February 7, 2023- John Martens v. City of Albuquerque, No. A-1-CA-39614

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: February 7, 2023	3
No. A-1-CA-39614	4
JOHN MARTENS and PAT MARTENS,	5
Individually and as Co-Personal	6
Representatives of the ESTATE OF V.M.,	7
Plaintiffs-Appellants,	8
v.	9
CITY OF ALBUQUERQUE, JOHN DOES	10
1-10, and JANE DOES 1-10, Individually,	11
Defendants-Appellees.	12
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	13
Denise Barela Shepherd, District Court Judge	14
Bowles Law Firm	15
Jason Bowles	16
Albuquerque, NM	17
Gorence Law Firm, LLC	18
Robert J. Gorence	19
Albuquerque, NM	20
for Appellants	21
Lauren Keefe, City Attorney	22
Stephanie M. Griffin, Deputy City Attorney	23
Albuquerque, NM	24
for Appellee City of Albuquerque	25
Court of Appeals of New Mexico
Filed 2/7/2023 1:09 PM

OPINION	1
WRAY, Judge.	2
{1} 	Plaintiffs John and Pat Martens (Plaintiffs), individually and on behalf of the	3
Estate of V.M., appeal the district court’s dismissal of their complaint against	4
Defendant the City of Albuquerque (the City) for violations of the New Mexico Tort	5
Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2020).	6
The district court concluded that Plaintiffs’ written notice did not comply with	7
Section 41-4-16(A) of the TCA, which requires persons who claim damages under	8
the TCA to provide “a written notice stating the time, place and circumstances of the	9
loss or injury.” We reverse.	10
BACKGROUND	11
{2} 	In 2016, Plaintiffs sent a “Notice of Claims Resulting in Injury/Death Per	12
[Section] 	41-4-16” 	(the 	Notice) 	to 	the 	Bernalillo 	County 	Clerk, 	the 	Risk	13
Management Division, and the Mayor of the City of Albuquerque. The Notice	14
included the following subject line:	15
Re: 	Incident on or about, in the City of Albuquerque, County of	16
Bernalillo, State of New Mexico, in which the minor child	17
[V.M.] suffered serious injuries, and subsequently death, after	18
the New Mexico Corrections Department Probation and Parole	19
Division, located at 111 Gold Ave. SE, Albuquerque, NM 87102,	20
the New Mexico Children, Youth and Families Department	21
[(CYFD)], located at 1031 Lamberton Pl. NE, Albuquerque,	22
New Mexico 87107, and the Second Judicial District Court in	23
Bernalillo 	County, 	located 	at 	400 	Lomas 	Blvd. 	NW,	24
Albuquerque, New Mexico 87102, failed to properly monitor her	25

2
alleged killer, Fabian Gonzales, on probation; this is the Notice	1
of Claims pursuant to [Section] 41-4-16 . . . of the [TCA].	2
The body of the Notice stated,	3
Please take notice that Michael Martens, Wrongful Death Personal	4
Representative of the Estate of [V.M.], may make a claim or claims	5
against the County of Bernalillo, and all affected departments, agencies	6
and divisions within the State, County, and City arising out of the	7
incident involving an accident which took place on August 24, 2016,	8
when Fabian Gonzales, along with two others (Michelle Martens and	9
Jessica Kelley), drugged, sexually assaulted, tortured and killed 10-	10
year-old [V.M.], after the State of New Mexico, County of Bernalillo,	11
and City of Albuquerque generally engaged in tortious conduct and	12
circumstances leading to injury and death of [V.M.], including failure	13
to properly monitor Fabian Gonzales on probation.	14
Notice is provided that claims may be brought regarding the negligence	15
of the State of New Mexico, County of Bernalillo, and City of	16
Albuquerque, which resulted in the death of [V.M.] on or about August	17
24, 2016.	18
The City, in relevant part, responded, “Regarding the claim against the City of	19
Albuquerque, it was determined that subsequent to a murder investigation by the	20
Albuquerque Police Department [(APD)], the manner in which the crime was	21
investigated was appropriate and in accordance with departmental policies and	22
procedures.”	23
{3} 	Plaintiffs subsequently filed a complaint and alleged that the City, APD, and	24
unknown officers were negligent in failing to investigate a referral made by CYFD	25
that arose from an incident before V.M. was killed. After significant litigation, the	26

3
district court dismissed the complaint based on lack of written and actual notice of	1
the claim as required by the TCA under Section 41-4-16. This appeal followed.	2
DISCUSSION	3
{4} 	We review the district court’s decision de novo, because “[w]hether the	4
district court properly dismissed [the p]laintiffs’ claims for failing to comply with	5
the TCA’s notice requirement presents an issue of law.” Cummings v. Bd. of Regents	6
of Univ. of N.M., 2019-NMCA-034, ¶ 16, 444 P.3d 1058. To construe the statute, we	7
look first to the language of the notice requirement. See Niederstadt v. Town of	8
Carrizozo, 2008-NMCA-053, ¶ 19, 143 N.M. 786, 182 P.3d 769 (looking “first to	9
the plain meaning of the statute’s words” (internal quotation marks and citation	10
omitted)). Section 41-4-16(A) states,	11
Every person who claims damages from the state or any local public	12
body 	under 	the 	[TCA] 	shall 	cause 	to 	be 	presented 	to 	the 	risk	13
management division for claims against the state, the mayor of the	14
municipality for claims against the municipality, the superintendent of	15
the school district for claims against the school district, the county clerk	16
of a county for claims against the county, or to the administrative head	17
of any other local public body for claims against such local public body,	18
within ninety days after an occurrence giving rise to a claim for which	19
immunity has been waived under the [TCA], a written notice stating the	20
time, place and circumstances of the loss or injury.	21
Under Section 41-4-16(B), actual notice of the occurrence “excuses” the written	22
notice requirement under Section 41-4-16(A). Smith v. State ex rel. N.M. Dep’t of	23
Parks & Recreation, 1987-NMCA-111, ¶ 19, 106 N.M. 368, 743 P.2d 124. Unless	24
written notice is provided under Section 41-4-16(A) or “the public entity had actual	25

4
notice of the occurrence, a court is jurisdictionally barred from considering the	1
matter.” Herald v. Bd. of Regents of Univ. of N.M., 2015-NMCA-104, ¶ 49, 357 P.3d	2
438 (alteration, internal quotation marks, and citation omitted). The City contends	3
that Plaintiffs waived any challenge to the sufficiency of the evidence supporting the	4
district court’s dismissal and that Plaintiffs failed to establish written and actual	5
notice. Plaintiffs, however, do not appear to challenge the evidence and have	6
explicitly abandoned any challenge to the actual notice ruling. Instead, Plaintiffs	7
argue solely that the contents of the Notice satisfied the Section 41-4-16(A) written	8
notice requirement, and we therefore limit our analysis accordingly.	9
{5} 	The purpose of the TCA notice requirement is well established: “(1) to enable	10
the person or entity to whom notice must be given, or its insurance company, to	11
investigate the matter while the facts are accessible; (2) to question witnesses; (3) to	12
protect against simulated or aggravated claims; and (4) to consider whether to pay	13
the claim or to refuse it.” Ferguson v. N.M. State Highway Comm’n, 1982-NMCA-	14
180, ¶ 12, 99 N.M. 194, 656 P.2d 244. The district court in the present case	15
concluded that the Notice failed to satisfy these purposes. Specifically, the district	16
court determined that the Notice failed to advise the City that the claim related to the	17
duty to investigate a child abuse referral, because the Notice referenced a failure to	18
supervise a probationer and thus “misdirect[ed], and thwart[ed], any inquiry into	19
whether the claim should be denied or should be paid.” Because we conclude that	20

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the Notice satisfied the requirements of Section 41-4-16(A), we cannot agree that	1
the City did not have the requisite written notice.	2
{6} 	In relevant part, Section 41-4-16(A) requires a person who claims damages	3
under the TCA to present “a written notice stating the time, place and circumstances	4
of the loss or injury.” The notice must be directed to at least one of the named	5
individuals in the statute or an agent of those individuals. Id.; see Martinez v. City of	6
Clovis, 1980-NMCA-078, ¶¶ 14, 18, 95 N.M. 654, 625 P.2d 583 (permitting notice	7
to an agent). The notice must be presented “within ninety days after an occurrence	8
giving rise to a claim for which immunity has been waived under the [TCA].”	9
Section 41-4-16(A). The written notice provision requires nothing more of a	10
claimant seeking damages under the TCA. See Godwin v. Mem’l Med. Ctr., 2001-	11
NMCA-033, ¶ 80, 130 N.M. 434, 25 P.3d 273 (Pickard, J., concurring in part and	12
dissenting in part) (“The written notice required by Section 41-4-16(A) is limited to	13
the time, place, and circumstances of the loss or injury. Nothing more is required.”).	14
Thus, we turn to consider whether the Notice satisfied these requirements.	15
{7} 	The wrongful death personal representative, the claimant under the statute,	16
sent a written notice of a claim to the Bernalillo County Clerk, the Risk Management	17
Division, and the Mayor of the City of Albuquerque. See § 41-4-16(A). The parties	18
do not appear to dispute that the Notice was sent within ninety days of V.M.’s death.	19
The Notice states the time, place, and circumstances of the injury by generally	20

6
referring to the tortious conduct and negligence by the State, the County, and the	1
City, which caused V.M.’s injuries and death on August 24, 2016. The Notice	2
additionally states that the tortious conduct “includ[es] failure to properly monitor	3
Fabian Gonzales on probation.” The district court determined that this additional	4
language and other references to probation monitoring undermined the purpose of	5
the notice requirement and rendered the Notice insufficient. Despite the references	6
to probation monitoring, however, the City was made aware that a claim could be	7
brought based on the crime committed against V.M. and associated negligence and	8
tortious conduct leading to that crime. The Notice was timely, was sent to	9
appropriate individuals, and identified the time, place, and injury. The Notice	10
therefore satisfies the requirements of Section 41-4-16(A).	11
{8} 	Nevertheless, the City argues that the Notice was insufficient because it only	12
provided notice of the injury and did not include any of the specifically alleged	13
negligence that formed the basis of Plaintiffs’ complaint. Because the Notice	14
generally referenced “negligence” and “tortious conduct,” the City contends that the	15
Notice was too vague and general to permit reasonable investigation or anticipation	16
of a claim and therefore did not satisfy the purpose of the TCA notice requirement.	17
For support, the City cites Cummings, Ferguson, and Marrujo v. N.M. State Highway	18
Transportation Department, 1994-NMSC-116, 118 N.M. 753, 887 P.2d 747. These	19
cases, however, do not address the degree to which a claim must be specified in order	20

7
for a written notice to satisfy Section 41-4-16(A). The Marrujo Court considered the	1
sufficiency of an actual notice claim and not the requirements for written notice	2
under Section 41-4-16(A). Marrujo, 1994-NMSC-116, ¶ 25. In Ferguson, the	3
relevant 	question 	was 	whether 	the 	notice 	requirement 	violated 	due 	process	4
protections and not whether a particular notice satisfied the statutory requirements.	5
1982-NMCA-180, ¶¶ 3, 11, 14.	6
{9} 	This Court, in Cummings, did address the sufficiency of a written TCA notice.	7
2019-NMCA-034, ¶ 16. In that case, the plaintiff joined an existing class action and	8
before moving to join the class, submitted an affidavit that asserted an interest in the	9
class action and included the time, place, and injury. Id. ¶¶ 9, 15, 17. The Cummings	10
Court did not consider whether or decide that a written tort claim notice must	11
specifically identify a claim or meet a factual threshold that would permit an	12
investigation. Id. ¶ 21. Instead, this Court held that the already-filed class action	13
complaint provided notice and the affidavit alerted the defendants that the plaintiffs	14
intended to make claims. Id. ¶ 20. The present case does not involve an existing class	15
action or a completed investigation, and the Notice must therefore meet the statutory	16
requirements on its own terms. We have concluded that it does.	17
{10} 	Notwithstanding the language of the written notice requirement, the City	18
maintains that notice of the injury is not enough, because Section 41-4-16(A)	19
requires that the notice be related to a “claim for which immunity has been waived	20

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under the [TCA].” We understand the City’s argument to be that because Section	1
41-4-16 twice refers to “a claim for which immunity has been waived under the	2
[TCA]” and a TCA claim must be rooted in one of the waivers of sovereign	3
immunity set forth in the TCA, “at minimum,” a TCA notice should “cite to a	4
specific section or sections” of the TCA waivers or cite “to alleged conduct that	5
would invoke one or more” of the TCA waivers. According to the City, the Notice	6
was therefore deficient because it did not identify a specific TCA waiver or conduct	7
that implicated a particular waiver and therefore did not put the City “on notice of	8
an occurrence giving rise to a claim for which immunity has been waived under the	9
[TCA] as required by Section 41-4-16 of the TCA.” We disagree that the language	10
of Section 41-4-16(A) requires such specificity in a written notice.	11
{11} 	Section 41-4-16(A) refers to “a claim for which immunity has been waived”	12
as follows:	13
Every person who claims damages from the state or any local public	14
body under the [TCA] shall cause to be presented to [identified	15
individuals], within ninety days after an occurrence giving rise to a	16
claim for which immunity has been waived under the [TCA], a written	17
notice stating the time, place and circumstances of the loss or injury.	18
(Emphasis added.) Section 41-4-16(C) states,	19
When a claim for which immunity has been waived under the [TCA] is	20
one for wrongful death, the required notice may be presented by, or on	21
behalf of, [identified individuals], within six months after the date of	22
the occurrence of the injury which resulted in the death; but if the	23

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person for whose death the claim is made has presented a notice that	1
would have been sufficient had he lived, an action for wrongful death	2
may be brought without any additional notice.	3
(Emphasis added.) These two provisions refer to claims “for which immunity has	4
been waived” in the context of the time to provide notice, see § 41-4-16(A), and the	5
extended period for providing notice in a wrongful death case, see § 41-4-16(C).	6
Had the Legislature intended for the notice to refer to a specific waiver or incorporate	7
facts to show a waiver, it could have so required. See Velasquez v. Regents of N.	8
N.M. Coll., 2021-NMCA-007, ¶ 85, 484 P.3d 970 (noting that the Legislature “could	9
have easily” included words to achieve a particular effect had it so intended that	10
effect). Instead, the Legislature required that claimants present written notice within	11
ninety days of the occurrence of a claim that gives rise to a TCA claim and that	12
written notice states “the time, place and circumstances of the loss or injury.” Section	13
41-4-16(A). As we have explained, under that provision, nothing more is required.	14
CONCLUSION	15
{12} 	The Notice provided the City with the information necessary to investigate its	16
involvement with the circumstances leading to V.M.’s injuries and death. The	17
written Notice satisfied the requirements of Section 41-4-16(A). We therefore	18
reverse the district court and remand for further proceedings.	19

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{13} 	IT IS SO ORDERED.	1
_________________________________	2
KATHERINE A. WRAY, Judge	3
WE CONCUR:	4
_________________________________	5
MEGAN P. DUFFY, Judge	6
_________________________________	7
MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation	8