N.M. R. Civ. P. Dist. Ct. 1-017
N.M. R. Civ. P. Dist. Ct. 1-017
Committee commentary. -
2014 amendment
NMSA 1978, Section 41-2-3 provides that an action for wrongful death brought under NMSA 1978, Section 41-2-1 "shall be brought by and in the name of the personal representative of the deceased person." The Court of Appeals has ruled that the personal representative referenced in Section 41-2-3 is distinguishable from the personal representative of the estate of the deceased as defined in the Probate Code. See In re Estate of Sumler, 2003-NMCA-030, ¶ 8, 133 N.M. 319, 62 P.3d 776 ("[I]t is improper to equate a personal representative under the Wrongful Death Act with a personal representative as defined by the Probate Code."). To maintain the distinction between a traditional personal representative and one appointed to maintain a wrongful death action, Paragraph B now provides that only a personal representative appointed by the district court may bring a wrongful death action. A personal representative as defined by the Probate Code may seek appointment from the district court under Section 41-2-3 as the personal representative for the purpose of filing and maintaining a wrongful death action under Section 41-2-1.
Paragraph B also provides that the person seeking to become the personal representative may petition the court for appointment either before the filing of the wrongful death action or in the wrongful death action itself. See In re Estate of Sumler, 2003-NMCA-030, ¶ 10 n.1 ("[W]e see no reason why a petition for appointment of a Section 41-2-3 personal representative may not be brought with the wrongful death action itself, assuming that all necessary parties are subject to joinder in the forum where the wrongful death action is brought." (internal citations omitted)). Failure to appoint a personal representative before the filing of a wrongful death action is not a jurisdictional defect and, under proper circumstances, may be accomplished after the action is filed. See Chavez v. Regents of University of New Mexico, 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.
2016 amendment
Paragraph E of this rule provides additional protections to consumers in consumer debt collection cases. See Comment to Rule 1-009 NMRA. Paragraph (E)(2)'s affidavit requirements derive from Rule 1-056(E) NMRA. A proper affidavit can support the introduction of business records. See Nader v. Blair, 549 F.3d 953, 963 (4th Cir. 2008) (stating that "employees who are familiar with the record-keeping practices of a business are qualified to speak from personal knowledge that particular documents are admissible business records, and affidavits sworn by such employees constitute appropriate summary judgment evidence."). In like manner, an affidavit from the "custodian or another qualified witness" or "a certification that complies with Rule 11-902(11) or (12) NMRA" that demonstrates compliance with Rule 11-803(6) NMRA suffice, if the business records accompany the affidavit or certification.
The business records exception allows the records themselves to be admissible but not simply statements about the purported contents of the records. See State v. Cofer, 2011-NMCA-085, ¶ 17, 150 N.M. 483, 261 P.3d 1115 (holding that, based on the plain language of Rule 11-803(F) NMRA (2007) (now Rule 11-803(6) NMRA), "it is clear that the business records exception requires some form of document that satisfies the rule's foundational elements to be offered and admitted into evidence and that testimony alone does not qualify under this exception to the hearsay rule," and concluding that "testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay") (internal quotation marks and citation omitted); Bank of New York v. Romero, 2014-NMSC-007, ¶ 33, 320 P.3d 1.
[Adopted by Supreme Court Order No. 14-8300-010, effective for all cases pending or filed on or after December 31, 2014; as amended by Supreme Court Order No. 16-8300-031, effective for all cases pending or filed on or after July 1, 2017; as amended by Supreme Court Order No. 17-8300-022, effective for all cases pending or filed on or after December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-022, effective December 31, 2017, made technical changes to the committee commentary. The 2016 amendment, approved by Supreme Court Order No. 16-8300-031, effective July 1, 2017, provided new procedures for consumer debt claims, made certain stylistic changes, and revised the committee commentary; in Paragraph B, after "wrongful death brought", deleted "pursuant to" and added "under"; in Paragraph D, after "shall make", deleted "such" and added "any"; in Paragraph E, in the heading, deleted "Collection agencies" and added "Consumer debt claims", added the subparagraph designation "(1)"; in Subparagraph E(1), after "licensed attorney-at-law", added "and further provided that the collection agency must plead specific facts in its initial pleading demonstrating that it is the real party in interest."; and added Subparagraph E(2). The 2014 amendment, approved by Supreme Court Order No. 14-8300-010, effective December 31, 2014, required that wrongful death actions be brought by the personal representative appointed by the district court; and added Paragraph B. The 1997 amendment, effective January 1, 1997, added Paragraph D and made gender neutral changes in Paragraphs A and C.
For service of process on insane or incompetent person, see Section 38-1-12 NMSA 1978. For suit by or against partners, see Section 38-4-5 NMSA 1978. For suits by or against infants, see Sections 38-4-7 to 38-4-13 NMSA 1978. For suits by or against incapacitated persons, see Sections 38-4-14 to 38-4-17 NMSA 1978. For provision for appointment of guardian ad litem for insane spouse sued in divorce action, see Section 40-4-10 NMSA 1978. For prosecution of ejectment suit, see Section 42-4-4 NMSA 1978. For prosecution of quiet title suit by committee when there are numerous claimants, see Section 42-6-3 NMSA 1978. For provisions of Probate Code relating to protection of persons under disability and their property, see Sections 45-5-101 to 45-5-436 NMSA 1978. For right of certain unincorporated associations to sue or be sued, see Sections 53-10-5, 53-10-6 NMSA 1978. For right of collection agencies to take assignments as real parties in interest, see Section 61-18A-26 NMSA 1978. For capacity of parties in magistrate court, see Rule 2-401 NMRA. Compiler's notes. - Paragraph A is deemed to have superseded 105-103 and 105-104, C.S. 1929, which were substantially the same. Paragraph C is deemed to have superseded 105-202, C.S. 1929, relating to suits brought by infants' next friend, 105-205, C.S. 1929, relating to appointment of guardian for defendant, 85-302, C.S. 1929, relating to commencement and prosecution of suit against insane or incompetent person and 85-303, C.S. 1929, relating to appointment of guardian ad litem for insane or incompetent defendant. I. GENERAL CONSIDERATION. No standing based on economic injury. - Where plaintiffs alleged purely economic interests that would be harmed by a ban on cockfighting, including reduced gross receipts, loss of employees, and a threat to the viability of their businesses, plaintiffs had no standing to challenge the constitutionality of 30-18-1 NMSA 1978 because the constitution does not protect plaintiffs' right to engage in particular business activities so as to avoid economic loss. New Mexico Gamefowl Assn., Inc. v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67. No standing based on spectator interest in cockfighting. - Where plaintiffs alleged past attendance at cockfights and that the ban on cockfighting would prevent them from future attendance at events plaintiffs considered to be an aspect of cultural expression, plaintiffs had no standing to challenge the constitutionality of 30-18-1 NMSA 1978 because there is no credible threat of prosecution related to mere attendance at cockfighting. New Mexico Gamefowl Assn., Inc. v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67. No third party standing. - Where plaintiffs alleged past attendance at cockfights and that the ban on cockfighting would prevent them from future attendance at events plaintiffs considered to be an aspect of cultural expression and alleged that persons who intend to participate in cockfighting would be injured, but provided no reason why a person who has violated 30-18-1 NMSA 1978 cannot challenge the constitutionality of the statute, plaintiffs had no third-party standing to challenge the constitutionality of Section 30-18-1. New Mexico Gamefowl Assn., Inc. v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67. Associational standing. - Where members of the plaintiff association owned and equipped cocks for the purpose of fighting; the purpose of the association was to keep cockfighting legal; and the association's remedy to have the ban on cockfighting declared unconstitutional addressed the injury claimed by the entire membership of the association, the association had associational standing to challenge the constitutionality of Section 30-18-1 NMSA 1978. New Mexico Gamefowl Assn., Inc. v. State of N.M. ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67. Standing doctrine is not derived from the state constitution and is not jurisdictional. American Civil Liberties Union of N.M. v. City of Albuquerque, 2008-NMSC-045, 144 N.M. 471, 188 P.3d 1222, aff'g 2007-NMCA-092, 142 N.M. 259, 164 P.3d 958. Traditional standing jurisprudence affirmed. - The court will not depart from the traditional standing analysis that requires a showing of injury in fact, causation, and redressability. American Civil Liberties Union of N.M. v. City of Albuquerque, 2008-NMSC-045, 144 N.M. 471, 188 P.3d 1222, aff'g 2007-NMCA-092, 142 N.M. 259, 164 P.3d 958. Law reviews. - For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962). For note commenting on Safeco Ins. Co. of America v. United States Fid. & Guar. Co., 101 N.M. 148, 679 P.2d 816 (1984), see 16 N.M.L. Rev. 119 (1986). Am. Jur. 2d, A.L.R. and C.J.S. references. - 6 Am. Jur. 2d Assignments §§62, 181 to 185; 6 Am. Jur. 2d Associations and Clubs §§49, 53; 8 Am. Jur. 2d Automobiles and Highway Traffic §§1105, 1107 to 1109; 14 Am. Jur. 2d Carriers §1135; 17A Am. Jur. 2d Contracts §§425, 464; 18 Am. Jur. 2d Cooperative Associations §§3, 53; 18B Am. Jur. 2d Corporations §1288; 36 Am. Jur. 2d Fraternal Orders and Benefit Societies §185; 41 Am. Jur. 2d Incompetent Persons §§115 to 121; 42 Am. Jur. 2d Infants §§8 to 13, 155; 59 Am. Jur. 2d Parties §1 et seq. Will, right of beneficiary to enforce contract between third persons to provide for him, 2 A.L.R. 1193, 33 A.L.R. 739, 73 A.L.R. 1395. Enforceability by purchaser of business, of covenant of third person with his vendor not to engage in similar business, 4 A.L.R. 1078, 22 A.L.R. 754. Eminent domain, wife or widow as necessary party to proceeding to condemn her husband's real property, 5 A.L.R. 1347, 101 A.L.R. 697. Right of manufacturer to enforce contract as to resale price, made by retailer with middleman, 7 A.L.R. 449, 19 A.L.R. 925, 32 A.L.R. 1087, 103 A.L.R. 1331, 125 A.L.R. 1335. Right of next friend to compensation for services rendered to infant in the litigation, 9 A.L.R. 1537. Divorce or separation, enforcement by third person as beneficiary of contract between husband and wife to prevent or end, 11 A.L.R. 287. Who may maintain action to recover back excessive freight charge, 13 A.L.R. 289. Right of assignee of aggrieved party to maintain action to recover excessive freight charges, 13 A.L.R. 298. Necessity of appointment of guardian ad litem for minor who is a party in an action for divorce or annulment of marriage, 17 A.L.R. 900. Shares of corporate stock as within statute enabling assignee to maintain action in his own name, 23 A.L.R. 1322. Mortgagee or other lienholder as entitled to maintain action against third person for damage to property, 37 A.L.R. 1120. Individual creditor's right to enforce corporate officer's liability for incurring excessive debts, 43 A.L.R. 1147. Who may maintain action to recover multiple damages against tenant committing waste, 45 A.L.R. 774. Right of third person to maintain action at law on sealed instrument, 47 A.L.R. 5, 170 A.L.R. 1299. Right of one giving trust receipt to maintain action for purchase price against one to whom he sells, 49 A.L.R. 314, 87 A.L.R. 302, 101 A.L.R. 453, 168 A.L.R. 359. Proper name in which to sue branch banks, 50 A.L.R. 1355, 136 A.L.R. 471. Suit to recover dividends wrongfully paid, or to enforce liability of directors for wrongfully declaring them, 55 A.L.R. 8, 76 A.L.R. 885, 109 A.L.R. 1381. Action on behalf of creditors to recover corporate dividends wrongfully paid, 55 A.L.R. 120, 76 A.L.R. 885, 109 A.L.R. 1381. Suit to compel payment of dividends, 55 A.L.R. 140, 76 A.L.R. 885, 109 A.L.R. 1381. Power of municipality to transfer or assign its right to enforce assessment or lien for local improvements, 55 A.L.R. 667. Right of owner to sue on fire or marine policy taken out by bailee, warehouseman or carrier, 61 A.L.R. 720. Who may enforce subscription to stock in corporation to be formed, 61 A.L.R. 1504. Right of trustees to maintain suit to administer or enforce charitable trust, 62 A.L.R. 901, 124 A.L.R. 1237. Duty of one learning of action instituted in his name without authority, 63 A.L.R. 1068. Bondholder's right to maintain action against trustee for money received by trustee to discharge bond or coupon, 64 A.L.R. 1186. Rendition of judgment against one not a formal party, who has assumed the defense, 65 A.L.R. 1134. Reassembling jury after discharge, for purpose of amendment of verdict as to parties, 66 A.L.R. 549. Right of bondholders to maintain action to prevent use by another corporation of corporate name, 66 A.L.R. 1030, 72 A.L.R.3d 8. Parties in action for breach of contract as to devise or bequest of property as compensation for services, 69 A.L.R. 104, 106 A.L.R. 742. Availability in action by third person for damages against public contractor, of provisions in contract as to care to be exercised or precautions to be taken for protection of third persons, 69 A.L.R. 522. Right of undisclosed principal to recover against telegraph company because of delay or mistake, 72 A.L.R. 1198. Who may recover indemnity granted by omnibus coverage clause in automobile liability insurance, 72 A.L.R. 1434, 106 A.L.R. 1251, 126 A.L.R. 544, 143 A.L.R. 1394. Right of person furnishing material or labor to maintain action on contractor's bond to owner or public body, or on owner's bond to mortgagee, 77 A.L.R. 21, 118 A.L.R. 57. Party plaintiff in action against partner, for profits earned subsequently to death or dissolution, 80 A.L.R. 12, 80 A.L.R. 92, 55 A.L.R.2d 1391. Right of third person to enforce contract between others for his benefit, 81 A.L.R. 1271, 148 A.L.R. 359. Inducing breach of contract, who may maintain action for, 84 A.L.R. 43, 84 A.L.R. 92, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078. Corporation paying tax wrongfully exacted on shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107. Parties plaintiff in action against indemnity or liability insurer, by injured person, under statutory or policy provisions, 85 A.L.R. 20, 106 A.L.R. 516. Who may petition for declaratory judgment, 87 A.L.R. 1243. Taxpayer's right of action for sale of bonds of municipality at less than par, in violation of statute, 91 A.L.R. 7, 162 A.L.R. 396. Proper party plaintiff in actions by reciprocal insurance association, or on behalf of it, 94 A.L.R. 851, 141 A.L.R. 765, 145 A.L.R. 1121. Right of individual employee to sue for breach of collective labor agreement, 95 A.L.R. 41. Who may enforce collective labor agreements, 95 A.L.R. 51. Proper party defendant in action for refusal of depository to deliver instrument or property placed in escrow, notwithstanding performance of conditions of delivery, 95 A.L.R. 298. Proper party plaintiff to action against tort-feasor for damages to insured property where insurer is entitled to subrogation to extent of loss paid by it, 96 A.L.R. 864, 157 A.L.R. 1242. Who may bring action to purge registration lists, 96 A.L.R. 1047. Right of creditors or stockholders of insolvent bank in charge of liquidating officer who refuses or fails to enforce liability of third persons to bank, to maintain action for that purpose, and conditions of such right, 97 A.L.R. 169, 116 A.L.R. 783. Water user as necessary or proper party to litigation involving right of ditch or canal company or irrigation of drainage district from which he takes water, 100 A.L.R. 561. Ward's right, after majority, to maintain action on contracts entered into by guardian on ward's behalf, 102 A.L.R. 269. Insurance - right of third person to sue upon promise made by beneficiary to insured to pay proceeds to third person, 102 A.L.R. 594. Removal of disability, statute providing that an insane person, minor or other person under disability may bring suit within specified time after removal of disability as affecting right to bring action before disability removed, 109 A.L.R. 954. Heir or next of kin, standing to attack gift or conveyance made by ancestor in his lifetime, as affected by will by which he is disinherited in whole or part, 112 A.L.R. 1405. Violation of statute relating to bucket-shops or bucket-shop transactions, as ground of action by customer or patron, 113 A.L.R. 853. Who may maintain action against bank directors or officers for civil liability for damages resulting from false reports or statements, 114 A.L.R. 478. Holders of mortgage or other lien upon an undivided interest in real property as a necessary or proper party to a suit for partition, 126 A.L.R. 414. Unauthorized prosecution of suit in name of another as ground of action in tort, 146 A.L.R. 1125. Right of vendee under executory contract to bring action against third person for damage to land, 151 A.L.R. 938. Right of creditors to maintain action in interest of decedent's estate, 158 A.L.R. 729. Massachusetts or business trust, 159 A.L.R. 219. Necessary and proper parties in action growing out of delay in performance of timber contract, 164 A.L.R. 461. Mortgage or lienholder as proper or necessary party to suit in respect of contract for sale of mortgaged property, 164 A.L.R. 1044. Who may enforce insurance policy containing facility of payment clause, 166 A.L.R. 28. Who may assert right of privacy, 168 A.L.R. 454, 11 A.L.R.3d 1296, 57 A.L.R.3d 16. Parties to action to enforce contract for joint, mutual or reciprocal wills, 169 A.L.R. 53. Dissolved corporation as indispensable party to stockholder's derivative action, 172 A.L.R. 691. Validity, construction and application of restrictions on right of action by individual holder of series of corporate bonds or other obligations, 174 A.L.R. 435. Representation of several claimants in action against carrier of public utility to recover overcharges, 1 A.L.R.2d 160. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576, 9 A.L.R.4th 428. Change in party after statute of limitations has run, 8 A.L.R.2d 6, 119 A.L.R. 1356. Trust beneficiaries as necessary parties to action relating to trust or its property, 9 A.L.R.2d 10. Right of third person not named in bond or other contract conditioned for support of, or services to, another, to recover thereon, 11 A.L.R.2d 1010. Validity and enforceability of contract in consideration of naming child, 21 A.L.R.2d 1061. Right of owner's employee injured by subcontractor to recovery against general contractor for breach of contract between the latter and the owner requiring contractor and subcontractors to carry insurance, 22 A.L.R.2d 647. Necessary parties defendant to action to set aside conveyance in fraud of creditors, 24 A.L.R.2d 395. Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409. Who may enforce guaranty, 41 A.L.R.2d 1213. Conflict of laws as to proper party plaintiff in contract action, 62 A.L.R.2d 486. Amendment of pleadings with respect to parties or their capacity as ground for continuance, 67 A.L.R.2d 477. Conditional vendor's or vendee's recovery against third person for damage to or destruction of property, 67 A.L.R.2d 582. Capacity of one who is mentally incompetent but not so adjudicated to sue in his own name, 71 A.L.R.2d 1247. Guardian's capacity to sue or be sued outside state where appointed, 94 A.L.R.2d 162. Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where insured has paid part of loss, 13 A.L.R.3d 140. Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where loss is entirely covered by insurance, 13 A.L.R.3d 229. Illegitimate child's right to enforce promise to support or provide for him, 20 A.L.R.3d 500. Child's right of action against third person who causes parent to desert, or otherwise neglect his parental duty, 60 A.L.R.3d 924. Right to private action under State Consumer Protection Act, 62 A.L.R.3d 169. Bailor's right of direct action against bailee's theft insurer for loss of bailed property, 64 A.L.R.3d 1207. Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148. Necessary or proper parties to suit or proceeding to establish private boundary line, 73 A.L.R.3d 948. Right in absence of express statutory authorization, of one convicted of crime and imprisoned or paroled, to prosecute civil action, 74 A.L.R.3d 680. Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618. Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93. Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112. Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669. What is "cause" justifying discharge from employment of returning serviceman reemployed under §9 of the Military Selective Service Act of 1967 (50 U.S.C. Appendix §459 ), 9 A.L.R. Fed. 225. 43 C.J.S. Infants §§ 223 to 225; 57 C.J.S. Mental Health § 254 et seq.; 67A C.J.S. Parties §§ 8 to 32, 41, 42, 88 to 111. II. REAL PARTY IN INTEREST. Effect of enumeration. - Enumeration in Subdivision (a) (see now Paragraph A) does not qualify but merely supplements the statement that the action shall be brought in the name of the real party in interest, and thus also makes those persons enumerated real parties in interest within the meaning of this rule. Iriart v. Johnson, 1965-NMSC-147, 75 N.M. 745, 411 P.2d 226. Rules construed together. - This rule must be read with Rules 18(a), 19(a) and 23(b) (see now Rules 1-018, 1-019, and 1-023.1 NMRA). Prager v. Prager, 1969-NMSC-149, 80 N.M. 773, 461 P.2d 906. New Mexico makes no distinction between necessary and indispensable parties; if a person's interests are necessarily affected by a judgment, such person is an indispensable party. State Farm Mut. Auto. Ins. Co. v. Foundation Reserve Ins. Co., 1967 -NMSC-197, 78 N.M. 359, 431 P.2d 737; see also Sellman v. Haddock, 1957-NMSC-037, 62 N.M. 391, 310 P.2d 1045. Test for real party in interest. - Whether one is the real party in interest is to be determined by whether one is the owner of the right being enforced or is in a position to discharge the defendant from the liability being asserted in the suit. State v. Barker, 1947-NMSC-010, 51 N.M. 51, 178 P.2d 401; Sellman v. Haddock, 1957-NMSC-037, 62 N.M. 391, 310 P.2d 1045; United States v. Bureau of Revenue, 1961-NMSC-126, 69 N.M. 101, 364 P.2d 356; Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757; Hall v. Teal, 1967-NMSC-111, 77 N.M. 780, 427 P.2d 662; State Farm Mut. Auto. Ins. Co. v. Foundation Reserve Ins. Co., 1967 -NMSC-197, 78 N.M. 359, 431 P.2d 737; Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55; Edwards v. Mesch, 1988-NMSC-085, 107 N.M. 704, 763 P.2d 1169; Moody v. Stribling, 1999-NMCA-094, 127 N.M. 630, 985 P.2d 1210, cert. denied, 127 N.M. 389, 981 P.2d 1207. A real party in interest is determined by whether one is the owner of the right being enforced and is in a position to discharge the defendant from the liability being asserted in the suit. L.R. Property Mgt., Inc. v. Grebe, 1981-NMSC-035, 96 N.M. 22, 627 P.2d 864; Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, overruled on other grounds by Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883. Invasion of private right prerequisite to suit. - There must be an invasion of some private right of the complaining party before he has standing to sue. State ex rel. Overton v. New Mexico State Tax Comm'n, 1969-NMSC-140, 81 N.M. 28, 462 P.2d 613. Standing to challenge constitutionality of statute. - Public officer as such does not have such interest as would entitle him to question constitutionality of a statute so as to refuse to comply with its provisions; only a person whose rights have been adversely affected has right to attack constitutionality of an act of the legislature. State ex rel. Overton v. New Mexico State Tax Comm'n, 1969-NMSC-140, 81 N.M. 28, 462 P.2d 613. Protection of property rights. - One possessing general property rights in a chattel or chose may qualify as a real party in interest in a suit or action essential to the protection of such rights, even if another likewise may qualify as a real party in interest in a suit or action relating to the same chattel or chose, if essential to the protection of a special property right therein. Turner v. New Brunswick Fire Ins. Co., 1941 -NMSC-014, 45 N.M. 126, 112 P.2d 511. Organization possessing property for the benefit of others had standing. - Where Los Vigiles sought to establish an access easement to its property through defendants' property; Los Vigiles was not a land grant and failed to produce evidence linking Los Vigiles to a chain of title to the property; in 1951, the trustees of the Las Vegas Land Grant conveyed parcels of the land grant to a justice of the peace in trust as community property for specific uses by individuals residing within designated precincts; the office of the justice of peace was abolished by statute in 1966 and the precincts mentioned in the deed were defunct; Los Vigiles claimed that it succeeded the justice of the peace as the legal entity holding the property in trust; and Los Vigiles' evidence showed that it paid ad valoreum taxes on the property, had sixty members, had rules defining persons who could be members, and required members to pay membership fees, Los Vigiles had standing because it was reasonable to presume that Los Vigiles was a lawful successor of the original grantee of the property to hold the property for the benefit of the persons described in the 1951 deed. Los Vigiles Land Grant v. Rebar Haygood Ranch, L.L.C., 2014 -NMCA-017. Party omitted by mistake. - The relation-back provision of Paragraph A applies to admit a new plaintiff when the failure to include such party as an original plaintiff was an honest mistake. Teague-Strebeck Motors, Inc. v. Chrysler Ins. Co., 1999 -NMCA-109, 127 N.M. 603, 985 P.2d 1183, cert. denied, 127 N.M. 391, 981 P.2d 1209. Substitution of child as real party in interest. - Where it was held that human services department was without standing to maintain action on behalf of twenty-year-old child, child could be substituted as real party in interest with no effect on his substantive rights, if, on remand, it was determined that the department's error was an honest mistake. State ex rel. Salazar v. Roybal, 1998-NMCA-093, 125 N.M. 471, 963 P.2d 548, cert. denied, 125 N.M. 322, 961 P.2d 167. One who is not party to contract cannot maintain a suit upon it. L.R. Property Mgt., Inc. v. Grebe, 1981-NMSC-035, 96 N.M. 22, 627 P.2d 864. Suit by payee of notes. - Where payee of promissory notes is in possession, he is entitled to sue thereon in his own name as a real party in interest, irrespective of ownership. Spears v. Sutherland, 1933-NMSC-042, 37 N.M. 356, 23 P.2d 622. Suit on separate notes. - In suit on one of two separate promissory notes given by two persons in exchange for joint interest in oil and gas lease, maker of other note was neither a necessary nor a proper party to the action. Good v. Harris, 1966-NMSC-249, 77 N.M. 178, 420 P.2d 767. Payee of draft. - One who holds a draft made payable to himself may maintain an action thereon in his own name, against the acceptor of such draft, even if he has no beneficial interest in the proceeds. Merchants' Nat'l Bank v. Otero, 1918-NMSC-080, 24 N.M. 598, 175 P. 781; Eagle Mining & Imp. Co. v. Lund, 1908-NMSC-014, 14 N.M. 417, 94 P. 949. "Interested person" in decedent's estate. - If one has a property right in the estate of a decedent, he is an "interested person" under 45-1-201(A)(19) NMSA 1978; and if he qualifies as such, he also would constitute an owner of a right being enforced under the first prong of this rule. Rienhardt v. Kelly, 1996-NMCA-050, 121 N.M. 694, 917 P.2d 963. Tenant and not creditors as party in interest. - In suit by tenant and his creditors against landlord for sums expended on behalf of landlord by tenant in repair of premises, tenant was real party in interest, even though he assigned his rights to proceeds to creditors. Hall v. Teal, 1967-NMSC-111, 77 N.M. 780, 427 P.2d 662. Action by assignor. - Assignment for security leaves assignor the equitable and beneficial owner of the chose assigned, and he could maintain an action in his own name as the real party in interest under §105-103, C.S. 1929. Turner v. New Brunswick Fire Ins. Co., 1941 -NMSC-014, 45 N.M. 126, 112 P.2d 511. Assignee holding claim to account. - Assignee of an account who is the real and legal holder of the claim is real party in interest. Prior v. Rio Grande Irrigation & Colonization Co., 1901-NMSC-005, 10 N.M. 711, 65 P. 171. Equitable assignee. - Equitable assignee of a chose in action may bring an action in his own name to enforce his rights. Barnett v. Wedgewood, 1922-NMSC-068, 28 N.M. 312, 211 P. 601. Party assigning interests after commencement. - Although Paragraph A of this rule controls where an interest has been transferred prior to commencement of an action, Rule 1-025(C) NMRA becomes the applicable provision where a party commences the action but subsequently transfers its interests by assignment. Daniels Ins., Inc. v. Daon Corp., 1987-NMCA-110, 106 N.M. 328, 742 P.2d 540. Assignment of interest before entry of judgment. - If a successful litigant assigned his interest after trial and announcement of decision, but before entry of judgment, judgment could be entered in name of litigant of record, and assignees did not need to be substituted as parties. Dietz v. Hughes, 1935-NMSC-055, 39 N.M. 349, 47 P.2d 417. Right of insured to sue on policy. - After property of insured was burned and he assigned to his creditors as security for debts separate amounts of face of policy from money due or to become due from insurer, with power in assignees to collect amount assigned from insurer, insured alone had right to maintain a single action to recover full amount of policy, where such policy remained with him. Turner v. New Brunswick Fire Ins. Co., 1941 -NMSC-014, 45 N.M. 126, 112 P.2d 511. Beneficiary of an insurance policy is the real party in interest, and a suit may be brought in his name against the sureties on an administrator's bond, to recover proceeds collected on policy. Conway v. Carter, 1902-NMSC-016, 11 N.M. 419, 68 P. 941. Insured and insurer as necessary parties. - Where cause of action was based upon the alleged negligence on the part of defendant resulting in damage to the plaintiff's automobile, and plaintiff assigned an interest in the recovery of damages to the insurer, both plaintiff and the insurer were necessary parties to any action prosecuted for recovery on account of damage done to the plaintiff's automobile. Sellman v. Haddock, 1957-NMSC-037, 62 N.M. 391, 310 P.2d 1045; Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Insurer necessary party plaintiff. - Insurer that has paid its insured for a loss, in whole or in part, is a necessary and indispensable party to an action to recover the amounts paid from a third party allegedly responsible therefor. Torres v. Gamble, 1966-NMSC-024, 75 N.M. 741, 410 P.2d 959. Insurer real party in interest. - Where plaintiff insurance company paid entire loss for accident caused by person driving the insured's car with insured's permission after defendant (driver's insurer) denied coverage, and then sought reimbursement from defendant, plaintiff, with equitable subrogation rights, was a real party in interest; neither insured nor driver was. State Farm Mut. Auto. Ins. Co. v. Foundation Reserve Ins. Co., 1967 -NMSC-197, 78 N.M. 359, 431 P.2d 737. Where plaintiff insurer indemnified and paid liquor wholesaler in full settlement and satisfaction of all liability under bond on behalf of defendant, wholesaler was not indispensable party to litigation, since he had no interest which could be affected by judgment between parties; plaintiff, owner of right sought to be enforced, was real party in interest. American Gen. Cos. v. Jaramillo, 1975-NMCA-092, 88 N.M. 182, 538 P.2d 1204. Joinder not to be disclosed to jury. - When subrogated insurers are required by this rule to be joined as parties and the case is to be tried before a jury, the fact of the insurer's joinder is not to be disclosed to the jury; if it is the insured who has been joined, the requirement shall be the same. Safeco Ins. Co. of Am. v. United States Fid. & Guar. Co., 1984-NMSC-045, 101 N.M. 148, 679 P.2d 816. Partner without interest in suit. - Partner who disclaimed any interest in automobile damaged in collision and admitted ownership in plaintiff, was no longer a necessary party to suit because he had no interest in outcome of the litigation. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Corporation's interest not shown. - This rule requires that every action must be prosecuted in the name of the real party in interest; therefore, judgment on basis of oral agreement to which individual was party, in favor of plaintiff-corporation, was error, as there was no evidence adduced to prove corporation's interest or enforceable right. Family Farm & N. 10 Riding Acad., Inc. v. Cain, 1974-NMSC-001, 85 N.M. 770, 517 P.2d 905. Individual not entitled to compensation for damages to corporation. - Plaintiff, majority shareholder in close corporation, could not be given award of compensatory damages when it was based on losses sustained by corporation, a separate entity. London v. Bruskas, 1958-NMSC-020, 64 N.M. 73, 324 P.2d 424. Business corporation was properly joined as a defendant in derivative action, although it was the real party in interest, where plaintiffs' verified complaint, alleging that defendants controlled corporation and were guilty of fraudulent acts, that a deadlock existed and that defendants had refused to act and a demand that they bring suit would be futile, complied with requirements of Rule 23(b) (see now Rule 1-023.1 NMRA). Prager v. Prager, 1969-NMSC-149, 80 N.M. 773, 461 P.2d 906. Community property. - Under former community property laws, where property was listed in wife's name but was determined to be community property of husband and wife, husband, as head of the community, was the real party in interest and the proper party to bring the action. Overton v. Benton, 1955-NMSC-109, 60 N.M. 348, 291 P.2d 636. Suit to compel reduction in land valuation. - Under former law, board of county commissioners was not the real party in interest in mandamus proceeding to compel tax assessor to place a reduced valuation on lands; landowners were the proper parties. Board of Comm'rs v. Hubbell, 1923-NMSC-060, 28 N.M. 634, 216 P.2d 496. County assessor had no duty to protect taxpayers or veterans against wrongful discrimination, and was not a proper party to represent other persons in action brought by attorney general for assessor in order to question constitutionality of certain statute. State ex rel. Overton v. New Mexico State Tax Comm'n, 1969-NMSC-140, 81 N.M. 28, 462 P.2d 613. Right of conservancy district to sue. - When vested water right of owners of artesian water conservancy district is in question, be it definition, modification or adjudication of such rights, district has not only standing, but duty to participate in litigation affecting those rights. State ex rel. Reynolds v. Lewis, 1973-NMSC-035, 84 N.M. 768, 508 P.2d 577. Injunction by conservancy district. - Artesian conservancy district was proper party plaintiff for maintaining suit to enjoin use of water from an unlawfully drilled well, even though the district as such did not own lands or water rights appurtenant thereto. Pecos Valley Artesian Conservancy Dist. v. Peters, 1945-NMSC-029, 50 N.M. 165, 173 P.2d 490. Personal representative in wrongful death statute is real party in interest. Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, overruled on other grounds Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883. Although action not barred by parents' failure to secure appointment as personal representatives. - Although 41-2-3 NMSA 1978 requires that every wrongful death action shall be brought by the personal representatives, an action for malpractice and wrongful death brought under the Tort Claims Act by the natural parents of a deceased girl within the limitation period was not barred because the parents failed to secure court appointment as personal representatives within the two-year limitation period of 41-4-15 NMSA 1978, due to the operation of Rules 1-015 NMRA (relation back of amendments) and Paragraph A of this rule. Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883. Substitution of decedent as real party in interest. - While a dead person cannot obtain relief, an action filed naming a dead person can remain viable with an allowable substitution of the real party in interest to pursue the claim even after the applicable statute of limitations period has run. Martinez v. Segovia, 2003-NMCA-023, 133 N.M. 240, 62 P.3d 331. Legal fund not counsel's client. - In these days of prepaid insurance plans for hospital, medical, dental, as well as legal and innumerable other services, it would be as ludicrous to say that a legal fund is the counsel's client as to pretend that an insurance company that pays one's medical bills is the doctor's patient. Speer v. Cimosz, 1982-NMCA-029, 97 N.M. 602, 642 P.2d 205. Bankruptcy trustee as real party in interest. - Where plaintiff did not schedule its legal malpractice and breach of contract claims against defendant in its Chapter 11 bankruptcy petition, or bring them to the attention of the trustee or the court, the claims were unscheduled property that became property of the trustee; as such, trustee, and not plaintiff, was the "real party in interest" with standing under this rule. Edwards v. Franchini, 1998-NMCA-128, 125 N.M. 734, 965 P.2d 318, cert. denied, 126 N.M. 107, 967 P.2d 447, and cert. denied, 526 U.S. 1124, 119 S. Ct. 1780, 143 L. Ed. 2d 808 (1999). State not necessary party. - In action against former labor commissioner to prevent enforcement of allegedly illegal order by him in his official capacity, state was not a necessary party. City of Albuquerque v. Burrell, 1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088. Recovery on bond after election recount. - Where bond had been given in an election contest to obtain recount of votes, after insufficient error was shown to change result, the state was mere nominal obligee of the bond and not the real party in interest in action to recover mileage and fees due sheriff and election officials after recount. State v. Barker, 1947-NMSC-010, 51 N.M. 51, 178 P.2d 401. Territory as trustee for university. - As the territory, in action to obtain title to land in private ownership for the use and benefit of the university, thereby created an express trust, it could maintain suit as trustee, without joining the board of regents of the university. Territory v. Crary, 1909-NMSC-024, 15 N.M. 213, 103 P. 986. United States proper party to declaratory judgment suit. - Where United States advanced amount of former emergency school tax assessed, to corporation furnishing services and materials to it, which tax was paid by corporation under protest, United States had a financial interest and was proper party to seek a declaratory judgment that neither it nor corporation were subject to such tax. United States v. Bureau of Revenue, 1961-NMSC-126, 69 N.M. 101, 364 P.2d 356. Trover brought by United States. - Action of trover by United States for cutting and appropriating trees from public lands would fail where such lands were not public, for plaintiff would not be real party in interest. United States v. Saucier, 1891-NMSC-008, 5 N.M. 569, 25 P. 791. Time for raising absence of indispensable party. - Objection that an indispensable party was absent from the case may be made, if not before, in the supreme court. Sellman v. Haddock, 1957-NMSC-037, 62 N.M. 391, 310 P.2d 1045. Lack of interest of one plaintiff not fatal. - Where there are two plaintiffs, and only one is the real party in interest, the entire action will not fail. Hall v. Teal, 1967-NMSC-111, 77 N.M. 780, 427 P.2d 662. Motion to dismiss not abandoned. - Defendant did not abandon its motion to dismiss one of the plaintiffs as a party, on the basis that he had no financial interest in the litigation and was not a real party in interest, by taking an appeal before the trial court ruled on its motion, since issue was raised in its requested findings and conclusions; as issue was never decided by the trial court, the cause would be remanded. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. III. CAPACITY TO SUE OR BE SUED. As a general rule, spouses are permitted to sue each other for intentional torts. Papatheofanis v. Allen, 2010-NMCA-036, 148 N.M. 791, 242 P.3d 358, cert. granted, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048. Claims for intentional torts between spouses. - Where, during the marriage of plaintiff and defendant, defendant induced plaintiff to convey a one-half interest in the family home, which was plaintiff's solely owned property, to defendant by representing to plaintiff that if plaintiff died, the parties' child would not have an interest in the home; defendant falsely commenced a domestic violence claim against plaintiff; defendant falsely reported to plaintiff's employer that plaintiff was misusing government property at plaintiff's workplace; without the knowledge or permission of plaintiff, defendant opened credit card accounts by forging plaintiff's name on application forms, leased a vehicle using plaintiff's information, and registered a patent in defendant's name using plaintiff's intellectual property; and defendant was an attorney and a mortgage loan officer, the jury verdict in plaintiff's action against defendant finding defendant liable for fraud, breach of fiduciary duty, malicious abuse of process, and defamation was supported by substantial evidence. Papatheofanis v. Allen, 2010-NMCA-036, 148 N.M. 791, 242 P.3d 358, cert. granted, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048. Municipal corporation had capacity to seek injunction against former labor commissioner to prevent his insisting on city paying minimum wage rates promulgated by him under various construction contracts. City of Albuquerque v. Burrell, 1958-NMSC-070, 64 N.M. 204, 326 P.2d 1088. Dissolved corporation subject to suit. - Defendant out-of-state corporation, although dissolved, was subject to suit and service of process. Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212. Absent a contractual or statutory provision, an insurance carrier cannot be sued directly and cannot be joined as a party defendant. Chapman v. Farmers Ins. Group, 1976-NMCA-128, 90 N.M. 18, 558 P.2d 1157, cert. denied, 90 N.M. 254, 561 P.2d 1347. Unincorporated association. - Since an unincorporated association made up of veteran taxpayers was not a legal entity, its right to bring an action could only be permitted under Rule 23 (see now Rule 1-023 NMRA). State ex rel. Overton v. New Mexico State Tax Comm'n, 1969-NMSC-140, 81 N.M. 28, 462 P.2d 613. Suit not maintainable. - Suit by Indian against another Indian for damages arising out of automobile collision in the pueblo in which they resided was not within jurisdiction of New Mexico court, where title to pueblo land was in the Indian tribe and had never been extinguished. Valdez v. Johnson, 1961-NMSC-089, 68 N.M. 476, 362 P.2d 1004. IV. INFANTS OR INCOMPETENT PERSONS. This rule permits parent to bring cause of action on behalf of minor child, but does not require it. Jaramillo v. Heaton, 2004-NMCA-123, 136 N.M. 498, 100 P.3d 204, cert. denied, 2004-NMCERT-010. Subdivision (c) (see now Paragraph C) does not prevent minor from filing lawsuit; it merely provides alternatives. Howie v. Stevens, 1984-NMCA-052, 102 N.M. 300, 694 P.2d 1365. The court has power, either inherent or express under Paragraph C, to appoint a guardian ad litem for a minor plaintiff, whether or not the child is "otherwise represented." When such an appointment is made, however, the duties of the guardian, since they are not defined by statute, will, if not specified by the court, remain unclear and may well vary from case to case. Collins ex rel. Collins v. Tabet, 1991-NMSC-013, 111 N.M. 391, 806 P.2d 40. Attorney is required for infant not otherwise represented in an action, and it would be plain error for the court to proceed in the absence of counsel. Wasson v. Wasson, 1978-NMCA-092, 92 N.M. 162, 584 P.2d 713. Protecting interests of principal in suit involving power of attorney. - Under circumstances wherein a party who has given a power of attorney is subsequently alleged to have become incompetent, and the agent under the power of attorney asserts legal claims which if successful will divest his principal of property, the trial court has a duty to inquire into the present status of the mental condition of the principal and, if necessary, appoint a guardian ad litem to protect and represent the present interests of the principal in the litigation. Roybal v. Morris, 1983-NMCA-101, 100 N.M. 305, 669 P.2d 1100. Suit or defense on child's behalf not unauthorized law practice. - The provision of this rule allowing a child's representative to sue or defend on the child's behalf does not constitute an exception to the general prohibition against unauthorized practice of law. Chisholm v. Rueckhaus, 1997-NMCA-112, 124 N.M. 255, 948 P.2d 707, cert. denied, 124 N.M. 268, 949 P.2d 282. Errors in guardian's appointment not jurisdictional. - In action brought to recover damages for personal injury sustained in collision, wherein husband of plaintiff was rendered incompetent, errors in plaintiff wife's appointment as his guardian did not go to jurisdiction of court, as the incompetent injured husband was the real party in interest; if attack on wife's right to sue as guardian of her husband had been made, court could have appointed next friend or guardian ad item to proceed with suit under Rule 17(c), Fed. R. Civ. P., which in all important respects is identical with this rule. New Mexico Veterans' Serv. Comm'n v. United Van Lines, 325 F.2d 548 (10th Cir. 1963). Children's court's failure to appoint guardian not jurisdictional. - In a proceeding to terminate a minor mother's parental rights, failure of the children's court to appoint a guardian ad litem for the mother did not deprive the court of jurisdiction since the court appointed counsel to represent her pursuant to Paragraph C. State ex rel. Children, Youth & Families Dep't v. Lilli L., 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884. Visitation challenged by child's parents. - When a petition for grandparent visitation is challenged by the child's parents, the trial court should consider whether it would be beneficial to appoint a guardian ad litem to represent the child in the face of conflicting family interests. Lucero v. Hart, 1995-NMCA-121, 120 N.M. 794, 907 P.2d 198. Suit by minor against trustee not barred by laches. - Defense of laches is predicated upon the doctrine of estoppel, and a beneficiary of a trust who is under a legal incapacity such as infancy is not barred by laches from holding a trustee liable for a breach of trust so long as the incapacity continues. Iriart v. Johnson, 1965-NMSC-147, 75 N.M. 745, 411 P.2d 226. Parent's standing to sue guardian on behalf of the child. - Parents may sue their child's guardian ad litem for injuries caused by the guardian to the child if the guardian acts as a private advocate or exceeds the scope of the guardian's appointment as an arm of the court. Kimbrell v. Kimbrell, 2013-NMCA-070, 306 P.3d 495, cert. granted, 2013-NMCERT-006. Guardian ad litem liability for conspiracy. - Where, in a contentious divorce and child custody proceeding, plaintiff filed a tort action against defendant and the child's guardian ad litem alleging that they colluded to block telephone calls from the child to the child's siblings and plaintiff and defendant entered into a settlement agreement that released defendant from liability, although the action against defendant was moot, the action against the guardian was not moot because, as alleged conspirators, defendant and the guardian were jointly and severally liable. Kimbrell v. Kimbrell, 2013-NMCA-070, 306 P.3d 495, cert. granted, 2013-NMCERT-006. Guardian ad litem exceeded scope of appointment. - Where, in a contentious divorce and child custody proceeding, plaintiff filed a tort action against the child's guardian ad litem alleging that the guardian published the child's medical records to the court, defendant and defendant's counsel; increased conflict between the parties by rejecting settlement offers; failed to correct defendant's behavior when defendant ignored the child; failed to report defendant's efforts to block contact between the child and the child's siblings; and colluded with defendant to block telephone calls from the child to the child's siblings, the guardian was immune from suit for all of the guardian's acts except for the alleged act of colluding with defendant to block the child's telephone calls, which would exceed the scope of the guardian's appointment. Kimbrell v. Kimbrell, 2013-NMCA-070, 306 P.3d 495, cert. granted, 2013-NMCERT-006. Guardian immune from liability. - A guardian ad litem, appointed in connection with court approval of a settlement involving a minor, is absolutely immune from liability for his or her actions taken pursuant to the appointment, provided that the appointment contemplates investigation on behalf of the court into the fairness and reasonableness of the settlement in its effect on the minor. Collins ex rel. Collins v. Tabet, 1991-NMSC-013, 111 N.M. 391, 806 P.2d 40. Guardian not entitled to quasi-judicial immunity. - An attorney who is privately retained as a guardian ad litem to advocate approval of a settlement in an action by the child to recover damages is not entitled to quasi-judicial immunity. Collins ex rel. Collins v. Tabet, 1991-NMSC-013, 111 N.M. 391, 806 P.2d 40. Guardian not immune from liability. - If the appointment of a guardian ad litem does not contemplate actions on behalf of the court but instead representation of the minor as an advocate, or if the guardian departs from the scope of appointment as a functionary of the court and instead assumes the role of a private advocate for the child's position, then the guardian is not immune and may be held liable under ordinary principles of malpractice. Collins ex rel. Collins v. Tabet, 1991-NMSC-013, 111 N.M. 391, 806 P.2d 40.