Chistoffel v. Cloud

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STEVEN CHRISTOFFEL, 3 Plaintiff-Appellant, 4 v. NO. 35,056 5 JACK CLOUD, as Planning Department 6 Manager of the City of Albuquerque, and 7 CITY OF ALBUQUERQUE, 8 Defendants-Appellees. 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Clay Campbell, District Judge 11 Steven G. Christoffel 12 Albuquerque, NM 13 Pro Se Appellant 14 Jessica M. Hernandez, City Attorney 15 Daniel P. Dietz, Assistant City Attorney 16 John E. DuBois, Assistant City Attorney 17 for Appellees 18 MEMORANDUM OPINION 19 KENNEDY, Judge. 1 {1} Steven Christoffel, a self-represented litigant, appeals from the district court’s 2 order dismissing his tort claim action against Jack Cloud, in his capacity as the City 3 of Albuquerque Planning Department Manager. In our notice of proposed summary 4 disposition, we proposed to affirm. In response to this Court’s notice, Christoffel filed 5 a memorandum in opposition, which we have duly considered. We remain 6 unpersuaded by Christoffel’s arguments and therefore affirm. 7 {2} In his docketing statement, Christoffel argued: (1) the district court erred in 8 finding that Cloud is not a law enforcement officer; (2) the district court erred in 9 finding that the Board of Appeals did not have appellate jurisdiction over his appeal 10 of a building permit and certificate of occupancy; and (3) the district court erred in 11 finding that Cloud did not owe him any legal rights or legal duties. [DS 2 (¶ 5)] 12 Because Christoffel’s arguments appeared to lack merit, this Court proposed to affirm. 13 Issue 1 14 {3} In our notice of proposed disposition, we considered the job description for the 15 Planning Department Manager, set forth in the amended complaint [RP 162-64 (¶ 8); 16 see also DS 7-9], and we proposed to hold that Cloud is not a law enforcement officer, 17 as defined in the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -30 (1976, 18 as amended through 2010). [CN 3-4] We also suggested that Cloud’s principal duties [2] 1 as the Planning Department Manager in the present case were not to maintain public 2 order. [CN 4-5] 3 {4} In his memorandum in opposition, Christoffel maintains that Cloud is a law 4 enforcement officer, and his principal duties as the Planning Department Manager 5 were to maintain public order. [MIO 1-26] We note that Christoffel has not pointed 6 out errors in fact or law with our proposed disposition. See Hennessy v. Duryea, [7] 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly 8 held that, in summary calendar cases, the burden is on the party opposing the proposed 9 disposition to clearly point out errors in fact or law.”). Instead, Christoffel cites 10 various legal authorities, which he claims support his arguments; however, we are not 11 persuaded. See Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC-035 , ¶ 15, 115 12 N.M. 622 , 857 P.2d 22 (“[C]ases are not authority for propositions not considered.” 13 (internal quotation marks and citation omitted)). Where a party cites no authority to 14 support an argument, we may assume no such authority exists. In re Adoption of Doe, [15] 1984-NMSC-024 , ¶ 2, 100 N.M. 764 , 676 P.2d 1329 . Therefore, we remain 16 unconvinced that the district court erred in this case. 17 Issue 2 18 {5} In our notice of proposed disposition, we suggested that the Zoning Board of 19 Appeals did not have appellate jurisdiction over Christoffel’s appeal, and even if it [3] 1 did, Christoffel’s appeal was untimely filed. [CN 5] See Albuquerque, N.M., Rev. 2 Ordinances § 14-16-4-4 (1974, amended 2014) (governing appeals under the Zoning 3 Code). As discussed in our notice, following Christoffel’s appeal of the City of 4 Albuquerque’s issuance of a building permit and certificate of occupancy for the 5 property located at 7440 Jim McDowell Road, Cloud sent Christoffel a notice stating 6 that the appeal was not well taken. [CN 2; RP 169-70] Cloud’s notice further stated 7 that, under Albuquerque, N.M., Rev. Ordinances § 14-16-4-4, “appeals relating to the 8 issuance of a building permit or certificate of occupancy are not heard by the Zoning 9 Board of Appeals.” [CN 2 (quoting RP 170)] Additionally, Cloud noted that “all 10 zoning appeals must be filed within fifteen (15) days of the issuance of a decision” 11 and “the building permit and certificate of occupancy that [Christoffel was] 12 challenging were issued several years [earlier].” [Id.] Finally, Cloud stated that “in 13 order to appeal a decision of this type, a person must own property within three 14 hundred feet (300') of the subject site or demonstrate a personal or pecuniary interest 15 or property right adversely affected by the decision” and Christoffel’s application did 16 not demonstrate either of these circumstances. [Id.] Accordingly, Cloud rejected 17 Christoffel’s appeal. [Id.] 18 {6} In response, Christoffel maintains that the Zoning Board of Appeals had 19 appellate jurisdiction. [MIO 27-32] In support of this argument, Christoffel asserts [4] 1 that “[a]ny city appellate body . . . may suspend any applicable procedural rule if 2 doing so does not adversely impact any party’s rights[,]” “[t]he Zoning Board of 3 Appeals may choose to waive the 30 day time limit on an appeal, or any other 4 applicable procedural rule if doing so does not adversely impact any party’s rights[,]” 5 and “[t]he Zoning Board of Appeals or any member of the board may choose to hear 6 an appeal in the public interests.” [MIO 31-32] Even if these assertions are correct and 7 the Zoning Board of Appeals had discretion to accept Christoffel’s appeal, Christoffel 8 failed to meet his burden in showing that the Board of Appeals erred in not exercising 9 this discretion and that the district court erred in finding that the Board of Appeals had 10 appellate jurisdiction over his appeal of a building permit and certificate of occupancy. 11 See City of Albuquerque v. Westland Dev. Co., 1995-NMCA-136 , ¶ 34, 121 N.M. 144 , [12] 909 P.2d 25 (“The appellant has the burden to point out clearly and specifically the 13 error it asserts on appeal.”). 14 Issue 3 15 {7} In our notice of proposed disposition, we acknowledged Christoffel’s argument 16 that the district court erred in finding that Cloud did not owe him any legal rights or 17 legal duties [CN 5; DS 2 (¶ 5)]; however, we noted that the district court did not make 18 a ruling on this issue [CN 5; RP 220-21]. Therefore, we proposed to hold that this 19 issue was not preserved for appellate review and we declined to address the issue [5] 1 further. [CN 5-6] See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA- 2 022, ¶ 14, 137 N.M. 26 , 106 P.3d 1273 (“[O]n appeal, the party must specifically 3 point out where, in the record, the party invoked the court’s ruling on the issue. 4 Absent that citation to the record or any obvious preservation, we will not consider the 5 issue.”); see also Rule 12-208(D)(4) NMRA (requiring that the docketing statement 6 include a statement of how each issue was preserved in the trial court). 7 {8} Christoffel did not respond to this issue in his memorandum in opposition. 8 Therefore, this issue is deemed abandoned. See Griffin v. Thomas, 1997-NMCA-009 , 9 ¶ 7, 122 N.M. 826 , 932 P.2d 516 (recognizing that an issue is deemed abandoned 10 where a party fails to respond to the calendar notice’s proposed disposition of the 11 issue); Taylor v. Van Winkle’s Iga Farmer’s Mkt., 1996-NMCA-111 , ¶ 5, 122 N.M. 12 486, 927 P.2d 41 (same). 13 {9} Accordingly, for the reasons stated here and in our notice of proposed summary 14 disposition, we affirm. 15 {10} IT IS SO ORDERED. 16 _______________________________ 17 RODERICK T. KENNEDY, Judge [6] 1 WE CONCUR: 2 _________________________________ 3 TIMOTHY L. GARCIA, Judge 4 _________________________________ 5 J. MILES HANISEE, Judge