Sangre de Cristo Development Corp., Inc. v. City of Santa Fe

Decision Date22 November 1972
Docket NumberNo. 9441,9441
Citation1972 NMSC 76,503 P.2d 323,84 N.M. 343
PartiesSANGRE DE CRISTO DEVELOPMENT CORPORATION, INC., Plaintiff-Appellee, v. CITY OF SANTA FE and Board of County Commissioners of Santa Fe County, New Mexico, Defendants-Appellants.
CourtNew Mexico Supreme Court
Harry S. Connelly, Jr., Special Asst. City Atty., Santa Fe, for City of Santa Fe

John Wentworth, Deputy Dist. Atty., Santa Fe, for Board of County Commissioners.

James B. Alley, Jr., Santa Fe, on Rehearing for appellants.

Olmsted, Cohen & Bingaman, Standley, Witt & Quinn, Kegel & McCulloh, Santa Fe, for appellee.

PER CURIAM.

The opinion issued in this cause on September 22, 1972, is withdrawn and the following opinion substituted therefor. The Motions for Rehearing are otherwise denied.

OPINION

OMAN, Justice.

Sangre de Cristo Development Corporation, Inc., hereinafter called plaintiff, sought an injunction against defendants, the City of Santa Fe and the Board of County Commissioners of Santa Fe County. Each defendant filed a counterclaim by which it sought an injunction against plaintiff. The City also filed a separate suit against plaintiff in the same court the day after plaintiff's suit was filed. In this suit by the City it also sought an injunction against plaintiff. The Chief Justice of this Court designated the same trial judge to preside over both cases. A judgment was entered in the cause filed by plaintiff by which defendants were permanently enjoined and restrained from exercising over lands in the Pueblo of Tesuque all platting and planning authority and subdivision control conferred upon defendants by §§ 14--18--1 through 14--20--24, N.M.S.A.1953 (Repl.Vol. 3, 1968) and §§ 70--3--1 through 9, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1971). No ruling by the trial court was made upon the defendants' counterclaims, except to the extent that it can be said the judgment granting the plaintiff an injunction was inconsistent with the claims of defendants for injunctive relief against plaintiff.

In the cause filed by the City against plaintiff, an Order of Dismissal was entered for the recited reason that '(a)ll matters herein having been disposed of in cause #43,218 (the suit filed by plaintiff) the above cause (#43,223) is hereby dismissed.'

Appeals were taken by defendants from the judgment and an appeal was taken by the City from the Order of Dismissal. However, at no time in the briefs, except for references thereto in the 'Statement of the Causes' and the 'Statement of Proceedings' in their brief in chief, is any reference made by the defendants to the Order of Dismissal. No error is claimed on the part of the trial court in entering this order, no argument is directed against the substance of the order or the action of the trial curt in entering it, and defendants in their brief in chief urged that '* * * the District Court's Judgment should be reversed and a Judgment granting the relief sought by Appellants (defendants) against Appellee (plaintiff) in the District Court should be entered by the District Court.'

The one point relied upon for reversal by defendants, which in any way relates to their claims of right to injunctive relief against plaintiff, is stated by them as follows:

'POINT IV

'THE DISTRICT COURT SHOULD HAVE GRANTED A PERMANENT INJUNCTION TO APPELLANTS, RESTRAINING APPELLEE FROM FURTHER VIOLATING SECTIONS 14--19--1 ET SEQ., NMSA 1953 COMP., AND SHOULD HAVE GRANTED TO APPELLANT, COUNTY OF SANTA FE, A PERMANENT INJUNCTION RESTRAINING APPELLEE FROM FURTHER VIOLATING SECTION 70--3--1 THROUGH 70--3--9, AS AMENDED, NMSA 1953 COMP.'

In their argument under this point, their claim is that they were entitled to injunctions under a Stipulation of Facts which was filed in the suit brought by plaintiff and in which the judgment enjoining defendants was entered. Obviously defendants had to be relying on their counterclaims in the plaintiff's suit as the basis for their Point IV, and not on the City's complaint in the other cause, or on the Order of Dismissal entered therein. The County was not a party to the suit brought by the City.

If the City intended to claim error on the part of the trial court in entering the Order of Dismissal, it was the City's duty to clearly assert this claim (Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967); Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967); Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970)), and then to present argument and authority in support thereof (Sproule Const. Co. v. St. Paul Fire & Marine Ins. Co., 74 N.M. 189, 392 P.2d 339 (1964); Gibbs v. Whelan, 56 N.M. 38, 239 P.2d 727 (1952); Spain Management Co. v. Packs' Auto Sales, 54 N.M. 64, 213 P.2d 433 (1950); Wilson v. Albuquerque Board of Realtors, 82 N.M. 717, 487 P.2d 145 (Ct.App. 1971); Novak v. Dow, supra). This the City failed to do. Thus, neither the Order of Dismissal nor the cause in which the order was entered is before us on this appeal. We reverse the judgment by which defendants were enjoined and restrained. We do so on the jurisdictional issue of governmental immunity raised by defendants. This issue of governmental immunity arises from the fact that plaintiff sued defendants as governmental entities. The councilmen and commissioners of defendants were not sued as individuals.

We also feel constrained to decide the principal issue involved in this case, to wit, the right of defendants to exercise planning and platting authority and subdivision control over lands lying within the Pueblo of Tesuque. We decide this issue because of its great public importance; because this issue was fully briefed and argued by both sides on this appeal; and because defendants have expressly urged in their Point IV, supra, and in their arguments thereunder, as well as in their arguments under other points relied upon by them for reversal, that we resolve this issue. The jurisdictional question of governmental immunity is not applicable and has not been raised in relation to the claims asserted by defendants against plaintiff in their counterclaims.

It is true defendants have taken the position in their motions for rehearing that this issue should not have been decided by us, but this position is completely inconsistent with the position they took in their brief in chief, their reply brief, and their oral arguments, except for the fact that they wanted the issue resolved in their favor.

We affirm the trial court's implied refusal to grant the defendants' counterclaims for injunction against Sangre de Cristo. These counterclaims remain before this court for determination even though the original claim by Sangre de Cristo fails on jurisdictional grounds. As stated in Manufacturers Cas. Ins. Co. v. Arapahoe Drilling Co., 267 F.2d 5 (10th Cir. 1959):

'* * * (I)t is apparent in those exceptional cases where a counterclaim may survive the jurisdictional failure of a complaint that at least three premises must exist. Jurisdiction must exist within the scope of the allegations of the counterclaim; the claim made in the counterclaim must be independent of that made in the main case; and, lastly, affirmative relief must be sought.'

All of these premises exist in the present case.

Defendants contend the district court lacked jurisdiction over them to grant the injunctive relief sought by plaintiff, because of their governmental immunity from suit as political subdivisions of the State. Neither of them nor the State has given permission or consent for this suit against them. Regardless of what may be the law in other states, this Court has consistently held the State of New Mexico may not be sued in the courts without its permission or consent. Nevares v. State Armory Board, 81 N.M. 268, 466 P.2d 114 (1969); State v. Burks, 75 N.M. 19, 399 P.2d 920 (1965); State v. Town of Grants, 69 N.M. 145, 364 P.2d 853 (1961); Maes v. Old Lincoln County Memorial Commission, 64 N.M. 475, 330 P.2d 556 (1958); Livingston v. Regents of New Mexico Col. of A. & M.A., 64 N.M. 306, 328 P.2d 78 (1958); Swayze v. Bartlett, 58 N.M. 504, 273 P.2d 367 (1954); Day v. Penitentiary of New Mexico, 58 N.M. 391, 271 P.2d 831 (1954); Hathaway v. New Mexico State Police, 57 N.M. 747 (on reh. 758), 263 P.2d 690 (1953); Vigil v. Penitentiary of New Mexico, 52 N.M. 224, 195 P.2d 1014 (1948); Arnold v. State, 48 N.M. 596, 154 P.2d 257 (1944); New Mexico State Highway Department v. Bible, 38 N.M. 372, 34 P.2d 295 (1934); Dougherty v. Vidal, 37 N.M. 256, 21 P.2d 90 (1933); State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059 (1921). See also McWhorter v. Board of Education, 63 N.M. 421, 320 P.2d 1025 (1958); State v. District Court of Fourth Judicial Dist., 51 N.M. 297, 183 P.2d 607 (1947); Am. Trust & Sav. Bnk. of Alb. v. Scobee et al., 29 N.M. 436, 224 P. 788 (1924); Locke v. Trustees of New Mex. Reform School, 23 N.M. 487, 169 P. 304 (1917). Also in New Mexico, municipalities, such as the City of Santa Fe, are clothed with this immunity from suit, insofar as their governmental functions are concerned. Montoya v. City of Albuquerque, 82 N.M. 90, 476 P.2d 60 (1970); Hammell v. City of Albuquerque, 63 N.M. 374, 320 P.2d 384 (1958). See also McWhorter v. Board of Education, supra; Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480 (1943). This is also true as to counties. Elliott v. Lea County, 58 N.M. 147, 267 P.2d 131 (1954); Murray v. County Commissioners, 28 N.M. 309, 210 P. 1067 (1922).

A reference to the foregoing cited cases shows that in New Mexico the doctrine of governmental immunity has not only been adhered to in tort cases or in cases in which there is likely to be a direct and adverse effect upon the public treasury, but in other types of cases as well.

This Court has also repeatedly held that if any change in this policy of immunity from suit is desired by the people of this State, this change can and should be accomplished through legislative action. Montoya v. City of Albuquerque, supra; Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M....

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