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

 2 ANDREA HAUFF,

 3          Plaintiff-Appellant,

 4 v.                                                                  No. A-1-CA-36202

 5   CITY OF ALBUQUERQUE, and THE
 6   ANIMAL HUMANE ASSOCIATION
 7   d/b/a ALBUQUERQUE ANIMAL
 8   CONTROL CENTER,

 9          Defendants-Appellees.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Denise Barela Shepherd, District Judge

12 Houston Ross
13 Albuquerque, NM

14 for Appellant

15 City of Albuquerque Office of the City Attorney
16 Jessica L. Nixon, Assistant City Attorney
17 Albuquerque, NM

18 for Appellees

19                                 MEMORANDUM OPINION

20 VANZI, Judge.
 1   {1}   Plaintiff Andrea Hauff sued the City of Albuquerque, doing business as the

 2 Animal Welfare Department (the Department) (collectively, Defendants), alleging

 3 that Defendants’ staff failed to inform her of the behavioral history of a cat

 4 Plaintiff adopted from the Department, which later bit Plaintiff, causing injuries

 5 requiring hospitalization. The district court granted Defendants’ motion to dismiss

 6 the complaint on the ground that Plaintiff failed to state a claim for which

 7 immunity had been waived under the New Mexico Tort Claims Act, NMSA 1978,

 8 Sections 41-4-1 through -27 (1976, as amended through 2015) (the NMTCA). We

 9 affirm.

10 BACKGROUND
11   {2}   In her complaint, Plaintiff made the following allegations.

12         6.    In February 2014 [P]laintiff adopted a cat from [the
13         Department]. It is believed that cat was ID 1588268 and named
14         Caspia.

15         7.     Plaintiff was looking to adopt a cat as a household pet for
16         herself and [her] young child.

17         8.     When she adopted Caspia . . . [P]laintiff [was] not advised that
18         the cat had any behavioral problems that would require special care or
19         handling. In fact, on the day after she adopted Caspia, [P]laintiff
20         received a call from the director of [the Department] assuring her that
21         Caspia was [a] good and gentle pet.

22         9.    However, on or about 2/20/14 as [P]laintiff tried to retrieve
23         Caspia from behind a couch at home, Caspia bit [P]laintiff on the
24         hands. The cat locked her jaws around one hand [and] would not let
25         go.



                                              2
 1        10. As a result of the bites[, P]laintiff spent several days in the
 2        hospital, had surgery, incurred about $18,000 in medical bills and may
 3        have permanent injuries to her hands.

 4        11. Upon returning Caspia to [the Department], Allison Briggs[,]
 5        the intake person she returned the cat to[,] asked “didn’t anybody tell
 6        you that this cat was in a behavioral class for very scared cats?”

 7 Plaintiff asserted that Defendants had a duty to disclose Caspia’s “known

 8 behavioral problems that . . . may have increased the likelihood that she would act

 9 dangerously and unpredictably[,]” and further alleged that

10        19. Defendants knew that Caspia had been in very scared cat
11        behavioral classes but failed to disclose that information to the
12        plaintiff at the time of adoption.

13        20. Defendants not only failed to disclose that Caspia had
14        behavioral problems at the time of adoption but called [P]laintiff the
15        day after praising Caspia as a good and gentle pet.

16        21. As a result of [D]efendants’ breach of duty[, P]laintiff suffered
17        damages in the form of medical bills, pain and suffering, emotional
18        distress, permanent injury and other damages as shall be shown at
19        trial.

20        22. The actions of [the Department] as set out in this complaint
21        were wanton, reckless or intentional and entitle plaintiff to an award
22        of punitive damages.

23 Plaintiff sought damages for Defendants’ alleged negligence, as well as a

24 declaratory judgment that the release she signed as part of the adoption was

25 unenforceable. Defendants answered the complaint and served discovery requests

26 on Plaintiff, to which Plaintiff responded. When Plaintiff failed to prosecute the

27 matter, including failing to conduct her own discovery, the district court dismissed


                                            3
 1 the complaint on its own motion. See Rule 1-041(E)(2) NMRA (“Unless a pretrial

 2 scheduling order has been entered pursuant to Rule 1-016 NMRA, the court on its

 3 own motion . . . may dismiss without prejudice the action . . . if the party filing the

 4 action or asserting the claim has failed to take any significant action . . . within the

 5 previous one hundred and eighty (180) days.”). Thereafter, the parties litigated

 6 Plaintiff’s motion to reinstate, which the district court eventually granted. Plaintiff

 7 filed a motion for a scheduling conference and issued interrogatories and a request

 8 for production to Defendants, to which they responded. A subsequent scheduling

 9 order set out deadlines for discovery and other matters. Rule 1-016(B) (addressing

10 scheduling orders).

11   {3}   Defendants then filed a motion for judgment on the pleadings, arguing that,

12 even if Plaintiff’s allegations are true, she failed to state a claim for which

13 immunity had been waived under the NMTCA. See Rule 1-012(C) NMRA

14 (providing that “[a]fter the pleadings are closed but within such time as not to

15 delay the trial, any party may move for judgment on the pleadings”). Plaintiff

16 responded to Defendants’ arguments, but did not request leave to amend the

17 complaint. After a hearing, the district court granted Defendants’ motion in a

18 written order. Plaintiff appeals.




                                              4
 1 DISCUSSION
 2   {4}   “We review judgments on the pleadings made pursuant to Rule 1-012(C) . . .

 3 according to the same standard as motions for failure to state a claim under Rule 1-

 4 012(B)(6)[.]” Vill. of Angel Fire v. Bd. of Cty. Comm’rs, 2010-NMCA-038, ¶ 5,

 5 148 N.M. 804, 242 P.3d 371. “A motion to dismiss for failure to state a claim . . .

 6 tests the legal sufficiency of the complaint[.]” Derringer v. State, 2003-NMCA-

 7 073, ¶ 5, 133 N.M. 721, 68 P.3d 961. “In reviewing a district court’s decision to

 8 dismiss for failure to state a claim, we accept all well-pleaded factual allegations in

 9 the complaint as true and resolve all doubts in favor of sufficiency of the

10 complaint.” Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d

11 917 (internal quotation marks and citation omitted). “Dismissal . . . is appropriate

12 only if the plaintiff is not entitled to recover under any theory of the facts alleged

13 in [her] complaint.” Id. ¶ 12 (first alteration, internal quotation marks, and citation

14 omitted). We review the district court’s Rule 1-012(C) ruling de novo. See id. ¶ 9.

15   {5}   Under the NMTCA, “[a] governmental entity and any public employee

16 while acting within the scope of duty are granted immunity from liability for any

17 tort except as waived by . . . Sections 41-4-5 through 41-4-12[.]” Section 41-4-

18 4(A). The waiver provision relied upon by Plaintiff herein, known as the “building

19 waiver,” waives immunity for “liability for damages resulting from bodily injury,

20 wrongful death[,] or property damage caused by the negligence of public



                                              5
 1 employees while acting within the scope of their duties in the operation or

 2 maintenance of any building[.]” Section 41-4-6(A). To fall within the ambit of

 3 Section 41-4-6(A), a claimant may allege either (1) the existence of some physical

 4 defect on the premises; or (2) the operation or maintenance of “a facility in such a

 5 way as to create an unsafe or dangerous condition on the property or in the

 6 immediate vicinity.” Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 5, 123 N.M.

 7 353, 940 P.2d 459. Plaintiff argues that her claim falls within the latter type of

 8 waiver. We disagree for two reasons.

 9   {6}   First, Plaintiff’s complaint does not allege any facts suggesting that

10 Defendants’ negligence created “a general condition of unreasonable risk” for

11 which the NMTCA waives immunity. Upton v. Clovis Mun. Sch. Dist., 2006-

12 NMSC-040, ¶ 20, 140 N.M. 205, 141 P.3d 1259 (internal quotation marks and

13 citation omitted); see Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶

14 13, 310 P.3d 611 (“There can be no waiver under Section 41-4-6(A) without a

15 dangerous condition on the premises, and a single act of student-on-student

16 violence does not render the premises unsafe.”). We explain.

17   {7}   In Archibeque v. Moya, our Supreme Court held that “Section 41-4-6 does

18 not waive immunity when public employees negligently perform . . .

19 administrative functions[,]” such as assignment of an inmate to the general

20 population within the prison. 1993-NMSC-079, ¶ 8, 116 N.M. 616, 866 P.2d 344;



                                            6
 1 see Upton, 2006-NMSC-040, ¶ 17 (stating that “the [NM]TCA does not waive

 2 immunity for a single, discrete administrative decision affecting only a single

 3 person, as opposed to a dangerous condition affecting the general public”). In

 4 Archibeque, the plaintiff told a prison intake officer that one of his enemies was

 5 housed in the prison. 1993-NMSC-079, ¶ 2. Without first checking an available

 6 printout of current inmates, the prison intake officer told the plaintiff that his

 7 enemy was no longer imprisoned at the penitentiary. Id. The officer then permitted

 8 the plaintiff to be released into the general prison population. Id. “That night, [the

 9 plaintiff] was assaulted by [his enemy] and several other inmates in the prison

10 weight room.” Id. The Court held that, while the prison intake officer’s

11 misclassification of the plaintiff put him at risk, the building waiver did not apply

12 because “the negligence did not create an unsafe condition on the prison premises

13 as to the general prison population.” Id. ¶ 11. Moreover, the Court said, the prison

14 intake officer was not “operating and maintaining the prison’s physical premises

15 when she negligently classified [the plaintiff] as an inmate that could be released

16 into the general prison population.” Id. ¶ 8. Instead, the officer was “performing an

17 administrative function associated with the operation of the corrections system.

18 Section 41-4-6 does not waive immunity when public employees negligently

19 perform such administrative functions.” Id. This Court subsequently distinguished

20 Archibeque in Callaway v. New Mexico Department of Corrections, a case in



                                             7
 1 which the plaintiff alleged that he had been injured by the defendants’ negligence

 2 “in allowing known, dangerous gang members to roam loose among the general

 3 prison population.” 1994-NMCA-049, ¶ 13, 117 N.M. 637, 875 P.2d 393. In

 4 Callaway, we held that the plaintiff’s allegations that the prison population as a

 5 whole was unsafe because of the defendants’ failure to properly manage the

 6 housing of known gang members were substantively different from those in

 7 Archibeque, where the plaintiff’s misclassification related to him alone and did not

 8 endanger the rest of the prison population. See id. ¶ 18.

 9   {8}   Here, Plaintiff alleges that Defendants’ employees negligently failed to

10 inform her of Caspia’s history in a program for “very scared” cats. Although

11 Plaintiff argues on appeal that Defendants could have failed to warn another

12 adopter, her complaint does not allege that Defendants failed to institute or follow

13 a policy to protect adopters from cats that have behavioral issues or that the

14 management of the “very scared cats” posed a danger to users of the Department’s

15 adoption facility in general. Hence, we conclude that, because Plaintiff’s

16 allegations involve a discrete administrative function, her complaint more closely

17 resembles the allegations in Archibeque than the factual scenario set forth in the

18 complaint in Callaway. For this reason, we hold that immunity under the NMTCA

19 has not been waived.




                                             8
 1   {9}   Second, the failure of Defendants’ employee to warn Plaintiff did not create

 2 an unsafe condition “on the property” operated and maintained by Defendants. See

 3 Leithead, 1997-NMCA-041, ¶ 5. Plaintiff points to Young v. Van Duyne in support

 4 of her argument that a failure to warn falls within the building waiver. 2004-

 5 NMCA-074, ¶ 5, 135 N.M. 695, 92 P.3d 1269. However, Young does not support

 6 Plaintiff’s position. In that case, although the allegations concerned the Children,

 7 Youth and Families Department’s (CYFD) failure to warn the plaintiff of the

 8 dangerous potential of a child placed in foster care, the critical issue was whether

 9 CYFD “operated” the building where the dangerous condition occurred, namely

10 the foster home. Id. ¶¶ 19-23. The Young Court distinguished between the failure

11 to warn before the child was placed in the foster home, which was arguably

12 “operated” by CYFD, and the failure to warn after the child was adopted, when

13 CYFD’s obligations to oversee the home were minimal, if not nonexistent. Id. ¶¶

14 25-30. This Court held that the plaintiff “must be permitted to proceed on the

15 merits of his claim that CYFD operated the Youngs’ foster home within the

16 meaning of the Section 41-4-6 immunity waiver.” Id. ¶ 23 (emphasis added).

17 However, as to the plaintiff’s claims related to CYFD’s failure to disclose after the

18 child was adopted, we said, “We . . . have before us no statute or regulation that

19 creates any duty or responsibility of CYFD and its employees, after an adoption is

20 finalized, with respect to supervision, oversight, operation, or maintenance of the



                                             9
 1 home into which a child is placed for adoption, after an adoption becomes final.”

 2 Id. ¶ 27. We then concluded that there was “no reasonable basis . . . to broaden the

 3 waiver in Section 41-4-6[(A)] to apply to the post-adoption knowledge and

 4 negligent failure to disclose” where the plaintiff adduced no statute or regulation,

 5 nor alleged any facts, to “support his position that . . . CYFD was operating the

 6 home.” Id. ¶ 30.

 7   {10}   This Court subsequently relied on Young for the proposition that “the

 8 building waiver may apply when an agency undertakes to provide housing for

 9 clients when permitted or required to do so under specific statutory authority.”

10 Quevedo v. New Mexico Children, Youth & Families Dep’t, 2016-NMCA-101, ¶

11 13, 385 P.3d 657. In Quevedo, we held that, where a series of statutes and

12 regulations imposed on CYFD “an obligation to house children in its care in homes

13 or facilities that meet certain minimum health and safety standards[,]” these

14 obligations may create “a relationship between CYFD, the homes or facilities in

15 which children are placed, and the children[,]” and “the waiver of immunity in

16 Section 41-4-6(A) permits suit against CYFD when such a relationship exists.” Id.

17 ¶ 17 (emphasis added).

18   {11}   In this case, Plaintiff’s complaint does not allege any facts demonstrating

19 that Defendants operated or maintained her home, i.e., that Defendants’ failure to

20 warn her of Crespia’s history created a dangerous condition in a building operated



                                             10
 1 or maintained by Defendants. Consequently, under Young, the waiver of immunity

 2 pursuant to Section 41-4-6(A) does not apply to these facts. See 2004-NMCA-074,

 3 ¶ 30 (holding that the plaintiff’s allegations of negligent failure to disclose did not

 4 fall within Section 41-4-6(A) where CYFD did not operate or maintain the

 5 adoptive home); see also Archibeque, 1993-NMSC-079, ¶ 8 (“The purpose of

 6 Section 41-4-6[(A)] is to ensure the general public’s safety by requiring public

 7 employees to exercise reasonable care in maintaining and operating the physical

 8 premises owned and operated by the government.”).

 9   {12}   In her final argument, Plaintiff contends that the allegations in her complaint

10 “are sufficient to allow [her] to proceed in the case to discover if [Defendants] had

11 safety policies that were designed to prevent dangerous cats from being placed for

12 adoption[,]” if those policies were violated, and, if no policies were in place,

13 whether the “failure to have such policies in place contribute[d] to the danger

14 [posed to Plaintiff] and other[s] who went to Animal Control while the cat was up

15 for adoption[.]” In essence, Plaintiff maintains that she may be able to amend her

16 complaint to allege facts to bring her claim within the building waiver if she is

17 permitted to conduct additional discovery. This argument is unavailing.

18   {13}   To begin with, Plaintiff failed to seek discovery on these matters or to raise

19 this issue in the district court. In fact, although she sought discovery through

20 interrogatories and requests for production in August 2016, she admitted at the



                                              11
 1 hearing on Defendants’ motion that she “didn’t specifically allege that

 2 [Defendants] violated a particular policy, because [she] wasn’t aware of what their

 3 policies were.” In addition, Plaintiff failed to seek the district court’s leave to

 4 amend her complaint even after she knew that Defendants were arguing that they

 5 are immune under the NMTCA. See Rule 1-015(A) NMRA (“[A] party may

 6 amend its pleading only by leave of court [after a responsive pleading has been

 7 filed] and leave shall be freely given when justice requires.”). Plaintiff also failed

 8 to alert the district court that she required additional discovery in order to respond

 9 to Defendants’ motion. Cf. Richey v. Hammond Conservancy Dist., 2015-NMCA-

10 043, ¶ 5, 346 P.3d 1183 (noting that the “[p]laintiff moved to stay [the d]efendant’s

11 Rule 1-012(B)(6) motion pending discovery”). Indeed, after the hearing on the

12 motion to dismiss, Plaintiff joined Defendants in a motion to vacate the trial

13 setting, stating, “further discovery, and the costs thereof, [has been] deferred in

14 anticipation of [the district c]ourt’s ruling on . . . Defendants’ Motion to Dismiss

15 Pursuant to the [NMTCA].”

16   {14}   Moreover, “[a]mendments [that] alter or change the theory of a case [from

17 that     presented   to   the   district   court]   are   not   permitted   on   appeal.”

18 Houston v. Young, 1980-NMSC-053, ¶ 7, 94 N.M. 308, 610 P.2d 195. In Houston,

19 our Supreme Court held that the plaintiff would not be permitted to amend her

20 complaint on appeal where “[t]he record show[ed] no motion to amend was made



                                                12
 1 by [the] plaintiff at the [district] court level” because “[t]he right to amend

 2 terminates upon entry of a final order or judgment.” Id. Similarly, because Plaintiff

 3 failed to raise the issue before the district court and the right to amend terminated

 4 on entry of the district court’s order, we decline to address this contention further.

 5 CONCLUSION
 6   {15}   We conclude that the allegations in Plaintiff’s complaint do not state a claim

 7 falling within the waiver of immunity in Section 41-4-6(A). Therefore, we affirm

 8 the district court’s order dismissing Plaintiff’s complaint.

 9   {16}   IT IS SO ORDERED.

10                                                 ______________________________
11                                                 LINDA M. VANZI, Judge

12 WE CONCUR:


13 _______________________________
14 JENNIFER L. ATTREP, Judge


15 _______________________________
16 JACQUELINE R. MEDINA, Judge




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