April 23, 2014 – Buke, LLC v. Cross County Auto Sales, LLC, Cross Country Auto Sales Westside, LLC, Southwest Auto Wholesale, LLC, Cas, LLC, John Chiado, Joe Chiado, John T. Teilly, Bedo, LLC, John Perner adn Perner and Michnovicz, LLC, No. 32,559

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: April 23, 2014
NO. 32,559
BUKE, LLC,
Plaintiff-Appellant,
v.
CROSS COUNTRY AUTO SALES, LLC,
CROSS COUNTRY AUTO SALES WESTSIDE,
LLC, SOUTHWEST AUTO WHOLESALE,
LLC, CAS, LLC, JOHN CHIADO, JOE CHIADO,
JOHN T. REILLY, BEDO, LLC, JOHN PERNER,
and PERNER AND MICHNOVICZ, LLC,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ted Baca, District Judge
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
John J. Kelly
Michelle A. Hernandez
Kevin D. Pierce
Albuquerque, NM
for Appellant
Law Office of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM

Law Office of Chris Key
Chris Key
Albuquerque, NM
for Appellees Cross Country Auto Sales, LLC;
Cross Country Auto Sales Westside, LLC;
Southwest Auto Wholesale, LLC; CAS, LLC;
John Chiado; John T. Reilly, and BEDO, LLC
Law Office of Jack Brant, P.C.
John M. Brant
Jeannie Hunt
Albuquerque, NM
for Appellees John Perner and Perner and Michnovicz, LLC

OPINION
VANZI, Judge.
{1} 	This lawsuit arises from a dispute concerning the use of certain assets of
Plaintiff-Appellant BUKE, LLC (BUKE), a limited liability company (LLC) car
dealership, by BUKE’s manager, Randall Eastburg, who was also a member of BUKE
and of Defendant LLC car dealerships. Rounding out the named Defendants are other
members of Defendant LLC car dealerships, along with a certified public accountant
(CPA) and his accounting firm.
{2} 	The case involves many players, claims, and contentions, but resolution of the
central issues raised in this appeal turns primarily on one disputed point—whether
Eastburg had the requisite consent to use the assets in question. We conclude that the
only reasonable conclusion to be drawn from the undisputed material facts is that he
did, so we affirm the district court’s summary judgment rulings in favor of Defendant
LLC car dealerships and their members. We also affirm the district court’s entry of
summary judgment dismissing the accountant malpractice claim and its denial of
BUKE’s motion to amend the scheduling order.
I. 	BACKGROUND
A. 	The Parties

1The parties do not mention Margaret Branch and Lisa Eastburg, other than to
initially note the fact of their membership in BUKE. Accordingly, “Branch” refers to
Turner Branch and “Eastburg” to Randall Eastburg.
2Eastburg was also a member of the Cross Country LLCs. As discussed below,
BUKE dismissed its claims against Eastburg.
2
{3} 	BUKE was formed in 2005 with the following members: Brian Urlacher
(32.5%), Turner and Margaret Branch (20%), Bryce Karger (15%), and Randall and
Lisa Eastburg (32.5%).1
{4} 	Defendants fall into three groups: (1) Albuquerque used car dealerships Cross
Country Auto Sales Eastside, LLC and Cross Country Auto Sales Westside, LLC,
along with Albuquerque wholesale dealership Southwest Auto Wholesale, LLC
(collectively, Cross Country LLCs); (2) Cross Country LLCs’ members: John T.
Reilly and BEDO, LLC (BEDO), which consists of six members of the Chiado family,
two of whom are also named Defendants (collectively, Cross Country Members)2
; (3)
John Perner, a CPA who provided services to BUKE and the Cross Country LLCs,
and his accounting firm, Perner and Michnovicz (collectively, the Accountants).
B. 	The Undisputed Material Facts
1. 	Eastburg’s Relationships With the Parties
{5} 	Eastburg was an experienced owner and operator of car dealerships, who
operated the Cross Country LLCs since 1998. Eastburg continued to be a member of
the Cross Country LLCs and to operate those dealerships after he became involved

3
with BUKE in 2005. All of BUKE’s members were aware of Eastburg’s involvement
with the Cross Country LLCs.
{6} 	Eastburg was also a member and manager of a used car dealership in
Lovington, New Mexico called “Brian Urlacher Cross Country Auto Sales LLC”
(Lovington Dealership), in which Urlacher and Karger had an ownership interest.
Turner Branch was the only BUKE member who did not hold a membership interest
in the Lovington Dealership.
2. 	Eastburg’s Management and Use of Certain BUKE Assets
{7} 	BUKE selected Eastburg to be its sole manager at its inception in 2005, and
Eastburg held that position until 2009. As discussed further below, BUKE’s operating
agreement (Operating Agreement) prohibited BUKE’s members from participating
in “the control, management, direction or operation” of BUKE’s affairs and gave
BUKE’s manager (Eastburg) “the exclusive right to manage all of” BUKE’s affairs,
subject to certain limitations.
{8} 	In 2006, BUKE bought the assets of a General Motors (GM) new car dealership
in Tucumcari, New Mexico (Tucumcari Dealership) and named it “Brian Urlacher
Cross Country Autoplex.” As a GM franchisee (via the Tucumcari Dealership), BUKE
had access to GM “credentials,” also known as a “badge,” which allowed BUKE to
purchase low-mileage GM vehicles at closed GM auctions (GM Badge). BUKE also

4
had a General Motors Acceptance Corporation (GMAC) credit line (also known as a
“floor plan”), which allowed BUKE to finance the vehicles it purchased at low interest
rates (Credit Line).
{9} 	Eastburg testified that access to the GM Badge and Credit Line was one of the
reasons he wanted to become involved with the Tucumcari Dealership. The Tucumcari
Dealership’s former owner was aware that Eastburg was going to use the GM Badge
during the management contract period. Eastburg told Karger that he was going to use
the GM Badge to purchase vehicles for the Cross Country LLCs, although he does not
recall discussing use of the GM Badge or Credit Line for this purpose with Urlacher
or Branch. Karger did not object, although some details of that conversation are
disputed: Karger testified that, during their conversation, Eastburg promised that the
Cross Country LLCs would pay BUKE $500 for each vehicle it purchased using the
GM Badge, while Eastburg said that he does not remember making this promise and
that he never would have made it because that amount would be excessive. The Cross
Country LLCs never paid BUKE a per-vehicle fee.
{10} 	Once BUKE began operating the Tucumcari Dealership in 2006, Eastburg
arranged with one of BUKE’s employees to obtain GM Badges for himself and others
working for him to purchase vehicles at closed GM auctions. BUKE’s employees
understood that Eastburg was authorized to do so. Thereafter, Eastburg used the GM

5
Badges to purchase and sell vehicles for BUKE, the Lovington Dealership, and the
Cross Country LLCs. Eastburg also arranged with BUKE’s employees for the Cross
Country LLCs to reimburse BUKE for the vehicles that were purchased for them at
GM auctions on the Credit Line. The Cross Country LLCs’ lender, New Mexico Bank
& Trust, was aware that Eastburg was purchasing vehicles for the Cross Country
LLCs on BUKE’s Credit Line.
{11} 	Eastburg publicized that he was using the GM Badge and Credit Line to
purchase vehicles for all of the dealerships he operated. For instance, in March 2007,
Eastburg gave an interview for an article published in the New Mexico Business
Weekly. That article discussed all of the dealerships Eastburg operated, referring to
them collectively as “Cross Country” notwithstanding their different ownerships. It
also stated that “[t]he GM Tucumcari deal is huge because it will give Eastburg access
to all GM auto auctions, as well as to GM financing for his inventory of cars, both
new and used.” BUKE posted the article on its website. Eastburg also spoke openly
to Albuquerque newspapers about “moving inventory between the various stores with
which [he] was affiliated[.]”
3. 	Perner’s Determinations Concerning the Credit Line
{12} 	Perner was not involved in BUKE’s day-to-day bookkeeping. However, in May
2008, Eastburg, on behalf of BUKE, hired Perner to perform two discrete accounting

6
services for BUKE: prepare tax returns for 2006, 2007, and 2008; and prepare a
Reviewed Financial Statement (RFS) for 2007. Perner had previously prepared tax
returns for two of the Cross Country LLCs. Shortly after BUKE hired him as an
accountant, Perner also became a member of a newly created business, Cross Country
Auto Parts, LLC, whose other members were Eastburg, two Cross Country Members,
and three other individuals.
{13} 	While preparing the RFS in May 2008, Perner determined that the Credit Line
was “out of trust,” meaning that the amount BUKE owed GMAC exceeded the value
of BUKE’s inventory on the car lot floor at the Tucumcari Dealership. Perner also
determined that one of the Cross Country LLCs had six BUKE vehicles in its
inventory for which it had not paid BUKE. The RFS disclosed this. Perner gave
multiple copies of the RFS to Eastburg to distribute to BUKE’s other members. Both
the RFS and the tax returns were accurate and correct. BUKE never paid $15,796.75
of the balance it owed Perner for the preparation of the tax returns and RFS.
{14} 	Sometime in 2008, Branch began receiving notices from GMAC that payments
were not being timely made on the Credit Line. Because Branch was not receiving
monthly financial statements from BUKE’s bookkeeper in Tucumcari and was
unhappy to be receiving notices from GMAC, Branch requested a meeting with
Perner, which occurred in August 2008. At that meeting, Perner said he would ensure

7
that Branch started receiving the monthly statements from the Tucumcari Dealership,
but he did not disclose anything else.
{15} 	In January 2009, GMAC wrote Eastburg and BUKE, advising that a recent
audit showed untimely payments on the Credit Line for 66 out of 97 (68%) of the
vehicles audited and that GMAC would increase BUKE’s interest rates on the Credit
Line by 100 basis points (1%) until BUKE’s wholesale performance complied with
the requirements of the Wholesale Security Agreement.
{16} 	Branch, who is the only BUKE member who is not also an owner of the
Lovington Dealership, is also the only BUKE member who testified that he was not
aware of Eastburg’s use of BUKE’s GM Badge and Credit Line to benefit the Cross
Country LLCs until 2009. There is no testimony from Urlacher in the record. None
of BUKE’s members ever objected to Eastburg’s use of BUKE’s GM Badge and
Credit Line to purchase vehicles for the Cross Country LLCs until Branch started
investigating the late payments on the Credit Line.
C. 	Procedural History
{17} 	BUKE filed its complaint in June 2009 and filed an amended complaint in
February 2011. The first amended complaint asserts the following claims: an unjust
enrichment claim against the Cross Country LLCs and Cross Country Members;
claims for conversion, accounting, unfair competition, violation of New Mexico’s

3The first amended complaint also asserted claims against the Cross Country
LLCs’ attorneys, the “Eastburg Defendants,” and “Eastburg Partners,” which were
voluntarily dismissed prior to appeal.
8
Unfair Practices Act, intentional interference with existing contractual relationship,
intentional interference with prospective contractual relationship, and violation of the
New Mexico Racketeering Act, against the Cross Country LLCs; and a professional
malpractice claim against the Accountants.3 The Eastburg Defendants, Eastburg
Partners, and Cross Country LLCs’ attorneys were voluntarily dismissed from the case
prior to appeal.
{18} 	BUKE challenges the district court’s rulings on several motions: (1) the Cross
Country Members’ motion for summary judgment on the unjust enrichment claim, on
the ground that they were protected by the Cross Country LLCs’ “corporate shield,”
which the district court granted; (2) the joint motion for summary judgment filed by
the Cross Country LLCs and Cross Country Members, on the ground that no evidence
supported the core factual allegation underlying BUKE’s claims that Eastburg did not
have permission to use BUKE’s GM Badge and Credit Line to benefit the Cross
Country LLCs, which the district court also granted; (3) BUKE’s motion for summary
judgment on its conversion claim, based on this same factual issue, which the district
court denied; (4) BUKE’s motions to reconsider the rulings on the motions filed by
the Cross Country LLCs and Cross Country Members; (5) the Accountants’ motion

9
for summary judgment on the accountant malpractice claim, on the ground that BUKE
did not have an expert witness, which the district court granted; (6) BUKE’s motion
to modify the scheduling order, including the deadline for disclosing expert witnesses,
which the district court denied.
II. 	DISCUSSION
{19} 	We first consider the district court’s summary judgment rulings in favor of
Defendants, which we review de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-
046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We then address the court’s denial of BUKE’s
motion to amend the scheduling order, which we review for an abuse of discretion.
See Reaves v. Bergsrud, 1999-NMCA-075, ¶ 13, 127 N.M. 446, 982 P.2d 497.
A. 	The Summary Judgment Standard
{20} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self, 1998-
NMSC-046, ¶ 6; see Rule 1-056(C) NMRA; Bartlett v. Mirabal, 2000-NMCA-036,
¶ 17, 128 N.M. 830, 999 P.2d 1062. The appellate courts “view the facts in a light
most favorable to the party opposing summary judgment and draw all reasonable
inferences in support of a trial on the merits.” Romero v. Philip Morris Inc., 2010-
NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation
omitted).

10
{21} 	Once the summary judgment movant has made a prima facie case, the burden
shifts to the non-movant to establish reasonable doubt as to the existence of a genuine
issue of material fact. Bartlett, 2000-NMCA-036, ¶ 17. The non-movant may not rely
on allegations or speculation, but must come forward with admissible evidence
demonstrating a genuine issue requiring trial and also demonstrate that facts allegedly
in dispute are material to the claims at issue. Rule 1-056(E); Romero, 2010-NMSC-
035, ¶¶ 10-11. Materiality is determined by the governing substantive law; the inquiry
is whether the fact is necessary to give rise to a claim. Romero, 2010-NMSC-035,
¶ 11. “Summary judgment is appropriate when a defendant negates an essential
element of the plaintiff’s case by demonstrating the absence of an issue of [material]
fact regarding that element.” Mayfield Smithson Enters. v. Com-Quip, Inc., 1995-
NMSC-034, ¶ 22, 120 N.M. 9, 896 P.2d 1156. Thus, summary judgment may be
granted even though disputed factual issues remain. Tapia v. Springer Transfer Co.,
1987-NMCA-089, ¶ 8, 106 N.M. 461, 744 P.2d 1264.
B. 	The District Court Properly Entered Summary Judgment, Dismissing
BUKE’s Claims Against the Cross Country LLCs and Members
1. 	The District Court Correctly Concluded That Eastburg Used BUKE’s GM
Badge and Credit Line With the Consent of a Majority of BUKE’s
Members
{22} 	BUKE contends that the district court erred in entering summary judgment in
favor of the Cross Country LLCs and Members on all claims and in denying its cross

11
motion for partial summary judgment. The dispositive issue is whether Eastburg used
BUKE’s GM Badge and Credit Line with the requisite permission of BUKE’s
members. For the reasons set forth below, we affirm.
a. 	The Act and Operating Agreement
{23} 	An LLC is an entity created by statute—the New Mexico Limited Liability
Company Act (the Act), codified at NMSA 1978, §§ 53-19-1 to -74 (1993, as
amended through 2003). The stated policy of the Act is “to give maximum effect to
the principle of freedom of contract and to the enforceability of operating agreements
of [LLCs].” Section 53-19-65(A). This policy is reiterated in various provisions of the
Act that explicitly state that they apply “[e]xcept as provided” or “[u]nless as
otherwise provided” by the LLC’s articles of incorporation or operating agreement,
or that otherwise allow for the operating agreement to dictate aspects of the LLC’s
operation. See generally §§ 53-19-1 to -74; see, e.g., Elf Atochem N. Am., Inc. v.
Jaffari, 727 A.2d 286, 291 (Del. Super. Ct. 1999) (“The Act is replete with
fundamental provisions made subject to modification in the Agreement (e.g., unless
otherwise provided in a limited liability company agreement).” (omission, internal
quotation marks, and footnote omitted)); F. Hodge O’Neal & Robert B. Thompson,
O’Neal and Thompson’s Close Corporations and LLCs: Law and Practice § 5:1 (Rev.
3d. ed. 2013) (“There are default rules in [LLC] statute[s] or in the . . . articles of

12
organization filed with the state but most of the details about the rules for the entity
are left to the operating agreement.”).
{24} 	This general policy of deference to a New Mexico LLC’s operating agreement
is manifest in the plain text of Section 53-19-15(B), which provides that “[e]ach
manager shall have such power to manage the business or affairs of the [LLC] as the
articles of organization or an operating agreement shall provide.” It is also clearly
expressed in Section 53-19-16(D), which addresses use of LLC property by an LLC
manager:
Unless otherwise provided by the articles of organization or an operating
agreement:
. . . .
D. 	every member who is vested with particular management
responsibilities by the articles of organization or an operating agreement
and every manager shall account to the [LLC] and hold as trustee for it
any profit or benefit he derives from:
. . . .
(2) 	any use . . . of the company’s property, including
confidential or proprietary information of the [LLC] or other matters
entrusted to him as a result of his status as a member or manager unless:
(a) 	the material facts of the relationship of the
interested manager or member to the contract, transaction or use were
disclosed or known to all of the other managers or members who, in
good faith, authorized or approved the contract, transaction or use by: 1)
the affirmative vote of a majority of all of the disinterested managers; or
2) the affirmative vote of all of the disinterested members, even though

13
all of the disinterested managers were less than a majority of all of the
managers or even though all of the disinterested members did not have
a majority share of the voting power of all of the members[.]
Section 53-19-16(D)(2)(a) (emphasis added).
{25} 	The Act defines an “operating agreement” as “a written agreement providing
for the conduct of the business and affairs of [an LLC.]” Section 53-19-2(O). The
“operating agreement” is, in other words, a contract reflecting the terms governing the
LLC’s operations, as agreed to by the LLC members.
{26} 	BUKE’s Operating Agreement was entered into by its members. It contains
several provisions concerning the manager, including the following sections relied
upon by the parties:
4.1. Liability of Members. The liability of the Members shall be
limited as provided in the Act. The Members shall take no part whatever
in the control, management, direction or operation of the Company’s
affairs and shall have no power to bind the Company except when a
Member is acting as a Manager. The Manager(s) may from time to time
seek advice from the Members on major policy decisions but need not
accept such advice, and at all times the Manager(s) shall have the
exclusive right to control and manage the Company.
. . . .
4.2.1. Authority. Except to the extent otherwise provided
herein, the Manager(s) shall have the exclusive right to manage all of the
affairs of the Company.
. . . .

14
4.2.8. Prohibitions. Without the consent of a majority of the
Members, the Manager(s) shall not have the authority to:
. . . .
(c) 	possess the assets of the Company (including
any real property or personal property assets), or assign rights in the
assets of the Company, for other than a Company purpose[.]
b. 	Statutory Analysis
{27} 	“Statutory interpretation is an issue of law, which we review de novo.” N.M.
Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19,
142 N.M. 533, 168 P.3d 105. Our task is to determine and give effect to the
Legislature’s intent, looking first to the plain language of the statute and giving the
words their ordinary meaning. Marbob Energy Corp. v. N.M. Oil Conservation
Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. In this case, the relevant
text is clear.
{28} 	As noted, Section 53-19-65(A) plainly directs that the Act’s provisions are to
be construed “to give maximum effect to the principle of freedom of contract and to
the enforceability of operating agreements of [LLCs].” Just as plainly, Section 53-19-
16(D)(2) directs that its terms concerning use of LLC property by a manager do not
apply if the terms of the LLC’s articles of organization or operating agreement provide
otherwise. Here, the pertinent terms of the Operating Agreement do provide
otherwise, stating that “the Manager(s) shall have the exclusive right to manage all

15
of the affairs of the Company,” and prohibiting the manager only from “possess[ing]”
or “assign[ing]” rights in the LLC’s assets for other than a company purpose
“[w]ithout the consent of a majority of the Members[.]” (Emphasis added.) We
conclude that the statute requires that we construe the Operating Agreement as written
and thus that Eastburg’s use of the GM Badge and Credit Line was authorized if
consented to by a majority of BUKE’s members.
{29} 	The parties disagree as to whether Eastburg’s “use” of BUKE’s GM Badge and
Credit Line falls within the ambit of the Operating Agreement’s prohibition against
the manager’s “possess[ion]” or “assign[ment]” of BUKE assets “for other than a
Company purpose” unless with the consent of a majority of BUKE’s members. The
Cross Country LLCs and Cross Country Members contend that Eastburg’s “use”
neither constituted an “assignment” nor amounted to “possession” of those assets and
so was not prohibited at all by the Operating Agreement. Alternatively, they argue
BUKE failed to meet its summary judgment burden to adduce evidence sufficient to
support a reasonable inference that Eastburg lacked the consent of a majority of
BUKE members required by the Operating Agreement.
{30} 	In addition to arguing that there is a dispute of material fact on the issue of
consent, BUKE makes several arguments aiming to establish that Section 53-19-
16(D)(2)(a)’s provision requiring “the affirmative vote of a majority of all of the

16
disinterested managers” must govern the manager’s “use” of BUKE’s assets,
notwithstanding that the Operating Agreement requires only consent of a majority of
BUKE’s members for the manager to “possess” or “assign” BUKE’s assets. We are
not persuaded.
{31} 	For one thing, BUKE’s strained construction contravenes the express policy of
the Act “to give maximum effect to the principle of freedom of contract and to the
enforceability of operating agreements of [LLCs].” Section 53-19-65(A). And its
suggestion that the Act and Operating Agreement should be read to require “the
affirmative vote of a majority of all of the disinterested managers” for mere “use” of
BUKE assets by the manager, but only the consent of a majority of BUKE members
for the manager to “possess” or “assign” BUKE assets, makes no sense, as a practical
matter, or as a matter of statutory interpretation. See § 53-19-16(D)(2)(a). We see no
“irreconcilable conflict among statutory provisions[,]” any mistake or “absurdity that
the Legislature could not have intended,” or any other reason to depart from the clear
statutory mandate to enforce the Operating Agreement as written. Regents of the Univ.
of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d
1236.
{32} 	In any event, BUKE concedes that the Operating Agreement addresses the
manager’s “use” of BUKE assets, stating that it provides that “consent of a majority

17
of BUKE’s members is required to use company assets for other than a company
purpose.” Given this concession and the plain language of the Act and Operating
Agreement, BUKE’s contentions that the Act’s provision requiring an affirmative vote
of the majority of disinterested members applies because it is “more specific” and that
the Act’s default provisions apply unless “repugnant” to the Operating Agreement’s
terms fail. BUKE has not cited any persuasive authority for these arguments, and we
have found none.
{33} 	Our conclusion that the Operating Agreement controls on the facts of this case
comports with rulings in other states. See NAMA Holdings, LLC v. World Mkt. Ctr.
Venture, LLC, 948 A.2d 411, 418 n.17 (Del. Ch. 2007) (noting that an LLC agreement
can create a contractual inspection right broader or narrower than that created by
statute), aff’d, 945 A.2d 594 (Del. 2008); Lenticular Europe, LLC ex rel. Van Leeuwen
v. Cunnally, 693 N.W.2d 302, 307 (Wis. Ct. App. 2005) (noting that when provisions
in the LLC statute state that they apply unless otherwise provided in an operating
agreement, those provisions allow members of an LLC to choose to be governed by
terms that differ from those in the statute); see also Maldonado ex rel. Maldonado v.
SmithKline Beecham Corp., 841 F. Supp. 2d 890, 894 (E.D. Pa. 2011) (holding that
the statutory default provision requiring that an LLC’s management shall be vested
in its members does not apply where the operating agreement provided otherwise);

18
Overhoff v. Scarp, Inc., 812 N.Y.S.2d 809, 818-19 (Sup. Ct. 2005) (holding that the
operating agreement’s quorum terms superseded statutory requirements); Phillip L.
Jelsma and Pamela Everett Nollkamper, The Limited Liability Company § 1:10 (2013)
(stating that one of the primary benefits of an LLC is that it “is a highly flexible
entity”).
c. 	Summary Judgment on Eastburg’s Authority Issue Was Proper
{34} 	BUKE contends that Eastburg failed to inform and concealed from BUKE’s
members his use of the GM Badge and Credit Line to benefit the Cross Country LLCs
and Cross Country Members; failed to obtain the requisite authority from BUKE’s
members; and that this “means that Eastburg’s use of BUKE’s credentials and credit
line was unauthorized.” Having determined as a matter of law that Eastburg’s actions
were authorized if he had the consent of a majority of BUKE’s members as required
by the Operating Agreement, we consider whether the summary judgment record
supports the district court’s rulings in favor of the Cross Country LLCs and Cross
Country Members on the consent issue.
{35} 	We frame the analysis. Our task is to interpret and apply the terms of BUKE’s
Operating Agreement as written; we may not rewrite the contract the members made
for themselves. See CC Hous. Corp. v. Ryder Truck Rental, Inc., 1987-NMSC-117,
¶ 6, 106 N.M. 577, 746 P.2d 1109 (“When discerning the purpose, meaning, and

19
intent of the parties to a contract, the court’s duty is confined to interpreting the
contract that the parties made for themselves, and absent any ambiguity, the court may
not alter or fabricate a new agreement for the parties.”); see also W. Farm Bureau Ins.
Co. v. Carter, 1999-NMSC-012, ¶ 4, 127 N.M. 186, 979 P.2d 231 (noting that
contract interpretation is a matter of law reviewed de novo).
{36} 	Unlike Section 53-19-16(D), which the members chose not to adopt, BUKE’s
Operating Agreement provides no specific requirements by which a manager must
obtain member consent, such as prior, written, or express consent; nor can we read any
such requirement into the Operating Agreement, where BUKE has presented no
evidence that its members intended to include it. See Espinoza v. Town of Taos, 1995-
NMSC-070, ¶ 15, 120 N.M. 680, 905 P.2d 718 (“We will not read into a contract
conditions not intended by the parties.”). We therefore apply the Operating
Agreement’s requirement that a majority of BUKE’s members “consent” using the
ordinary meaning of the word. See Crownover v. Nat’l Farmers Union Prop. & Cas.
Co., 1983-NMSC-099, ¶ 16, 100 N.M. 568, 673 P.2d 1301 (“Absent express language
to the contrary, a court should apply the every day meaning in interpreting the terms
of a contract.”). Without any modifier, “consent” simply means “[a]greement,
approval, or permission as to some act or purpose,” which can be inferred. See Black’s
Law Dictionary 346 (9th ed. 2009); Webster’s II New College Dictionary 240 (1995)

20
(defining consent, in part, as “[v]oluntary allowance of what is planned or done by
another”); c.f. Kilpatrick v. Motor Ins. Corp., 1977-NMSC-019, ¶ 13, 90 N.M. 199,
561 P.2d 471 (noting that when an automobile insurance policy requires that
permission of the named insured must be obtained for another to use the vehicle, and
that the person granted permission to use the vehicle must act within the scope of that
permission, permission may be implied from the conduct of the insured, including the
insured’s lack of objection); Jessen v. Nat’l Excess Ins. Co., 1989-NMSC-040, 108
N.M. 625, 776 P.2d 1244 (stating that under New Mexico law, ratification may be
inferred by a principal’s acquiescence in the results of an unauthorized act of an
agent), abrogated on other grounds as recognized by Teague-Strebeck Motors, Inc.
v. Chrysler Ins. Co., 1999-NMSC-109, 127 N.M. 603, 985 P.2d 1183; Ulibarri
Landscaping Material, Inc. v. Colony Materials, Inc., 1981-NMCA-148, ¶ 15, 97
N.M. 266, 639 P.2d 75 (“One may infer affirmance by a principal of an unauthorized
transaction of its agent from the principal’s failure to repudiate it.”). The parties do not
dispute that the question whether there is a “majority” of BUKE’s members is
determined using the ownership percentages of each member.
{37} 	The Cross Country LLCs and Cross Country Members cite the following
undisputed facts in support of their prima facie contention that Eastburg used the GM
Badge and Credit Line with the consent of a majority of BUKE’s members. See

21
Romero, 2010-NMSC-035, ¶ 10 (stating that a summary judgment movant meets its
“initial burden of establishing a prima facie case” when it presents “such evidence as
is sufficient in law to raise a presumption of fact or establish the fact in question
unless rebutted” (internal quotation marks and citation omitted)).
{38} 	When BUKE selected Eastburg as its manager, BUKE’s other members knew
that Eastburg already operated and would continue to operate the Cross Country
LLCs. After Eastburg became BUKE’s manager, BUKE adopted the “Cross Country
Auto Sales” name for its Tucumcari dealership. Eastburg spoke openly to the media
about the relationship between the Tucumcari, Albuquerque, and Lovington Cross
Country LLC dealerships, including the fact that he was moving inventory among the
different dealerships. For example, Eastburg’s interview for the 2007 New Mexico
Business Weekly article makes clear that Eastburg was using the GM Badge and
Credit Line to purchase vehicles for the Cross Country LLCs. BUKE itself posted the
Business Weekly article on its website.
{39} 	In addition, BUKE’s staff and the Cross Country LLCs’ bank were aware of
Eastburg’s use of BUKE’s GM Badge and Credit Line for the Albuquerque Cross
Country LLCs, and BUKE’s staff even helped implement the arrangement. Moreover,
all of BUKE’s members, except for Branch, were also owners of the Lovington
Dealership, and Eastburg used BUKE’s GM Badge to benefit that dealership as well.

22
Finally, none of BUKE’s members objected to Eastburg’s use of the GM Badge and
Credit Line for three years, until Branch discovered that BUKE was late making
payments on the Credit Line.
{40} 	This undisputed evidence establishes that Eastburg never concealed his
intention to use the GM Badge and Credit Line to purchase vehicles for the Cross
Country LLCs; that members within BUKE, including Karger, knew of Eastburg’s
intention, and that Eastburg’s use of the GM Badge and Credit Line for this purpose
was made public, including by the posting of Eastburg’s interview on BUKE’s own
website. This evidence, in conjunction with the facts that for three years none of
BUKE’s members objected, and that Karger and Urlacher also benefitted from the
same arrangement in their capacity as owners of the Lovington Dealership during that
time, is sufficient to establish a presumption of fact (i.e., a prima facie case) that a
majority of BUKE’s members (Eastburg (32.5%), Urlacher (32.5%), and Karger
(15%)) consented to Eastburg’s use of the GM Badge and Credit Line to purchase
vehicles for the Cross Country LLCs. As a result, the burden shifted to BUKE “to
demonstrate the existence of specific evidentiary facts which would require trial on
the merits.” Id. (internal quotation marks and citation omitted). BUKE failed to meet
that burden.

23
{41} 	The only direct evidence relied upon by BUKE to support its contention that
Eastburg lacked the requisite consent is Branch’s deposition testimony that he did not
know about or consent to Eastburg’s use of the GM Badge and Credit Line to
purchase vehicles for the Cross Country LLCs. BUKE presented no affidavit or
deposition testimony from Urlacher. Instead, it simply asserts that we should infer that
Urlacher did not consent from Branch’s testimony that Branch did not know or
consent, and Eastburg’s testimony that he did not remember having a conversation
with either Branch or Urlacher about using the GM Badge and Credit Line for the
Cross Country LLCs. BUKE does not address the fact that Urlacher (unlike Branch)
was an owner of the Lovington Dealership, which also benefitted from Eastburg’s use
of the GM Badge and Credit Line. Nor does BUKE attempt to rebut the evidence that
Eastburg’s use of these assets for three years was open and even publicized, including
in an article posted on BUKE’s own website.
{42} 	As to Karger, BUKE’s own evidence confirms that he knew, beginning in 2006,
about Eastburg’s use of the GM Badge to purchase vehicles for the Cross Country
LLCs and did not object. Although the parties dispute whether Eastburg told Karger
that he would pay BUKE $500 for each vehicle bought at a closed GM auction, the
dispute is immaterial. Even assuming that Karger (15%) consented only because of
Eastburg’s alleged promise to pay $500 per vehicle, BUKE has set forth no specific

24
evidentiary facts to demonstrate that Eastburg (32.5%) and Urlacher (32.5%), who
together hold a majority ownership interest in BUKE, did not consent.
{43} 	In sum, the specific evidentiary facts proffered by BUKE are insufficient to
support a reasonable inference that Eastburg lacked the consent of a majority of
BUKE’s members to use BUKE’s assets as he did. See id. (explaining that non-
movant “may not simply argue that such evidentiary facts might exist,” but “must
adduce evidence to justify a trial on the issues[,]” which in turn “must result in
reasonable inferences” and that “[a]n inference is not a supposition or a conjecture,
but is a logical deduction from facts proved and guess work is not a substitute
therefor” (alteration, internal quotation marks, and citations omitted)); Muse v. Muse,
2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“[A]rguments of counsel are
not evidence.”).
{44} 	In view of the foregoing, we affirm the district court’s rulings granting
summary judgment in favor of the Cross Country LLCs and Cross Country Members
on their summary judgment motion and denying BUKE’s motion for partial summary
judgment premised on the same factual issue.
2. 	The District Court Properly Granted Summary Judgment Dismissing
BUKE’s Unjust Enrichment Claim Against the Cross Country Members
{45} 	A plaintiff claiming unjust enrichment must show that “(1) another has been
knowingly benefitted at one’s expense (2) in a manner such that allowance of the

25
other to retain the benefit would be unjust.” Ontiveros Insulation Co. v. Sanchez,
2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695.
{46} 	BUKE’s unjust enrichment claim against the Cross Country Members is
premised solely on the Members’ receipt of profits and distributions from the Cross
Country LLCs and BUKE’s contention that Eastburg used BUKE’s GM Badge and
Credit Line without the requisite consent. BUKE does not contend and has not shown
that the distributions themselves were wrongful. To the contrary, BUKE takes pains
to point out that distributions to members are required by the Act, as they are by
Section 3.2 of the Operating Agreement. Nor has BUKE shown that the Cross Country
Members engaged in any unlawful conduct. According to BUKE, the Cross Country
Members’ “receipt of the benefits from the use of BUKE assets was unjust because
Eastburg lacked the authority to use the [GM] credentials and GMAC credit line for
the [Cross Country LLCs].”
{47} 	The Cross Country Members have made numerous arguments in defense of the
district court’s ruling in their favor, citing law limiting the personal liability of LLC
members for the debts and obligations of the company, including the protections
provided in Section 53-19-13 (“No member or manager of a limited liability company
. . . shall be obligated personally for any debt, obligation or liability of the limited
liability company solely by reason of being a member or manager of the limited

26
liability company[.]”) and by the doctrine of “piercing the corporate veil,” the
requirements of which BUKE has conceded it cannot meet. We need not address the
Cross Country Members’ various arguments.
{48} 	Given BUKE’s stated basis for its unjust enrichment claim, the issue presented
is resolved by our conclusion that the only reasonable inference to be drawn from the
undisputed facts is that a majority of BUKE’s members consented to Eastburg’s use
of BUKE’s assets; that is, Eastburg’s challenged use of BUKE’s assets was not
unauthorized, and any profits or distributions the Cross Country Members received
from the Cross Country LLCs were not unjustly retained. The district court’s entry of
summary judgment dismissing the unjust enrichment claim was correct.
C. 	The District Court Properly Entered Summary Judgment Dismissing
BUKE’s Claims Against the Accountants
{49} 	BUKE contends that the district court erred when it granted summary judgment
on its accountant malpractice claim because BUKE did not present expert testimony
to support it. BUKE argues that the facts it presented on summary judgment
demonstrate that Perner’s alleged malpractice presents a conflict of interest so obvious
that it falls within the common knowledge of lay jurors. We must address whether
expert testimony is necessary to establish an accountant malpractice claim based on
an accountant’s alleged conflict of interest.

27
{50} 	Generally, a plaintiff must prove the following elements to prevail on a claim
for professional malpractice based on negligence: “(1) the employment of the
defendant [professional]; (2) the defendant [professional’s] neglect of a reasonable
duty; and (3) the negligence resulted in and was the proximate cause of loss to the
plaintiff.” Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 1993-
NMCA-008, ¶ 9, 115 N.M. 159, 848 P.2d 1086. Professional malpractice based upon
breach of duty concerns violations of a standard of conduct. See Spencer v. Barber,
2013-NMSC-010, ¶ 17, 299 P.3d 388. “Proof of the standard of conduct is necessary
to maintain an action for malpractice.” Id. The standard of conduct in a professional
negligence case “is measured by the duty to apply the knowledge, care, and skill of
reasonably well-qualified professionals practicing under similar circumstances.”
Adobe Masters, Inc. v. Downey, 1994-NMSC-101, ¶ 3, 118 N.M. 547, 883 P.2d 133.
{51} 	Expert testimony is generally necessary to explain the applicable standard of
conduct, and a plaintiff’s failure to present expert testimony to support a professional
malpractice claim is usually fatal. See Cervantes v. Forbis, 1964-NMSC-022, ¶ 12,
73 N.M. 445, 389 P.2d 210, modified on other grounds by Pharmaseal Labs., Inc. v.
Goffe, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589; First Nat’l Bank of Clovis v.
Diane, Inc., 1985-NMCA-025, ¶ 24, 102 N.M. 548, 698 P.2d 5 (“To establish
malpractice, testimony of another attorney as to the applicable standards of practicing

28
attorneys is generally necessary.”). “However, if negligence can be determined by
resort to common knowledge ordinarily possessed by an average person, expert
testimony as to standards of [conduct] is not essential.” Pharmaseal Labs., 1977-
NMSC-071, ¶ 17; see Adobe Masters, 1994-NMSC-101, ¶ 9 (“In professional
negligence cases, both breach of the implied warranty to use reasonable skill under
contract law and negligence resulting in a finding of malpractice must be proved by
expert testimony unless the case is one where exceptional circumstances within the
common experience or knowledge of a layman are present.”); Walters v. Hastings,
1972-NMSC-054, ¶ 40, 84 N.M. 101, 500 P.2d 186 (“[C]ases may arise in which the
asserted shortcomings of the attorney are such that they may be recognized or inferred
from the common knowledge or experience of laymen.”).
{52} 	Under this exception, our courts have determined that expert testimony was not
necessary in several medical malpractice cases that posed exceptional circumstances.
For example, our courts did not require expert testimony in a case where a
chiropractor fractured several of his patient’s ribs while performing an adjustment,
Mascarenas v. Gonzales, 1972-NMCA-062, ¶¶ 3, 13, 83 N.M. 749, 497 P.2d 751;
where a physician jerked a tube from a patient’s nose so forcefully it caused a balloon
filled with mercury to rupture into the patient’s lungs, Pharmaseal Labs., 1977-
NMSC-071, ¶¶ 6, 17-20; where a physician fractured his patient’s femur inserting a

29
metal pin during an operation then left the pin partially protruding from the bone into
the soft tissue of the patient’s leg, Eis v. Chesnut, 1981-NMCA-040, ¶¶ 3, 9-10, 96
N.M. 45, 627 P.2d 1244; or where a physician performed five breast implant
operations on a patient, after which the implant was not even in “the general vicinity”
of where it should have been, Toppino v. Herhahn, 1983-NMSC-079, ¶¶ 7-8, 15, 100
N.M. 564, 673 P.2d 1297. In each of those cases, the appellate courts concluded it
would not be unreasonable for a layperson to understand from the facts adduced that
the defendant physicians may have committed professional negligence, a decision to
be made by the fact finder or jury. Similarly, courts in other states have observed that
expert testimony was not necessary to establish professional malpractice where an
attorney missed deadlines or stole client funds, Meyer v. Dygert, 156 F. Supp. 2d
1081, 1091 (D. Minn. 2001), or in cases where an attorney failed to appear in court
on his client’s behalf, notify a client of termination of employment, inform a client of
a settlement offer, follow a client’s instructions and adequately insulate it from
creditors, or file an action within the statute of limitations, Wastvedt v. Vaaler, 430
N.W.2d 561, 565 (N.D. 1988).
{53} 	We have not previously extended to accountant malpractice cases the principles
we apply to physicians, attorneys, and architects concerning the necessity for expert
testimony. However, the parties do not argue, and we do not see any reason why we

30
should not do so now. See, e.g., Rino v. Mead, 55 P.3d 13, 19 (Wyo. 2002);
Kemmerlin v. Wingate, 261 S.E.2d 50, 51 (S.C. 1979) (noting that standard of care for
accountants is the same as for doctors and other professionals, and since that area is
beyond the realm of ordinary lay knowledge, expert testimony is usually necessary to
establish the standard of care and the defendant’s departure therefrom). Accordingly,
we hold that the same principles that govern the necessity for expert testimony in
other kinds of professional malpractice cases apply to accountant malpractice cases.
{54} 	BUKE argues that it has presented undisputed evidence demonstrating that
Perner’s breach of the applicable standard of care is so obvious that an expert is not
necessary in this case. BUKE asserts that “[l]oyalty and betrayal are not obscure
concepts” and every person who has been “double-crossed” can understand the
divided loyalties Perner faced. In particular, BUKE claims Perner breached his duty
in two instances. First, BUKE argues that Perner should have declined to perform
work for BUKE because he should have known that accepting the engagement would
result in a conflict between BUKE’s interests and those of the Cross Country LLCs.
Second, BUKE contends that, during the August 2008 meeting with Branch and
Perner, Perner should have voluntarily told Branch that cars listed on BUKE’s
inventory were on the Cross Country LLCs’ lots, that several of those cars were not
yet paid for, and that the Credit Line was “out of trust” and “subject to call,” even

31
though he had previously disclosed those facts in the RFS he provided to Eastburg on
behalf of BUKE. BUKE concludes that we should infer from these facts that Perner
faced a conflict of interest between BUKE and his “professional obligations” to the
Cross Country LLCs, “which made it awkward, at a minimum, to disclose information
to BUKE adverse to the interests of his pre-existing clients.” BUKE further claims
that Perner faced a conflict involving self-interest because Perner had become
business partners with Eastburg and several of the Cross Country LLC Members in
a new business venture and because Perner was to be paid $16,000 for the BUKE RFS
and 	full 	disclosure 	to 	Branch 	might 	mean 	BUKE 	would 	terminate 	Perner’s
engagement. By not volunteering information to Branch at the August 2008 meeting,
BUKE asserts that it is obvious that Perner “played” Branch and protected the Cross
Country LLCs, the Cross Country Members, and his own interests to the detriment of
BUKE.
{55} 	In our view, this case does not present the type of exceptional circumstances
that obviate the need for expert testimony. We note that, in general, expert testimony
is necessary to establish a professional negligence claim based on an alleged conflict
of interest. See Meyer, 156 F. Supp. 2d. at 1091 (holding that conflict of interest
claims involve information that is not within the common knowledge of the jury); see
also Geiserman v. MacDonald, 893 F.2d 787, 793-94 (5th Cir. 1990) (holding that a

32
malpractice claim premised on alleged conflict of interest or breach of fiduciary duty
requires expert testimony); Meller v. Bartlett, 580 A.2d 484, 485 (Vt. 1990) (holding
that lack of expert testimony was fatal to claims of conflict of interest, failure to
account, and unauthorized hiring of another attorney). Here, Perner was hired to
prepare tax returns and an RFS for BUKE, a car dealership owned by an LLC. At the
time BUKE hired Perner to do its tax returns and RFS, Perner had previously prepared
tax returns for the Cross Country LLCs. We do not believe that an average person
would commonly know whether or how a conflict of interest might arise when an
accountant prepares tax returns for similar businesses. An average person also would
not know what information a reasonable accountant would discover in preparing a
business’s tax returns or RFS, whether a reasonable accountant in Perner’s position
would have necessarily discovered Eastburg’s allegedly wrongful conduct in the scope
of his work, whether a reasonable accountant should investigate any possible
wrongdoing discovered within the course of the work to be performed, and what form
any subsequent report of that investigation would take. To this end, an average person
would not know whether a reasonably well-qualified accountant would verbally
disclose in a meeting with a passive minority member of an LLC client the same items
the accountant previously disclosed in a written RFS it provided to the LLC’s
managing member. Further, although this case is a conflict of interest case and BUKE

33
does not question Perner’s execution of specific accounting duties, the case is rife with
questions related to the particular technical tasks involved in accounting, such as what
an RFS is, how an accountant prepares an RFS or a business’s tax returns, what a
credit line is, and what it means if the credit line is “out of trust.” None of these items
falls under the common knowledge of an average person. In short, we conclude that
this is precisely the kind of case in which expert testimony is necessary. See, e.g.,
Brown-Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209, 218 (Minn. 2007)
(holding that, to survive a motion for directed verdict in an accountant malpractice
case, a plaintiff must present expert testimony identifying the applicable standard of
care and opine that the accountant deviated from that standard and that the departure
caused the plaintiff’s damages); Gertler v. Sol Masch & Co., 835 N.Y.S.2d 178, 179
(App. Div. 2007) (upholding grant of directed verdict in accounting malpractice claim
because 	there 	was 	no 	expert 	testimony 	to 	establish 	applicable 	standards 	of
professional practice); Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d
170, 185 (Tex. Ct. App. 1987) (emphasizing that expert testimony is usually necessary
to establish the requisite standard of care and skill, a departure from that standard, and
causation in an accountant malpractice case).
{56} 	To the extent BUKE relies on Spencer to support that it does not need expert
testimony in this case, that argument is unavailing. In Spencer, our Supreme Court

34
held that the Rules of Professional Conduct may be used to “illustrate the standard of
conduct expected of a lawyer when confronted with a conflict of interest.” 2013-
NMSC-010, ¶ 18. Our Supreme Court determined that “although the Rules of
Professional Conduct cannot be used as a basis for civil liability, the rules may be
used to explain [a party’s] professional obligations to [another.]” Id. ¶ 19. The issue
that case addressed was “whether the duties a lawyer owes wrongful death statutory
beneficiaries are governed, in whole or in part, by the Rules of Professional
Conduct[.]” Id. ¶ 4 (alteration, internal quotation marks, and citation omitted).
However, our Supreme Court in Spencer did not address whether expert testimony
would ultimately be necessary to establish a professional malpractice claim based on
an alleged conflict of interest. Rather, our Supreme Court explicitly noted that the
question of whether a professional “conformed to the standard of conduct required by
the Rules of Professional Conduct will depend on the evidence introduced at trial.” Id.
¶ 19.
{57} 	Here, although citation to the applicable conflict of interest provisions of the
code of professional conduct for accountants may help illustrate the standard of care
for an accountant in a conflict of interest case, see 16.60.5.12 NMAC (01/01/2007),
expert testimony is nevertheless required to inform the fact finder what is considered
a conflict of interest under the code, and to resolve whether Perner’s alleged actions

35
violated it. See, e.g., Nw. Life Ins. Co. v. Rogers, 573 N.E.2d 159, 163-64 (Ohio Ct.
App. 1989) (“Because of the very nature and complexity of the Code of Professional
Responsibility and the conduct of legal matters, expert testimony is required to
support [malpractice] allegations except in those cases which are so patently obvious
as to negate this requirement.”); cf. Lumbermens Mut. Cas. Co. v. Thornton, 92
S.W.3d 259, 268 (Mo. Ct. App. 2002) (noting that, in accountant malpractice cases,
the meaning of auditing standards and their application to the facts of the case is a
question of fact to be determined with the aid of expert testimony).
{58} 	We hold that, in a professional malpractice case based on an accountant’s
purported conflict of interest, expert testimony is necessary to establish the applicable
standard of conduct, unless exceptional circumstances make the alleged breach so
obvious that it falls within the common knowledge of an average layperson. BUKE
failed to prove that such exceptional circumstances exist. Because expert testimony
was 	required 	to 	establish 	the 	applicable 	standards 	of 	conduct 	regarding 	an
accountant’s conflict of interest, and BUKE provided none, we affirm the district
court’s grant of summary judgment on the accountant malpractice claim.
D. 	The District Court Did Not Abuse Its Discretion in Denying BUKE’s
Motion to Amend the Scheduling Order
{59} 	BUKE contends that the district court abused its discretion in denying its
motion to amend the scheduling order to permit BUKE to designate an expert witness.

36
{60} 	The original complaint was filed in June 2009. In September 2010, the district
court entered a scheduling order setting a deadline of April 2011 for BUKE to file and
serve its expert witness disclosure and setting a trial date in December 2011. BUKE
moved to amend its complaint in December 2010, and filed it in February 2011,
adding the Accountants as parties and asserting a claim against them for professional
malpractice. Approximately two weeks after filing the amended complaint, BUKE
filed a stipulated notice extending BUKE’s expert witness disclosure deadline to May
2011. BUKE did not designate an accountant malpractice expert witness (or any
expert witness) during that time or seek additional time to do so.
{61} 	The amendment of the complaint led to a series of recusals and peremptory
challenges, and the case was finally assigned to a district judge in May 2011. BUKE
deposed Perner in August 2011. BUKE claims that it first requested an additional
extension of time to designate expert witnesses at a scheduling conference in
September 2011, but the conference was unrecorded, and there is no evidence to
support BUKE’s contention.
{62} 	BUKE did not file a motion to modify the scheduling order until December
2011. The motion asserted that good cause existed to “conduct limited but necessary
discovery, to file dispositive motions, and to prepare and file a pretrial order.” The
motion did not specifically request that the expert deadline be extended, although a

37
proposed amended scheduling order, attached as an exhibit, provided an extended
expert disclosure deadline. At a March 2012 hearing, the district court reset the trial
date to July 2012 and granted additional time to conduct limited discovery. The court
did not, however, extend the expert disclosure deadline, stating that it was “just too
late” to do so. BUKE challenges that ruling. We review for an abuse of discretion,
which “occurs when the [district] court’s ruling is against the facts, logic, and
circumstances of the case or is untenable or unjustified by reason.” Reaves, 1999-
NMCA-075, ¶ 13.
{63} 	“A scheduling order shall not be modified except by order of the court upon a
showing of good cause.” Rule 1-016(B) NMRA. “We will not interfere with the
[district] court’s enforcement of pretrial deadlines. Adherence to such scheduling
orders [is] critical in maintaining the integrity of judicial proceedings.” Reaves, 1999-
NMCA-075, ¶ 28 (alteration, internal quotation marks, and citation omitted).
{64} 	We cannot say that the district court abused its discretion when it refused to
amend the scheduling order to allow BUKE to designate an expert witness. BUKE
filed its motion approximately ten months after it filed its claims against the
Accountants, eight months after the original scheduling order deadline for designating
witnesses, and seven months after the previously granted extension to that deadline
had expired. The motion did not specifically request an extension on the expert

38
disclosure deadline. Moreover, BUKE never identified any expert witness and does
not say that it had actually retained an expert witness by the time the district court
heard its motion, although it had to have known that it needed to have expert
testimony to support the accountant malpractice claim asserted in the amended
complaint. See id. ¶ 27.
{65} 	Accordingly, the district court did not abuse its discretion in denying BUKE’s
request to amend the scheduling order to allow it to designate an expert witness for
its accounting malpractice claim.
III. 	CONCLUSION
{66} 	For the reasons set forth above, we affirm the district court in all respects.
{67} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
RODERICK T. KENNEDY, Chief Judge
_________________________________
JONATHAN B. SUTIN, Judge