394 F.3d 836 (10th Cir. 2005), 03-2214, Mimics, Inc. v. Village of Angel Fire

Docket Nº:03-2214.
Citation:394 F.3d 836
Party Name:MIMICS, INC., a Texas corporation; Richard Wildgrube; Margaret Wildgrube, individually, Plaintiffs-Appellees, v. The VILLAGE OF ANGEL FIRE; Mary Frances McKinley; Gary Stansbury, Defendants, and Charles Hasford, Defendant-Appellant.
Case Date:January 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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394 F.3d 836 (10th Cir. 2005)

MIMICS, INC., a Texas corporation; Richard Wildgrube; Margaret Wildgrube, individually, Plaintiffs-Appellees,


The VILLAGE OF ANGEL FIRE; Mary Frances McKinley; Gary Stansbury, Defendants,


Charles Hasford, Defendant-Appellant.

No. 03-2214.

United States Court of Appeals, Tenth Circuit

January 3, 2005

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[Copyrighted Material Omitted]

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Andrew S. Montgomery (Randy S. Bartell, Germaine R. Chappelle, with him on the briefs), Montgomery & Andrews, P.A., Santa Fe, NM, for Defendant-Appellant.

Michael H. Schwarz, Santa Fe, NM, for Plaintiffs-Appellees.

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Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.


Plaintiffs-Appellees Richard Wildgrube, Margaret Wildgrube, and MIMICS, Inc. (hereinafter and collectively, the "Wildgrubes") brought this suit under 42 U.S.C. § 1983, alleging rights violations under the First, Fourth, and Fourteenth Amendments. Defendant-Appellant Charles Hasford appeals the district court's denial of his motion for summary judgment premised on qualified immunity. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


When the events that gave rise to this lawsuit occurred, the Wildgrubes were residents of the Village of Angel Fire, New Mexico. Angel Fire is located in northern New Mexico and has a population of approximately 1600. The Wildgrubes own and operate MIMICS, Inc. ("MIMICS"), a Texas corporation licensed to do business in New Mexico. MIMICS is a computer software company that provides software to financial institutions nationwide. In or around June 1996, MIMICS moved into the Racquet Club Commons ("Commons") condominium complex in Angel Fire. The Wildgrubes' landlord at the Commons was Robert Morrow. Morrow told the Wildgrubes that the Village of Angel Fire's Planning and Zoning Commission had approved MIMICS to operate at the Commons without any waiver or variance. The Commons was zoned R-3, Residential-Multiple Family, which did not permit use for business purposes that are not ancillary to the permitted residential use.

Hasford was a resident of Angel Fire and during the relevant time period served as the Village building inspector. As building inspector, Hasford was also an ex officio member of the Planning and Zoning Commission. In addition, Hasford held a contractor's license and owned and operated Angel Fire Lock & Key. Hasford eventually resigned as building inspector, effective January 23, 1997, over questions about a possible conflict of interest arising from his possession of a contractor's license while simultaneously serving as building inspector.

In late 1996, Morrow became a Village councilor. Shortly thereafter two opposing political factions developed among the members of the Village Council. Morrow, who had been socially and politically allied with the Wildgrubes, was politically opposed to two other members of the Village Council, Gary Stansbury and Mary Frances McKinley, who are also named as defendants in this action. Hasford was aligned with Councilors Stansbury and McKinley.

On December 20, 1996, Hasford entered and inspected the MIMICS property without permission from either the Wildgrubes or Morrow. Hasford's inspection was allegedly prompted by the observation of building materials outside the building. Hasford entered through a back door at approximately 5:30 p.m. without announcing his presence. 2 The door through which

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Hasford entered was typically kept locked. Mrs. Wildgrube testified that when she discovered Hasford in the MIMICS office, Hasford asked in a demanding voice, "What the hell is going on in here?" Mrs. Wildgrube directed Hasford to speak to either Mr. Morrow or Pete Wasilewski, the Commons building manager. Hasford indicated that he had observed construction that was not permitted. Mrs. Wildgrube testified that she was disturbed and frightened by Hasford's appearance and asked Hasford to leave several times, but Hasford continued looking around the premises. Mrs. Wildgrube stated that Hasford eventually responded by saying, "I don't care what Bob Morrow's position is in this town. I am going to report him to the CID [Construction Industries Division ("CID")]." Hasford eventually exited through a different door from that which he entered.

On January 16, 1997, Hasford again entered MIMICS unannounced and without permission or a warrant. Mr. Wildgrube was in the office and walked around a corner almost running into Hasford. Mr. Wildgrube testified that he asked Hasford what he was doing and Hasford responded, "I want to see what's going on here!" The two men were standing nose-to-nose and Mr. Wildgrube described the situation as physically threatening. Mr. Wildgrube asked Hasford if he had spoken to Morrow and Hasford indicated that he had not. Mr. Wildgrube testified that he told Hasford he was uncomfortable with the situation but Hasford said, "I can come into any business in Angel Fire anytime I want to!" Mr. Wildgrube stated that Hasford then said if Mr. Wildgrube did not want him there he could ask Hasford to leave and that Hasford would then get a court order. Mr. Wildgrube testified that he asked Hasford to leave, at which time Hasford wrote something in his notebook and said, "That will be duly noted."

At no time was MIMICS open to the general public. There were no signs indicating the property was accessible to anyone but the occupants. All mail was received at the post office and all customer service was handled by telephone, modem, fax machine, or by visiting customers' places of operations.

After Hasford's first uninvited entry into MIMICS, the Wildgrubes spoke to Morrow. Morrow subsequently spoke to the Village Mayor about Hasford's conduct. In addition, at the December 12, 1996 and the January 9, 1997 Executive Sessions of the Village Council, Morrow raised the issue of Hasford holding a contractor's license while being Angel Fire's building inspector. Morrow also raised the issue of Hasford's conduct toward the Wildgrubes at the January 9 Executive Session. The Wildgrubes also complained about Hasford's conduct to Mayor Cottam, the Planning and Zoning Chairperson, and the Municipal League. Mrs. Wildgrube was contacted by the Sangre De Cristo Chronicle regarding Hasford's purported conflict of interest. The paper ran several stories regarding this conflict, one of which ran on January 16, 1997, the day of Hasford's second unannounced entrance into the MIMICS' office and a few days before Hasford's resignation became effective.

On January 17, 1997, the Chief Inspector of the New Mexico CID inspected MIMICS with the Wildgrubes' consent. Also present during this inspection were other CID officials, Hasford, Mayor Cottam, and the Planning and Zoning Commission Chairperson. During the inspection, the Wildgrubes protested Hasford's conduct to the CID officials. The Wildgrubes

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testified that CID officials told them that there were no problems with MIMICS' occupancy and no serious code violations.

Notwithstanding the statements of CID officials assuring the Wildgrubes that there were no problems with the property, on or about January 20, 1997, Hasford wrote a letter alleging that there were nine building code violations and submitted the letter to CID, the Angel Fire Village Council, and the Fire Marshal. At the Planning and Zoning Commission meeting of January 30, 1997, the Wildgrubes spoke out against what they felt was harassment directed toward them. Subsequently, on February 13, 1997, the occupation of MIMICS in the Commons was placed on the Planning and Zoning Commission agenda and the commissioners decided to permit MIMICS to remain on the property for six months.

The Wildgrubes filed suit under 42 U.S.C. § 1983 against the Village of Angel Fire, Hasford, McKinley, and Stansbury, alleging retaliation in violation of the First Amendment and deprivation of their substantive and procedural due process rights. The Wildgrubes also alleged violations of the New Mexico Tort Claims Act. The district court thereafter granted the Wildgrubes' motion for leave to file an amended complaint. In their First Amended Complaint, the Wildgrubes abandoned their substantive due process and state tort claims but sought money damages pursuant to 42 U.S.C. §§ 1983 and 1988 for Defendants' alleged violations of their 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.

The district court, inter alia, denied Hasford's motion for summary judgment based on a defense of qualified immunity from the Wildgrubes' First Amendment claim, Fourth Amendment claim, and Fourteenth Amendment equal protection claim. Mimics, Inc. v. Village of Angel Fire, 277 F.Supp.2d 1131, 1150, 1153, 1157 (D.N.M.2003). It is that order which is the subject of this appeal. 3


"Orders denying qualified immunity before trial are appealable to the extent they resolve abstract issues of law." Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). When, as here, "a defendant's appeal of the denial of a motion for summary judgment is based on the argument that, even under the plaintiff's version of the facts, the defendant did not violate clearly established law, then the district court's summary judgment ruling is immediately appealable." Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir. 1999).

A denial of qualified immunity on summary judgment is reviewed de novo, viewing the evidence in the light most favorable to the nonmoving party...

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