January 9, 2020- Max Quintana v. Risk Management, No. A-1-CA-36664

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
MAX QUINTANA, ESTATE OF	2
RICHARD VALDEZ, RICHARD	3
VALDEZ, JR., his son, and ROBERT	4
GALLEGOS,	5
Plaintiffs-Appellants,	6
and	7
LEONARD QUINTANA, GEORGE	8
VIGIL, MURPHY SISNEROS, SAMUEL	9
R. QUINTANA, and FREDDIE LUJAN,	10
ESTATE OF ISAAC ELOY VALENCIA,	11
and ERIC VALENCIA, his son,	12
Plaintiffs,	13
v. 	No. A-1-CA-36664	14
STATE OF NEW MEXICO, RISK	15
MANAGEMENT DIVISION, NEW MEXICO	16
CORRECTIONS DEPARTMENT, and	17
DEPARTMENT OF MILITARY AFFAIRS,	18
Defendants-Appellees.	19
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY	20
Abigail Aragon, District Judge	21
Domenici Law Firm, P.C.	22
Pete V. Domenici, Jr.	23
Reed C. Easterwood	24
Albuquerque, NM	25
for Appellants	26
Court of Appeals of New Mexico
Filed 1/9/2020 11:30 AM

2
Hatcher Law Group, P.A.	1
Keitha A. Leonard	2
Scott P. Hatcher	3
Santa Fe, NM	4
for Appellees	5
MEMORANDUM OPINION	6
BOGARDUS, Judge.	7
{1} 	Plaintiffs1 Max Quintana, Estate of Richard Valdez, and Richard Valdez, Jr.	8
appeal the district court’s order granting summary judgment in favor of Defendants	9
State of New Mexico, Risk Management Division, New Mexico Corrections	10
Department, 	and 	Department 	of 	Military 	Affairs 	on 	both 	their 	workers’	11
compensation claims and their claims made pursuant to Delgado v. Phelps Dodge	12
Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. Concluding that the	13
district court did not have jurisdiction over Plaintiffs’ workers’ compensation	14
claims, we remand to the district court to dismiss those claims for lack of	15
jurisdiction. We otherwise affirm.	16
BACKGROUND	17
{2} 	On February 2, 1980, prisoners at the New Mexico State Penitentiary began	18
to riot. On that same day, Governor Bruce King determined that, “in order to protect	19
1Plaintiff Robert Gallegos was initially also a party to this appeal. However,
he settled his claims at mediation during the pendency of this appeal and, therefore,
is no longer a party.

3
the life, safety and well-being” of persons and property, “it was necessary to call in	1
emergency service elements of the New Mexico National Guard[.]” Plaintiffs were	2
among those in the New Mexico National Guard who performed military duty at the	3
State Penitentiary during and/or after the riot.	4
{3} 	On June 21, 2012, over thirty-two years after their military service at the State	5
Penitentiary, Plaintiffs filed the complaint that began this case. On July 17, 2013,	6
Plaintiffs filed their second amended complaint, which alleged that (1) Plaintiffs	7
were employees of the State of New Mexico through the Department of Military	8
Affairs in 1980; (2) as a result of their employment during the 1980 riot, Plaintiffs	9
experienced work-related post-traumatic stress disorder (PTSD) or exacerbation of	10
pre-existing PTSD; (3) their workers’ compensation claims are covered by the	11
Workers’ Compensation Act in effect when they were deployed to the State	12
Penitentiary (the Old Act) rather than the Workers’ Compensation Act in effect when	13
they filed the lawsuit (the New Act); and (4) alternatively, Plaintiffs have causes of	14
action under Delgado.	15
{4} 	Defendants moved for summary judgment. Following briefing from the	16
parties and argument on the motion, the district court entered an order granting	17
Defendants’ motion. The district court concluded that (1) Plaintiffs had not and	18
could not meet the requirements of the Old Act; (2) even if the court could apply the	19
Old Act, Plaintiffs’ claims were time-barred; (3) Plaintiffs had not and could not	20

4
meet the requirements of the New Act; (4) even if the New Act did apply, the court	1
would not have jurisdiction to hear claims made under it; (5) the 1980 reports from	2
Attorney General Jeff Bingaman to Governor Bruce King and members of the	3
Legislature discussing the causes of the riot at the State Penitentiary and providing	4
recommendations to avoid future riots do not satisfy the “actual knowledge”	5
standard sufficient to meet NMSA 1978, Section 52-1-29(A) (1990); and (6)	6
Delgado 	does 	not 	apply 	because 	there 	was 	no 	evidence 	that 	Defendants	7
unconscionably or egregiously deployed Plaintiffs to the riot at the State Penitentiary	8
either subjectively or objectively expecting and intending that Plaintiffs would be	9
injured. Plaintiffs appeal.	10
DISCUSSION	11
I. 	The District Court Did Not Have Jurisdiction Over Plaintiffs’ Workers’	12
Compensation Claims	13
{5} 	The facts and circumstances of this case raise a jurisdictional question that we	14
must address before reaching Plaintiffs’ arguments regarding the merits of their	15
workers’ compensation claims. See Smith v. City of Santa Fe, 2007-NMSC-055,	16
¶ 10, 142 N.M. 786, 171 P.3d 300 (“[I]t is incumbent upon the appellate court to	17
raise jurisdiction questions sua sponte when the Court notices them.”); Maso v. N.M.	18
Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 13, 135 N.M. 152, 85 P.3d 276	19
(“[A]n appeal from a court . . . that lacks subject matter jurisdiction confers no	20
jurisdiction on the appellate court.” (internal quotation marks and citation omitted)).	21

5
“[W]hether a [district] court has jurisdiction in a particular case is a question of law	1
that we review de novo[.]” Smith, 2007-NMSC-055, ¶ 10.	2
{6} 	In 1986, our Legislature repealed sections of the then-existing Workers’	3
Compensation Act that “required filing of claims in the district court . . . and trial of	4
claims in the district court.” Wylie Corp. v. Mowrer, 1986-NMSC-075, ¶ 8, 104 N.M.	5
751, 726 P.2d 1381. The repeal of those sections became effective on May 21, 1986.	6
Id. At the same time, the Legislature provided that “all claims filed after December	7
1, 1986, shall be heard and determined by a hearing officer appointed by the director	8
of the newly created [workers’] compensation administration.” Id. ¶ 1.	9
{7} 	Following those changes, our Supreme Court held “that commencing on	10
December 1, 1986, all claims, regardless of when the injury . . . may have occurred,	11
shall be filed with the [workers’] compensation administration.” Id. ¶ 13 (emphasis	12
added). Furthermore, this Court has recognized that “[w]ith its creation of the	13
[workers’ 	compensation 	administration], 	the 	Legislature 	gave 	the 	[workers’	14
compensation administration] exclusive jurisdiction over workers’ compensation	15
cases, removing these cases from the district court’s jurisdiction.” Jones v. Holiday	16
Inn Express, 2014-NMCA-082, ¶ 11, 331 P.3d 992 (citing Wylie Corp., 1986-	17
NMSC-075, ¶¶ 1, 8).	18
{8} 	Because Plaintiffs’ workers’ compensation claims were filed for the first time	19
after December 1, 1986, the district court did not have jurisdiction over those claims.	20

6
Cf. DiMatteo v. Cty. of Dona Ana ex rel. Bd. of Cty. Comm’rs, 1989-NMCA-108,	1
¶¶ 12, 18, 109 N.M. 374, 785 P.2d 285 (distinguishing claims filed for the first time	2
after December 1, 1986, from applications to increase, decrease, or terminate	3
benefits and concluding that the district court had continuing jurisdiction over the	4
latter). Accordingly, we remand to the district court to dismiss Plaintiffs’ workers’	5
compensation claims for lack of jurisdiction.	6
II. 	The District Court Properly Granted Summary Judgment on Plaintiffs’	7
Delgado Claims and Plaintiffs Have Failed to Otherwise Show That the	8
Workers’ Compensation Act Does Not Provide Their Exclusive Remedy	9
{9} 	In their summary judgment briefing in the district court, Plaintiffs argued that	10
they had valid Delgado claims. Plaintiffs attempt to shed the Delgado label in this	11
appeal, asserting that the characterization of their claims is not dispositive. Rather	12
than challenge the district court’s grant of summary judgment on their Delgado	13
claims, Plaintiffs focus on whether Defendants have waived immunity under the Tort	14
Claims Act and whether they have met the notice requirements of that act. Within	15
that argument, Plaintiffs assert that the Workers’ Compensation Act does not provide	16
their exclusive remedy under this Court’s reasoning in Quintero v. New Mexico	17
Department of Transportation, 2010-NMCA-081, 148 N.M. 903, 242 P.3d 470. In	18
response, Defendants contend that Plaintiffs have waived any appeal as to their	19
Delgado claims. In their reply, Plaintiffs briefly argue that they had made a	20

7
“colorable” Delgado claim while continuing to assert their arguments based on	1
Quintero.	2
A. 	Standard of Review	3
{10} 	“Summary judgment is reviewed on appeal de novo.” Juneau v. Intel Corp.,	4
2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548. “New Mexico courts, unlike	5
federal courts, view summary judgment with disfavor, preferring a trial on the	6
merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242	7
P.3d 280. However, “summary judgment may be proper when the moving party has	8
met its initial burden of establishing a prima facie case for summary judgment.” Id.	9
¶ 10. “By a prima facie showing is meant such evidence as is sufficient in law to	10
raise a presumption of fact or establish the fact in question unless rebutted.” Id.	11
(internal quotation marks and citation omitted).	12
{11} 	“Once this prima facie showing has been made, the burden shifts to the non-	13
movant to demonstrate the existence of specific evidentiary facts which would	14
require trial on the merits.” Id. (internal quotation marks and citation omitted). “A	15
party may not simply argue that such evidentiary facts might exist, nor may it rest	16
upon the allegations of the complaint.” Id. (alteration, internal quotation marks, and	17
citation omitted). “Rather, the party opposing the summary judgment motion must	18
adduce evidence to justify a trial on the issues.” Id. (alteration, internal quotation	19
marks, and citation omitted). “Such evidence adduced must result in reasonable	20

8
inferences.” Id. “An inference is not a supposition or a conjecture, but is a logical	1
deduction from facts proved and guess work is not a substitute therefor.” Id. (internal	2
quotation marks and citation omitted).	3
B. 	Plaintiffs’ Delgado Claims	4
{12} 	We begin with Plaintiffs’ arguments concerning the district court’s grant of	5
summary judgment on their Delgado claims. We note that, generally, we will not	6
address issues that are raised for the first time in the reply brief, Mitchell-Carr v.	7
McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65, because such	8
presentation forecloses an opportunity for the appellees to respond, Doe v. City of	9
Albuquerque, 1981-NMCA-049, ¶ 8, 96 N.M. 433, 631 P.2d 728. However, we	10
depart from our general practice in this case because Defendants addressed this point	11
directly in their answer brief, and even when we consider the arguments made in the	12
reply brief, we are not persuaded that the district court erred in granting summary	13
judgment on Plaintiffs’ Delgado claims. See Salazar v. Torres, 2007-NMSC-019,	14
¶ 14, 141 N.M. 559, 158 P.3d 449 (“Delgado established a high threshold of	15
culpability that should eliminate many claims before trial.”). We explain.	16
{13} 	To the extent that Plaintiffs argue that Defendants failed to make a prima facie	17
showing that they were entitled to summary judgment, we disagree. In Delgado, our	18
Supreme Court held that	19
willfulness renders a worker’s injury non-accidental, and therefore	20
outside the scope of the [Workers’ Compensation Act], when: (1) the	21

9
worker or employer engages in an intentional act or omission, without	1
just cause or excuse, that is reasonably expected to result in the injury	2
suffered by the worker; (2) the worker or employer expects the	3
intentional act or omission to result in the injury, or has utterly	4
disregarded the consequences; and (3) the intentional act or omission	5
proximately causes the injury.	6
2001-NMSC-034, ¶ 26. To those points, Defendants (1) submitted executive orders	7
from then-Governor Bruce King that outlined the reasons for deploying the National	8
Guard to the State Penitentiary and argued that those orders, when combined with	9
relevant law, demonstrated just cause for the deployment; (2) asserted that Plaintiffs	10
had not and could not show that the Defendants objectively or subjectively intended	11
to harm them through deployment of the National Guard to the State Penitentiary;	12
and (3) asserted that the absence of any evidence that Defendants objectively or	13
subjectively 	intended 	to 	harm 	Plaintiffs 	means 	there 	can 	be 	no 	causation.	14
Defendants’ evidence and argument was sufficient for the district court to conclude	15
that they had made a prima facie showing. See Romero, 2010-NMSC-035, ¶ 10.	16
{14} 	At that point, the burden shifted to Plaintiffs “to demonstrate the existence of	17
specific evidentiary facts which would require trial on the merits.” Id. (internal	18
quotation marks and citation omitted). Plaintiffs did not do so in their response to	19
Defendants’ summary judgment motion, and they have not done so in their appellate	20
briefs. Rather than identifying any evidence in the record proper that would make	21
trial on the merits necessary, Plaintiffs cite only their second amended complaint.	22
But, Plaintiffs may not carry their burden by “rest[ing] upon the allegations of the	23

10
complaint[.]” Id. (internal quotation marks and citation omitted). Because Plaintiffs	1
have failed to demonstrate the existence of a genuine issue of material fact, we affirm	2
the district court’s grant of summary judgment on Plaintiffs’ Delgado claims.	3
B. 	Plaintiffs’ Quintero Arguments	4
{15} 	Plaintiffs generally argue that “Quintero stands for the proposition that factual	5
circumstances, such as in this appeal, expressly allow for remedies outside the	6
[Workers’ 	Compensation 	Act.]” 	Plaintiffs 	recite 	a 	number 	of 	failures 	that	7
contributed to the inmates’ ability to overcome the State Penitentiary guards to	8
support their argument that “the State and prison personnel’s grossly negligent	9
failure of duties that led to the riot here were completely separate from the State’s	10
status as employer of [Plaintiffs.]”	11
{16} 	As an initial matter, we must address whether Plaintiffs have preserved this	12
argument. “To preserve an issue for review on appeal, it must appear that appellant	13
fairly invoked a ruling of the trial court on the same grounds argued in the appellate	14
court.” Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal	15
quotation marks and citation omitted). Here, Plaintiffs have failed to identify where	16
in the record they preserved these arguments. See Rule 12-318(A)(4) NMRA	17
(requiring each argument to contain “a statement explaining how the issue was	18
preserved in the court below”); Crutchfield v. N.M. Dep’t of Taxation & Revenue,	19
2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“Absent that citation to the	20

11
record or any obvious preservation, we will not consider the issue.”). While we are	1
under no obligation to search the record for preservation of these arguments, Young	2
v. Van Duyne, 2004-NMCA-074, ¶ 9, 135 N.M. 695, 92 P.3d 1269, based on our	3
review of the record, we are unable to identify any instance in which Plaintiffs	4
invoked a ruling from the district court on whether Quintero provided a basis for	5
them to avoid the exclusivity of the Workers’ Compensation Act. Accordingly, we	6
decline to address these arguments made for the first time in this appeal. See Nance	7
v. L.J. Dolloff Assocs., Inc., 2006-NMCA-012, ¶ 12, 138 N.M. 851, 126 P.3d 1215	8
(“[W]e review the case litigated below, not the case that is fleshed out for the first	9
time on appeal.” (internal quotation marks and citation omitted)).	10
C. 	Plaintiffs’ Tort Claims Act Arguments	11
{17} 	In order to maintain a cause of action against Defendants in tort, Plaintiffs	12
must demonstrate two things: that an exception applies that allows them to avoid the	13
exclusivity provisions of the Workers’ Compensation Act and that their government	14
employer has waived immunity under the Tort Claims Act. See Richey v. Hammond	15
Conservancy 	Dist., 	2015-NMCA-043, 	¶¶ 	32-33, 	346 	P.3d 	1183 	(leaving 	a	16
determination of governmental immunity under the Tort Claims Act to be addressed	17
by the district court on remand after concluding that the plaintiff’s complaint stated	18
a claim under Delgado). We affirmed the district court’s grant of summary judgment	19
on Plaintiffs’ Delgado claims, and Plaintiffs have failed to otherwise demonstrate	20

12
that their claims are not subject to the exclusivity provision of the Workers’	1
Compensation Act. Accordingly, we need not reach Plaintiffs’ arguments that	2
Defendants have waived immunity under the Tort Claims Act.	3
III. 	Quintana’s Remaining Arguments	4
{18} 	Quintana first argues that the district court abused its discretion by not making	5
a formal determination as to the effect of his failure to answer requests for admission	6
contrary to Rule 1-036(A) NMRA. Defendants respond that Quintana did respond	7
to the requests for admissions and identifies the portion of the record that contains	8
Quintana’s 	admissions. 	In 	reply, 	Quintana 	acknowledges 	the 	admissions.	9
Accordingly, we conclude that Quintana’s argument that the district court needed to	10
determine the effect of Quintana’s failure to answer is without merit.	11
{19} 	Quintana also asserts that the district court abused its discretion by excluding	12
his proffered exhibit list. Quintana makes this argument in a heading of his brief in	13
chief and dedicates only a single sentence to developing his argument. Without	14
more, we decline to address Quintana’s argument regarding the exhibit list. See	15
Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule	16
on an inadequately briefed issue, this Court would have to develop the arguments	17
itself, effectively performing the parties’ work for them. This creates a strain on	18
judicial resources and a substantial risk of error. It is of no benefit either to the parties	19
or to future litigants for this Court to promulgate case law based on our own	20

13
speculation rather than the parties’ carefully considered arguments.” (citation	1
omitted)); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court	2
has no duty to review an argument that is not adequately developed.”).	3
CONCLUSION	4
{20} 	For the foregoing reasons, we remand to the district court to dismiss Plaintiffs’	5
workers’ compensation claims for lack of jurisdiction and otherwise affirm.	6
{21} 	IT IS SO ORDERED.	7
_________________________________	8
KRISTINA BOGARDUS, Judge	9
WE CONCUR:	10
_________________________________	11
J. MILES HANISEE, Chief Judge	12
_________________________________	13
ZACHARY A. IVES, Judge	14