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Sweenhart v. Co-Con, Inc.

95 N.M. 773 (N.M. Ct. App. 1981)
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Sweenhart v. Co-Con, Inc.

11 Citing cases

  1. Olson v. Ford Motor Co.

    411 F. Supp. 2d 1149 (D.N.D. 2006)   Cited 2 times
    Permitting three expert witnesses to testify about the same subject

    Despite efforts to suggest that converting vitreous humor to a blood alcohol concentration level is an entirely novel concept, other courts have admitted this type of evidence. See Thier v. Lykes Bros., Inc., 900 F. Supp. 864, 869 (S.D. Tex. 1995); Rice v. Merchants Nat. Bank, 572 N.E.2d 439, 443 (Ill.Ct.App. 1991); Sweenhart v. Co-Con, Inc., 626 P.2d 310, 311 (N.M.Ct.App. 1981). Both Dr. Smith and Margaret Pearson, experts retained by Olson, recognize that vitreous humor fluid can be converted to a blood alcohol concentration level.

  2. Watson v. Tom Growney Equipment, Inc.

    104 N.M. 371 (N.M. 1986)   Cited 1 times
    In Watson v. Tom Growney Equip., Inc., 721 P.2d 1302 (N.M. 1986), where a tractor dealership offered a low price in a contract to sell a backhoe to the plaintiff and then refused to deliver claiming the offered price was an error, the court awarded the plaintiff the difference between the contract price ($15,818.65) and the market value of the backhoe ($31,500) on the basis of New Mexico's UCC § 2-713 (also identical to Idaho's).

    Therefore, the granting of a partial summary judgment on the issue of liability was correct. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App.), cert. denied, 95 N.M. 669, 625 P.2d 1186 (1981). We next address the measure of damages awarded by the district court to Watson.

  3. Schweitzer v. Burch

    103 N.M. 612 (N.M. 1986)   Cited 11 times
    Holding that vested retirement rights earned during the marriage of the parties are a community asset subject to division at time of divorce, eventhough husband has not yet retired

    Summary judgment is proper if "there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." NMSA 1978, Civ.P.R. 56 (Repl. Pamp. 1980); see Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App.), cert. denied, 95 N.M. 669, 625 P.2d 1186 (1981). There being no issue of material fact and in view of our analysis of Waite and modification of Copeland, we conclude that the district court did not err in entering summary judgment in favor of Schweitzer.

  4. Stephens v. Myers

    102 N.M. 1 (N.M. 1984)   Cited 2 times

    Summary judgment is proper if "there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." NMSA 1978, Civ.P.R. 56 (Repl. Pamp. 1980); See Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App.), cert. denied, 95 N.M. 669, 625 P.2d 1186 (1981). In the present case, there is no genuine issue of material fact and Stephens was entitled to a judgment under Article X, Section 2.

  5. Estate of Mitchum v. Triple S Trucking

    113 N.M. 85 (N.M. Ct. App. 1991)   Cited 11 times
    Holding that the evidence, including a BAC of .141, the employee's admission that he had been drinking the night before the accident, beer cans found in his truck, and testimony that he smelled of alcohol, was sufficient to show that the employee was intoxicated

    Because the exclusionary rule does not apply in civil cases, the method by which the blood sample was obtained, if illegal, should be addressed in a separate action. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App. 1981). In any event, there was conflicting evidence on the desirability of the blood sample for medical purposes and the written consent on which worker relies applies to illegal drugs and not alcohol.

  6. Trujillo v. Treat

    107 N.M. 58 (N.M. Ct. App. 1988)   Cited 21 times
    Reversing summary judgment in favor of defendant, finding that driver's ability to avoid hitting pedestrian was a question for the jury

    Based on a review of the matters presented at the hearing on the motion for summary judgment, we cannot say, as a matter of law, that there were no issues of material fact. See Merrill v. Stringer; Trujillo v. Galio; see also Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App. 1981). Thus, the issue of Treat's alleged negligence was not properly subject to resolution as a matter of law.

  7. Carter v. Thurber

    744 P.2d 557 (N.M. Ct. App. 1987)   Cited 4 times
    In Carter v. Thurber, 106 N.M. 429, 744 P.2d 557 (Ct.App. 1987), the plaintiff appealed from a summary judgment dismissing with prejudice his state court action against the defendants.

    Ordinarily, the lack of a record precludes review, see, e.g., Adams v. Loffland Brothers Drilling Co., 82 N.M. 72, 475 P.2d 466 (Ct.App. 1970), and summary judgment can only be granted upon clear and undisputed facts. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App. 1981). Where, however, a party opposing summary judgment limits his opposition, as was done here, to only one issue that did not require a determination of facts, only their legal effect, and so advised the trial court, he cannot be heard to complain on appeal. See Dollarhide v. Gunstream, 55 N.M. 353, 233 P.2d 1042 (1951).

  8. Adams v. Japanese Car Care

    106 N.M. 376 (N.M. Ct. App. 1987)   Cited 3 times

    SUMMARY JUDGMENT Summary judgment is appropriate when the pleadings and evidence by way of affidavits, depositions, admissions and answers to interrogatories, demonstrate that there is no genuine issue of material fact and that the moving party is entitled to a summary disposition as a matter of law. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App. 1981). In considering a motion for summary judgment, the burden rests on the moving party to demonstrate to the court the absence of a genuine issue of fact.

  9. Owens ex rel. Owens v. Leavitts Freight Service, Inc.

    106 N.M. 512 (N.M. Ct. App. 1987)   Cited 16 times
    Holding design, planning, and enforcement of bus safety rules for school bus transportation were not "operation" of motor vehicle under Section 41-4-5

    Once the movant has demonstrated a prima facie case of the absence of a genuine issue of fact, the burden rests on the opposing party to refute it. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App. 1981). (a) State Defendants

  10. Ponce v. Butts

    104 N.M. 280 (N.M. Ct. App. 1986)   Cited 12 times
    Recognizing "our policy to avoid piecemeal litigation and conserve judicial resources"

    Plaintiff argues that there are sufficient factual conflicts between plaintiff's affidavit and deposition and the adjuster's affidavit to preclude summary judgment on the claims presented. Summary judgment is appropriate when the pleadings and evidence, by way of affidavits, depositions, admissions and answers to interrogatories, demonstrate that there is no issue of material fact and that the moving party is entitled to summary disposition as a matter of law. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App. 1981). In summary judgment proceedings, the burden rests on the moving party to demonstrate to the court the absence of a genuine issue of fact; once the moving party has made a prima facie showing, the burden shifts to the party opposing summary judgment to refute it.