ALBUQUERQUE COMMONS PARTNERSHIP, Petitioner-Appellee,
v.
CITY COUNCIL of the city of ALBUQUERQUE, Respondent-Appellant.
Court of Appeals of New Mexico.
*1125 Mettler & LeCuyer, P.C., Stephen T. LeCuyer, Bryan & Flynn-O'Brien, George R. Pat Bryan III, Timothy V. Flynn-O'Brien, Phillip B. Davis, Albuquerque, NM, for Appellee.
Robert M. White, City Attorney, Mark Hirsch, Assistant City Attorney, Lorenz Law, Alice T. Lorenz, Campbell & Wells, P.A., John S. Campbell, Albuquerque, NM, Robinson & Cole LLP, Dwight H. Merriam, James A. Wade, Gregory W. McCracken, Hartford, CT, for Appellant.
OPINION
CASTILLO, Judge.
{1} On motion for rehearing, the opinion filed October 30, 2008, is withdrawn, and the following opinion is substituted in its place. The motion for rehearing is otherwise denied.
{2} The operable event that forms the basis for these consolidated cases[1] occurred over thirteen years ago when the Albuquerque City Council (City) adopted the 1995 Uptown Sector Plan (1995 USP), which affected property leased by Albuquerque Commons Partnership (ACP). Until 1995, the leased property was governed by the 1981 Uptown Sector Plan (1981 USP). In 1991, ACP selected Opus Southwest Corporation (Opus) as the buyer for the leasehold. Opus submitted a site plan for the property in June 1994 and then, in July 1994, withdrew the plan because of public outcry. In September 1994, the City requested a comprehensive overview of the 1981 USP. Before the City could complete the overview, Opus submitted another site plan (ACP/Opus site plan). The City deferred consideration of the ACP/Opus site plan and implemented an expedited schedule to evaluate proposed revisions to the 1981 USP. The City ultimately adopted the 1995 USP.
{3} ACP sought review of the City's adoption of the 1995 USP in the trial court. ACP also claimed damages under 42 U.S.C. § 1983 (2000) for violations of due process and for an unconstitutional taking in violation of the Fifth Amendment. Concluding that the 1995 USP was enacted contrary to law as applied to ACP, the trial court ordered the City to consider the ACP/Opus site plan under the 1981 USP. The City complied and ultimately rejected the ACP/Opus site plan under the 1981 USP. The claims for damages continued to trial, and the jury found for ACP on both the due process and the takings claims. The takings verdict was dismissed pursuant to the doctrine of election of remedies.
{4} ACP appealed to this Court, and we reversed. Albuquerque Commons P'ship v. City Council of the City of Albuquerque (ACP II),
{5} The facts surrounding the adoption of the 1995 USP, the resulting law suits, and the several appeals are set forth in ACP II,
DISCUSSION
A. Section 1983 Claim
{6} In order to prove its claim under Section 1983, ACP was required to show that the City, "acting under color of state law, cause[d ACP] to be deprived of a federally protected constitutional right." Miles v. Bd. of County Comm'rs,
1. Property Right
{7} To establish a violation of procedural due process, ACP was required to show that the City deprived ACP of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Here, we focus on the property interest portion of the equation. In order to decide whether a party has a constitutionally protected property right, we first must determine whether there is a state-created substantive property right and then consider whether that right triggers federal due process protections. Memphis Light, Gas & Water Div. v. Craft (Memphis Light),
a. State-Created Property Right
{8} Our Supreme Court has explained that constitutionally protected "property interests are those to which an individual has a claim of entitlement." Mills v. N.M. State Bd. of Psychologist Exam'rs,
{9} In addition, the City's applicable zoning regulationResolution 270-1980tracks the "change or mistake" requirement. ACP III,
{10} Based on these New Mexico cases and Resolution 270-1980, we agree with the trial court that ACP had a right, under state law, to continued zoning in the face of downzoning or a map amendment unless the City was able to justify a zoning change under the requirements enunciated by Resolution 270-1980 and Miller. Accordingly, we conclude that ACP had a state-created property interest.
b. Federal Protection
{11} The next inquiry is whether the federal constitution extends its protection to this state-created property right. A party claiming a federally protected property interest must have a "legitimate claim of entitlement to it." Bd. of Regents of State Colleges v. Roth,
{12} As we have explained, Resolution 270-1980 requires the City to justify zone map amendments by establishing (1) errors at the time the existing zone map pattern was created, or (2) changes in the neighborhood or community conditions that justify the amendment, or (3) that a different use category is more advantageous to the community. These are substantive and direct limitations on the City's discretion: By its own rules, the City cannot make a zone map amendment without demonstrating, in some fashion, at least one of these criteria. See ACP III,
{13} In addition, Miller unequivocally limits the City's ability to downzone a particular piece of property.
{14} Our Supreme Court explained in ACP III that the zoning changes effected by the City in the present case "must be justified pursuant to the Miller rule and Resolution 270-1980" and that such changes "require specific factual findings relating to the affected properties." ACP III,
{15} The focus in this inquiry is not the City's failure or success in establishing change, mistake, or a more advantageous use. Rather, the property right is created in the language of the Resolution, Miller, Davis, and most recently, ACP III, all of which eliminate the City's discretion to engage in spot downzoning without considering the factors. See ACP III,
{16} The City argues that it has enormous discretion in its application of the Resolution 270-1980 factorsparticularly in the application of the "more advantageous use" criterionand that because the factors do not dictate the outcome of the City's spot downzoning decision, Resolution 270-1980 and Miller do not create a protected property right. We first observe that our Supreme *1129 Court has substantially narrowed the City's discretion in the application of this factor. In ACP III, the Court explained that the "proof of a more advantageous use category "would have to show, at a minimum, that `(1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared with other available property.'"
{17} Second, we are not persuaded that the cases cited by the City require us to conclude that in order for ACP to have a federally protected property interest to be free from spot downzoning absent a Miller/Davis/Resolution 270-1980 inquiry, the outcome of the City's spot-zoning determination must be predetermined by the governing law. The City cites Kentucky Department of Corrections v. Thompson (Thompson),
{18} In Thompson, the Supreme Court of the United States concluded that prison regulations did not place sufficient substantive limitations on the state's discretion to allow a prisoner to receive visitors.
{19} The City's reliance on Thompson is misplaced. First, the case concerns the constitutional rights of a prisoner, which have been construed narrowly over the past thirty years. See Ahmed A. White, The Concept of "Less Eligibility" and the Social Function of Prison Violence in Class Society, 56 Buff. L.Rev. 737, 777 (2008) ("[T]he courts made clear that, while they are not entirely beyond the realm of constitutional protection, prisoners only enjoy such constitutional rights as are consistent with legitimate penological interests; and that in determining what those interests are, courts must generally defer to the discretion of prison officials, granting them wide deference in fashioning and implementing penological policies." (internal quotation marks and footnotes omitted)). Second, the property right in the present case is the right to continued zoning in the face of spot downzoning, absent a showing of evidence under Miller/Davis/Resolution 270-1980. Considering the mandatory language in Miller and Resolution 270-1980, ACP could "reasonably form an objective expectation" that its zoning category would remain in effect absent evidence that could establish at least one of the required criteria. See Thompson,
{20} In Hyde Park Co., the Tenth Circuit Court of Appeals was faced with a different factual scenario. In that case, a developer applied to the City of Santa Fe for approval of a proposed subdivision plat.
{21} In the present case, ACP had to show a set of conditions existing under local law which, if fulfilled, would give rise to a legitimate expectation that the City would provide evidence regarding the zoning change according to Miller and Resolution 270-1980. Unlike the ordinance in Hyde Park Co., Resolution 270-1980 provides "clearly defined limitations" on the City's discretion to engage in spot downzoning, and there is no need to infer substantive limitationsthose limitations are delineated in the ordinance. See
{22} In Jacobs, the Tenth Circuit Court of Appeals also considered whether a zoning body's discretion was sufficiently limited such that the parties had a "legitimate expectation to the rezoning of their property."
{23} Sylvia Development Corp. is similar to Hyde Park Co. and Jacobs: a developer applied to the county board of commissioners for a special zoning designation, which was denied after vociferous public outcry. Sylvia Dev. Corp.,
{24} We note a further distinction between the present case and Hyde Park Co., Jacobs, and Sylvia Development Corp. In these three federal cases, the plaintiffs sought to obtain an as yet non-existent benefit: approval of a plat, Hyde Park Co.,
{25} We consider the present case to bear a certain resemblance to Memphis Light. In that case, the United States Supreme Court considered whether homeowners had a constitutionally protected property interest in continued utility service.
{26} Although ACP's pre-existing benefit, or entitlement, is limited and is triggered only under the conditions explained in Miller or outlined in Resolution 270-1980, we conclude that ACP has a federally protected property interest to continued zoning under the narrow circumstances presented by this case. Accordingly, we turn next to consider whether ACP received all of the process that it was due in order to protect its property right.
2. Process Due
{27} We next consider whether the process provided by the City was sufficient to safeguard ACP's constitutionally protected property right. The City argues that ACP received all of the process that was due because the City provided and ACP participated in seven hearings about the adoption of the 1995 USP. Further, the City argues that because the adoption of the 1995 USP was a legislative act, constitutional due process was not required. We first note that our Supreme Court held in ACP III that the adoption of the 1995 USP was a quasi-judicial, and not a legislative, act. ACP III,
{28} We also observe that our Supreme Court in ACP III outlined the quasi-judicial hearing process to which piecemeal or spot downzoned property owners are entitled.
{29} "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews,
{30} The second factor considers (1) the risk of erroneous deprivation absent the requested procedure and (2) the probative value of the additional safeguard. To analyze the second factor, we must first consider what procedure ACP requested. The City points out that ACP had an opportunity to participate in seven hearings and that seven hearings satisfied any procedural due process right. ACP disagrees.
{31} In order to resolve this issue, we need only turn to one aspect of the hearing the type of tribunal. During its review of the downzoning issue, our Supreme Court concluded that the City made "no effort to provide ACP with an impartial tribunal by limiting ex parte contacts on the part of the council members."
{32} It is well established that "a fair trial in a fair tribunal is a basic requirement of due process." Withrow v. Larkin,
{33} Analysis of the third factor shows that there is no added burden on the City to *1133 provide a meaningful opportunity to be heard before an impartial tribunal. Taking all of the factors together, we conclude that the balance weighs in favor of providing a property owner with an impartial tribunalone free from ex parte contactsprior to implementing a piecemeal downzone.
3. Adequacy of State Remedies
{34} Despite our holding that the City's procedure failed to provide ACP with adequate process to protect its property rights, we continue our analysis to determine whether ACP properly established a Section 1983 cause of action in light of available state-law remedies. See Starko, Inc. v. Gallegos,
{35} The City's first argument is based on the multiple levels of state court review that were available to ACP after the 95 USP passed. The City contends that at the first level of review in the district court, ACP argued against remand for the City to conduct a quasi-judicial review of the ACP/Opus site plan. Thus, the City argues, any due process violation was never complete because review of the passage of the 95 USP was available in the district court, this Court, and our Supreme Court, and ACP refused to participate in that procedure. ACP maintains that no state remedy was available to adequately address its loss. With this argument, ACP appears to focus on its financial loss rather than on any due process violation. It is well established that "[a]lthough the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under [Section] 1983, that does not mean that the state remedies were not adequate to satisfy the requirements of due process." Parratt v. Taylor,
{36} The Supreme Court of the United States has explained that in some cases, "due process requires a predeprivation hearing before the [s]tate interferes with any liberty or property interest enjoyed by its citizens," id. at 537,
{37} The City cites McKinney v. Pate,
*1134 {38} First, McKinney was decided in the context of employment termination proceedings and the long line of cases that establish a fired employee's due process rights. Id. ("[I]n the case of an employment termination case, due process [does not] require the state to provide an impartial decisionmaker at the pre-termination hearing. The state is obligated only to make available the means by which [the employee] can receive redress for the deprivations." (internal quotation marks and citation omitted)). Second, although the logic of McKinney is superficially attractivethat a biased tribunal is inherently not authorized by the statethe facts of the present case do not bear out this presumption. The City's improper process was neither unpredictable nor the result of the rogue actions of one city councilor. The City chose to proceed by legislative hearingsa procedure that did not provide an impartial tribunal and allowed for ex parte contact. In addition, we are faced with the rare circumstance of having allegations of bias borne out by the record: a city councilor had indicated one course of action, was contacted by a constituent with an opposing view, and after that contact, the councilor changed her position and her vote. See ACP III,
{39} The present circumstances are more closely aligned with Zinermon v. Burch,
{40} In the present case, the Cityas it strenuously argueshas broad authority to make zoning decisions that can lead to deprivations of constitutionally protected property rights. Part and parcel with that authority is the duty to provide adequate predeprivation procedural protections. Similar to the deprivation in Zinermon, an impermissibly biased tribunal was not unpredictable: the City's decision to proceed legislatively carried with it the risk of ex parte contact and bias and, based on the record, the risk was elevated to reality. In addition, it was not impossible for the City to provide an unbiased tribunal. In Parratt, the deprivation involved the loss of personal property by prison officialsan action which was impossible for the state to predict and prevent by predeprivation hearing.
{41} We now reach the City's second argument, which concerns the decision to proceed legislatively. The City maintains that its decision to proceed legislatively was merely a procedural error that does not rise to the level of a constitutional violation and that if ACP is permitted to recover under Section 1983 based on a procedural flaw in the proceedings, property owners will have "the unilateral option to cash in on any procedural flaw in an administrative proceeding by declining remand and pursuing a [Section] 1983 action." We disagree.
{42} The bias in the present case was more than a procedural flaw because ACP had a protected property interest, it was entitled to due process, and there is evidence of actual bias in the process afforded by the City. An unbiased tribunal was a constitutional requirement in the present case. See 1 E.C. Yokley, Zoning Law and Practice § 3A-1[d], at 3A-23 (4th ed. 2008) ("Procedural due process, however, will apply where a decision is administrative or quasi-judicial and the property owner has an entitlement rather than an expectancy to whatever he or she sought." (footnotes omitted)). In addition, the decision to proceed under Section 1983, rather than to pursue administrative remedies, is a tactical and risk-laden choice. See 2 Steven H. Steinglass, Section 1983 Litigation in State Courts § 17:3, at 17-7 to 17-8 (2008) (discussing the tactical reasons for resorting to a Section 1983 action or for voluntarily submitting claims to administrative proceedings). The litigant takes the risk of receiving no remedy at all should he neglect to pursue administrative remedies, and the Section 1983 action may be blocked by the myriad of requirements that stand between a plaintiff and relief.
{43} We recognize that other courts have concluded that minimal process is due under the Constitution in zoning cases and that a municipality's failure to provide the process required under local law is a matter for state courts, not Section 1983. See River Park, Inc.,
4. Ripeness of the Section 1983 Claim
{44} The City contends that because ACP prevailed on both the due process and the takings issues at trial, ACP cannot recover damages for the Section 1983 claim until it has attempted to recover compensation for the taking. As a result of ACP's failure to seek recovery for the taking, the City argues that the due process claim is not ripe. For support, the City cites Rocky Mountain Materials & Asphalt, Inc. v. Board of County Commissioners (Rocky Mountain), 972 F.2d *1136 309 (10th Cir.1992). In that case, the Tenth Circuit provided the following explanation:
When a plaintiff alleges that he was denied a property interest without due process, and the loss of that property interest is the same loss upon which the plaintiff's takings claim is based, we have required the plaintiff to utilize the remedies applicable to the takings claim. It is appropriate in this case to subsume the more generalized Fourteenth Amendment due process protections within the more particularized protections of the Just Compensation Clause. Accordingly, until a plaintiff has resorted to the condemnation procedures to recover compensation for the alleged taking, the procedural due process claim is likewise not ripe because it is in essence based on the same deprivation.
Id. at 311 (internal quotation marks and citation omitted). ACP argues that (1) federal ripeness jurisprudence does not apply, (2) the takings claim was not coextensive with the due process claim, and (3) no state remedy existed for the takings claim, and ACP was therefore not required to pursue a non-existent remedy. For the reasons listed below, we agree with ACP that the takings claim and the due process claim were not coextensive, and we therefore do not address ACP's other points.
{45} Rocky Mountain identified two sets of circumstances. In one scenario, the loss of the property interest is the same loss upon which the takings claims is premised. Id. This is the scenario which the City argues is similar to the present case. However, Rocky Mountain goes on to explain that "[t]here are many intangible [property] rights that merit the protection of procedural due process although their infringement falls short of an exercise of the power of eminent domain for which just compensation is required under the Fifth and Fourteenth Amendments." Id. (alterations in original) (internal quotation marks and citation omitted).
{46} In the present case, the property right that forms the basis for the due process claim is an intangible rightthe right to continuation of a certain zoning classification until the City can establish specific circumstances, as we have identified in preceding paragraphs. ACP's loss resulting from the due process violation was a loss of opportunity to meaningfully participate in a hearing related to the adoption of the 1995 USP. Our Supreme Court has determined that ACP's deprivation of this meaningful hearing resulted in its inability to develop its property. See ACP III,
5. Damages Under the Section 1983 Claim
{47} In Section 1983 cases, the plaintiff must prove a causal connection between the wrongful conduct and the injury in order to justify an award of compensatory damages. Jacobs v. Meister,
{48} "It is recognized that a Section 1983 action is a species of tort liability, and that the common law of tort damages will be a starting point for Section 1983 damages[.]" Wells v. County of Valencia,
{49} As we have explained, the City failed to provide adequate process to protect ACP's constitutionally protected property right and, therefore, the passage of the 1995 USP violated ACP's due process rights. Absent the improperly passed 1995 USP, the 1981 USP governed the ACP/Opus site plan. Consequently, we turn to whether the ACP/Opus site plan would have been approved under the 1981 USP.
{50} In ACP III, the Supreme Court determined that
[t]he record shows that the [ACP/]Opus site plan, though it needed some adjustments (adjustments that were in the process of being made at the time the City imposed the moratorium to consider the 1995[USP] amendments), complied with the requirements of the 1981[USP] and was no different from a number of projects that the City had previously allowed under that sector plan.
{51} The City also briefly contends that ACP did not prove a portion of the damages related to reimbursement of a percentage of funds used to construct a road. The Supreme Court did not address this argument in ACP III, and we thus consider whether ACP provided substantial evidence to support the jury's verdict that ACP's damages were caused by the City's actions. The City argues that there was no agreement that the City would reimburse ACP for construction of Loop Road, a road adjacent to the site, and that damages related to the road were improperly awarded based on ACP's assumption that the City would reimburse for road construction costs. The record supports ACP's assumption in that there was evidence at trial that the City had paid a percentage of another access road, that the City had identified the cost of such a road as a cost to the City, and that the 1981 USP required public financing of the road. Accordingly, we conclude that ACP put on evidence to support the jury's assessment of damages in this regard.
B. Post-Judgment Interest
{52} We review the trial court's construction of the post-judgment interest statutes de novo. Bird v. State Farm Mut. Auto. Ins. Co.,
{53} As the City recognizes, post-judgment interest is routinely awarded in Section 1983 cases filed in federal court. The basis for those awards, however, is 28 U.S.C. § 1961 (2000). See, e.g., Transpower Constructors v. Grand River Dam Auth.,
{54} We have also conducted a survey of the law in other states. The majority of jurisdictions do permit the recovery of post-judgment interest against the state or political subdivisions, either by statute, by case law, or by both. See Alaska Stat. § 09.50.280 (1997); Ariz.Rev.Stat. § 12-823 (1984); 735 Ill. Comp. Stat. 5/2-1303 (1987); Ind.Code § 34-54-8-5 (1998); Kan. Stat. Ann. § 16-204 (1996); N.Y. State Finance Law § 16 (1982); Okla. Stat. tit. 12, § 727.1(B) (2004); Tenn.Code Ann. § 9-8-307(d) (2005); State of Ala. Highway Dep't v. Milton Constr. Co.,
{55} There are a handful of other states that, as a general proposition, do not permit successful plaintiffs to recover post-judgment interest on verdicts against the state. See Chun v. Bd. of Trs. of the Employees' Ret. Sys., 106 Hawai`i 416,
{56} None of the states with law comparable to New Mexico have addressed the specific question of post-judgment interest in a Section 1983 case filed in state court. Our research thus reveals that there is no support for ACP's position that the City is required to pay post-judgment interest in this case.
{57} ACP argues that the denial of post-judgment interest for Section 1983 claims brought in state court will have a twofold effect. First, ACP quotes Wells to argue that "[t]he Legislature cannot enact a law which would have the practical effect of depriving a party of his rights secured by the United States Constitution."
[b]ecause the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of [Section] 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in [Section] 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is pre-empted when the [Section] 1983 action is brought in a state court.
Id. We do not believe that the New Mexico prohibition against the recovery of post-judgment interest against the state and political subdivisions "conflicts in both its purpose and effects with the remedial objectives of [Section] 1983." Id. The remedial objectives of Section 1983 are certainly achieved when a plaintiff successfully brings suit for damages against the state to vindicate constitutional rights. The recovery of post-judgment interest operates only as an enforcement mechanism to encourage the timely payment of damages after judgment has been entered. See Bird,
C. Attorney Fees and Costs
1. Recovery Under Section 1988 For State Law Claims
{58} The City first contends that the trial court improperly awarded attorney fees for the first administrative appeal under Section 1988, which only allows recovery for federal civil rights actions. See N.C. Dep't of Transp. v. Crest St. Cmty. Council, Inc.,
{59} ACP contends that without the work performed for the first administrative appeal, the civil rights claim would not have been successful. The trial court agreed and found that "virtually everything [in the first administrative appeal] focused on whether there was a downzone." As we discussed above, ACP's identifiable property right is to be free from downzoning unless the City can establish certain criteria. Therefore, there was no abuse of discretion to permit attorney fees for the first administrative appeal because that appeal decided an issue that was crucial to the later and successful constitutional claim. See N.C. Dep't of Transp.,
2. Costs
{60} The City next argues that specific costs awarded by the trial court were either (1) improperly categorized in the cost bill or (2) not recoverable under state or federal law. We review a trial court's determination of costs for abuse of discretion. Bird,
{61} The City contends that ACP improperly categorized some expenses under Section 1988 that were not recoverable under that section and other expenses under Rule 1-054 that were not permitted under that rule. The trial court concluded that any improper categorization of the requests did not "require that the request be disallowed [i]f it is otherwise compensable under the law." Although ACP acknowledges that it claimed some items under both statutes, it repeatedly asserted that double recovery was not sought for expenses that were claimed under both laws. We agree with the trial court that if certain costs were permissible under any lawfederal or stateACP was entitled to recover those costs. See Rule 1-054(D)(1) ("[C]osts, other than attorney fees, shall be allowed to the prevailing party unless the court otherwise directs[.]"). We therefore review each of the City's arguments regarding whether a particular expense is allowable under either Section 1988 or Rule 1-054(D).
*1141 {62} The City disputes the trial court's award of copy costs, subpoena fees, and transcript fees. These arguments are without merit because either Rule 1-054(D)(2) or Section 1988 permit the recovery of these costs, and the City admits that copy costs are billed through as attorney fees. See Case v. Unified School Dist. No. 233,
{63} The City also challenges the trial court's award of mediation fees and deposition costs. Section 1988 and Rule 1-054(D) are silent with regard to mediation costs. New Mexico trial courts are cautioned that "[c]osts generally are recoverable only as allowed by statute, Supreme Court rule[,] and case law," Rule 1-054(D)(2), and "[w]e therefore expect ... courts to exercise their discretion sparingly with regard to costs that are not specifically authorized." H-S-B P'Ship,
{64} In its final argument, the City contends that the trial court improperly allowed ACP to recover costs related to expert witnesses. The parties do not dispute that Section 1988 does not permit recovery for expert witnesses in Section 1983 actions. See § 1988 (permitting the recovery of expert witness fees in proceedings to enforce the provisions of 42 U.S.C. §§ 1981 or 1981a (2000)but omitting reference to Section 1983); see also James v. Sears, Roebuck & Co.,
{65} The City also objects to the recovery of costs for Rainhart, Dahlstrom, and Ricker. The trial court found that Rainhart and Ricker testified at trial as experts and that the City did not object. It was not therefore not an abuse of discretion to allow ACP to recover costs for those experts. See NMSA 1978, § 38-6-4(B) (1983); Fernandez v. Espanola Pub. Sch. Dist.,
III. CONCLUSION
{66} We affirm the trial court and the jury verdict on the Section 1983 claim and the award of damages, costs, and fees, with the exception of the award of post-judgment interest. We remand the matter to the trial court for an entry of judgment consistent with this opinion.
{67} IT IS SO ORDERED.
WE CONCUR: MICHAEL D. BUSTAMANTE, Judge and LYNN PICKARD, Judge Pro Tempore.
NOTES
Notes
[1] The City separately appealed a jury verdict and two whole-record reviews that were conducted by the trial court of the City's decisions regarding ACP's development of the property. On a motion by the City, we consolidated the three appeals.
[2] The City's appeal as to attorney fees and costs was a separate appeal before this Court. Before the Supreme Court filed ACP III, we reversed the trial court's allocation of costs and fees in a memorandum opinion. Albuquerque Commons P'ship v. City Council of the City of Albuquerque, No. 24,425, slip op. at 3 (N.M.Ct.App. Dec.9, 2005). As a result of the holding in ACP III, we now consolidate the fees and costs appeal with the other three consolidated cases considered by the Supreme Court in ACP III.