Henderson v. City of Tucumcari

2005 NMCA 077, 114 P.3d 389, 137 N.M. 709
CourtNew Mexico Court of Appeals
DecidedApril 20, 2005
Docket24,660
StatusPublished
Cited by6 cases

This text of 2005 NMCA 077 (Henderson v. City of Tucumcari) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. City of Tucumcari, 2005 NMCA 077, 114 P.3d 389, 137 N.M. 709 (N.M. Ct. App. 2005).

Opinion

OPINION

WECHSLER, J.

{1} In this appeal, we address NMSA 1978, § 3-18-5 (1977), which allows municipalities to deal with ruins, rubbish, wreckage or debris, by requiring the owner to clean up the property. Under the statute, if the owner fails to ameliorate any problem, the municipality may do so and obtain a lien against the property. See § 3-18-5(F)(3). The City of Tucumcari was not satisfied with Plaintiffs’ efforts and cleaned up Plaintiffs’ property. Plaintiffs sued, contending that the City crew was overzealous and removed everything, including cars Plaintiffs contend are valuable because they are “antique,” “collectable,” “vintage,” or “restorable.” The district court dismissed Plaintiffs’ complaint for failure to state a claim under Rule 1-012(B)(6) NMRA, ruling that Plaintiffs failed to comply with statutory deadlines. We address whether the failure to follow the time deadlines in Section 3-18-5 requires dismissal. We also address issues concerning the statute of limitations under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to 41-4-27 (1976, as amended through 2004) (TCA). We reverse, holding that the time deadlines in Section 3-18-5 do not apply to this action and that, on the current state of the record, Plaintiffs’ lawsuit is not barred by the statute of limitations.

Background

{2} Section 3-18-5(A) provides:

Whenever any building or structure is ruined, damaged and dilapidated, or any premise is covered with ruins, rubbish, wreckage or debris, the governing body of a municipality may by resolution find that the ruined, damaged and dilapidated building, structure or premise is a menace to the public comfort, health, peace or safety and require the removal from the municipality of the building, structure, ruins, rubbish, wreckage or debris.

A copy of the resolution must be served on the owner or occupant of the property or an agent (of the owner). See § 3-18-5(B). The owner then has ten days either to begin ameliorating the problem or to file a written objection to the resolution with the municipal clerk, asking for a hearing. See § 3-18-5(C). If an objection is filed, the governing body must set a hearing and act on the objection. See § 3-18-5(D)(l). “Any person aggrieved by the determination of the governing body may appeal to the district court ... within twenty days after the determination.” Section 3-18-5(E)(2). If the owner does not timely begin ameliorating the problem, the governing body may do the work and obtain a lien against the property for the “reasonable cost” of doing the work, and may foreclose the lien. See § 3-18-5(F)(3). The statute requires that the premises be left in a “clean, level and safe condition, suitable for further occupancy or construction.” See § 3-18-5(H).

{3} Plaintiffs owned an automobile salvage business. Their home, which was also on the property, burned down. The City, under the aegis of Section 3-18-5, passed a resolution on March 23, 2000, declaring the property to be a menace. Plaintiffs did not dispute the City’s determination or the necessity of cleaning up the property. Plaintiffs made some efforts to comply, but assert that the City was not satisfied with their efforts.

{4} Plaintiffs contend that they had salvaged materials from the fire-damaged building that could be reused. They also contend that sidewalks, a cement slab floor, and a gas pipeline from a propane tank remained. Plaintiffs claim that during the last week of July and the first week of August 2001, approximately sixteen months after the resolution, the City brought dump trucks and a large tractor with a front-end loader to the property. They claim that the City then removed everything, including topsoil, leaving nothing behind.

{5} The list of removed items is lengthy. It includes personal property such as hoods from 1955-57 pickup trucks, one hundred hubcaps, ten axles from Model T Fords, and a wide variety of other, similar items. Plaintiffs contend that the City removed property worth over $69,000.

{6} Plaintiffs posit the question on appeal as “whether a municipality can take top soil, usable improvements or valuable merchandise along with wreckage, ruins, rubbish or debris.” Their view is that “[t]he law giving a city power to do a condemnation and then remove ruins, wreckage, rubbish or debris does not remove the duty to use care in doing so.” The City likely believes that having declared the entire property a menace, it had the right to remove all of the items. We do not determine the merits of Plaintiffs’ issue, nor do we address any defenses or other potential arguments the City may have. Although the parties briefed the issue of immunity under the TCA, the issue is premature for decision in this appeal of the grant of a motion to dismiss on unrelated grounds.

Standard of Review

{7} A motion to dismiss for failure to state a claim under Rule 1-012(B)(6), “tests the legal sufficiency of the complaint, accepting all well-pleaded factual allegations as true.” Derringer v. State, 2003-NMCA-073, ¶ 5,133 N.M. 721, 68 P.3d 961. Dismissal is warranted when the law does not support a plaintiff’s claim under any set of facts subject to proof. Id. We review a district court’s ruling on Rule 1 — 012(B)(6) motions de novo. Derringer, 2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961. The application of the TCA is also reviewed de novo. Godwin v. Mem’l Med. Ctr., 2001-NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 273.

Time Deadlines Under Section 3-18-5

{8} The City argues that Plaintiffs’ district court action did not follow the time deadlines in Section 3-18-5. The City believes that, after Plaintiffs were unhappy with the remediation project, Section 3-18-5 provided Plaintiffs’ sole recourse and required them to follow the short time deadlines in the statute. Instead, Plaintiffs did not file their lawsuit for approximately two years after the project. The City also argues that Plaintiffs were late because they did not file their lawsuit within the two-year limitations period in the TCA. The district court’s order reflects that it dismissed the case because Plaintiffs “failed to comply with any of the deadlines provided in the New Mexico Statutes.”

{9} In interpreting Section 3-18-5, we must determine legislative intent. See Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996) (stating that when interpreting statutes, a reviewing court must seek to give effect to the intent of the legislature). Our starting point is the plain language of the statute. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994) (noting the general rule that if the meaning of a statute is clear it must be applied as written).

{10} The statute is easily understood and its purpose is clear. It deals with blighted or hazardous property and gives the owner the first opportunity to address any problems. See § 3-18-5(A),(B). If the owner does not comply with a governing body’s request to ameliorate the problems, the statute allows the governing body to address the problem. See § 3-18-5(F).

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Cite This Page — Counsel Stack

Bluebook (online)
2005 NMCA 077, 114 P.3d 389, 137 N.M. 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-city-of-tucumcari-nmctapp-2005.