San Pedro LLC v. Bernalillo Cty. Assessor

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: September 13, 2016 4 NO. 34,869 5 2727 SAN PEDRO LLC, 6 a limited liability company, 7 Petitioner-Appellant, 8 v. 9 BERNALILLO COUNTY ASSESSOR, 10 Respondent-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Denise Barela Shepherd, District Judge 13 J. Victor Pongetti 14 Albuquerque, NM 15 (Inactive as of 12/31/2015) 16 for Appellant 17 18 19 20 Robles, Rael & Anaya P.C. Vanessa R. Chavez Marcus J. Rael, Jr. Albuquerque, NM 21 for Appellee 1 OPINION 2 WECHSLER, Judge. 3 {1} This appeal arises from proceedings related to Appellant 2727 San Pedro LLC’s 4 formal protest of Appellee Bernalillo County Assessor’s (the Assessor) 2014 notice 5 of value for the subject property for property tax purposes. After considering evidence 6 from both parties, the Bernalillo County Valuation Protests Board (the Protests Board) 7 valued the property at $900,200—the amount proposed by the Assessor. Appellant 8 appealed to the district court, which affirmed. 9 {2} This Court granted certiorari under Rule 12-505 NMRA to resolve questions 10 related to the sufficiency of the evidence. After reviewing the testimony supporting the 11 Assessor’s valuation and considering our substantial evidence jurisprudence, we 12 conclude that the testimony does not support a conclusion that the Assessor’s 13 valuation of the property resulted from the application of generally accepted appraisal 14 techniques. We therefore vacate the Protests Board’s valuation and remand to the 15 Protests Board for additional proceedings consistent with this opinion. In its appellate 16 briefing, Appellant raised several legal issues not contemplated in its petition for writ 17 of certiorari. Based on Rule 12-505(D)(2)(b), we decline to review these issues. 1 BACKGROUND 2 {3} Appellant is the owner of a commercial office building located at 2727 San 3 Pedro NE in Albuquerque, New Mexico. Appellant received the property’s annual 4 valuation report from the Assessor on or around May 22, 2014. This report valued the 5 property at $1,113,300. Appellant filed a petition protesting the Assessor’s assessment 6 of value and proposed that the correct value was $753,690. This petition additionally 7 proposed that the income method of valuation was the most appropriate method by 8 which to determine the value of the property. The Protests Board scheduled a hearing 9 for July 8, 2014. 10 {4} On June 25, 2014, the Assessor recalculated its valuation of the subject property 11 and sent Appellant a new valuation report. This report valued the property at 12 $1,031,500. On July 8, 2014, immediately prior to the protest hearing, the Assessor 13 again recalculated its valuation, further reducing the value to $900,200. Ms. Arlene 14 Jaramillo, an appraiser employed by the Assessor’s office, represented the Assessor 15 before the Protests Board. Jaramillo conceded during the hearing that properties 16 considered as part of a commercial sales comparison were not sufficiently similar to 17 support a valuation of the property. Because of the lack of sufficiently comparable 18 properties, Jaramillo stated that the Assessor utilized the income method of valuation 19 to determine the value of the property. 2 1 {5} Appellant introduced evidence supporting its proposed valuation, including 2 Annual Property Operating Data (APOD) reports for the years 2011 through 2013 and 3 a projected APOD for the year 2014. It also offered the testimony of a local real estate 4 agent, although this witness was expressly not qualified as an expert in commercial real 5 estate appraisal. 6 {6} With respect to the central issue in this case, Appellant argued that the 7 Assessor, in applying the income method of valuation, should have utilized Appellant’s 8 actual operating expenses, as reflected in the 2014 projected APOD, rather than 9 limiting its expenses to forty-five percent of the effective gross income. In support of 10 this argument, Appellant introduced the Protests Board’s 2009 decision and order for 11 the property, in which the Protests Board stated that such an “expense limit is not a 12 generally accepted appraisal technique.” 13 {7} Jaramillo testified that the Assessor’s application of the income method of 14 valuation utilized a forty-five percent limitation on operating expenses based upon 15 independent sources of market research. Specifically, Jaramillo stated, “[F]rom what 16 we have seen as far as what people are bringing in, what we’ve researched from 17 Business Weekly and Co-Star, right now the max[imum] vacancy is at fifteen percent 18 and the max[imum] expenses [are] at forty-five percent, so that’s what we allowed” 19 and “[We] us[ed] the market vacancies, expenses, reserves, and such that we have 3 1 been giving everybody else based on the research we have done with Co-Star, 2 Business Weekly, and everybody else that has brought us any kind of information.” 3 Jaramillo also testified that Appellant’s “expenses were at eighty-seven percent, which 4 is really high for what the market is doing.”1 Jaramillo did not testify to the scope, with 5 respect to the time period or property type, of the Assessor’s application of the forty6 five percent operating expense limitation. 7 {8} The Protests Board concluded that its preference would be “to see the 8 Assessor’s actual market studies to support the expense limits imposed[,]” but that 9 “the Assessor’s approach to value is most reliable.” The Protests Board entered a 10 decision and order that valued the subject property at $900,200. The decision and 11 order additionally noted that the Assessor “offers an income approach valuation 12 employing [Appellant’s] numbers, but limits vacancy to [thirteen percent],2 13 management fees to [three percent], reserves to [four percent] and expenses to [forty14 five percent], in accordance with the Assessor’s market research and review of data 15 16 17 18 19 1 The Assessor asserts that analysis of Appellant’s 2013 APOD results in a proposed operating expense of eighty-seven percent. The Assessor calculates this percentage by “adding the 2013 [o]rdinary [e]xpenses and [t]otal [o]ther [e]xpenses, subtracting [r]eal [e]state [p]roperty [t]axes, and then dividing by the [g]ross [o]perating [i]ncome.” 2 20 Jaramillo testified that the maximum vacancy allowable at the time of the 21 assessment was fifteen percent. We presume that the thirteen percent cited in the 22 Protests Board’s decision and order was a clerical mistake. 4 1 from other properties.” The order did not expressly state the source of, or basis for, 2 these figures, or whether Appellant had overcome the statutory presumption of 3 correctness afforded to the Assessor’s determination of value by NMSA 1978, 4 Section 7-38-6 (1981). 5 {9} Appellant timely filed a notice of appeal and statement of appellate issues. 6 Appellant raised eight issues on appeal to the district court. Five of those issues related 7 directly or indirectly to whether substantial evidence supported the Protests Board’s 8 implied conclusion that the Assessor’s valuation of the subject property was based 9 upon generally accepted appraisal techniques. Appellant also asserted that the Protests 10 Board erred in failing to expressly conclude that Appellant had overcome the statutory 11 presumption of correctness. In its statement of appellate issues, Appellant provided 12 an alternative calculation of its total operating expenses, amounting to sixty-two 13 percent of gross operating income.3 14 {10} The district court affirmed the Protests Board’s valuation in a memorandum 15 opinion and order filed on June 23, 2015. Due to a clerical mistake, the order was 16 amended and refiled on June 25, 2015. The district court first addressed the Protests 17 Board’s failure to expressly conclude whether Appellant had overcome the statutory 3 18 Appellant applied projected gross operating income and total operating 19 expenses for 2014. 5 1 presumption of correctness afforded to the Assessor’s determination of value, stating, 2 “The Court agrees the [Protests] Board should have made a finding on this issue[,] 3 . . . [but] will assume, for purposes of this appeal, that the presumption was 4 overcome.” 5 {11} The district court, quoting First National Bank v. Bernalillo County Valuation 6 Protest Board, 1977-NMCA-005, 90 N.M. 110, 560 P.2d 174, noted that without a 7 presumption of correctness, the burden shifted to the Assessor to “prove that his [or 8 her] method of valuation used a generally accepted appraisal technique.” It also 9 concluded that the Assessor has a policy, based upon market research, that places a 10 forty-five percent limitation on operating expenses when applying the income approach 11 to valuation. It ruled that “substantial evidence supports the use of market data to 12 determine the amount of ordinary and necessary expenses when valuing property for 13 taxation purposes using the income method.” In support of its ruling, the district court 14 stated that Jaramillo’s “sworn testimony that the Assessor employs a [forty-five 15 percent] cap is itself competent evidence that such a policy exists.” The district court 16 also noted that “there is no evidence in the record to dispute the conclusion that the 17 use of market data to determine the expense ratio is a generally accepted technique[,]” 18 that “Appellant has identified no provision in the statutes or regulations that requires 19 the Assessor to use[] a subject property’s actual expenses,” and that the Protests 6 1 Board “determined upon independent review that the Assessor’s approach was 2 reliable.” The district court was not persuaded that the Protests Board’s 2009 decision 3 and order for the property (1) was relevant in determining whether a policy limiting 4 operating expenses to an established percentage is a generally accepted appraisal 5 technique or (2) had any estoppel effect on the 2014 valuation. 6 {12} Appellant filed a petition for writ of certiorari to this Court. Appellant’s writ 7 presented two questions for review: 8 9 10 11 [1] Was there substantial evidence to support the decision of the [Protests] Board that the method used by the Assessor met the statutory requirement in [NMSA 1978, Section 7-36-15(B) (1995)] as a generally accepted appraisal technique? 12 13 14 15 16 [2] Was the decision of the District Court affirming the decision of the [Protests] Board arbitrary because there was no substantial evidence to support the [Protests] Board’s decision that the Assessor’s technique met the requirements of [Section 7-36-15(B)] as a generally accepted appraisal technique? 17 We granted Appellant’s petition to address these questions. 18 PRESERVATION 19 {13} As a general rule, claims of error are reviewed by this Court only if preserved 20 at trial. Rule 12-216(A) NMRA. However, this rule is limited in the context of 21 administrative hearings. See Dick v. City of Portales, 1994-NMSC-092, ¶¶ 5-6, 118 22 N.M. 541, 883 P.2d 127 (holding that “[o]ur statutes do not require formal 7 1 preservation of error before appeal may be taken” in cases in which the determination 2 of a local governing body acting in a quasi-judicial capacity is challenged based upon 3 a substantial evidence argument). “A [property tax valuation] protest board is a quasi4 judicial body.” First Nat’l Bank, 1977-NMCA-005, ¶ 18. While Appellant did not 5 raise a substantial evidence argument before the Protests Board, it did raise this 6 argument on appeal to the district court and in its petition for writ of certiorari to this 7 Court. As such, this Court may review Appellant’s substantial evidence based 8 arguments. 9 STANDARD OF REVIEW 10 {14} Rule 12-505 “governs review by the Court of Appeals of decisions of the 11 district court . . . from administrative appeals pursuant to Rule 1-074 NMRA, Rule 12 1-077 NMRA, or [NMSA 1978,] Section 39-3-1.1 [(1999).]” Rule 12-505(A). If 13 granted, this Court’s scope of review under Rule 12-505 is limited to the questions 14 presented in the petition for writ of certiorari. See Rule 12-505(D)(2)(b) (“The petition 15 shall contain a concise statement showing . . . the questions presented for review by 16 the Court of Appeals (the Court will consider only the questions set forth in the 17 petition)[.]” (emphasis omitted)); San Pedro Neighborhood Ass’n v. Bd. of Cty. 18 Comm’rs of Santa Fe Cty., 2009-NMCA-045, ¶ 29, 146 N.M. 106, 206 P.3d 1011 8 1 (“The issue now raised was not set forth by either the [b]oard or [the a]pplicant in their 2 petitions for certiorari. We therefore do not consider it.”). 3 {15} “Upon a grant of a petition for writ of certiorari under Rule 12-505, this Court 4 conducts the same review of an administrative order as the district court sitting in its 5 appellate capacity, while at the same time determining whether the district court erred 6 in the first appeal.” Town & Country Food Stores, Inc. v. N.M. Regulation & 7 Licensing Dep’t, 2012-NMCA-046, ¶ 8, 277 P.3d 490 (alteration, internal quotation 8 marks, and citation omitted). Our appellate courts apply a whole record standard of 9 review to administrative decisions. In re Otero Cty. Elec. Coop., Inc., 1989-NMSC10 033, ¶ 6, 108 N.M. 462, 774 P.2d 1050. This standard requires that “[w]e 11 independently review the entire record of the administrative hearing to determine 12 whether the . . . decision was arbitrary and capricious, not supported by substantial 13 evidence, or otherwise not in accordance with law.” City of Albuquerque v. AFSCME 14 Council 18 ex rel. Puccini, 2011-NMCA-021, ¶ 8, 149 N.M. 379, 249 P.3d 510 15 (internal quotation marks and citation omitted); see § 39-3-1.1 (governing appeals from 16 decisions of a county valuation protests board as stated in NMSA 1978, Section 7-3817 28(A) (1999, amended 2015) and providing that a court “may set aside, reverse or 18 remand the final [administrative] decision if it determines that . . . the final decision was 19 not supported by substantial evidence”). 9 1 {16} Substantial evidence supporting an administrative decision is “relevant evidence 2 that a reasonable mind might accept as adequate to support a conclusion.” Dick, 19943 NMSC-092, ¶ 8 (emphasis, internal quotation marks, and citation omitted). In 4 determining whether substantial evidence supports an administrative decision, our 5 appellate courts “view[] the evidence in the light most favorable to the agency decision 6 but may not view favorable evidence with total disregard to contravening evidence.” 7 Nat’l Council on Comp. Ins. v. N.M. State Corp. Comm’n, 1988-NMSC-036, ¶ 7, 8 107 N.M. 278, 756 P.2d 558 (citation omitted). 9 VALUATION OF PROPERTY FOR TAXATION PURPOSES 10 {17} The valuation of real property for property tax purposes is governed by the 11 Property Tax Code, NMSA 1978, §§ 7-35-1 to -38-93 (1973, as amended through 12 2016), which provides that “the determination of value is made by the [taxation and 13 revenue] department or the county assessor.” Section 7-36-15(A). The value for 14 taxation purposes is the market value “as determined by application of the sales of 15 comparable property, income or cost methods of valuation or any combination of 16 these methods.” Section 7-36-15(B). In applying any of these approved methods, “the 17 valuation authority . . . shall apply generally accepted appraisal techniques[.]” Section 18 7-36-15(B)(1); First Nat’l Bank, 1977-NMCA-005, ¶ 22. 10 1 {18} The Taxation and Revenue Department has promulgated regulations that guide 2 the application of these methods. 3.6.5.22 NMAC. The income method of valuation 3 is appropriate “when the market value method cannot be used due to lack of data on 4 sales of comparable properties[.]” 3.6.5.22(A)(1) NMAC. “Expenses,” for purposes 5 of applying the income method of valuation, are defined as “the outlay or average 6 annual allocation of money or money’s worth that can fairly be charged against the 7 revenue or receipts from the property” and are “limited to those which are ordinary 8 and necessary in the production of the revenue and receipts from the property[.]” 9 3.6.5.22(A)(6) NMAC. 10 {19} Determinations of valuation by the Taxation and Revenue Department or a 11 county assessor are presumed to be correct. Section 7-38-6; First Nat’l Bank, 197712 NMCA-005, ¶ 24. “This presumption can be overcome by [the] taxpayer showing that 13 the assessor did not follow the statutory provisions . . . or by presenting evidence 14 tending to dispute the factual correctness of the valuation.” First Nat’l Bank, 197715 NMCA-005, ¶ 24. In determining the weight to give admitted evidence of valuation, the 16 protests board members “may use their knowledge and experience[.]” 3.6.7.36(H)(1) 17 NMAC. 18 {20} Whether an appraisal technique is “generally accepted” is a question of fact. See 19 First Nat’l Bank, 1977-NMCA-005, ¶ 23 (stating that a taxpayer has a “duty to 11 1 dispute . . . by expert testimony” whether an appraisal technique is generally accepted). 2 If the taxpayer overcomes the statutory presumption of correctness, “the burden shifts 3 to the assessor to prove that his [or her] method of valuation utilized a generally 4 accepted appraisal technique.” Id. ¶ 25 (internal quotation marks and citation omitted). 5 {21} Prior to addressing Appellant’s issues on appeal, we must address whether 6 Appellant’s testimony and admitted evidence were sufficient to overcome the statutory 7 presumption of correctness afforded to the Assessor’s valuation of the subject 8 property. The Assessor proposed a market value based upon its own application of 9 the income method of valuation; an application that utilized a market research-based, 10 forty-five percent limitation on operating expenses. Appellant did not offer expert 11 testimony indicating that the Assessor’s application of the income method of valuation 12 did not utilize generally accepted appraisal techniques as outlined in First National 13 Bank. See id. ¶ 23. However, both the Protests Board, impliedly, and the district 14 court, expressly, indicated that Appellant had overcome the statutory presumption of 15 correctness. 16 {22} During the July 8, 2014 hearing, Appellant proposed a market value based upon 17 its own application of the income method of valuation. This application utilized actual 18 operating expenses, as reflected in the 2014 projected APOD. While Appellant’s 19 application of the income method of valuation differs from that advocated by the 12 1 Assessor, the Assessor did not offer expert testimony disputing that the use of actual 2 expenses is a generally accepted appraisal technique. See id. As such, Appellant’s 3 “evidence of value . . . tend[s] to dispute the factual correctness of the method of 4 valuation[.]” Id. ¶ 24. Neither the Protests Board nor the district court ruled that 5 Appellant failed to overcome the statutory presumption of correctness afforded to the 6 Assessor’s valuation. Cf. Peterson Props., Del Rio Plaza Shopping Ctr. v. Valencia 7 Cty. Valuation Protests Bd., 1976-NMCA-043, ¶ 14, 89 N.M. 239, 549 P.2d 1074 8 (holding that, in the absence of evidence based on generally accepted appraisal 9 techniques, the petitioner did not overcome the statutory presumption of correctness). 10 In the absence of such a ruling, the burden of proof shifted to the Assessor “to prove 11 that his [or her] method of valuation utilized a generally accepted appraisal technique.” 12 First Nat’l Bank, 1977-NMCA-005, ¶ 25 (internal quotation marks omitted). 13 SUFFICIENCY OF THE EVIDENCE 14 {23} Because Appellant overcame the statutory presumption of correctness afforded 15 to the Assessor’s valuation of the subject property, we turn to the issue of whether 16 substantial evidence exists such that a reasonable person could conclude that the 17 Assessor’s application of the income method utilized generally accepted appraisal 18 techniques. In this inquiry, we account for regulatory language allowing Protests Board 19 members to apply their own experience and knowledge to the admitted evidence. 13 1 3.6.7.36(H)(1) NMAC. For the reasons discussed below, we conclude that the 2 Assessor’s testimony is insufficient to support such a conclusion. 3 {24} The income method of real estate valuation derives market value from a formula 4 that multiplies a given capitalization rate by the net operating income for the subject 5 property. Encyclopedia of Real Estate Appraising 54-55 (Edith J. Friedman ed., 6 1959). Net operating income is calculated “by deducting from gross income all costs 7 of maintenance and operation.” Id. at 55. As discussed above, Jaramillo testified at the 8 July 8, 2014 hearing that, when applying the income method of valuation, the Assessor 9 applies a forty-five percent limitation on operating expenses rather than applying the 10 taxpayer’s actual reported expenses. Our independent research indicates that such a 11 limitation, based solely on market research, is not universally applied. See, e.g., Willow 12 Valley Manor, Inc. v. Lancaster Cty. Bd. of Assessment Appeals, 810 A.2d 720, 72613 27 (Pa. Commw. Ct. 2002) (“In estimating expenses, the appraiser . . . must make a 14 stabilized expense projection, considering actual expenses and industry standards.” 15 (emphasis added)); Smith v. Bd. of Supervisors of Fairfax Cty., 361 S.E.2d 351, 355 16 (Va. 1987) (“Where an assessment is based on the capitalization of income, contract 17 rent and actual expenses must be considered in arriving at economic income[.]” 18 (emphasis added)). 14 1 {25} Jaramillo testified that the Assessor derived its forty-five percent limitation on 2 operating expenses from market research from sources including Business Weekly, 3 Co-Star, and “everybody else that has brought us any kind of information.” This 4 testimony, however, in no way indicated that the forty-five percent limitation on 5 operating expenses was properly applied (1) to Appellant’s office building or (2) 6 during the time period at issue. See generally Encyclopedia of Real Estate 7 Appraising, supra (describing different considerations in appraising different types 8 of commercial property including apartment buildings, office buildings, retail stores, 9 shopping centers, and industrial property). The Protests Board highlighted this 10 deficiency by stating its preference “to see the Assessor’s actual market studies to 11 support the expense limits imposed.” Taxpayers are entitled to a “current and correct 12 value[] of property” for taxation purposes. Section 7-36-16(A). Commercial real estate 13 markets, however, fluctuate. Absent data supporting the Assessor’s claim that forty14 five percent is an appropriate limitation on operating expenses in this market, for this 15 property type, and during this time period, we are disinclined to conclude that a 16 reasonable person could conclude that the Assessor conducted the appraisal using 17 generally accepted appraisal techniques. 18 {26} Furthermore, the Protests Board’s 2009 decision and order for the subject 19 property, which was admitted as evidence in this case, demonstrates that the Protests 15 1 Board had recently repudiated the utilization of blanket limitations on operating 2 expenses when applying the income valuation method. While this order has no 3 precedential value, it indicates a dramatic shift with respect to what constitutes a 4 generally accepted appraisal technique between 2009 and 2014. It is not for this Court 5 to determine whether the Assessor’s limitation on operating expenses is, or is not, a 6 generally accepted appraisal technique. However, the Protests Board’s 2009 decision 7 and order for this property raises questions as to whether the Assessor’s 2014 8 valuation of the property was the result of the application of generally accepted 9 appraisal techniques, and Jaramillo’s testimony does not resolve those questions. 10 {27} Both the Assessor and the district court note, in reference to 3.6.7.36(H)(1) 11 NMAC, that members of the Protests Board “determined upon independent review 12 that the Assessor’s approach was reliable.” However, we do not consider that 13 determination to be sufficient in this context without data, or some other objective 14 source of information, to which the board members may apply such independent 15 review. Cf. Four Hills Country Club v. Bernalillo Cty. Prop. Tax Protest Bd., 197916 NMCA-141, ¶¶ 13, 23, 94 N.M. 709, 616 P.2d 422 (reversing the protest board’s 17 determination of value and discounting the testimony of the expert appraiser, stating, 18 “If the only purpose for calling an expert is to have him put forth the hearsay opinion 16 1 of another, the trier of facts could as well obtain the material itself and dispense with 2 hearing any witnesses.”). 3 {28} In support of its decision, the district court additionally stated, “Appellant has 4 identified no provision in the statutes or regulations that requires the Assessor to use[] 5 a subject property’s actual expenses, and the case law does not support his position.” 6 We also do not consider this statement to be convincing. First, the case cited by the 7 district court in support of “mass appraisal[s]” relates to the appraisal of undeveloped 8 lots using the comparable sales method. In re Protest of Cobb, 1991-NMCA-122, ¶ 2, 9 113 N.M. 251, 824 P.2d 1053. Second, and more importantly, the district court’s 10 argument incorrectly shifts the burden of proof back to Appellant. See First Nat’l 11 Bank, 1977-NMCA-005, ¶ 25 (“When a taxpayer overcomes the presumption of the 12 correctness of the assessor’s method of valuation, the burden shifts to the assessor 13 to prove that his [or her] method of valuation utilized a generally accepted appraisal 14 technique.” (internal quotation marks omitted)). Similarly, in discussing the sufficiency 15 of Jaramillo’s testimony to carry the burden of proof, the district court stated that 16 Jaramillo’s “sworn testimony that the Assessor employs a [forty-five percent] cap is 17 itself competent evidence that such a policy exists.” The question at issue in this case, 18 however, is not whether a certain policy exists or is employed by the Assessor. The 19 question at issue, instead, is whether that policy utilizes generally accepted appraisal 17 1 techniques to determine current and correct valuations for property tax purposes. We 2 are unable to draw such a conclusion from Jaramillo’s testimony before the Protests 3 Board. 4 CONCLUSION 5 {29} At oral argument before this Court, Appellant requested that we apply its 6 proposed valuation for the 2014 tax year. Because we lack a sufficient basis to say that 7 Appellant’s proposed valuation resulted from the application of generally accepted 8 appraisal techniques, we decline to take such action. Instead, we vacate the Protests 9 Board’s valuation of the subject property and remand to the Protests Board for 10 additional proceedings consistent with this opinion.4 11 {30} IT IS SO ORDERED. 12 13 ________________________________ 14 JAMES J. WECHSLER, Judge 4 14 On remand, Mr. Pongetti, as an inactive attorney, should not be allowed to 15 represent 2727 San Pedro LLC. See Martinez v. Roscoe, 2001-NMCA-083, ¶¶ 5-7, 16 131 N.M. 137, 33 P.3d 887. 18 1 WE CONCUR: 2 ________________________________ 3 RODERICK T. KENNEDY, Judge 4 ________________________________ 5 LINDA M. VANZI, Judge 19

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