The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ________________
3 Filing Date: February 7, 2023
4 No. A-1-CA-39614
5 JOHN MARTENS and PAT MARTENS, 6 Individually and as Co-Personal 7 Representatives of the ESTATE OF V.M.,
8 Plaintiffs-Appellants,
9 v.
10 CITY OF ALBUQUERQUE, JOHN DOES 11 1-10, and JANE DOES 1-10, Individually,
12 Defendants-Appellees.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Denise Barela Shepherd, District Court Judge
15 Bowles Law Firm 16 Jason Bowles 17 Albuquerque, NM
18 Gorence Law Firm, LLC 19 Robert J. Gorence 20 Albuquerque, NM
21 for Appellants
22 Lauren Keefe, City Attorney 23 Stephanie M. Griffin, Deputy City Attorney 24 Albuquerque, NM
25 for Appellee City of Albuquerque 1 OPINION
2 WRAY, Judge.
3 {1} Plaintiffs John and Pat Martens (Plaintiffs), individually and on behalf of the
4 Estate of V.M., appeal the district court’s dismissal of their complaint against
5 Defendant the City of Albuquerque (the City) for violations of the New Mexico Tort
6 Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2020).
7 The district court concluded that Plaintiffs’ written notice did not comply with
8 Section 41-4-16(A) of the TCA, which requires persons who claim damages under
9 the TCA to provide “a written notice stating the time, place and circumstances of the
10 loss or injury.” We reverse.
11 BACKGROUND
12 {2} In 2016, Plaintiffs sent a “Notice of Claims Resulting in Injury/Death Per
13 [Section] 41-4-16” (the Notice) to the Bernalillo County Clerk, the Risk
14 Management Division, and the Mayor of the City of Albuquerque. The Notice
15 included the following subject line:
16 Re: Incident on or about, in the City of Albuquerque, County of 17 Bernalillo, State of New Mexico, in which the minor child 18 [V.M.] suffered serious injuries, and subsequently death, after 19 the New Mexico Corrections Department Probation and Parole 20 Division, located at 111 Gold Ave. SE, Albuquerque, NM 87102, 21 the New Mexico Children, Youth and Families Department 22 [(CYFD)], located at 1031 Lamberton Pl. NE, Albuquerque, 23 New Mexico 87107, and the Second Judicial District Court in 24 Bernalillo County, located at 400 Lomas Blvd. NW, 25 Albuquerque, New Mexico 87102, failed to properly monitor her 1 alleged killer, Fabian Gonzales, on probation; this is the Notice 2 of Claims pursuant to [Section] 41-4-16 . . . of the [TCA].
3 The body of the Notice stated,
4 Please take notice that Michael Martens, Wrongful Death Personal 5 Representative of the Estate of [V.M.], may make a claim or claims 6 against the County of Bernalillo, and all affected departments, agencies 7 and divisions within the State, County, and City arising out of the 8 incident involving an accident which took place on August 24, 2016, 9 when Fabian Gonzales, along with two others (Michelle Martens and 10 Jessica Kelley), drugged, sexually assaulted, tortured and killed 10- 11 year-old [V.M.], after the State of New Mexico, County of Bernalillo, 12 and City of Albuquerque generally engaged in tortious conduct and 13 circumstances leading to injury and death of [V.M.], including failure 14 to properly monitor Fabian Gonzales on probation.
15 Notice is provided that claims may be brought regarding the negligence 16 of the State of New Mexico, County of Bernalillo, and City of 17 Albuquerque, which resulted in the death of [V.M.] on or about August 18 24, 2016.
19 The City, in relevant part, responded, “Regarding the claim against the City of
20 Albuquerque, it was determined that subsequent to a murder investigation by the
21 Albuquerque Police Department [(APD)], the manner in which the crime was
22 investigated was appropriate and in accordance with departmental policies and
23 procedures.”
24 {3} Plaintiffs subsequently filed a complaint and alleged that the City, APD, and
25 unknown officers were negligent in failing to investigate a referral made by CYFD
26 that arose from an incident before V.M. was killed. After significant litigation, the
2 1 district court dismissed the complaint based on lack of written and actual notice of
2 the claim as required by the TCA under Section 41-4-16. This appeal followed.
3 DISCUSSION
4 {4} We review the district court’s decision de novo, because “[w]hether the
5 district court properly dismissed [the p]laintiffs’ claims for failing to comply with
6 the TCA’s notice requirement presents an issue of law.” Cummings v. Bd. of Regents
7 of Univ. of N.M., 2019-NMCA-034, ¶ 16, 444 P.3d 1058. To construe the statute, we
8 look first to the language of the notice requirement. See Niederstadt v. Town of
9 Carrizozo, 2008-NMCA-053, ¶ 19, 143 N.M. 786, 182 P.3d 769 (looking “first to
10 the plain meaning of the statute’s words” (internal quotation marks and citation
11 omitted)). Section 41-4-16(A) states,
12 Every person who claims damages from the state or any local public 13 body under the [TCA] shall cause to be presented to the risk 14 management division for claims against the state, the mayor of the 15 municipality for claims against the municipality, the superintendent of 16 the school district for claims against the school district, the county clerk 17 of a county for claims against the county, or to the administrative head 18 of any other local public body for claims against such local public body, 19 within ninety days after an occurrence giving rise to a claim for which 20 immunity has been waived under the [TCA], a written notice stating the 21 time, place and circumstances of the loss or injury.
22 Under Section 41-4-16(B), actual notice of the occurrence “excuses” the written
23 notice requirement under Section 41-4-16(A). Smith v. State ex rel. N.M. Dep’t of
24 Parks & Recreation, 1987-NMCA-111, ¶ 19, 106 N.M. 368, 743 P.2d 124. Unless
25 written notice is provided under Section 41-4-16(A) or “the public entity had actual
3 1 notice of the occurrence, a court is jurisdictionally barred from considering the
2 matter.” Herald v. Bd. of Regents of Univ. of N.M., 2015-NMCA-104, ¶ 49, 357 P.3d
3 438 (alteration, internal quotation marks, and citation omitted). The City contends
4 that Plaintiffs waived any challenge to the sufficiency of the evidence supporting the
5 district court’s dismissal and that Plaintiffs failed to establish written and actual
6 notice. Plaintiffs, however, do not appear to challenge the evidence and have
7 explicitly abandoned any challenge to the actual notice ruling. Instead, Plaintiffs
8 argue solely that the contents of the Notice satisfied the Section 41-4-16(A) written
9 notice requirement, and we therefore limit our analysis accordingly.
10 {5} The purpose of the TCA notice requirement is well established: “(1) to enable
11 the person or entity to whom notice must be given, or its insurance company, to
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The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ________________
3 Filing Date: February 7, 2023
4 No. A-1-CA-39614
5 JOHN MARTENS and PAT MARTENS, 6 Individually and as Co-Personal 7 Representatives of the ESTATE OF V.M.,
8 Plaintiffs-Appellants,
9 v.
10 CITY OF ALBUQUERQUE, JOHN DOES 11 1-10, and JANE DOES 1-10, Individually,
12 Defendants-Appellees.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Denise Barela Shepherd, District Court Judge
15 Bowles Law Firm 16 Jason Bowles 17 Albuquerque, NM
18 Gorence Law Firm, LLC 19 Robert J. Gorence 20 Albuquerque, NM
21 for Appellants
22 Lauren Keefe, City Attorney 23 Stephanie M. Griffin, Deputy City Attorney 24 Albuquerque, NM
25 for Appellee City of Albuquerque 1 OPINION
2 WRAY, Judge.
3 {1} Plaintiffs John and Pat Martens (Plaintiffs), individually and on behalf of the
4 Estate of V.M., appeal the district court’s dismissal of their complaint against
5 Defendant the City of Albuquerque (the City) for violations of the New Mexico Tort
6 Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2020).
7 The district court concluded that Plaintiffs’ written notice did not comply with
8 Section 41-4-16(A) of the TCA, which requires persons who claim damages under
9 the TCA to provide “a written notice stating the time, place and circumstances of the
10 loss or injury.” We reverse.
11 BACKGROUND
12 {2} In 2016, Plaintiffs sent a “Notice of Claims Resulting in Injury/Death Per
13 [Section] 41-4-16” (the Notice) to the Bernalillo County Clerk, the Risk
14 Management Division, and the Mayor of the City of Albuquerque. The Notice
15 included the following subject line:
16 Re: Incident on or about, in the City of Albuquerque, County of 17 Bernalillo, State of New Mexico, in which the minor child 18 [V.M.] suffered serious injuries, and subsequently death, after 19 the New Mexico Corrections Department Probation and Parole 20 Division, located at 111 Gold Ave. SE, Albuquerque, NM 87102, 21 the New Mexico Children, Youth and Families Department 22 [(CYFD)], located at 1031 Lamberton Pl. NE, Albuquerque, 23 New Mexico 87107, and the Second Judicial District Court in 24 Bernalillo County, located at 400 Lomas Blvd. NW, 25 Albuquerque, New Mexico 87102, failed to properly monitor her 1 alleged killer, Fabian Gonzales, on probation; this is the Notice 2 of Claims pursuant to [Section] 41-4-16 . . . of the [TCA].
3 The body of the Notice stated,
4 Please take notice that Michael Martens, Wrongful Death Personal 5 Representative of the Estate of [V.M.], may make a claim or claims 6 against the County of Bernalillo, and all affected departments, agencies 7 and divisions within the State, County, and City arising out of the 8 incident involving an accident which took place on August 24, 2016, 9 when Fabian Gonzales, along with two others (Michelle Martens and 10 Jessica Kelley), drugged, sexually assaulted, tortured and killed 10- 11 year-old [V.M.], after the State of New Mexico, County of Bernalillo, 12 and City of Albuquerque generally engaged in tortious conduct and 13 circumstances leading to injury and death of [V.M.], including failure 14 to properly monitor Fabian Gonzales on probation.
15 Notice is provided that claims may be brought regarding the negligence 16 of the State of New Mexico, County of Bernalillo, and City of 17 Albuquerque, which resulted in the death of [V.M.] on or about August 18 24, 2016.
19 The City, in relevant part, responded, “Regarding the claim against the City of
20 Albuquerque, it was determined that subsequent to a murder investigation by the
21 Albuquerque Police Department [(APD)], the manner in which the crime was
22 investigated was appropriate and in accordance with departmental policies and
23 procedures.”
24 {3} Plaintiffs subsequently filed a complaint and alleged that the City, APD, and
25 unknown officers were negligent in failing to investigate a referral made by CYFD
26 that arose from an incident before V.M. was killed. After significant litigation, the
2 1 district court dismissed the complaint based on lack of written and actual notice of
2 the claim as required by the TCA under Section 41-4-16. This appeal followed.
3 DISCUSSION
4 {4} We review the district court’s decision de novo, because “[w]hether the
5 district court properly dismissed [the p]laintiffs’ claims for failing to comply with
6 the TCA’s notice requirement presents an issue of law.” Cummings v. Bd. of Regents
7 of Univ. of N.M., 2019-NMCA-034, ¶ 16, 444 P.3d 1058. To construe the statute, we
8 look first to the language of the notice requirement. See Niederstadt v. Town of
9 Carrizozo, 2008-NMCA-053, ¶ 19, 143 N.M. 786, 182 P.3d 769 (looking “first to
10 the plain meaning of the statute’s words” (internal quotation marks and citation
11 omitted)). Section 41-4-16(A) states,
12 Every person who claims damages from the state or any local public 13 body under the [TCA] shall cause to be presented to the risk 14 management division for claims against the state, the mayor of the 15 municipality for claims against the municipality, the superintendent of 16 the school district for claims against the school district, the county clerk 17 of a county for claims against the county, or to the administrative head 18 of any other local public body for claims against such local public body, 19 within ninety days after an occurrence giving rise to a claim for which 20 immunity has been waived under the [TCA], a written notice stating the 21 time, place and circumstances of the loss or injury.
22 Under Section 41-4-16(B), actual notice of the occurrence “excuses” the written
23 notice requirement under Section 41-4-16(A). Smith v. State ex rel. N.M. Dep’t of
24 Parks & Recreation, 1987-NMCA-111, ¶ 19, 106 N.M. 368, 743 P.2d 124. Unless
25 written notice is provided under Section 41-4-16(A) or “the public entity had actual
3 1 notice of the occurrence, a court is jurisdictionally barred from considering the
2 matter.” Herald v. Bd. of Regents of Univ. of N.M., 2015-NMCA-104, ¶ 49, 357 P.3d
3 438 (alteration, internal quotation marks, and citation omitted). The City contends
4 that Plaintiffs waived any challenge to the sufficiency of the evidence supporting the
5 district court’s dismissal and that Plaintiffs failed to establish written and actual
6 notice. Plaintiffs, however, do not appear to challenge the evidence and have
7 explicitly abandoned any challenge to the actual notice ruling. Instead, Plaintiffs
8 argue solely that the contents of the Notice satisfied the Section 41-4-16(A) written
9 notice requirement, and we therefore limit our analysis accordingly.
10 {5} The purpose of the TCA notice requirement is well established: “(1) to enable
11 the person or entity to whom notice must be given, or its insurance company, to
12 investigate the matter while the facts are accessible; (2) to question witnesses; (3) to
13 protect against simulated or aggravated claims; and (4) to consider whether to pay
14 the claim or to refuse it.” Ferguson v. N.M. State Highway Comm’n, 1982-NMCA-
15 180, ¶ 12, 99 N.M. 194, 656 P.2d 244. The district court in the present case
16 concluded that the Notice failed to satisfy these purposes. Specifically, the district
17 court determined that the Notice failed to advise the City that the claim related to the
18 duty to investigate a child abuse referral, because the Notice referenced a failure to
19 supervise a probationer and thus “misdirect[ed], and thwart[ed], any inquiry into
20 whether the claim should be denied or should be paid.” Because we conclude that
4 1 the Notice satisfied the requirements of Section 41-4-16(A), we cannot agree that
2 the City did not have the requisite written notice.
3 {6} In relevant part, Section 41-4-16(A) requires a person who claims damages
4 under the TCA to present “a written notice stating the time, place and circumstances
5 of the loss or injury.” The notice must be directed to at least one of the named
6 individuals in the statute or an agent of those individuals. Id.; see Martinez v. City of
7 Clovis, 1980-NMCA-078, ¶¶ 14, 18, 95 N.M. 654, 625 P.2d 583 (permitting notice
8 to an agent). The notice must be presented “within ninety days after an occurrence
9 giving rise to a claim for which immunity has been waived under the [TCA].”
10 Section 41-4-16(A). The written notice provision requires nothing more of a
11 claimant seeking damages under the TCA. See Godwin v. Mem’l Med. Ctr., 2001-
12 NMCA-033, ¶ 80, 130 N.M. 434, 25 P.3d 273 (Pickard, J., concurring in part and
13 dissenting in part) (“The written notice required by Section 41-4-16(A) is limited to
14 the time, place, and circumstances of the loss or injury. Nothing more is required.”).
15 Thus, we turn to consider whether the Notice satisfied these requirements.
16 {7} The wrongful death personal representative, the claimant under the statute,
17 sent a written notice of a claim to the Bernalillo County Clerk, the Risk Management
18 Division, and the Mayor of the City of Albuquerque. See § 41-4-16(A). The parties
19 do not appear to dispute that the Notice was sent within ninety days of V.M.’s death.
20 The Notice states the time, place, and circumstances of the injury by generally
5 1 referring to the tortious conduct and negligence by the State, the County, and the
2 City, which caused V.M.’s injuries and death on August 24, 2016. The Notice
3 additionally states that the tortious conduct “includ[es] failure to properly monitor
4 Fabian Gonzales on probation.” The district court determined that this additional
5 language and other references to probation monitoring undermined the purpose of
6 the notice requirement and rendered the Notice insufficient. Despite the references
7 to probation monitoring, however, the City was made aware that a claim could be
8 brought based on the crime committed against V.M. and associated negligence and
9 tortious conduct leading to that crime. The Notice was timely, was sent to
10 appropriate individuals, and identified the time, place, and injury. The Notice
11 therefore satisfies the requirements of Section 41-4-16(A).
12 {8} Nevertheless, the City argues that the Notice was insufficient because it only
13 provided notice of the injury and did not include any of the specifically alleged
14 negligence that formed the basis of Plaintiffs’ complaint. Because the Notice
15 generally referenced “negligence” and “tortious conduct,” the City contends that the
16 Notice was too vague and general to permit reasonable investigation or anticipation
17 of a claim and therefore did not satisfy the purpose of the TCA notice requirement.
18 For support, the City cites Cummings, Ferguson, and Marrujo v. N.M. State Highway
19 Transportation Department, 1994-NMSC-116, 118 N.M. 753, 887 P.2d 747. These
20 cases, however, do not address the degree to which a claim must be specified in order
6 1 for a written notice to satisfy Section 41-4-16(A). The Marrujo Court considered the
2 sufficiency of an actual notice claim and not the requirements for written notice
3 under Section 41-4-16(A). Marrujo, 1994-NMSC-116, ¶ 25. In Ferguson, the
4 relevant question was whether the notice requirement violated due process
5 protections and not whether a particular notice satisfied the statutory requirements.
6 1982-NMCA-180, ¶¶ 3, 11, 14.
7 {9} This Court, in Cummings, did address the sufficiency of a written TCA notice.
8 2019-NMCA-034, ¶ 16. In that case, the plaintiff joined an existing class action and
9 before moving to join the class, submitted an affidavit that asserted an interest in the
10 class action and included the time, place, and injury. Id. ¶¶ 9, 15, 17. The Cummings
11 Court did not consider whether or decide that a written tort claim notice must
12 specifically identify a claim or meet a factual threshold that would permit an
13 investigation. Id. ¶ 21. Instead, this Court held that the already-filed class action
14 complaint provided notice and the affidavit alerted the defendants that the plaintiffs
15 intended to make claims. Id. ¶ 20. The present case does not involve an existing class
16 action or a completed investigation, and the Notice must therefore meet the statutory
17 requirements on its own terms. We have concluded that it does.
18 {10} Notwithstanding the language of the written notice requirement, the City
19 maintains that notice of the injury is not enough, because Section 41-4-16(A)
20 requires that the notice be related to a “claim for which immunity has been waived
7 1 under the [TCA].” We understand the City’s argument to be that because Section
2 41-4-16 twice refers to “a claim for which immunity has been waived under the
3 [TCA]” and a TCA claim must be rooted in one of the waivers of sovereign
4 immunity set forth in the TCA, “at minimum,” a TCA notice should “cite to a
5 specific section or sections” of the TCA waivers or cite “to alleged conduct that
6 would invoke one or more” of the TCA waivers. According to the City, the Notice
7 was therefore deficient because it did not identify a specific TCA waiver or conduct
8 that implicated a particular waiver and therefore did not put the City “on notice of
9 an occurrence giving rise to a claim for which immunity has been waived under the
10 [TCA] as required by Section 41-4-16 of the TCA.” We disagree that the language
11 of Section 41-4-16(A) requires such specificity in a written notice.
12 {11} Section 41-4-16(A) refers to “a claim for which immunity has been waived”
13 as follows:
14 Every person who claims damages from the state or any local public 15 body under the [TCA] shall cause to be presented to [identified 16 individuals], within ninety days after an occurrence giving rise to a 17 claim for which immunity has been waived under the [TCA], a written 18 notice stating the time, place and circumstances of the loss or injury.
19 (Emphasis added.) Section 41-4-16(C) states,
20 When a claim for which immunity has been waived under the [TCA] is 21 one for wrongful death, the required notice may be presented by, or on 22 behalf of, [identified individuals], within six months after the date of 23 the occurrence of the injury which resulted in the death; but if the
8 1 person for whose death the claim is made has presented a notice that 2 would have been sufficient had he lived, an action for wrongful death 3 may be brought without any additional notice.
4 (Emphasis added.) These two provisions refer to claims “for which immunity has
5 been waived” in the context of the time to provide notice, see § 41-4-16(A), and the
6 extended period for providing notice in a wrongful death case, see § 41-4-16(C).
7 Had the Legislature intended for the notice to refer to a specific waiver or incorporate
8 facts to show a waiver, it could have so required. See Velasquez v. Regents of N.
9 N.M. Coll., 2021-NMCA-007, ¶ 85, 484 P.3d 970 (noting that the Legislature “could
10 have easily” included words to achieve a particular effect had it so intended that
11 effect). Instead, the Legislature required that claimants present written notice within
12 ninety days of the occurrence of a claim that gives rise to a TCA claim and that
13 written notice states “the time, place and circumstances of the loss or injury.” Section
14 41-4-16(A). As we have explained, under that provision, nothing more is required.
15 CONCLUSION
16 {12} The Notice provided the City with the information necessary to investigate its
17 involvement with the circumstances leading to V.M.’s injuries and death. The
18 written Notice satisfied the requirements of Section 41-4-16(A). We therefore
19 reverse the district court and remand for further proceedings.
9 1 {13} IT IS SO ORDERED.
2 _________________________________ 3 KATHERINE A. WRAY, Judge
4 WE CONCUR:
5 _________________________________ 6 MEGAN P. DUFFY, Judge
7 _________________________________ 8 MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation