Quevado v. Children, Youth & Families Dep't

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: August 31, 2016 4 NO. 34,345 5 6 7 8 9 10 11 COULTON QUEVEDO, by and through his Attorney-in-Fact (with power of attorney), AIMEE BEVAN; BARBARA GUILFOYLE, individually; SUSAN WECKESSER, as Conservator for RYAN MORGAN; CHERYL MORGAN, individually; JORDAN ALMANZA, individually; and MARC FLEMING, individually, 12 Plaintiffs-Appellants, 13 v. 14 15 16 17 18 19 20 21 NEW MEXICO CHILDREN, YOUTH & FAMILIES DEPARTMENT, NEW MEXICO LICENSING AND CERTIFICATION AUTHORITY, a division of the NEW MEXICO COMMUNITY OUTREACH AND BEHAVIORAL HEALTH PROGRAMS, and NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, Defendants-Appellees. 22 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 23 Francis J. Mathew, District Judge 1 2 3 4 5 McGinn, Carpenter, Montoya & Love, PA Randi McGinn A. Elicia Montoya Michael E. Sievers Albuquerque, NM 6 for Appellants 7 Law Office of Michael Dickman 8 Michael Dickman 9 Santa Fe, NM 10 for Appellees 1 OPINION 2 BUSTAMANTE, Judge. 3 {1} Plaintiffs appeal the grant of summary judgment in favor of the Children, Youth, 4 and Families Department (CYFD) on the ground that CYFD was immune from suit 5 under the New Mexico T ort Claims Act. We conclude that questions of material fact 6 preclude summary judgment and reverse. 7 BACKGROUND 8 {2} Tierra Blanca Ranch High Country Youth Program (TBR) is a private, for-profit 9 business in New Mexico that provides troubled adolescent residents with schooling, 10 counseling, and therapy. CYFD is a cabinet-level department of the state government. 11 NMSA 1978, §§ 9-2A-1 to -24 (1992, as amended through 2011). 12 {3} Plaintiffs Quevedo, Morgan, Almanza, and Fleming, together with the other 13 plaintiffs (collectively, Plaintiffs), filed a multi-count complaint in 2013 against CYFD1 15 16 17 18 19 20 21 22 23 24 18 1 Plaintiffs’ complaint also named the Department of Workforce Solutions (DWS), a cabinet-level department of the state. NMSA 1978, § 9-26-4 (2007). The district court granted summary judgment “in favor of the [s]tate [d]efendants,” including both CYFD (and its Licensing and Certification Authority) and DWS. While on appeal Plaintiffs state that they appeal the grant of summary judgment in its entirety, they posit no arguments related to DWS’s duties to them nor do they cite to any statutes or regulations defining DWS’s obligations vis á vis TBR. We therefore consider Plaintiffs’ appeal of the grant of summary judgment to DWS abandoned. See State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, ¶ 74, 141 N.M. 1, 150 P.3d 375 (“A party that fails to present argument or authority to support a contention runs a very substantial risk that this Court will not address the contention, either 1 and TBR alleging that while they were participants in TBR’s program, they were 2 physically and emotionally abused by TBR staff and other participants. Some also 3 allege that they were deprived of adequate food, denied access to their families, 4 shackled, and forced to perform extreme exercise. Plaintiffs further allege that CYFD 5 knew of abusive practices at TBR, that TBR was not licensed pursuant to statute and 6 CYFD regulations governing licensing of “multi-service homes” and “community 7 homes,” and that CYFD negligently failed to license and regulate TBR. They point to 8 the fact that, in 2005, CYFD initiated the licensing process with TBR. CYFD 9 subsequently stated in a 2006 letter to TBR that it “ha[d] determined that TBR is a 10 multi[-]service home under [S]ection 7.8.3.10(B) [NMAC] of the Shelter Care 11 Regulations” and that “TBR must have a license to continue in operation.” However, 12 CYFD eventually ceased its efforts to license TBR. CYFD maintains that “the 13 applicable New Mexico statutes [do not] allow[] or require[] CYFD to license TBR[].” 14 {4} Instead of answering the complaint, CYFD filed a motion for summary 15 judgment on the ground that the so-called “building waiver” in NMSA 1978, Section 16 41-4-6(A) (2007) of the New Mexico Tort Claims Act (the TCA) does not waive 17 immunity for Plaintiffs’ claims. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended 18 because of the failure of argument or authority, or because the party is deemed to have 19 abandoned the contention.”). 2 1 through 2015); Rule 1-056 NMRA. After a hearing on the motion for summary 2 judgment, the district court granted the motion. Plaintiffs appeal. Additional facts are 3 included as pertinent to our discussion of Plaintiffs’ arguments. 4 DISCUSSION 5 {5} “Summary judgment is proper if there are no genuine issues of material fact and 6 the movant is entitled to judgment as a matter of law.” Callaway v. N.M. Dep’t of 7 Corr., 1994-NMCA-049, ¶ 2, 117 N.M. 637, 875 P.2d 393 (internal quotation marks 8 and citation omitted). “However, summary judgment should not be used as a 9 substitute for trial on the merits so long as one issue of material fact is present in the 10 case.” Id. “In addition, when the facts are insufficiently developed or further factual 11 resolution is essential for determination of the central legal issues involved, summary 12 judgment is not appropriate.” Id. “An issue of fact is ‘material’ if the existence (or 13 non-existence) of the fact is of consequence under the substantive rules of law 14 governing the parties’ dispute.” Martin v. Franklin Capital Corp., 2008-NMCA-152, 15 ¶ 6, 145 N.M. 179, 195 P.3d 24. Our review of summary judgment is de novo. 16 Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139 17 N.M. 750, 137 P.3d 1204. 18 {6} Here, the relevant substantive law is the TCA, which “grant[s] governmental 19 entities and employees a general immunity from tort liability, but . . . waive[s] that 3 1 immunity in certain defined circumstances.” Cobos v. Doña Ana Cty. Hous. Auth., 2 1998-NMSC-049, ¶ 6, 126 N.M. 418, 970 P.2d 1143; see § 41-4-4(A). “In each of 3 these waivers the Legislature identified a specific existing duty on the part of public 4 employees, . . . which, if breached, could result in liability ‘based upon the traditional 5 tort concepts of duty and the reasonably prudent person’s standard of care in the 6 performance of that duty.’ ” Cobos, 1998-NMSC-049, ¶ 6 (quoting Section 41-47 2(B)). 8 {7} “The ‘building waiver’ waives governmental immunity for damages caused by 9 the negligence of public employees while acting within the scope of their duties in the 10 operation or maintenance of any building, public park, machinery, equipment[,] or 11 furnishings.” Id. ¶ 7 (internal quotation marks and citation omitted); see § 41-4-6. In 12 Cobos, the Court held that the building waiver is not limited to public buildings, stating 13 that “[t]he Legislature defined ‘scope of duties’ to mean ‘any duties that a public 14 employee is requested, required, or authorized to perform . . . regardless of the time 15 and place of performance.’ ” Cobos, 1998-NMSC-049, ¶ 8 (omission in original) 16 (quoting Section 41-4-3(G)). “Accordingly, the ‘building waiver’ in Section 41-4-6 on 17 its face excepts immunity for the negligent operation or maintenance of any building 18 by a public employee acting within the scope of duty.” Cobos, 1998-NMSC-049, ¶ 8. 4 1 {8} Moreover, “the waiver is not limited to injuries resulting from a physical defect 2 on the premises.” Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 10, 310 3 P.3d 611. “Instead, we interpret Section 41-4-6(A) broadly to waive immunity where 4 due to the alleged negligence of public employees an injury arises from an unsafe, 5 dangerous, or defective condition on property owned and operated by the 6 government.” Encinias, 2013-NMSC-045, ¶ 10 (internal quotation marks and citation 7 omitted). “The waiver applies to more than the operation or maintenance of the 8 physical aspects of the building, and includes safety policies necessary to protect the 9 people who use the building.” Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 10 140 N.M. 205, 141 P.3d 1259. 11 A. 12 The “Building Waiver” Permits Suit When There Is a Duty of Care Created by a Relationship Between the Parties 13 Case law indicates that the relationship between a governmental entity and a {9} 14 person can influence whether the building waiver applies in a given circumstance. Two 15 cases are particularly instructive. In Cobos, the plaintiff sued the Doña Ana County 16 Housing Authority (Housing Authority) for the wrongful death of her daughter and 17 granddaughters as a result of a fire. 1998-NMSC-049, ¶ 4. The plaintiff and her family 18 “were participants in a federally[]subsidized low-income housing program administered 19 by the . . . Housing Authority. Their home was privately owned and rented to them 5 1 through the [Housing] Authority’s Section 8 Existing Housing Program.” Id. ¶ 2. The 2 Housing Authority argued that the building waiver did not apply to permit suit against 3 it because it did not have a sufficient legal interest in the home, which was owned by 4 a private individual. Id. ¶ 4. The Court of Appeals affirmed the dismissal of the 5 complaint on immunity grounds and because the Housing Authority had not received 6 the required notice under the TCA. Id. ¶¶ 4-5. 7 {10} The Supreme Court granted certiorari to address only “whether [the p]laintiff 8 [had] stated a claim under the building waiver based on the duties of the public 9 employees who appear as individual defendants in [that] case.” Id. ¶ 5. It held first that 10 “the effect of the [building] waiver should not be determined by the legal status of or 11 the title to the real property, but should instead be determined by an examination of the 12 public employees’ duties.” Id. ¶ 7. It next observed that “statutes, regulations, and 13 contracts [are] sources of duties of ordinary care imposed on public employees that 14 may bring them within a [TCA] waiver[,]” id. ¶ 12, and made a detailed examination 15 of statutes and regulations governing the Housing Authority. Id. ¶¶ 13-14. The 16 Municipal Housing Law authorized the Housing Authority to “construct, maintain, 17 operate[,] and manage any housing project[,]” which was defined as “any work or 18 undertaking of the county to provide decent, safe, and sanitary dwellings . . . for 19 persons of low income.” Id. ¶ 13 (omission in original) (emphasis, internal quotation 6 1 marks, and citations omitted). It also required compliance with federal regulations 2 connected with funding through the federal Section 8 Existing Housing Program. Id. 3 ¶ 14. Through the program, “the [Housing] Authority screens for and certifies a 4 qualified needy participant, and represents that it will subsidize the participant’s rental 5 of approved homes to an extent that is prorated by income, need, and family size. The 6 [Housing] Authority then contracts with the owner of the property to provide rental 7 housing for the participant.” Id. This arrangement “create[d] a relationship among the 8 [Housing] Authority, the private landowners, and the family in need.” Id. In addition, 9 federal regulations required the Housing Authority to inspect the home before leasing 10 it and annually thereafter and gave the Housing Authority the right to terminate the 11 contract with the owner if the owner failed to maintain the home to certain standards. 12 Id. The Court concluded that “[u]nder the state law and the federal regulations, the 13 [Housing] Authority exercised at least some control over the quality of the private 14 housing by inspecting and selecting the proper dwelling and by providing in its 15 contract with the owners a large degree of control over the building.” Id. It concluded 16 that “the relationships of the actors . . . imposed at least limited duties of operation or 17 maintenance on [Housing] Authority employees” such that the plaintiff’s claim could 18 proceed under the building waiver provision of the TCA. Id. ¶ 18. 7 1 {11} In reaching this conclusion, the Court rejected the Housing Authority’s 2 argument that its relationship with the home and owner was “one of mere regulation 3 and inspection of private property[,]” id. ¶ 15, or the result of a “general regulatory 4 relationship between the government and its citizens.” Id. ¶ 16. The Court stated that 5 6 7 8 9 10 11 12 [t]he Legislature created the Authority for the purposes of operating and maintaining housing projects in a decent, safe[,] and sanitary condition. The Housing Authority . . . chose to do so by using private property in the manner prescribed by the federal regulations. Thus, the privately[]owned home was substituted for publicly[]owned low-income housing . . . , [and the Housing Authority’s] duties under the Municipal Housing Law and Existing Housing Program went far beyond a mere duty to inspect and regulate private conduct. 13 Id. ¶ 15; see id. ¶ 16 (stating that the Housing Authority’s “voluntary undertaking to 14 effectuate the policies in [the Municipal Housing Law] by providing [the p]laintiff’s 15 family with safe housing they could not otherwise obtain” and stating that [t]his 16 undertaking gives rise to a more specific relationship among the parties than does 17 general regulation for the public good”). 18 {12} In Young v. Van Duyne, this Court considered whether the building waiver 19 could apply to permit suit against CYFD based on CYFD’s failure to inform the 20 plaintiff’s family that the child they fostered and later adopted had violent tendencies. 21 2004-NMCA-074, ¶ 3, 135 N.M. 695, 92 P.3d 1269. The child later killed the 22 plaintiff’s wife with a baseball bat. Id. This Court held that the plaintiff’s claims 8 1 survived a Rule 1-012(B)(6) NMRA motion to dismiss and that the plaintiff “must be 2 permitted to proceed on the merits of his claim that CYFD operated the [plaintiff’s] 3 foster home within the meaning of the [building] waiver.” Young, 2004-NMCA-074, 4 ¶¶ 17, 23. Its reasoning was based in part on the special concurrence in M.D.R. v. 5 State ex rel. Human Services Department, in which Judge Minzner wrote that “[t]he 6 placement of a child in foster care within a private home involves the state in the lives 7 of its citizens in a unique way” because the statutes and regulations governing foster 8 care required the state to maintain a degree of control over the child. 1992-NMCA-082, 9 ¶ 17, 114 N.M. 187, 836 P.2d 106 (Minzner, J., specially concurring); see Young, 10 2004-NMCA-074, ¶ 20. Although the claims presented in M.D.R. were based on 11 allegations that the state negligently placed a child in the plaintiffs’ foster home, Judge 12 Minzner observed that claims related to the day-to-day functioning of the foster home 13 might have fallen within the “operation” prong of the building waiver. M.D.R., 199214 NMCA-082, ¶ 21. Based on the special concurrence in M.D.R. and Cobos, the Young 15 Court remanded to permit the plaintiff to “prove a regulatory scheme or conduct from 16 which a fact[-]finder can conclude pre-adoption operation of the [plaintiff’s] home as 17 contemplated under [the building waiver].” Young, 2004-NMCA-074, ¶¶ 20-21, 35. 18 {13} We recognize that, because of its procedural posture, Young is not dispositive 19 of whether CYFD was “operating” foster homes so as to permit suit under the building 9 1 waiver. Similarly, Cobos is not dispositive. Nevertheless, Young and Cobos together 2 suggest that the building waiver may apply when an agency undertakes to provide 3 housing for clients when permitted or required to do so under specific statutory 4 authority. Cobos, 1998-NMSC-049, ¶ 16 (stating that the Housing Authority’s 5 “voluntary undertaking to effectuate the policies in [the Municipal Housing Law] . . . 6 [gave] rise to a more specific relationship among the parties than does general 7 regulation for the public good”). 8 B. CYFD Owes a Duty o f Ordinary Care to Children Under Its Jurisdiction 9 As indicated in Cobos, CYFD’s duty is imposed in a variety of statutes and {14} 10 regulations. See id. ¶ 12 (“Our appellate courts regularly look to statutes, regulations, 11 and contracts as sources of duties of ordinary care imposed on public employees that 12 may bring them within a [TCA] waiver.”). For instance, the Children’s Code 13 establishes standards for the housing of children by CYFD. The Children’s Shelter 14 Care Act, the purpose of which is to “divert children out of the juvenile justice 15 system,” NMSA 1978, § 32A-9-2(B)(2) (1993), provides for the placement by CYFD 16 of children alleged to be in need of supervision, children determined to be in need of 17 supervision, or alleged delinquent children “in a community-based shelter-care 18 facility.” NMSA 1978, § 32A-9-6 (1993); see NMSA 1978, § 32A-9-3(B)-(D) (1993). 19 Other parts of the Children’s Code indicate that “community-based shelter-care 10 1 facilities” include the home of a relative, a licensed foster home or group home, or “a 2 facility operated by a licensed child welfare services agency[.]” NMSA 1978, § 32A-43 8 (1993); see NMSA 1978, § 32A-3B-6 (1993). Similarly, children alleged to be 4 neglected or abused, or from a family in need of services, may be placed with a family 5 member, or in a licensed foster home, facility operated by a licensed child welfare 6 services agency, or a facility provided for in the Children’s Shelter Care Act. Sections 7 32A-4-8, -3B-6. Placement of children alleged to be delinquent or youthful offenders 8 is limited to a similar list of facilities. NMSA 1978, § 32A-2-12 (2009). 9 {15} In addition to these statutes governing where CYFD may place children, CYFD 10 has promulgated extensive licensing requirements and regulations governing residential 11 shelter-care facilities for children, including crisis shelters, multi-service homes, 12 community homes, and “[n]ew or [i]nnovative programs” that provide children’s 13 services, as well as foster homes. 7.8.3.2 NMAC (09/15/1975, as amended through 14 08/15/2011) (licensing requirements for shelter-care homes); 8.26.4 NMAC (licensing 15 requirements for foster and adoptive homes). The shelter-care regulations specify the 16 records that must be kept for each child, licensing requirements for each facility, 17 reporting requirements, and space and building requirements, as well as setting 18 standards for medical care, nutrition, housekeeping, waste disposal, and seclusion 19 rooms, among other things. 7.8.3.2 NMAC (12/23/1987, as amended through 11 1 05/15/2001). More relevant to Plaintiffs’ claims, the regulations require facilities in 2 which CYFD is permitted or required to place or refer children pursuant to statute or 3 regulation to “support, protect, and enhance the rights of children” including “the right 4 to receive visitors in private at reasonable times” and “the right to written and 5 telephone access.” 7.8.3.28 NMAC(B)(7), (8). The regulations also prohibit use of 6 “unusual or unnecessary punishments including, but not limited to,” physical exercise 7 as a form of punishment, denial of food, water, or rest, denial of visiting or 8 communication privileges, use of restraints, verbal abuse, and spanking, hitting, or 9 “aggressive physical contact with a child.” 7.8.3.80(F) NMAC. The regulations also 10 include requirements for staffing levels and records, staff qualifications, staff training 11 and evaluation, and staff health certificates and criminal background checks. 7.8.3.30 12 to .34 NMAC. Similarly, the statutes and regulations governing foster care, discussed 13 in M.D.R., provide for substantial oversight of foster homes and foster parents. 199214 NMCA-082, ¶ 17 (Minzner, J., specially concurring); see 8.26.4 NMAC. Both the 15 shelter-care regulations and foster home regulations clearly address a wide variety of 16 aspects of the day-to-day operation of the subject facilities. 17 {16} Even “community homes,” which are excluded from particular regulations 18 governing residential shelter-care facilities, see 7.8.3.2 NMAC, and “group homes” are 19 required to “observe standards comparable to pertinent recognized state or national 12 1 group home standards for the care of children[.]” NMSA 1978, § 9-8-13(B) (2007) 2 (defining “group home” as “any home the principal function of which is to care for a 3 group of children on a [24]-hour-a-day residential basis,” which (1) “receives no funds 4 as such directly from or through the department” and (2) “is a member of any state or 5 national association that requires it to observe standards comparable to pertinent 6 recognized state or national group home standards for the care of children” 7 (emphasis added)); 8.26.6.7(D) NMAC (regulations governing community homes, 8 defining a community home as “a facility which operates 24 hours a day and provides 9 full time care, supervision[,] and support to no more than 16 children in a single 10 residential building, and which meets the definition of ‘group home’ as outlined in . . 11 . [Section] 9-8-13.”); 7.8.3.2 NMAC (stating that community homes are subject to only 12 some of the regulations in 7.8.3 NMAC). 13 {17} What we glean from these statutes and regulations is that CYFD has an 14 obligation to house children in its care in homes or facilities that meet certain minimum 15 health and safety standards. This obligation may create a relationship between CYFD, 16 the homes or facilities in which children are placed, and the children. See Cobos, 199817 NMSC-049, ¶ 14. We conclude that the waiver of immunity in Section 41-4-6(A) 18 permits suit against CYFD when such a relationship exists. 19 C. Questions of Material Fact Preclude Summary Judgment 13 1 {18} We turn now to the immediate question presented by Plaintiffs’ appeal. The 2 question centers factually on whether and under what circumstances, children were 3 sent or referred to TBR by CYFD, a question that raises a genuine issue of material 4 fact, requiring reversal and remand. Once answered, the issue becomes a legal one, 5 what duty of care, if any, CYFD owed to any particular child placed or referred to 6 TBR by CYFD. Based on the facts and arguments on appeal, we construe Plaintiffs’ 7 assertions to go beyond a failure by CYFD to license and regulate TBR. Plaintiffs 8 argue that CYFD “failed to operate and maintain TBR safely despite having a duty to 9 do so.” Plaintiffs’ assertions can be read as being similar to those made at the motion 10 to dismiss stage in Cobos and in Justice Minzner’s scenario in M.D.R., to include an 11 assertion that CYFD failed to exercise ordinary care “to provide for the care, 12 protection, and wholesome mental and physical development of children” under 13 statutory or regulatory circumstances requiring CYFD to do so and to do so in a 14 manner that could have prevented the alleged abuse of one or more children sent or 15 referred to TBR by CYFD. To be explored in further discovery and proof are 16 Plaintiffs’ allegations and any evidence in the record in regard to whether, and if so to 17 what extent, CYFD was involved in sending or referring children to TBR, and what 18 duty existed, if any, to follow up on their well-being. Included within this analysis is 19 the extent, if any, indicated by evidence in the record, to which CYFD’s juvenile 14 1 justice division may have received funds earmarked for TBR in 1999, and also the 2 extent, if any, to which inferences can be drawn that T BR and CYFD had financial 3 dealings then or at any other time. We note that, at the hearing on the motion, CYFD 4 appeared to admit that CYFD had placed children at TBR. Since CYFD did not 5 respond to Plaintiffs’ allegations in writing and the admission was only in a passing 6 comment, we decline to give this statement more import than is deserved. In spite of 7 CYFD’s statement, we conclude that the questions of whether and under what 8 circumstances children were placed at TBR by CYFD present disputed material 9 factual issues. 2 10 {19} In its pleadings related to the motion for summary judgment, CYFD did not 11 respond to Plaintiffs’ assertions that CYFD sent children in its care to TBR or that 12 CYFD has or had a financial arrangement with TBR. The district court did not set out 13 the undisputed facts on which it relied in granting summary judgment. 14 {20} In reviewing a motion for summary judgment, the district court “must resolve 15 all reasonable inferences in favor of the nonmovant and must view the pleadings, 15 16 17 18 19 20 21 22 2 In support, Plaintiffs attached a copy of the general appropriations bill containing the earmark to T BR and a complaint filed by Scott and Colette Chandler, who own and operate TBR, in which the Chandlers asserted that “[o]ver the existence of the TBR Youth Program, TBR Youth P rogram has received youths from New Mexico [CYFD], referrals from juvenile justice and parole, the courts, as well as private placements.” T he Chandlers further stated that “[f]or enrollment in the TBR Youth program, Scott Chandler is contacted either by a program facilitator, a social worker, a . . . Juvenile Justice Police Officer [sic], therapist and/or a parent.” 15 1 affidavits, depositions, answers to interrogatories and admissions in a light most 2 favorable to a trial on the merits.” Garcia-Montoya v. N.M. Treasurer’s Office, 20013 NMSC-003, ¶ 7, 130 N.M. 25, 16 P.3d 1084. “Summary judgment is an extreme 4 remedy that should be imposed with caution[,]” and is improper if the nonmovant 5 demonstrates “a reasonable doubt as to the existence of a genuine factual issue.” 6 Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶¶ 12, 22, 135 N.M. 539, 91 P.3d 58 7 (internal quotation marks and citation omitted). Here, Plaintiffs’ assertions raise a 8 reasonable doubt as to the existence of material factual issues, to wit, whether CYFD 9 placed children in its care at TBR. 10 CONCLUSION 11 {21} We conclude that questions of material fact preclude summary judgment on the 12 issue of whether the TCA’s building waiver applies to permit Plaintiffs’ suit. We hold 13 that summary judgment should have been denied. See Espinoza v. Town of Taos, 14 1995-NMSC-070, ¶ 5, 120 N.M. 680, 905 P.2d 718 (“Summary judgment is 15 inappropriate when resolution of a factual dispute is required to determine a legal 16 question before the [c]ourt.”). We therefore reverse and remand for further 17 proceedings. 18 {22} IT IS SO ORDERED. 16 1 2 MICHAEL D. BUSTAMANTE, Judge 3 I CONCUR: 4 ________________________________ 5 MICHAEL E. VIGIL, Chief Judge 6 7 8 JONATHAN B. SUTIN, Judge 17

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