El Castillo Retirement Residences v. Martinez, NO. A-1-CA-37494

• Citation: NO. A-1-CA-37494
• Case Date: March 04, 2019
• Court: Court of Appeals of New Mexico

EL CASTILLO RETIREMENT RESIDENCES, Plaintiff-Appellant,
v.
GUS MARTINEZ, Santa Fe County Assessor, and BOARD
OF COUNTY COMMISSIONERS FOR THE COUNTY OF SANTA FE, Defendants-Appellees.

NO. A-1-CA-37494

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 4, 2019

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
David K. Thomson, District Judge

Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Jenny F. Kaufman
Jiadai Lin
Santa Fe, NM

for Appellant

Bridget Jacober
Santa Fe, NM

for Appellees

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MEMORANDUM OPINION

VANZI, Judge.

{1} We withdraw the opinion filed in this case on February 4, 2019, and substitute the following in its place. We grant the motion to correct the opinion.

{2} Appellant appeals from the district court's order granting summary judgment and dismissal in favor of Appellees. This Court filed a calendar notice proposing summary affirmance. We received Appellee's memorandum in support of the proposed disposition, Appellant's memorandum in opposition (MIO) to summary affirmance, Appellant's motion to withdraw the appeal, Appellee's motion to strike the MIO, and Appellee's response in opposition to dismissal of the appeal, and have considered the same. We deny Appellees' motion to strike the MIO. We also deny Appellant's motion to withdraw the appeal and proceed with summary affirmance of the district court's order.

{3} Appellant's docketing statement challenged whether the exemption for property interests provided for by NMSA 1978, Section 7-36-3(B) (2006), is limited to property a governmental entity has an ownership interest in pursuant to Article VIII, Section 3 of the New Mexico Constitution. [DS 8] Appellant argued that interpreting Section 7-36-3(B) as being limited by the Constitution renders the plain meaning of that statute meaningless. [Id.] Relying on our Supreme Court's holding in El Castillo Retirement Residences v. Martinez, as controlling authority, our calendar notice

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proposed to conclude that Article VIII, Section 3 limits the Legislature's power to exempt property from taxation, and because there is no constitutional authority for the Legislature to exempt real property by statute, like NMSA 1978, Section 7-36-7(B)(1)(d) (2008), Section 7-36-7(B)(1) cannot grant exemptions outside those authorized by Article VIII, Section 3. [CN 3-4] El Castillo Retirement Residences v. Martinez, 2017-NMSC-026, ¶¶ 29-30, 401 P.3d 751.

{4} Appellant does not assert any error in fact or law, or otherwise oppose the proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 ("Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law."); see also Taylor v. Van Winkle's IGA Farmer's Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing statement but not contested in a memorandum in opposition are abandoned). Rather, Appellant moves to dismiss the appeal by order and to allow the judgment below to stand as decided without entry of a memorandum opinion. [Motion 1-2, 8; MIO 3, 8] In the alternative, Appellant requests assignment to the general calendar for full briefing on the constitutional question. [MIO 8; Motion 8]

{5} Appellees, on the other hand, agree to dismissal of the appeal on the condition that this Court enter a memorandum opinion summarily affirming in accordance with the proposed disposition. [MIS 1] Appellees assert that contrary to Appellant's

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assertion, they do not seek a declaration on the constitutionality of Section 7-36-3(B), but request a memorandum opinion adopting the analysis in the proposed disposition addressing the application of Section 7-36-3(B) to the undisputed facts of the case. [Response 5]

{6}...