January 19, 2012 – Raymond L. Kysar, Patsy Sue Kysar, and the Kysar Family Trust v. BP America Production Company, f/k/a Amoco Production Company, No. 29,756

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 19, 2012

NO. 29,756

RAYMOND L. KYSAR,
PATSY SUE KYSAR, and
THE KYSAR FAMILY TRUST,

Plaintiffs-A ppellants,
V.

BP AMERICA PRODUCTION COMPANY,
f/k/a AMOCO PRODUCTION COMPANY,

Defendant- Appellee.
and

WILLIAM KARL JOHNSON and MARY M.
JOHNSON, his wife, and all of their heirs and
successors known and unknown, BP, the heirs

and successors of MAUDE KEYS, including, but

not limited to OLTE MAE McCOY, LAURA A.
TOVEY, CLARENCE RIDDLE, EUGENE RIDDLE,
JOYCE (OY) RIDDLE LEE and TOMMY RALPH
RIDDLE, BEN CASE, HENRY and GEORGIA
KNOWLTON; ONOEFRE R. JAQUEZ and ALVINA
JAQUEZ, his wife, and all of their heirs and successors,
known and unknown; COLEMAN OIL & GAS, INC.;
WILLIAM HOLMBERG and JOYCE HOLMBERG,
his wife SHIRLEY M. HOLMBERG, and UNKNOWN
ENTITIES A-Z; JOHN DOES I-X (as yet unidentified
agents, employees or contractors of BP America

Production Company, BP, or unknown entities A-Z,
who have trespassed on the Kysar Ranch); and all
other persons unknown, claiming any right, title,
estate, lien, easement, or interest in the real property
described in the complaint adverse to Plaintiffs’
ownership, or any cloud on Plaintiffs’ title thereto,
Defendants.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Robert A. Aragon, District Judge
Victor R. Marshall & Associates, P.C.
Victor R. Marshall
Albuquerque, NM
for Appellants
Holland & Hart, LLP
Bradford C. Berge
Jacqueline E. Davis
Santa Fe, NM
for Appellee

OPINION
VIGIL, Judge.
{1} 	This case presents us with an issue of first impression: whether a plaintiff may
appeal from a stipulated directed verdict when the parties have stipulated that the
plaintiff cannot make a prima facie case due to in limine rulings made by the district
court, the plaintiff reserves the right to appeal the in limine rulings, and the district
court approves the stipulation. Answering this question in the affirmative, we then
address the in limine orders of the district court, and reverse.
BACKGROUND AND PROCEDURAL HISTORY
{2} 	Plaintiffs own the surface estate of the Kysar Ranch, which consists of some
600 acres of land along the Animas River. The northern portions of the ranch were
previously owned by Jessie Maude Keys, and the southern portions of the ranch were
previously owned by Onofre and Alvina Jaquez. 	In 1948, Keys and Mr. and Mrs.
Jaquez executed separate oil and gas leases on their respective properties to C.H. Nye.
In 1949, Mr. and Mrs. Jaquez conveyed their surface estate, together with half of the
underlying oil, gas, and mineral rights to Keys. In 1956, Keys deeded the now unified
surface estate to Henry and Georgia Knowlton, reserving the entire mineral estate. By
this transaction, all the minerals were severed from the surface estate, and

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access to the minerals was preserved because Keys also reserved a right of ingress and
egress to access the oil, gas, and other minerals. In 1983, Mr. and Mrs. Knowlton sold
the entire surface estate to Plaintiffs, subject to all prior reservations of oil, gas, and
other minerals. The surface estate is now known as the Kysar Ranch.
{3} 	As a result of a series of assignments, BP America Production Company (BP)
is now the lessee under both of the original 1948 oil and gas leases, and operates six
wells within the boundaries of the Kysar Ranch. Only two roads access the wells: the
“Back Gate Road,” which starts at the southeast corner of the Kysar Ranch and travels
north, first through the Jaquez lease, and continuing north through the Keys lease; and
the “Bridge Road,” which crosses the Keys lease. 	The Bridge Road goes across a
bridge over the Animas River and because of concerns that it cannot support the heavy
machinery and equipment trucks must carry to and from the wells, BP uses the Back
Gate Road to access all the wells on the Kysar Ranch.
{4} 	Since Plaintiffs acquired the surface estate to the Kysar Ranch in 1983, their
relationship with BP and Amoco, its immediate predecessor, has been marked by
discord. A series of disputes were resolved by a settlement agreement in 2000 (the
2000 Settlement Agreement) between Plaintiffs and Amoco. The 2000 Settlement
Agreement resolved claims that Amoco’s operations had damaged the Kysar Ranch,
constituted an unreasonable use of the surface, or otherwise constituted a trespass.
However, the 2000 Settlement Agreement did not resolve one major disagreement:

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whether Amoco had a right to use the Back Gate Road to access the Sullivan Gas Com
E-1 Well (the E-1 Well) located on Bureau of Land Management (BLM) land outside,
but adjacent to, the Kysar Ranch.
{5} 	In accordance with the 1953 amendments to the Keys and Jaquez leases, the
BLM land and a portion of the Kysar Ranch were subject to a 1992 communitization
agreement under federal law. 	The parties disagreed about whether under these
instruments or the leases, Amoco had a right to use the Back Gate Road on the Kysar
Ranch to access the E-1 Well outside of the Kysar Ranch. Thus, Plaintiffs filed suit
against Amoco in the United States District Court in 2000, alleging that its use of the
Back Gate Road to access the E-1 Well outside the Kysar Ranch constituted an
unlawful trespass under New Mexico law. This case resulted in two opinions, which
we refer to herein as Kysar I and Kysar II. In Kysar v. Amoco Production Co., 2004-
NMSC-025, 135 N.M. 767, 93 P.3d 1272 (Kysar I), our Supreme Court answered
questions certified by the Tenth Circuit. 	This was followed by Kysar v. Amoco
Production Co., 379 F.3d 1150 (10th Cir. 2004) (Kysar II), in which the Tenth Circuit
decided the appeal before it after our Supreme Court answered the questions certified
to it by the Tenth Circuit. These appeals determined that the 1992 communitization
agreement did not grant Amoco a right to use the Back Gate Road located on the Keys
lease to access the E-1 Well off the Kysar Ranch and that Amoco could not use that
part of the Back Gate Road on the Jaquez lease for this purpose, because the Jaquez

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lease did not expressly grant such a right. Kysar II, 379 F.3d at 1156. After Kysar I
and Kysar II were decided, Plaintiffs and BP, Amoco’s successor, entered into a
second settlement agreement in 2005 (the 2005 Settlement Agreement), which granted
BP an easement to access the E-1 Well through the Kysar Ranch.
{6} 	However, the 2005 Settlement Agreement did not resolve BP’s access to any
other existing wells or any other matters. The 2005 Agreement expressly provides,
“The parties expressly reserve whatever rights they may have concerning other wells,
or any other matters, including any rights of the parties under other agreements or
instruments heretofore executed by the parties, except as expressly covered in this
Agreement.”
{7} 	The case before us concerns Plaintiffs’ subsequently filed suit in which they
contend that BP has no right to use the Back Gate Road crossing the Jaquez leases to
reach wells located on the Keys leases. Plaintiffs demanded a jury and they sought
damages and injunctive relief in several causes of action.
{8} 	After the jury was chosen, Plaintiffs’ counsel advised that he intended to
publish to the jury in the opening statement, placards with blown up excerpts of the
opinions in Kysar I and Kysar II. 	BP objected, and the district court ruled that
Plaintiffs’ counsel was prohibited from using or displaying the placards or mentioning
them or their content to the jury during the course of opening statement. Following
additional discussion, Plaintiffs’ counsel stated he could not give an intelligible

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opening statement and asked the district court to certify an interlocutory appeal. The
district court inquired if this request stemmed from the ruling on the opening
statement, and counsel responded, “No, it’s the culmination of all the rulings that have
been made over the last two years which leave me with essentially no case and no
ability to present it.” This referred to various in limine rulings made by the district
court which prohibited Plaintiffs from presenting certain evidence at trial.
{9} 	BP stated that if Plaintiffs were unable to prove their case, the district court
should enter a directed verdict. The district court expressed discomfort about entering
a directed verdict in favor of BP before any evidence was introduced and, after
additional discussion, Plaintiffs’ counsel again reiterated that he had no case to
present. The parties therefore agreed that in light of the in limine rulings of the district
court, a stipulated order granting BP a directed verdict was appropriate. 	The
stipulated order approved by the district court grants BP a directed verdict, while
expressly preserving all of Plaintiffs’ claims on appeal. In its entirety, the “Stipulated
Order Granting Directed Verdict In Favor Of Defendant BP America Production
Company” states:
THIS MATTER came before the Court on May 19, 2009, on the
parties’ joint request for entry of a stipulated order directing a verdict
in favor of BP American [sic] Production Company. The Court having
heard the arguments of counsel, having reviewed the applicable law,
and being otherwise fully advised in the premises, find that the parties’
joint request is well-taken and should be GRANTED, as follows:

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1. 	On May 18, 2009, a 12-person jury was selected, sworn
into service, and empaneled for trial of this matter.
2. 	On May 19, 2009, prior to the parties’ opening statements,
the Court addressed and ruled upon certain evidentiary issues raised by
the parties. 	The Court’s decisions on those evidentiary matters are
reflected in separate orders in this case.
3. 	In light of the Court’s decisions and evidentiary rulings to
date, the parties stipulated that a reasonable jury would not have a
legally sufficient evidentiary basis to find for Plaintiffs on any of the
claims raised by Plaintiffs’ complaint. 	In so stipulating, each party
reserved the right to challenge the Court’s aforementioned decisions and
rulings on appeal.
4. 	In light of the parties’ stipulation, which is well taken, the
Court determines that the claims raised by Plaintiffs’ complaint, insofar
as they pertain to BP America Production Company, should be
dismissed and finds that BP America Production Company is entitled
to judgment as a matter of law.
5. 	The parties further stipulated that, respecting BP America
Production Company’s counterclaim, because Plaintiffs have not
prevented or attempted to prevent BP or its personnel from accessing its
wells on Plaintiffs’ property, BP America Production Company has
incurred no damage as a result of Plaintiffs’ revocation or purported
revocation of permission relating to such access. 	The parties further
stipulated that no such damage will be incurred for so long as Plaintiffs
do not prevent or attempt to prevent BP America Production Company
or its personnel from accessing its wells on Plaintiffs’ property.
6. 	In light of the parties’ stipulation, which is well taken, the
Court determines that the parties stipulation of dismissal respecting BP
America Production Company’s counterclaim pursuant to Rule 1-
041(A)(2) NMRA is proper.
IT 	IS, 	THEREFORE, 	ORDERED, 	ADJUDGED, 	AND
DECREED that, pursuant to Rule 1-050 NMRA, JUDGMENT is hereby
entered in favor of BP America Production Company, and against

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Plaintiffs, on all issues raised by Plaintiffs’ complaint, and that all of
Plaintiffs’ claims against BP America Production Company be and
hereby are DISMISSED, with prejudice, and without leave to amend.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
that, pursuant to Rule 1-041(A)(2), BP America Production Company’s
counterclaim against Plaintiffs is hereby DISMISSED.
IT IS FINALLY ORDERED, ADJUDGED, AND DECREED that
each party to this action shall bear its own costs, expenses, and attorney
fees incurred to date.
{10} 	We first address whether this is an appealable order, and then address the orders
on the various motions in limine in greater detail.
APPEAL OF A STIPULATED CONDITIONAL DIRECTED VERDICT
{11} 	We characterize the order before us as a “stipulated conditional directed
verdict.” 	The directed verdict was conditionally stipulated to, with each party
expressly reserving the right to challenge rulings of the district court on appeal, with
success on appeal resulting in a reversal of the directed verdict. 	Whether such an

8
order is appealable presents a question of law, which invokes de novo review. Baca
v. Los Lunas Cmty. Programs, 2011-NMCA-008, ¶ 7, 149 N.M. 198, 246 P.3d 1070
(stating that a question of appellate jurisdiction presents a question of law, which we
review de novo).
{12} 	BP contends that Plaintiffs are barred from appealing based on our precedent
which ordinarily prohibits a party from appealing from a judgment entered with that
party’s consent. 	See Gallup Trading Co. v. Michaels, 86 N.M. 304, 305, 523 P.2d
548, 549 (1974) (stating the general rule that a judgment by consent cannot be
appealed from). In Gallup Trading Co., it was not necessary for the Supreme Court
to address the various circumstances that would allow an exception to the general rule
regarding appeals from stipulated and consent judgments. 	For the reasons which
follow, we disagree with BP and conclude that under the conditions we hereinafter set
forth, an appeal will lie from a stipulated conditional directed verdict.
{13} 	In general, a party cannot appeal from a judgment entered with its consent.
E. H. Schopler, Annotation, Right to Appellate Review of Consent Judgment, 69
A.L.R.2d 755, § 3 (1960). However, the federal courts and some state courts have
carved 	out 	exceptions 	allowing 	appeals 	from 	consent 	judgments 	in 	certain
circumstances. Schopler, supra § 5. All the federal circuits except the Fifth Circuit

1See Amstar Corp. v. So. Pac. Transp. Co., 449 U.S. 924, 924 (1980)
(Blackmun, J., dissenting) (dissenting from the denial of certiorari from the Fifth
Circuit case declining to adopt other circuits’ view stating that the denial “utterly
ignores the parties’ intent in executing a consent to a judgment and in their subsequent
actions pursuant thereto”); Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 683
(7th Cir. 2001) (noting that “[a] reservation of rights is incompatible with waiver” and
citing all circuits that have adopted the view that consent judgments are appealable on
issues reserved for appeal and noting that the Fifth Circuit is the exception); Keefe v.
Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 223 (3d Cir. 2000) (adopting other
circuits’ view that consent judgments are appealable when the right to appeal is
reserved; the court noted, “[w]hen it is clear from the agreement between the parties
that the losing party intends to appeal . . . it is unlikely that an appeal will undermine
the settlement agreement . . . . Indeed, in some situations, the option to craft a
settlement agreement that provides for the possibility of an appeal on some contested
issue may facilitate settlement of other issues”); Dorse v. Armstrong World Indus.,
Inc., 798 F.2d 1372, 1375 (11th Cir. 1986) (declining to follow Fifth Circuit view),
aff’d by Dorse v. Eagle-Picher Indus., Inc., 898 F.2d 1487 (11th Cir. 1990).
2See Uncle Joe’s Inc. v. L.M. Berry & Co., 156 P.3d 1113, 1120-21 (Alaska
2007) (determining that parties may only appeal a stipulated judgment if they have
expressly reserved the right to appeal, and the appeal is limited to those issues to
which the right has been reserved); N.J. Schs. Constr. Corp. v. Lopez, 990 A.2d 667,
674 (N.J. Super. Ct. App. Div. 2010) (allowing reservation of appeal from a stipulated
judgment provided that the parties agree that “the judgment would be vacated if the
interlocutory order were reversed on appeal” and the order reflects that agreement
explicitly or implicitly (internal quotation marks and citation omitted)).
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allow an appeal from a consent judgment provided that the party explicitly reserves
the right to appeal a contested issue. 1 Some state courts also allow an appeal from a
consent judgment if the party has expressly reserved the right in the judgment. 2 Other
states reach the same result when the trial court’s rulings have effectively precluded

3See Hense v. G.D. Searle & Co., 452 N.W.2d 440, 444-45 (Iowa 1990)
(holding that the plaintiff did not consent to judgment because the rulings of the trial
court effectively precluded her from recovery); Bldg. Indus. Ass’n v. City of
Camarillo, 718 P.2d 68, 71 (Cal. 1986) (In Bank) (“If consent was merely given to
facilitate an appeal following adverse determination of a critical issue, the party will
not lose his right to be heard on appeal.”); Carden v. Johnson, 577 P.2d 513, 515 (Or.
1978) (en banc) (hearing appeal after the plaintiff voluntarily dismissed her case in
order to obtain a final appealable order after the district court refused to enter a default
judgment, noting that although illogical and unorthodox, it was a more efficient way
to secure a right to appeal than by obtaining a writ of mandamus); Marlboro Cotton
Mills v. O’Neal, 103 S.E. 781, 782 (S.C. 1920) (determining that when the district
court’s rulings foreclose the plaintiff’s claims the plaintiff may enter a nonsuit that
will not be considered voluntary by the court and will therefore be appealable).
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the plaintiff from proceeding with the trial. 3 The broad reasons supporting these views
are that: (1) it is a waste of judicial resources to require a plaintiff to undertake a trial
which will in all probability be unsuccessful merely to obtain a judgment which is
appealable; and (2) allowing an appeal in these circumstances effectuates the intention
of the parties. See Villano v. Waterman Convalescent Hosp., Inc., 105 Cal. Rptr. 3d
276, 279 (Ct. App. 2010). On the other hand, some state courts have concluded that
parties cannot confer appellate jurisdiction by stipulating to a reservation of appellate
rights, and they do not allow appeals from consent judgments. Schopler, supra note
6, § 29, at 814-15.
{14} 	New Mexico also adheres to the general rule that a judgment by consent is not
appealable. 	See Gallup Trading Co., 86 N.M. at 305, 523 P.2d at 549. While our
courts have not conclusively decided whether to adopt an exception to this general

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rule, historical precedent points us in that direction. 	We begin with Ward v.
Broadwell, 1 N.M. 75, 90-91 (1854), superseded by statute as stated in State v.
De Armijo, 18 N.M. 646, 654, 140 P. 1123, 1125 (1914) (decided under former law),
in which our Supreme Court held that a party was entitled to appellate review when
he abandoned his case by a nonsuit due to an adverse pretrial ruling of the district
court. Id. The Court stated, “[w]here a party has been compelled to abandon his case
in consequence of an adverse decision of the court, to which he excepts, upon a vital
point in his cause, we are by no means prepared to concede that his action was
voluntary.” 	Id. 	On this ground, the Court considered the appeal on the merits
notwithstanding the general rule prohibiting appellate review of voluntary nonsuits.
Id.
{15} 	More recently, and in a similar vein, in Rancho del Villacito Condominiums,
Inc. v. Weisfeld, 121 N.M. 52, 908 P.2d 745 (1995), our Supreme Court noted with
apparent approval authorities recognizing a “lack of consent” exception to the general
rule, which prohibits an appeal from a consent judgment. Id. at 55, 908 P.2d at 748.
This exception applies when the consent judgment is not completely voluntary
because “an adverse ruling by the [district] court would effectively preclude recovery
by the plaintiff or is completely dispositive of the case.” 	Id. 	However, it was not
necessary for the Court to decide whether to adopt the exception because the district
court’s rulings in that case did not fit the exception. Id.

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{16} 	In this case, the parties stipulated that in light of the district court’s decisions
and evidentiary rulings, “a reasonable jury would not have a legally sufficient
evidentiary basis to find for Plaintiffs on any of the claims raised by Plaintiffs’
complaint.” 	In light of this stipulation, requiring Plaintiffs to proceed with a trial
when they cannot prove a prima facie case would result in a needless waste of scarce
judicial resources, a needless waste of the jury’s time, and a needless waste of time
and expense by the parties and their counsel. Requiring a trial simply to preserve an
issue for appellate review under these circumstances serves no useful purpose. Thus,
the parties stipulated to entry of a judgment in favor of BP on all of Plaintiffs’ claims.
Further, Plaintiffs reserved the right to challenge the district court’s decisions and
rulings on appeal that prevented them from proving a prima facie case. Finally, the
stipulation of the parties was approved by the district court.
{17} 	Based on the foregoing, we conclude that an appeal will lie from a stipulated
conditional directed verdict when the following conditions are satisfied: (1) rulings
are made by the district court, which the parties agree are dispositive; (2) a reservation
of the right to challenge those rulings on appeal; (3) a stipulation to entry of judgment;
and (4) approval of the stipulation by the district court. Recognizing an exception to
the general rule that an appeal will not lie from a judgment entered by consent when
these conditions are satisfied conserves scarce judicial resources and preserves the

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constitutional right to appeal. Having determined that this case is properly before us,
we turn to the pretrial rulings of the district court that Plaintiffs challenge on appeal.
THE DISTRICT COURT RULINGS
{18} 	We first address Plaintiffs’ arguments concerning the Kysar opinions. 	The
district court stated that counsel could not mention them in opening statements, as
their relevance was not yet clear, but it was not ruling that Plaintiffs could not use
them as evidence because this would require making an evidentiary ruling in a
vacuum. The district court stated, “[I]f you have evidence that you wish to present
that renders those opinions admissible, then you can seek to do that.” The written
order subsequently filed states, “Plaintiffs, through their counsel, are prohibited, in
opening statement, from referencing prior court decisions between the parties and
from showing the jury excerpts from those decisions. During trial, [P]laintiffs may
renew their attempt to reference or introduce evidence respecting such decisions,
subject to BP’s ability to object and the Court’s ability to rule on the admissibility of
such evidence.”
{19} 	Plaintiffs have failed to cite any authority, and we find none, in which an
appellate court held that a district court committed reversible error by ordering
counsel not to refer to certain facts in the opening statement. Therefore, we do not
give further consideration to this issue. 	State v. King, 2007-NMCA-130, ¶ 17, 142

14
N.M. 699, 168 P.3d 1123 (declining to consider arguments unsupported by authority
or analysis).
{20} 	We now turn to whether the district court’s ruling on the admissibility of the
Kysar opinions into evidence constituted reversible error. Ordinarily, we review an
evidentiary ruling of the district court admitting or excluding evidence for an abuse
of discretion, while reviewing any interpretation of law underlying the ruling de novo.
Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 13, 146 N.M. 453, 212 P.3d 341.
{21} 	Importantly, in this case, no offer of proof was made, and no evidence was ever
presented to the jury. Moreover, the district court ruled that during trial, Plaintiffs
could seek to introduce the evidence, whereupon it would consider whether to admit
the evidence. 	Reconsideration of the ruling would then be made in the specific
context of the case at that point in the trial. However, since there was no trial, we
have no basis for determining whether excluding the evidence might constitute error,
and even if we could, we have no context for assessing whether excluding the
evidence was prejudicial. It is a well-established principle of appellate review that the
appellant has the burden of ensuring that the appellate court is provided with a
complete record and transcript of proceedings that is sufficient to review the
appellant’s claims. State v. Martinez, 2002-NMSC-008, ¶ 48, 132 N.M. 32, 43 P.3d
1042; see Vill. of Angel Fire v. Wheeler, 2003-NMCA-041, ¶ 25, 133 N.M. 421, 63
P.3d 524 (stating that for appellate review to be meaningful, the record must be of

15
sufficient completeness to permit proper consideration of the appellant’s claims); State
v. Wilson, 116 N.M. 793, 797, 867 P.2d 1175, 1179 (1994) (“It was [the] defendant’s
burden to make a sufficient record for review on appeal.”). Furthermore, even if a
district court makes an erroneous evidentiary ruling, it does not constitute reversible
error unless it results in prejudice. 	Rule 11-103(A) NMRA (“Error may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right
of the party is affected[.]”); City of Albuquerque v. Ackerman, 82 N.M. 360, 365, 482
P.2d 63, 68 (1971) (“Harmless error in the exclusion of evidence cannot be the basis
for a new trial.”); El Paso Elec. Co. v. Real Estate Mart, Inc., 98 N.M. 570, 574, 651
P.2d 105, 109 (Ct. App. 1982) (“A party must show prejudice before reversal is
warranted.”). Under the circumstances, there is no issue for us to decide, as we have
no basis for reviewing whether the order of the district court constituted reversible
error. Any attempt to undertake an analysis at this point would result in an advisory
opinion, which we decline to give. See Santa Fe So. Ry., Inc. v. Baucis Ltd. Liab. Co.,
1998-NMCA-002, ¶ 24, 124 N.M. 430, 952 P.2d 31 (“Our concern with issuing
advisory opinions stems from the waste of judicial resources used to resolve
hypothetical situations which may or may not arise.”).
{22} 	Prior to trial, the district court also made certain in limine rulings: 	(1)
prohibiting Plaintiffs from introducing any evidence in support of their claim that their
consent to BP to use the Back Gate Road was fraudulently or mistakenly induced by

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BP’s misrepresentations about its rights to do so; (2) prohibiting Plaintiffs from
introducing any evidence that BP refused to produce information or documents
supporting its claimed right to use the Back Gate Road; (3) prohibiting Plaintiffs from
introducing any evidence of damages for any alleged trespass occurring prior to June
20, 2005, the date that the complaint was filed; (4) prohibiting Plaintiffs from
introducing any evidence of payments they received from BP for the easement on the
Back Gate Road pursuant to the 2005 Settlement Agreement or payments for an
easement on the Back Gate Road, which Plaintiffs granted to a third party; and (5)
prohibiting Plaintiffs from introducing any evidence concerning the 2005 Settlement
Agreement, and related evidence, if any.
{23} 	A motion in limine is merely a preliminary determination by a district court
regarding the admissibility of evidence. 	Proper v. Mowry, 90 N.M. 710, 715, 568
P.2d 236, 241 (Ct. App. 1977).
The Order entered should be clear and unequivocal. 	It should
provide and advise counsel such ruling is without prejudice to the right
to offer proof during the course of the trial, in the jury’s absence, of
those matters covered in the motion and if it then appears in the light of
the trial record that the evidence is relevant, material and competent it
may then be introduced, subject to opposing counsel’s objections, as part
of the record of evidence for the jury’s consideration.
Id. (internal quotation marks and citation omitted). 	Thus, motions in limine are
interlocutory orders which are subject to reconsideration by the district court during
the trial. “It is often impossible to make definitive evidentiary rulings prior to trial

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because admissibility will depend on the state of the evidence at the time of the
ruling.” 	State v. Dubois, 556 A.2d 86, 87-88 (Vt. 1988). As the trial unfolds, and
other evidence admitted, the context may demonstrate that excluded evidence is, in
fact, relevant and admissible, making it proper for the district court to revisit, and
modify or reverse its prior ruling. This is due to the very nature of a motion in limine.
“[M]otions in limine seeking advance rulings on the admissibility of evidence are
fraught with problems because they are necessarily based upon an alleged set of facts
rather than the actual testimony which the trial court would have before it at trial in
order to make its ruling.” 	State v. Young, 983 P.2d 831, 833 (Idaho 1999). 	In
addition, “[R]ulings in limine can never be totally accurate in balancing the probative
and prejudicial values of a piece of evidence which is best evaluated in the total trial
context.” Rothblatt & Leroy, The Motion in Limine in Criminal Trials: A Technique
for the Pretrial Exclusion of Prejudicial Evidence, 60 Ky. L.J. 611, 633 (1972). Thus,
the ruling on the motion in limine may subsequently be changed, expanded or
modified by the district court in light of the development of the evidence at trial. See
Proper, 90 N.M. at 715, 568 P.2d at 241.
{24} 	Because of their nature, motions in limine are inherently difficult to review on
appeal under an abuse of discretion standard in the circumstances before us in this
case. There was no trial, so we have no context in which to determine whether the
evidence is admissible. Further, since no evidence has been presented, we have no

18
basis for assessing the effect of the ruling, and thus, whether prejudice resulted. We
therefore conclude that, as with the district court’s rulings concerning the Kysar
opinions, we do not have an adequate record or basis for addressing Plaintiffs’
arguments that the district court’s in limine rulings 3, 4, and 5 set forth above
constituted reversible error. 	See Villano, 105 Cal. Rptr. 3d at 288 (holding that the
tentative evidentiary rulings of the district court and posture of the case on review left
the appellate court with no way of knowing what the evidence would have shown,
which defeated the plaintiff’s ability to show prejudice). 	We therefore decline to
address Plaintiffs’ arguments concerning these rulings.
{25} 	However, we do have an adequate record to assess the district court’s in limine
rulings 1 and 2. Those issues arose as follows. BP filed a motion in limine seeking
to prohibit Plaintiffs from introducing any evidence that the permission Plaintiffs gave
to 	BP 	to 	enter 	the 	Kysar 	Ranch 	was 	the 	product 	of 	misstatements 	or
misrepresentations by BP. 	BP contended that the first time Plaintiffs raised either
misrepresentation or mistake was when they included these claims in their requested
jury instructions; that Plaintiffs never pled mistake or fraud, either specifically or
generally; and that Plaintiffs had not attempted to amend their pleadings to include
claims of fraud or mistake. BP asserted that because Plaintiffs “have not complied
with the pleading rules,” and “have not heretofore alleged misrepresentation (fraud)
or mistake,” that Plaintiffs “cannot now raise these claims.” BP therefore contended

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that Plaintiffs “should be barred from offering testimony or evidence in support of
them.”
{26} 	In response, Plaintiffs referred the district court to Paragraphs 26, 27, and 62-64
of the complaint, which they said “specifically allege misrepresentation, fraud, and
concealment.” In those paragraphs, the complaint alleges:
26. 	In response to the Kysars’ objections, BP continues to
falsely represent that it has the right to cross the Kysar Ranch to reach
existing and proposed wells. 	However, no such express written
conveyance exists.
27. 	Amoco (BP’s predecessor in interest) knowingly made false
representations about its supposed right to cross the Kysar Ranch which
tended to and actually did deceive and mislead the Kysars in connection
with BP’s production and purchase of coal seam gas from the wells
located on the Kysars’ land.
. . . .
62. 	Plaintiffs 	have 	asked 	BP 	for 	pertinent 	information
concerning the basis for BP’s claimed access rights on the Kysar Ranch,
including the documents relating to the unitized or pooled tracts that
affect the Kysar Ranch, and for those units contiguous to the Kysar
Ranch. BP has refused to provide the information sought. The Kysars
do not have ready access to this information, which is not regularly
tracked by title companies.
63. 	BP continues to insist that it has the right to cross the Kysar
Ranch where and when it pleases to access existing wells and any new
wells that it locates anywhere on the Kysar Ranch. BP insists that it may
use the Back Gate Road access for all of its existing wells and any new
ones that it drills. BP is using roads located on one “unit” to gain access
to wells located on other “units.”

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64. 	BP’s dilatory, hide-the-ball tactics, when it has superior
knowledge of the unitization agreements and oil and gas leases that
impact on its location of various new wells, and its refusal to share this
information with [P]laintiffs, constitutes a breach of the duty of good
faith and fair dealing.
Plaintiffs asserted, “Misrepresentation can encompass innocent mistake, bona fide, but
erroneous belief, negligent misrepresentation and intentional misrepresentation. It is
for the jury to decide which it is once the evidence has been introduced and
considered.”
{27} 	The district court agreed with BP that Plaintiffs had not properly pled
misrepresentation, mistake, or fraud, and ordered, “Plaintiffs are prohibited from
offering any evidence or testimony in support of their claim that the consent that Mr.
Kysar gave Amoco/BP, to use the Back Gate Road for access to wells on the Kysar
Ranch, was fraudulently or mistakenly induced.”
{28} 	Rule 	1-009(B) 	NMRA 	states 	that 	allegations 	of 	fraud 	be 	stated 	with
particularity in the complaint. However, this does not mean that the complaint must
use words such as “fraud” or “fraudulent” to meet the pleading requirement so long
as “the facts alleged are such as constitute fraud in themselves, or are facts from which
fraud will be necessarily implied.” Romero v. Sanchez, 83 N.M. 358, 359, 492 P.2d
140, 141 (1971) (internal quotation marks and citation omitted). Furthermore, our
rules merely require pleadings to contain a short and plain statement of the claim or
defense, and each pleading averment to be “simple, concise and direct,” even when

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pleading with particularity. 	See Rule 1-008(E)(1) NMRA; Maxey v. Quintana, 84
N.M. 38, 40, 499 P.2d 356, 358 (Ct. App. 1972). 	The allegations we have quoted
above are sufficient to allege issues of misrepresentation, fraud, and mistake and they
put BP on notice that such claims were being made. 	See Robertson v. Carmel
Builders Real Estate, 2004-NMCA-056, ¶¶ 33-35, 135 N.M. 641, 92 P.3d 653
(concluding that general and specific allegations of ongoing false representations were
sufficient to plead fraud under Rule 1-009(B).
{29} 	We agree with Plaintiffs that the foregoing allegations are sufficient to raise
issues of misrepresentation, fraud, and mistake. 	Accordingly, it was error for the
district court to exclude evidence that the consent given to Amoco/BP, to use the Back
Gate Road for access to wells on the Kysar Ranch, was fraudulently or mistakenly
induced. Further, the allegations make evidence of BP’s refusal to produce pertinent
documents purporting to give it a right to cross the Kysar Ranch to access existing and
future wells, relevant to Plaintiffs’ claim that BP breached the duty of good faith and
fair dealing. See Rule 11-401 NMRA (“‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.”); Rule 11-402 NMRA (providing that all relevant evidence is
admissible).
CONCLUSION

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{30} 	The “Stipulated Order Granting Directed Verdict In Favor Of Defendant BP
America Production Company” is reversed, and the case is remanded to the district
court for further proceedings consistent with this Opinion.
{31} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge

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