CAMPOS DE SUENOS v. County of Bernalillo, 20,918.

Citation28 P.3d 1104, 130 N.M. 563
Case DateApril 18, 2001
CourtCourt of Appeals of New Mexico

Stephen P. Curtis, Stephen P. Curtis Attorney At Law, P.C., Albuquerque, NM, for Appellee.

Tito D. Chavez, Bernalillo County Attorney, H. Nicole Schamban, Narvaez Law Firm, P.A., Albuquerque, NM, for Appellants.

Al Valdez, Albuquerque, NM, Pro Se.

Certiorari Denied, No. 26,934, June 28, 2001.


BOSSON, Chief Judge.

{1} This appeal addresses whether a contract implied in fact can satisfy the requirement of a "valid written contract" such that it overcomes governmental immunity from suit under NMSA 1978, § 37-1-23(A) (1976). The question is posed in the context of a commercial sale of a privately-owned sports facility to the County of Bernalillo; a sale that fell through before the parties reached agreement on an express written contract. We are asked to expand the analytical framework of Garcia v. Middle Rio Grande Conservancy District, 1996-NMSC-029, 121 N.M. 728, 918 P.2d 7, outside of the employment context, and we decline to do so. We hold there was no "valid written contract" as required under Section 37-1-23(A), and therefore the County is immune from suit for breach of contract. The district court having decided that the County was not immune from suit, we reverse.


{2} Campos de Suenos (CDS) leased a thirty-seven acre lot on the mesa just outside of Albuquerque's west city limits on which it constructed a softball and baseball park. After the park opened, CDS proposed to sell the ballpark to Bernalillo County. The proposal included the improvements CDS had constructed as well as the underlying real estate. CDS could offer the real estate for sale because its lease contained an option to purchase from the owner, Westland Development Corporation. The County subjected the proposal to a feasibility study.

{3} At a public meeting held on December 4, 1996, the Bernalillo County Commission weighed various options regarding the CDS proposal, including whether to purchase, how much land to purchase beyond the ballpark, the possible addition of amenities and improvements, and most importantly, whether to issue project revenue bonds and how to pay for them. Ultimately, the Commission voted 3-2 in favor of an option that included purchasing the improvements and the land they were on, plus an additional sixty-three acres of land owned by Westland that surrounded the ballpark. For two months after the December 4, 1996, meeting, CDS and the County attempted to negotiate a proposed sales agreement for the ballpark, but the parties could never agree to the terms of sale. No written contract for the sale of the ballpark was ever executed by the parties. For reasons not disclosed by the record, the County never issued bonds or otherwise secured financing to purchase the ballpark. Eventually, the County decided not to purchase and, in May 1997, informed CDS in writing of that decision.

{4} After the December 4, 1996, vote, CDS thought it had an enforceable understanding that the County would buy the ballpark, and therefore CDS did not aggressively market its fields for the upcoming summer softball season. When the County informed CDS that funding would not be forthcoming, effectively cancelling its proposed purchase, CDS found its financial position severely compromised. Fewer teams had contracted with CDS to use the fields for the 1997 summer season. The decreased revenue was inadequate to meet its lease payments to Westland, causing CDS to default. When Westland informed CDS that it intended to take over the ballfields as a result of the default, CDS filed suit against Bernalillo County for breach of contract. CDS sought $277,500 in damages for its diminished earnings for the 1997 softball season, plus $1,650,000 for the value of the improvements that it had built and then lost to Westland.

{5} CDS also alleged that over the course of constructing and operating its facility, CDS had adhered to all of Bernalillo County's zoning regulations, which cost $204,500. According to CDS, Bernalillo County had relaxed its zoning standards for the only other privately-owned ballpark, Albuquerque Sportsplex (Sportsplex), due to political favoritism. CDS included a claim in its lawsuit against individual commissioners alleging that the disparate enforcement of zoning regulations constituted illegal discrimination.

{6} On a motion for summary judgment, the County argued (1) it was immune from suit for breach of an unwritten contract pursuant to Section 37-1-23(A), and (2) that individual commissioners had qualified immunity from the suit for discrimination under 42 U.S.C. § 1983. The district court rejected both claims.

{7} As for the first claim, the district court reasoned that Section 37-1-23(A) "is in the nature of an extension of the statute of frauds." Just as courts have created exceptions to the statute of frauds, the district court concluded that exceptions to the statutory requirement of a valid written contract could be made under Garcia, 1996-NMSC-029, ¶ 20, 121 N.M. 728, 918 P.2d 7 (holding that a personnel manual created an enforceable written contract), as long as the policy rationale for the statute was upheld. Viewed in this manner, the district court determined that the County had voted to purchase the ballpark on December 4, 1996, and that the various public documents, including the minutes of the December 4, 1996, meeting, placed the case "within the `implied contract' exception of Garcia" because no harm was done to the policy of Section 37-1-23(A) as articulated in Garcia. On the second claim, the district court found that the commissioners violated a constitutional right that was clearly established at the time.

{8} The County and its individual commissioners (Defendants) timely filed an interlocutory appeal addressing the questions of governmental and qualified immunity, which we granted, treating it as a writ of error. See Handmaker v. Henney, 1999-NMSC-043, ¶¶ 9-14, 128 N.M. 328, 992 P.2d 879

. We conclude that Defendants were entitled to both governmental and qualified immunity. Therefore, we reverse and remand with instructions to enter summary judgment in favor of Defendants.


{9} Appeals from a summary denial of immunity from suit are subjected to a review process that is more complex than a review of ordinary summary judgment decisions. The complexity arises, in part, because a party losing its immunity from suit in an adverse summary judgment decision may file a writ of error seeking immediate review of that decision in order to protect its right not to stand trial. Id. However, as Handmaker makes clear, not every challenge to a denial of immunity is appropriate for immediate, collateral review because some assertions of immunity are inseparable from the merits of the case. Id. ¶ 16. Handmaker counsels us to limit review by writ of error to immunity matters in "`cases presenting more abstract issues of law.'" Id. (quoting Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)).

{10} Once the decision has been made to review a summary denial of immunity, we resolve evidentiary issues as we do in any summary judgment case, that is, "in the light most favorable to the party opposing the motion." Carrillo v. Rostro, 114 N.M. 607, 615, 845 P.2d 130, 138 (1992). However, after we have resolved the evidence in the opposing party's favor, we then examine that evidence to determine whether the opposing party has presented sufficient evidence to overcome an assertion of immunity from suit. Id. This latter determination, the application of the facts of a case to an assertion of immunity, is a legal question that we review de novo. Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 7, 129 N.M. 698, 12 P.3d 960 ("We review de novo the trial court's application of the law to the facts in arriving at its legal conclusions."). There is little dispute here concerning the material facts of this case, and therefore we turn to the legal issues.

Section 37-1-23(A) Is an Immunity Statute, Not a Statute of Frauds

{11} The County asserts that unless CDS can produce a "valid written contract," the County is immune from suit for breach of contract. The County relies on Section 37-1-23(A), and insists that the plain language of the statute controls the issue. Under Section 37-1-23(A), "[g]overnmental entities are granted immunity from actions based on contract, except actions based on a valid written contract."

{12} CDS contends that Section 37-1-23(A), like the statute of frauds, can be satisfied by partial writings that do not meet the standards of a completely executed contract, as long as the writings evidence a contractual agreement and satisfy the anti-fraud purpose of the statute of frauds. Essentially, CDS maintains that we should view Section 37-1-23(A) as a statute of frauds for governmental entities and read into it traditional exceptions that apply to the statute of frauds.

{13} Although requiring a "valid written contract" does prevent fraud, that condition serves a distinctly different purpose. As our Supreme Court has previously stated, the legislature wrote Section 37-1-23(A) "to reinstate sovereign immunity" in the wake of Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), the opinion that abolished common-law sovereign immunity. Hydro Conduit Corp. v. Kemble, 110 N.M. 173, 177-79, 793 P.2d 855, 859-61 (1990) (outlining the legislative history of the statute). The purpose of Section 37-1-23(A) was to grant governmental entities complete immunity from actions sounding in contract. However, the legislature created the one condition that makes a lawsuit permissible:...

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