M Walborn v. Ultimate Masonry

• Court: New Mexico Court of Appeals
• Decided: June 11, 2009
• Docket: 29,283
• Status: Unpublished

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 MERLIN E. WALBORN,

3 Worker-Appellee,

4 v. NO. 29,283

5 ULTIMATE MASONRY,

6 Defendant-Appellant.

7 APPEAL FROM THE WORKERS’ COMPENSATION ADMINSTRATION 8 Victor Lopez, Workers’ Compensation Judge

9 Victor Titus 10 Farmington, NM

11 for Appellee

12 Lorenzo Brown 13 Farmington, NM 87402

14 for Pro Se Employer/Appellant

15 for Appellant

16 MEMORANDUM OPINION

17 KENNEDY, Judge.

18 Employer is appealing from a compensation order entered in a case involving

19 the uninsured employers fund. We issued a calendar notice proposing to affirm and

20 Employer has responded with a memorandum in opposition. We affirm. 1 In its memorandum in opposition, Employer continues to claim that the

2 Workers’ Compensation Judge (WCJ) abused its discretion in extending the time for

3 Worker to file his response to the requests for admissions. Specifically, Employer is

4 claiming that the Rules of Civil Procedure should be enforced. However, discovery

5 orders are generally reviewed for abuse of discretion. See Pub. Serv. Co. of N.M. v.

6 Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166. More to the point, the

7 rule applicable here provides authority for this as well. Rule 1-036(A) NMRA (“The

8 matter is admitted unless, within thirty (30) days after service of the request, or within

9 such shorter or longer time as the court may allow . . . .”). Depending on whether the

10 three day waiting period applied to Worker’s response, it was either one or four days

11 late. [DS 3; MIO 1] In light of the limited extent of the violation here, we are not

12 inclined to say that the WCJ’s ruling amounted to an abuse of discretion. See Sims v.

13 Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153 (“An abuse of discretion

14 occurs when a ruling is clearly contrary to the logical conclusions demanded by the

15 facts and circumstances of the case.”). Accordingly, we affirm.

16 IT IS SO ORDERED.

17 ___________________________________ 18 RODERICK T. KENNEDY, Judge

2 1 WE CONCUR:

2 ___________________________ 3 JAMES J. WECHSLER, Judge

4 ___________________________ 5 TIMOTHY L. GARCIA, Judge