September 10, 2019- Katherine Han-Noggle v. The City of Albuquerque, No. A-1-CA-35989

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

KATHERINE HAN-NOGGLE, as
daughter and next of kin to MARY
Y.C. HAN, deceased, and
ELIZABETH WALLBRO, as
Personal Representative of the
Estate of Mary Y.C. Han,

Plaintiffs-A ppellants,
V.

THE CITY OF ALBUQUERQUE;
DARREN WEHTIE, in his individual

and offidal capacity as Public Safety
Director for the City of Albuquerque;
ROBERT PERRY, in his individual
Capacity and official capacity as the

City Attorney; CHIEF RAYMOND D.
SCHULTZ, in his individual and

official capacity as the Chief of Police

of the Albuquerque Police Department

for municpal and supervisory Caims;
DEPUTY CHIEF PAUL FEIST, DEPUTY
CHIEF ELIZABETH PAIZ, DEPUTY
CHIEF ALLEN BANKS, in their individual
and offical capacities as supervisors and
trainers within the Albuquerque Police
Department; MARC ADAMS, in his
individual and official capacity as manager,
investigator, and trainer of the Albuquerque
Police Department Crime Lab; FIELD
INVESTIGATOR MICHAFIL, MUNIZ, in his
individual and official capacity; OFFICER
TRICIA K. HOFFMAN, in her individual
and offical capacity; and TODD J.
WILHAM, Albuquerque Police Department
Public Information Officer in his

Court of Appeals of New Mexico
Filed 9/10/2019 11:11 AM

Hue
Mark Reynolds

No. A-1-CA-35969

2
individual and official capacity; and JOHN	1
DOES 1-2,	2
Defendants-Appellees.	3
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	4
Carl J. Butkus, District Judge	5
Vega Lynn Law Offices, LLC	6
Rosario D. Vega Lynn	7
Albuquerque, NM	8
for Appellants	9
Garcia Law Group, LLC	10
Bryan C. Garcia	11
Albuquerque, NM	12
for Appellees	13
MEMORANDUM OPINION	14
M. ZAMORA, Chief Judge.	15
{1} 	This case arises from the Albuquerque Police Department’s (APD) alleged	16
mishandling of the investigation into the death of Mary Y.C. Han (Decedent).	17
Katherine Han-Noggle, the daughter of Ms. Han, and Elizabeth Wallbro, the sister	18
and Personal Representative of the Estate of Ms. Han, (collectively, Plaintiffs)	19
appeal the district court’s dismissal of their claims brought, pursuant to the New	20
Mexico Tort Claims Act (the TCA), Sections 41-4-1 to -30 (1976, as amended	21
through 2019) against the City of Albuquerque and named Defendants in their	22
official and individual capacities (collectively, Defendants). The district court	23

3
entered an order: (1) dismissing the remaining Counts of Plaintiffs’ third amended	1
complaint for failure to state a claim under the TCA; and (2) denying Plaintiffs’	2
motion for leave to further amend their complaint and file a proposed fourth	3
amended complaint based on futility.	4
{2} 	Having reviewed the complaint and the applicable law, we conclude that	5
Plaintiffs’ 	well-pleaded 	facts 	are 	insufficient 	to 	establish 	a 	waiver 	of 	the	6
governmental immunity granted by Section 41-4-12. Because Defendants are	7
immune from suit, under the facts of this case, Plaintiffs have not stated a claim upon	8
which relief may be granted. We therefore affirm the district court’s order.	9
PROCEDURAL BACKGROUND	10
{3} 	Plaintiffs’ third amended complaint alleged various federal causes of action	11
and one state claim, pursuant to the TCA. Plaintiffs sought “compensatory damages	12
. . . to include replacement value of the personal property taken from the scene” and	13
“costs, expenses, and interest as allowed by law to include expert witness fees.” They	14
also sought “equitable relief including but not limited to (a) an order precluding	15
Defendants from asserting any defenses which may have been disproved by the	16
destruction or loss of evidence; and/or (b) an instruction to the jury that it may	17
consider that the lost evidence would be unfavorable to the Defendants; or (c) an	18
instruction that supervisory liability is proven as a matter of law”; and other relief	19
the district court deems proper.	20

4
{4} 	After a removal to and remand from federal district court,1 Plaintiffs’ sole	1
remaining 	claim, 	invoking 	the 	TCA, 	is 	Count 	VI 	which 	asserts 	“negligent	2
supervision and/or negligent investigation causing violation of property rights to wit,	3
spoliation of evidence.” The allegations are that despite the district court’s order in	4
a separate matter2 and their request for preservation of documentary evidence, APD	5
nonetheless failed to preserve the mobile phones of certain APD personnel that may	6
contain potential evidence thereby spoliating potential evidence that could bear on	7
Plaintiffs’ legal claims and in doing so, inhibits Plaintiffs ability to prove their legal	8
claims. “[T]he negligent supervision of, and negligent investigation by[] APD	9
personnel at the scene caused the loss of certain physical evidence forever[.]”	10
{5} 	Defendants moved to dismiss Count VI with prejudice on the basis that the	11
TCA waiver of immunity did not extend to the spoliation claims. Plaintiffs disputed	12
the scope of the waiver, and within their responsive pleading moved for leave to file	13
the fourth amended complaint arguing that an amendment was necessary to clarify	14
the state law claims in Count VI. Defendants opposed the amendment arguing that	15
it too failed to state any claims for relief.	16
1See Han-Noggle v. City of Albuquerque, et al., No. CV13-894-CG/GBW,
2014 WL 12618193 (D.N.M. Aug. 5, 2014).
2 The separate matter of In re Mary Y.C. Han, Second Judicial District Court
Cause No. 2011-CV-09975 was consolidated with the underlying matter prior to the
filing of this appeal.

5
{6} 	The proposed fourth amended complaint amends the parties to the lawsuit,	1
adds factual allegations, and raises new legal claims. Plaintiff Wallbro is named as	2
the sole Plaintiff and the City of Albuquerque ex rel. APD is the sole Defendant.	3
Plaintiffs add allegations that the previously-named Defendants were acting in their	4
capacities as officers and that APD is responsible for the actions and inactions of the	5
individuals and employees under the doctrine of respondeat superior and/or agency.	6
{7} 	Substantively, the proposed fourth amended complaint revises and adds new	7
legal claims as follows. Counts I and II allege violation of property rights, spoliation	8
of evidence, and theft or misappropriation of property. Count I also retains Plaintiffs’	9
general request for sanctions against Defendants for spoliation of evidence. Counts	10
III and IV allege interference with state and federal constitutional due process rights	11
to access to the courts for tort litigation. Count V alleges that APD violated NMSA	12
1978, Section 29-1-1 (1979) requiring a diligent investigation of all crimes. The	13
premise of the proposed Fourth Amended Complaint is negligent supervision and/or	14
a negligent investigation.	15
The District Court Proceedings	16
{8} 	The district court dismissed with prejudice Count VI of the third amended	17
complaint. Interpreting Count VI as one for intentional spoliation of evidence, the	18
district court held that Section 41-4-12 does not waive immunity for intentional	19
spoliation of evidence claims against law enforcement. Similarly, the district court	20

6
denied Plaintiffs’ motion for leave to amend and file the fourth amended complaint.	1
The district court noted that the underlying factual scenario remained essentially the	2
same; it was Plaintiffs’ claims that fluctuated. Concluding that Count I was	3
essentially the same as Count VI of the third amended complaint alleging spoliation,	4
the district court held that Count I would be futile in light of no new facts having	5
been alleged. With respect to Count II, the district court remarked that “[t]o the	6
extent [Plaintiffs] may be attempting to state a separate claim for ‘theft or	7
misappropriation of personal property,’ such an amendment would also be futile.”	8
The district court held that Counts II, III, IV, and V allege property damage resulting	9
from the misconduct, but Plaintiffs’ failure to assert “physical damage” to property	10
further supported futility of the amendment. Plaintiffs appeal.	11
{9} 	Because this is a memorandum opinion and the parties are familiar with the	12
factual background, we reserve discussion of Plaintiffs’ factual allegations for our	13
analysis.	14
STANDARDS OF REVIEW	15
Motion to Dismiss	16
{10} 	A district court’s decision to dismiss a case for failure to state a claim under	17
Rule 1-012(B)(6) NMRA is reviewed de novo. Thompson v. City of Albuquerque,	18
2017-NMCA-002, ¶ 5, 386 P.3d 1015, cert granted, 2017-NMSC-021, 397 P.3d	19
1279. “[W]e accept all well-pleaded factual allegations in the complaint as true and	20

7
resolve all doubts in favor of sufficiency of the complaint.” Valdez v. State, 2002-	1
NMSC-028, ¶¶ 4, 9, 132 N.M. 667, 54 P.3d 71. “Dismissal of a claim under this	2
[R]ule [1-012(B)(6)] is only proper if the plaintiffs are not legally entitled to relief	3
under any set of provable facts.” Thompson, 2017-NMCA-002, ¶ 5 (alteration,	4
internal quotation marks, and citation omitted). The purpose of a motion to dismiss	5
is to test the legal sufficiency of the claim, not the facts that support it. Saylor v.	6
Valles, 2003-NMCA-037, ¶ 6, 133 N.M. 432, 63 P.3d 1152. Only when “there is a	7
total failure to allege some matter essential to the relief sought” should a motion to	8
dismiss for failure to state a claim be granted. Id. This Court must also consider	9
whether the complaint includes factual allegations sufficient to raise a claim for	10
relief. See Rule 1-008(A)(2) NMRA (providing that a complaint must contain “a	11
short and plain statement of the claim showing that the pleader is entitled to relief”).	12
{11} 	New Mexico is a notice pleading state, Zamora v. St. Vincent Hospital, 2014-	13
NMSC-035, ¶ 10, 335 P.3d 1243, that “generally benefits plaintiffs in civil	14
litigation.” Milliron v. Cty. of San Juan, 2016-NMCA-096, ¶ 5, 384 P.3d 1089.	15
However, Rule 1-012(B)(6) requires “application of the facts pleaded in the	16
complaint to the applicable law.” Id. “[A]ll doubts must [be] resolved in favor of	17
sufficiency of the complaint.” R.A. Peck, Inc. v. Liberty Federal Sav. Bank, 1988-	18
NMCA-111, ¶ 4, 108 N.M. 84, 766 P.2d 928.	19

8
Motion to Amend	1
{12} 	“A district court’s denial of a motion to amend is reviewed under an abuse of	2
discretion standard.” Alliance Health of Santa Teresa, Inc. v. Nat’l Presto Indus.,	3
Inc., 2007-NMCA-157, ¶ 26, 143 N.M. 133, 173 P.3d 55. “An abuse of discretion	4
occurs when the district court exceeds the bounds of reason, all the circumstances	5
before it being considered.” Id. (internal quotation marks and citation omitted).	6
Leave to amend a complaint “shall be freely given when justice requires.” Rule 1-	7
015(A) NMRA. An amendment is futile if the pleading as amended, would be	8
subject to dismissal. See, e.g., Stinson v. Berry, 1997-NMCA-076, ¶ 9, 123 N.M.	9
482, 943 P.2d 129; id. ¶ 11 (“Consequently, in light of the fact that [the p]laintiffs’	10
amended complaint could not withstand a motion to dismiss, the amendment would	11
have been futile. We thus hold that the [district] court did not abuse its discretion in	12
refusing to allow the amendment.”).	13
Governmental Immunity	14
{13} 	Whether governmental immunity under the TCA bars Plaintiffs’ claims is a	15
question of law which we review de novo. Godwin v. Mem’l Med. Ctr., 2001-	16
NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 373.	17

9
DISCUSSION	1
{14} 	The viability of Plaintiffs’ claims rest on whether sovereign immunity has	2
been waived, pursuant to Section 41-4-12. We begin with a general overview of the	3
immunity waiver under state law.	4
I. 	The New Mexico TCA	5
{15} 	The doctrine of sovereign immunity bars suit against the state unless	6
immunity has been waived. See Sections 41-4-1 to -30. “The potential tort liability	7
of governmental entities and public employees is limited by the [TCA].” Archibeque	8
v. Moya, 1993-NMSC-079, ¶ 5, 116 N.M. 616, 866 P.2d 344. “[T]he [TCA] shields	9
governmental entities and public employees from tort liability unless immunity is	10
specifically waived by the [TCA].” Id.; see § 41-4-4(A). “[T]he [TCA] waives	11
immunity for negligent training and supervision by a law enforcement officer that	12
causes the commission by a subordinate law enforcement officer of a tort listed in	13
Section 41-4-12.” McDermitt v. Corr. Corp. of Am., 1991-NMCA-034, ¶ 7, 112	14
N.M. 247, 814 P.2d 115. It is “well-established that the mere negligence of a law	15
enforcement officer is insufficient to waive the tort immunity granted by Section 41-	16
4-4(A) unless such negligence results in one of the torts enumerated in Section 41-	17
4-12 or a deprivation of a statutory right.” Milliron, 2016-NMCA-096, ¶ 10.	18
{16} 	Plaintiffs’ claims arise out of Section 41-4-12, which provides in part:	19
[L]iability for personal injury, bodily injury, wrongful death or property	20
damage resulting from assault, battery, false imprisonment, false arrest,	21

10
malicious prosecution, abuse of process, libel, slander, defamation of	1
character, violation of property rights or deprivation of any rights,	2
privileges or immunities secured by the constitution and laws of the	3
United States or New Mexico when caused by law enforcement officers	4
while acting within the scope of their duties.	5
In order to state a tort claim under Section 41-4-12, a plaintiff must allege that (1)	6
they have suffered a type of injury set forth in the section, i.e., personal injury, bodily	7
injury, wrongful death, or property damage, and (2) that the injury arose out of a tort	8
enumerated in this section or a deprivation of a right secured by law. See Thompson,	9
2017-NMSC-021, ¶¶ 8-9 (stating that “[t]he plain language of Section 41-4-12 first	10
presents the types of injury for which a law enforcement officer’s immunity may be	11
waived” and then “delineates the torts for which a law enforcement officer’s	12
immunity may be waived”).	13
II. 	The District Court Properly Dismissed Count VI of Plaintiffs’ Third	14
Amended Complaint	15
16
{17} 	The 	difficulty 	with 	Plaintiffs’ 	third 	amended 	complaint 	is 	Plaintiffs’	17
fluctuation 	between conflicting theories—a theory of negligence and one of	18
intentional tort—within the same pleading, within their argument before the district	19
court, and on appeal. In Count VI, Plaintiffs allege the negligent supervision and/or	20
negligent investigation by Defendants caused the negligent loss of certain physical	21
evidence. 	They also allege that by negligently spoliating potential evidence,	22
Defendants 	“intentionally 	disrupted 	or 	defeated 	Plaintiffs’ 	legal 	claims” 	or	23
“inhibit[ed] Plaintiffs’ ability to prove their legal claims.” Before the district court,	24

11
Plaintiffs argued intentional spoliation of evidence and failure to implement proper	1
procedures to prevent spoliation. The district court concluded that Plaintiffs’ claim	2
was intentional spoliation but acknowledged Plaintiffs’ negligent supervision and	3
negligent investigation claims.	4
{18} 	On appeal, Plaintiffs argue in their brief in chief that Defendants willfully	5
failed to properly and competently investigate and deliberately interfered with the	6
death investigation. Yet, in their reply brief, Plaintiffs assert four claims sounding in	7
negligence: 	“omissions 	and 	commissions 	at 	[the] 	unattended 	death 	scene”;	8
“irregularities at the death scene” by Defendants clouded Plaintiffs’ ability to	9
determine if a crime was committed; “Defendants failed to implement proper	10
procedures to prevent spoliation and to prevent additional loss of evidence”; and,	11
Defendants “deviat[ed] from standard law enforcement procedure to preserve	12
evidence.”	13
{19} 	With all this in mind, our standard of review necessitates that Plaintiffs state	14
a claim in their complaint for which relief could be granted. See Walsh v. Montes,	15
2017-NMCA-015, ¶ 6, 388 P.3d 262 (“A motion to dismiss for failure to state claim	16
tests the legal sufficiency of the complaint[.]” (emphasis added) (internal quotation	17
marks and citation omitted)).	18

12
The TCA Does Not Provide a Waiver of Immunity for Plaintiffs’ Claims of	1
Negligent Supervision, Negligent Investigation, or Spoliation of Evidence.	2
{20} 	Any negligence in the performance of a law enforcement officer’s duty must	3
cause a specified tort or violation of right for waiver of immunity. See Bober v. N.M.	4
State Fair, 1991-NMSC-031, ¶ 32, 111 N.M. 644, 808 P.2d 614 (stating that	5
appellate courts have “held that a law enforcement officer or agency may be held	6
liable under Section 41-4-12 for negligently causing infliction of one of the predicate	7
torts[;]” however, “no case has held that simple negligence in the performance of a	8
law enforcement officer’s duty amounts to commission of one of the torts listed in	9
. . . [S]ection [41-4-12]”).	10
{21} 	New Mexico has recognized a cause of action for intentional spoliation of	11
evidence, but it has not recognized a cause of action for negligent spoliation of	12
evidence as a separate tort. Coleman v. Eddy Potash, Inc., 1995-NMSC-063, ¶¶ 12,	13
16, 120 N.M. 645, 905 P.2d 185, overruled on other grounds by Delgado v. Phelps	14
Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. In Caillouette	15
v. Hercules, Inc., 1992-NMCA-008, ¶ 18, 113 N.M. 492, 827 P.2d 1306, this Court	16
emphasized 	any 	negligent 	training 	or 	supervision 	of 	subordinates 	by 	law	17
enforcement officers must cause a tort specified in Section 41-4-12 or a violation of	18
a right, otherwise immunity is not waived for negligence alone. See Thompson,	19
2017-NMCA-002, ¶ 10 (“Immunity is also waived for negligent training and	20
supervision 	by a law enforcement 	officer that 	causes 	the commission 	by a	21

13
subordinate law enforcement officer of a tort listed in Section 41-4-12.” (alterations,	1
internal quotation marks, and citation omitted)). Plaintiffs have failed to direct us to	2
any authority supporting a claim that any alleged negligent or intentional spoliation	3
of evidence falls within one of the enumerated torts within Section 41-4-12.	4
{22} 	Plaintiffs contend that they clarified their claims to the district court when they	5
asserted that their claims were not for spoliation but rather for “failure to implement	6
proper procedures to prevent spoliation.” Plaintiffs’ reliance on Abalos v. Bernalillo	7
County District Attorney’s Office, 1987-NMCA-026, 105 N.M. 554, 734 P.2d 794	8
in support of that clarified claim is misplaced. In Abalos, the issue before this Court	9
was whether the director of a county detention center fell within the definition of a	10
law enforcement officer not whether there was a waiver of immunity. Id. ¶¶ 26-29;	11
see Section 41-4-3(D) (defining a law enforcement officer as any “full-time salaried	12
public employee of a governmental entity, whose principal duties under law are to	13
hold in custody any person accused of a criminal offense, to maintain public order	14
or to make arrests for crimes, or members of the national guard when called to active	15
duty by the governor”). This Court held that the director fell within the definition of	16
a law enforcement officer, and simply noted that the allegations of failing to	17
“formulate and implement procedures to prevent the mistaken release of violent	18
criminals[,] . . . if proven, [were] sufficient to establish [a] breach of duty” and	19
therefore the director would be liable under the TCA. Id. ¶ 29.	20

14
{23} 	Because immunity has not been waived as provided by Section 41-4-12, we	1
conclude that Count VI of Plaintiffs’ third amended complaint failed to state a claim	2
upon which relief can be granted. Accordingly, we affirm the district court’s order	3
dismissing Plaintiff’s third amended complaint.	4
III. 	The District Court Did Not Abuse Its Discretion in Denying Plaintiffs’	5
Proposed Fourth Amended Complaint	6
7
{24} 	Plaintiffs argue generally that “[m]otions to amend the complaint should be	8
freely granted” and the amended complaint was not futile because it “set[] forth the	9
state[d] claims in more detail.” Defendant argues that the claims are clearly futile	10
because spoliation of evidence claims have not been waived by the TCA; and claims	11
for injury to a property right do not fit within the meaning of “property damage” in	12
the TCA.	13
Count I	14
{25} 	Plaintiffs’ Count I in the proposed fourth amended complaint is practically	15
identical3 to Count VI in their third amended complaint. Because we have already	16
concluded that Count VI failed to state a claim upon which relief could be granted,	17
we extend that conclusion to Count I in the proposed fourth amended complaint.	18
3 Defendants Perry, Adams and Wilham were not included in the list of
personnel who were at Decedent’s home; July 31, 2012 and August 23, 2012, was
added to the list of Judge Nash’s verbal orders and Defendant Adams was excluded
from the list of APD personnel; the mobile phone of Defendant Adams was excluded
and the language “negligence has contaminated, spoiled, or lost potential evidence”
was added; and, the word “proximately” was added to the allegation.

15
Count II	1
{26} 	Plaintiffs allege that the negligent supervision and/or investigation caused a	2
violation of property rights. The title of this count includes that the property was	3
either stolen or misappropriated. The substance of the count alleges: “[APD] must	4
have systems in place [to] protect . . . personal belongings”; while APD was at the	5
scene, Decedent’s “personal diamond rings were missing;” APD’s failure to protect	6
Decedent’s personal property was the proximate cause of the loss of the rings; “[t]he	7
negligent supervision of, and negligent investigation by APD . . . caused the loss of	8
the rings”; and “[a]s a direct and proximate result of APD’s reckless deliberate and	9
negligent acts or omissions, [Decedent’s] personal property is lost.” Plaintiffs’	10
request for prayer seeks the “replacement value of the personal property taken from	11
the scene.” At the motions hearing, the district court specifically asked Plaintiffs’	12
counsel “what exactly do you contend was the property damage” to which counsel	13
replied, “the loss of the rings.”	14
{27} 	The district court concluded that the only available claim of liability pursuant	15
to Section 41-4-12, would be for property damage. The district court concluded that	16
the TCA in general and Section 41-4-12, in particular, required physical damage to	17
property in order for Plaintiffs to recover damages. Plaintiffs’ allegation for loss of	18
property was insufficient to qualify as property damage.	19

16
{28} 	Here, Plaintiffs argue that they did not have to allege physical damage to prove	1
property damage 	because 	they have 	alleged 	separate 	violations 	of 	protected	2
constitutional rights: “crime victims[’] protections and a property interest in the	3
body.” This argument appears to conflate the injury and the conduct for which the	4
City may be held liable.	5
{29} 	In order to be successful in their claim for property loss, Plaintiffs are required	6
to make a connection between APD’s alleged negligence and the missing rings,	7
beyond the allegations that APD were present and the rings were missing, therefore	8
Defendants were negligent. Assuming without deciding that APD was negligent,	9
Plaintiffs are still required to show how immunity was waived for Defendants’	10
actions. Plaintiffs fail to allege factual allegations explaining the causal connection	11
between the missing rings and Defendant’s actions. While they allege that it was	12
Decedent’s “habit and custom” to wear the rings daily, that she was seen wearing	13
the rings on November 17, 2010, the day before she was found dead, and that	14
Defendants did not investigate or search for the missing rings, Plaintiffs do not allege	15
any specific wrongdoing or negligence on behalf of Defendants. They merely allege	16
that Defendants proximately caused the loss, but do not say how. We have already	17
said that mere negligence is not enough to waive immunity. See Bober, 1991-	18
NMSC-031, ¶ 32 (“[N]o case has held that simple negligence in the performance of	19

17
a law enforcement officer’s duty amounts to commission of one of the torts listed in	1
. . . [S]ection [41-4-12].”).	2
{30} 	Because we reach our holding based on Plaintiffs’ failure to allege facts of	3
how Defendants were responsible, we need not reach whether physical damage is	4
required for property damage under the TCA. Since the district court based its ruling	5
on this finding—that physical damage was required for property damage—we affirm	6
the district court under our right for any reason doctrine. See Romero v. Bd. of Cty.	7
Comm’rs, 2011-NMCA-066, ¶ 7, 150 N.M. 59, 257 P.3d 404 (“[W]e can affirm if	8
the district court was correct for any reason that was before it on the basis of the	9
presentations of the parties.”). Again, Plaintiffs have failed to point us to any	10
authority that any such negligent supervision or a negligent investigation resulting	11
in the unaccountability of personal property falls within one of the enumerated torts	12
within Section 41-4-12, and we therefore hold that the district court did not abuse its	13
discretion in determining that Count II fails to state a claim for relief.	14
Counts III and IV	15
{31} 	For Count III, Plaintiffs assert a claim for negligent supervision and negligent	16
investigation causing interference with due process rights afforded by the federal	17
and state constitutions. They allege that “[b]y not protecting the evidence or integrity	18
of the scene . . . and by failing to preserve evidence and misleading the OMI, APD	19
personnel interfered with the Estate’s due process and/or right to access the Courts.”	20

18
The district court categorized the due process right to access the court as “arguably	1
a form of property right.”	2
{32} 	At the motions hearing, Plaintiffs argued that constitutional protections	3
asserted in the proposed complaint under Article II, Sections 2, 4, 18, and 24 of the	4
New Mexico Constitution fall within the waiver of immunity. Plaintiffs further	5
argued that to the extent the district court was bound by the federal district court’s	6
dismissal of the access to court claims, it should diverge from federal precedent	7
under an interstitial analysis.	8
{33} 	Count IV asserts the same claim under greater protections provided by the	9
state constitution for interference with the Estate’s due process right to access the	10
courts under the state constitution. It further alleges, “the conduct of Defendant’s	11
personnel at the scene . . . caused any and all evidence to be lost”; and “Defendant	12
was negligent in supervising the personnel who were present at [Decedent]’s home	13
and who interfered with any investigative efforts subsequent to November 18,	14
2010.” The alleged injury is the same. The federal district court, applying federal	15
law, rejected this claim. Although Plaintiffs contend that the state constitution	16
provides greater protections and urges this Court to apply an interstitial analysis,	17
they provide no analysis to support their contention. They merely cite to Morris v.	18
Brandenburg, 2016-NMSC-0027, ¶ 19, 376 P.3d 836, and State v. Gomez, 1997-	19
NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1, setting forth the procedure for an	20

19
interstitial analysis. At the motions hearing, Plaintiffs’ counsel again identified the	1
Gomez case as established precedent for an interstitial analysis and identified the	2
pertinent state constitutional provisions, but never provided any application of	3
Gomez or argument to support their claim.	4
{34} 	We decline to consider Plaintiffs’ state constitutional claim where Plaintiffs	5
have failed to provide us with any authority, state or federal, or analysis that	6
evidences a greater protection under the state constitution, much less a greater	7
protection in the face of a failure to adequately plead a cognizable injury. We are	8
unable to overlook this critical flaw. “To rule on an inadequately briefed issue, this	9
Court would have to develop the arguments itself, effectively performing the parties’	10
work for them.” Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309	11
P.3d 53. “This creates a strain on judicial resources and a substantial risk of error. It	12
is of no benefit either to the parties or to future litigants for [appellate courts] to	13
promulgate case law based on our own speculation rather than the parties’ carefully	14
considered arguments.” Id. Therefore, we do not reach this state constitutional	15
issue. Count IV thus fails to state a claim for relief.	16
{35} 	Similarly, Court III is subject to dismissal because regardless of whether	17
interference with due process rights is categorized as a deprivation of a property	18
right or some other constitutional deprivation, Plaintiffs were still required to assert	19
that they had a viable cause of action resulting from the alleged interference. See	20

20
Han-Noggle City of Albuquerque, 632 F. App’x 476, 481 (10th Cir. 2015)	1
(unpublished) (holding that “[t]he right of access to the courts is ancillary to the	2
underlying claim, without which a plaintiff cannot have suffered injury by being shut	3
out of court” (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)); see	4
generally, Kerns v. Bd. of Comm’rs of Bernalillo Cty., 707 F. Supp. 2d 1190, 1283	5
(D.N.M. 2010) (rejecting argument that “law enforcement officer is liable for	6
property damage resulting from a violation of property rights” where search pursuant	7
to a warrant was lawful, and dismissing claims under the TCA for deprivation of	8
property right based in trespass and conversion due to failure to put forth facts	9
asserting “any evidence of property damage”), overruled on other grounds by, Kerns	10
v. Bader, 66 F.3d 1173 (10th Cir 2011).	11
{36} 	Plaintiffs neither specify what legal claim they may have been able to pursue	12
had APD not engaged in the alleged negligent conduct, nor attempt to quantify their	13
damages in not being able to pursue the undermined tort claim. New Mexico courts	14
have been hesitant to recognize damages which are similarly highly speculative in	15
nature. See, e.g., Peters Corp. v. N.M. Banquest Inv’rs Corp., 2008-NMSC-039,	16
¶ 37, 144 N.M. 434, 188 P.3d 1185 (stating “vague speculation about the outcome	17
of a hypothetical lawsuit . . . does not establish any concrete loss to the [plaintiffs]	18
resulting from [the defendant’s conduct]. Such speculation cannot form the basis for	19

21
compensatory damages, let alone equitable remedies that are awarded at the	1
discretion of the [district] court.”).	2
{37} 	Plaintiffs further argue that because they have demonstrated the traditional	3
standing requirements of “injury in fact, causation, and redressability,” ACLU v. City	4
of Albuquerque, 2008-NMSC-045, ¶¶ 9-10, 144 N.M. 471, 188 P.3d 1222, that they	5
are entitled to a remedy. However, New Mexico’s guarantee of access to the courts	6
“does not guarantee the continued existence of a cause of action or remedy.” Trujillo	7
v. City of Albuquerque, 1998-NMSC-031, ¶¶ 21, 23, 125 N.M. 721, 965 P.2d 305;	8
see also Wills v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105, ¶ 29, 357 P.3d	9
453 (“The right to sue the government for tort damages is not a fundamental right;	10
it is a statutory right. As such the Legislature may reasonably restrict that right, as it	11
has done in the TCA.” (internal quotation marks and citations omitted)). We hold	12
that the district court did not abuse its discretion in denying Plaintiffs’ motion for	13
leave to amend their complaint and incorporate Counts III and IV.	14
Count V	15
{38} 	Plaintiffs allege that the negligent supervision and/or negligent investigation	16
deprived the Estate of a statutory right as set forth in Section 29-1-1, which is	17
intended to protect the public, including Decedent’s Estate. The factual allegations	18
include: Decedent habitually wore two family heirloom rings worth $100,000,	19
including the day she died; APD did not investigate or search for the missing rings;	20

22
Decedent’s sister “was forced to file a police report . . . about the missing rings”;	1
APD eventually investigated the matter and the assigned investigator expressed	2
some concerns with the number of people at the scene; the APD investigator stated	3
that the person first to arrive on the scene did not notice whether Decedent was	4
wearing the rings. Plaintiffs further allege that “[a]s a direct and proximate result of	5
APD’s reckless, deliberate and negligent acts or omissions in failing to fulfill their	6
duties . . . Defendant[s] proximately caused Plaintiff[s] harm.”	7
{39} 	Section 29-1-1 requires law enforcement officers “to investigate all violations	8
of criminal laws of the state which are called to the attention of any such officer or	9
of which he is aware[.]” Plaintiffs argue on appeal that but for the Defendant’s	10
violation of the statue, they would have access to the courts to seek any redress. See	11
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶¶ 33-	12
35, 121 N.M. 646, 916 P.2d 1313 (concluding that Section 29-1-1 creates a duty to	13
private 	individuals 	and 	remedy 	of 	removing 	the 	officer 	does 	not 	“preclude	14
enforcement under the [TCA]”). Section 29-1-1 requires a criminal violation in order	15
to trigger an investigation by law enforcement. The proposed fourth amended	16
complaint does not identify an alleged crime that would trigger an investigation into	17
the missing rings. The complaint states that there was an investigation at their	18
prompting, but never reveals whether a conclusion was reached in that investigation	19
and if so, whether the conclusion included criminal violations. We recognize that	20

23
Plaintiffs incorporated by reference Count II into Count V; however, Count II simply	1
alleges that the rings were missing and the negligent supervision and investigation	2
caused the loss of the rings. Plaintiffs’ implicit claim that an unknown crime was	3
committed requires pure speculation to form the basis for a claim for relief. See, e.g.,	4
Baca v. Bueno Foods, 1988-NMCA-112, ¶ 15, 108 N.M. 98, 766 P.2d 1332	5
(“Evidence from which a proposition can be derived only by speculation among	6
equally plausible alternatives is not substantial evidence of the proposition.”). We	7
conclude that the district court did not abuse its discretion in denying Plaintiffs	8
motion for leave to amend their complaint and that such an amendment would be	9
futile.	10
CONCLUSION	11
{40} 	Based 	on 	the 	foregoing, 	we 	affirm the 	district 	court’s 	order 	granting	12
Defendants’ motion to dismiss Count VI of the third amended complaint and	13
denying Plaintiffs’ motion for leave to amend their complaint.	14
{41} 	IT IS SO ORDERED.	15
____________________________________	16
M. MONICA ZAMORA, Chief Judge	17

WE CONCUR:

Pagustins K. Woodly,

JACGUELINE R. MEDINA, Judge

MICHAEL D. BUSTAMANTE, Judge Pro Tempore

24.