Kaywal, Inc. v. Avangrid Renewables, LLC, A-1-CA-37664

• Docket Nº: No. A-1-CA-37664
• Citation: 495 P.3d 550
• Case Date: November 25, 2019
• Court: Court of Appeals of New Mexico

495 P.3d 550

KAYWAL, INC., Plaintiff- Appellee,
v.
AVANGRID RENEWABLES, LLC, a foreign limited liability company; Blattner Energy, Inc., a foreign corporation; and El Cabo Wind, LLC, a foreign limited liability company, Defendants-Appellants.

No. A-1-CA-37664

Court of Appeals of New Mexico.

Filing Date: November 25, 2019
Certiorari Denied March 5, 2020, No. S-1-SC-38096

Hinkle Shanor LLP, Andrew J. Cloutier, Lucas M. Williams, Roswell, NM for Appellee

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Earl E. DeBrine, Jr., Elizabeth A. Martinez, Albuquerque, NM for Appellants

VANZI, Judge.

{1} We granted interlocutory appeal to review the district court's orders denying two motions to dismiss filed by Avangrid Renewables, LLC, Blattner Energy, Inc., and El Cabo Wind, LLC (collectively, Defendants). Defendants' first motion sought dismissal for improper venue; the second motion sought dismissal for failure to join the Torrance County Board of Commissioners (Torrance County) and the Commissioner of Public Lands (the Commissioner) as indispensable parties. We conclude that the district court properly denied the motion to dismiss for improper venue, because Kaywal, Inc.'s (Plaintiff) second amended complaint, which seeks monetary and injunctive relief for trespass, nuisance, and unjust enrichment, does not have as its object an interest in lands for purposes of New Mexico's venue statute. Therefore, venue is proper in Chaves County, where Plaintiff resides. For related reasons, the district court did not abuse its discretion in finding that Torrance County and the Commissioner are neither necessary nor indispensable parties. Accordingly, we affirm.

FACTUAL BACKGROUND

{2} The underlying complaint concerns Defendants' alleged trespass and nuisance in connection with development of the El Cabo wind farm (a wind energy facility) in Torrance County, New Mexico. Defendants—private companies in the wind energy business—contracted with the Commissioner to acquire a "wind lease" on state land. Waller Ranch (Waller Ranch or the Ranch), owned by Plaintiff, sits to the east of the parcel leased by Defendants. The Ranch owns a fence along its western boundary, which sits generally on the boundary line, or is slightly inset.¹ Along the northern boundary of Waller Ranch is a dirt road, intersecting U.S. Highway 285 to the east, and the leased parcel to the west. Although the Waller Ranch fence runs along the south side of the northern road, the fence is inset, such that portions of the northern road are on the Ranch property. North of the Waller Ranch property line is, largely, state trust land. The boundary between Plaintiff's land, and the state lands (to the north) was established through a Property Line Agreement (PLA) between Plaintiff and the Commissioner, dated December 11, 2001, and recorded with the Clerk of Torrance County on April 17, 2002. Plaintiff alleges that the ownership of Waller Ranch lands is further established by land purchase contracts and an affidavit and notice

495 P.3d 555

of possession and ownership (recorded in Torrance County), attached to the complaint.

{3} According to the complaint, beginning in 2012, Defendants attempted to obtain easements and licenses from Plaintiff to access the leased land via Waller Ranch, and to locate a transmission line through Waller Ranch land. Plaintiff did not grant the requested easements or licenses. In February 2017 Defendants obtained a Right of Entry permit (ROE 2978) from the state, which provided access to the leased parcel from the west. Defendants then began construction of a transmission line on the leased parcel, parallel to the western boundary of Waller Ranch, but found that access from the west was too steep and rugged. In March 2017 Defendants applied to the State Land Office (SLO) to amend ROE 2978, in order to enable access from the east, via the northern road, although (according to the complaint) Defendants knew that some of the road was owned by Plaintiff. The Commissioner either amended ROE 2978, or deemed ROE 2978 to already grant access via the northern road. However, ROE 2978 requires the grantee to discover existing encumbrances and does not purport to grant access across private lands.

{4} Thereafter, Plaintiff asserts, Defendants began trespassing on Waller Ranch property (both the real property and the western fence) by, inter alia, using the northern road, adding a wood-plank road on Waller Ranch land, transporting and storing materials on Waller Ranch land, disposing of soiled toilet paper on Waller Ranch land, digging holes under the Waller Ranch western fence, and installing electrical grounding systems on the western fence. Plaintiff claims that Defendants have damaged, and continue to damage Waller Ranch roads, fences, and grazing lands, and that they have removed, tampered with, or destroyed "No Trespassing" signs on the property. Plaintiff also claims that Defendants have created a nuisance by installing a grounding system on the Ranch's western fence, without permission, and locating the transmission line parallel to and near the same fence. Plaintiff asserts that this transmission line system will cause dangerous voltages and currents to be induced into the fence, causing "risk of serious injury or death to people, livestock and game." Finally, Plaintiff alleges that all of the foregoing conduct has resulted in unjust enrichment to Defendants, given the savings and revenue generated by the unlawful use of Plaintiff's road and fence. Plaintiff seeks compensatory damages, punitive damages, and an injunction prohibiting Defendants from further trespasses and nuisances on Waller Ranch property.

{5} Defendants' answer to the complaint admits that Defendants did not seek permission from Plaintiff to use the northern road, but denies that the road is within the boundaries of Waller Ranch. Similarly, the answer admits installing electrical grounding systems on portions of the western fence but asserts that the fence is "within the transmission right of way." The answer includes an affirmative defense that a public prescriptive easement has arisen on the northern road. However, it asserts no counterclaims and attaches no competing proof of ownership or right to possess the property at issue.

PROCEDURAL BACKGROUND

{6} Plaintiff commenced this action in Chaves County, the county of Kaywal's principal place of business. Defendants² filed a motion to dismiss for improper venue, arguing that "[b]ecause the object of Plaintiff's complaint is a dispute over ownership of and access to property located in Torrance County, suit must be filed in Torrance County[,]" citing Subsection (D)(1) of New Mexico's venue statute, NMSA 1978, § 38-3-1 (1988), which provides that "[w]hen lands or any interest in lands are the object of any suit in whole or in part, the suit shall be brought in the county where the land or any portion of the land is situate." By contrast, Plaintiff relied on Subsection (E) of the venue statute, which provides that "[s]uits for trespass on land shall be brought as provided in Subsection

495 P.3d 556

A of this section," (governing transitory actions), permitting such actions to be filed in the county of the plaintiff's residence, "or in the county where the land or any portion of the land is situate." However, Defendants argued that the complaint here seeks not merely damages, but also injunctive relief, and therefore Section 38-3-1(D) of the venue statute governs, citing the New Mexico Supreme Court's decision in Jemez Land Co. v. Garcia , 1910-NMSC-013, ¶ 18, 15 N.M. 316, 107 P. 683 (holding that, where the plaintiff sought an injunction "perpetually [restraining the defendant] from asserting title or any interest whatever in or to the lands in dispute of which [plaintiff] claims to be the absolute owner by deed[,]" an interest in land was necessarily involved in the suit), overruled on other grounds by Kalosha v. Novick , 1973-NMSC-010, ¶ 12, 84 N.M. 502, 505 P.2d 845.

{7} In its order denying Defendants' motion, the district court noted that Defendants' answer only generally denied the complaint's assertions of ownership to the property at issue, but provided "no affirmative evidence to contradict the same." The district court also discussed Cooper v. Amerada Hess Corp. (Cooper I ), 2000-NMCA-100, ¶ 23, 129 N.M. 710, 13 P.3d 68, aff'd in part, rev'd in part on other grounds sub nom. Cooper v. Chevron U.S.A., Inc. (Cooper II ), 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61, in which this Court reasoned that the Jemez Land Co. decision "was not intended to establish a damages-injunction dichotomy for venue purposes[,]" but rather, the decision distinguished between "actions the object of which is to redress tortious injury to real property (whether through damages or injunctive relief) versus actions that adjudicate title to real property." The district court observed that "[t]respass and nuisance are actions in personam[,]" for which injunctive relief may be necessary to accord complete relief, and that establishment of any disputed boundary between Waller Ranch lands and lands which Defendants were authorized to use would be ancillary to the determination of trespass and nuisance (citing, inter alia, Sproles v. McDonald , 1962-NMSC-071, 70 N.M. 168, 372 P.2d 122 ). The district court concluded that the complaint's claims of trespass and nuisance...