{11} Rule 11-301 operates in undue influence cases as follows. In a jury trial, once a presumption of undue influence is raised, the contestant's burden of going forward with the evidence is satisfied and he or she is not susceptible to a motion for judgment as a matter of law. Mortgage Inv. Co. v. Griego, 108 N.M. 240, 244, 771 P.2d 173, 177 (1989) ("Presumptions governed by the [rule] operate to avoid a directed verdict. . . ."); Martinez v. Cantu (In re Estate of Gonzales), 108 N.M. 583, 584, 775 P.2d 1300, 1301 (Ct.App. 1988) ("[A] party may rely on a presumption to establish his or her prima facie case.").
Under this rule, presumptions in a civil nonjury trial are "little more than rhetorical devices; one can argue them to a judge but they have no mandatory effect upon his decision." Mortgage Inv. Co. v. Griego, 108 N.M. 240, 244, 771 P.2d 173, 177 (1989) (internal quotations omitted) (emphasis in original). The Restatement does not take a position on the use of presumptions.
See SCRA 1986, 11-301 (Repl.Pamp. 1994); Mortgage Inv. Co. v. Griego, 108 N.M. 240, 243-44, 771 P.2d 173, 176-77 (1989) (discussing effect of evidentiary presumptions). We have indicated that presumptions in a civil non-jury trial are little more than rhetorical devices.
As in Fletcher, there is proof in this case that the former owner actually agreed to sell and did sell the property in question and then acquiesced in the buyer's rights and interests in the property. Under New Mexico Rule of Evidence 301 the resulting logical presumption of a lost or neglected grant is not mandatory, see Mortgage Inv. Co. v. Griego, 108 N.M. 240, 243-44, 771 P.2d 173, 176-77 (1989), but as in Fletcher, under a rule of property law the presumption of a grant arguably is mandatory as a matter of public policy if unrebutted. Cf. Hester v. Sawyers, 41 N.M. 497, 504, 71 P.2d 646, 650 (1937) (holding that once party has proven statutory time period of adverse possession, presumption of grant is conclusive); Baker v. Certain Lands, 19 Ark. App. 253, 720 S.W.2d 318, 320-21 (1986) (holding that when one in possession has paid taxes on lands previously forfeited to the state, redemption by grant is presumed as a matter of law).
This rule eliminated the "bursting bubble" theory of presumptions, and a presumption now retains evidentiary effect throughout the trial, so as to permit the fact finder to draw an inference of the presumed fact from proof of the basic or predicate fact. See Mortgage Inv. Co. v. Griego, 108 N.M. 240, 243-44, 771 P.2d 173, 176-77 (1989). Therefore, in the present case, proof that Roberts voluntarily assumed obligations and incurred expenses gives rise to a presumption that Transamerica and CNA were prejudiced. That presumption will permit the fact finder to infer that they were in fact prejudiced, but the burden of persuasion of that fact will remain on the party on whom it is originally cast.
Under our Rules of Evidence, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but it does not shift to that party the burden of proof in the sense of the risk of nonpersuasion, which remains upon the party on whom it was originally cast. SCRA 1986, 11-301; see Mortgage Inv. Co. v. Griego, 108 N.M. 240, 243-44, 771 P.2d 173, 176-77 (1989) (discussing effect of presumption in light of revised Rule 301). When parents are operating under a joint custody arrangement and one of them seeks to alter the arrangement, it makes perfectly good sense to impose a presumption in favor of the parent who wishes to continue to operate under the joint custody decree and to place on the party wishing to change the decree the burden to produce evidence that the arrangement is no longer workable and needs to be changed.
775 P.2d at 1302;see SCRA 1986, 11-301 ("a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption"). This Court, in Mortgage Investment Co. of El Paso v. Griego, 108 N.M. 240, 243-44, 771 P.2d 173, 176-77 (1989), stated that when the burden shifts that party must only present evidence to meet or rebut the presumption, not carry the burden of persuasion on the existence of the presumed fact. Accord In re Estate of Foster, 102 N.M. 707, 710, 699 P.2d 638, 641 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985) (burden of persuasion does not shift but remains with party alleging undue influence).
Under SCRA 1986, 11-301 (rule of evidence regarding presumptions in general in civil actions), these inferences are to be weighed by the trier of fact against the presumption. See Mortgage Inv. Co. of El Paso v. Griego, 108 N.M. 240, 771 P.2d 173 (1989) (whether or not a party against whom presumption is directed has met burden of proof, presumed fact does not disappear). Res judicata.
"Since defendant claims his sixth amendment rights have been violated, he should bear the burden of producing evidence to support hisclaim." Tartaglia, 108 N.M. at 414, 773 P.2d at 359 (emphasis added); see generally Mortgage Inv. Co. of El Paso v. Griego, 108 N.M. 240, 771 P.2d 173 (1989) (on distinction between burden of production and burden of persuasion). The reason advanced in Tartaglia for placing the burden of production on the defendant with respect to the prejudice prong of the speedy trial analysis was that
The accidental injury must have its origin in a risk connected with the employment and have flowed from the risk as a rational consequence. Id.; Mortgage Inv. Co. of El Paso v. Griego, 108 N.M. 240, 242-43, 771 P.2d 173, 175-76 (1989). "The phrase, in the course of employment, relates to the time, place, and circumstances under which the accident takes place."