May 7, 2025- John Whitney v. Annie Powell, No. A-1-CA-40974

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: May 7, 2025	3
No. A-1-CA-40974	4
JOHN (JACK) WHITNEY,	5
Plaintiff-Appellant,	6
v.	7
ANNIE POWELL a/k/a ANNA POWELL;	8
JAY POWELL; POWELL ORCHARD	9
ENTERPRISES, LLC d/b/a TAOS DINER;	10
POWELL ORCHARD ENTERPRISES, INC.	11
d/b/a TAOS DINER; TAOS DINER II; TAOS	12
DINER AND MARKET; FRED ROBBINS;	13
MELINDA SHANKS-ROBBINS; FARMERS	14
INSURANCE EXCHANGE; and TRAVELERS	15
CASUALTY INSURANCE COMPANY OF	16
AMERICA; WHITE CORPORATIONS 1-5;	17
BLACK PARTNERSHIPS 1-5; GRAY	18
LIMITED LIABILITY COMPANIES 1-5;	19
JANE DOES 1-5; and JOHN DOES 1-5,	20
Defendants-Appellees.	21
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	22
Lisa Chavez Ortega, District Court Judge	23
Grayson Law Office, LLC	24
Brian G. Grayson	25
Albuquerque, NM	26
Court of Appeals of New Mexico
Filed 5/7/2025 9:08 AM

Litty Law Group, P.C.	1
Joseph Lee Woods	2
Albuquerque, NM	3
Feliz Angelica Rael	4
Albuquerque, NM	5
for Appellant	6
O’Brien & Padilla, P.C.	7
William R. Anderson	8
Albuquerque, NM	9
for Appellees Annie Powell, Jay Powell, Powell Orchard Enterprises, LLC, Powell	10
Orchard Enterprises, Inc., Taos Diner II, & Taos Diner and Market	11
Madison , Mroz, Steinman	12
Kenny & Olexy, P.A.	13
Gregory D. Steinman	14
Albuquerque, NM	15
for Appellees Fred Robbins & Melinda Shanks Robbins	16
Christian, Dichter & Sluga P.C.	17
Gena L. Sluga	18
Phoenix, AZ	19
for Appellee Farmers Insurance Exchange	20

OPINION	1
HENDERSON, Judge.	2
{1} 	Plaintiff John (Jack) Whitney appeals the district court’s order granting	3
Defendants Annie Powell, Jay Powell, Powell Orchard Enterprises, LLC, Powell	4
Orchard Enterprises, Inc., Taos Diner II, and Taos Diner and Market (collectively,	5
Taos Diner) and Counterclaimant Farmers Insurance Exchange’s (Farmers) motion	6
to enforce a settlement agreement. Plaintiff asserts that the district court improperly	7
enforced a settlement agreement (the Agreement) between the wrongful death estate	8
of Janet Lamkin (the Estate) and Taos Diner against him because he was not a party	9
to the Agreement and thus the Agreement did not extinguish Plaintiff’s claims in tort	10
against Taos Diner. We reverse and remand.	11
BACKGROUND	12
{2} 	In September 2019, Plaintiff and Janet Lamkin, his life partner of 38 years,	13
went to lunch at the Taos Diner. While at the Taos Diner, Ms. Lamkin slipped and	14
fell, sustained serious injuries, and subsequently died. Following Ms. Lamkin’s	15
death, the Estate, via its attorney Jon Litty, sought to settle “all claims” arising from	16
Ms. Lamkin’s death with Taos Diner and Farmers. Following this demand and	17
additional negotiations, the Estate signed and executed the Agreement, thereby	18
settling and releasing “all claims” in exchange for policy limits. Farmers paid the	19
full settlement amount to the Estate. Subsequently, Plaintiff filed the underlying	20

2
lawsuit, alleging negligence, negligent infliction of emotional distress, vicarious	1
liability, punitive damages, spoliation of evidence, and loss of consortium. Taos	2
Diner and Farmers moved to enforce the Agreement against Plaintiff. After hearing	3
arguments from both parties, the district court found that “[t]here was an offer to	4
settle any and all claims arising from the death of [Ms. Lamkin] and there was an	5
acceptance of that offer . . . and that would . . . include [Plaintiff]’s . . . claim[s].” As	6
such, the court granted the motion to enforce the settlement agreement and dismissed	7
Plaintiff’s claims with prejudice. Plaintiff appeals.	8
DISCUSSION	9
{3} 	Plaintiff argues that the district court erred in enforcing the Agreement against	10
him because he was not a party to the Agreement and that, regardless, his claims for	11
loss of consortium and negligent infliction of emotional distress are separate from	12
the Estate’s wrongful death claim and therefore the Agreement did not extinguish	13
his separate claims. Farmers asserts that, based on extrinsic evidence, the parties	14
intended that Plaintiff be a party to the Agreement, and thus the Agreement can be	15
enforced against him. We agree with Plaintiff.	16
{4} 	Although Taos Diner and Farmers argue for a substantial evidence standard	17
of review, the parties do not dispute the existence of a contract. Thus, the question	18
before us is the Agreement’s meaning to the parties at the time it was entered. “This	19
presents a question of contract interpretation, which we review de novo.” Cent. Mkt.,	20

3
Ltd., Inc. v. Multi-Concept Hosp., LLC, 2022-NMCA-021, ¶ 26, 508 P.3d 924; see	1
Branch v. Chamisa Dev. Corp., 2009-NMCA-131, ¶ 33, 147 N.M. 397, 223 P.3d	2
942 (“A settlement agreement is a species of contract.” (alterations, internal	3
quotation marks, and citation omitted)).	4
{5} 	Next, we briefly address Taos Diner and Farmers’ assertion that Plaintiff has	5
failed to preserve his arguments for our review. “To preserve an issue for review on	6
appeal, it must appear that appellant fairly invoked a ruling of the [district] court on	7
the same grounds argued in the appellate court.” Benz v. Town Ctr. Land, LLC, 2013-	8
NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks and citation omitted).	9
Plaintiff argued below that “a release by the . . . Estate does not extinguish claims	10
held by parties who are not subject to the Estate. [Plaintiff] was the life partner of	11
the deceased for 38 years, . . . [though this relationship] does not allow him to benefit	12
from or be represented by the . . . Estate.” Further, at the hearing on the motion,	13
Plaintiff argued that the Estate lacked authority, without agreement, to extinguish	14
Plaintiff’s claims. Based on the above, it is clear that both issues were raised and	15
argued before the district court. Therefore, the issues are properly preserved.	16
{6} 	Turning to Plaintiff’s substantive arguments, Plaintiff first argues that the	17
Agreement cannot be enforced against him because he was not a party to the	18
Agreement. Taos Diner and Farmers seek to use an email chain between attorneys	19
for Taos Diner, Farmers, and the Estate to indicate that the parties intended to include	20

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Plaintiff in the Agreement at the time of execution.0F
1 Extrinsic evidence may be	1
introduced to aid in the interpretation of a contract if the evidence is intended to	2
“determine the circumstances under which the parties contracted and the purpose of	3
the contract.” Levenson v. Mobley, 1987-NMSC-102, ¶ 14, 106 N.M. 399, 744 P.2d	4
174. Such evidence is also “admissible to aid the court in determining whether	5
chosen terms are clear.” C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-	6
070, ¶ 15, 112 N.M. 504, 817 P.2d 238. “When a contract or agreement is	7
unambiguous, we interpret the meaning of the document and the intent of the parties	8
according to the clear language of the document, and we enforce the contract or	9
agreement as written.” Espinosa v. United of Omaha Life Ins. Co., 2006-NMCA-	10
075, ¶ 26, 139 N.M. 691, 137 P.3d 631. Whether a contract is ambiguous is also a	11
question we review de novo. Pollock v. Thompson, 2024-NMCA-045, ¶ 14, 550 P.3d	12
888.	13
{7} 	We conclude that the Agreement is unambiguous and no evidence exists to	14
conclude that the Agreement applies or was intended to apply to Plaintiff’s claims	15
1 To the extent that Taos Diner and Farmers urge this Court to disregard the
signed and executed Agreement and solely rely on the attorneys’ emails to discern
the meaning of the Agreement, we decline to do so. Neither Taos Diner nor Farmers
cite any authority to support their assertion that a reviewing court should ignore a
written contract in favor of collateral written negotiations. Thus, we decline to
substantively consider this issue. See Nguyen v. Bui, 2023-NMSC-020, ¶ 19, 536
P.3d 482 (“Issues raised in appellate briefs which are unsupported by cited authority
will not be reviewed by [appellate courts] on appeal.” (internal quotation marks and
citation omitted)).

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against Taos Diner. Under the language of the executed Agreement, the Estate and	1
“its heirs, executors, personal representatives, administrators, successors[,] and	2
assigns” fully released Taos Diner from “any and all claims . . . which the . . . Estate	3
now has or which may hereafter accrue” resulting from Ms. Lamkin’s death. Farmers	4
asserts that this language is contained in a “flawed draft that failed to include a	5
signature block for [Plaintiff]” and that emails between Mr. Litty and Farmers’	6
attorney indicate that Plaintiff was intended to be a party to the Agreement.	7
However, the record indicates that the subject of Mr. Litty’s first email was “Our	8
Client: Janet Lamkin.”1F
2 Mr. Litty stated that he “represent[ed] the Wrongful Death	9
Estate of Janet Lamkin.” Moreover, the emails indicate that, once it became clear	10
that the Estate and Farmers misunderstood each other’s respective intent to bind	11
Plaintiff to the Agreement, Mr. Litty clarified that Plaintiff’s claims were not to be	12
extinguished because he “was not an intended releasor under our agreement.” We	13
2 To the extent that Taos Diner and Farmers argue that Mr. Litty was acting
pursuant to his role as both the Estate and Plaintiff’s agent when he sent the
settlement demand, we note that it was Farmers and Taos Diner’s burden, not
Plaintiff’s, to demonstrate that Mr. Litty acted with authority to enter a settlement
agreement on Plaintiff’s behalf. See Gomez v. Jones-Wilson, 2013-NMCA-007,
¶ 31, 294 P.3d 1269 (“[W]hen the existence of authority to settle is disputed, the
burden falls on the party seeking enforcement of the alleged settlement agreement.”).
Taos Diner and Farmers fail to offer any supportive evidence on this point. Though
they rely on the language of the settlement demand, Mr. Litty only asserted that he
“represent[ed] the Wrongful Death Estate of Janet Lamkin,” and neither Taos Diner
nor Farmers indicate any evidence in the record to contradict this assertion. Thus,
we do not see how the settlement demand is evidence that Mr. Litty was acting on
Plaintiff’s behalf when engaging in settlement negotiations for the Estate.

6
do not view any of these emails as evidence of the parties’ intent to include Plaintiff’s	1
claims in the Agreement. Thus, we conclude that the language of the written	2
Agreement is unambiguous as to the parties’ intent.	3
{8} 	Turning then to the express language of the contract, Plaintiff is not a party to	4
the Agreement. Plaintiff is not designated by name as a released party at any point	5
in the written and signed Agreement. Moreover, Plaintiff is not designated under the	6
language identifying the parties relinquishing their claims as the Estate and its “heirs,	7
executors, personal representatives, administrators, successors[,] and assigns” as he	8
is not a statutory beneficiary of the Estate. See NMSA 1978, § 41-2-3 (2001)	9
(discussing damages and distribution of proceeds, which does not include unmarried	10
partners as wrongful death estate beneficiaries). Plaintiff is not a party to the	11
Agreement and he accordingly cannot be bound by it. See 17 C.J.S. Contracts § 43	12
(2024) (stating the general rule that “[p]ersons not a party to a contract cannot be	13
liable on the contract”). Thus, the district court erred in dismissing Plaintiff’s	14
independent claims.	15
{9} 	Turning to Plaintiff’s second argument, we similarly conclude that the	16
Agreement did not extinguish Plaintiff’s derivative claims, including his claim for	17
loss of consortium. In relevant part, this portion of the Agreement reads:	18
[The 	Estate] 	. 	. 	. 	hereby 	and 	for 	its 	heirs, 	executors, 	personal	19
representatives, administrators, successors[,] and assigns of [the Estate]	20
releases, acquits and forever discharges [Taos Diner] . . . and . . . their	21
agents, employees, servants, heirs, executors, personal representatives,	22

7
administrators, successors[,] and assigns from any and all claims,	1
actions, 	causes 	of 	action, 	demands, 	rights, 	damages, 	costs 	and	2
expenses, and all derivative claims, including but not limited to claims	3
for loss of consortium, which [the Estate] now has or which may	4
hereafter accrue on account of or in any way growing out of [the death	5
of Ms. Lamkin] . . . .	6
We are not convinced, as Taos Diner and Farmers argue, that the language “any and	7
all” served to encompass Plaintiff’s claims, including his derivative claims, when	8
the clause is explicitly limited to claims held by the Estate. To the extent that	9
Plaintiff’s claims are derivative of the underlying injury to Ms. Lamkin, but involve	10
a separate and direct injury to him—and not to the Estate or its beneficiaries—those	11
claims belong to him and were not settled by the language in the Agreement	12
addressing the Estate’s derivative claims. See Thompson v. City of Albuquerque,	13
2017-NMSC-021, ¶ 1, 397 P.3d 1279 (“[L]oss of consortium damages result from	14
the wrongful injury or death of someone who was in a sufficiently close relationship	15
to the loss of consortium claimant, and such damages belong to the loss of	16
consortium claimant and not to the injured person or the decedent’s estate.”); Econ.	17
Preferred Ins. Co. v. Jia, 2004-NMCA-076, ¶ 12, 135 N.M. 706, 92 P.3d 1280	18
(agreeing that a claim for negligent infliction of emotional distress “can be	19
characterized as an independent injury, not a derivative injury”); see also Carroll J.	20
Miller, Annotation, Injured Party’s Release of Tortfeasor as Barring Spouse’s	21
Action for Loss of Consortium, 29 A.L.R. 4th 1200, 1201 (1984) (“[T]he loss of	22
consortium suit is not barred as it is a separate and independent cause of action which	23

8
is the property of the spouse and cannot be controlled by the injured person. . . .	1
[T]he injured person is not the agent of [their] spouse simply because of the marital	2
relationship, and . . . [they] therefore ha[ve] no power to bind [their] spouse by an	3
agreement to which the spouse was not a party.”). Plaintiff’s claims belonged to him	4
alone and they accordingly were not extinguished by the Agreement, which he was	5
not even party to.	6
CONCLUSION	7
{10} 	Based on the above, we reverse and remand this case for the district court to	8
enter an order reinstating Plaintiff’s case and for further proceedings in accordance	9
with this opinion.	10
{11} 	IT IS SO ORDERED.	11
___________________________________	12
SHAMMARA H. HENDERSON, Judge	13
WE CONCUR:	14
_______________________________	15
MEGAN P. DUFFY, Judge	16
_______________________________	17
KATHERINE A. WRAY, Judge	18