A-1-CA-37494•February 4, 2019- El Castillo Retirement Residences v. Gus Martinez, No. A-1-CA-37494
February 4, 2019- El Castillo Retirement Residences v. Gus Martinez, No. A-1-CA-37494
A-1-CA-37494Nmctapp
Gesamter Gesetzestext
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 EL CASTILLO RETIREMENT 3 RESIDENCES, 4 Plaintiff-Appellant, 5 V. NO. A-1-CA-37494 6 GUS MARTINEZ, Santa Fe County 7 Assessor, and BOARD OF COUNTY 8 COMMISSIONERS FOR THE 9 COUNTY OF SANTA FE, 10 Defendants-Appel lees. 11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 David K. Thomson, District Judge 13 Jones, Snead, Wertheim & Clifford, P.A. 14 Jerry Todd Wertheim 15 Jenny F. Kaufman 16 Jiadai Lin 17 Santa Fe, NM 18 for Appellant 19 Bridget Jacober 20 Santa Fe, NM 21 for Appellees Court of Appeals of New Mexico Filed 2/4/2019 10:30 AM Mark Reynolds
1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {t} Appellant appeals from the district court's order granting summary judgment
4 and dismissal in favor of Appellees. This Court filed a calendar notice proposing
5 summary affirmance. We received Appellee's memorandum in support of the
6 proposed disposition, Appellant's memorandum in opposition (MIO) to summary
7 affirmance, Appellant's motion to withdraw the appeal, Appellee's motion to strike
8 the MIO, and Appellee's response in opposition to dismissal of the appeal, and have
9 considered the same.
10 {2} We deny Appellees' motion to strike the MIO. In this regard, we note that
11 Appellant filed an untimely memorandum in opposition. See Rule 12-210(D)(2)
12 NMRA ("The parties shall have twenty (20) days from the date of service of the
13 notice of proposed disposition to file and serve a memorandum in opposition or a
14 memorandum in support[.]"). We remind counsel to follow the rules more closely in
15 the future. We also deny Appellant's motion to withdraw the appeal and proceed with
16 summary affirmance of the district court's order.
17 {3} Appellant's docketing statement challenged whether the exemption for
18 property interests provided for by NMSA 1978, Section 7-36-3(B) (2006), is limited
19 to property a governmental entity has an ownership interest in pursuant to Article
21 VIII, Section 3 of the New Mexico Constitution. [DS 8] Appellant argued that
2 interpreting Section 7-36-3(B) as being limited by the Constitution renders the plain
3 meaning of that statute meaningless. [Id.] Relying on our Supreme Court' s holding
4 in El Castillo Retirement Residences v. Martinez, as controlling authority, our
5 calendar notice proposed to conclude that Article VIII, Section 3 limits the
6 Legislature' s power to exempt property from taxation, and because there is no
7 constitutional authority for the Legislature to exempt real property by statute, like
8 NMSA 1978, Section 7-36-7(B)(l)(d) (2008), Section 7-36-7(B)(l) cannot grant
9 exemptions outside those authorized by Article VIII, Section 3. [CN 3-4] El Castillo
10 Retirement Residences v. Martinez, 2017-NMSC-026, ,r,r 29-30, 401 P.3d 751.
11 {4} Appellant does not assert any error in fact or law, or otherwise oppose the
12 proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ,r 24, 124 N.M.
13 754, 955 P.2d 683 ("Our courts have repeatedly held that, in summary calendar cases,
14 the burden is on the party opposing the proposed disposition to clearly point out
15 errors in fact or law."); see also Taylor v. Van Winkle 's !GA Farmer 's Mkt., 1996-
16 NMCA-111, ,r 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a
17 docketing statement but not contested in a memorandum in opposition are
18 abandoned). Rather, Appellant moves to dismiss the appeal by order and to allow the
19 judgment below to stand as decided without entry of a memorandum opinion.
31 [Motion 1-2, 8; MIO 3, 8] In the alternative, Appellant requests assignment to the
2 general calendar for full briefing on the constitutional question. [MIO 8; Motion 8]
3 {5} Appellees, on the other hand, agree to dismissal of the appeal on the condition
4 that this Court enter a memorandum opinion summarily affirming in accordance with
5 the proposed disposition. [MIS 1] Appellees assert that contrary to Appellant' s
6 assertion, they do not seek a declaration on the constitutionality of Section 7-36-3(8),
7 but request a memorandum opinion adopting the analysis in the proposed disposition
8 addressing the application of Section 7-36-3(8) to the undisputed facts of the case.
9 [Response 5]
10 {6} Appellant submits that permitting dismissal of the appeal by order alone, and
11 without a memorandum opinion, avoids any future dispute over the meaning and legal
12 force of the "un-litigated memorandum opinion." [MIO 4] Appellant further asserts
13 that adopting the proposed summary disposition to affirm without full appellate
14 review would create persuasive authority that Article VIII, Section 3 renders Section
15 7-36-3(8) unconstitutional as written. [MIO 4-5] We disagree.
16 {7} First, there should be no dispute as to the propriety of our summary disposition
17 of the case or the precedential value of the resulting memorandum opinion. "The
18 summary calendar allows us to dispose of certain cases in an expeditious manner."
19 Udall v. Townsend, 1998-NMCA-162, ,-r 3, 126 N.M. 251 , 968 P.2d 341. And when
41 the facts are not disputed, a case may appropriately be decided on the Court's
2 summary calendar.See Taylor, 1996-NMCA-111, ,I l;Statev. Hearne, 1991-NMCA-
3 046, ,I 32, 112 N.M. 208,813 P.2d 485 (pointing out that, when facts are undisputed
4 and application of legal principles is clear, a case is appropriately decided on the
5 summary calendar). The docketing statement takes the place of full briefing when a
6 case is decided on the summary calendar. See State ex rel. N.M Highway & Transp.
7 Dep't v. City of Sunland Park, 2000-NMCA-044, ,I 15, 129 N.M. 151, 3 P.3d 128
8 ("[T]he docketing statement ... , which a party files in advance of assignment of his
9 [or her] case to one of the Court's three dispositional calendars, ... takes the place
10 of full briefing when a case is decided on the Court's summary calendar."). Thus,
11 while the summary disposition disposes of the legal and factual issues on appeal as
12 between the parties, and "may be cited for any persuasive value," it is not precedential
13 authority for other cases. Rule 12-405(A) NMRA ("It is unnecessary for the appellate
14 court to write precedential opinions in every case. Disposition by order, decision or
15 memorandum opinion does not mean that the case is considered unimportant. It does
16 mean that the disposition is not precedent.").
17 {8} Second, we emphasize that our proposed disposition does not decide the
18 constitutionality of Section 7-36-3(B). Rather, the calendar notice addresses whether
19 Section 7-36-3(B) is limited by Article VIII, Section 3. [CN 3-4] While Appellant's
51 docketing statement argued that interpreting Section 7-36-3(B) as being limited by
2 Article VII, Section 3, would render the plain meaning of the statute unconstitutional
3 [DS 8], we merely applied controlling precedent to the undisputed facts of the case
4 in holding that because the Legislature has been given no constitutional authority to
5 enact a statute exempting real property from taxation, Section 7-36-3(B) cannot be
6 interpreted to grant exemptions that are not authorized by Article VIII, Section 3. [CN
7 3-4] See El Castillo Ret. Residences, 2017-NMSC-026, ,r,r 29-30. Although the
8 constitutional and statutory claims as raised and argued in the docketing statement are
9 necessarily intertwined, the proposed disposition does not consider either a facial or
10 as applied constitutional challenge to the statute. See Bounds v. State ex rel.
11 D 'Antonio, 2013-NMSC-037, ,r 14 , 306 P.3d 457 ("Generally, in a facial challenge
12 to a statute, we consider only the text of the statute itself, not its application; whereas,
13 in an as-applied challenge, we consider the facts of the case to determine whether
14 application of the statute even if facially valid deprived the challenger of a protected
15 right." (alterations, internal quotation marks, and citation omitted)).
16 {9} Lastly, Appellees do not stipulate to the dismissal of the appeal. [Motion 2-3;
17 Response 2] See Rule 12-401(B)(l) NMRA ("Prior to entry of disposition, if all of
18 the parties affected by an appeal or other proceeding sign and file with the appellate
19 court clerk an agreement that the same be dismissed, an order of dismissal shall be
61 entered and mandate or other process of the court shall issue immediately."). Under
2 these circumstances, this Court has discretion to dismiss an appeal on our terms or on
3 those agreed upon by the parties. See Rule 12-401(B)(2) ("An appeal or other
4 proceeding may be dismissed by the appellate court after motion by the appellant or
5 party instituting the proceeding and upon such terms as are fixed by the appellate
6 court or agreed upon by the affected parties." ( emphasis added)). However, absent
7 Appellees' stipulation, we deny Appellant' s motion to dismiss the appeal, as this
8 would prejudice the rights of Appellee "to end the litigation by securing an
9 affirmance of the judgment of the lower court." Acequia Madre v. Meyer, 1912-
10 NMSC-044, ~ 10 , 17 N.M. 371 , 128 P. 68 ("[H]ad appellants filed the dismissal prior
11 to the motion for affirmance, no question could, we apprehend, be raised as to the
12 right to dismiss; but to permit the dismissal after the appellee has acquired the right
13 to an affirmance by his diligence would be to deprive him of a legal right which he
14 has acquired under the statute.").
15 {IO} We clarify that Section 7-36-3(B) must be read in light of Article VIII, Section
16 3 of the New Mexico Constitution. See El Castillo Ret. Re sidences, 2017-NMSC-026,
17 ~ 25 ("A statute must be interpreted and applied in harmony with constitutionally
18 imposed limitations."); see also Zhao v. Montoy a, 2014-NMSC-025, ~ 14,329 P.3d
19 676 ("The Legislature' s inherent authority and discretion to exercise the State's
71 power of taxation is plenary except in so far as limited by the Constitution." (internal
2 quotation marks and citation omitted)). We conclude that Appellant is not entitled to
3 property tax exemptions under Section 7-36-3(B) because it, and not the city, owns
4 the subject property. See Sims v. Vosburg, 1939-NMSC-026, 14 , 43 N.M. 255 , 91
5 P.2d 434 (relying on Article VIII, Sections 1, 3, and 5 in stating that " [a]ll tangible
6 property in New Mexico is subject to taxation in proportion to value, and should be
7 taxed, unless specifically exempted by the constitution or by its authority" ).
8 {11} For all of these reasons, and those stated in the proposed disposition, we affirm.
9 {12} IT IS SO ORDERED.
10
11 LIN
12 WE CONCUR:
13 l\.l~- ~14 M. MONICA ZAMO
15 ~ Q~16 JlJEJ. VA:RGAudge
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