Living Cross v. Valencia County Regional Communication Center

• Court: New Mexico Court of Appeals
• Decided: August 8, 2018
• Docket: A-1-CA-35298
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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 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

3 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.

4 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

5 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

6 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

7 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