May 05, 2009 – Cruz Holguin v. Tsay Corporation, No. 28,777

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ____________
Filing Date: May 5, 2009
NO. 28,777
CRUZ HOLGUIN,
Plaintiff-Appellee,
v.
TSAY CORPORATION,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Timothy L. Garcia, District Judge
Timothy L. Butler
Santa Fe, NM
for Appellee
Bergen Law Offices, LLC
Lee Bergen
Albuquerque, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	On September 29, 2007, Cruz Holguin won a random drawing for a $250,000
prize at the Ohkay Owingeh Casino and Resort (the Casino) that Tsay Corporation
(Tsay) sponsored. Holguin alleged that Tsay refused to pay him $250,000 and instead
required him “to elect to receive either $125,000 less income tax withholding or to
receive payment of $250,000 spread over a period of [twenty] years.” Pursuant to a
limited waiver of immunity contained in a Tribal-State Class III Gaming Compact, a
patron of the Casino was entitled to sue Tsay for damages arising out of bodily injury
or property damage. 	Holguin sued Tsay for damages for breach of contract,
conversion, unfair practices, and for two counts of invasion of privacy. Tsay moved
to dismiss under Rule 1-012(B)(1) NMRA for lack of subject matter jurisdiction based
on tribal sovereign immunity from suit. The district court granted Tsay’s motion as
to three counts, but denied Tsay’s motion as to two counts of invasion of privacy.
Tsay obtained a district court certification for an interlocutory appeal and sought relief
in this Court pursuant to an interlocutory appeal, alternatively, a writ of error.
{2} 	This Court granted the interlocutory appeal, but now grants Tsay’s petition for
a writ of error and reverses the district court. This Court has jurisdiction under the
collateral order doctrine. That doctrine permits interlocutory relief from a denial of

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a motion to dismiss based on tribal sovereign immunity. See Carrillo v. Rostro, 114
N.M. 607, 616, 617-19, 845 P.2d 130, 139, 140-42 (1992) (adopting the collateral
order doctrine and prescribing a writ of error as the proper procedural device for
review of a denial of a motion for summary judgment); see also Osage Tribal Council
ex rel. Osage Tribe of Indians v. United States Dep’t of Labor, 187 F.3d 1174, 1178-
80 (10th Cir. 1999) (holding that the denial of a tribal immunity claim satisfies the
collateral order doctrine and stating “tribal immunity is of the sort that is immediately
appealable”).
{3} 	We hold that Tsay is immune from suit based on a claim for emotional injury
resulting from invasion of privacy. Therefore, the district court does not have subject
matter jurisdiction of Holguin’s claim.
BACKGROUND
{4} 	Holguin’s complaint alleged that he participated in one of Tsay’s “Million
Dollar Giveaway” drawings (the drawing), that he reasonably believed that he was
entitled to the full $250,000 he had won from the drawing, that Tsay refused to pay
him the full $250,000, that Tsay falsely advertised Holguin as winning the full
$250,000, and that Tsay reaped significant economic benefit by that false and
misleading advertisement and from the unauthorized use and appropriation of his

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likeness and name.
{5} 	Tsay’s motion to dismiss relied on provisions relating to its limited waiver of
immunity contained in the Tribal-State Class III Gaming Compact between the State
of New Mexico and Ohkay Owingeh (amended April 24, 2007), approved by the
Principal Deputy Assistant Secretary of the Department of the Interior, 72 Fed. Reg.
36,717 (July 5, 2007) (the Compact). 	Tsay is a tribal entity owned by Ohkay
Owingeh, and Tsay operates the Casino.
{6} 	Section 8(A) of the Compact sets out a “policy concerning protection of
visitors.” 	This provision states that “[t]he safety and protection of visitors to a
[g]aming [f]acility is a priority of the Tribe, and it is the purpose of this [s]ection to
assure that any such persons who suffer bodily injury or property damage . . . [shall]
have an effective remedy for obtaining fair and just compensation.” Section 8(D) of
the Compact states that “[t]he Tribe . . . waives its defense of sovereign immunity in
connection with any claims for compensatory damages for bodily injury or property
damage . . . . This is a limited waiver and does not waive the Tribe’s immunity from
suit for any other purpose.”
{7} 	Tsay also relied on two other documents: (1) an Ohkay Casino document titled
“$1 Million Giveaway Rules & Regulations” (the rules) that applied to the drawing,

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and (2) an Ohkay Casino information data sheet on which there is a “Photograph
Release Agreement” signed by Holguin (the release). 	The rules state that the
“[w]inner of $250,000 will have the choice of half the $250,000 cash ($125,000) or
an annuity option valued at $250,000 over a 20-year span.” The rules further state
that “[w]inners agree that as a condition of prize acceptance, the Ohkay Casino . . . is
authorized to use winner’s name and photo for advertising and publicity with no
compensation.” The release states that “Ohkay Casino . . . has sole permission to use
my name [and] photograph . . . for the purpose of advertisement and give all further
and future rights to those images.”
{8} 	The district court denied Tsay’s motion to dismiss as to the two counts of
invasion of privacy and certified the action for interlocutory appeal, stating that its
order involved “a controlling question of law concerning the scope of tribal sovereign
immunity as set forth in [Section] 8 of [the Compact].”
DISCUSSION
{9} 	We review a district court’s ruling on a Rule 1-012(B)(1) lack of subject matter
jurisdiction issue de novo. Sanchez v. Santa Ana Golf Club, Inc., 2005-NMCA-003,
¶ 4, 136 N.M. 682, 104 P.3d 548 (filed 2004). We also review de novo whether an
Indian tribe or an entity under its control has waived its sovereign immunity. Id.

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{10} 	Tsay 	argues 	that 	the 	words 	“bodily 	injury” 	and 	“property 	damage”
unambiguously require physical damage to a patron’s person or property and cannot
be construed to mean or include emotional injury resulting from the invasion of
privacy alleged. We agree with Tsay.
{11} 	As New Mexico law has developed, the words “bodily injury” and “property
damage” in Subsections 8(A) and (D) of the Compact relating to the safety of visitors
and limited waiver of immunity are not ambiguous and mean “physical damage to . . .
persons or property.” R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020,
¶¶ 21-25, 28, 139 N.M. 85, 128 P.3d 513 (filed 2005). 	The drafters intended to
provide a remedy to patrons who suffer physical injury to their persons or property.
Id. ¶¶ 22, 24, 28. A waiver of immunity beyond that which is written in the Compact
cannot be implied but must be express and unequivocal; also, a limited waiver must
be strictly construed. 	Id. ¶ 10; Sanchez, 2005-NMCA-003, ¶¶ 7, 10; see Missouri
River Servs., Inc. v. Omaha Tribe of Neb., 267 F.3d 848, 852 (8th Cir. 2001) (stating
that the waiver “must be clear” and when a tribe consents to suit, “any conditional
limitation it imposes on that consent must be strictly construed and applied” (internal
quotation marks and citations omitted)); Gallegos v. Pueblo of Tesuque, 2002-NMSC-
012, ¶ 7, 132 N.M. 207, 46 P.3d 668 (“A tribe can . . . waive its own immunity by

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unequivocally expressing such a waiver. . . . 	Without an unequivocal and express
waiver of sovereign immunity . . ., state courts lack the power to entertain lawsuits
against tribal entities.” (citations omitted)).
{12} 	Analyses in cases interpreting language in insurance contracts can be relevant
to issues of sovereign immunity. See Brenneman v. Bd. of Regents of Univ. of N.M.,
2004-NMCA-003, ¶¶ 6-8, 135 N.M. 68, 84 P.3d 685 (filed 2003). Requiring physical
injury when applying the term “bodily injury” in insurance contracts is fixed law in
New Mexico. 	See Gonzales v. Allstate Ins. Co., 122 N.M. 137, 138, 140, 921 P.2d
944, 945, 947 (1996) (holding the term “bodily injury” in the insurance policy at issue
was not ambiguous and that emotional distress from loss of consortium did not
constitute bodily injury or fall within that term); Hart v. State Farm Mut. Auto. Ins.
Co., 2008-NMCA-132, ¶¶ 8-10, 145 N.M. 18, 193 P.3d 565 (determining that New
Mexico cases addressing whether emotional injury is included in the concept of
“bodily injury” required the conclusion that the child did not suffer bodily injury),
cert. denied, 2008-NMCERT-008, 145 N.M. 254, 195 P.3d 1266; Economy Preferred
Ins. Co. v. Jia, 2004-NMCA-076, ¶ 11, 135 N.M. 706, 92 P.3d 1280 (stating that to
interpret the terms of the insurance policy, the court “must differentiate between
bodily injury and emotional injury,” and stating that “the alternative would be to

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extend coverage for bodily harm to all emotional injury, a result that is inconsistent
. . . with common-sense notions of what a reasonable insured would understand from
the policy language”).
{13} 	We can see no basis on which the district court could have appropriately denied
Tsay’s motion to dismiss as to the two counts of invasion of privacy. Holguin has
presented no argument or authority that overcomes the controlling law requiring
physical injury or damage. We are unpersuaded by Holguin’s argument that use of
his name and likeness is no different than if he were robbed of his jewelry and money
at gunpoint. 	We leave that hypothetical, which, unlike the present case, involves
threat, risk, and potential of physical harm, for another day. Presently, we are dealing
solely with an alleged emotional injury resulting from an alleged inchoate, incorporeal
invasion of his privacy. We cannot characterize Holguin’s claim as one for damages
for physical injury to himself or physical damage to property, and thus cannot
characterize the claim as one for bodily injury or property damage.
CONCLUSION
{14} 	We reverse the district court’s denial of Tsay’s motion to dismiss as to the two
counts of invasion of privacy. We hold that Tsay’s motion with regard to these counts
should have been granted. 	We instruct the court to enter an order dismissing

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Holguin’s complaint as it pertains to these two remaining counts for lack of subject
matter jurisdiction.
{15} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
______________________________
CYNTHIA A. FRY, Chief Judge
______________________________
ROBERT E. ROBLES, Judge