A-1-CA-37081 | Omnilex

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Court of Appeals of New Mexico
Filed 5/29/2019 9:18 AM

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Court of Appeals of New Mexico
Filed 5/29/2019 9:18 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 29, 2019

Nos. A-1-CA-35474 and A-1-CA-37081

BELEN CONSOLIDATED SCHOOL
DISTRICT,

Respondent,

THE COUNTY OF VALENCIA,
Petitioner.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
James L. Sanchez, District Judge

and

GREGORY A. NASH and SUSIE K. NASH,
Plaintiffs-Appellants,

GROUP I:

BOARD OF COUNTY COMMISSIONERS

OF CATRON COUNTY, NEW MEXICO,

a Political Subdivision of the State of

New Mexico; and ELENA GELLERT,

and

dL
Mark Reynolds

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GROUP IT:

ALL UNKNOWN CLAIMANTS OF
INTEREST IN THE PREMISES
ADVERSE TO THE PLAINTIFFS,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF CATRON COUNTY

Shannon Murdock, District Judge

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Arthur D. Melendres

Zachary L. McCormick

Albuquerque, NM

for Respondent Belen Consolidated School District

Nance, Pato & Stout, LLC
Adren R. Nance

David M. Pato

Socorro, NM

for Petitioner Valencia County
for Appellees Catron County Board of Commissioners

The Turner Law Firm, LLC
Scott E. Turner
Albuquerque, NM

for Appellants Gregory A. Nash and Susie K. Nash

OPINION

DUFFY, Judge.

{1} The formal opinion filed in this case on May 2, 2019, is hereby withdrawn
and this opinion is substituted in its place. In these appeals, we address whether the
defendant counties are immune from Plaintiffs’ quiet title lawsuits under NMSA
1978, Section 42-11-1 (1979) (“Granting immunity; providing for exceptions.”). In
two separate quiet title suits, Plaintiffs named the County of Valencia (Valencia
County) and the Board of County Commissioners of Catron County (Catron County)
(collectively, the Counties) as parties who claimed or may claim an interest in the
subject properties. In both actions, the Counties responded by filing motions to
dismiss on the ground that Section 42-11-1 provided them with immunity and barred
the lawsuits. In the Valencia County suit, the district court determined that Valencia
County was not immune from suit and allowed the lawsuit to proceed. In the Catron
County suit, the district court reached the opposite conclusion and dismissed the
lawsuit. Because these appeals raise substantially similar issues, we exercise our
discretion to consolidate them for decision. See Rule 12-317(B) NMRA. We
conclude that Section 42-11-1 grants the Counties immunity from these lawsuits,
and that there is no statutory exception to the Counties’ immunity in these cases. We
therefore reverse the district court in the Valencia County suit and affirm the district

court in the Catron County suit.

BACKGROUND

Development of Immunity in New Mexico

23 Before presenting the factual and procedural background of these cases, we
provide a brief overview of the history and development of the law of immunity
relevant to this appeal. In 1876, our territorial legislature “adopted the common law
as the rule of practice and decision[.]” Beals v. Ares, 1919-NMSC-067, {| 36, 25
N.M. 459, 185 P. 780. Consequently, New Mexico followed the common law
doctrine of sovereign immunity, whereby “no sovereign state can be sued in its own
courts or in any other without its consent and permission.” Hicks v. State, 1975-
NMSC-056, 4, 88 N.M. 588, 544 P.2d 1153 (internal quotation marks and citation
omitted), superseded by statute as stated in Upton v. Clovis Mun. Sch. Dist., 2006-
NMSC-040, ¥ 8, 140 N.M. 205, 141 P.3d 739; see id. (“[T]he doctrine of sovereign
immunity is one of common law, judicially created.”). Due to the “oftentimes harsh
results of that doctrine,” our Legislature carved out certain statutory exceptions to
sovereign immunity in which the state gave its consent to be sued. /d. 9 5. In 1947,
the Legislature enacted such an exception in NMSA 1978, Section 42-6-12 (1947),
allowing the State to be sued in certain property actions. See Brosseau v. N.M. State

Highway Dep’t, 1978-NMSC-098, 4 6, 92 N.M. 328, 587 P.2d 1339 (stating that the

'This statute was formerly compiled as NMSA 1941, Section 25-1312, and
NMSA 1953, Section 22-14-12. It was recompiled as Section 42-6-12 without
alteration.

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SOMA DNA WW

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purpose of Section 42-6-12 was to create an exception to sovereign immunity).
Section 42-6-12 provides:
Upon the conditions herein prescribed for the protection of the

state of New Mexico, the consent of the state is given to be named a

party in any suit which is now pending or which may hereafter be

brought in any court of competent jurisdiction of the state to quiet title

to or for the foreclosure of a mortgage or other lien upon real estate or

personal property, for the purpose of securing an adjudication touching

any mortgage or other lien the state may have or claim on the premises

or personal property involved.
33 Section 42-6-12 remains in effect and unmodified since its enactment. In its
seventy-two year history, it has been construed only once, in 1958, when the New
Mexico Supreme Court, relying on specific language in the statute, concluded that
the scope of the state’s consent to suit granted by the statute was limited to quiet title
actions against the state “for the limited purpose of aiding a mortgagee who
discovers that the [s]tate has acquired an interest in the mortgaged property and is
unable to pass a marketable title to the purchaser at a foreclosure sale unless the state
can be joined in the foreclosure suit.” Maes v. Old Lincoln Cty. Mem’! Comm’n,
1958-NMSC-115, 9 10, 64 N.M. 475, 330 P.2d 556; see also Nevares v. State
Armory Bd., 1969-NMSC-144, § 11, 81 N.M. 268, 466 P.2d 114 (applying Maes
without analysis).
{4 In 1975, the New Mexico Supreme Court abolished sovereign immunity “as

a defense by the [s]tate, or any of its political subdivisions, in tort actions.” Hicks,

1975-NMSC-056, § 9 (“Sovereign immunity was born out of the judicial branch of
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government, and it is the same branch which may dispose of the doctrine.”). Three
years later, our Supreme Court extended the holding of Hicks and abolished
sovereign immunity in quiet title actions as well. Brosseau, 1978-NMSC-098, § 11.
5} The Legislature responded to Hicks by enacting statutes that created immunity
for the State once again. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended
through 2015) (Tort Claims Act); Ferguson v. N.M. State Highway Comm’n, 1982-
NMCA-180, 9§ 4-6, 99 N.M. 194, 656 P.2d 244 (affirming the Legislature’s
constitutional authority to adopt statutory partial immunity and observing that New
Mexico turned from common law total immunity to our Supreme Court’s denial of
any immunity to partial statutory immunity). And one year after Brosseau was
decided, the Legislature reestablished immunity in property actions by enacting
Section 42-11-1, which provides that “[t]he state of New Mexico and its political
subdivisions ... may not be named a defendant in any suit, action, case or legal
proceeding involving a claim of title to or interest in real property except as
specifically authorized by law.”

The Valencia County Suit

{6} In the Valencia County suit, Plaintiff Belen Consolidated School District
(School District) sought to quiet title to a piece of real property in order to sell it.
The School District named Valencia County as a party defendant, alleging that

Valencia County had claimed an interest in the property. Valencia County filed a

motion to dismiss, claiming immunity from suit pursuant to Section 42-11-1. And
although it never asserted a specific claim to title, Valencia County stated that it used
the land in question as a park and sports facility for area youth. In response, the
School District claimed that Section 42-6-12 provides an exception to Valencia
County’s immunity and allows for quiet title lawsuits against political subdivisions
of the state, including counties. At the hearing, the district court concluded that
Brosseau was controlling and denied Valencia County’s motion to dismiss. We
accepted Valencia County’s appeal on a writ of error pursuant to Rule 12-503(B)
NMRA.

The Catron County Suit

{; In the Catron County suit, Plaintiffs Gregory A. Nash and Susie K. Nash (the
Nashes) filed a complaint against Catron County and others to quiet title to a piece
of real property that they owned in fee simple pursuant to a recorded warranty deed.
The Nashes’ property is located adjacent to and shares a boundary line with a
property located in Reserve, New Mexico, which is owned by Catron County and
apparently houses the Catron County courthouse complex. The Nashes named
Catron County as a party that may claim an interest in their property due to a later-
recorded deed and “to the extent [Catron] County may not agree with the location of

the boundary line of the [p]roperty.”

{833 | Catron County moved to dismiss the Nashes’ complaint for failure to state a
claim upon which relief may be granted, arguing that it was immune from suit
pursuant to Section 42-11-1. Catron County acknowledged that Section 42-6-12
provides an exception to immunity but argued that our Supreme Court’s holding in
Maes controlled and limited the state’s consent to be sued to foreclosure suits in
which the state claims an interest in the mortgaged property. In response, the Nashes
relied upon Brosseau, particularly its statement that “[t]he doctrine of sovereign
immunity may not be interposed to bar quiet title actions if its effect is to deny one
a remedy for the taking of his property without compensation.” 1978-NMSC-098,
q 12. They asked the district court to consider the public policy articulated in
Brosseau—that “[i]t is in the public interest that [clouds on title] be removed in order
that land be put to its full potential use[,]” and that property owners “may have no
adequate substitute to obtain an adjudication of their property rights as against the
claimed interest of the [s]tate.” Jd. FJ 11-12. The district court granted Catron
County’s motion to dismiss, concluding the Nashes’ claim was barred by statutory
immunity.

DISCUSSION

{9} | Whether Section 42-11-1 bars Plaintiffs’ quiet title suits against the Counties
is a question of law that we review de novo. See Rutherford v. Chaves Cty., 2003-

NMSC-010, 4 8, 133 N.M. 756, 69 P.3d 1199 (“The standard of review for

determining whether governmental immunity under the [Tort Claims Act] bars a tort
claim is a question of law which we review de novo.”), abrogated on other grounds
as recognized by Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005, {J 8-9,
341 P.3d 1.

{10} The starting point for our discussion is to define the framework of controlling
authority, considering Brosseau, which abolished judicially created sovereign
immunity from quiet title actions in 1978, and the Legislature’s enactment in 1979
of Section 42-11-1, which provides the State and its political subdivisions with
statutory immunity in any lawsuit “involving a claim of title to or interest in real
property.” The Nashes urge us to construe Section 42-11-1 in a manner consistent
with Brosseau, relying on the principle of statutory construction that “[w]e presume
that the [L]egislature knew about the existing law and did not intend to enact a law
inconsistent with any existing law.” Doe v. State ex rel. Governor’s Organized
Crime Prevention Comm’n, 1992-NMSC-022, 9 12, 114.N.M. 78, 835 P.2d 76. This
principle, however, is inapplicable in circumstances where the “legislation directly
and clearly conflicts with the common law[.]” Sims v. Sims, 1996-NMSC-078, { 23,
122 N.M. 618, 930 P.2d 153. When a direct conflict exists, our Supreme Court has
made clear that “the legislation will control because it is the most recent statement
of the law.” /d.; Beals, 1919-NMSC-067, { 36 (stating that when a statute is counter

to the common law, the common law gives way insofar as the statute conflicts with

its principles). Section 42-11-1 is addressed to the same subject matter as Brosseau
and directly conflicts with its holding. Consequently, Brosseau must yield. See Sims,
1996-NMSC-078, { 23 (holding that legislation controls when it “directly and clearly
conflicts with the common law”). Section 42-11-1 controls and acts as a bar to quiet
title suits against the state and its political subdivisions unless specifically authorized
by law.

(11; In light of the incongruity between Brosseau and Section 42-11-1, the
Counties question the ongoing effect of Section 42-6-12. Plaintiffs, in contrast, argue
that Section 42-6-12 should be construed broadly to waive immunity for all quiet
title suits against the state and its political subdivisions. Section 42-6-12 was not
amended or abolished when the Legislature reinstated immunity in property actions
by enacting Section 42-11-1, and, as noted, Section 42-6-12 remains in effect today.
See PNM Gas Servs. v. N.M. Pub. Util. Comm’n (In re Petition of N.M. Gas Servs.),
2000-NMSC-012, ¥ 73, 129 N.M. 1, 1 P.3d 383 (“We presume that the Legislature
[i]s aware of existing law. . . at the time it enact[s new law].”). Regardless, we are
bound by our Supreme Court’s interpretation of Section 42-6-12 in Maes, which
limits the state’s consent to be sued to circumstances where “the [s]tate has acquired
an interest in the mortgaged property and [the mortgagee] is unable to pass a
marketable title to the purchaser at a foreclosure sale unless the state can be joined

in the foreclosure suit.” 1958-NMSC-115, J 10; see State ex rel. Martinez v. City of

Las Vegas, 2004-NMSC-009, 22, 135 N.M. 375, 89 P.3d 47 (“[W]hile the Court
of Appeals is bound by Supreme Court precedent, the Court is invited to explain any
reservations it might harbor over its application of [Supreme Court] precedent so
that [the Supreme Court] will be in a more informed position to decide whether to
reassess prior case law[.]”). Because these circumstances are not present in either
suit, we follow Maes and hold that the waiver of immunity set forth in Section 42-
6-12 does not authorize Plaintiffs’ quiet title suits.

{12} We reach our holding with some uncertainty about the effect of Brosseau on
Maes. We note that when the Hicks Court abolished sovereign immunity in tort
actions, it expressly overruled all prior cases in which “governmental immunity from
tort liability was recognized,” but that the Brosseau Court did not make any similar
expression. Hicks, 1975-NMSC-056, 4 15; Brosseau, 1978-NMSC-098.
Nevertheless, we question whether, by abolishing the common law foundation that
underlies Maes, the Brosseau Court also intended to part company with the rationale
provided in Maes for construing Section 42-6-12 in the manner that it did. Compare
Maes, 1958-NMSC-115, J 11 (“Lest any doubt remain, it must be kept in mind that
statutes authorizing suits against the state are in derogation of sovereignty and must
be strictly construed.”), with NMSA 1978, § 12-2A-18(C) (1997) (“The presumption
that a civil statute in derogation of the common law is construed strictly does not

apply to a statute of this state.”). In today’s landscape, immunity is predicated on the

interplay of the two statutes discussed herein and presents a matter of statutory

construction—an analysis we do not engage in given our conclusion that Maes still
controls.
Plaintiffs’ Due Process Arguments

413} Asa final matter, both the School Board and the Nashes raise due process
arguments on appeal, arguing that their inability to bring quiet title suits amounts to
an unconstitutional taking and that no other remedy is available under these
circumstances. We decline to address the Nashes’ argument following our review of
the record, as the Nashes failed to raise this argument to the district court in the
Catron County suit and thus failed to preserve it for appeal. See Crutchfield v. N.M.
Dep’t of Taxation & Revenue, 2005-NMCA-022, { 14, 137 N.M. 26, 106 P.3d 1273
(determining constitutional issue was not preserved where party failed to invoke a
ruling of the district court on the issue). After reviewing the School District’s
constitutional argument, we find it insufficiently developed for consideration on the
merits. The School District states that “[t]he taking of property without
compensation, as [Valencia] County seeks to do here, is a violation of both state and
federal constitutional rights,” but has failed to demonstrate that the Takings Clause
is applicable in a case involving public lands or that other remedies, such as inverse
condemnation proceedings, are unavailable. See State v. Guerra, 2012-NMSC-014,

4 21, 278 P.3d 1031 (stating that the appellate courts are under no obligation to

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review unclear or undeveloped arguments). Given the record and arguments before
us, we decline to address the School District’s undeveloped due process argument.
CONCLUSION

414} For the foregoing reasons, in the Valencia County suit, we reverse the district
court’s order denying Valencia County’s motion to dismiss School District’s quiet
title complaint and remand for entry of an order dismissing the action against
Valencia County. In the Catron County suit, we affirm the district court’s order

dismissing the quiet title complaint against Catron County.

5} ITISSO ORDERED.

MEGAN P. DUFFY, e

WE CONCUR:

— L. aaa Judge

hs tro- Corte bad

KRISTINA BOGARDUS, Judge

May 29, 2019- Gregory A. Nash v. Board of County Commissioners of Catron County, No. A-1-CA-37081

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