277 F.Supp.2d 1131 (D.N.M. 2003), Civ. 99-00839, Mimics, Inc. v. Village of Angel Fire

Docket Nº:CIV. 99-00839 MV/ACT.
Citation:277 F.Supp.2d 1131
Party Name:MIMICS, INC., Richard Wildgrube and Margaret Wildgrube, individually, Plaintiffs, v. THE VILLAGE OF ANGEL FIRE, Charles Hasford, individually, Mary Frances McKinley, individually, and Gary Stansbury, individually, Defendants.
Case Date:August 12, 2003
Court:United States District Courts, 10th Circuit, District of New Mexico
 
FREE EXCERPT

Page 1131

277 F.Supp.2d 1131 (D.N.M. 2003)

MIMICS, INC., Richard Wildgrube and Margaret Wildgrube, individually, Plaintiffs,

v.

THE VILLAGE OF ANGEL FIRE, Charles Hasford, individually, Mary Frances McKinley, individually, and Gary Stansbury, individually, Defendants.

No. CIV. 99-00839 MV/ACT.

United States District Court, D. New Mexico.

Aug. 12, 2003

Page 1132

[Copyrighted Material Omitted]

Page 1133

[Copyrighted Material Omitted]

Page 1134

Michael Schwarz, Santa Fe, NM, for Plaintiffs.

James P. Sullivan, Sullivan & Grand, PA, Santa Fe, NM, for Village of Angel Fir, Mary Frances McKinley, Gary Stansbury.

James P. Sullivan, Sullivan & Grand, PA, Santa Fe, NM, Randy S. Bartell, Montgomery & Andrews, Santa Fe, NM, for Charles Hasford.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendants Village of Angel Fire, Mary Frances McKinley and Gary Stansbury's Motion for Summary Judgment [Doc. No. 130] and Memorandum in Support [Doc. No. 131]; Defendant Charles Hasford's Motion for Summary Judgment [Doc. No. 194] and Memorandum in Support [Doc. No. 195]; Plaintiffs' Motion for Partial Summary Judgment [Doc. No. 190] and Memorandum in Support [Doc. No. 192]; and Defendant Charles Hasford's Partial Motion to Dismiss Amended Complaint [Doc. No. 118] and Memorandum in Support [Doc. No. 119]. The Court, having

Page 1135

considered the motions, briefs, relevant law and being otherwise fully informed, finds that Defendants Village of Angel Fire, Mary Frances McKinley and Gary Stansbury's Motion for Summary Judgment will be GRANTED in part and DENIED in part; Defendant Charles Hasford's Motion for Summary Judgment will be DENIED; Plaintiffs' Motion for Partial Summary Judgment will be GRANTED; and Defendant Charles Hasford's Partial Motion to Dismiss Amended Complaint will be DENIED.

BACKGROUND

Plaintiffs Richard and Margaret Wildgrube are residents of the Village of Angel Fire, New Mexico, which had approximately 1600 residents when the events underlying the present lawsuit occurred. They had moved MIMICS, Inc., their family-owned software company, to Angel Fire in 1990.

The named defendants are also residents of the Village of Angel Fire. In 1996, Bob Morrow was a member of the Homeowners Association of Racquet Club Commons (RCC), located in Angel Fire. RCC is located in an area that has been zoned R-3, Residential-Multiple Family. 1 Morrow knew the Wildgrubes socially and professionally.

In 1996, RCC leased space to Morrow. Morrow knew the Wildgrubes were interested in relocating their business and suggested they sublease the RCC space from him. Morrow sought and received permission from the Homeowners Association of RCC to sublease the space to MIMICS. Although the space had once housed a restaurant and bar, it had been unoccupied for some time when RCC leased it to Morrow.

Between mid-1995 and October 1996, Morrow served as a Commissioner on Angel Fire's Planning and Zoning Commission (P & Z or Commission). In May or June 1996, Morrow raised the issue of MIMICS's occupancy at RCC at a P & Z meeting. The members of the Commission agreed informally that no variance was needed to sublease the R-3 zoned space to a software company. No minutes were kept of this discussion. The Village issued MIMICS a 1997 business license to operate at RCC.

MIMICS moved into the RCC space in June or July 1996. Although no written lease was executed, Morrow and the Wildgrubes understood that MIMICS would be located at RCC temporarily, while Morrow's construction company continued to work on a permanent office building.

Charles Hasford was Angel Fire's Building inspector until January 23, 1997 and, as such, was authorized to enforce Village codes and ordinances. For at least the last several months of his term as building inspector, Hasford also held a contractor's license and owned Angel Fire Lock & Key.

In October 1996, Morrow was appointed by the Mayor to the Village Council when a vacancy arose due to a councilmember's departure mid-term. Mary Frances McKinley and Gary Stansbury were serving as elected councilmembers at that time. Plaintiffs contend that a political divide eventually emerged among members of the Council, with McKinley and Stansbury in one camp and Morrow in another. Plaintiffs further assert that Hasford was aligned with the former two, while Plaintiffs stood by Morrow. Plaintiffs allege that their association with Morrow prompted the defendants to harass them, and it is this discriminatory and

Page 1136

allegedly unconstitutional conduct that forms the basis of Plaintiffs' lawsuit.

Plaintiffs claim that Hasford abused his position as building inspector by taking legally unauthorized and unjustified action targeting them and their business. In part, Plaintiffs believe Hasford's entries into the MIMICS offices on December 20, 1996 and January 16, 1997 were prompted by his hostility towards them because of their affiliation with Morrow, as well as their public criticism of his work. The parties agree that, on December 20, 1996, at approximately 5:30 p.m., Hasford entered the office through a back door without having obtained a warrant or Plaintiffs' consent and without announcing his presence. Plaintiff Margaret Wildgrube, who was in the office at the time, discovered Hasford in a rear portion of the office. She was uncomfortable with his presence, and he left the premises. 2 Margaret Wildgrube complained about this incident to Bob Morrow later that night. Hasford returned to MIMICS on January 16, 1997 and again, without a warrant and without obtaining consent, entered the office through a different door. This time, Plaintiff Richard Wildgrube discovered him on the premises. After Hasford stated that he could obtain a warrant to search the office, Richard Wildgrube asked him to leave. 3

In early January 1997, Margaret Wildgrube complained to the Mayor about Defendant Hasford's actions as well as about an alleged conflict of interest posed by Hasford's simultaneous possession of a contractor's license and service as building inspector. 4 Margaret Wildgrube also contends that she spoke with a reporter from the local newspaper about these incidents and that a story on this matter ran in the Sangre de Cristo Chronicle on January 16, 1997. Additionally, Plaintiffs Richard and Margaret Wildgrube complained about Hasford's conduct during several Village Council and P & Z Commission meetings, starting on January 23, 1997.

Plaintiffs further allege that a January 17, 1997 inspection by the New Mexico Construction and Industries Division (NM CID) was part of the individual Defendants' efforts to target Plaintiffs. During that inspection, NM CID Bureau Chief Fermin Aragon and State Building Inspector Ruben Lopez were accompanied by Hasford, Angel Fire's Mayor, P & Z Commission Chair Linda Libbey, and Morrow. Plaintiffs state that after the inspection, the NM CID officials orally indicated that the MIMICS office space presented some minor, but no major building code violations, and that there was no problem with having MIMICS occupy the RCC space. 5

Page 1137

On February 13, 1997, the P & Z Commission formally voted to permit MIMICS to remain at RCC for six months, while the Commission determined whether the occupancy violated the Village Zoning Ordinance. On February 20, 1997, the Village Council concluded that the Commission actually did not have authority to allow MIMICS to remain in an R-3 area. The matter was then sent back to the Commission. On March 27, 1997, Village Attorney Bill Erwin advised P & Z that MIMICS was in violation of Angel Fire's Zoning Ordinance. In September 1997, Plaintiffs were ordered to cease and desist from engaging in commercial or business activity in a building zoned R-3. Plaintiffs claim that, as a result of this order, they moved MIMICS to another location.

On July 29, 1999, Plaintiffs filed suit under 42 U.S.C. § 1983, alleging that Defendants had violated their First Amendment rights by retaliating against them and had violated their substantive and procedural due process rights in raising the cease and desist order without notice to Plaintiffs. Plaintiffs also alleged that Defendants violated the New Mexico Tort Claims Act.

Defendants moved for summary judgment, and Plaintiffs requested leave to file an amended complaint. The Court granted Defendants' motions as to Plaintiffs' substantive due process and state tort claims, but denied the motions as to the remaining claims. The Court granted Plaintiffs leave to submit an amended complaint, which was filed on April 27, 2001. In the First Amended Complaint [Doc. No. 116], Plaintiffs seek money damages pursuant to 42 U.S.C. §§ 1983 and 1988 for Defendants' alleged violations of Plaintiffs' First Amendment rights of free speech and free association, Fourth Amendment right to be free from unlawful searches, and Fourteenth Amendment guarantees of equal protection and procedural due process. Defendant Hasford filed a partial motion to dismiss the amended complaint on May 11, 2001 [Doc. No. 118 & 119]. On August 2, 2001, Defendants Village of Angel Fire, McKinley and Stansbury filed a motion requesting summary judgment on all Plaintiffs' claims [Doc. No. 130 & 131]. On November 11, 2001, Plaintiffs filed a motion seeking summary judgment on all Fourth Amendment claims against the Village and Defendant Hasford [Doc. No. 190 & 192]. On November 15, 2001, Defendant Hasford filed a motion for summary judgment claiming qualified immunity against all claims brought against him [Doc. No. 194 & 195].

The Court will address all outstanding motions herein.

STANDARD

Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "secure the just...

To continue reading

FREE SIGN UP