January 14, 2020- Daniel Garcia v. City of Albuquerque, No. A-1-CA-37422

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
DANIEL GARCIA,	2
Petitioner-Appellant,	3
v. 	NO. A-1-CA-37422	4
CITY OF ALBUQUERQUE,	5
Respondent-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
C. Shannon Bacon, District Judge	8
Mescall Law Firm, P.C.	9
Thomas J. Mescall, II	10
Phillip Patrick Baca	11
Albuquerque, NM	12
for Appellant	13
Esteban A. Aguilar, Jr., City Attorney	14
Andrew S. Coon, Assistant City Attorney	15
Albuquerque, NM	16
for Appellee	17
MEMORANDUM OPINION	18
VANZI, Judge.	19
{1} 	Petitioner Daniel Garcia appeals the district court’s order dismissing his	20
petition for writ of mandamus and prohibition. We dismiss Garcia’s appeal on the	21
basis of mootness.	22
Court of Appeals of New Mexico
Filed 1/14/2020 10:57 AM

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BACKGROUND	1
{2} 	In June 2017, the City of Albuquerque (the City) seized Garcia’s vehicle	2
pursuant to the City’s civil forfeiture ordinance (the Ordinance), Albuquerque, N.M.,	3
Code, §§ 7-6-1 to -7 (1992, as amended through 2014). Thereafter, Garcia filed a	4
verified petition for writ of mandamus and prohibition (the Petition) in the district	5
court. The Petition sought a declaration under NMSA 1978, Section 44-6-4 (1975)	6
of the Declaratory Judgment Act (the Act), NMSA 1978, §§ 44-6-4 to -15 (1975),	7
that the Ordinance was preempted by the New Mexico Forfeiture Act (NMFA),	8
NMSA 1978, §§ 31-27-1 to -11 (2002, as amended through 2019). It further sought	9
relief under Section 44-6-9 of the Act for issuance of a writ of prohibition and	10
injunction to permanently enjoin the City from enforcing the Ordinance, and writs	11
of mandamus for release of Garcia’s vehicle as well, as for the City to assume any	12
storage costs for the vehicle that resulted from the seizure.	13
{3} 	The district court entered Garcia’s alternative writ to show cause why a	14
permanent writ should not issue and, after briefing on the matter, entered an order	15
quashing alternative writ. The order stated that the alternative writ was quashed	16
“because this is not a mandamus proceeding[,]” and that “it is a suit solely under the	17
. . . Act.” Thus, the court said, the matter shall proceed as a declaratory judgment	18
action.	19
{4} 	After entry of the district court’s order, the City filed a motion to dismiss	20
Garcia’s Petition, arguing that Garcia failed to exhaust his administrative remedies	21

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and that the Ordinance was not preempted by the NMFA. Shortly after the City filed	1
its motion to dismiss, Garcia filed a motion for summary judgment on declaratory	2
judgment and a motion to reconsider order quashing alternative writ. The parties	3
completed briefing on the three motions after which the district court, without a	4
hearing, entered an order granting the City’s motion to dismiss Garcia’s Petition.	5
Specifically, the court denied the motion to dismiss with regard to exhaustion of	6
remedies, but granted the motion “with regards to the preemption argument.” This	7
appeal followed.	8
DISCUSSION	9
{5} 	In general, we dismiss an appeal when the issues in the case have become	10
moot. Howell v. Heim, 1994-NMSC-103, ¶ 7, 118 N.M. 500, 882 P.2d 541 (citing	11
Mowrer v. Rusk, 1980-NMSC-113, ¶ 13, 95 N.M. 48, 618 P.2d 886). “A case is moot	12
when no actual controversy exists, and the court cannot grant actual relief.” Gunaji	13
v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (internal quotation	14
marks and citations omitted); see also § 44-6-2 (stating that district courts shall have	15
the power to declare rights in “cases of actual controversy”). For the reasons that	16
follow, no actual controversy exists in this case, and we therefore dismiss Garcia’s	17
appeal.	18
{6} 	Less than a week after Garcia filed his brief in chief seeking reversal of the	19
district court’s decision, this Court filed its opinion in 	Espinoza v. City of	20
Albuquerque, 2019-NMCA-014, 435 P.3d 1270. The facts and legal issues presented	21

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in Espinoza are virtually identical to the ones before us here. In Espinoza, the City	1
seized the plaintiff’s vehicle pursuant to the Ordinance. Id. ¶ 2. The plaintiff then	2
sued the City seeking (1) a declaration that the Ordinance was in violation of the	3
NMFA, (2) a permanent injunction 	prohibiting 	the City from enforcing 	the	4
Ordinance, and (3) an order requiring the City to return the plaintiff’s vehicle to him.	5
Id. The City answered and argued—as it did here—that the NMFA did not apply to	6
the Ordinance. Id. After briefing and a hearing on the matter, the district court	7
dismissed the plaintiff’s complaint and denied the petition finding that that the	8
NMFA did not preempt or limit in any way the City’s Ordinance. Id. We reversed,	9
concluding that “the NMFA denies the City’s authority to seize and forfeit property	10
under the Ordinance,” and we held that “the NMFA preempts the Ordinance in its	11
entirety.” Id. ¶ 31. The City did not file a petition for writ of certiorari, and our	12
holding in Espinoza is therefore final.	13
{7} 	In this case, no actual controversy exists because this Court has already	14
answered the question raised by Garcia on appeal—whether the NMFA preempts	15
the Ordinance. In Espinoza, we held that it does. See id. Therefore, a ruling that the	16
district court improperly dismissed Garcia’s Petition thus warranting reversal on	17
appeal would not grant him any actual relief. See Leonard v. Payday Prof’l/Bio-Cal	18
Comp., 2008-NMCA-034, ¶ 9, 143 N.M. 637, 179 P.3d 1245 (holding that the appeal	19
was moot where this Court could not provide the appellant with any actual relief).	20
Importantly, Garcia does not dispute the City’s assertions that the City has indeed	21

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ended its seizure program, is no longer enforcing the Ordinance, has released	1
Garcia’s vehicle, and has voluntarily assumed the cost of storage of the vehicle.	2
{8} 	We recognize that we may decide cases with moot issues “if they are issues	3
of substantial public interest, and capable of repetition, yet evading review.” Howell,	4
1994-NMSC-103, ¶ 7 (internal quotation marks and citation omitted). Garcia does	5
not argue that the issue of preemption in this case rises to the requisite level of public	6
interest, 	or 	is 	capable 	of 	repetition 	to 	overcome 	the 	mootness 	doctrine.	7
Consequently, we conclude that this case is moot.	8
{9} 	In his reply brief, Garcia argues instead that this appeal is not moot because a	9
“supplemental issue on appeal” is whether the district court committed legal error	10
by sua sponte entering an order quashing alternative writ on the ground that the	11
action was not a mandamus proceeding but a declaratory judgment action. Although	12
not entirely clear, Garcia appears to seek a ruling that he “properly filed a	13
[d]eclaratory [j]udgment 	action 	in 	combination 	with 	a petition 	for [w]rit 	of	14
[m]andamus” so that he “can seek a recovery of damages in the court below.”	15
Garcia’s argument fails for two reasons.	16
{10} 	First, we conclude there was no error in the district court’s order quashing	17
alternative writ on the basis that “this is not a mandamus proceeding[,]” but “is a suit	18
solely under the . . . Act.” As correctly noted in the court’s order, the relief sought	19
in Garcia’s Petition was grounded entirely in the Act, specifically, Sections 44-6-4	20
(power to construe), 44-6-9 (supplemental relief), and 44-6-11 (costs). The Petition	21

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was not brought under any provision of the mandamus statute, NMSA 1978, §§ 44-	1
2-1 to -14 (1884, as amended through 1887). We recognize that Garcia titled his	2
opening pleading a “verified petition for writ of mandamus and prohibition,” but	3
nowhere does the Petition reference the mandamus statute, nor did he seek to amend	4
his Petition to include it. Accordingly, the district court properly required the case	5
to proceed as a declaratory judgment action. Given our conclusion that the question	6
of whether the NMFA preempts the Ordinance is no longer in controversy under the	7
Act, a declaratory judgment cannot be issued and Garcia’s relief cannot be granted.	8
As we have explained above, the City has ended its seizure program and is no longer	9
enforcing the Ordinance. Additionally, the City has released Garcia’s vehicle and	10
has assumed the cost of storage. Any additional supplemental relief sought under the	11
Act cannot be granted because this matter no longer has an “actual controversy.” See	12
Gunaji, 2001-NMSC-028, ¶ 9.	13
{11} 	Second, we reject Garcia’s characterization in his brief in chief that the district	14
court “committed legal error by dismissing [his] mandamus [P]etition on the grounds	15
that ‘this is not a mandamus proceeding.’ ” The court dismissed the petition because	16
it found that the Ordinance was not preempted, not because the matter was brought	17
as a mandamus proceeding. Indeed, the district court’s order of dismissal did not	18
state anywhere that the Petition was dismissed because it was a mandamus	19
proceeding, and limited its ruling to the two issues raised—exhaustion of remedies	20
and preemption.	21

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{12} 	For the foregoing reasons, we decline to address the merits of the dispute	1
between the parties, which is now moot.	2
CONCLUSION	3
{13} 	The appeal is dismissed.	4
{14} 	IT IS SO ORDERED.	5
_________________________________	6
LINDA M. VANZI, Judge	7
WE CONCUR:	8
_________________________________	9
JACQUELINE R. MEDINA, Judge	10
_________________________________	11
BRIANA H. ZAMORA, Judge	12