“It is enough to present a defense; harping on it is not required.”

by Emil J. Kiehne Posted on September 10, 2014

I thought you might enjoy this quote from Judge Frank Easterbrook’s opinion in Jentz v. ConAgra Foods, Inc. (7th Cir., Sept. 9, 2014), at page 6.

Judge Easterbrook was responding to an appellee who argued that the defendant did not “feature” a particular defense at trial. Although it may not have played a significant role at trial, that defense ended up winning the day on appeal.

This quote is a reminder to every appellant’s counsel to carefully examine the record to discover what issues can be raised on appeal. The winning issue may not be the one that made the greatest splash at trial.

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NM Court of Appeals: State may prosecute identity theft occurring entirely in other states, where victim is in New Mexico

by Emil J. Kiehne Posted on September 10, 2014

Christopher Allen was convicted of stealing the identity of a New Mexico resident, and using it to obtain an Arizona driver’s license, to rent cars in Arizona, Nevada, and Georgia, and provided the stolen identity as his own when he was arrested in Georgia. None of his acts were committed in New Mexico.

In an interesting discussion of the territorial limits of a state’s criminal jurisdiction, the New Mexico Court of Appeals held on Monday that New Mexico does have jurisdiction over the defendant because the effects of his crimes were felt here (this is called the “detrimental effects” theory of jurisdiction). The Court also held that New Mexico does not have to enact a statute specifically authorizing the State to exercise this jurisdiction.

The opinion is State v. Allen, a unanimous decision written by Judge Michael Vigil. It also contains a useful discussion of the difference between jurisdiction and venue.

So if any out-of-staters are thinking of committing crimes against a New Mexican, think again, because you can run, but you can’t hide.

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NM Supreme Court: Motion to disqualify lawyer must be resolved before agency or court hears the merits

by Emil J. Kiehne Posted on September 9, 2014

When a motion to disqualify a lawyer is filed, a court or administrative agency must decide that motion before allowing the lawyer to participate in any proceedings on the merits. That’s essentially what the New Mexico Supreme Court held yesterday in Living Cross Ambulance Service, Inc. v. New Mexico Public Regulation Commission.

Lawyer W. Ann Maggiore defended Living Cross Ambulance Service in a wrongful death lawsuit where the plaintiff claimed that Living Cross’s delay in arriving at the scene contributed to a child’s death. Ms. Maggiore also defended the company when the Public Regulation Commission (PRC) ordered it to show cause why it should not be fined in connection with the child’s death.

Later, in 2013, American Medical Response applied to the PRC for permission to provide ambulance services in Valencia County, where Living Cross operates. Living Cross objected to AMR’s application, saying an additional ambulance company wasn’t necessary.

AMR, now represented by Ms. Maggiore, argued that another ambulance operator was necessary for Valencia County because Living Cross was providing deficient service, and that there had been occasions when Living Cross’s ambulances were either unavailable or had taken too long in responding to an emergency.

Living Cross moved to disqualify Ms. Maggiore and her firm because they had previously represented the company in a substantially related matter, and pointed out that a PRC hearing examiner had previously disqualified Ms. Maggiore from representing AMR in a dispute over an operating certificate in Bernalillo County. (N.B., the opinion does not describe the arguments, if any, that Ms. Maggiore made in response to this motion).

Living Cross also asked the PRC to stay the hearing on the merits until the disqualification issue was resolved, but the PRC declined to do so. Instead, Ms. Maggiore was allowed to participate in a hearing on the merits, present the testimony of AMR witnesses on direct examination, and cross-examine Living Cross witnesses. Later, a PRC hearing examiner disqualified Ms. Maggiore, but the PRC still considered the evidence she had developed, and granted AMR leave to operate in Valencia County. Continue reading →

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Should the word limit for federal appellate briefs be decreased?

by Emil J. Kiehne Posted on September 8, 2014

Opening and answer briefs in federal court are presently limited to 14,000 words, but a proposed amendment to the Federal Rules of Appellate Procedure would decrease that limit to 12,500 words. The limit on reply briefs would fall from 7,000 to 6,250 words.

In recent years, I’ve mostly worked on appeals in the New Mexico state appellate courts, where the word limit for opening and answer briefs is only 11,000 words. I’ve never had any real problem making my arguments within these limits, and the limit forces one to be selective and focused in choosing which issues to present on appeal.

Thus, I tend to think that reducing the federal word limit to 12,500 words will not result in any real disadvantage to litigants. The reduced word limit, if adopted, would force lawyers to be more succinct, and reduce the workload of federal appellate judges. If you want to submit a comment on this proposal, you can do so at this link. The deadline for submitting comments is February 17, 2015.

But what if you think your case warrants a word extension? I don’t know how liberal the Tenth Circuit is in granting word extensions (I’ve never asked for one there), but if you would like a word extension in a New Mexico state appellate court, then keep dreaming, because It. Ain’t. Gonna. Happen.

The New Mexico Court of Appeals “views requests to exceed the page limitations with extreme disfavor, and they will rarely if ever be granted. The Court’s experience in reading briefs in excess of the page limitations is that such briefs are almost never necessary and frequently of significantly lesser quality than briefs with page limitations, even in complex cases.” N.M. Court of Appeals, Policies and Procedures, May 21, 2013, at p. 30, paragraph 6. I suspect the New Mexico Supreme Court is of the same mind.

In several cases, I’ve seen lawyers move for page or word extensions, and in each instance the Court of Appeals denied the motion. One of those motions was unopposed, and it’s pretty unusual for the Court to deny an unopposed motion, which shows how strongly the Court is opposed to granting any sort of extension.

Does this no-extension policy have costs? I think so. While New Mexico’s 11,000 word limit is adequate for most cases, there are almost certainly some cases of unusual complexity, or cases with extremely lengthy records, in which the word limit does not allow for an adequate presentation of the appellant’s case, or a full answer from the appellee.

The problem is knowing what cases those are. The number of cases where attorneys think they need a word extension is greater than the number of cases that actually warrant one. And when the Court receives a motion for a word extension (i.e. before the briefs are filed), it is usually not in a good position to determine whether the case is one of those few that might actually deserve one.

My belief is that the Court is aware that extensions might be warranted in some case, but has adopted a policy of denying nearly all word extensions because it is too difficult to separate the wheat from the chaff.

What are your thoughts on this issue? Do you believe that the federal word limit should be reduced to 12,500? Do you think that New Mexico’s 11,000 word limit is just right, or not enough? I’d especially be interested in hearing from anyone who has succeeded in persuading a New Mexico appellate court to extend the word limit. If you’ve done so, please let us know what sort of case it was.

 

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10th Circuit: If you think someone’s stealing your beer, take your claim to the bar before it’s barred

by Emil J. Kiehne Posted on August 26, 2014

Eric Alden knew something funny was going on at the Wyoming liquor store that he managed and operated. In 2005, the store’s accountant notified him that beer purchases had exceeded beer sales for some time. Mr. Alden also learned about significant discrepancies between the invoices of one of the store’s suppliers, Orrison Distributing, and the store’s beer sales. He “wondered about it” but did not look into the matter further.

The store’s mysterious losses on beer continued through August 2007, when Mr. Alden finally decided to investigate. He conducted inventories over an 11-day period which him to believe that an Orrison employee was stealing beer. He then installed video cameras, and caught the employee red-handed.

It turns out that the Orrison salesman, Gary Kirchhefer, had been ordering extra cases of beer on the store’s account. When he delivered the beer to the store, he would take the extra cases and sell them to two bars at a discount, pocketing the money for himself.

The store filed a RICO lawsuit in August 2011 against Kirchhefer and the bars who had benefited from buying the stolen beer, but the trial court dismissed the case because RICO’s four-year statute of limitations had expired. Continue reading →

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Non-parties who seek to enforce contract are bound by arbitration agreement, says NM Court of Appeals

by Emil J. Kiehne Posted on August 26, 2014

Normally, arbitration is a matter of contract. If you didn’t sign an arbitration agreement, you’re not bound by it.

But there are exceptions, and the New Mexico Court of Appeals recognized one of them in Damon v. StrucSure Home Warranty, LLC. In sum, if you seek to enforce a contract that you didn’t sign, you will also be bound by an arbitration provision in that contract.

Defendant StrucSure provides warranties for homes, one of which was part of a contract between the builder and the original buyers. Plaintiffs were subsequent purchasers, and while they didn’t sign the contract, they bought the home at least in part because it was covered by the warranty.

Plaintiffs later discovered structural defects in the home, and sued StrucSure and other defendants. StrucSure moved to compel arbitration, but Plaintiffs argued that they were unaware of the arbitration provision in the warranty contract, and therefore could not be bound by it. The trial court agreed, relying on cases which state the general proposition that arbitration is a matter of contract. Continue reading →

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Tenth Circuit proposes changes to its local rules; comment period open through October 20

by Emil J. Kiehne Posted on August 25, 2014

The Tenth Circuit is inviting comment on the latest proposed changes to its local rules. The Clerk’s Office has released this memo summarizing the changes, and you can review the actual changes in redline in this lengthy document.

The most notable change is the proposed amendment to Local Rule 30, which will require retained counsel in civil and criminal cases to file the appendix electronically.

If you would like to comment on any of these proposed changes, you may email your comments to [email protected] by October 20, 2014.

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Have lunch with Judge Monica Zamora

by Emil J. Kiehne Posted on August 25, 2014

The New Mexico State Bar’s Appellate Practice Section is sponsoring a brown bag lunch with Court of Appeals Judge Monica Zamora on Friday, September 5, 2014, beginning at noon at the State Bar Center in Albuquerque.

If you would like to attend, RSVP to Dolph Barnhouse at [email protected].

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Jury can decide whether DOT had constructive notice of tire debris on highway, although no one knows how long it was there

by Emil J. Kiehne Posted on August 6, 2014
Interstate 25 approaching Santa Fe
Interstate 25 approaching Santa Fe. Photo by John Phelan. Used by permission under Creative Commons Attribution 3.0 Unported License.

Peggy Lujan-Silva was driving on Interstate 25 near Santa Fe, when her car struck tire debris on the highway. Her car rolled over several times, and she was killed. No one knows how long the debris was on the highway.

Ms. Lujan-Silva’s estate sued the New Mexico Department of Transportation for negligently failing to clear the debris from the highway. The Department argued that the estate could not show it had constructive notice, because no one knew how long the debris had been there. The trial court agreed and granted summary judgment.

The Court of Appeals reversed. See Lujan v. N.M. Department of Transportation (Aug. 4, 2014). Judge Vigil‘s opinion explains that although it is unknown when the debris was left on the highway, the Department has a duty to inspect the roads and keep them safe for the public, and “[w]hen there is a duty to inspect, evidence showing that there was a failure to inspect within a reasonable period of time under the circumstances is evidence that the dangerous condition could or should have been discovered but for the untimely inspection.”

The opinion describes testimony from Department employees that they had not received training on removal of litter or debris from the roads, and while Department employees were instructed to remove debris whenever they saw it, there were apparently no regular patrols to look for it. The Court of Appeals determined that this evidence was sufficient to create an issue of fact about whether the Department had failed to inspect I-25 within a reasonable period of time before the accident, and therefore about whether the Department had constructive notice.

The lesson here, for all businesses and organizations that may be targets of lawsuits for injuries caused by dangerous conditions on property (e.g. merchants whose customers may slip and fall; construction site owners who fence out properties to keep out curious kids, etc.), is that it’s important to conduct, and document, regular inspections for dangerous conditions. Doing so will probably not protect you against all lawsuits, but you’ll be better off than if you hadn’t.

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A trip to Justice Serna’s home town

by Emil J. Kiehne Posted on August 5, 2014
The famous log cabin in Reserve, New Mexico, where Justice Serna was raised
The famous log cabin in Reserve, New Mexico, where Justice Pat Serna was raised

Those who know former New Mexico Supreme Court Justice Patricio “Pat” Serna may, on rare occasions, hear him mention that he hails from the small, western New Mexico town of Reserve, which has a population of between 300 and 400.

Reserve is the seat of Catron County, which is New Mexico’s largest county in land area.

Although larger than Connecticut, Catron County has a population of only 3,725.

I traveled to Reserve this weekend for a sad occasion (the funeral of my great-uncle), but I did make an appellate pilgrimage to the log cabin where Justice Serna was raised along with his seven siblings.

Justice Serna and me at the Catron County Fairgrounds in Reserve, New Mexico
Justice Serna and me at the Catron County Fairgrounds in Reserve, New Mexico

From this humble dwelling, and through his own hard work, Justice Serna rose to the top of the legal profession in our state.

If you are ever in Reserve, do stop by to take a look. The cabin is just south of Reserve’s “downtown” area, on the west side of the road.

At the funeral, I ran into the good justice himself, in his best western attire. He seems to be thoroughly enjoying his well-deserved retirement.

 

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