{1} The opinion filed June 18, 2008, is hereby withdrawn and replaced with the following opinion. The motion for rehearing is hereby denied... {2} Dr. Rachelle Shaw (Defendant) appeals the district court's denial of her motion to set aside a default judgment against her in a malpractice action. After entering the default judgment as to liability, the district court held a trial on the sole issue of damages. Because Defendant was never properly served under the applicable rules governing...  

{1} The opinion filed in this case on June 23, 2008 is hereby withdrawn and the following substituted therefor.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... {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...  

{1} Defendant Mario Pacheco, a vehicle passenger, appeals his convictions for possession of methamphetamine with intent to distribute and for conspiracy. The police discovered the drugs upon searching a compartment hidden near stereo equipment that replaced the vehicle's back seat. Defendant raises four issues on appeal, challenging: (1) the denial of a motion to suppress evidence seized in the course of a traffic stop; (2) the district court's response to the State's destruction of evidence;...  

{1} Plaintiff, the State Engineer of the State of New Mexico, appeals the district court's decision, which reversed the summary judgment order granted by the Office of the State Engineer (OSE) hearing examiner against Defendant Seledon Garcia in compliance order proceedings and remanded for a full administrative hearing. We assigned the case to the legal calendar, see Rule 12-210(C) NMRA, and asked the parties to address several discrete issues, including (1) whether a comprehensive hearing is...  

{1} This case came before us on a petition for the permanent removal of Magistrate Judge Thomas R. Rodella. While this Court does not agree with all the findings and conclusions of the Judicial Standards Commission (the Commission), after our own review of the record, we hold that sufficient clear and convincing evidence was introduced to conclude that Judge Rodella committed willful misconduct. Moreover, we agree with the Commission that the evidence demonstrates that Judge Rodella's testimony...  

I. BACKGROUND... {1} Defendant was arrested for racing on a public highway and driving while intoxicated (DWI). During the booking process, the arresting officer conducted an inventory search of Defendant's belongings. The officer found a laminated card in Defendant's wallet, and on the card was a white powdery substance. The officer placed the card on the table and turned away in order to find a field test kit. The officer testified that in his peripheral vision, he saw Defendant use his thumb...  

{1} Defendant appeals his convictions on two counts of criminal sexual penetration. The State's theory was that Defendant criminally sexually penetrated Victim while she was incapacitated by drugs or alcohol. We address a prosecutorial misconduct issue and an evidentiary issue. As general background, Victim testified that she believed she was drugged, but no toxicological evidence showed drugs in her system, nor did the jury hear any direct evidence of the administration of drugs to Victim by...  

{1} Plaintiffs Marvin J. and Martha J. Weise (Plaintiffs) appeal from the district court's order granting summary judgment in favor of Defendant Washington Tru Solutions, LLC (WTS). Our resolution of this case requires us to evaluate whether Plaintiffs' claims are preempted by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 (2000). We hold that two of the claims— intentional infliction of emotional distress (IIED) and defamation—are preempted by the NLRA....  

{1} This case involves the enforcement of a covenant not to compete between Defendant Linda Lamon (Lamon) and her former employer, Plaintiff Rapid Temps, Inc. (RTI). Lamon was terminated from RTI and began working for a competing firm. RTI brought suit in the district court to enforce the covenant not to compete and for damages arising from Lamon's alleged misappropriation of trade secrets. Following a bench trial, the district court granted RTI's requested relief. Lamon challenges the district...  

{1} In this case, we consider whether City of Albuquerque Ordinance C/S O-06-21, the Assisted Outpatient Treatment Ordinance (the Ordinance), is preempted by state law. First, though, we must consider whether Plaintiffs, Jane Does 1 through 3, John Doe 1, and Protection and Advocacy System (P&A), have standing to challenge the Ordinance. We agree with the district court that Plaintiffs have standing and that the Ordinance is preempted by the State Mental Health and Developmental Disabilities...  

{1} This is the second appeal originating from a judgment entered in a case concerning oil and gas properties in Lea County, New Mexico. The judgment involved two separate lawsuits pending in Lea County District Court that were consolidated for trial: Capco Acquisub, Inc. v. Greka Energy Corporation, No. CV-2001-249 (Lea County, N.M., filed July 6, 2001) and Michael Harton, et al. v. Greka AM, Inc., et al., No. CV-2001-417 (Lea County, N.M., filed Oct. 29, 2001). We refer to the former suit as...  

{1} This case requires us to address the restrictions on using a declaratory judgment action as an alternative to statutory procedures for judicial review of an agency action. The case began when DKD Electric, LLC (DKD), submitted an unsuccessful bid on a contract with Eastern New Mexico University (ENMU), controlled by the Procurement Code, NMSA 1978, §§ 13-1-28 to -199 (1984, as amended through 2006). DKD filed a protest, but instead of waiting for a decision on the protest and then...  

{1} The State appeals the district court's grant of Defendant's motion to suppress items pulled from Defendant's pocket after a police officer took hold of Defendant's wrist to control the removal of Defendant's hand from the pocket. We determine that the officer's action was a seizure but that it was based on reasonable suspicion that Defendant was armed and dangerous. We thus reverse the district court's grant of the motion to suppress the evidence... I. BACKGROUND... {2} On August 31, 2005,...  

{1} The metropolitan court dismissed the case against Defendant after two mistrials were caused by the State's witnesses and after a police officer, who was a key witness for both the State and Defendant, failed to appear for the third scheduled trial when the State failed to subpoena him after representing that it would do so. The State appealed to the district court, which reversed. Defendant then appealed to this Court. We reverse and remand for reinstatement of the metropolitan court order...  

{1} In State v. Rackley, 2000-NMCA-027, 128 N.M. 761, 998 P.2d 1212, this Court held that the defendant's trial commenced for purposes of the district court six-month rule when the jury was selected. The present case raises the question of when a trial commences for purposes of the metropolitan court's counterpart to the six-month rule (the 182-day rule) when a defendant is tried by a judge rather than a jury. Applying the principles enunciated in Rackley and related six-month rule cases, we...  

{1} Defendant appeals his conviction for driving while intoxicated (DWI). He contends that the trial court erred when it determined that Defendant's appearance for trial dressed in his military uniform was an exceptional circumstance that allowed the court to extend the time that the State had to bring Defendant to trial. He also challenges the sufficiency of the evidence supporting his conviction. Finally, he contends that the court admitted testimony regarding the significance of the...  

{1} New Mexico law favors the prompt disposition of criminal charges. N.M. Const. art. II. § 14. To carry out the policy favoring prompt disposition of criminal charges, our Supreme Court has adopted for each trial court a so-called "six-month rule." Rules 5-604(B), 6-506(B), 7-506(B), 8-506(B) NMRA. Each of the three cases before this Court involves a similar fact pattern: the State files a criminal complaint including a misdemeanor DWI charge against each Defendant in magistrate...  

{1} In this case, we must decide whether a known sperm donor is responsible for child support when there was an agreement, prior to conception, that he would not be financially obligated. We conclude that while such an agreement may be valid in some instances, where the biological father goes beyond merely donating sperm and assumes a parental role, as in this case, he is liable for child support... FACTUAL AND PROCEDURAL BACKGROUND... {2} Mother and biological Father met in the mid-1990's...  

{1} Defendant Martin Saiz was convicted of first-degree murder, first-degree kidnapping, and tampering with evidence in connection with the killing of Carolyn Rustvold, an occupational therapist at Montezuma Elementary School in Albuquerque. We address Defendant's numerous claims of error and determine that (1) his wallet was lawfully searched without a warrant after his lawful arrest; (2) his convictions for both kidnapping and deliberate first-degree murder did not constitute double jeopardy;...  

OPINION... CASTILLO, Judge. [MT]... ... {1} In this case, we determine whether a reservation of timber rights, which is set forth in a deed, established a perpetual right or, instead, created a right to harvest timber only for a reasonable period of time. The district court adopted the latter view, and we affirm... I. BACKGROUND... {2} In 1969, the predecessors in interest of Appellants (Marrujos) conveyed certain property to the predecessors in interest of Appellees (Sandersons). The deed...