar Bulletin – May 9, 2012
Vol. 51, No. 19
Kysar v. BP America Production Co.
No. 29,756 (N.M. Ct. App., filed January 19, 2012)
As an issue of first impression, the Court of Appeals held that a plaintiff may appeal from a stipulated directed verdict when the parties have stipulated that the plaintiff cannot make a prima facie case due to in limine rulings made by the district court, the plaintiff reserved the right to appeal the in limine rulings, and the district court approved the stipulations. The Court of Appeals characterized the appealable order as a “stipulated conditional directed verdict.” The directed verdict was conditionally stipulated to, with each party expressly reserving the right to challenge rulings of the district court on appeal, with success on appeal resulting in a reversal of the directed verdict.
The Court held that an appeal will lie from a stipulated conditional directed verdict under the following conditions: 1) rulings are made by the district court, which the parties agree are dispositive; 2) a reservation of the right to challenge those rulings on appeal; 3) a stipulation to entry of judgment; and 4) approval of the stipulation by the district court.
Termination of Employment
NM Bar Bulletin – May 16, 2012
Vol. 51, No. 20
Sais v. NM Department of Corrections
No. 32,776 (N.M. S.Ct. filed March 22, 2012)
The New Mexico Supreme Court re-addressed the holding In re Termination of Kibbe, 2000-NMSC-006, 128 N.M. 629, 996 P.2d 419, where the Court established the principle that when an employer disciplines two public employees, arrested or convicted of driving while intoxicated (DWI), in a significantly different manner yet based on substantially similar conduct, the employer owes a legal duty to explain that difference satisfactorily with evidence in the record. If no, the court will reverse the action taken as arbitrary and capricious.
In this case, the Court found that unlike the employer in Kibbe, the employer did place substantial evidence in the record to justify the action taken and to explain any alleged differences in the treatment of other employees, upholding the State Personnel Board. The record showed that the respondent was treated the same as all but one similarly-situated officer. Furthermore, the record in this case demonstrated a consistent pattern in the enforcement of the Employee DWI Policy.
Directed Verdict
NM Bar Bulletin – May 16, 2012
Vol. 51, No. 20
Perez v. City of Albuquerque
No. 30,263 (N.M. Ct. App. filed March 5, 2012)
The plaintiff was arrested by three City of Albuquerque police officers. Plaintiff filed suit claiming that the officers used excessive force while he was handcuffed and lying on the ground. A verdict was entered in favor of the defendants, and Plaintiff appealed the denial of his motion for directed verdict and motion for judgment notwithstanding the verdict.
The officers had responded to a domestic disturbance and the officers tackled the plaintiff to the floor inside the home. His girlfriend videotaped the latter part of the rarest. Although he did not immediately complain of injuries, two months later he sought treatment for a sore neck and back, dizziness, and a bruised ankle. The video was shown in court numerous times and each witness gave a different account of what was depicted in the tape, sometimes offering conflicting interpretations of the images. After a jury verdict in favor of the defendants, Plaintiff moved for judgment notwithstanding the verdict against one of the officers, which was denied. After reviewing the evidence in a light most favorable to the prevailing party, the Court of Appeals concluded that it was sufficient to support the jury’s verdict and affirmed the district court.
Defamation
NM Bar Bulletin – May 23, 2012
Vol. 51, No. 21
Smith v. Durden
No. 32,594 (N.M. S.Ct., filed March 5, 2012)
A former priest brought a defamation action against members of the parish. The issue before the Supreme Court was whether New Mexico requires a showing of injury to one’s reputation to establish liability for defamation. The Court held that injury to reputation is the very essence of the tort of defamation, thereby reversing the Court of Appeals. Evidence of humiliation and mental anguish, without evidence of actual injury to reputation, is insufficient to establish a cause of action for defamation. The Court concluded that a plaintiff must first establish the prima facie case for defamation, which includes proof of actual injury to reputation, before a jury can award damages for mental anguish, humiliation, or any of the other recoverable harms listed in UJI 13-10010. In this case, examples of events indicating an injury to reputation may have included a decline in membership at the church, unwillingness for parishioners to allow children to participate in parish-related activities, or decline in general social invitations from fellow parishioners.
Sovereign Immunity
NM Bar Bulletin – June 6, 2012
Vol. 51, No. 23
Zuni Public School District, #89 v. N.M. Public Education Department
No. 30,861 (N.M. Ct. App., filed February 6, 2012)
The question for appeal in this case was whether sovereign immunity barred a school district from bringing suit against the New Mexico Public Education Department and its secretary for reimbursement of funds that Zuni claims were wrongfully deducted from its portion of state funding for public schools. The Court decided that the cause of action did not violate the doctrine of sovereign immunity and affirmed the district court’s denial of the State’s motion to dismiss on the basis of sovereign immunity.
The school district claimed that its petition was based on the state funding statute, while the State argued that the petition was grounded in the federal Impact aid. “This distinction is key to resolving whether the State is shielded from this action by sovereign immunity.” The Court of Appeals disagreed with the State that the district’s right to relief depended on the Federal Impact Aid statute and that the resolution of the case involved a substantial question of federal law. Although federal certification is an element of the complaint, it is the State’s adherence to the Legislature’s directives and the formula set out in Section 22-8-25 that provided the basis for deciding the issue. The Court concluded that the district’s petition was based on state law, with only a tangential connection to federal law, and is not subject to the Eleventh Amendment bar of sovereign immunity.
Medicare and Medicaid
NM Bar Bulletin – July 4, 2012
Vol. 51, No. 27
Starko, Inc., v. Presbyterian Health Plan, Inc.
No. 27,992/29,016 (N.M. Ct. App., filed December 15, 2011)
The Court of appeals updated the Medicaid-related litigation by holding that Section 27-2-16(B) confers upon participating Medicaid pharmacists an implied cause of action to enforce the statute directly against the MCOs. The Court held 1) the district court properly dismissed Plaintiffs’ claim concerning the New Mexico Human Services Department’s reduction of reimbursement without federal approval for a six-month period; 2) Plaintiffs’ breach of contract claim, third-party beneficiary contract, and unjust enrichment claims may proceed; 3) the district court properly concluded that Section 27-2-16(B) conferred non-waivable rights; 4) the district court did not abuse its discretion in denying Plaintiffs’ demands for injunctive and declaratory relief; and 5) the district court properly certified Plaintiffs’ class in the consolidated cases.
Summary Judgment/Breach of Employment Contract
NM Bar Bulletin – July 4, 2012
Vol. 51, No. 27
Lucero v. Board of Regents of the University of New Mexico
No. 30,535 (N.M. Ct. App., filed March 1, 2012)
The University appeals a bench trial denial of it Motion for summary judgment on Plaintiff’s breach of contract claim because it argued that the Plaintiff did not exhaust the grievance procedures contained in the employee handbook. The Court of Appeals held that the plaintiff must substantially comply with the mandatory internal grievance procedures contained in the employee handbook before filing suit for breach of contract based on an alleged failure of Defendants to follow the employee handbook, and reversed the district court. Although the plaintiff also argued that the permissive language in the grievance procedure permits an employee to bypass the grievance process and pursue a direct court action, the Court read the plain language of Section 6.1.1 of the employee handbook, using the term “may,” to be permissive only to the extent that it provides a potential grievant with two options: 1) file a grievance, thereby exhausting the remedies under the employee handbook and allowing the grievant to then file an action in district court for an alleged breach of the employee handbook or 2) forego the grievance process and accept the disciplinary decision of Defendants.
Sex and Age Discrimination
NM Bar Bulletin – July 18, 2012
Vol. 51, No. 29
Rodriguez v. N.M. Department of Workforce Solutions
No. 30,726 (N.M. Ct. App., filed April 19, 2012)
The Court considered whether the New Mexico Personnel Act or the New Mexico Human Rights Act was controlling when a discharged probationary state employee with no property interest in continuing employments seeks relief under the Human Rights Act for sex and age discrimination. The district court dismissed the employee’s Human Rights Act claim on the ground that, under the Personnel Act, the State agency was permitted to terminate the probationary employee’s employment without cause even if the termination was based on sex or age discrimination. The Court of Appeals reversed and held that the employee can pursue a claim under the Human Rights Act.
The plaintiff was hired by the Department of Workforce Solutions first as a temporary employee and then as a probationary employee. While a probationary employee, she was given a notice of dismissal under the New Mexico Personnel Act. She then filed a claim with the New Mexico Department of Labor, Human Rights Division and the Equal Employment Opportunity Commission against the Department alleging discrimination and retaliation based on her sex and age. The Department filed a motion for summary judgment, asserting that because she was a probationary employee and therefore had no property interest in continuing employment, the court lacked jurisdiction to consider Plaintiff’s constitutional claims. The Court held that the district court erred in concluding that, owing to Plaintiff’s status as a probationary employee under the personnel Act, her claim under the Human Rights Act could not stand because the Department “was permitted to terminate her employment without cause.” On remand, the district court was ordered to determine whether the plaintiff can establish a prima facie case of discrimination and retaliation pursuant to the Human Rights Act.
Disciplinary Action/Workers’ Compensation
NM Bar Bulletin – July 25, 2012
Vol. 51, No. 30
Chavez v. N.M. Workers’ Compensation Administration
No. 30,405 (N.M. Ct. App., filed April 26, 2012)
The Court determined whether the Workers’ Compensation Administration (WCA) has authority to suspend an attorney from practicing before it. The Director of the WCA filed a pleading in the WCA seeking administrative penalties against an attorney for 17 separate violations of the Workers’ Compensation Act and Rules. The Director ruled that Chavez willfully refused to participate in the mediation process in three different instances; that Chavez willfully disregarded the rights of parties in eight different instances; that Chavez advocated meritless claims in four separate instances; and that Chavez behaved in a non-courteous and disrespectful manner in two separate instances, all in violation of applicable Rules of the WCA. The parties entered into a Settlement Agreement and Stipulated Order. As part of the Stipulated Order, Chavez entered into a Professional Services Agreement with Judge Dal Santo, agreeing that she would monitor his professional conduct before the WCA for a period of three months. During the observation period, three complaints were filed against Chavez with the WCA, and the WCA forwarded them to Judge Dal Santo. After investigating the complaints, Judge Dal Santo submitted two reports to the WCA setting forth her conclusions that Chavez had committed numerous violations of the Rules of Professional Conduct. Upon receipt of the reports, the WA filed the Stipulated Order suspending Chavez from practicing before the WCA. Chavez field a petition for writ of certiorari and petition for stay in the district court. The district court determined that the WCA did not have authority to suspend Chavez and ordered that the Stipulated Order be reversed on grounds that the Settlement Agreement was ultra vires and void ab initio. The Court affirmed the district court’s order reversing the Stipulated Order suspending Chavez from “generating any fees associated with workers’ compensation matters,” but reversed the district court’s order is all other respects.
Ultimately, the Court held that the WCA has authority to suspend an attorney from practicing before it. This authority arises out of the power of the WCA to control the proceedings before it, and an attorney who violates its rules of practice and procedure may properly be sanctioned by the WCA. Furthermore, the power to suspend the attorney is separate and apart from, and does not infringe upon, the Supreme Court’s exclusive authority to discipline attorneys.