Carrillo v. My Way Holdings, LLC

• Decision Date: 28 November 2016
• Docket Number: NO. 34,429,34,429
• Parties: Arnoldo CARRILLO and Santa Fe Horse Racing By Carrillo's, LLC, a domestic limited liability company, Plaintiffs-Appellants, v. MY WAY HOLDINGS, LLC, a foreign limited liability company d/b/a Sunland Park Racetrack and Casino ; Sunray Gaming of New Mexico, LLC, a domestic limited liability company; Zia Park, LLC, a foreign limited liability company; Ruidoso Downs Racing, INC., a domestic corporation; Rick Baugh ; Lonnie S. Barber, Jr.; Shaun Hubbard, Defendants-Appellees, and Vince Mares in his official capacity as Director of The New Mexico Racing Commission, Sunland Park Board of Stewards, Zia Park Board of Stewards, Sunray Park Board of Stewards, Ruidoso Downs Board of Stewards, Defendants.
• Court: Court of Appeals of New Mexico

389 P.3d 1087

Arnoldo CARRILLO and Santa Fe Horse Racing By Carrillo's, LLC, a domestic limited liability company, Plaintiffs-Appellants,

v. MY WAY HOLDINGS, LLC, a foreign limited liability company d/b/a Sunland Park Racetrack and Casino ; Sunray Gaming of New Mexico, LLC, a domestic limited liability company; Zia Park, LLC, a foreign limited liability company; Ruidoso Downs Racing, INC., a domestic corporation; Rick Baugh ; Lonnie S. Barber, Jr.; Shaun Hubbard, Defendants-Appellees,andVince Mares in his official capacity as Director of The New Mexico Racing Commission, Sunland Park Board of Stewards, Zia Park Board of Stewards, Sunray Park Board of Stewards, Ruidoso Downs Board of Stewards, Defendants.

NO. 34,429

Court of Appeals of New Mexico.

Filing Date: November 28, 2016

Graeser & McQueen, LLC, Christopher L. Graeser, Santa Fe, NM, for Appellant.

Keleher & McLeod, P.A., Deron B. Knoner, Nathan S. Stimson, Thomas C. Bird, Albuquerque, NM, for Appellees My Way Holdings, LLC and Rick Baugh.

Civerolo, Gralow, Hill & Curtis, Megan Day Hill, Albuquerque, NM, for Appellees SunRay Gaming of New Mexico, LLC and Lonnie S. Barber, Jr.

Conklin, Woodcock & Ziegler, P.C., John K. Ziegler, Traci N. Olivas, Albuquerque, NM, for Appellees Ruidoso Downs Racing, Inc. and Shaun Hubbard.

Billy R. Blackburn, Paul Linnenburger, Albuquerque, NM, for Appellees Zia Park, LLC and Rick Baugh.

OPINION

KENNEDY, Judge.

{1} Arnoldo Carrillo is a racehorse owner and trainer who, along with his business Santa Fe Horse Racing by Carrillo's, LLC (collectively Carrillo), are licensed with the New Mexico Racing Commission (the Commission). Between September 2012 and April 2013 one of Carrillo's horses died as a result of racing activities and three others suffered race-related injuries—one so severe that it had to be euthanized. As a result, four of the five privately owned, licensed racetracks in New Mexico excluded Carrillo from entering their tracks and the races held at their tracks. Carrillo filed suit against the racetracks, the managers of the racetracks, the Board of Stewards for each racetrack, and the Commission, alleging his rights as a licensee were violated by his exclusion. The racetracks filed motions for summary judgment, asserting that they had a common law right to exclude both patrons and licensees alike from their property. Carrillo did not dispute the facts set forth in the racetracks' motions. Instead, he argued that the racetracks possessed an unfettered right to exclude patrons but not licensees. On appeal, the parties make much the same argument.

{2} We conclude that racetracks in New Mexico possess a common law right to exclude any person—patron or licensee—for any reason other than those specified in the New Mexico Human Rights Act. Though we do not decide here whether these racetracks hold a monopoly over racing in New Mexico, we do hold that where the facts of the case suggest that there may be a monopoly control over the racing business, a racetrack seeking to exercise its common law right must make a showing that it has a legitimate justification for doing so; exclusion or ejection may not be done arbitrarily or without explanation. We conclude that the district court properly applied this common law right in this case and affirm its order granting summary judgment as to the racetracks.

I. BACKGROUND

{3} The facts of this case are not in dispute. Carrillo is licensed with the New Mexico Racing Commission to train and race horses. On September 9, 2012, two horses—both of which belonged to Carrillo—were injured while racing at Zia Park¹ and had to be removed by ambulance. Carrillo's horses were the only two horses injured at Zia Park on that date. On October 29, 2012, another of Carrillo's horses suffered an injury at Zia Park and had to be euthanized. That same day, Zia Park informed Carrillo that he was excluded from the premises and that he was no longer welcome to race there; Carrillo was escorted from the premises.

{4} On April 12, 2013, Carrillo's horse died immediately after winning a race at Sunland Park.² The next day, on April 13, 2013, Sunland Park informed Carrillo in writing that, because of the death of his horse at Sunland Park as well as his "record at New Mexico tracks," he was excluded from the property and any races held there. He was also informed that the horse's death was under investigation.³ Likewise, on April 17, 2013, SunRay Park⁴ informed Carrillo that, due to his horse's death at Sunland Park and the accompanying investigation, he was being denied entry to the property and any race held there. As a result, Carrillo's horses that were entered for subsequent races on April 19 and April 21 were scratched.

{5} Carrillo attempted to enter a horse at the Ruidoso Downs⁵ on July 6, 2013. Upon speaking to management, however, Carrillo was told that he was being excluded from the track. On July 12, 2013, Carrillo received a letter stating that because of the number of "incidents" and his "record at New Mexico tracks," Carrillo was being denied entry to the Ruidoso Downs property as well as entry into any live racing at that facility.

{6} On August 5, 2013, Carrillo filed a complaint against Zia, Sunland, SunRay, and Ruidoso in the district court.⁶ Carrillo's complaint brought claims for injunctive relief, declaratory judgment, interference with prospective contractual relations, prima facie tort, and negligence. Sunland, SunRay, Ruidoso, and Zia (collectively, the racetracks) filed motions for summary judgment. Carrillo filed a response to each, asserting that the reasons given for his exclusion were inadequate, that the common law right to exclude gives racetracks unfettered discretion only to exclude patrons who are not in possession of a license from the Commission, and that the regulation governing exclusion also reflects a difference between the right to exclude patrons and the right to exclude licensees.

{7} The district court held a hearing on the motions, during which Carrillo conceded that the district court would likely grant the summary judgment motions, "on the grounds that, as a matter of law, the associations retain the common law right to exclude licensees." In its order, the district court found that no genuine issues of material fact existed in the case. It reasoned that under the common law, a racetrack owner has a right to exclude any person for any lawful reason, and that right has been "affirmed by regulation at 15.2.2.8(V) NMAC and codified by statute at NMSA 1978, Section 60–1A–28.1 (2014)." As a result, the district court granted the summary judgment motions and dismissed Carrillo's claims.⁷ Carrillo timely appealed.

II. DISCUSSION

{8} On appeal, Carrillo argues that Section 60–1A–28.1 controls the outcome of this case. Carrillo suggests that Section 60–1A–28.1 represents a modification to the common law rule that racetracks can exclude anyone, and instead creates a distinct set of requirements for a racetrack to satisfy in order to exclude licensees⁸ from their premises. Alternatively, Carrillo argues that the common law right to exclude does not support the district court's decision to grant summary judgment. Finally, Carrillo argues that 15.2.2.8(V) NMAC is not relevant to the outcome of this appeal because it is derivative in nature and merely reflects the common law or Section 60–1A–28.1. Underlying Carrillo's argument is the suggestion that Zia, Sunland, SunRay, and Ruidoso did not afford him the due process considerations that he was entitled to before his exclusion from their tracks. Carrillo does not, however, explain why the privately owned racetracks involved in this case were obligated to comply with due process, other than suggesting that these racetracks are part of a quasi-monopoly.

A. Section 60–1A–28.1 Does Not Apply to This Case

{9} Section 60–1A–28.1 was made effective March 3, 2014. See id. ; 2014 N.M. Laws, ch. 6, § 1. Carrillo had filed his complaint in district court on August 5, 2013. The racetracks point out that Section 60–1A–28.1 cannot be applied in this case because it was enacted after Carrillo had already been excluded from the racetracks in question and had filed his complaint. Carrillo argues that because his exclusion from the racetracks in question is ongoing, Section 60–1A–28.1 is dispositive if the racetracks "do not have a current right to exclude" under the statute. Carrillo does not, however, cite any authority to support this assertion. See In re Adoption of Doe , 1984–NMSC–024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 ("Issues raised in appellate briefs which are unsupported by cited authority will not be reviewed by us on appeal."). Carrillo also does not explain how or why we might apply Section 60–1A–28.1 retroactively. We agree with the racetracks and conclude that Section 60–1A–28.1 is not available for the disposition of the case before us.

{10} With regard to retroactivity, Article IV, Section 34 of the New Mexico Constitution provides that "[n]o act of the [L]egislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case." We review de novo the applicability of this section of the Constitution. See Hyden v. N.M. Human Servs. Dep't , 2000–NMCA–002, ¶ 12, 128 N.M. 423, 993 P.2d 740. A case is considered "pending" under Article IV, Section 34 once it is filed, or where the district court retains jurisdiction, and the case is no longer pending once a final decision is entered and the court no longer has jurisdiction. See Starko, Inc. v. Cimarron Health Plan, Inc. , 2005–NMCA–040, ¶ 9, 137 N.M. 310, 110 P.3d 526. It is therefore clear that, for purposes of Article IV, Section 34, this was a "pending case" when Section 60–1A–28.1 was enacted.

{11} Article IV, Section 34 goes hand in hand with the rule that "statutes are presumed to operate prospectively only and will not be given a retroactive effect unless such intention on the part of the Legislature is clearly apparent." Bradbury &...