NM Court of Appeals: Dismissal “without prejudice” can have res judicata effect

by Emil J. Kiehne Posted on March 19, 2015

James and Tracy Turner borrowed money from First New Mexico Bank to finance the purchase and construction of a dairy. Later, the Turners filed a lender liability lawsuit against the Bank.

The Bank filed a motion to dismiss for failure to state a claim, which the trial court granted. The trial court’s order, however, said the Turners’ claims were being dismissed “without prejudice.”

The Turners then filed a new complaint, which the Bank moved to dismiss on claim preclusion grounds (“claim preclusion” is also known as “res judicata”). The Turners appealed, arguing that the first trial court’s dismissal of their complaint “without prejudice” meant that the dismissal could not have res judicata effect. The trial court agreed with the Bank, and the Turners appealed.

As it turns out, the words “without prejudice” don’t necessarily mean that an order has no preclusive effect. Continue reading →

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Public trust doctrine does not allow courts to second-guess greenhouse gas regulations

by Emil J. Kiehne Posted on March 18, 2015

The New Mexico Court of Appeals has rejected a claim that the common-law “public trust doctrine” allows courts to second-guess decisions by the Legislature or administrative agencies about whether, and how, to regulate greenhouse gases.

The Court’s opinion in Sanders-Reed v. Martinez, written by Judge Timothy Garcia, rejected the claim for three reasons:

  • The common law has been superseded by statute. The Air Quality Control Act creates a framework for regulating air pollution, and empowers the Environmental Improvement Board to do so.

 

  • The Air Quality Control Act allows citizens to propose regulations to the Board, and to appeal the Board’s decisions if they disagree with them. The plaintiffs did not claim that these tools were unavailable to them.

 

  • Separation of powers principles counsel in favor of rejecting the plaintiffs’ claims, because “the practical effect of a judgment granting Plaintiffs’ requested relief would be to reverse the EIB’s action,” thereby intruding on the powers that the Legislature has granted to the executive branch.

This decision seems correct to me. When the Legislature or administrative agency has not enacted a party’s preferred policy, the party’s remedy should be to ask the Legislature to change the law, or to ask the agency to enact new regulations, not to ask the courts to enact an alternative regulatory scheme.

You can see my earlier coverage of the briefs and oral argument here. In addition, Mark Oswald has this story about the Court of Appeals’ decision in the Albuquerque Journal.

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Ten tips for preserving your record on appeal

by Emil J. Kiehne Posted on March 9, 2015

Marcia J. Silvers, an attorney from Florida, has published a useful article entitled “How Not to Regret Your Appeal: Ten Tips for Soothing Your Appellate Lawyer” in the Winter 2015 issue of Litigation.

I’m not a huge fan of the title, which seems to imply that we appellate lawyers are out to criticize trial lawyers (we’re not), but the ten tips serve as good reminders of what good trial lawyers can do to help get their cases into appeal-ready shape.

All of the tips are good, but I’ll add a few comments derived from my experience in New Mexico practice:

Tip #1: “Objection, Your Honor!” Ms. Silvers suggests that one way to avoid alienating the jury, and your trial judge, is to “ask the court for a continuing objection.” This can indeed work, but in the past I’ve seen trial lawyers simply state that they’re “taking” a continuing objection. That’s not sufficient. Under New Mexico law, the trial judge must specifically grant you a continuing objection. If she doesn’t, then keep those objections rolling.

Tip #4: “File motions in limine.” I would add that if the trial court denies your motion in limine, it doesn’t necessarily mean you’ve preserved the issue for appeal. Remember to raise the issue again when the objectionable evidence is offered at trial, and explain both why the evidence is improper and how it is causing unfair prejudice to your client.

Tip #9: “Don’t shy away from objecting to improper closing argument.” Over the past six or seven years, I’ve seen a number of cases where blatantly improper arguments were made in closing argument, but where no one objected. While it is theoretically possible for a New Mexico appellate court to address an unpreserved objection under the fundamental error doctrine, this is highly unlikely! Request a sidebar conference, state your objection, and then ask for a curative instruction or mistrial.

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NM court rejects man’s claim that neighbor’s use of wi-fi and cell phone harmed him

by Emil J. Kiehne Posted on March 6, 2015

The New Mexico Court of Appeals, in an opinion by Judge Jonathan Sutin, has decided Firstenberg v. Monribot, a case that has generated considerable attention in the news media and on some blogs. See here, here, and here.

The plaintiff, Arthur Firstenberg, claims that he suffers from electromagnetic sensitivity (EMS). He sued his neighbor, Raphaela Monribot, for nuisance and prima facie tort, alleging that her use of a cell phone and wi-fi in her own home was damaging his health. He asked for $1,430,000 in damages and an injunction to prevent Ms. Monribot from using any equipment that emits electromagnetic radiation. (Mr. Firstenberg also helped found an organization, the Cellular Phone Task Force, which “is dedicated to halting the expansion of wireless technology because it cannot be made safe.” Good luck with that.)

Not surprisingly, the trial court granted summary judgment against Mr. Firstenberg, and the Court of Appeals affirmed, because he failed to offer scientific evidence establishing that exposure to electromagnetic radiation caused, or is even capable of causing, the injuries that he claimed.

One supposes the trial court could also have based summary judgment on public policy grounds, since declaring electromagnetic radiation to be a nuisance prohibited by tort law would bring our society to a grinding halt. Maybe next time…

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Have lunch with Judge Michael Bustamante

by Emil J. Kiehne Posted on March 6, 2015

The New Mexico State Bar’s Appellate Practice Section and Young Lawyers division are hosting a brown-bag lunch with Judge Michael Bustamante of the New Mexico Court of Appeals.

The lunch will begin at noon on Friday, March 13, 2015 at the State Bar Center in Albuquerque. Please RSVP with Dolph Barnhouse at [email protected]

Unfortunately, I will be out of state at that time, but if you’re interested in New Mexico appellate practice, I encourage you to attend.

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Some criticism of Mora County’s ordinance banning oil and gas drilling

by Emil J. Kiehne Posted on February 18, 2015

In the Weekly Standard, Joseph Bottum has written a story called “Fracking the Constitution: Secessionism on the Left,” which criticizes the Mora County ordinance banning oil and gas drilling. (Hat tip to Overlawyered).

Among other things, the ordinance purports to deprive corporations (and individuals who oppose the ordinance) of their rights under the First and Fifth Amendments, and to confer rights on geologic features such as aquifers and streams. Unsurprisingly, the ordinance was recently struck down by federal district court judge James O. Browning. If you have some spare time, the 199-page opinion in SWEPI, LP v. Mora County makes for some interesting reading. 

But what Bottum finds most interesting is Section 11 of the ordinance, which provides that if “other units and levels of government” try to overturn the ordinance, the Mora County Commission may consider “actions to separate the County from the other levels of government….”

Somehow I doubt that we’ll see an independent Mora County in the future, but it will be interesting to see if Mora County appeals the decision to the Tenth Circuit.

 

 

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“Meet the New Mexico judge who sentences more people than any other”

by Emil J. Kiehne Posted on February 18, 2015

Joe Palazzolo of the Wall Street Journal’s Law Blog has this interesting post about Judge Robert C. Brack, a federal district court judge in Las Cruces, and reports that he has sentenced 6,708 criminal defendants over the past five years, more than any other federal judge in the country.

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Cop-killer Michael Astorga’s convictions upheld by NM Supreme Court

by Emil J. Kiehne Posted on February 17, 2015

In March 2006, Michael Astorga shot Bernalillo County Sheriff’s Deputy James McGrane during a traffic stop. On Friday, in an opinion by Justice Chavez, the New Mexico Supreme Court rejected Astorga’s arguments on appeal and upheld his conviction for first-degree murder and other crimes.

On appeal, Astorga raised five arguments: (1) that he had suffered from ineffective assistance of counsel; (2) that the trial court improperly excluded evidence of a prosecution witness’s prior inconsistent statement; (3) that the prosecutor improperly asked an alibi witness about another murder that Astorga was allegedly involved in; (4) that the evidence was insufficient to support a finding that Astorga acted with the deliberation required for first-degree murder; and (5) that the trial court should have granted a change of venue.

In addition, Scott Sandlin has this report on the decision in the Albuquerque Journal, and Elizabeth Reed and Blair Miller have this report at KOB.com.

 

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Chief Justice Vigil: Judiciary Needs More Funding

by Emil J. Kiehne Posted on February 13, 2015

Chief Justice Barbara Vigil has published this editorial in the UNM Daily Lobo, making the case for an increase in funding to the state judiciary. Among other things, she proposes creating two new judgeships in Las Cruces and Albuquerque, and paying jurors the minimum wage.

 

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Does Ted Cruz’s legal work in New Mexico mean he’s a hypocrite? Nope.

by Emil J. Kiehne Posted on February 12, 2015

Yesterday, David Corn of Mother Jones Magazine published the following article: “As a Lawyer, Ted Cruz Defended Huge Jury Awards. As a Politician, He Opposed Them.”

The article describes Ted Cruz’s involvement in two New Mexico appellate cases while in private practice, Keith v. ManorCare, Inc. and Selk v. Res-Care New Mexico, Inc. In those cases, Cruz represented the plaintiffs, and defended huge punitive damages awards in nursing home negligence cases; $50 million in Keith, and $49.2 million in Selk. (Disclosure: I was part of the legal team that overturned the Keith verdict on appeal, and fought against Cruz).

Corn implies that Cruz is a hypocrite, and says his involvement in Keith and Selk “does raise a question: How could the senator who hails tort reform argue in favor of preserving the megamillion-dollar jury awards that tort reform advocates decry and seek to eliminate?”

The answer is that when attorneys represent clients, they are presenting the clients’ positions and arguments, and not necessarily their own. New Mexico Rule of Professional Conduct 16-102(B) explicitly provides that “A lawyer’s representation of a client … does not constitute an endorsement of the client’s political economic, social or moral views or activities.” Indeed, Cruz would have acted unethically if he had done anything other than zealously argue to reinstate the punitive damages awards that his clients obtained.

Reasonable people can disagree with Ted Cruz’s political positions, and there may be many good reasons not to support him for President, should he choose to seek that office, but his representation of the plaintiffs in Keith and Selk is not one of them.

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