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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 JACINTO LOPEZ,

 3          Plaintiff-Appellant,

 4 v.                                                                          NO. 31,347

 5 MUNICIPAL COUNCIL and MAYOR
 6 OF THE CITY OF ARTESIA, NEW MEXICO,

 7          Defendants-Appellees.


 8 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 9 Jane Shuler-Gray, District Judge

10 Ramon I. Garcia
11 Roswell, NM

12 for Appellant

13   Montgomery & Andrews, PA
14   Stephen S. Hamilton
15   Jaime R. Kennedy
16   Santa Fe, NM

17 McCormick, Caraway, Tabor & Byers, L.L.P.
18 John M. Caraway
19 Carlsbad, NM

20 for Appellees
2
 1                            MEMORANDUM OPINION

 2 BUSTAMANTE, Judge.

 3        The City of Artesia (the City) resolved that Plaintiff Jacinto Lopez’s property

 4 at 911 West Dallas, Artesia, New Mexico, should be condemned as a public menace.

 5 Pursuant to Artesia, N.M., City Code § 5-5-4 (2004), Lopez sought de novo review

 6 of the City’s resolution in district court. The court affirmed the condemnation. Lopez

 7 now argues that the ordinance exceeds the authority granted to the City by NMSA

 8 1978, Section 3-18-5 (1977), that the ordinance was improperly applied retroactively,

 9 that the district court’s ruling was not supported by substantial evidence, and that his

10 request for a jury trial was improperly denied. We agree that Ordinance 5-5-4 exceeds

11 the municipality’s authority by imposing a clearly erroneous standard of review on the

12 district court. Because the district court held a de novo trial but then applied the

13 incorrect standard, we remand for the district court to enter its findings of facts and

14 render judgment based on those findings.

15 I.     BACKGROUND

16        In 2004 the City adopted Ordinances 5-5-1 through 5-5-5 relating to dangerous

17 buildings and premises. Under certain circumstances, these ordinances allowed the

18 City Council to determine by resolution that a property was a menace to the public.

19 Within ten days of service of such a resolution upon the property owner, the owner


                                              3
 1 is required to either begin removing the “building, structure, ruins, rubbish, wreckage

 2 or debris” that created the menace, or to request a hearing before the City Council.

 3 The ordinances also provide that an adverse City Council decision may be appealed

 4 de novo to the district court.

 5        Lopez purchased the property at 911 West Dallas in Artesia over twenty years

 6 ago. For several years, he lived and practiced medicine in the building. In 1985 or

 7 1986, Lopez moved to California. During the time when he resided in California, the

 8 building was vacant. Lopez returned about once a year to maintain the building,

 9 usually in response to a notice from the City requesting that he remove weeds from

10 the property.

11        On June 22, 2010, the City notified Lopez that it was contemplating

12 condemnation of Lopez’s building. The letter identified Sections 5-5-1 through 5-5-5

13 of the City of Artesia’s Municipal Code as authority for the condemnation. On

14 August 10, 2010, the City passed a resolution finding that Lopez’s property “is

15 damaged and dilapidated or covered with ruins, rubbish, wreckage, debris or weeds

16 to the extent that it is a menace to the public comfort, health, peace and safety.” The

17 City again identified Sections 5-5-1 through 5-5-5 as authority for the resolution.

18 After Lopez objected, a hearing was held, and the City Council determined that the

19 resolution should be enforced.


                                              4
 1        Lopez appealed to the district court. A de novo trial was held at which exhibits

 2 were entered into evidence and witnesses were examined. At the conclusion of this

 3 trial, the district court orally observed that, according to the evidence presented,

 4 Lopez’s property was dilapidated and the City Council’s action of condemnation was

 5 appropriate. However, the written judgment entered by the court made no such

 6 findings. Instead, it concluded that the City’s ruling was not clearly erroneous. It is

 7 from this judgment that Lopez now appeals.

 8 II.    DISCUSSION

 9        Lopez argues that Building Code Section 117.1 was improperly applied against

10 him retroactively, that the district court’s ruling was not supported by substantial

11 evidence, that Ordinance 5-5-4 exceeds the authority granted to the City by Section

12 3-18-5, and that his request for a jury trial was improperly denied. In order to clarify

13 the standard of review applicable to this proceeding, we begin with Lopez’s argument

14 that the city ordinances exceed the authority granted by Section 3-18-5.

15 A.     Standard of Review

16        Lopez argues that Ordinance 5-5-4 exceeds the authority granted to

17 municipalities by Section 3-18-5 because the ordinance imposes a higher standard of

18 proof on his appeal to the district court than the standard of appeal under Section 3-

19 18-5. The City contends that this argument is irrelevant because the district court did


                                              5
 1 not apply the standard from Ordinance 5-5-4, but instead conducted a de novo trial on

 2 the merits. The City also argues that Lopez failed to preserve this argument and that

 3 the Ordinance does not exceed the City’s authority under Section 3-18-5.

 4        Pursuant to NMSA 1978, Section 3-17-1 (1993), municipalities may enact

 5 ordinances to provide for the health and safety of their inhabitants so long as the

 6 ordinances do not conflict with the laws of the State of New Mexico. The City

 7 enacted an ordinance allowing it to condemn buildings that, in its judgment, were a

 8 menace to the public comfort, health, peace, or safety. Artesia, N.M., City Code § 5-

 9 5-1 (2004). A separate ordinance provided for review by the district court:

10        Any person aggrieved by the determination of the city council may
11        appeal to the district court . . . . The district court shall hear the matter de
12        novo and enter judgment in accordance with its findings. The burden of
13        persuasion shall be upon the party taking the appeal to show that the
14        decision of the city council is clearly erroneous.

15 Artesia, N.M., City Code § 5-5-4. Both of these ordinances closely follow the

16 language of Section 3-18-5. However, Ordinance 5-5-4 departs from the language of

17 Section 3-18-5(E) by adding a final sentence purporting to impose a “clearly

18 erroneous” standard of review on the district court.

19        Administrative decisions are subject to two categories of review in the district

20 courts. In most cases the review is deferential, looking to the whole record to

21 determine “whether the agency acted arbitrarily or capriciously, whether the agency


                                                 6
 1 decision was supported by substantial evidence, and whether the agency acted within

 2 the scope of its authority.” See Clayton v. Farmington City Council, 120 N.M. 448,

 3 453, 902 P.2d 1051, 1056 (Ct. App. 1995); see also NMSA 1978, § 39-3-1.1 (1999);

 4 Rule 1-074(R) NMRA. In whole record review cases, this Court applies the same

 5 standard of review as the district court. However, this process does not apply “when

 6 the statute controlling appeal [allows] some form of de novo review” by the district

 7 court. Clayton, 120 N.M. at 453, 902 P.2d at 1056.

 8        Clayton identified two factors which must be present in order to conclude that

 9 a statute allows de novo review of administrative decisions. Id. First, the statute must

10 “contemplate[] additional evidentiary presentation beyond the record created in front

11 of the administrative agency.” Id. Second, the statute must “allow[] the district court

12 more discretion in its judgment than simply reversal of the agency’s decision and

13 remand for further proceedings.” Id. Review by trial de novo means that the initial

14 reviewing court—generally, the district court—“considers the issues presented on its

15 own, not bound, controlled or necessarily influenced, in any way by the action of the

16 inferior tribunal.” Id. at 454, 902 P.2d at 1057 (internal quotation marks and citation

17 omitted).

18        The Clayton Court applied these rules to analyze NMSA 1978, Section 3-19-8

19 (1965) (amended 1999). Regarding the first requirement, the Court concluded that the


                                              7
 1 provision that the trial shall be “de novo and shall be governed by the rules of civil

 2 procedure of the district court” allowed or required “an entirely new evidentiary

 3 inquiry.” Clayton, 120 N.M. at 454, 902 P.2d at 1057. The parties also agreed that

 4 the district court was required to accept new evidence and, in light of the “de novo”

 5 language in the statute, the court accepted this contention. Id. at 455, 902 P.2d at

 6 1058. As to the second requirement, the statutory language implied that the remedy

 7 could be broader than mere reversal. Although the statute discussed actions “to vacate

 8 and set aside” the agency’s order, it also contemplated the district court granting relief

 9 “by injunction, mandamus or any other extraordinary remedy.” Id. at 454, 902 P.2d

10 at 1057. Clayton concluded that the district court was required to exercise its own

11 judgment based on the agency ruling and the evidence presented at trial. Id. at 455,

12 902 P.2d at 1058 Accordingly, the Court in Clayton did not perform a whole record

13 review of the agency’s decision, but instead reviewed the district court’s ruling for

14 substantial evidence and mistakes of law. Id.

15        Subsequently, Section 3-19-8 was modified to provide that appeals from

16 municipal planning commission decisions would be governed by Section 39-3-1.1.

17 1999 N.M. Laws, ch. 265, § 5.           Section 39-3-1.1 provides a framework for

18 administrative appeals that applies the deferential whole record approach discussed

19 above. See § 39-3-1.1(D). It applies only when explicitly adopted. § 39-3-1.1(A).


                                               8
 1 Dozens of statutes have adopted Section 39-3-1.1; however, the Legislature has

 2 chosen not to replace the appeal procedure in Section 3-18-5 with a reference to

 3 Section 39-3-1.1. We therefore now apply Clayton’s reasoning to determine the

 4 standard of review applicable to district court review under Section 3-18-5.

 5        Section 3-18-5 provides that on appeal from a municipality’s decision, the

 6 “district court shall hear the matter de novo and enter judgment in accordance with its

 7 findings.” Section 3-18-5(E)(2). This language contemplates that the district court

 8 will hear additional evidence. Like the statute in Clayton, it provides for de novo

 9 review. Additionally, it instructs the district court to make findings, an instruction that

10 is incompatible with the deferential whole record review described in Section 39-3-1.1

11 and Rule 1-074. See Cadena v. Bernalillo Cnty. Bd. of Cnty. Comm’rs, 2006-NMCA-

12 036, ¶ 18, 139 N.M. 300, 131 P.3d 687 (holding that a district court may not make

13 findings of fact when reviewing under Section 39-1-1.1). The language also allows

14 the district court to do more than simply reverse and remand—the court must enter a

15 judgment based on its findings. We therefore conclude that Section 3-18-5 requires

16 de novo review of decisions by municipalities in the district courts.

17        Ordinance 5-5-4 attempts to restrict review, not just to the deferential review

18 of Section 39-3-1.1 and Rule 1-074, but to review under a clearly erroneous standard,

19 which is only a small portion of whole record review. Because this purported


                                                9
 1 restriction conflicts with Section 3-18-5, the City had no authority to pass it. See § 3-

 2 17-1. The correct procedure was for the court to conduct a de novo proceeding,

 3 hearing new evidence and entering its judgment based on its findings. If the district

 4 court has applied the correct standard, we will not apply whole record review to the

 5 City Council’s resolution, but will instead view the proceedings in the district court

 6 through the lenses of our traditional standards of review.

 7 B.     Substantial Evidence

 8        We now turn our attention to the proceedings before the district court. In doing

 9 so, we also examine Lopez’s argument that the district court’s conclusion that his

10 property violated Ordinance 5-5-1 is not supported by substantial evidence.

11 Ordinance 5-5-1 provides that


12        Whenever any building or structure is ruined, damaged and dilapidated,
13        or any premises is covered with ruins, rubbish, wreckage or debris, the
14        city council may, by resolution, find that the ruined, damaged and
15        dilapidated building or structure or premises is a menace to the public
16        comfort, health, peace or safety and require the removal from the city of
17        the building, structure, ruins, rubbish, wreckage or debris.

18 The City made such a resolution, and the district court determined that the resolution

19 was not clearly erroneous.




                                              10
 1        “Substantial evidence is such relevant evidence that a reasonable mind would

 2 find adequate to support a conclusion.” Salazar v. D.W.B.H., Inc., 2008-NMSC-054,

 3 ¶ 6, 144 N.M. 828, 192 P.3d 1205 (internal quotation marks and citation omitted).

 4        [W]hen considering a claim of insufficiency of the evidence, the
 5        appellate court resolves all disputes of facts in favor of the successful
 6        party and indulges all reasonable inferences in support of the prevailing
 7        party. Additionally we will not reweigh the evidence nor substitute our
 8        judgment for that of the fact finder. The question is not whether
 9        substantial evidence exists to support the opposite result, but rather
10        whether such evidence supports the result reached.

11 Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123

12 N.M. 329, 940 P.2d 177 (citations omitted).

13        The district court held a hearing at which it heard evidence regarding the state

14 of Lopez’s property. Ms. Hinkle testified that the property was run down, boarded up,

15 and covered in trash and debris. Photographs were introduced into evidence showing

16 evidence of structural problems, leaks, filth, and possibly mold. At the hearing, the

17 district court stated its opinion that no objective observer of the photographs would

18 conclude that the building was not dilapidated. We agree with the district court that

19 the photographs and testimony are relevant evidence from which a reasonable mind

20 could conclude that the property was dilapidated and covered with rubbish and debris.

21        Although the district court correctly conducted a de novo trial, hearing new

22 evidence and drawing its own conclusions from the evidence, there is nevertheless one


                                             11
 1 problem that prevents us from simply affirming its result. The order filed by the court

 2 did not set forth the findings and conclusions the court made orally at the hearing.

 3 Instead, the order stated that “[a]fter hearing the matter de novo, the [c]ourt [f]inds that

 4 Plaintiff has failed to meet its burden of persuasion to show that the decision made by

 5 the Artesia City Council is clearly erroneous.” The court also made it clear that this

 6 conclusion was based on Ordinance 5-5-4. However, as we have discussed, the City

 7 was without authority to impose a clearly erroneous standard of review on the district

 8 court.

 9          The error is significant because the clearly erroneous standard is more difficult

10 for Lopez to overcome than the standard–presumably a preponderance of the

11 evidence–which would apply at a de novo trial on the merits. The error also prevents

12 us from simply affirming, as it is possible that the district court believed that Lopez

13 would have prevailed under the lower standard, but did not prevail under the clearly

14 erroneous standard. We therefore remand for the district court to make findings and

15 enter its judgment in accordance with the valid portion of Section 5-5-4 and the

16 discussion in this Opinion.




                                                12
 1 C.      Retroactivity

 2         Having discussed the areas in which there was error, we proceed to the issues

 3 in which there was not. Lopez argues that the city improperly applied Section 117.1

 4 of its building code against him retroactively. Relying on Howell v. Heim, 118 N.M.

 5 500, 506, 882 P.2d 541, 547 (1994), the City argues that an ordinance is not

 6 retroactively construed when it is applied to a condition existing on its effective date.

 7 Alternatively, the City argues that its actions were also authorized by Section 3-18-5.

 8         We presume that a statute applies prospectively unless the Legislature clearly

 9 intends to give it retroactive effect. State v. Morales, 2010-NMSC-026, ¶ 8, 148 N.M.

10 305, 236 P.3d 24. Because the ordinances at issue here do not explicitly declare that

11 the Legislature intended them to apply retroactively, “we must interpret [them] to

12 apply prospectively and ensure that there is no retroactive effect.” GEA Integrated

13 Cooling Tech. v. State of N.M. Taxation & Revenue Dep’t, 2012-NMCA-010, ¶ 17,

14      , N.M.    ,     P.3d      . Whether a statute operates retroactively is a question

15 of statutory construction that we review de novo. See id. ¶ 5.

16         “A statute or regulation is considered retroactive if it impairs vested rights

17 acquired under prior law or requires new obligations, imposes new duties, or affixes

18 new disabilities to past transactions.” Howell, 118 N.M. at 506, 882 P.2d at 547.

19 “Thus, to determine whether a statutory amendment is retroactive the court must ask


                                              13
 1 whether the new provision attaches new legal consequences to events completed

 2 before its enactment.” Morales, 2010-NMSC-026, ¶ 9 (internal quotation marks and

 3 citation omitted). “[A] statute does not operate retroactively merely because some of

 4 the facts or conditions which are relied upon existed prior to the enactment.” Howell,

 5 118 N.M. at 506, 882 P.2d at 547 (internal quotation marks and citation omitted).

 6        We discern no retroactive application of ordinances in this case. As an initial

 7 matter, we note that although Lopez directs his argument at Section 117.1 of the

 8 building code, the City actually exercised its powers under Ordinance 5-5-1, and we

 9 will treat Lopez’s argument as applying to that ordinance. Furthermore, we agree with

10 the City that Section 3-18-5, which predates Lopez’s purchase of the property and

11 which confers upon the City the powers identical to Ordinance 5-5-1, applies

12 prospectively here and justifies affirmance under a right for any reason theory. But

13 in any event, no ordinance was applied retroactively here because the City has not

14 sought to penalize Lopez for a condition that existed and was terminated prior to the

15 ordinance’s adoption. Instead, the City based its resolution on a condition that existed

16 prior to the ordinances in question and which continued to exist despite years of

17 efforts to get Lopez to comply. We therefore conclude that the City did not

18 impermissibly apply any ordinance retroactively.




                                              14
 1 D.     No Right to Jury Trial

 2        Lopez contends that the district court wrongfully denied his request for a trial

 3 by jury. His argument appears to rest on a distinction between administrative appeals,

 4 which he implies do not require a jury, and trials de novo, which he suggests do.

 5        “The right of trial by jury as it has heretofore existed shall be secured to all and

 6 remain inviolate.” N.M. Const. art. II, § 12. “It was the purpose of the Constitution

 7 framers to retain the right to trial by jury as it heretofore existed in the Territory of

 8 New Mexico except in special proceedings unless express provision for jury trial was

 9 included therein.” El Paso Elec. v. Real Estate Mart, Inc., 98 N.M. 490, 495, 650

10 P.2d 12, 17 (Ct. App. 1982). “Article II, Section 12 of the New Mexico Constitution

11 has been interpreted so as to preserve the right to a jury trial as it existed at the time

12 the constitution was adopted.” Smith v. First Alamogordo Bancorp, Inc., 114 N.M.

13 340, 342, 838 P.2d 494, 496 (Ct. App. 1992).

14        At the time the New Mexico Constitution was adopted, no provision existed for

15 trial by jury in a proceeding of this type because no proceeding of this type existed.

16 Authority for a municipality to condemn property is currently granted by Section 3-

17 18-5, which was originally enacted in 1965. 1965 N.M. Laws, ch. 300. The statute

18 does not explicitly grant the right to trial by jury. See § 3-18-5(E) (contemplating that

19 the court will enter judgment based on its findings, not on a jury’s verdict).


                                               15
 1 Furthermore, Lopez has not identified any analogous action that existed at the time the

 2 New Mexico Constitution was adopted in which there was a right to a jury. See In re

 3 Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Lopez’s only

 4 citation is to rule 1-072(F) NMRA, which does not govern administrative appeals. As

 5 Lopez has not pointed us to any error in the district court’s denial of his jury request,

 6 we decline to reverse the district court’s decision on this basis. See Farmers, Inc. v.

 7 Dal Mach. & Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990)

 8 (“Appellant must affirmatively demonstrate its assertion of error.”).

 9 III.   CONCLUSION

10        For the foregoing reasons, we vacate the district court’s judgment of dismissal

11 and remand for further proceedings consistent with this Opinion.

12        IT IS SO ORDERED.

13
14                                          MICHAEL D. BUSTAMANTE, Judge

15 WE CONCUR:


16
17 CYNTHIA A. FRY, Judge


18
19 LINDA M. VANZI, Judge



                                              16
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