A.M. on behalf of F.M. v Holmes

A.M. appealed summary judgment for Holmes and two other defendants in her 42 USC 1983 action alleging constitutional violations when F.M. was arrested and, in a separate incident, later searched for contraband. The panel, 2-1, affirmed. As to the arresting officer, the majority held that A.M. was on notice of the qualified immunity defense as she caught summary judgment on the issue, the officer raised the issue in his response to the summary judgment motion and A.M. was on notice form the reply brief of the need to provide evidence of physical or emotional injury arising from the handcuffing during arrest. It held the officer was entitled to qualified immunity for the arrest because New Mexico Statutes Annotated 30-20-13(D) is broadly worded and criminalizes any act which disrupts, with school operations, there is no textual requirement for the act be serious or that the interference to be schoolwide in effect and F.M.’s fake burping and other clowning behavior arguable falls with the scope of 13(D), the case relied upon by A.M. to prove a clearly established right not to be arrested actually deals with a precursor to 13(C) and in any event would allow an officer to reasonably believe that he had arguable probable cause to arrest, a federal district court case from after the arrest demonstrated that there was no clearly established law here and contrary cases form other states did not make a strong consensus that would put the arresting officer on notice. It also held there was no clearly established right for a minor to not be handcuffed during transport from the school to detention as the Supreme Court case relied upon by A.M. is too general, the statute relied upon was directed at detention centers and the case law on handcuffing supported a right to handcuff absent some independent harm beyond the de minimums level. As to Holmes, the majority held qualified immunity was proper here as the search for drugs was based on reasonable suspicion given a student’s tip about a possible drug deal and security camera footage showing that F.M. was in a circle of other students with cash and two of the identified student s said drugs were present in the circle and the few hours that passed between incident and search did not defeat reasonable suspicion and the search was reasonably as precedent allows school administrators to search outer clothing and the video of the  search confirms F.M. had a shirt and shorts on at the end of the search thus it was not a strip search. It affirmed qualified immunity for Holmes on a First Amendment retaliation claim as A.M. provided no evidence Homes was aware of his talking to the media about the arrest and thus could not prove the necessary connection between speaking to the media and the search and noted A.M. had the opportunity at the district court and on appeal to argue the sufficiency issue. It affirmed qualified immunity on A.M.’s equal protection claims holding it is unclear only F.M. had to remove outer clothing and F.M. had drug related belt buckle, a prohibited bandana and $200 on his person which distinguished him form the other students involved. The dissent argued the New Mexico case relied upon by A.M. as well as the consensus among other state appellate court requires significant disruption of an entire school, not just childish activity disrupting a class to justify arrest.

Zia Shadows LLC v City of Las Cruses

Zia appealed the judgments for City in its 1983 action arising out of delays in approving a zoning change. The panel, with one judge dissenting in part, affirmed. It held summary judgment was appropriate in Zia’s due process claim as it had no protect interest in the grant of the change as City’s city council had final approval authority and significant discretion in evaluating applications. It held summary judgment was appropriate on the equal protection claim as Zia failed to identify similarly situated applicants treated more favorably or that the current owner had permission from City to ignore code requirements. It held that there was no error in the change to a stipulated jury instruction as the stipulated instruction was erroneous, the district court was required to correctly charge the law and there was no prejudice as the added language set out an objective standard and Zia did not identify any evidence that it would have presented if the correct instruction would have been given. The majority held there was no error in not dismissing a City employee form the jury as Supreme Court precedent rejects implied bias for employees absent extreme circumstances, the juror worked din a different department and there was no evidence his employment biased him towards city. The majority finally held the verdict for City on the First Amendment retaliation claim was not against the weight of the evidence as there was no overwhelming evidence City’s actions were motivated by Zia’s protected speech. The dissent argued that the common law rule that employees of a party cannot serve on juries should apply to municipal employees because they are not analogous to servants of the crown, there are plenty of other potential jurors, neither Congress or the New Mexico legislature requires the seating of municipal employees, this is a civil case seeking substantial money damages, retaliation by City is plausible given the stakes and juror fear could undermine public confidence in the jury process.

United States v Black

Black appealed his drug convictions on speedy trial grounds and also appealed his sentence. The panel affirmed his conviction and vacated and remanded his sentence. It vacated the sentence as the district court set the offense level too high and the imposed sentence is above the top end of the correct guidelines range. The panel rejected the speedy trial challenge holding the delay of 23 months favored Black; the various delays were not in favor of Black as the first delay was justified by the need to find and arrest several members of the alleged drug conspiracy, the second delay was more due to Black’s motions and less to government inaction and as to the third period of delay, Black forfeited his argument as to prearrest delay and filed several motions while government actions caused the remaining delay and on balance Black was responsible for more of the delay than the government; Black failed to actively assert his rights because he waited more than year from initial indictment and arrest to assert his claim and this weighs heavily against Black; and Black did not assert any prejudice from the delay.

Foster v Mountain Coal Company, LLC 

Foster appealed summary judgment to Mountain in his Americans with Disabilities Act retaliation case. The panel reversed and remanded for further proceedings. It held that a jury could find that Foster made a request for accommodations at a meeting when he stated that he anticipated scheduling neck surgery the next day and asked for Mountain’s cooperation and also in a phone conversation where he read over the phone a doctor’s letter that stated he needed surgery. It held the close temporal proximity was sufficient to demonstrate causation at the prima facia stage of the case and there is a dispute about why mountain suspended then terminated Foster and there is a genuine dispute as to when Foster was terminated and thus whether the termination was in retaliation for the letter he read over the phone. It finally held that a reasonable jury could believe that the shifting reasons for termination prove the offered reason for termination was perpetual and the real reason was retaliation.

Trans-Western Petroleum, Inc. v United States Gypsum Company

After receiving the Utah Supreme Court’s answer to the certified question of the measure of damages in an oil and gas lease, the panel considered the parties appeal and cross appeal. On Gypsum’s cross appeal, it held that it was procedurally allowable to grant summary judgment on liability as Gypsum did not raise its no meeting of the minds defense at the district court and failed to file the required affidavit and the scheduling order did not ban motion practice. It held that summary judgement was proper here as Trans-Western promised to pay for the leasehold and actually tendered payment thus demonstrating consideration. On Trans-Western’s cross-appeal, the panel remanded the case for evaluation for damages under the rule provided by the Utah Supreme Court.

BV Jordanelle, LLC v Old Republic National Title Insurance Company

BV appealed summary judgment for Old Republic on its breach of title insurance contract claim. The panel affirmed. It held there was no coverage under the lien or encumbrance provision as improvement district improvements only become a lien or encumbrance when the improvement district is created and actually levy the fees which did not occur here until after the policy was purchased and no claim under this provision was raised concerning the improvements already made by the district at time of purchase. It held there was no coverage under the subdivision provision as there was no notice of intent to enforce any subdivision ordinance recorded in the land records as of the date the policy was purchased. Likewise, there was no coverage for governmental taking as any taking was done after the policy was purchased. It held there was no coverage under the mechanics lien provision as the improvement fee was not for services, labor or materials used in construction. It finally affirmed the judgment on duty to defend as BV failed to adequately develop the argument.

Fidelity National Title Insurance Company v Woody Creek Ventures, LLC

Woody Creek appealed summary judgment for Fidelity on its claim under its title insurance policy for lack of access or unmarketability. The panel predicted the Colorado Supreme Court would follow the rule in other states and hold that a 30 year revocable right of way meets the plain meaning of “right of access” as the owners of the property in question can access their property over a road and policyholders are not entitled access in the way they want and held this prediction is consistent with the dictionary definition of right of access and with Colorado’s treatment of easements. It held title to the properties at issue was marketable because it predicted the Colorado Supreme Court would adopt the rule that economic unmarketability is not the same as marketability of the title and lack of permanent access does not affect title in any way and based the prediction on Colorado Court of Appeals precedent, the case law of other jurisdictions and the plain meaning of “marketability of title”.

Lexington Insurance Company v Precision drilling Company

Precision appealed summary judgment for Lexington in its insurance coverage case. The panel reversed. It held the statue relied upon by the district court Wyoming Statutes Annotated 30-1-131 does not apply to insurance contracts and thus indemnity under any insurance contract applicable here would not be barred by 131. The panel rejected Lexington’s legislative intent argument holding that speculation bout intent cannot overcome clear legislative text. The lead opinion also argued that absurdity doctrine does not apply here as it would create serious separation of powers and due process problems. Two judges added a concurrence arguing the absurdity argument was waived as it was not raised until oral argument and in any event would fail under the broadest understanding of the absurdity doctrine.