Castillo v. City of Las Vegas

• Decision Date: 27 August 2008
• Docket Number: No. 26,758.,26,758.
• Citation: 2008 NMCA 141,195 P.3d 870
• Parties: Florian CASTILLO and Molly Martinez, Plaintiffs-Appellees, v. CITY OF LAS VEGAS, New Mexico, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

195 P.3d 870

2008 NMCA 141

Florian CASTILLO and Molly Martinez, Plaintiffs-Appellees, v. CITY OF LAS VEGAS, New Mexico, Defendant-Appellant.

No. 26,758.

Court of Appeals of New Mexico.

August 27, 2008.

Law Offices of Daniel J. O'Friel, Pierre Levy, Felker, Ish, Ritchie & Geer, P.A., Carol J. Ritchie, Santa Fe, NM, for Appellees.

Patricia A. Padrino, Gregory L. Biehler, Albuquerque, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1} Plaintiffs Florian Castillo and Molly Martinez (Plaintiffs) sued the City of Las Vegas (City) for personal injury and damage caused to their home by a backup in the city sewer system. The jury awarded Plaintiffs damages for the injury to the property and awarded Mr. Castillo damages for the emotional distress that he suffered as a result of the property damage. The City appeals, raising four claims of error. We affirm the judgment as to the property damage, but we reverse the judgment as to the emotional distress damages because in this case, negligent property damage is not a basis for an emotional distress damages award.

I. BACKGROUND

{2} Plaintiffs lived together as a couple in a home owned by Mr. Castillo. In September 2003, the City's sewer system backed up, causing a pool of sewer water to accumulate under the bathroom floor of the home. Plaintiffs believed that this pool formed mold and caused the walls of the home to shift. The City admitted liability for the incident, and the only issue tried in the trial court was damages. The case was complicated by the fact that the home had been damaged by a prior sewer backup in 2002 and then later by a flood in 2005. Plaintiffs did not claim damages against the City for either of those incidents, and one of the primary difficulties at trial was sorting out what damage was caused by which incident because the jury was only to award damages for the 2003 backup.

{3} At trial, Mr. Castillo testified that he and Ms. Martinez moved out of the home after the 2002 backup but that at that time they intended to return. After the 2003 backup, however, he gave up on the idea of fixing the home and moving back in because the home seemed beyond repair. Plaintiffs introduced the expert testimony of two appraisers: one who had appraised the home in 2000, prior to any of the damage and one who had appraised it in 2005, after both sewer backups and the flood. The City relied on cross-examination to attempt to show that the damage to the home was caused primarily by the 2002 backup and the 2005 flood. The City did not call any witnesses to testify regarding the damage to the home as a result of the 2003 backup or how the 2003 backup, as opposed to the 2002 backup or the 2005 flood, affected the value of the home.

{4} After the close of evidence, the jury was instructed that it could award Plaintiffs damages for loss of use and loss of value to the home that was caused by the 2003 backup and that it could award damages for Mr. Castillo's mental anguish, which resulted from the damage to the home caused by that backup. The jury was precluded from awarding Ms. Martinez any damages for emotional distress. The jury awarded Plaintiffs $30,000 for damage to the home and $10,000 to Mr. Castillo for the emotional distress caused by the backup. The City appeals.

II. DISCUSSION

{5} The City makes four arguments on appeal: (1) Ms. Martinez did not have standing to sue the City, (2) the trial court improperly admitted expert testimony, (3) the trial court did not properly instruct the jury about calculating damages, and (4) the trial court improperly allowed the jury to award damages for emotional distress. We address each argument in turn.

A. Standing

{6} Before trial, the City moved for summary judgment on Ms. Martinez's claims and argued that she lacked standing to bring suit (1) because she was not the title owner of the home and (2) because she stated in her deposition that her emotional distress was caused by Mr. Castillo's depression and not by the property damage. The trial court apparently never ruled on the motion for summary judgment, but the City renewed its argument in a motion for a directed verdict. The trial court denied the motion as to standing but granted the motion as to Ms. Martinez's emotional distress claim. The result of the trial court's ruling was that Ms. Martinez could not recover damages for emotional distress, but that she could remain as a plaintiff; thus, the only remaining claims were for damage to the home and damages for Mr. Castillo's emotional distress. The City appeals the denial of its motion and argues that Ms. Martinez did not have standing to sue for damage to the property. This is a question of law that we review de novo. See ACLU v. City of Albuquerque, 2008-NMSC-045, ¶ 6, 144 N.M. 471, 188 P.3d 1222.

{7} "[A]s a matter of judicial policy if not of jurisdictional necessity, our courts have generally required that a litigant demonstrate injury in fact, causation, and redressability to invoke the court's authority to decide the merits of a case." Id. ¶ 10. The City argues that Ms. Martinez suffered no injury in fact and, as a result, she had no standing to participate in the cause of action. We observe that the jury awarded no separate damages to Ms. Martinez. Rather, the award for actual damages went to both Plaintiffs, and the award for emotional damages went solely to Mr. Castillo. Although the City suggests that the jury awarded the actual damages to a "family" and that the award might have been less had Ms. Martinez not been a party, there is no evidence to support such speculation. To the contrary, the jury was instructed that the measure of damages was the "[l]oss of use and loss of value to the residence."

{8} If this Court were to reverse the trial court's determination on the issue of Ms. Martinez's standing, we would remand for the trial court to dismiss her from the case. We would not, however, require a new trial because the damage awards would not be affected by her absence as a party. See Rule 1-061 NMRA ("No error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice."); Fahrbach v. Diamond Shamrock, Inc., 1996-NMSC-063, 122 N.M. 543, 552, 928 P.2d 269, 278 (interpreting Rule 1-061 to require direct evidence that an error contributed to or directly resulted in the jury's verdict and refusing to speculate that an error influenced the jury). Accordingly, we conclude that the amount of the verdict would not be affected by Ms. Martinez's participation as a plaintiff and, as such, even if it were error to allow Ms. Martinez to remain as a party plaintiff, such error would be harmless.

B. Expert Testimony

{9} The City argues that the trial court erred in admitting testimony from two different appraisers whose appraisals did not reflect the value of the property either immediately before or immediately after the 2003 backup. We review the admission of evidence for an abuse of discretion. See Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999.

{10} The City argues that Leigh v. Village of Los Lunas, 2005-NMCA-025, ¶ 13, 137 N.M. 119, 108 P.3d 525, requires us to conclude that the appraiser's testimony was inadmissible to measure Plaintiffs' damages. In Leigh, this Court held that where the proper measure of compensation for a governmental taking was the difference between the fair market value of the property before the taking and the fair market value after the taking, it was error to admit into evidence an appraisal that did not follow the before and after rule. Id. ¶ 21. The taking in Leigh occurred when the Village of Los Lunas placed a drainage pond next to the plaintiffs' property in violation of a restrictive covenant. Id. ¶¶ 6, 8. The appraisal that the plaintiffs introduced at trial did not value their property before and after the installation of the pond, but rather valued the property with and without the pond — a valuation that examined a single point in time. Id. ¶ 23. This Court held that because the appraisal was not sufficient to establish the value of the property before and after the taking, it should not have been admitted into evidence. Id. ¶ 27.

{11} In this case, Plaintiffs introduced testimony from an appraiser who appraised the property in 1999 and then again in 2000 — prior to any of the three incidents that damaged their home. In 2000, the appraiser valued the home at $80,000. A second appraiser testified that in 2005, after the two sewer backups and the flood, the house was worth $37,000. Neither expert testified specifically about what the value of the house would have been immediately before the 2003 backup, but after the damage done by the 2002 backup, or immediately after the 2003 backup, but before the 2005 flood. The City argues that because the appraisers did not value the home immediately before and after the 2003 backup, their testimony was prohibited under Leigh. We disagree and conclude that Leigh is distinguishable on two bases.

{12} First, we note that in Leigh, this Court evaluated the appraiser's report in the context of a "taking of a restrictive covenant." Id. ¶ 18. The general rule stated in Leigh is that "[d]amages for the partial taking of property by an easement are measured as the difference between the fair market value before and after the taking." Id. ¶ 13. It is well established that money damages in a takings claim are calculated based on a jury determination of the "fair market value" of the property in question. County of Dona Ana ex rel. Bd. of County Comm'rs v. Bennett, 116 N.M. 778, 784, 867 P.2d 1160, 1166 (1994) (preserving "well-established New Mexico law, incorporated in UJI Civil 13-704 [NMRA], that when there is a partial...