Coe v. City of Albuquerque

• Decision Date: 16 March 1970
• Docket Number: No. 8739,8739
• Citation: 1970 NMSC 41,467 P.2d 27,81 N.M. 361
• Parties: Ralph M. COE and Wilhelmina N. Coe, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, a municipal corporation, Jack Coogan and Alida Coogan, Roland Walters and Mary Walters, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 27

467 P.2d 27

81 N.M. 361

Ralph M. COE and Wilhelmina N. Coe, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, a municipal corporation, Jack Coogan and Alida Coogan, Roland Walters and Mary Walters Defendants-Appellees.

No. 8739.

Supreme Court of New Mexico.

March 16, 1970.

Oliver Burton Cohen, William H. Carpenter, Albuquerque, for appellants

Hernandez, Atkinson & Kelsey, Albuquerque, for Coogan & Walters.

Frank M. Mims, Albuquerque, for City of Albuquerque.

OPINION

SISK, Justice.

Plaintiffs appeal from a summary judgment granted to the defendants, City of Albuquerque, Jack Coogan and Alida Coogan, and Roland Walters and Mary Walters. Plaintiffs sought to have three ordinances of the City of Albuquerque declared void, insofar as they affect the property or property rights of plaintiffs. Summary judgment may properly be granted only if the moving party is entitled thereto as a matter of law upon clear and undisputed facts. Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 77 N.M. 730, 427 P.2d 249 (1967); Great Western Construction Co. v. N. C. Ribble Co., 77 N.M. 725, 427 P.2d 246 (1967).

In an effort to determine the basis for the granting of summary judgment, it is necessary to briefly review the few relevant pleadings and documents which are contained in the record. The complaint alleges that plaintiffs own certain specific lots in the Netherwood Park Addition in Albuquerque, as shown on a specified plat; that the defendants Coogan and Walters owned portions of property in such addition; that the City of Albuquerque by three ordinances vacated portions of Hermosa, Solano and Euclid Streets contiguous to the property of plaintiffs and defendants, and changed the zoning of plaintiffs' property; and that the ordinances would deprive plaintiffs of valuable property rights of access, in violation of their rights under the federal and state constitutions.

The answers of defendants denied that plaintiffs were improperly deprived of any property rights and alleged that plaintiffs were lawfully notified of hearings before the Planning Commission and the City Commission concerning the zone change and the street vacation; that plaintiffs made no objection to and took no appeal from the action of the City and are estopped from questioning the validity of the ordinances; that plaintiffs failed to exhaust their administrative remedies and therefore cannot maintain this action; and that all actions of the City complied with its various ordinances, which actions were within the proper discretion of the City, and the resulting ordinances were therefore valid.

After hearing on the defendants' motion for summary judgment, the trial court entered an interlocutory order which, after making specific findings of fact, ordered that summary judgment would thereafter be entered dismissing plaintiffs' complaint with prejudice if the plaintiffs were granted an easement to and from their property described as Lots 23 and 26, Block 15, and Block (lot) 47, Block 16, of the Netherwood Park Addition. The order further provided that if the parties were unable to agree on the reasonableness of such access the court would determine that fact. Neither the plat of the addition nor any of the municipal ordinances appear in the record on appeal.

The court found that plaintiffs were duly notified of Planning Commission meetings on August 24, 1965, September 20, 1965, and October 4, 1965; and that the City Commission passed the three ordinances in question on October 12, 1965. The only statements before the court at the summary judgment hearing which concerned notice of any kind were contained in the deposition of Mr. Hernandez and the affidavit of Mr. Carruthers. Mr. Hernandez said that he ascertained that a letter of notification of the application for zone change and vacation of Hermosa Street was sent to and received by plaintiffs, but no mention was made of the date of that letter or of any of the meetings referred to in the court's findings. The affidavit of Mr. Carruthers stated that a certain zoning ordinance required five days' notice of the meeting at which an application was to be considered; that a notice was mailed to plaintiffs on August 12, 1965; and that the City Commission finally passed upon the zone change and street vacation application on October 4, 1965. This testimony is not sufficient to support the specific findings concerning notice which were entered following the summary judgment hearing.

Thereafter, at a hearing on the plaintiffs' motion to set aside the interlocutory order previously entered, the court found that an easement offered to plaintiffs by the defendants Coogan and Walters did afford reasonable access to and from the property of plaintiffs, identified as Lots 23 and 26, Block 15, of a certain plat of the Netherwood Park Addition. The court then specifically granted such easement to plaintiffs and granted summary judgment in favor of defendants.

Such a factual determination at summary judgment hearing was improper. See Rule 56, Rules of Civil Procedure (§ 21--1--1(56)(c), N.M.S.A. 1953); Shumate v. Hillis, 80 N.M. 308, 454 P.2d 965 (1969); Martin v. Board of Education, 79 N.M. 636, 447 P.2d 516 (1968); Johnson v. J. S. & H. Constr. Co., 81 N.M. 42, 462 P.2d 627 (Ct.App.1969). There is no evidence that the easement offered by defendants, but not agreed to by plainti...