Chavez v. BOARD OF COUNTY COM'RS, No. 21

• Docket Nº: No. 066
• Citation: 130 N.M. 753, 31 P.3d 1027
• Case Date: July 23, 2001
• Court: Court of Appeals of New Mexico

31 P.3d 1027
130 N.M. 753

Ruby CHAVEZ, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF CURRY COUNTY, New Mexico, Defendant.
Consolidated with Ruby CHAVEZ, Plaintiff-Appellee,
v.
Waldo CASAREZ and Charlie Aguirre, Defendants-Appellants

Nos. 21,066, 21,277.

Court of Appeals of New Mexico.

July 23, 2001.

31 P.3d 1031

Michael T. Garrett, Garrett Law Firm, P.A., Clovis, NM, for Appellee

Thomas L. Murphy, Beall & Biehler, P.A., Albuquerque, NM, for Appellants.

OPINION

FRY, Judge.

{1} Defendants Waldo Casarez and Charlie Aguirre appeal a judgment after a jury verdict in favor of Plaintiff Ruby Chavez in this civil rights action pursuant to 42 U.S.C. § 1983 (1994). Defendants assert that the trial court erred in (1) denying their claim of qualified immunity; (2) instructing the jury on Plaintiff's Fourth Amendment claim; (3) refusing to exclude Plaintiff's expert witness for late disclosure; (4) admitting evidence of events that occurred after Defendants' warrantless entry into Plaintiff's home; and (5) if the judgment is reversed, awarding attorney's fees and costs to Plaintiff. We affirm on all issues.

BACKGROUND

{2} Defendants are deputy sheriffs with the Curry County Sheriff's Department. On October 23, 1995, they were called to assist two social workers from the Children, Youth & Families Department (CYFD) on a "child welfare check" at Plaintiff's home. Plaintiff's son, Moses, had not been attending elementary school. Plaintiff had attempted to transfer the child to another school but did not complete the paperwork for the transfer. Thus, one reason for the visit to Plaintiff's home was to investigate suspected truancy or educational neglect.

{3} The social workers, however, also had other concerns about Moses' welfare. They thought that he was possibly neglected based on what appeared to be poor nutrition. Aside from suspected malnutrition, however, it does not appear that the social workers had any other reason to believe that Moses was neglected or abused. For example, there is no evidence in the record that CYFD had received any reports of physical abuse or mistreatment of the child.

{4} Defendants were asked to serve as "back-up" on the welfare check. One of the social workers, Sandi Hickey, testified that law enforcement officers were often called as "back-up" on welfare checks to assist social workers in finding a home, gaining access to a child, minimizing the risks and dangers associated with going to a residence, and working with families. Ms. Hickey also explained that, according to CYFD's internal policies and procedures, if entry to a home or access to a child is denied, CYFD may, through its legal department, seek a court order to gain entry to a home or access to a child. While a court order is being secured, law enforcement officers may be asked to remain at a residence to prevent a caretaker from leaving with the child.

{5} Prior to the welfare check, Deputy Casarez spoke with Jon Pennington, an inexperienced social worker who had been assigned to Moses' case. Pennington explained to Deputy Casarez that Moses had been improperly withdrawn from school and was "possibly neglected and abused." He also advised that he had visited Plaintiff's home several days earlier to check on Moses' welfare, but was unable to make contact with the child. At trial, Plaintiff testified that she had told Pennington that Moses was not at home because she had sent him to Colorado to be home-schooled. Pennington also informed Deputy Casarez that he suspected Plaintiff and her fiancé had been smoking marijuana because their eyes were red. Because of the suspected drug activity, Pennington assessed Plaintiff's home as being potentially violent.

{6} When Defendants and the social workers arrived at Plaintiff's home, they knocked on the front door. Plaintiff answered. Ms. Hickey announced that they were there to check on Moses' welfare. Plaintiff stated that Moses was not home. Ms. Hickey asked if they could come inside the home. Initially, Plaintiff did not have a problem with Ms. Hickey, or even Deputy Casarez, coming inside. However, when Pennington also insisted on entering, Plaintiff became angry and upset and changed her mind. She refused to let anyone in and began to shut the door,

31 P.3d 1032

stating that they needed a search warrant. Replying that he did not need a warrant, Deputy Casarez pushed the door open and forced his way into the house. Deputy Aguirre followed. After a struggle, Defendants arrested Plaintiff. Defendants then took Plaintiff outside to the police car in handcuffs as neighbors looked on. Her clothing was torn, her bra was showing, and her breast was exposed. Her arms were bruised as a result of the struggle

{7} Upon Plaintiff's arrest, the social workers searched her home; it was clean and in order, and there was no evidence of any criminal activity. Plaintiff's three-year-old daughter was also in the house, but was not in any danger. Moses was not at home, and it was later verified that he was living with a relative in Colorado.

{8} Plaintiff filed this civil rights action against Defendants claiming that they violated her Fourth Amendment right to be free from unreasonable searches and seizures. Following a trial, the jury returned verdicts in favor of Plaintiff and against Deputy Casarez in the amount of $5,000, and against Deputy Aguirre in the amount of $2,500. Defendants appeal from the final judgment.

DISCUSSION

I. Qualified Immunity

A. Review of Qualified Immunity Following Trial and Final Judgment

{9} The question of qualified immunity comes to us for review following a full trial on the merits and final judgment. Although a defendant may immediately appeal the denial of summary judgment on qualified immunity grounds, Defendants here did not appeal the trial court's denial of their motion for summary judgment on the issue. On appeal, Plaintiff does not assert that Defendants waived qualified immunity by failing to appeal the trial court's denial of summary judgment; however, we address the issue of waiver as a preliminary matter to clarify the law regarding when the defense of qualified immunity may be asserted below and raised on appeal by defendants.

{10} Qualified immunity is not only a defense to liability but also "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, a pretrial order denying qualified immunity on purely legal grounds is immediately reviewable under the collateral order doctrine because it "implicates rights that will be irretrievably lost, absent immediate review and regardless of the outcome of an appeal from the final judgment." Carrillo v. Rostro, 114 N.M. 607, 614, 845 P.2d 130, 137 (1992); Mitchell, 472 U.S. at 526-30, 105 S.Ct. 2806; cf. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that denial of summary judgment based solely on existence of genuine issues of material fact is not subject to collateral review).

{11} Typically in New Mexico, government officials present the issue of qualified immunity to the appellate court by means of a petition for writ of error seeking immediate review of the trial court's denial of a motion for summary judgment or motion to dismiss based on qualified immunity. See, e.g., Cockrell v. Bd. of Regents of N.M. State Univ., 1999-NMCA-073, ¶ 2, 127 N.M. 478, 983 P.2d 427; see also Carrillo, 114 N.M. at 614, 845 P.2d at 137 (explaining that petition for writ of error is proper procedure for reviewing collateral orders such as orders denying qualified immunity); cf. Doe v. Leach, 1999 NMCA 117, ¶ 17, 128 N.M. 28, 988 P.2d 1252 (granting writ of error to review claim of qualified immunity where trial court deferred ruling on motion for summary judgment and ordered parties to submit to discovery). In this case, however, Defendants elected not to appeal the trial court's denial of summary judgment on qualified immunity grounds, even to the extent it turned on the pure legal issue of whether Plaintiff's constitutional rights were clearly established. Instead, they raise the issue on direct appeal following a final judgment on the merits.

{12} Ordinarily, "a denial of a motion for summary judgment is not reviewable after final judgment on the merits." Green v. Gen. Accident Ins. Co. of Am., 106 N.M. 523, 527, 746 P.2d 152, 156 (1987). However, because qualified immunity also serves to protect public officials from liability for damages, see Mitchell, 472 U.S. at 525-27, 105 S.Ct. 2806, and may be reasserted at other

31 P.3d 1033

stages in the litigation, including at trial, we determine that the failure to immediately appeal the denial of summary judgment on qualified immunity grounds did not bar Defendants from raising the issue on appeal after a trial on the merits. See Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988) ("There may be good reasons why a defendant may elect to not appeal before trial, and we see little value in a rule of waiver that would force unwanted appeals, many of which undoubtedly never would have been necessary."); accord Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir.1999); Hamm v. Powell, 874 F.2d 766, 770 (11th Cir.1989). Thus, by not appealing the denial of summary judgment and standing trial, Defendants clearly waived immunity from suit, but they did not waive the right not to be held liable for conduct that did not violate clearly established law. This is particularly true because they renewed their qualified immunity argument throughout the trial proceedings, including in their motion for directed verdict, objection to jury instructions, and motion for judgment notwithstanding the verdict. See Rakovich v. Wade, 850 F.2d 1180, 1205-06 (7th Cir.1988) (observing that qualified immunity is not limited to summary judgment context, although benefits of immunity lessen as suit progresses to trial, and may be considered at directed...