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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DARON D. SCOTT and 3 DURYEA SCOTT,
4 Plaintiffs-Appellants,
5 v. No. 31,751
6 DOÑA ANA COUNTY, a local public body 7 of the State of New Mexico, DOÑA ANA 8 COUNTY SHERIFF’S DEPARTMENT, 9 OFFICER ROBYN GOJKOVICH, individually 10 and in her official capacity, OFFICER CURTIS 11 CHILDRESS, individually and in his official 12 capacity, OFFICER MARY LOU WARD, 13 individually and in her official capacity, 14 OFFICER LINDA MALDONADO, 15 individually and in her official capacity, 16 OFFICER PAUL RICHARDSON, individually 17 and in his official capacity, OFFICER TRAVIS 18 WELLS, individually and in his official capacity, 19 OFFICER MANNY HERNANDEZ, individually 20 and in his official capacity, OFFICER FNU RUBIO, 21 individually and in his official capacity, OFFICER 22 FNU PALMER, individually and in his official 23 capacity, OFFICER DARREN WHITE, individually 24 and in his official capacity, HEATHER FERGUSON, 25 individually and in her official capacity, and UNKNOWN 26 OFFICERS, JOHN and JANE DOES 1 THROUGH 13,
27 Defendants-Appellees. 1 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 2 James T. Martin, District Judge
3 Rodriguez Law Firm 4 Augustine M. Rodriguez 5 Albuquerque, NM
6 for Appellants
7 Holt Mynatt Martinez P.C. 8 Damian L. Martinez 9 Casey B. Fitch 10 Las Cruces, NM
11 for Appellees
12 MEMORANDUM OPINION
13 SUTIN, Judge.
14 {1} Plaintiffs Daron Scott and Duryea Scott appeal from the district court’s
15 dismissal of their complaint against Defendant Doña Ana County and a number of its
16 officers and employees (Defendants) for a statute of limitations violation. Plaintiffs
17 argue that the district court erroneously applied a two-year rather than a three-year
18 statute of limitations to seven of the fourteen claims in their complaint. In regard to
19 six other claims, Plaintiffs argue that the district court erred by failing to accurately
20 determine the date on which the statute of limitations began to run, resulting in an
2 1 erroneous dismissal of claims that were properly brought within the two-year statute
2 of limitations. We affirm.
3 BACKGROUND
4 {2} The facts that gave rise to Plaintiffs’ lawsuit against Defendants are not at issue
5 in this appeal. Based on Plaintiffs’ complaint and brief in chief, the facts are as
6 follows. As a result of an investigation into the housing and proper care for Plaintiffs’
7 dogs, Defendants conducted raids on August 8, 2007, of two separate properties, one
8 of which belonged to Daron Scott and the other to Duryea Scott. During the raid of
9 Daron’s property, the property was searched, and his dogs were taken. During the raid
10 of Duryea’s property, Duryea was placed in the back of a police car and interrogated,
11 his vehicle and his person were searched, and his dogs were taken. Defendants carried
12 out these activities without a warrant.
13 {3} On August 10, 2007, Defendants raided Daron’s and Duryea’s respective
14 properties in El Paso, Texas. At his El Paso property, Daron and his family were
15 seized and searched, Daron’s home and vehicles were searched, and his dogs were
16 taken. At Duryea’s El Paso property, he and his family were seized and searched, his
17 home and vehicles were seized and searched, and his dogs were taken. Defendants
18 did not have valid warrants to engage in the El Paso raids. On October 18, 2007,
3 1 pursuant to arrest warrants that were issued based on allegations of dog fighting,
2 Plaintiffs were arrested.
3 {4} On July 27, 2009, Plaintiffs separately filed lawsuits against Defendants in the
4 First Judicial District Court in Santa Fe, New Mexico. The lawsuits alleged civil
5 rights violations under 42 U.S.C. § 1983 (1996), and the lawsuits stated claims arising
6 under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as
7 amended through 2009). Defendants removed the matter to the United States District
8 Court for the District of New Mexico, where the two cases were consolidated. On
9 March 31, 2011, the United States District Court dismissed Plaintiffs’ federal claims
10 with prejudice and remanded the remaining state claims to the First Judicial District
11 Court.
12 {5} On June 27, 2011, the First Judicial District Court dismissed Plaintiffs’
13 complaint without prejudice based on improper venue. On July 15, 2011, Plaintiffs
14 re-filed their case in the proper venue, the Third Judicial District Court in Doña Ana
15 County. On August 25, 2011, Defendants filed a motion to dismiss the complaint
16 claiming, among other things, that Plaintiffs’ claims were barred by the statute of
17 limitations, which had expired on July 11, 2011. On September 20, 2011, Plaintiffs
18 filed a response in opposition to Defendants’ motion to dismiss. On October 3, 2011,
19 the district court held a hearing on Defendants’ motion to dismiss.
4 1 {6} In their written response, and orally at the hearing, Plaintiffs argued that all of
2 their claims should stand. Specifically, Plaintiffs argued that although Claims 1 and
3 8-121 were governed by a two-year statute of limitations, many of Defendants’ alleged
4 wrongful actions occurred after August 8 and 10, 2007, and were brought within the
5 two-year statute of limitations. Additionally, in regard to Claims 2-72, Plaintiffs
6 argued that those claims were governed by a three-year statute of limitations because
7 they were brought under the New Mexico Constitution.
8 {7} The district court noted that the federal constitutional claims were dismissed by
9 the federal court, and it determined that the state constitutional claims had a two-year
10 statute of limitations under the Tort Claims Act. Further, notwithstanding Plaintiffs’
11 argument that malicious prosecution and other violations had occurred later, the court
12 found that “the body of the complaint reference[d] . . . acts or omissions which
13 occurred on or about [August 8 and 10, 2007,] as a result of the searches.” Thus, in
14 regard to the non-constitutional claims, the court found that the two-year statute of
15 limitations began to run on August 8 or 10, 2007, not, as Plaintiffs argued, on later
1 16 The respective claims were as follows: Claim 1 was for constitutional 17 deprivation; Claim 8 was for false imprisonment; Claim 9 was for malicious 18 prosecution; Claim 10 was for violation of property rights; Claim 11 was for trespass, 19 conversion, and destruction of property; and Claim 12 was for defamation. 2 20 Claims 2-6 alleged unreasonable search and seizure, and Claim 7 alleged that 21 Plaintiffs’ dogs had been taken without just compensation.
5 1 dates. Finally, the court noted that although it was a “harsh result” insofar as the
2 complaint was filed only four days after the statute of limitations ran, Plaintiffs had
3 neither “alleged nor proven that the defense caused the delay or contributed to the
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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 DARON D. SCOTT and 3 DURYEA SCOTT,
4 Plaintiffs-Appellants,
5 v. No. 31,751
6 DOÑA ANA COUNTY, a local public body 7 of the State of New Mexico, DOÑA ANA 8 COUNTY SHERIFF’S DEPARTMENT, 9 OFFICER ROBYN GOJKOVICH, individually 10 and in her official capacity, OFFICER CURTIS 11 CHILDRESS, individually and in his official 12 capacity, OFFICER MARY LOU WARD, 13 individually and in her official capacity, 14 OFFICER LINDA MALDONADO, 15 individually and in her official capacity, 16 OFFICER PAUL RICHARDSON, individually 17 and in his official capacity, OFFICER TRAVIS 18 WELLS, individually and in his official capacity, 19 OFFICER MANNY HERNANDEZ, individually 20 and in his official capacity, OFFICER FNU RUBIO, 21 individually and in his official capacity, OFFICER 22 FNU PALMER, individually and in his official 23 capacity, OFFICER DARREN WHITE, individually 24 and in his official capacity, HEATHER FERGUSON, 25 individually and in her official capacity, and UNKNOWN 26 OFFICERS, JOHN and JANE DOES 1 THROUGH 13,
27 Defendants-Appellees. 1 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 2 James T. Martin, District Judge
3 Rodriguez Law Firm 4 Augustine M. Rodriguez 5 Albuquerque, NM
6 for Appellants
7 Holt Mynatt Martinez P.C. 8 Damian L. Martinez 9 Casey B. Fitch 10 Las Cruces, NM
11 for Appellees
12 MEMORANDUM OPINION
13 SUTIN, Judge.
14 {1} Plaintiffs Daron Scott and Duryea Scott appeal from the district court’s
15 dismissal of their complaint against Defendant Doña Ana County and a number of its
16 officers and employees (Defendants) for a statute of limitations violation. Plaintiffs
17 argue that the district court erroneously applied a two-year rather than a three-year
18 statute of limitations to seven of the fourteen claims in their complaint. In regard to
19 six other claims, Plaintiffs argue that the district court erred by failing to accurately
20 determine the date on which the statute of limitations began to run, resulting in an
2 1 erroneous dismissal of claims that were properly brought within the two-year statute
2 of limitations. We affirm.
3 BACKGROUND
4 {2} The facts that gave rise to Plaintiffs’ lawsuit against Defendants are not at issue
5 in this appeal. Based on Plaintiffs’ complaint and brief in chief, the facts are as
6 follows. As a result of an investigation into the housing and proper care for Plaintiffs’
7 dogs, Defendants conducted raids on August 8, 2007, of two separate properties, one
8 of which belonged to Daron Scott and the other to Duryea Scott. During the raid of
9 Daron’s property, the property was searched, and his dogs were taken. During the raid
10 of Duryea’s property, Duryea was placed in the back of a police car and interrogated,
11 his vehicle and his person were searched, and his dogs were taken. Defendants carried
12 out these activities without a warrant.
13 {3} On August 10, 2007, Defendants raided Daron’s and Duryea’s respective
14 properties in El Paso, Texas. At his El Paso property, Daron and his family were
15 seized and searched, Daron’s home and vehicles were searched, and his dogs were
16 taken. At Duryea’s El Paso property, he and his family were seized and searched, his
17 home and vehicles were seized and searched, and his dogs were taken. Defendants
18 did not have valid warrants to engage in the El Paso raids. On October 18, 2007,
3 1 pursuant to arrest warrants that were issued based on allegations of dog fighting,
2 Plaintiffs were arrested.
3 {4} On July 27, 2009, Plaintiffs separately filed lawsuits against Defendants in the
4 First Judicial District Court in Santa Fe, New Mexico. The lawsuits alleged civil
5 rights violations under 42 U.S.C. § 1983 (1996), and the lawsuits stated claims arising
6 under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as
7 amended through 2009). Defendants removed the matter to the United States District
8 Court for the District of New Mexico, where the two cases were consolidated. On
9 March 31, 2011, the United States District Court dismissed Plaintiffs’ federal claims
10 with prejudice and remanded the remaining state claims to the First Judicial District
11 Court.
12 {5} On June 27, 2011, the First Judicial District Court dismissed Plaintiffs’
13 complaint without prejudice based on improper venue. On July 15, 2011, Plaintiffs
14 re-filed their case in the proper venue, the Third Judicial District Court in Doña Ana
15 County. On August 25, 2011, Defendants filed a motion to dismiss the complaint
16 claiming, among other things, that Plaintiffs’ claims were barred by the statute of
17 limitations, which had expired on July 11, 2011. On September 20, 2011, Plaintiffs
18 filed a response in opposition to Defendants’ motion to dismiss. On October 3, 2011,
19 the district court held a hearing on Defendants’ motion to dismiss.
4 1 {6} In their written response, and orally at the hearing, Plaintiffs argued that all of
2 their claims should stand. Specifically, Plaintiffs argued that although Claims 1 and
3 8-121 were governed by a two-year statute of limitations, many of Defendants’ alleged
4 wrongful actions occurred after August 8 and 10, 2007, and were brought within the
5 two-year statute of limitations. Additionally, in regard to Claims 2-72, Plaintiffs
6 argued that those claims were governed by a three-year statute of limitations because
7 they were brought under the New Mexico Constitution.
8 {7} The district court noted that the federal constitutional claims were dismissed by
9 the federal court, and it determined that the state constitutional claims had a two-year
10 statute of limitations under the Tort Claims Act. Further, notwithstanding Plaintiffs’
11 argument that malicious prosecution and other violations had occurred later, the court
12 found that “the body of the complaint reference[d] . . . acts or omissions which
13 occurred on or about [August 8 and 10, 2007,] as a result of the searches.” Thus, in
14 regard to the non-constitutional claims, the court found that the two-year statute of
15 limitations began to run on August 8 or 10, 2007, not, as Plaintiffs argued, on later
1 16 The respective claims were as follows: Claim 1 was for constitutional 17 deprivation; Claim 8 was for false imprisonment; Claim 9 was for malicious 18 prosecution; Claim 10 was for violation of property rights; Claim 11 was for trespass, 19 conversion, and destruction of property; and Claim 12 was for defamation. 2 20 Claims 2-6 alleged unreasonable search and seizure, and Claim 7 alleged that 21 Plaintiffs’ dogs had been taken without just compensation.
5 1 dates. Finally, the court noted that although it was a “harsh result” insofar as the
2 complaint was filed only four days after the statute of limitations ran, Plaintiffs had
3 neither “alleged nor proven that the defense caused the delay or contributed to the
4 delay”; thus, the court determined, equitable tolling did not apply. The court
5 dismissed all counts in the complaint with prejudice.
6 {8} On appeal, Plaintiffs reassert the arguments that they made below in the district
7 court. They argue (1) that their constitutional claims were governed by a three-year
8 statute of limitations; (2) that, based on the dates of the alleged wrongful acts, their
9 non-constitutional claims were brought within the statute of limitations; and (3) in
10 their reply brief, they argue that equity demands that their claims should survive
11 notwithstanding the statute of limitations violation. We disagree with Plaintiffs’
12 arguments and affirm the district court’s order.
13 DISCUSSION
14 {9} We turn first to Plaintiffs’ argument that their constitutional claims were subject
15 to a three-year statute of limitations. Thereafter, we consider whether the district court
16 erred in determining that the non-constitutional claims were barred by the two-year
17 statute of limitations. We review these issues de novo. See Nelson v. Homier Distrib.
18 Co., 2009-NMCA-125, ¶ 7, 147 N.M. 318, 222 P.3d 690 (“Whether an action is
19 barred by the applicable statute of limitations is a question of law that we review de
6 1 novo.”). Although the argument was made in the district court, Plaintiffs’ equity
2 argument will not be considered because, on appeal, it was raised only in the reply
3 brief. See In re Estate of Duran, 2007-NMCA-068, ¶ 23, 141 N.M. 793, 161 P.3d 290
4 (explaining that we do not consider arguments raised in the reply brief, but not raised
5 in the brief in chief).
6 I. Constitutional Claims
7 {10} Section 41-4-4(A) provides that governmental entities and public employees,
8 while acting within the scope of duty, are granted immunity from liability for any tort
9 except where, as provided by specific statutory exceptions, immunity is waived. See
10 Ford v. N.M. Dep’t of Pub. Safety, 119 N.M. 405, 412, 891 P.2d 546, 553 (Ct. App.
11 1994) (“[A]bsent a waiver of immunity under the Tort Claims Act, a person may not
12 sue the state for damages for violation of a state constitutional right.”). Immunity
13 granted under Section 41-4-4 does not apply to “false imprisonment, false arrest,
14 malicious prosecution, . . . defamation of character, violation of property rights or
15 deprivation of any rights, privileges[,] or immunities secured by the constitution and
16 laws of the United States or New Mexico when caused by law enforcement officers
17 while acting within the scope of their duties.” Section 41-4-12. The statute of
18 limitations under the Tort Claims Act is two years from “the date of occurrence
19 resulting in loss, injury[,] or death[.]” Section 41-4-15(A); see also Maestas v. Zager,
7 1 2007-NMSC-003, ¶ 22, 141 N.M. 154, 152 P.3d 141 (stating that a statute of
2 limitations begins to run when a plaintiff knows or with reasonable diligence should
3 have known of the injury and its cause, even if the claimant is not aware of the full
4 extent of the injury).
5 {11} Plaintiffs concede that their constitutional claims arose on August 8 and 10,
6 2007, when “the raids on their properties were conducted” and “their pit bull dogs
7 were seized and taken[.]” Further, they conceded in the district court that if a two-
8 year statute of limitations were applicable to the claims that arose on August 8 or 10,
9 2007, then their complaint was filed outside of the statute of limitations. Thus, the
10 only question before us is whether the district court properly concluded that the two-
11 year statute of limitations set forth in the Tort Claims Act was applicable to this case.
12 {12} The claims at issue, Claims 2-73, allege unreasonable search and seizure and the
13 taking of property (Plaintiffs’ dogs) without compensation. As such, Plaintiffs had
14 a right to sue Defendants pursuant to Section 41-4-12, but only within the two-year
15 statute of limitations period. See id. (stating that immunity does not apply to a
16 violation of property rights or deprivation of any rights or privileges secured by the
3 17 Plaintiffs also include Claim 13 in this section of their argument on appeal, 18 however, their argument in regard to Claim 13 was not preserved and will not be 19 considered on appeal. See Rule 12-216(A) NMRA (“To preserve a question for 20 review it must appear that a ruling or decision by the district court was fairly 21 invoked[.]”).
8 1 Constitution); see also § 41-4-15(A) (stating that tort claims against a governmental
2 entity or a public employee “shall be forever barred, unless such action is commenced
3 within two years” after the alleged wrongful act). Because Plaintiffs’ complaint
4 against Defendants was filed more than two years after the raids, the district court
5 properly concluded that Plaintiffs’ claims were barred by the statute of limitations.
6 {13} Relying on the similarity between the Fourth Amendment to the United States
7 Constitution and Article II, Section 10 of the New Mexico Constitution and federal
8 civil rights jurisprudence, Plaintiffs nevertheless argue that “[t]he applicable
9 limitations period for civil rights actions under New Mexico law is three years,
10 because the damages for an unreasonable search and seizure is a personal injury
11 against a person[’]s right to privacy.” We remind Plaintiffs that their § 1983 civil
12 rights claims were dismissed with prejudice by the federal district court. Accordingly,
13 their citation to civil rights jurisprudence in the context of this appeal is misplaced.
14 Lawsuits seeking compensation against governmental entities and public employees
15 for the deprivation of rights guaranteed by the New Mexico Constitution are
16 controlled exclusively by the Tort Claims Act and its two-year statute of limitations.
17 See § 41-4-17(A) (“The Tort Claims Act . . . shall be the exclusive remedy against a
18 governmental entity or public employee for any tort for which immunity has been
19 waived under the Tort Claims Act[.]”); Ford, 119 N.M. at 412, 891 P.2d at 553
9 1 (“[A]bsent a waiver of immunity under the Tort Claims Act, a person may not sue the
2 state for damages for violation of a state constitutional right.”).
3 {14} Plaintiffs also argue that Defendants’ seizure of the dogs, without
4 compensation, is governed by the three-year statute of limitations in NMSA 1978,
5 Section 37-1-24 (1941) (amended 2011). Section 37-1-24 provides, in pertinent part,
6 that a lawsuit against “any city, town[,] or village” or an officer thereof must be
7 commenced within three years “after the date of the act of omission or commission
8 giving rise to” the lawsuit. Plaintiffs do not provide any argument or authority to
9 support their implicit contention that Section 37-1-24 applies to lawsuits against a
10 county. Nevertheless, even were we to assume that it does apply to Doña Ana County
11 in this case, this Court has held that Section 37-1-24 was repealed by implication by
12 the Tort Claims Act. See Cozart v. Town of Bernalillo, 99 N.M. 737, 739, 663 P.2d
13 713, 715 (Ct. App. 1983) (stating that “Section 37-1-24 . . . does not apply any longer
14 to torts suits brought against cities, towns[,] or villages, or against their employees”).
15 Thus, even assuming that Doña Ana County would, for purposes of Section 37-1-24,
16 fall within the definition of “any city, town[,] or village,” the two-year statute of
17 limitations of the Tort Claims Act would nevertheless bar Plaintiffs’ claims.
18 {15} In sum, Plaintiffs’ arguments that their constitutional claims were governed by
19 a three-year statute of limitations are based on an erroneous view of the law. The
10 1 district court properly concluded that the two-year statute of limitations under the Tort
2 Claims Act barred Plaintiffs’ constitutional claims. Reversal is not warranted.
3 II. Tort Claims
4 {16} Plaintiffs argue that Claims 1 and 8-12, as to which they concede the two-year
5 statute of limitations under the Tort Claims Act applies, were timely. They argue that
6 the district court “should have used the initiating date of October 18, 2007[,] in
7 assessing the claims within the two[-]year statute of limitations because that is the date
8 that the prosecution of [Plaintiffs was] initiated.” And they also argue that the court
9 erred in failing to make a claim-by-claim determination of the date on which Claims
10 1 and 8-12 accrued.
11 {17} We disagree with Plaintiffs’ assertion that the district court failed to do a claim-
12 by-claim determination of the applicable accrual date. We note specifically, the
13 court’s statement at the October 3, 2011, hearing that “[n]otwithstanding the argument
14 of counsel that there is the malicious prosecution or the other violations occurred
15 subsequent, the body of the complaint references . . . acts or omissions which occurred
16 on or about [August 8 or 10, 2007,] as a result of the searches.” The court’s statement
17 strongly supports an inference that the district court read and considered the entire
18 complaint, including the accrual date of each claim, prior to reaching its conclusion.
11 1 {18} Moreover, in their brief in chief, Plaintiffs do not make an argument or provide
2 any authority that specifically demonstrates how the facts set out in the complaint
3 support a conclusion that the proper accrual date of the contested claims was October
4 18, rather than August 8 or 10, 2007. We will not do so for them. See State v. Am.
5 Fed’n of State, Cnty., & Mun. Emps. Council 18, 2012-NMCA-114, ¶ 37, 291 P.3d
6 600 (declining to “create arguments that the parties themselves have not raised”), cert.
7 granted, 2012-NMCERT-011, 297 P.3d 1227; Headley v. Morgan Mgmt. Corp.,
8 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear
9 arguments, or guess at what [a party’s] arguments might be.”). Additionally, we note
10 that although Defendants make a claim-by-claim argument to show that the district
11 court determined the proper accrual date of the contested claims, Plaintiffs do not
12 attempt, in their reply brief, to illustrate why Defendants’ and the district court’s views
13 are erroneous. We deem this to be a concession by Plaintiffs as to Defendants’
14 arguments that the district court properly determined that the claims accrued on
15 August 8 or 10, 2007. See Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029,
16 ¶ 31, 126 N.M. 717, 974 P.2d 1174 (explaining that a failure to respond, in a reply
17 brief, to arguments raised in an answer brief constitutes a concession of the matter).
18 Finally, this Court, having read the complaint, agrees with the district court’s
19 conclusion that each of the claims are premised on Defendants’ activities on August
12 1 8 or 10, 2007. Because the district court correctly determined the date on which the
2 claims accrued, reversal is not warranted.
3 CONCLUSION
4 {19} We affirm.
5 {20} IT IS SO ORDERED.
6 __________________________________ 7 JONATHAN B. SUTIN, Judge
8 WE CONCUR:
9 _______________________________ 10 MICHAEL E. VIGIL, Judge
11 _______________________________ 12 LINDA M. VANZI, Judge