February 4, 2019- El Castillo Retirement Residences v. Gus Martinez, No. A-1-CA-37494

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
2

1 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.
3

1 [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
4

1 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
5

1 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
6

1 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
7

1 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
8