Han-Noggle v. City of Albuquerque

KATHERINE HAN-NOGGLE, as daughter and next of kin to MARY Y.C. HAN,deceased, and ELIZABETH WALLBRO,as Personal Representative of the Estate of Mary Y.C. Han, Plaintiffs-Appellants, v. THE CITY OF ALBUQUERQUE; DARREN WHITE,in his individual and official capacity as Public Safety Director for the City of Albuquerque;ROBERT PERRY, in his individual capacity and official capacity as the City Attorney;CHIEF RAYMOND D. SCHULTZ, in his individual and official capacityas the Chief of Police of the Albuquerque Police Department for municipaland supervisory claims; DEPUTY CHIEF PAUL FEIST, DEPUTY CHIEF ELIZABETH PAIZ,DEPUTY CHIEF ALLEN BANKS, in their individual and official capacities as supervisorsand trainers within the Albuquerque Police Department; MARC ADAMS,in his individual and official capacity as manager, investigator,and trainer of the Albuquerque Police Department Crime Lab; FIELD INVESTIGATOR MICHAEL MUNIZ,in his individual and official capacity; OFFICER TRICIA K. HOFFMAN,in her individual and official capacity; and TODD J. WILHAM, Albuquerque Police DepartmentPublic Information Officer in his individual and official capacity; and JOHN DOES 1-2, Defendants-Appellees.

No. A-1-CA-35989

COURT OF APPEALS OF THE STATE OF NEW MEXICO

September 10, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Carl J. Butkus, District Judge

Vega Lynn Law Offices, LLC

Rosario D. Vega Lynn

Albuquerque, NM

for Appellants

Garcia Law Group, LLC

Bryan C. Garcia

Albuquerque, NM

for Appellees

MEMORANDUM OPINION

M. ZAMORA, Chief Judge.

{1} This case arises from the Albuquerque Police Department's (APD) alleged mishandling of the investigation into the death of Mary Y.C. Han (Decedent). Katherine Han-Noggle, the daughter of Ms. Han, and Elizabeth Wallbro, the sister and Personal Representative of the Estate of Ms. Han, (collectively, Plaintiffs) appeal the district court's dismissal of their claims brought, pursuant to the New Mexico Tort Claims Act (the TCA), Sections 41-4-1 to -30 (1976, as amended through 2019) against the City of Albuquerque and named Defendants in their official and individual capacities (collectively, Defendants). The district court entered an order: (1) dismissing the remaining Counts of Plaintiffs' third amended complaint for failure to state a claim under the TCA; and (2) denying Plaintiffs' motion for leave to further amend their complaint and file a proposed fourth amended complaint based on futility.

{2} Having reviewed the complaint and the applicable law, we conclude that Plaintiffs' well-pleaded facts are insufficient to establish a waiver of the governmental immunity granted by Section 41-4-12. Because Defendants are immune from suit, under the facts of this case, Plaintiffs have not stated a claim upon which relief may be granted. We therefore affirm the district court's order.

PROCEDURAL BACKGROUND

{3} Plaintiffs' third amended complaint alleged various federal causes of action and one state claim, pursuant to the TCA. Plaintiffs sought "compensatory damages . . . to include replacement value of the personal property taken from the scene" and "costs, expenses, and interest as allowed by law to include expert witness fees." They also sought "equitable relief including but not limited to (a) an order precluding Defendants from asserting any defenses which may have been disproved by the destruction or loss of evidence; and/or (b) an instruction to the jury that it may consider that the lost evidence would be unfavorable to the Defendants; or (c) an instruction that supervisory liability is proven as a matter of law"; and other relief the district court deems proper.

{4} After a removal to and remand from federal district court,¹ Plaintiffs' sole remaining claim, invoking the TCA, is Count VI which asserts "negligent supervision and/or negligent investigation causing violation of property rights to wit, spoliation of evidence." The allegations are that despite the district court's order in a separate matter² and their request for preservation of documentary evidence, APD nonetheless failed to preserve the mobile phones of certain APD personnel that may contain potential evidence thereby spoliating potential evidence that could bear on Plaintiffs' legal claims and in doing so, inhibits Plaintiffs ability to prove their legal claims. "[T]he negligent supervision of, and negligent investigation by[] APD personnel at the scene caused the loss of certain physical evidence forever[.]"

{5} Defendants moved to dismiss Count VI with prejudice on the basis that the TCA waiver of immunity did not extend to the spoliation claims. Plaintiffs disputed the scope of the waiver, and within their responsive pleading moved for leave to file the fourth amended complaint arguing that an amendment was necessary to clarify the state law claims in Count VI. Defendants opposed the amendment arguing that it too failed to state any claims for relief.

{6} The proposed fourth amended complaint amends the parties to the lawsuit, adds factual allegations, and raises new legal claims. Plaintiff Wallbro is named as the sole Plaintiff and the City of Albuquerque ex rel. APD is the sole Defendant. Plaintiffs add allegations that the previously-named Defendants were acting in their capacities as officers and that APD is responsible for the actions and inactions of the individuals and employees under the doctrine of respondeat superior and/or agency.

{7} Substantively, the proposed fourth amended complaint revises and adds new legal claims as follows. Counts I and II allege violation of property rights, spoliation of evidence, and theft or misappropriation of property. Count I also retains Plaintiffs' general request for sanctions against Defendants for spoliation of evidence. Counts III and IV allege interference with state and federal constitutional due process rights to access to the courts for tort litigation. Count V alleges that APD violated NMSA 1978, Section 29-1-1 (1979) requiring a diligent investigation of all crimes. The premise of theproposed Fourth Amended Complaint is negligent supervision and/or a negligent investigation.

The District Court Proceedings

{8} The district court dismissed with prejudice Count VI of the third amended complaint. Interpreting Count VI as one for intentional spoliation of evidence, the district court held that Section 41-4-12 does not waive immunity for intentional spoliation of evidence claims against law enforcement. Similarly, the district court denied Plaintiffs' motion for leave to amend and file the fourth amended complaint. The district court noted that the underlying factual scenario remained essentially the same; it was Plaintiffs' claims that fluctuated. Concluding that Count I was essentially the same as Count VI of the third amended complaint alleging spoliation, the district court held that Count I would be futile in light of no new facts having been alleged. With respect to Count II, the district court remarked that "[t]o the extent [Plaintiffs] may be attempting to state a separate claim for 'theft or misappropriation of personal property,' such an amendment would also be futile." The district court held that Counts II, III, IV, and V allege property damage resulting from the misconduct, but Plaintiffs' failure to assert "physical damage" to property further supported futility of the amendment. Plaintiffs appeal.

{9} Because this is a memorandum opinion and the parties are familiar with the factual background, we reserve discussion of Plaintiffs' factual allegations for our analysis.

STANDARDS OF REVIEW

Motion to Dismiss

{10} A district court's decision to dismiss a case for failure to state a claim under Rule 1-012(B)(6) NMRA is reviewed de novo. Thompson v. City of Albuquerque, 2017-NMCA-002, ¶ 5, 386 P.3d 1015, cert granted, 2017-NMSC-021, 397 P.3d 1279. "[W]e accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint." Valdez v. State, 2002-NMSC-028, ¶¶ 4, 9, 132 N.M. 667, 54 P.3d 71. "Dismissal of a claim under this [R]ule [1-012(B)(6)] is only proper if the plaintiffs are not legally entitled to relief under any set of provable facts." Thompson, 2017-NMCA-002, ¶ 5 (alteration, internal quotation marks, and citation omitted). The purpose of a motion to dismiss is to test the legal sufficiency of the claim, not the facts that support it. Saylor v. Valles, 2003-NMCA-037, ¶ 6, 133 N.M. 432, 63 P.3d 1152. Only when "there is a total failure to allege some matter essential to the relief sought" should a motion to dismiss for failure to state a claim be granted. Id. This Court must also consider whether the complaint includes factual allegations sufficient to raise a claim for relief. See Rule 1-008(A)(2) NMRA (providing that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief").

{11} New Mexico is a notice pleading state, Zamora v. St. Vincent Hospital, 2014-NMSC-035, ¶ 10, 335 P.3d 1243, that "generally benefits plaintiffs in civil litigation." Milliron v. Cty. of San Juan, 2016-NMCA-096, ¶ 5, 384 P.3d 1089. However, Rule 1-012(B)(6) requires "application of the facts pleaded in the complaint to the applicable law." Id. "[A]ll doubts must [be] resolved in favor of sufficiency of the complaint." R.A. Peck, Inc. v. Liberty Federal Sav. Bank, 1988-NMCA-111, ¶ 4, 108 N.M. 84, 766 P.2d 928.

Motion to Amend

{12} "A district court's denial of a motion to amend is reviewed under an abuse of discretion standard." Alliance Health of Santa Teresa, Inc. v. Nat'l Presto Indus., Inc., 2007-NMCA-157, ¶ 26, 143 N.M. 133, 173 P.3d 55. "An abuse of...