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

 2 BOARD OF COUNTY COMMISSIONERS
 3 OF DOÑA ANA COUNTY,

 4          Plaintiff-Appellant,

 5 v.                                                            NO. 31,830

 6 GRANITE HANGAR DEVELOPMENT CO.
 7 and GRANITE AVIATION SERVICES, INC.,

 8          Defendants-Appellees.

 9 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
10 Manuel I. Arrieta, District Judge

11 Thomas R. Figart
12 Office of the County Attorney
13 Las Cruces, NM

14 for Appellant

15 Martin, Lutz, Roggow & Eubanks PC
16 William L. Lutz
17 Las Cruces, NM

18 for Appellees

19                                 MEMORANDUM OPINION

20 ZAMORA, Judge.
 1   {1}   The Board of County Commissioners of Doña Ana County (Plaintiff) appeals

 2 from a district court order granting the County partial relief in a suit for breach of

 3 contract and forcible entry or unlawful detainer, but refusing to enforce certain terms

 4 of a lease based on equity. On appeal, the County challenges the district court’s

 5 exercise of its equitable powers. Because we hold that the district court’s exercise of

 6 its equitable powers was an abuse of discretion, we reverse and remand.

 7 I.      BACKGROUND

 8   {2}   Plaintiff leased commercial space at the Santa Teresa Airport (the Airport) to

 9 Rosemar, Inc. In 1997, Rosemar Inc. assigned the lease to Granite Hangar

10 Development Co. which in turn subleased the space to its affiliate, Granite Aviation

11 Services, Inc. (collectively referred to as Defendants) to use for commercial operations

12 including the sale of aviation fuel, the maintenance of aircraft, and the operation of

13 both a flying club and a flight school. In the assignment of the lease, Defendants

14 assumed and covenanted to perform all the conditions and terms of the original lease.

15 The lease required, inter alia, payment of a fixed rent amount as well as additional rent

16 equal to two percent of Defendants’ gross receipts. Defendants paid the fixed rent and

17 the gross receipts rent until 2002 when their bookkeeper passed away; after that, the

18 additional gross receipts rent was not paid because the bookkeeper’s replacement was

19 unaware that it was required.

                                               2
 1   {3}   An additional provision of Defendants’ lease required compliance with the

 2 “Doña Ana County Minimum Standards for Commercial Aeronautical Activities at

 3 Santa Teresa Airport” (Minimum Standards). The Minimum Standards regulate

 4 commercial operations at the Airport.

 5   {4}   The original Minimum Standards were adopted as County Resolution 83-20,

 6 in 1983 and, in pertinent part, required that Defendants: (1) apply for and obtain

 7 approval from the County prior to subleasing the premises or engaging in commercial

 8 operations at the Airport; (2) provide two grades of aviation fuel each from 10,000

 9 gallon storage tanks; and (3) use a building of at least 4,000 square feet as the

10 principal building for their commercial operations. Though Defendants used a 10,000

11 gallon fuel storage tank as required, they only sold 100 low lead aviation gasoline and

12 they failed to obtain the approvals required by the Minimum Standards to sublease the

13 space or to begin commercial operations.

14   {5}   In 2004, Plaintiff began leasing space at the Airport to one of Defendants’

15 competitors, Blue Feather Aviation (Blue Feather). Blue Feather operated a flight

16 school and sold aviation fuel. At some point, Blue Feather complained to Plaintiff

17 about the low price at which Defendants were selling aviation fuel. Plaintiff

18 subsequently amended the Minimum Standards to require commercial operators at the

19 airport to provide fuel for both reciprocating engine and turbine (jet) aircraft from


                                              3
 1 12,000 gallon fuel tanks. Doña Ana County, NM, Ordinance 241-09 (Mar. 13, 2009).

 2 These amendments favored Blue Feather, whose operations were more recent and

 3 upgraded, and included the sale of jet fuel from a 12,000 gallon fuel storage tank. Blue

 4 Feather was the only commercial operator at the Santa Teresa Airport in compliance

 5 with the amended Minimum Standards.

 6   {6}   Around this time, Plaintiff began to enforce all commercial operators’ lease

 7 provisions, including compliance with the Minimum Standards, and to collect the

 8 gross receipts rent even though, for several years, it had not been doing so. In January

 9 2009, Defendants were notified that they were in violation of both their lease terms

10 and the Minimum Standards. In April 2009, Plaintiff terminated the lease, citing

11 Defendants’ failure to come into compliance with the lease and the County

12 procedures. Plaintiff demanded that Defendants vacate and surrender the premises.

13   {7}   Plaintiff ultimately filed a complaint against Defendants in district court for

14 breach of lease and for forcible entry or unlawful detainer. Defendants raised a claim

15 of equitable estoppel; however, the district court granted Plaintiff’s motion to strike

16 the claim because it had not been pled as an affirmative defense. The motion was

17 granted “subject to the [c]ourt’s exercise of its equitable powers where appropriate.”

18   {8}   At the conclusion of trial the district court made the following pertinent

19 findings of fact:


                                              4
 1   33.   Defendant Granite Hangar was the first to bring 100 low lead
 2         gasoline to service the needs of other piston-driven aviation at the
 3         Santa Teresa Airport; it has never sold jet fuel which is now being
 4         provided by Blue Feather. The Minimum Standards require that
 5         a commercial operator provide both types of fuel. Defendants’
 6         operations do not involve jet engine aviation nor do their market
 7         or clients, have a need for jet fuel. (Gene Dawson, trial testimony).


 8   34.   Setting up a jet fuel facility would require a 30-year payback
 9         period for Defendants; it would not be economically feasible.
10         (Gene Dawson, trial testimony).

11   35.   That the Minimum Standards mandate space requirements which
12         are in excess of 50 per cent of Defendants’ current usage in
13         addition to requiring another hangar for the Defendants’
14         commercial operation. (Gene Dawson, trial testimony).

15   37.   That the value of the improvements on the airport property of the
16         Defendant Granite Hangar is approximately $379,000.00. Under
17         the subject lease, the improvements could be forfeited through an
18         unlawful detainer action. (Initial lease with Rosemar, Defendants’
19         Exhibit 1, paragraph 4(I), page 13, and paragraph 21, page 30).

20   38.   That the Defendant Granite Hangar will suffer additional damages
21         in the future by reason of a termination of the lease by the County
22         in the sum of $342,000.00.

23   39.   That Defendant Granite Aviation will lose $190,000.00 in future
24         income if it is required to shut down its commercial operations.

25   44.   Historically, Plaintiff had a course of dealing with the Defendants
26         and with most of the other operators at the airport of not collecting
27         2% of the gross revenue called for in their leases.

28   48.   That at the time of writing the letters of default Plaintiff knew that
29         it had a course of dealing of not enforcing the terms of the
30         Minimum Standards and the terms of its leases with the operators.

                                         5
 1         56.   That the actions of the Plaintiff in this case could provide Blue
 2               Feather with an exclusive right to sell fuel and conduct flight
 3               instruction on the airport.

 4         57.   While Defendants have been in breach of their underlying lease as
 5               well as out of compliance with the County’s Minimum Standards,
 6               the actions and inactions of the County over the course of its
 7               dealings with Defendants, require this Court, under the
 8               circumstances presented, [to] exercise its equitable powers to
 9               fashion an appropriate remedy and provide the relief necessary to
10               protect the rights of all interested parties and the public.

11         58.   Equitable relief should be available under the facts of this
12               particular case to avoid oppression, a real hardship[,] and
13               unconscionable results to the Defendants and the general aviation
14               public that depend upon Defendants’ services; a forfeiture of
15               Defendants’ investment and services to the public would be
16               unconscionable given the prior history and course of dealing
17               between the parties.

18   {9}   Based upon these findings, the district court entered the following conclusions

19 of law:

20         2.    That Defendants are in default of their lease and are not in
21               compliance with the County’s amended Minimum Standards.

22         4.    That balancing the equities between the parties, it would be
23               inequitable to grant the County its request for unlawful detainer
24               and possession relief, or breach of contract.

25         5.    That Defendants shall continue operations at the airport however,
26               Defendants will have a period of thirty-six (36) months to bring
27               their operations into compliance with the County’s amended
28               Minimum Standards and lease obligations, including obtaining the
29               proper approvals.


                                              6
 1          6.    To the extent there are any arrearages in rental fees, gross receipts
 2                fees, or other lease-related fees, they shall be paid within thirty
 3                (30) days from the date of this Order.

 4          7.    There is no legal or equitable basis to require a general (gasoline)
 5                aviation commercial operator to sell jet fuel when neither its
 6                market or clients require such fuel, or to require additional space
 7                requirements unless related to safety; Defendants are equitably
 8                exempt from those requirements of the amended Minimum
 9                Standards.

10   {10}   The district court’s judgment incorporated by reference the findings of fact and

11 conclusions of law. Plaintiff filed a motion to amend the court’s findings and

12 conclusions and to amend the judgment accordingly, which was denied. This appeal

13 followed.

14 II.      DISCUSSION

15 A.       The District Court’s Use of Its Equitable Powers Was An Abuse of
16          Discretion

17 1.       Standard of Review

18   {11}   “The question of whether, on a particular set of facts, the district court is

19 permitted to exercise its equitable powers is a question of law, while the issue of how

20 the district court uses its equitable powers to provide an appropriate remedy is

21 reviewed only for abuse of discretion.” United Props. Ltd. v. Walgreen Props., Inc.,

22 2003-NMCA-140, ¶ 7, 134 N.M. 725, 82 P.3d 535. It is undisputed that the district

23 court exercised its equitable powers in this case. Accordingly we review the district


                                                7
 1 court’s judgment for an abuse of discretion. An abuse of discretion occurs when the

 2 ruling is clearly untenable, not justified by reason, or against the logic and effect of

 3 the facts and circumstances of the case. Kinder Morgan CO2 Co. v. State Taxation &

 4 Revenue Dep’t, 2009-NMCA-019, ¶ 9, 145 N.M. 579, 203 P.3d 110.

 5   {12}   To the extent this appeal requires us to interpret the Minimum Standards, our

 6 review is de novo. See United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-

 7 030, ¶ 7, 148 N.M. 426, 237 P.3d 728 (“The meaning of language used in a statute is

 8 a question of law that we review de novo.” (internal quotation marks and citation

 9 omitted)). “The principal objective in the judicial construction of statutes is to

10 determine and give effect to the intent of the [L]egislature.” Baker v. Hedstrom, 2012-

11 NMCA-073, ¶ 10, 284 P.3d 400, cert. granted, 2012-NMCERT-007, 295 P.3d 600

12 and aff’d on other grounds, 2013-NMSC-043, 309 P.3d 1047 (alteration in original)

13 (internal quotation marks and citation omitted). “In construing . . . ordinances . . . the

14 same rules of construction are used as when construing statutes of the [L]egislature[,]

15 and [c]ertainly, where the question is simply one of construction, the courts may pass

16 upon it as an issue solely of law.” City of Rio Rancho v. Logan, 2008-NMCA-011, ¶

17 7, 143 N.M. 281, 175 P.3d 949 (omission in original) (internal quotation marks and

18 citations omitted).




                                               8
 1 2.       Equitable Exemption From the Lease Provisions

 2   {13}   Defendant argues that the district court was within its discretion when it

 3 equitably exempted Defendants from full compliance with the Minimum Standards,

 4 which was required by Defendants’ lease. We disagree.

 5   {14}   Equity is defined as “[t]he body of principles constituting what is fair and

 6 right[.]” Black’s Law Dictionary 619 (9th ed. 2009). It can also mean a court’s

 7 “recourse to principles of justice to correct or supplement the law as applied to

 8 particular circumstances.” Id. District courts enjoy inherent equity jurisdiction. See

 9 Sims v. Sims, 1996-NMSC-078, ¶ 27, 122 N.M. 618, 930 P.2d 153 (“New Mexico

10 courts do not distinguish between actions brought at law or suits brought in equity.

11 Our district court rules expressly govern . . . all suits of a civil nature whether

12 cognizable as cases at law or in equity.” (omission in original) (internal quotation

13 marks and citations omitted)).

14   {15}   In applying equitable principles to contract disputes, courts should do so “in a

15 way which best limits judicial interference” with the contract. Davis & Assocs., Inc.

16 v. Midcon, Inc., 1999-NMCA-047, ¶ 16, 127 N.M. 134, 978 P.2d 341 (internal

17 quotation marks and citation omitted); see also United Props. Ltd., 2003-NMCA-140,

18 ¶ 19 (“Equity jurisdiction has never given the judiciary a roving commission to do

19 whatever it wishes in the name of fairness or public welfare.” (internal quotation


                                                9
 1 marks and citation omitted)). New Mexico law favors enforcing contracts as they are

 2 written. United Props. Ltd., 2003-NMCA-140, ¶ 12. By limiting the application of

 3 equitable doctrines to contract disputes and business dealings, we recognize a “broad

 4 public interest in protecting the right of private parties to be secure in the knowledge

 5 that their contracts will be enforced[.]” Id. ¶ 10. “Parties to a contract agree to be

 6 bound by its provisions and must accept the burdens of the contract along with the

 7 benefits. When a contract was freely entered into . . . the duty of the courts is

 8 ordinarily to enforce the terms of the contract which the parties made for themselves.”

 9 Id. “A court should . . . not interfere with the bargain reached by the parties unless the

10 court concludes that the policy favoring freedom of contract ought to give way to one

11 of the well-defined equitable exceptions, such as unconscionability, mistake, fraud,

12 or illegality.” Id. In short, “[i]n the absence of fraud, unconscionability, or other

13 grossly inequitable conduct, New Mexico courts do not have discretion either to

14 relieve parties to a commercial lease of their contractual obligations or to interfere

15 with contractual rights and remedies[.]” Id. ¶ 28 (interal quotation marks and citation

16 omitted).

17   {16}   In this case, the lease expressly required adherence to the Minimum Standards.

18 In the assignment of the lease to Defendants, Defendants assumed and covenanted to

19 perform all of the conditions and terms of the original lease. Defendants do not argue,


                                               10
 1 nor did the district court find the existence of unconscionability, mistake, fraud,

 2 illegality or other grossly inequitable conduct that would relieve Defendants of their

 3 contractual obligations under the lease. As such, the district court abused its discretion

 4 in exempting Defendants from full compliance with the lease requirements.

 5   {17}   We are unpersuaded by Defendants’ argument that the district court found

 6 unconscionability which justified its refusal to enforce all portions of the lease.

 7   {18}   Unconscionability, as an equitable defense, is “rooted in public policy” and

 8 “allows courts to render unenforceable . . . agreement[s] that [are] unreasonably

 9 favorable to one party while precluding a meaningful choice of the other party.”

10 Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 21, 146 N.M. 256, 208

11 P.3d 901. Unconscionability concerns the “legality and fairness of the contract terms

12 themselves[,]” as well as, “the particular factual circumstances surrounding the

13 formation of the contract, including the relative bargaining strength, sophistication of

14 the parties, and the extent to which either party felt free to accept or decline terms

15 demanded by the other.” Id. ¶¶ 22-23. “In determining reasonableness or fairness, the

16 primary concern must be with the terms of the contract considered in light of the

17 circumstances existing when the contract was made.” Guthmann v. La Vida Llena,

18 1985-NMSC-106, ¶ 23, 103 N.M. 506, 709 P.2d 675. While a contract may be void

19 due to unconscionable or oppressive terms, “the fact that some of the terms of the


                                               11
 1 agreement resulted in a hard bargain or subjected a party to exposure of substantial

 2 risk, does not render a contract unconscionable[.]” United Props. Ltd., 2003-NMCA-

 3 140, ¶ 10 (internal quotation marks and citation omitted).

 4   {19}   In the present case, Defendants have misconstrued the district court’s findings,

 5 which state in relevant part:

 6          Equitable relief should be available under the facts of this particular case
 7          to avoid oppression, a real hardship[,] and unconscionable results to the
 8          Defendants and the general aviation public that depend upon
 9          Defendants’ services; a forfeiture of Defendants’ investment and services
10          to the public would be unconscionable given the prior history and course
11          of dealing between the parties.

12 (emphasis added). In using the term “unconscionable” here, the district court focused

13 on the potential effects of enforcing the lease, not on the express lease terms or the

14 circumstances surrounding the formation of the contract. This does not amount to a

15 finding of unconscionability that would allow the district court to render portions of

16 the lease unenforceable.

17   {20}   We recognize that Plaintiff did not require the Airport’s commercial operators

18 to strictly comply with their leases for a number of years, that Defendants have made

19 substantial investments over the course of their lease, and that enforcement of the

20 lease now exposes Defendants to significant risk. Notwithstanding our empathy for

21 Defendants, the fact remains that they have not complied with the terms of their lease.

22 Nor have Defendants shown any of the well-defined equitable exceptions to contract

                                                12
 1 enforcement such as unconscionability, mistake, fraud, or illegality. Therefore, we

 2 conclude that the district court abused its discretion in equitably exempting

 3 Defendants from full compliance with the lease terms.

 4 3.       Equitable Exemption From the Minimum Standards Ordinance

 5   {21}   Because we have held that the district court abused its discretion in exempting

 6 Defendants from complying with the lease, and because the lease required Defendants

 7 to comply with the Minimum Standards, we need not address Plaintiff’s argument that

 8 the district court further abused its discretion in equitably exempting Defendants from

 9 complying with the Minimum Standards. However, the district court’s finding of fact

10 and conclusions of law are rather ambiguous on the issue. We therefore elect to clarify

11 that, to the extent the district court intended to sever the Minimum Standards from the

12 lease and declare them equitably inapplicable to Defendants, the district court abused

13 its discretion.

14   {22}   As a preliminary matter, we must determine whether the Minimum Standards

15 are mandatory, since a court’s ability to use its equitable powers to circumvent a

16 statute or ordinance depends on whether or not the specific provision of law is

17 mandatory. See Waters-Haskins v. N.M. Human Servs. Dep’t, 2009-NMSC-031, ¶ 17,

18 146 N.M. 391, 210 P.3d 817 (stating that equitable estoppel can only “bar those rights




                                              13
 1 or actions over which an agency has discretionary authority”). Here, the pertinent

 2 Minimum Standards provide:

 3          The [fixed base operator] must offer fuel for both reciprocal and turbine
 4          (100LL/AvGas and Jet A). . . . The principal buildings used by the [fixed
 5          base operator] shall be of sufficient size to adequately meet the
 6          requirements of the services being offered; however, a minimum of
 7          4,000 square feet must be allocated and utilized for crew/passenger
 8          lounge facilities, public restrooms, sales/rental administration, aircraft
 9          charter and flight instruction and training activities.

10 Doña Ana County, NM, Ordinance 241-09 (Mar. 13, 2009) (emphasis added). This

11 language in the ordinance creates a clear mandate. See State v. Lara, 2000-NMCA-

12 073, ¶ 7, 129 N.M. 391, 9 P.3d 74 (“The words ‘shall’ and ‘must’ generally indicate

13 that the provisions of a [law] are mandatory and not discretionary.” (internal quotation

14 marks and citation omitted)).

15   {23}   It is well established that equitable remedies are inapplicable when statutory

16 mandates are clear, and where the result would be contrary to the express statutory

17 provisions. See Coppler & Mannick, P.C. v. Wakeland, 2005-NMSC-022, ¶ 8, 138

18 N.M. 108, 117 P.3d 914 (“It is a basic maxim that equity is ancillary, not antagonistic,

19 to the law. Equitable relief is not available when the grant thereof would violate the

20 express provision of a statute. . . . [E]quity follows the law as declared by a statute.”

21 (internal quotation marks and citation omitted)); see also State of N.M. ex rel. Madrid

22 v. UU Bar Ranch Ltd. P’ship, 2005-NMCA-079, ¶ 30, 137 N.M. 719, 114 P.3d 399


                                               14
 1 (stating that “courts have refused to allow [equitable] estoppel . . . when the use of

 2 estoppel . . . contradicts a statute or would permit an act that is contrary to law”). It

 3 necessarily follows that equitable remedies are inapplicable when the mandates of

 4 ordinances are clear and where the result would be contrary to the provisions of the

 5 ordinance. See NMSA 1978, § 4-37-1 (1975) (granting counties the power to adopt

 6 ordinances); see also City of Albuquerque v. Ryon, 1987-NMSC-121, ¶ 6, 106 N.M.

 7 600, 747 P.2d 246 (recognizing ordinances as “[l]egislatively authorized rules and

 8 regulations [having] the force of law”).

 9   {24}   “[Equitable remedies are] rarely applied against the state or its governmental

10 entities, and only in exceptional circumstances where there is a shocking degree of

11 aggravated and overreaching conduct or where right and justice demand it.” Envtl.

12 Control, Inc. v. City of Santa Fe, 2002-NMCA-003, ¶ 22, 131 N.M. 450, 38 P.3d 891.

13 And even where such circumstances exist, the party raising estoppel must show the

14 result of estoppel would not be contrary to statutory requirements and must establish

15 the six essential elements of estoppel. Waters-Haskins, 2009-NMSC-031 ¶¶ 16-17,

16 22-23 (estopping the state only after first determining whether the state was acting in

17 its discretionary authority, the basic elements of estoppel were met, and right and

18 justice demanded it).




                                              15
 1   {25}   Courts may not exercise equitable powers to circumvent the law simply because

 2 enforcing the law may bring about unfair results. See Coppler, 2005-NMSC-022, ¶ 8

 3 (“Equity is not an all-purpose judicial tool by which the ‘right thing to do’ can be

 4 fashioned into a legal obligation possessing the legitimacy of legislative enactment.”

 5 (internal quotation marks and citation omitted)); see also Cont’l Potash, Inc. v.

 6 Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858 P.2d 66 (stating

 7 that “discretion [to apply equitable doctrines] is not a mental discretion to be exercised

 8 as one pleases, but is a legal discretion to be exercised in conformity with the law”).

 9   {26}   In this case, the Minimum Standards are mandatory and carry the weight of law.

10 The Minimum Standards govern commercial operations at the Airport, and as

11 commercial operators, Defendants must comply with them. Defendants have not

12 demonstrated, nor did the district court find the existence of any exceptional

13 circumstance showing a shocking degree of aggravated and overreaching conduct. The

14 district court’s exemption in this case is not in conformity with the law. It directly

15 circumvents the ordinance and cannot be justified by the court’s desire to avoid

16 potentially unfair results for Defendants. Accordingly, we conclude that the district

17 court abused its discretion in using its equitable powers to exempt Defendants from

18 full compliance with the Minimum Standards.

19 B.       Hypothetical or Theoretical Arguments Need Not Be Addressed on Appeal


                                               16
 1   {27}   Finally, Defendants argue that enforcement of the Minimum Standards as they

 2 are written could result in Blue Feather having an exclusive right to sell aviation fuel

 3 and conduct flight instruction at the airport. This, Defendants contend, would violate

 4 NMSA 1978 § 4-38-31 (1949) which prohibits a grant by the County of exclusive use

 5 of the airport to any “person, persons, firm, corporation[,] or association,” and would

 6 violate equal protection. There is nothing in the record suggesting that upon

 7 enforcement of the Minimum Standards, Blue Feather will be granted the exclusive

 8 right to sell aviation fuel and conduct flight instruction at the Airport. Defendants’

 9 argument is merely a hypothetical supposition of what might occur at some point in

10 the future. Therefore, we need not address this contention. See State ex rel. Stratton

11 v. Roswell Indep. Schs., 1991-NMCA-013, ¶ 44, 111 N.M. 495, 806 P.2d 1085

12 (requiring the question posed to the appellate court to be real and not theoretical).

13 CONCLUSION

14   {28}   For the reasons set forth above we reverse the district court’s judgment

15 exempting Defendants from full compliance with the lease and the Minimum

16 Standards incorporated therein, and we remand for proceedings consistent with this

17 opinion.

18   {29}   IT IS SO ORDERED.




                                              17
1                                        ______________________________
2                                        M. MONICA ZAMORA, Judge

3 WE CONCUR:


4 _______________________________
5 JAMES J. WECHSLER, Judge


6 _______________________________
7 CYNTHIA A. FRY, Judge




                                    18
