MORTGAGE INV. CO. OF EL PASO v. GRIEGO

10 Citing cases

  1. Chapman v. Varela

    146 N.M. 680 (N.M. 2009)   Cited 32 times
    Finding a fiduciary relationship where one relied on the other for transportation, meals, and housekeeping and had given the other a power of attorney and access to her bank accounts

    {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.").

  2. Algermissen v. Sutin

    133 N.M. 50 (N.M. 2002)   Cited 28 times
    Holding that to establish a prescriptive easement there must be adverse use of land

    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.

  3. Matter of Adoption of J.J.B

    119 N.M. 638 (N.M. 1995)   Cited 58 times
    Holding that statute establishing "abandonment" as a criterion for TPR was constitutional only because "abandonment of one's child establishes parental unfitness"

    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.

  4. El Paso Production Co. v. PWG Partnership

    116 N.M. 583 (N.M. 1994)   Cited 8 times

    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).

  5. Roberts Oil v. Transamerica Ins. Co.

    113 N.M. 745 (N.M. 1992)   Cited 40 times   2 Legal Analyses
    Holding that "we do not believe that the policy considerations underlying a voluntary payment provision differ significantly from the policy considerations underlying a cooperation clause"

    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.

  6. Jaramillo v. Jaramillo

    113 N.M. 57 (N.M. 1992)   Cited 50 times
    Holding that neither the relocating spouse nor the spouse remaining in the state has the benefit of a presumption; instead it is the burden of both to present evidence regarding the child's best interest

    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.

  7. Montoya v. Torres

    113 N.M. 105 (N.M. 1991)   Cited 27 times
    Holding that "[a]lone, the lack of consideration may not be a suspicious circumstance," but that in combination with other suspicious circumstances that made a gift unlikely, it might be considered

    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).

  8. Bennett v. Kisluk

    112 N.M. 221 (N.M. 1991)   Cited 26 times
    Defining accord and satisfaction

    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.

  9. Zurla v. State

    109 N.M. 640 (N.M. 1990)   Cited 80 times
    Holding that sheer bureaucratic indifference weighs heavily against the state

    "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

  10. Flores v. McKay Oil Corp.

    144 N.M. 782 (N.M. Ct. App. 2008)   Cited 17 times
    In Flores, the Court of Appeals concluded that the oil rig workers injured while traveling to the rig site were commuters, not traveling employees.

    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."