Lopez v. Las Cruces Police Dept.
| Decision Date | 03 May 2006 |
| Docket Number | No. 25,488.,No. 24,883.,24,883.,25,488. |
| Citation | 137 P.3d 670,2006 NMCA 074 |
| Parties | Louie L. LOPEZ, Sr., Plaintiff-Appellant, v. LAS CRUCES POLICE DEPARTMENT, Defendant-Appellee. Margaret Coleman, Plaintiff-Appellee, v. City of Las Cruces, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Lilley Law Offices, Michael W. Lilley, Lawrence W. Allred, Las Cruces, NM, for Appellant.
City of Las Cruces, Harry S. (Pete) Connelly, Deputy City Attorney, Las Cruces, NM, for Appellee.
Civerolo, Gralow, Hill & Curtis, Robert J. Curtis, Edward F. Messett, Albuquerque, NM, for Amicus Curiae University of New Mexico, New Mexico Health Sciences Center.
Randi McGinn, Michael B. Browde, Albuquerque, NM, for Amicus Curiae New Mexico Trial Lawyers Association.
Caren I. Friedman, Santa Fe, NM, Pickett & Murphy, Mark L. Pickett, Las Cruces, NM, for Appellee in No. 25,488.
Miller Stratvert P.A., Lawrence R. White, Alice Tomlinson Lorenz, Las Cruces, NM, for Appellant in No. 25,488.
{1} These cases present us with the opportunity to resolve the issues of whether the New Mexico Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2004), requires a plaintiff to name a specific public employee as a defendant to recover damages under the TCA and whether the name of the negligent public employee must be identified in evidence at trial. Because these cases raise similar legal issues, we consolidate them for appellate review. In Lopez, the district court granted Defendant Las Cruces Police Department's motion to dismiss or for summary judgment for failure to name a negligent employee. In Coleman, the district court entered judgment on the jury verdict in favor of Plaintiff Margaret Coleman notwithstanding Coleman's not having named a negligent employee. We hold that the TCA does not require the naming of individual public employees as defendants. We also hold that Coleman was not required to produce evidence at trial of the identity of the public employees whom Coleman claimed had been notified of the problem with the City sidewalk, because the issue was not properly preserved. Accordingly, in Coleman, we affirm the judgment in favor of Coleman, and in Lopez, we reverse and remand for reinstatement of Lopez's claim.
{2} The cases come before us in different procedural postures, and we set out the background to each appeal below. Additional factual and procedural details will be developed as necessary in the context of the discussion of each case.
{3} Louie Lopez filed a pro se complaint against the Las Cruces Police Department, alleging assault, battery, and improper arrest. In his complaint, Lopez did not name the police officers who he alleged had assaulted him. The Police Department filed a motion to dismiss or for summary judgment, arguing that under Abalos v. Bernalillo County District Attorney's Office, 105 N.M. 554, 734 P.2d 794 (Ct.App.1987), Lopez had failed to state a claim on which relief could be granted because he had not named a specific negligent public employee as a defendant. The district court dismissed Lopez's complaint with prejudice and entered summary judgment for the Police Department. Lopez appealed to this Court, still acting pro se, and this Court summarily affirmed the district court. The New Mexico Trial Lawyers Association (NMTLA) filed a motion for rehearing and leave to file an amicus curiae brief, which this Court granted. The Police Department moved to dismiss the appeal and for sanctions, arguing that Lopez had not filed the transcript in a timely manner and that NMTLA, as an amicus, should not be allowed to function as Lopez's attorney. We denied the motion, but stated that the parties could raise issues relating to proper representation and the role of an amicus in their briefs.
{4} Margaret Coleman's complaint alleged that she was injured when she tripped on a section of sidewalk in Las Cruces, which was in disrepair due to the negligence of the City of Las Cruces. Her complaint alleged that the City breached its duty to maintain the sidewalk in a safe condition. Coleman presented evidence at trial that on three occasions, City employees had been notified of a sunken water meter and an uneven sidewalk. The jury was instructed that the City could only act through its officers and employees, and the jury found that the City was negligent and that its negligence was the proximate cause of Coleman's injuries. After the district court entered judgment on the jury verdict, the City moved for judgment as a matter of law or a new trial, arguing, in part, that identification of a specific negligent City employee was a jurisdictional requirement under the TCA and that Coleman's failure to identify a specific negligent employee resulted in a lack of notice to the City. The district court denied the City's motion, and the City appealed from the judgment.
{5} Both cases require us to address whether the TCA requires the naming of a specific governmental employee, but each case also raises separate questions. Therefore, we first address the issues raised in Lopez and then address those raised in Coleman.
{6} As a preliminary matter, we address the Police Department's arguments concerning preservation and the role of the amicus, NMTLA, in this appeal. The Police Department argues that Lopez, a pro se plaintiff, did not preserve the arguments he now makes through counsel on appeal. Relying on Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84 (), the Police Department argues that this Court should not apply a less stringent preservation standard to Lopez simply because he was self-represented in the trial court. "To preserve an issue for review on appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court." Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987). Preservation serves the purposes of (1) allowing the trial court an opportunity to correct any errors, thereby avoiding the need for appeal, and (2) creating a record from which the appellate court can make informed decisions. Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332. Our review of the record indicates that the trial court was alerted to the issue of whether Abalos requires a plaintiff to name a specific public employee and decided as a matter of law that there was such a requirement. As Lopez points out in his reply brief, he attempted to respond to the Police Department's argument that he should have named individual employees. Because the trial court was made aware of the issue and knew that Lopez opposed dismissal, we consider the issue preserved for purposes of appellate review.
{7} The Police Department also argues that the role of an amicus State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 590-91, 249 P. 242, 248-49 (1926). Instead of acting within this role, the Police Department argues, NMTLA assumed the functions of a party by advocating for Lopez during the proceedings on rehearing and by securing a transcript. Lopez responds that NMTLA acted appropriately in seeking reconsideration, securing a transcript, obtaining counsel to act in a pro bono capacity on behalf of Lopez, and filing an amicus brief.
{8} Although we agree with the Police Department's description of the role of an amicus in the appellate process, under the facts of this case, we cannot say that NMTLA acted inappropriately in seeking reconsideration of our summary decision. NMTLA argued in its motion for reconsideration that the issue of whether Lopez was required to name individual public employees had been incorrectly decided in a manner contrary to standard practice throughout the state and without the benefit of briefing or argument by licensed attorneys. NMTLA also points out that at the time it filed the motion for reconsideration, it had attempted to contact Lopez but had been unable to do so. Under these circumstances, we conclude that NMTLA did not act improperly in filing a motion for reconsideration. It was seeking to preserve this Court's ability to correctly decide an important issue. At the same time, it successfully sought out counsel to represent Lopez in a pro bono capacity. We now have briefing by a properly represented Lopez, as well as amicus briefing by the NMTLA. It would exalt form over substance to dismiss Lopez's appeal at this point in time. "It is the appellate court policy to construe rules liberally so that an appeal may be decided on the merits whenever possible." Hester v. Hester, 100 N.M. 773, 775-76, 676 P.2d 1338, 1340-41 (Ct.App.1984). We therefore reconsider Lopez's issue of whether a plaintiff is required to name a specific negligent public employee in a TCA complaint.
{9} Lopez challenges the district court's dismissal of his claim, arguing that the Police Department is the proper defendant and that he is not required by statute or public policy to name an individual public employee as a defendant in order to state a claim under the TCA. In the alternative, he argues that if he is required to name individual law enforcement officers, he should be permitted to amend his complaint. We hold that a TCA plaintiff is not required to name an individual public employee as a defendant. In light of this holding, we do not address Lopez's additional issue.
{10} Because the court dismissed...
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...to name the individual actors to sufficiently state a claim for relief. See MTD Response at 5 (citing Lopez v. Las Cruces Police Department, 2006–NMCA–074, 139 N.M. 730, 137 P.3d 670). J. Chavez alleges that his Complaint alleges facts, when accepted as true, sufficient to show that the ind......
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