This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
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-Appellees.
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 1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {1} We withdraw the opinion filed in this case on February 4, 2019, and substitute
4 the following in its place. We grant the motion to correct the opinion.
5 {2} Appellant appeals from the district court’s order granting summary judgment
6 and dismissal in favor of Appellees. This Court filed a calendar notice proposing
7 summary affirmance. We received Appellee’s memorandum in support of the
8 proposed disposition, Appellant’s memorandum in opposition (MIO) to summary
9 affirmance, Appellant’s motion to withdraw the appeal, Appellee’s motion to strike
10 the MIO, and Appellee’s response in opposition to dismissal of the appeal, and have
11 considered the same. We deny Appellees’ motion to strike the MIO. We also deny
12 Appellant’s motion to withdraw the appeal and proceed with summary affirmance of
13 the district court’s order.
14 {3} Appellant’s docketing statement challenged whether the exemption for property
15 interests provided for by NMSA 1978, Section 7-36-3(B) (2006), is limited to
16 property a governmental entity has an ownership interest in pursuant to Article VIII,
17 Section 3 of the New Mexico Constitution. [DS 8] Appellant argued that interpreting
18 Section 7-36-3(B) as being limited by the Constitution renders the plain meaning of
19 that statute meaningless. [Id.] Relying on our Supreme Court’s holding in El Castillo
20 Retirement Residences v. Martinez, as controlling authority, our calendar notice
2 1 proposed to conclude that Article VIII, Section 3 limits the Legislature’s power to
2 exempt property from taxation, and because there is no constitutional authority for the
3 Legislature to exempt real property by statute, like NMSA 1978, Section 7-36-
4 7(B)(1)(d) (2008), Section 7-36-7(B)(1) cannot grant exemptions outside those
5 authorized by Article VIII, Section 3. [CN 3-4] El Castillo Retirement Residences v.
6 Martinez, 2017-NMSC-026, ¶¶ 29-30, 401 P.3d 751.
7 {4} Appellant does not assert any error in fact or law, or otherwise oppose the
8 proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754,
9 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the
10 burden is on the party opposing the proposed disposition to clearly point out errors in
11 fact or law.”); see also Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111,
12 ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing
13 statement but not contested in a memorandum in opposition are abandoned). Rather,
14 Appellant moves to dismiss the appeal by order and to allow the judgment below to
15 stand as decided without entry of a memorandum opinion. [Motion 1-2, 8; MIO 3, 8]
16 In the alternative, Appellant requests assignment to the general calendar for full
17 briefing on the constitutional question. [MIO 8; Motion 8]
18 {5} Appellees, on the other hand, agree to dismissal of the appeal on the condition
19 that this Court enter a memorandum opinion summarily affirming in accordance with
20 the proposed disposition. [MIS 1] Appellees assert that contrary to Appellant’s
3 1 assertion, they do not seek a declaration on the constitutionality of Section 7-36-3(B),
2 but request a memorandum opinion adopting the analysis in the proposed disposition
3 addressing the application of Section 7-36-3(B) to the undisputed facts of the case.
4 [Response 5]
5 {6} Appellant submits that permitting dismissal of the appeal by order alone, and
6 without a memorandum opinion, avoids any future dispute over the meaning and legal
7 force of the “un-litigated memorandum opinion.” [MIO 4] Appellant further asserts
8 that adopting the proposed summary disposition to affirm without full appellate
9 review would create persuasive authority that Article VIII, Section 3 renders Section
10 7-36-3(B) unconstitutional as written. [MIO 4-5] We disagree.
11 {7} First, there should be no dispute as to the propriety of our summary disposition
12 of the case or the precedential value of the resulting memorandum opinion. “The
13 summary calendar allows us to dispose of certain cases in an expeditious manner.”
14 Udall v. Townsend, 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341. And when
15 the facts are not disputed, a case may appropriately be decided on the Court’s
16 summary calendar. See Taylor, 1996-NMCA-111, ¶ 1; State v. Hearne, 1991-NMCA-
17 046, ¶ 32, 112 N.M. 208, 813 P.2d 485 (pointing out that, when facts are undisputed
18 and application of legal principles is clear, a case is appropriately decided on the
19 summary calendar). The docketing statement takes the place of full briefing when a
20 case is decided on the summary calendar. See State ex rel. N.M. Highway & Transp.
4 1 Dep’t v. City of Sunland Park, 2000-NMCA-044, ¶ 15, 129 N.M. 151, 3 P.3d 128
2 (“[T]he docketing statement . . . , which a party files in advance of assignment of his
3 [or her] case to one of the Court’s three dispositional calendars, . . . takes the place of
4 full briefing when a case is decided on the Court’s summary calendar.”). Thus, while
5 the summary disposition disposes of the legal and factual issues on appeal as between
6 the parties, and “may be cited for any persuasive value,” it is not precedential
7 authority for other cases. Rule 12-405(A) NMRA (“It is unnecessary for the appellate
8 court to write precedential opinions in every case. Disposition by order, decision or
9 memorandum opinion does not mean that the case is considered unimportant. It does
10 mean that the disposition is not precedent.”).
11 {8} Second, we emphasize that our proposed disposition does not decide the
12 constitutionality of Section 7-36-3(B). Rather, the calendar notice addresses whether
13 Section 7-36-3(B) is limited by Article VIII, Section 3. [CN 3-4] While Appellant’s
14 docketing statement argued that interpreting Section 7-36-3(B) as being limited by
15 Article VII, Section 3, would render the plain meaning of the statute unconstitutional
16 [DS 8], we merely applied controlling precedent to the undisputed facts of the case in
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
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-Appellees.
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 1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {1} We withdraw the opinion filed in this case on February 4, 2019, and substitute
4 the following in its place. We grant the motion to correct the opinion.
5 {2} Appellant appeals from the district court’s order granting summary judgment
6 and dismissal in favor of Appellees. This Court filed a calendar notice proposing
7 summary affirmance. We received Appellee’s memorandum in support of the
8 proposed disposition, Appellant’s memorandum in opposition (MIO) to summary
9 affirmance, Appellant’s motion to withdraw the appeal, Appellee’s motion to strike
10 the MIO, and Appellee’s response in opposition to dismissal of the appeal, and have
11 considered the same. We deny Appellees’ motion to strike the MIO. We also deny
12 Appellant’s motion to withdraw the appeal and proceed with summary affirmance of
13 the district court’s order.
14 {3} Appellant’s docketing statement challenged whether the exemption for property
15 interests provided for by NMSA 1978, Section 7-36-3(B) (2006), is limited to
16 property a governmental entity has an ownership interest in pursuant to Article VIII,
17 Section 3 of the New Mexico Constitution. [DS 8] Appellant argued that interpreting
18 Section 7-36-3(B) as being limited by the Constitution renders the plain meaning of
19 that statute meaningless. [Id.] Relying on our Supreme Court’s holding in El Castillo
20 Retirement Residences v. Martinez, as controlling authority, our calendar notice
2 1 proposed to conclude that Article VIII, Section 3 limits the Legislature’s power to
2 exempt property from taxation, and because there is no constitutional authority for the
3 Legislature to exempt real property by statute, like NMSA 1978, Section 7-36-
4 7(B)(1)(d) (2008), Section 7-36-7(B)(1) cannot grant exemptions outside those
5 authorized by Article VIII, Section 3. [CN 3-4] El Castillo Retirement Residences v.
6 Martinez, 2017-NMSC-026, ¶¶ 29-30, 401 P.3d 751.
7 {4} Appellant does not assert any error in fact or law, or otherwise oppose the
8 proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754,
9 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the
10 burden is on the party opposing the proposed disposition to clearly point out errors in
11 fact or law.”); see also Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111,
12 ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing
13 statement but not contested in a memorandum in opposition are abandoned). Rather,
14 Appellant moves to dismiss the appeal by order and to allow the judgment below to
15 stand as decided without entry of a memorandum opinion. [Motion 1-2, 8; MIO 3, 8]
16 In the alternative, Appellant requests assignment to the general calendar for full
17 briefing on the constitutional question. [MIO 8; Motion 8]
18 {5} Appellees, on the other hand, agree to dismissal of the appeal on the condition
19 that this Court enter a memorandum opinion summarily affirming in accordance with
20 the proposed disposition. [MIS 1] Appellees assert that contrary to Appellant’s
3 1 assertion, they do not seek a declaration on the constitutionality of Section 7-36-3(B),
2 but request a memorandum opinion adopting the analysis in the proposed disposition
3 addressing the application of Section 7-36-3(B) to the undisputed facts of the case.
4 [Response 5]
5 {6} Appellant submits that permitting dismissal of the appeal by order alone, and
6 without a memorandum opinion, avoids any future dispute over the meaning and legal
7 force of the “un-litigated memorandum opinion.” [MIO 4] Appellant further asserts
8 that adopting the proposed summary disposition to affirm without full appellate
9 review would create persuasive authority that Article VIII, Section 3 renders Section
10 7-36-3(B) unconstitutional as written. [MIO 4-5] We disagree.
11 {7} First, there should be no dispute as to the propriety of our summary disposition
12 of the case or the precedential value of the resulting memorandum opinion. “The
13 summary calendar allows us to dispose of certain cases in an expeditious manner.”
14 Udall v. Townsend, 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341. And when
15 the facts are not disputed, a case may appropriately be decided on the Court’s
16 summary calendar. See Taylor, 1996-NMCA-111, ¶ 1; State v. Hearne, 1991-NMCA-
17 046, ¶ 32, 112 N.M. 208, 813 P.2d 485 (pointing out that, when facts are undisputed
18 and application of legal principles is clear, a case is appropriately decided on the
19 summary calendar). The docketing statement takes the place of full briefing when a
20 case is decided on the summary calendar. See State ex rel. N.M. Highway & Transp.
4 1 Dep’t v. City of Sunland Park, 2000-NMCA-044, ¶ 15, 129 N.M. 151, 3 P.3d 128
2 (“[T]he docketing statement . . . , which a party files in advance of assignment of his
3 [or her] case to one of the Court’s three dispositional calendars, . . . takes the place of
4 full briefing when a case is decided on the Court’s summary calendar.”). Thus, while
5 the summary disposition disposes of the legal and factual issues on appeal as between
6 the parties, and “may be cited for any persuasive value,” it is not precedential
7 authority for other cases. Rule 12-405(A) NMRA (“It is unnecessary for the appellate
8 court to write precedential opinions in every case. Disposition by order, decision or
9 memorandum opinion does not mean that the case is considered unimportant. It does
10 mean that the disposition is not precedent.”).
11 {8} Second, we emphasize that our proposed disposition does not decide the
12 constitutionality of Section 7-36-3(B). Rather, the calendar notice addresses whether
13 Section 7-36-3(B) is limited by Article VIII, Section 3. [CN 3-4] While Appellant’s
14 docketing statement argued that interpreting Section 7-36-3(B) as being limited by
15 Article VII, Section 3, would render the plain meaning of the statute unconstitutional
16 [DS 8], we merely applied controlling precedent to the undisputed facts of the case in
17 holding that because the Legislature has been given no constitutional authority to
18 enact a statute exempting real property from taxation, Section 7-36-3(B) cannot be
19 interpreted to grant exemptions that are not authorized by Article VIII, Section 3. [CN
20 3-4] See El Castillo Ret. Residences, 2017-NMSC-026, ¶¶ 29-30. Although the
5 1 constitutional and statutory claims as raised and argued in the docketing statement are
2 necessarily intertwined, the proposed disposition does not consider either a facial or
3 as applied constitutional challenge to the statute. See Bounds v. State ex rel.
4 D’Antonio, 2013-NMSC-037, ¶ 14, 306 P.3d 457 (“Generally, in a facial challenge
5 to a statute, we consider only the text of the statute itself, not its application; whereas,
6 in an as-applied challenge, we consider the facts of the case to determine whether
7 application of the statute even if facially valid deprived the challenger of a protected
8 right.” (alterations, internal quotation marks, and citation omitted)).
9 {9} Lastly, Appellees do not stipulate to the dismissal of the appeal. [Motion 2-3;
10 Response 2] See Rule 12-401(B)(1) NMRA (“Prior to entry of disposition, if all of the
11 parties affected by an appeal or other proceeding sign and file with the appellate court
12 clerk an agreement that the same be dismissed, an order of dismissal shall be entered
13 and mandate or other process of the court shall issue immediately.”). Under these
14 circumstances, this Court has discretion to dismiss an appeal on our terms or on those
15 agreed upon by the parties. See Rule 12-401(B)(2) (“An appeal or other proceeding
16 may be dismissed by the appellate court after motion by the appellant or party
17 instituting the proceeding and upon such terms as are fixed by the appellate court or
18 agreed upon by the affected parties.” (emphasis added)). However, absent Appellees’
19 stipulation, we deny Appellant’s motion to dismiss the appeal, as this would prejudice
20 the rights of Appellee “to end the litigation by securing an affirmance of the judgment
6 1 of the lower court.” Acequia Madre v. Meyer, 1912-NMSC-044, ¶ 10, 17 N.M. 371,
2 128 P. 68 (“[H]ad appellants filed the dismissal prior to the motion for affirmance, no
3 question could, we apprehend, be raised as to the right to dismiss; but to permit the
4 dismissal after the appellee has acquired the right to an affirmance by his diligence
5 would be to deprive him of a legal right which he has acquired under the statute.”).
6 {10} We clarify that Section 7-36-3(B) must be read in light of Article VIII, Section
7 3 of the New Mexico Constitution. See El Castillo Ret. Residences, 2017-NMSC-026,
8 ¶ 25 (“A statute must be interpreted and applied in harmony with constitutionally
9 imposed limitations.”); see also Zhao v. Montoya, 2014-NMSC-025, ¶ 14, 329 P.3d
10 676 (“The Legislature’s inherent authority and discretion to exercise the State’s power
11 of taxation is plenary except in so far as limited by the Constitution.” (internal
12 quotation marks and citation omitted)). We conclude that Appellant is not entitled to
13 property tax exemptions under Section 7-36-3(B) because it, and not the city, owns
14 the subject property. See Sims v. Vosburg, 1939-NMSC-026, ¶ 4, 43 N.M. 255, 91
15 P.2d 434 (relying on Article VIII, Sections 1, 3, and 5 in stating that “[a]ll tangible
16 property in New Mexico is subject to taxation in proportion to value, and should be
17 taxed, unless specifically exempted by the constitution or by its authority”).
18 {11} For all of these reasons, and those stated in the proposed disposition, we affirm.
19 {12} IT IS SO ORDERED.
7 1 __________________________________ 2 LINDA M. VANZI, Judge
3 WE CONCUR:
4 _________________________________ 5 M. MONICA ZAMORA, Chief Judge
6 _________________________________ 7 JULIE J. VARGAS, Judge