December 26, 2012 – Rochelle Weiss v. THI of New Mexico at Valle Norte, LLC, No. 30,296

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: December 26, 2012

NO. 30,296

ROCHELLE WEISS, as Personal

Representative for the Wrongful Death
Beneficiaries of Florence Zuckerman, deceased,

Plaintiff-A ppellee,
V.

THI of NEW MEXICO AT VALLE NORTE,
LLC; THI of NEW MEXICO, LLC; THI of
BALTIMORE, INC.; FUNDAMENTAL
ADMINISTRATIVE SERVICES, LLC;
FUNDAMENTAL CLINICAL CONSULTING,
LLC; and JIMMY D. MELTON, administrator,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Geraldine E. Rivera, District Judge

Harvey Law Firm
Dust D. Harvey
Jennifer J. Foote
Albuquerque, NM

The Sorey Law Firm, PLLC
R. Daniel Sorey
Longview, TX
for Appellee
Proctor & Associates, P.C.
Lori D. Proctor
Houston, TX
Serpe, Jones, Andrews, Callender & Bell, PLLC
John S. Serpe
Randall Jones
Houston, TX
for Appellants

OPINION
CASTILLO, Chief Judge.
{1} 	A nursing home and its affiliates and administrator (Defendants) appeal from
a district court decision denying their motion to compel arbitration and stay
proceedings. The court based its denial on its conclusion that Defendants waived their
right to arbitrate and that the arbitration agreement is unconscionable. Defendants
also appeal the imposition of $25,000 in sanctions against them. 	The parties have
resolved the underlying issues of waiver and unconscionability, so we do not address
them. We affirm the imposition of sanctions.
I. 	BACKGROUND
{2} 	Because our sole issue on appeal relates to the imposition of sanctions, we
provide only a short background of the events leading up to the hearing at which the
sanctions were imposed. Rochelle Weiss (Plaintiff), the personal representative for
Florence Zuckerman, sued Defendants over alleged injuries and harm to Mrs.
Zuckerman, who died in February 2008 at the THI of New Mexico Valle Norte
nursing home. Shortly after filing her complaint, Plaintiff in early March 2009 began
serving discovery requests on Defendants. 	Over the next few months, Plaintiff
granted several extensions to Defendants to respond to interrogatories and requests for
production, but Defendants produced only a small percentage of the documents

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requested. In mid-August 2009, Plaintiffs filed a motion to compel discovery.
{3} 	Between the filing of the motion and the motion hearing, on September 1, 2009,
a scheduling conference was held, during which the district court established a time
line for trial preparation activities, including deadlines for discovery, and it set a date
for a ten-day jury trial beginning in August 2010. Several days later, the parties held
a teleconference regarding the production of discovery requested, but no agreement
was reached. 	In early October 2009, the court heard Plaintiff’s motion to compel,
granted the motion orally, and gave Defendants two weeks, until October 21, to
produce the documents. 	The district court issued a written order requiring the
production of discovery by October 21, although the written order was not filed until
October 22.
{4} 	About this time, Defendants discovered the admission agreement signed by
Mrs. Zuckerman and also noticed that it contained an arbitration clause. Based on this
information, Defendants, on October 29, 2009, filed a motion to compel arbitration
and to stay the proceedings under the Federal Arbitration Act (FAA), 9 U.S.C. § 3
(2011). Defendants did provide some discovery on November 2 but thereafter refused
to engage in discovery because their position was that the proceedings were
automatically stayed upon the filing of their motion to compel arbitration.
{5} 	Plaintiff filed a motion for discovery sanctions on November 12, 2009. 	On

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January 28, 2010, the district court heard Plaintiff’s motion for sanctions together with
Defendants’ motion to compel arbitration and stay the proceedings. 	Defendants
provided some discovery documents the day before and the day of that hearing.
{6} 	The court denied Defendants’ motion to compel, granted Plaintiff’s motions for
sanctions, imposed a $25,000 fine on Defendants, and ordered Defendants to produce
all remaining discovery items within five days. 	Defendants appealed the district
court’s order. At oral argument before this Court, the parties explained that they had
settled the case except for the matter of the imposition of sanctions. Accordingly, we
limit our opinion to the issue of sanctions.
II. 	DISCUSSION
{7} 	Defendants make two arguments. 	First, they argue that sanctions were
inappropriate because the sanctions were based in part on litigation activities that
occurred after Defendants had filed their motion to compel arbitration. According to
Defendants, the filing of the motion should have automatically stayed the proceedings,
and they thus were “substantially justified” in resisting discovery and were in
compliance 	with 	discovery 	rules 	because 	they 	reasonably 	believed 	that 	the
proceedings had been stayed. See Rule 1-037(B)(2) NMRA. In their second point,
Defendants contend that the court provided no basis for the amount of the sanctions
at $25,000 and did not base it on any evidence or representation of fees incurred by

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Plaintiff. We address each argument in turn.
A. 	Stay of the Proceedings
{8} 	In their memorandum in support of their motion to compel arbitration,
Defendants cited the FAA for their contention that proceedings should be stayed upon
such an application. See 9 U.S.C. § 3. Defendants reiterated that contention in their
response to Plaintiff’s motion for sanctions by citing to New Mexico’s Uniform
Arbitration Act (the Act), NMSA 1978, §§ 44-7A-1 to -32 (2001). See § 44-7A-8(f).
Defendants contend that the district court must automatically stay the proceedings
upon receiving a motion to compel arbitration. We disagree with Defendants’ reading
of the statutes.
{9} 	Because this involves a matter of statutory interpretation, we are faced with a
question of law, and our review is de novo. See Cooper v. Chevron U.S.A., Inc., 2002-
NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d 61. 	We follow the plain meaning rule,
requiring a court to give effect to a statute’s language and refrain from further
interpretation when the language is clear and unambiguous. See Sims v. Sims, 1996-
NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153.
{10} 	We first address the federal law. The FAA states that “the court . . ., upon being
satisfied that the issue involved in such suit or proceeding is referable to arbitration
under such an agreement, shall on application of one of the parties stay the trial of the

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action until such arbitration has been had.” 9 U.S.C. § 3. Rather than occurring in
automatically upon a motion to compel arbitration, a stay in the proceedings under the
FAA occurs only when the court is satisfied that the issue is referable to arbitration.
See United Nuclear Corp. v. Gen. Atomic Co. (United Nuclear I), 93 N.M. 105, 123,
597 P.2d 290, 308 (1979) (“Section 3 of the [FAA] provides for a stay of pending
court action on application of one of the parties when the [district] court is satisfied
that the issue involved is referable to arbitration and that the applicant for the stay of
court proceedings is not in default in proceeding with such arbitration.”). 	That
language invokes the discretion of the court and requires either a hearing or a ruling
by the court informed by an analysis of the viability of a request for arbitration.
{11} 	We now turn to the New Mexico statute. The Act states: “If a party makes a
motion to the court to order arbitration, the court on just terms shall stay any judicial
proceeding that involves a claim alleged to be subject to the arbitration until the court
renders a final decision under this section.” Section 44-7A-8(f). Here, too, the stay
is not triggered automatically but requires the court, “on just terms,” to assess whether
the claim is subject to arbitration. The New Mexico Supreme Court has spoken only
once on the meaning of the phrase “just terms” and has concluded that it translates
roughly to “reasonable terms.” See Pankey v. Hot Springs Nat’l Bank, 42 N.M. 674,
683, 84 P.2d 649, 654 (1938) (stating that the phrase, in the context of bringing in

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another party as an appellee, means “such reasonable terms as will save the adverse
party harmless in the premises” (internal quotation marks and citation omitted)). In
the context of the Act, we conclude that, before staying the proceedings, a district
court must utilize its reasonable discretion to determine whether a case is arbitrable.
{12} 	Adoption of Defendants’ assertion that a stay of the proceedings is mandatory
and is automatically triggered by a filing of a motion to compel would subvert the
court’s jurisdiction and lead to the absurd result of giving either party the unilateral
power to halt litigation. Defendants overreach in trying to find analogous cases from
other jurisdictions to support their theory. For instance, they point to Citibank (South
Dakota) NA v. Reikowski, 760 N.W.2d 97 (N.D. 2009), for the proposition that a mere
motion to compel arbitration automatically triggers a stay in the proceedings.
However, that court relied on a South Dakota law with wording that is significantly
different from the New Mexico statute. See S.D. Codified Laws § 21-25A-7 (2004)
(“Any action or proceeding involving an issue subject to arbitration shall be stayed if
an order for arbitration or an application therefor has been made . . . .” (emphasis
added)). 	Other state jurisdictions are equally unhelpful to Defendants’ argument.
And federal case law offers numerous examples of providing discretion to lower
courts to determine the merits of a motion for arbitration before requiring a stay of the
proceedings. See, e.g., In re Gandy, 299 F.3d 489, 494 (5th Cir. 2002) (“A court must

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stay its proceedings if it is satisfied that an issue before it is arbitrable under the
agreement.”); MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 249 (4th Cir. 2001) (“[A]
party may demand a stay of federal judicial proceedings pending exercise of a
contractual right to have the subject matter of the federal action decided by arbitration,
unless the party seeking arbitration is ‘in default’ of that right.” (internal quotation
marks and citation omitted)); Houlihan v. Offerman & Co., 31 F.3d 692, 695 (8th Cir.
1994) (“A federal court must stay court proceedings and compel arbitration once it
determines that the dispute falls within the scope of a valid arbitration agreement.”);
Jones v. Gen. Motors Corp., 640 F. Supp. 2d 1124, 1128-29 (D. Ariz. 2009) (“If a
district court decides that an arbitration agreement is valid and enforceable, then it
should either stay or dismiss the claims subject to arbitration.”); Lorntzen v. Swift
Transp., Inc., 316 F. Supp. 2d 1093, 1095 (D. Kan. 2004) (stating that the FAA
requires a district court to stay the proceedings in favor of an arbitration agreement
except when the agreement is invalid as matter of law).
{13} 	We conclude that because the issue was found to be not “referable to
arbitration” the court could not “on just terms” order an immediate stay of the
proceedings without addressing the merits of the right to arbitrate the issue at hand.
9 U.S.C. § 3; § 44-7A-8(f). Therefore, the district court had the discretion to stay or
not stay the proceedings depending on the viability of the right to arbitrate, and

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Defendants’ argument that they were justified in withholding discovery fails. Further,
because the parties settled the issue of arbitrability, we need not analyze the court’s
justifications for denying the motion to compel arbitration and to stay the proceedings.
B. 	The Sanctions
{14} 	We now turn to the merits of the district court’s decision to impose sanctions
against Defendants. At the close of the hearing on the parties’ motions, the district
court imposed the sanction of $25,000 based on several findings. The court found that
“Defendants clearly had no intention of following” the court’s October 2009 order to
compel discovery and instead “unilaterally decided that all matters would be stayed.”
Additionally, the court described the response to Plaintiff’s discovery requests as
dilatory, even when considering the documents presented on the day before and day
of the January 2010 hearing on sanctions. 	The court also found that Defendants’
counsel 	“misrepresented 	several 	pertinent 	facts” 	during 	the 	January 	hearing,
characterizing 	the 	attorney’s 	statements 	as 	“careless 	and 	sloppy 	at 	best 	and
intentional[ly] unethical at worst.” 	We observe that the district court imposed
sanctions based not only on its statutory authority to manage the discovery process but
also on the court’s inherent powers to control the proceedings. See State ex rel. N.M.
State Highway & Transp. Dep’t v. Baca (Baca), 120 N.M. 1, 4, 896 P.2d 1148, 1151
(1995) (concluding that courts have “inherent power to impose . . . sanctions on both

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litigants and attorneys . . . to regulate their docket, promote judicial efficiency, and
deter frivolous filings” (internal quotation marks and citation omitted)); Seipert v.
Johnson, 2003-NMCA-119, ¶ 9, 134 N.M. 394, 77 P.3d 298 (stating that a “district
court could properly sanction under its inherent power to control the litigation and the
conduct of the parties before it”).
1. 	Standard of Review
{15} 	“We review a [district] court’s decision to impose discovery sanctions under
Rule 1-037(B)(2) for an abuse of discretion.” 	Lewis ex rel. Lewis v. Samson,
2001-NMSC-035, ¶ 13, 131 N.M. 317, 35 P.3d 972. Under this standard, “we will
disturb the [district] court’s ruling only when the [district] court’s decision is clearly
untenable or contrary to logic and reason.” Id. (internal quotation marks and citation
omitted). 	“In conducting our review[,] we must be mindful of the nature of the
conduct and level of culpability found by the [district] court and whether the [district]
court’s sanction appears more stern than necessary in light of the conduct prompting
the sanction.” Enriquez v. Cochran, 1998-NMCA-157, ¶ 20, 126 N.M. 196, 967 P.2d
1136. 	“[I]mplicit in the standard of review is the question of whether the court’s
findings and decision are supported by substantial evidence.” Id.
{16} 	The abuse of discretion standard is also used for review of the imposition of
Rule 1-011 NMRA sanctions, see Rangel v. Save Mart, Inc., 2006-NMCA-120, ¶ 12,

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140 N.M. 395, 142 P.3d 983, and for bad faith participation in a settlement conference
or mediation. 	See Carlsbad Hotel Assocs. v. Patterson-UTI Drilling Co., 2009-
NMCA-005, ¶ 20, 145 N.M. 385, 199 P.3d 288. We conclude that this same standard
can be used in evaluating sanctions imposed based on the inherent power of a court
to control its proceedings.
2. 	The Basis for Sanctions
{17} 	Discovery sanctions “may only be imposed when the failure to comply is due
to the willfulness, bad faith or fault of the disobedient party.” United Nuclear Corp.
v. Gen. Atomic Co. (United Nuclear II), 96 N.M. 155, 202, 629 P.2d 231, 278 (1980).
Sanctions are intended to “preserve the integrity of the judicial process and the due
process rights of the other litigants.” Sanchez v. Borrego, 2004-NMCA-033, ¶ 19, 135
N.M. 192, 86 P.3d 617 (internal quotation marks and citation omitted). 	New
Mexico’s rules of civil procedure state that if a district court grants a motion to compel
discovery
the court shall . . . require the party or deponent whose conduct
necessitated the motion or the party or attorney advising such conduct or
both of them to pay to the moving party the reasonable expenses incurred
in obtaining the order, including attorney[] fees, unless the court finds
that the opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust.
Rule 1-037(A)(4). The court gave its order to compel discovery orally from the bench
on October 7, 2009, giving Defendants two weeks to produce all documents requested.

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We have previously noted that our “Supreme Court has held that a district court’s oral
ruling may justify sanctions under Rule 1-037.” Allred ex rel. Allred v. Bd. of Regents
of the Univ. of N.M., 1997-NMCA-070, ¶ 19, 123 N.M. 545, 943 P.2d 579. Here, the
district court followed up with a written order on October 22, listing the deadline as
October 21.
{18} 	Rather than comply with the order to compel discovery, Defendants responded
a week later, on October 29, by filing their motion to compel arbitration and to stay
the proceedings. 	Defendants did not comply with the court’s order of October 7
because they claimed that they needed 120 days to do so, not the fourteen days
provided by the court’s oral and written orders or the thirty days offered by Plaintiff’s
counsel. At no point did Defendants file a motion for a protective order or claim a
privilege with respect to the documents sought by Plaintiff. See Rule 1-037(D) (“The
failure to act . . . may not be excused on the grounds that the discovery sought is
objectionable unless the party failing to act has applied for a protective order as
provided by Rule 1-026 NMRA.”); Rule 1-026(B)(7)(a) (“When a party withholds
information otherwise discoverable under these rules by claiming that it is privileged
or subject to protection . . ., the party shall make the claim expressly[.]”).
{19} 	Defendants’ dilatory responses to discovery requests “were not merely
accidental or inadvertent.” Enriquez, 1998-NMCA-157, ¶ 33. Instead, Defendants’

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actions “show a sustained and deliberate disobedience of the court orders concerning
discovery.” Miller v. City of Albuquerque, 88 N.M. 324, 331, 540 P.2d 254, 261 (Ct.
App. 1975) (“Under these circumstances[,] we cannot say that the award of attorney
fees . . . was unfair, arbitrary, manifest error, or not justified by reason.”). 	We
conclude that substantial evidence existed below for the district court to impose
sanctions on Defendants for their discovery violations and misrepresentations to the
court.
3. 	The Amount of Sanctions
{20} 	Defendants further argue that the judge provided no reasoning behind the
$25,000 amount of the sanction and did not base it on any evidence or representation
of fees incurred by Plaintiff.
{21} 	Discovery sanctions short of dismissal are commonly based on the moving
party’s costs and attorney fees that result from the dilatory party’s failure to comply
with discovery requests and orders. See, e.g., In re Chavez, 2000-NMSC-015, ¶¶ 32-
33, 129 N.M. 35, 1 P.3d 417; Gonzales v. Surgidev Corp., 120 N.M. 151, 155, 899
P.2d 594, 598 (1995). The New Mexico Supreme Court has stated that a district court
“must award reasonable expenses to the affected party when the other party has failed
to comply with a discovery order.” Marchman v. NCNB Tex. Nat’l Bank, 120 N.M.
74, 91, 898 P.2d 709, 726 (1995). “In determining the nature of the sanctions to be

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imposed, the [district] court must balance the nature of the offense, the potential
prejudice to the parties, the effectiveness of the sanction, and the imperative that the
integrity of the court’s orders and the judicial process must be protected.” Enriquez,
1998-NMCA-157, ¶ 48. 	It is appropriate that 	the 	“sanctions 	imposed 	[be]
proportional to the offenses.” Gonzales v. N.M. Dep’t of Health, 2000-NMSC-029,
¶ 16, 129 N.M. 586, 11 P.3d 550.
{22} 	In the case before us, Defendants’ actions went beyond mere violations of
discovery rules to include material misrepresentations to the court. We have long held
that a court’s power is broader than merely the statutory authority to impose sanctions
to cover a prejudiced party’s costs when the offending party has violated a rule or
statute. See Miller, 88 N.M. at 329, 540 P.2d at 259 (“[C]ourts have inherent power
to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.”). Further, our Supreme Court has concluded that “an award of attorney fees
without a basis in a statute, contractual provision, or court rule may be justified as an
exercise of a court’s inherent powers when litigants, their attorneys, or both have
engaged in bad faith conduct before the court or in direct defiance of the court’s
authority.” 	N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 16, 127
N.M. 654, 986 P.2d 450 (internal quotation marks and citations omitted). 	Our
Supreme Court has thus recognized that “a court’s inherent authority extends to all

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conduct before that court and encompasses orders intended and reasonably designed
to regulate the court’s docket, promote judicial efficiency, and deter frivolous filings.”
Baca, 120 N.M. at 8, 896 P.2d at1155; see Martinez v. Martinez, 1997-NMCA-096,
¶ 23, 123 N.M. 816, 945 P.2d 1034 (reiterating that “courts have inherent power to
impose sanctions on both litigants and attorneys in order to regulate their docket,
promote judicial efficiency, and deter frivolous claims”). In that vein, “a court must
be able to command the obedience of litigants and their attorneys if it is to perform its
judicial functions.” Baca, 120 N.M. at 4, 896 P.2d at 1151. In these circumstances,
a court is permitted to “vindicate its judicial authority” and impose sanctions. Id. at
5, 896 P.2d at 1152; accord Landess v. Gardner Turf Grass, Inc., 2008-NMCA-159,
¶ 19, 145 N.M. 372, 198 P.3d 871; In re Jade G., 2001-NMCA-058, ¶ 28, 130 N.M.
687, 30 P.3d 376 (“Under its inherent authority, a court may sanction parties and
attorneys to ensure compliance with the proceedings of the court.”). In the case before
us, the district court had the authority to exercise its inherent authority to impose
sanctions in order to regulate its docket and preserve the integrity of the judicial
process.
{23} 	In penalizing Defendants $25,000, the court chose to impose a sanction less
severe than dismissal of the case or the striking of an affirmative defense. In Allred,
we deemed the more severe sanction of dismissal appropriate after the district court

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found “that [the p]laintiffs’ conduct in failing to comply with reasonable discovery
requests and [the p]laintiffs’ misrepresentations to the court constituted a pattern of
disregard for the discovery rules and the rulings of the court.” 1997-NMCA-070, ¶
26. 	Here, under similar circumstances, the district court imposed a less severe
monetary sanction that is permitted when exercising its inherent powers. See Avlin
Inc. v. Manis, 1998-NMCA-011, ¶ 12, 124 N.M. 544, 953 P.2d 309. It is true that the
court did so without evidence presented by Plaintiff itemizing her discovery costs that
resulted from Defendants’ dilatory discovery conduct. At the hearing on sanctions,
however, Plaintiff did inform the court that Defendants had claimed that it would cost
them $50,000 to comply with the October discovery order. 	The court could have
reasonably halved that figure to come up with the $25,000 sanction. Cf. MHC Inv.
Co. v. Racom Corp., 323 F.3d 620, 628 n.13 (8th Cir. 2003) (considering $25,000 the
“minimum amount a [c]ourt can award in order to deter” a law firm’s improper
behavior); In re White, 18 Cal. Rptr. 3d 444, 471 (Ct. App. 2004) (considering
$25,000 “a reasonable and responsible monetary sanction to compensate this court in
part for the cost of processing, reviewing, and deciding” frivolously filed writ
petitions); Barnhill v. Iowa Dist. Ct. for Polk Cnty., 765 N.W.2d 267, 277 (Iowa 2009)
(affirming a $25,000 sanction without a specific accounting because “it balanced the
twin purposes of compensation and deterrence set forth in our case law”); Multifeeder

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Tech., Inc. v. British Confectionery Co., 2012 WL 4135848, *10 (D. Minn. 2012)
(mem. & order) (ordering a sanction of $25,000 “for the abuse of the [c]ourt’s
processes”); Zurich Reinsurance (UK) Ltd. v. Canadian Pacific, Ltd., 613 N.W.2d
760, 766 (Minn. Ct. App. 2000) (concluding that the district court did not abuse its
discretion in awarding $25,000 to insured as sanction for indemnity insurer’s refusal
to admit that insured could enter into a reasonable settlement of claims without
insurer’s authorization or consent); Skepnek v. Mynatt, 8 S.W.3d 377, 380-81 (Tex.
App. 1999) (upholding a $25,000 sanction to be paid into registry of court for filing
a false affidavit).
{24} 	In addition, an award of sanctions need not be tied to the prejudice to the
opposing party but may be linked to the affront to the court and the judicial process.
See Sanchez, 2004-NMCA-033, ¶ 19 (stating that “whether prejudice to [the
d]efendant resulted is not the issue; the issue is counsel’s abuse of the discovery
process”); Reed v. Furr’s Supermarkets, Inc., 2000-NMCA-091, ¶ 29, 129 N.M. 639,
11 P.3d 603 (stating that “the overriding concern is abuse of the discovery process”).
“[A]n abuse of the discovery process affects more than private litigants. It also affects
the integrity of the court and, when left unchecked, would encourage future abuses.”
Gonzales, 120 N.M. at 157, 899 P.2d at 600.
{25} 	Here, the district court found not only that “Defendants clearly had no intention

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of following” the court’s order to compel discovery but also that their counsel
“misrepresented several pertinent facts to the [c]ourt” at the January 2010 hearing.
The court also noted that Defendants’ counsel failed to read the briefs and a key
Plaintiff’s affidavit. 	Thus, Defendants’ misconduct went beyond the discovery
violations; the court also warned Defendants’ counsel not to come before the judge
again with misrepresentations because they had not read the briefs or because they had
not done the work. 	The court’s award of sanctions encompassed both discovery
violations covered by the rules and misbehavior before the court that fell under the
court’s inherent powers to “command the obedience of litigants” and “vindicate its
judicial authority.” Baca, 120 N.M. at 4, 5, 896 P.2d at 1151, 1152. We cannot say
in this instance that the imposition of $25,000 in sanctions was not supported by
substantial evidence or that they were not proportional to the offenses committed, see
Gonzales, 2000-NMSC-029, ¶ 16, or that the sanctions were “more stern than
reasonably necessary.” United Nuclear II, 96 N.M. at 241, 629 P.2d at 317 (internal
quotation marks and citation omitted); see Seipert, 2003-NMCA-119, ¶ 20 (stating
that “an affront to the court . . . warrants the imposition of sanctions severe enough to
put a stop to the practice”); Pizza Hut of Santa Fe, Inc. v. Branch, 89 N.M. 325, 328,
552 P.2d 227, 230 (Ct. App. 1976) (noting that “[s]anctions may be light or drastic
dependent on the facts and circumstances of each case” and affirming a sanction that

18
the district court “conscientiously believed . . . was reasonable and proper”). “It is not
our responsibility as a reviewing court to say whether we would have chosen a more
moderate sanction.” 	United Nuclear II, 96 N.M. at 239, 629 P.2d at 315 (internal
quotation marks and citation omitted).
{26} 	We conclude that the district court did not abuse its discretion in deciding to
award sanctions based on Defendants’ failure to comply with the discovery order and
their counsel’s misrepresentations and unpreparedness in court.
III. 	CONCLUSION
{27} 	For the foregoing reasons, we affirm the district court’s granting of Plaintiff’s
motion for discovery sanctions.
{28} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge

I CONCUR:

CYNTHIA A. FRY, Judge

TIMOTHY L. GARCIA, Judge (dissenting)

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GARCIA, Judge (dissenting).
{29} 	I respectfully dissent in this case. 	I agree with the majority that the district
court did not abuse its discretion when it determined that Defendants’ dilatory
response to discovery requests warranted the imposition of a monetary sanction under
Rule 1-037(A)(4). Plaintiff was entitled to recover the reasonable expenses incurred
in obtaining the production of the documents requested, including attorney fees.
Majority Opinion, ¶¶ 17-19. When this monetary sanction was imposed, however, it
is undisputed that Plaintiff had not been given the opportunity to present any evidence
to establish the actual amount of its reasonable expenses and attorney fees incurred
due to Defendants’ dilatory acts in withholding discovery. Majority Opinion, ¶ 23.
Effectively, no evidence was presented, substantial or otherwise, regarding the
reasonable expenses and attorney fees incurred in obtaining the production of the
documents requested. 	See Gonzales, 2000-NMSC-029, ¶ 15 (recognizing that
discovery sanctions are fact-based and must be supported by substantial evidence).
{30} 	Although the majority presents a reasonable premise that the district court can
also use its inherent authority to control the proceedings in its courtroom and impose
a sanction, there is no indication in the record that the district court actually exercised
its inherent authority in this case. Majority Opinion, ¶¶ 16, 22-25. Despite the fact
that substantial monetary sanctions may well be warranted under Rule 1-037(A)(4)

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for the dilatory tactics practiced by Defendants in order to deny the discovery ordered
by the district court, based upon the record before us, it is impossible to determine
whether the $25,000 sanction imposed by the court was clearly untenable or contrary
to logic or reason. Without some means of measurement, we have no justifiable way
to determine whether the district court acted properly and did not abuse its discretion.
See Baca, 120 N.M. at 8, 896 P.2d at 1155 ([G]eneralized conclusions, without more,
do not justify a finding of bad faith sufficient to support an attorney’s fee award.”).
The actual evidence may support a different result. It is impossible to make such a
determination at this time.
{31} 	I recognize and understand the district court’s frustration with Defendants and
how this may have led to a hasty decision regarding the award of sanctions. Not only
had Defendants already stonewalled the discovery process, but they also appeared at
the January 2010 hearing unprepared and made misrepresentations that were “careless
and sloppy at best and intentionally unethical at worst.” Despite this conduct, I cannot
agree with the majority that the sanction imposed by the district court at the January
2010 hearing was based upon its inherent authority. 	Plaintiff should have been
awarded the reasonable expenses and attorney fees that they incurred under Rule Rule
1-037(A)(4) due to Defendants’ conduct, including the time and expense incurred at
the January 2010 hearing. This matter should be remanded to the district court to hold

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an evidentiary hearing in order to determine the amount of expenses and attorney fees
Plaintiff actually incurred and is now entitled to receive as a sanction imposed against
Defendants under Rule 1-037(A)(4).
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TIMOTHY L. GARCIA, Judge