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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 LIVING CROSS AMBULANCE SERVICE, INC., 3 Plaintiff-Appellant/Cross-Appellee, 4 v. No. A-1-CA-35298
5 VALENCIA COUNTY REGIONAL 6 EMERGENCY COMMUNICATIONS 7 CENTER and VILLAGE OF LOS LUNAS,
8 Defendants-Appellees/Cross-Appellants, 9 and
10 BOARD OF COUNTY COMMISSIONERS 11 OF VALENCIA COUNTY,
12 Defendant-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 14 James Lawrence Sanchez, District Judge
15 Chavez Law Firm, P.C. 16 Steven M. Chavez 17 Peralta, NM
18 Law Office of Joseph E. Earnest 19 Joseph E. Earnest 20 Tesuque, NM
21 for Appellant/Cross-Appellee
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1 Griego & Guggino 2 Laurence P. Guggino, Jr. 3 Los Lunas, NM
4 Montgomery & Andrews, P.A. 5 Stephen S. Hamilton 6 Kari E. Olson 7 Santa Fe, NM
8 for Appellees/Cross-Appellants
9 Spence Law Firm NM, LLC 10 Dennis K. Wallin 11 Albuquerque, NM
12 Law Office of Mark W. Allen, LLC 13 Mark W. Allen 14 Albuquerque, NM
15 for Defendant-Appellee 16 MEMORANDUM OPINION 17 BOHNHOFF, Judge. 18 {1} Plaintiff Living Cross Ambulance Service, Inc. (LCAS), sought declaratory and 19 injunctive relief that Defendant Valencia County Regional Emergency 20 Communications Center (VCRECC), which operates the enhanced 911 emergency 21 reporting system in Valencia County, and its constituent local governments, lacked 22 statutory authorization to charge LCAS a fee for providing medical emergency 23 dispatch service, and further that the New Mexico Constitution’s Anti-Donation
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1 Clause, N.M. Const. art IX, § 14, would not prohibit VCRECC from providing the 2 service without charging a fee. On cross-motions for summary judgment, the district 3 court ruled against LCAS and in favor of the Defendants on both of those issues. 4 However, the district court ruled in LCAS’s favor that the fees VCRECC had 5 retroactively assessed against LCAS were invalid. LCAS appealed the district court’s 6 ruling on the statutory authorization and Anti-Donation Clause issues, and Defendants 7 VCRECC and Village of Los Lunas appealed the district court’s ruling on the validity 8 of the retroactive fees. 9 {2} Prior to the September 20, 2017, oral argument in this matter, it came to the 10 Court’s attention that LCAS had ceased operations in Valencia County in early 2017. 11 At oral argument the Court questioned whether this appeal and any relief that could 12 be obtained by LCAS herein would be moot in the event it never resumed operations 13 and its certificate issued by the New Mexico Public Regulation Commission 14 (NMPRC) and authorizing it to provide ambulance service, see NMSA 1978, § 65- 15 2A-8 (2013), was revoked or terminated. Counsel for LCAS advised the Court that, 16 because the company was attempting to sell its business and the certificate had value 17 in connection with a potential sale, the appeal was not moot notwithstanding the fact 18 that it had ceased operations.
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1 {3} By order entered on June 22, 2018, LCAS was directed to file a supplemental 2 brief explaining the status since January 2017, including current status, of its 3 business, certificate, and any sale of the business; addressing whether LCAS still 4 intends to (a) maintain its certificate and continue to provide ambulance service in 5 Valencia County or (b) sell its business along with the certificate; and addressing 6 whether, under those circumstances, this appeal is moot. Appellees were permitted to 7 file a responsive brief. Both sides have filed supplemental briefs in accordance with 8 the Court’s order. For the reasons set forth below, we conclude that this appeal is moot 9 and will be dismissed. 10 {4} LCAS discloses in its supplemental brief that it voluntarily applied to the 11 NMPRC on January 25, 2017, to suspend its certificate, and the agency granted the 12 application on March 15, 2017. LCAS advises that such a voluntary suspension is 13 “valid for no more than twelve months and[,] if the certificate is not being used, it is 14 subject to cancellation thereafter.” LCAS further discloses that it has been unable to 15 sell its certificate or its business, and it “is no longer in business and its certificate will 16 be canceled by the NMPRC[.]” 17 {5} Given that LCAS will not resume operations in Valencia County, the Court 18 concludes that the relief that LCAS seeks in its complaint—a declaration that 19 VCRECC lacks statutory authorization to charge LCAS a fee for providing medical
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1 emergency dispatch service, and further that the New Mexico Constitution’s Anti- 2 Donation Clause would not prohibit VCRECC from providing the service without 3 charging a fee—would not provide LCAS with any actual relief. Thus, LCAS’s appeal 4 of the district court’s dismissal of its request for such a declaration is moot. See 5 Leonard v. Payday Prof’l/Bio-Cal Comp., 2008-NMCA-034, ¶ 8, 143 N.M. 637, 179 6 P.3d 1245 (holding that “[a]n appeal is moot when no actual controversy exists, and 7 an appellate ruling will not grant the appellant any actual relief” (internal quotation 8 marks and citation omitted)); cf. Suburban Tel. Co. v. Mountain States Tel. & Tel. Co., 9 1963-NMSC-121, ¶ 3, 72 N.M. 420, 384 P.2d 690 (appeal dismissed as moot 10 following determination that appellant telephone company had no right to provide 11 service that was the subject of underlying mandamus proceeding). 12 {6} LCAS does not argue to the contrary. Rather, LCAS contends only that, because 13 VCRECC in its cross-appeal seeks reversal of the district court’s summary judgment 14 ruling invalidating the fees that VCRECC sought to recover from LCAS, “[a]n actual 15 controversy exists regarding the LCAS’s alleged debt of dispatch fees for which this 16 Court can grant a justiciable remedy.” However, in their responsive supplemental 17 brief, cross-appellants VCRECC and Village of Los Lunas state that, given that LCAS 18 “1) is out of business, 2) expects to stay out of business, and 3) has no buyers for its 19 ambulance business,” they will not pursue their cross-appeal if LCAS’s appeal is
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1 dismissed as moot. In view of this commitment, LCAS’s argument that this 2 proceeding is not moot is meritless. 3 {7} LCAS also argues that two recognized exceptions to dismissal of a legal 4 proceeding on grounds of mootness are present here, specifically, that this appeal 5 involves issues of substantial public interest and those issues are capable of repetition 6 yet evading review. See Leonard, 2008-NMCA-034, ¶ 8 (stating that “an appellate 7 court can review moot cases which present issues of substantial public interest or 8 which are capable of repetition yet evade review” (alteration, internal quotation marks, 9 and citation omitted)). The issues in question, as LCAS frames them, are “whether 10 non-home rule local governments have a statutorily implied power to impose the ‘pay- 11 to-play,’ non-regulatory fee on private ambulance companies for emergency 12 911 . . . medical dispatch service” and “whether the Anti-Donation Clause . . . is a 13 lawful justification to assess the fee.” While we do not question that these are serious 14 issues, they do not rise to the level of substantiality that is the basis for recognizing 15 an exception to the mootness doctrine. Further, given the relative narrowness of the 16 issues identified by LCAS, and the lack of any showing that providers of emergency 17 911 medical dispatch service have fee disputes with ambulance companies elsewhere 18 in this state, we are not persuaded that there is a significant likelihood that these issues
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1 will come up again in the future, much less in circumstances that will result in them 2 evading review at that time. 3 {8} For the foregoing reasons, we dismiss LCAS’s appeal and VCRECC’s and the 4 Village of Los Lunas’s cross-appeal as moot.
5 {9} IT IS SO ORDERED.
6 ______________________________ 7 HENRY M. BOHNHOFF, Judge
8 WE CONCUR:
9 ___________________________________ 10 JULIE J. VARGAS, Judge
11 ___________________________________ 12 STEPHEN G. FRENCH, Judge