State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque

• Decision Date: 01 December 1993
• Docket Number: No. 13570,13570
• Citation: 889 P.2d 204,119 N.M. 169,1993 NMCA 147
• Parties: STATE of New Mexico ex rel., VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, Kenneth M. Bull, Beverley Bull, Bill Douglas, Barbara Douglas, Beverly Goss, Frederick Gurule, Patricia Gurule, Robert Hall, Lorna Hall, Larry Harris, Terrence Keyes, Janice Keyes, David McArthur, Beverley McArthur, Maureen McGuinness, George Patterson, Connie Patterson, R.D. Robinett Jr., Dorothy Robinett, Richard Robinson, Nancy Robinson, Katherine Rust, Lois Seibel, Tom Sorensen, Joann Sorensen, John Ulrich, Lisa Ulrich, Jack Whitten, and Stella Whitten, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 204

889 P.2d 204

119 N.M. 169

STATE of New Mexico ex rel., VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, Kenneth M. Bull, Beverley Bull, Bill Douglas Barbara Douglas, Beverly Goss, Frederick Gurule, Patricia Gurule, Robert Hall, Lorna Hall, Larry Harris, Terrence Keyes, Janice Keyes, David McArthur, Beverley McArthur Maureen McGuinness, George Patterson, Connie Patterson, R.D Robinett Jr., Dorothy Robinett, Richard Robinson, Nancy Robinson, Katherine Rust, Lois Seibel, Tom Sorensen, Joann Sorensen, John Ulrich, Lisa Ulrich, Jack Whitten, and Stella Whitten, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.

No. 13570.

Court of Appeals of New Mexico.

Dec. 1, 1993.

Certiorari Granted Jan. 20, 1994.

[119 N.M. 170] William G. Walker, Walker & van Heijenoort, Albuquerque, for plaintiffs-appellants.

David S. Campbell, City Atty., Edward R. Pearson, Asst. City Atty., Albuquerque, for defendant-appellee.

OPINION

BLACK, Judge.

On April 4, 1989, the Village of Los Ranchos de Albuquerque together with various individuals ("Plaintiffs") filed suit challenging the City of Albuquerque's ("the City") Montano Bridge project ("the project"). Plaintiffs sought to enjoin the construction of the bridge and sought an award for damages resulting from the project. Plaintiffs appeal from a judgment dismissing their complaint. They allege error in the denial of their motion for leave to file a second amended complaint, error in the dismissal of all of their nuisance theories, error in the dismissal of individual plaintiffs' claims for nuisance damages, and that the New Mexico Prehistoric and Historic Sites Preservation Act, NMSA 1978, Secs. 18-8-1 to -8 (Repl.Pamp.1991) ("PHSPA"), is applicable to the project. The Plaintiffs also contend that New Mexico state courts lacked jurisdiction during significant portions of the proceedings in this case.

We hold that the New Mexico state courts had jurisdiction, and we affirm the state district court's dismissal of Plaintiffs' nuisance per se claim and any claims under PHSPA based on actions that took place prior to its effective date. However, we believe the district court may have misapprehended the scope of our decision in the prior interlocutory appeal, City of Albuquerque v. State ex rel. Village of Los Ranchos, 111 N.M. 608, 808 P.2d 58 (Ct.App.1991), cert. denied, 113 N.M. 524, 828 P.2d 957 (1992). We hold that the district court erred in dismissing the complaint to the extent that the asserted claims were based on allegations of nuisance in fact and failure to comply with requirements of the Rio Grande Valley State Park Act, NMSA 1978, Secs. 16-4-9 to -17 (Repl.Pamp.1987), the Wildlife Conservation Act, NMSA 1978, Secs. 17-2-37 to -46 (Repl.Pamp.1988), and any other applicable statute, regulation, or ordinance. Accordingly, we reverse and remand.

I. PROCEDURAL HISTORY

On April 17, 1989, Plaintiffs filed a motion for a preliminary injunction. The City removed the action to federal district court and, on May 17, 1989, the federal district court remanded the case to the state district court. On the docket of the federal district court, the federal court clerk entered the remand order followed by the notation "FINAL ENTRY". Plaintiffs then filed the remand order with the state district court along with an application for a temporary restraining order, which was granted by the state district court. After six days of hearings, the state district court entered an order for a preliminary injunction, and, in August 1989, certified several questions to this Court for interlocutory appeal. This Court granted the application for interlocutory appeal, held that the preliminary injunction was improvidently issued, and remanded for further proceedings consistent with the opinion. After remand, Plaintiffs sought to amend their complaint. The state district court concluded it "acquired jurisdiction only to dismiss this action pursuant to the directions of the Court of Appeals in its decision and mandate[,]" and that it therefore "lack[ed] jurisdiction to grant [Plaintiffs'] motion to file a Second Amended and Supplemental Complaint or to consider new evidence[.]"

Plaintiffs argue that because the federal court clerk failed to mail the remand order to the state court clerk until October 4, 1991, all state court action prior to that time is invalid. Plaintiffs further argue that the state district court erred in interpreting our mandate from the previous interlocutory appeal to conclude it had no jurisdiction to consider their motion for leave to file a second amended supplemental complaint and in determining that Plaintiffs' claim for nuisance in fact must be dismissed.

II. JURISDICTION OF THE STATE COURTS

We initially address Plaintiffs' assertion that the state courts did not have jurisdiction between the date the City filed its removal petition, April 17, 1989, and the date the federal court clerk actually mailed the certified copy of the remand order, October 4, 1991. Plaintiffs set forth the following factual predicates for this argument: (1) the City filed a motion for removal to federal district court on April 17, 1989; (2) the motion to remand, on which the federal court clerk noted the entry of the remand order as the "FINAL ENTRY" on the docket sheet in federal court, was granted on May 17, 1989; and, (3) the notice of remand was not mailed to the state district court until October 4, 1991.

Plaintiffs rely on 28 U.S.C. Sec. 1447(c) (1988) to argue that a state court may not proceed until after the certified copy of the remand order is actually mailed by the federal court clerk. It is true that section places a duty on the federal court clerk to mail the certified copy of the remand order to the state court clerk and states that "[t]he State court may thereupon proceed with such case." (Emphasis added.) However, the provisions of 28 U.S.C. Sec. 1447 must be strictly construed, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941), and all doubts must be resolved in favor of remand, Baucom v. Pilot Life Ins. Co., 674 F.Supp. 1175, 1178 (M.D.N.C.1987). See also Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982) (all doubts resolved against removal). Therefore, we cannot agree with Plaintiffs' conclusion that all filings in state court before the October 1991 date of mailing "are, as a matter of law, void."

Courts confronted with this situation have recognized that the actions of a federal judge in signing and entering a remand order authorize subsequent state court actions even when the federal court clerk fails to mail the remand order to the clerk of the state court. Citizens Bank & Trust Co. v. Carr, 583 So.2d 864, 866 (La.Ct.App.) ("The action of a court entering an order of remand, and not the action of a clerk in mailing a copy of the order, determines the vesting of [state court] jurisdiction."), cert. denied, 588 So.2d 109 (La.1991); Reimer v. Scott, 666 S.W.2d 384, 385 (Tex.Ct.App.) ("The order of remand terminates the jurisdiction of the federal court and immediately restores the jurisdiction of the state court."), writ dismissed for want of jurisdiction, (June 13, 1984); cf. Van Ryn v. Korean Air Lines, 640 F.Supp. 284, 285 (C.D.Cal.1985) (state court's jurisdiction probably vests as soon as the federal court orders remand). Actions taken by state courts after the execution and entry of a remand order are, therefore, valid. First State Bank v. Leffelman, 167 Ill.App.3d 362, 118 Ill.Dec. 127, 130, 521 N.E.2d 195, 198 (1988); State v. Matzke, 236 Kan. 833, 696 P.2d 396, 400-01 (1985) (per curiam); Brown v. State Farm Mut. Auto. Ins. Co., 449 S.W.2d 93, 96 (Tex.Civ.App.1969).

Recognizing the validity of state court action prior to the state court's official receipt of the federal remand order through the mail is particularly appropriate when a copy of the remand order was provided to the state court by counsel, as is true in the case at bar. See Citizens Bank & Trust Co., 583 So.2d at 866. Indeed, it appears particularly unseemly for Plaintiffs first to have filed the remand order to induce the state district court to grant a temporary restraining order and then to attack the state court's jurisdiction after the preliminary injunction is reversed on appeal. Cf. Reimer, 666 S.W.2d at 386 (on similar facts, counsel estopped to deny jurisdiction).

Finally, if Plaintiffs' premise that the state courts lacked jurisdiction between the execution of the remand order by the federal judge (May 17, 1989) and the date such order was actually mailed (October 4, 1991) was correct, the result would be to invalidate not only the preliminary injunction granted by the state district court, but also this Court's interlocutory review. Nevertheless, Plaintiffs use this "jurisdictional hiatus" to argue that, since the City had not filed an answer to the complaint at the time of removal, although the City did file an answer in federal court while the federal district court had jurisdiction, Plaintiffs are entitled to file an amended complaint as of right under SCRA 1986, 1-015 (Repl.Pamp.1992). It is generally recognized that pleadings filed in federal court, while the federal court has jurisdiction, become part of the state court record on remand. See Laguna Village, Inc. v. Laborers Int'l Union of N. Am., Local Union No. 652, 35 Cal.3d 174, 197 Cal.Rptr. 99, 104, 672 P.2d 882, 887 (1983); Teamsters Local 515 v. Roadbuilders, Inc., 249 Ga. 418, 291 S.E.2d 698, 701 (1982). Therefore, Plaintiffs are not entitled to file an amended complaint as of right.

III. SCOPE OF THE OPINION IN THE PRIOR APPEAL

In the prior appeal we addressed whether the project could be enjoined as a nuisance per se and whether PHSPA had any impact on Plaintiffs' action. Our primary holding was that the project did not constitute a nuisance per se, and it was therefore error to enjoin construction on that theory. City of Albuquerque,...