Jones v. City of Albuquerque

• Decision Date: 10 May 2018
• Docket Number: No. A-1-CA-35120,A-1-CA-35120
• Parties: ANDREW JONES, Plaintiff-Appellant, v. THE CITY OF ALBUQUERQUE POLICE DEPARTMENT and THE DEPARTMENT OF PUBLIC SAFETY OF THE STATE OF NEW MEXICO, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

ANDREW JONES, Plaintiff-Appellant, v. THE CITY OF ALBUQUERQUE POLICE DEPARTMENTand THE DEPARTMENT OF PUBLIC SAFETY OF THESTATE OF NEW MEXICO, Defendants-Appellees.

No. A-1-CA-35120

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 10, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Denise Barela-Shepherd, District Judge

Kennedy, Kennedy & Ives, LLC

Adam C. Flores

Joseph P. Kennedy

Shannon L. Kennedy

Laura Schauer Ives

Albuquerque, NM

for Appellant

Doughty, Alcaraz & deGraauw, P.A.

Robert M. Doughty, III

Jeffrey M. Mitchell

Albuquerque, NM

for Appellee New Mexico Department of Public Safety

MEMORANDUM OPINION

VIGIL, Judge.

{1} Plaintiff Andrew Jones appeals the trial court's order granting the New Mexico Department of Public Safety's (DPS) motion for summary judgment, under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2013). For the reasons that follow, we affirm. Because this is a memorandum opinion and the parties are familiar with the facts and procedural posture of the case, we set forth only such facts and law as are necessary to decide the merits.

BACKGROUND

{2} In the Sandia foothills near Albuquerque, New Mexico, James Boyd was shot and killed by gunshot wounds inflicted by Albuquerque Police Department Detective Keith Sandy, on March 16, 2014. On March 28, 2014, the Federal Bureau of Investigation (FBI) announced in a press release that it had opened an investigation into the death of James Boyd, and whether the shooting gave rise to civil rights violations.

{3} On April 8, 2014, pursuant to IPRA, Plaintiff requested from the DPS custodian of records "any and all" records in the possession of DPS pertaining to the shooting of James Boyd. DPS responded in writing to Plaintiff's request on April 22, 2014.

DPS confirmed that it was "in possession of investigative reports, audio/video evidence, and investigatory materials" related to the shooting of James Boyd. However, DPS declined, temporarily to produce its "investigatory reports and materials" under the law enforcement records exception to IPRA, Section 14-2-1(A)(4). DPS explained that its basis for withholding these records was: (1) that there was an ongoing FBI investigation into the shooting; and (2) that disclosure of the requested records would threaten the integrity of the FBI's investigation. DPS stated, "[t]he records that you have requested will be preserved and provided to you when the release of such records no longer jeopardizes the law enforcement investigation."

{4} Plaintiff filed suit against DPS on May 16, 2014, under IPRA, seeking to compel production of the records sought in his IPRA request and attorneys' fees. In its answer, DPS asserted as an affirmative defense that the records requested by Plaintiff were excepted from disclosure under Section 14-2-1(A)(4).

{5} Plaintiff thereafter filed a motion for summary judgment contending that based on the undisputed material facts, DPS wrongfully denied his IPRA request. This motion was denied by the trial court on December 9, 2014. The trial court concluded that the records withheld were excepted from production under Section 14-2-1(A)(4) as confidential law enforcement records based on DPS's showing that the records sought by Plaintiff were subject to an ongoing FBI investigation. However, the trialcourt also ordered: (A) "[s]hould the [FBI] fail to complete its investigation [into the shooting of James Boyd] by January 15, 2015, then DPS shall produce a privilege log to . . . Plaintiff providing a description of the documents withheld and the basis therefore"; (B) "[a]t that time, Plaintiff will have an opportunity to challenge the privilege log"; and (C) "[c]oncurrently with the production of the privilege log, DPS shall produce the requested records to the Court in camera so that the Court may address any challenges to DPS's privilege log." Plaintiff did not object. In January 2015 the FBI concluded its investigation, and DPS began processing and producing to Plaintiff the records withheld sought in his IPRA request.

{6} On April 15, 2015, after it provided to Plaintiff the records withheld, DPS filed a motion for summary judgment, seeking dismissal of Plaintiff's IPRA action. DPS argued in part that summary judgment in its favor was appropriate because the trial court had "already ruled that the requested materials were law enforcement materials, exempted from the requirements of IPRA." DPS also contended that the remedy of enforcement was no longer available to Plaintiff since it had produced the records withheld, to Plaintiff at the close of the FBI's investigation.

{7} The trial court filed its order granting DPS summary judgment on September 9, 2015. The trial court ruled that summary judgment in favor of DPS was proper based on its December 9, 2014 order, which concluded that "the records at issue wereexempt from disclosure pursuant to Section 14-2-1(A)(4) of IPRA" and because DPS "turned over the records [at issue] after the FBI concluded its investigation." As a result, the trial court concluded, "Plaintiff is not entitled to an award of attorneys' fees" under IPRA. Plaintiff appeals from this order.

DISCUSSION

{8} On appeal, Plaintiff asserts that the trial court erred in granting DPS's motion for summary judgment. Plaintiff argues that DPS failed to satisfy its burden to establish that the records requested by Plaintiff are exempt from disclosure under the law enforcement records exception to IPRA, Section 14-2-1(A)(4).

{9} In relevant part, DPS responds that this Court should decline to reach the merits of Plaintiff's appeal on procedural grounds. Having failed to object to the trial court's December 9, 2014 order denying his motion for summary judgment, DPS contends that Plaintiff's claims cannot be considered for the first time on appeal. We agree.

I. Standard of review

{10} "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Cox v. N.M. Dep't of Pub. Safety, 2010-NMCA-096, ¶ 4, 148 N.M. 934, 242 P.3d 501 (internal quotation marks and citation omitted). "An appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo." Id. (internalquotation marks and citation omitted). Additionally, "[w]e will review the issue of waiver and acquiescence de novo." Concerned Residents of Santa Fe N. Inc. v. Santa Fe Estates, Inc., 2008-NMCA-042, ¶¶ 19-22, 143 N.M. 811, 182 P.3d 794 (reviewing de novo order granting summary judgment against landowner on issue of whether landowner waived its defense of res judicata in contract action brought by resident group, where the trial court only considered undisputed facts in its ruling).

II. Analysis

{11} Generally, in order "[t]o preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked." Rule 12-321 NMRA. "The principal purpose of this rule is to alert the trial judge to the claimed error, giving the trial court an opportunity to correct the matter." Trace v. Univ. of N.M. Hosp., 2015-NMCA-083, ¶ 11, 355 P.3d 103. It follows that issues not raised before the trial court are waived on appeal. See Chase v. Contractors' Equip. & Supply Co., 1983-NMCA-058, ¶ 15, 100 N.M. 39, 665 P.2d 301; see also Estates at Desert Ridge Trails Homeowners' Ass'n v. Vazquez, 2013-NMCA-051, ¶ 40, 300 P.3d 736 (holding that the homeowners' association's (HOA) claim of an alleged HOA rule violation by the defendant was waived on appeal, where the HOA failed to timely request relief from the trial court judgment, which failed to rule on the issue).

{12} Similarly, New Mexico appellate courts will not reverse the judgment of a trial court on the basis of a claimed error in which the complaining party acquiesced. See Quintana v. Quintana, 1941-NMSC-038, ¶ 7, 45 N.M. 429, 115 P.2d 1011 ("We may not properly reverse judgments for errors seemingly acquiesced in below and, for aught that appears, discovered by counsel to be such subsequent to trial."); see also N.M. Selling Co. v. Crescendo Corp. (NSL), 1964-NMSC-180, ¶¶ 5-7, 74 N.M. 409, 394 P.2d 260 (holding that although there was a lack of compliance with procedure governing interventions in the trial court, the defendants were not entitled to complain on appeal that the trial court failed to follow the rules of procedure, where no timely objection on the issue was made by the defendants); Chase, 1983-NMCA-058, ¶¶ 12-15 (holding that on appeal from default judgment in favor of the plaintiff, issues raised by the defendant in support of the claim that the procedure between entry of default and the entry of default judgment was erroneous was waived where the issues were not raised in the trial court).

{13} In its December 9, 2014 order denying Plaintiff's motion for summary judgment, the trial court ruled that the records sought by Plaintiff and withheld by DPS were excepted from production under the law enforcement records exception to IPRA under Section 14-2-1(A)(4). However, the trial court also ordered that if the FBI failed to complete its investigation by January 15, 2015, then DPS would be requiredto produce a privilege log to Plaintiff "providing a description of the documents withheld and the basis therefore[,]" which Plaintiff would then be given an opportunity to challenge. And concurrently with the production of the privilege log, DPS was required to produce the records for an in camera review, to enable the trial court to address any challenge to the privilege log made by the Plaintiff.

{14} Plaintif...