Seeds v. LuceroSeeds v. Lucero
Lead Opinion
OPINION
{1} This case arises from a political and familial feud that has already resulted in two opinions from our Court. See VanderVossen v. City of Espanola,
BACKGROUND
{2} We set out facts as alleged in Plaintiffs’ first amended complaint, considering them undisputed for purposes of our disposition of the issues in this case. Plaintiffs and the VanderVossens are neighbors and business competitors. Each Plaintiff and each VanderVossen owns a towing business in Española. All licensed towing companies in Española are listed with local law enforcement agencies on 911 rotation logs. When a vehicle requires towing, the towing companies are called on a rotating basis. As we explain below, the rotation logs became a bone of contention between the parties.
{3} Plaintiff Robert Seeds and Defendant Lucero are political rivals. Mr. Seeds was an elected member of the Española City Council until the term ending in 1998. At that time he was defeated by a member of a slate of candidates that included Lucero as candidate for mayor. Lucero was elected mayor аt that time, whereupon Mr. Vander-Vossen began to spend considerable time at the city offices, “where he used his position as nephew of the mayor to pressure city employees to take various actions” against Plaintiffs.
{4} Plaintiffs alleged that Lucero “directed city employees to take actions against [Plaintiffs] which were requested by Anthony VanderVossen, and which were designed to harass [Plaintiffs] and damage their businesses.” Among the actions allegedly taken were: threatening to remove one of Plaintiffs’ towing businesses from the 911 rotation logs and requesting law enforcement agencies to do so; filing baseless criminal complaints against Plaintiffs, at the behest of Mr. VanderVossen, for purported violations of municipal zoning ordinances, while at the same time refusing to prosecute the Vander-Vossens and others for their violations of the zoning ordinances; and providing assistance to the VanderVossens in their attempt to obtain utility easement rights across Plaintiffs’ property. In addition, Plaintiffs alleged that the VanderVossens asked the city council to set aside a special zoning exception Mr. Seeds had obtained from the planning and zoning commission. When the council denied the VanderVossens’ petition, Defendant Lenssen appealed the council’s decision to the trial court without the council’s permission in order to help the VanderVossens, who were his former clients.
{5} Relying on the above allegations, Plaintiffs asserted claims against the Vander-Vossens and the City Defendants for conspiracy, violation of 42 U.S.C. § 1983 (1996), malicious abuse of process, wrongful interference with business relations, prima facie tort, intentional infliction of emotional distress, and punitive damages. Defendants removed the case to federal court. Plaintiffs ultimately stipulated to the dismissal of their claim for wrongful interference with business relations and various aspects of the other claims. The federal trial court then granted Defendants summary judgment on the § 1983 claims and remanded the state claims to the state court.
{6} The City Defendants moved under Rule 1-012(B)(6) NMRA for dismissal of all claims against them on the ground that there was no applicable waiver of immunity under the TCA. The City Defendants also sought summary judgment on the ground that they were entitled to judgment on the various tort claims as a matter of law. The VanderVossens also sought summary judgment. The trial court dismissed all claims against the City Defendants on the basis of sovereign immunity. It also granted summary judgment to the VanderVossens on Plaintiffs’ claims for intentional infliction of emotional distress and Ms. Seeds’ claim for malicious abuse of process. In addition, the court granted the VanderVossens summary judgment on Plaintiffs’ conspiracy claims “because the City of Española and the employees identified by Plaintiffs as the basis for this claim are immune from liability under the New Mexico Tort Claims Aсt.” Plaintiffs appeal only from the order dismissing all claims against the City Defendants and the order granting the VanderVossens summary judgment on the conspiracy claims; they do not appeal from the summary judgment in favor of the VanderVossens on their other claims.
DISCUSSION
Whether the City Defendants Were Acting Within the Scope of Their Duties
{7} The parties treat the trial court’s judgment as a Rule 1 — 012(B)(6) dismissal. It is clear that the trial court dismissed Plaintiffs’ conspiracy claim in response to the City Defendants’ Rule 1-012(B)(6) attack based on sovereign immunity. However, we note that the City Defendants attached mаny documentary exhibits to their motion for summary judgment, and the trial court noted in its final judgment that it had considered both motions. Therefore, we consider the court’s ruling to be summary judgment in favor of the City Defendants. See Santistevan v. Centinel Bank of Taos,
{8} Summary judgment is warranted if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Koenig v. Perez,
{9} Plaintiffs concede that the City Defendants are immune for any actions they performed while in the scope of their duties. See NMSA 1978, § 41-4-4 (2001) (providing that “any public employee while acting within the scope of duty [is] granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act [28-22-1 to 28-22-5 NMSA 1978] and by Sections 41^4-5 through 41-4-12 NMSA 1978”). But Plaintiffs contend the City Defendants were not acting within the scope of them duties when they conspired with the VanderVossens to harm Plaintiffs. Thus, they argue that the conspiracy itself places the City Defendants outside the protection of the TCA and subjects them to personal liability.
{10} ‘“[Sjcope of duty’ means performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of performance[.]” NMSA 1978, § 41-4-3(G) (2003). Our case law establishes that a public employee may be within the scope of authorized duty even if the employee’s acts are fraudulent, intentionally malicious, or even criminal. See Risk Mgmt. Div. v. McBrayer,
ill} In this case, the City Defendants were generally performing their authorized duties at the time of the actions forming the basis of Plaintiffs’ claims. In broad terms, Plaintiffs alleged that the City Defendants selectively enforced city ordinances and filed groundless criminal charges against Plaintiffs.
{12} A civil conspiracy is a “combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Las Luminarias of the N.M. Council of the Blind v. Isengard,
{13} With respect to Plaintiffs’ claim that the City Defendants’ act of conspiring with the VanderVossens was outside the scоpe of their duties, we do not agree. The purpose of the conspiracy, as alleged by Plaintiffs and developed through the evidence they presented, was to cause Plaintiffs financial harm by utilizing the machinery of city government. Therefore, by allegedly agreeing to this scheme, the City Defendants were doing nothing more than agreeing to use their authorized duties for malicious reasons. We see no basis, and Plaintiffs provide none, to separate the alleged agreement from the acts that carry out the agreement. Thus, a wrongful purpose formed in an agreement is no less protected than is the same purpose in carrying out acts that are within the scope of duty. See Celaya,
{14} As for Plaintiffs’ second claim, that the VanderVossens’ acts, imputed to the City Defendants, were outside the scope of the City Defendants’ duties, we are not persuaded. The only act of the VanderVossens specified by Plaintiffs is Mr. VanderVossen’s purported perjury before the city council, where he testified that he did not have notice of the hearing where Mr. Seeds’s special exception was approved. As we explain below, even if we assume Mr. VanderVossen in fact lied to the council and that this act is imputed to the City Defendants, we conclude as a matter of law that the act was in the scope of the City Defendants’ duties.
{15} We look to the act of conspiring to determine whether imputed acts are within the scope of a public employee’s duties. The purpose of the alleged conspiracy was to utilize the functions the City Defendants were authorized to perform, such as the enforcement of zoning ordinances, to harm Plaintiffs. If the VanderVossens’ actions are imputed to the City Defendants, it is as if the City Defendants themselves performed those actions. See Bryan A. Garner, A Dictionary of Modem Legal Usage 427 (2d ed.1995) (defining “impute” as “to regard ... as being done, caused, or possessed by”). Because the City Defendants’ only role in the conspiracy was to perform authorized acts in order to achieve their goal, any actions they undertook, even imputed actions, would necessarily be within the scope of their duties. Thus, as long as the act of conspiring is within the scope of a public employee’s duties, any co-conspirator’s acts that are imputed to the public employee (such as Mr. VanderVossen’s lying to the city council) will be, by definition, within the scope of the employee’s duties.
{16} We hold that, as Celaya and McBrayer have construed scope of duty under the TCA, a public employee’s conspiratorial and wrongful intent does not remove the employee’s immunity when the employee’s acts аre within the scope of his or her duties. To hold a public official’s immunity to be only qualified, as the dissent contends we should, would require a rejection of our rationale in McBrayer, if not legislative action.
Conspiracy Claim Against the Vander-Vossens
{17} The VanderVossens convinced the trial court that summary judgment on the conspiracy count was proper once the City Defendants were found to be immune. “The standard of review for a motion for summary judgment is whether there are any genuine issues of material fact and whether the moving party is entitled to summary judgment as a matter of law.” Williams v. Cent. Consol. Sch. Dist.,
{18} Civil conspiracy consists of showing “(1) that a conspiracy between two or more individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to the conspiracy; and (3) that the plaintiff was damaged as a result of such acts.” Silva v. Town of Springer,
{19} The VanderVossens rely heavily on Ettenson for the proposition that a claim оf conspiracy cannot lie “unless a civil action in damages would lie against one of the conspirators.” Id. (internal quotation marks and. citation omitted). The VanderVossens and the trial court read this to mean that, once the City Defendants were found to be immune, then there could be no civil action in damages against one of the co-conspirators, and therefore, the conspiracy falls away as a matter of law. We disagree. Ettenson did not involve a situation in which the co-conspirators were immune under the TCA. See id.; see alsо State v. Wenger,
{20} As our Supreme Court said in Armijo v. National Surety Corporation, “[t]he gist of the civil action for conspiracy is the act or acts committed in pursuance thereof — the damage — not the conspiracy or the combination.”
{21} Thus, if Plaintiffs can prove that the VanderVossens conspired with the City Defendants and that the City Defendants took actions constituting malicious abuse of process, the City Defendants’ actions can be imputed to the VanderVossens, who will then be jointly and severally liable for Plaintiffs’ resulting damages. We find support for this view in a recent case involving another type of vicarious liability, Juarez v. Nelson,
{22} The VanderVossens rely on Bauer v. College of Santa Fe,
{23} The VandеrVossens further argue that permitting Plaintiffs’ conspiracy claim would result in the City Defendants remaining involved in the litigation as “hypothetical” parties, which would defeat the TCA’s goals of protecting government entities from functioning without the threat of suit. We do not agree. The City Defendants will not be parties, hypothetical or otherwise, to this litigation because they are immune from liability. Although they may be called as witnesses, the TCA does not protect government actors from the courts’ subpoena power. It is Plaintiffs’ burden to demonstrate that the City Defendants’ actiоns were wrongful and may serve as a basis for the VanderVossens’ imputed liability. The VanderVossens may defend themselves by establishing that the City Defendants’ actions were proper and did not result in any injury to Plaintiffs. This is no different from the burdens imposed in comparative negligence cases where the parties must deal with evidence of the negligence of non-party tortfeasors. See Bartlett v. N.M. Welding Supply, Inc.,
{24} In summary, if Plаintiffs are able to prove the elements of a civil conspiracy, including the element that the City Defendants carried out specific wrongful acts in furtherance of the conspiracy, the liability for those acts may be imputed to the VanderVossens despite the City Defendants’ immunity from liability. We hold that Plaintiffs’ claim of civil conspiracy against the VanderVossens is not barred as a matter of law, and it is for a jury to evaluate the legitimacy of the claim.
{25} The VanderVossens make an additional argument, apparently raised but not ruled on below, that Plaintiffs fаiled to state a claim for civil conspiracy in their complaint. We disagree. The complaint contains a count entitled “Conspiracy/Joint Participation,” and contains allegations throughout suggesting that all Defendants agreed and combined to commit various wrongful acts. That is sufficient. See Valles v. Silverman,
CONCLUSION
{26} For these reasons, we affirm the trial court’s dismissal of the City Defendants. Wе reverse the trial court’s summary judgment on the conspiracy count against the Vander-Vossens, and remand for proceedings consistent with this opinion.
{27} IT IS SO ORDERED.
Notes
. Plaintiffs also claimed that Defendant Lenssen frivolously appealed the city council's decision refusing to set aside Robert Seeds’s special exception, but they later admitted that Lenssen did not appeal that decision and that their allegation to this effect was inaccurate.
Concurrence Opinion
(concurring in part and dissenting in part).
{28} I would not recognize a grant of immunity from liability for the Mayor, or any of the City Defendants who are accused of malicious conduct by intentionally carrying out their personal and political vendettas against their political adversaries. I do not believe that the law should or does provide them with a place to safely hide from civil prosecution under the Tort Claims Act.
{29} Those with whom the City Defendants conspire to accomplish their wrongful goals do not escape liability. Neither should the City Defendants. I therefore dissent.
{30} I am convinced that New Mexico ought to follow those states that do not recognize immunity for public employees or officials who are guilty of malicious acts. See Aspen Exploration Corp. v. Sheffield,
{31} The TCA also mentions malice in the indemnity section. See § 41-4-4(E). That section provides that a government entity has the right to indemnification from a public employee for sums еxpended in defending the employee or paying a judgment if the employee “acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage.” Id. Although this section is somewhat puzzling because the public employee must have been sued and suffered a judgment, it shows the legislature’s disdain for a public employee who demonstrates the same malice that I find so despicable.
{32} The majority believes that there is no clear indication that the legislature wanted to waive immunity for a public official, other thаn a law enforcement officer, who misuses the enforcement machinery of government.
{33} I would rely on Oldfield v. Benavidez,
{34} Where these same officials misuse the machinery of government and do so maliciously, they shatter the public trust and injure those who they are sworn to protect. The majority believes the legislature has resolved the conflict presented in this ease in favor of granting public officials broad latitude to proceed without fear of lawsuits. I suspect that is why public officials do wrong — because they have no such fear.
{35} The majority relies on McBrayer, which dealt with a university instructor who lured a student to his apartment and sexually assaulted her. This Court upheld that public employee’s immunity from prosecution. I do not agree with the holding in McBrayer. I ask the question: “Are these public officials or employees serving the public interest or violating it?”
{36} The majority states that the “City Defendants’ wrongful motive is simply irrelevant, as long as there is ‘a connection between the public employee’s actions at the time of the incident and the duties the public employee was requested, required or authorized to perform.’ ” Majority Opinion ¶ 10 at 862. I cannot agree that wrongful motive is simply irrelevant. I would hold that malicious actions by a public official disconnect him from his scope of public duty.
{37} Let me be quite clear. I appreciate the difficulty of serving as a public official whether elected or appointed. It may well be that the legislature drew a line in the sand keeping members of the public from harassing and frivolously suing public officials. But once a public official crosses over that line and commits malicious acts against others, he loses that cloak of immunity.
CONCLUSION
{38} I concur with the majority in reversing and remanding the trial court’s summary judgment on the conspiracy count against the VanderVossens.
{39} For the reasons stated above, I respectfully dissent from the majority’s affirmance of the dismissal of the City Defendants under Tort Claims immunity.