                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       April 12, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
MICHAEL D. RAYMOND, individually
and through his guardian and
conservator, Kathryn J. Raymond;
KATHRYN J. RAYMOND, individually
and as wife of Michael D. Raymond;
PATRICIA A. RAYMOND, daughter of
Kathryn and Michael; JENNIFER L.
HOLMES, individually as an American
with a disability,

             Plaintiffs-Appellees,

v.                                                       No. 12-2000
                                             (D.C. No. 1:09-CV-00177-ACT-RHS)
JOE MARTINEZ, individually and as an                       (D. N.M)
agent and employee of Defendant City of
Albuquerque,

             Defendant-Appellant,

and,

CITY OF ALBUQUERQUE,
a municipality; BRYAN NEAL,
individually and as an agent and
employee of Defendant City of
Albuquerque,

             Defendants.


                           ORDER AND JUDGMENT*

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
                                                                           (continued)
Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.


      Defendant Joe Martinez appeals from the district court’s denial of his post-trial

motion for judgment as a matter of law (JMOL) on Jennifer L. Holmes’s claim of

malicious abuse of process. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

I.    BACKGROUND

      Mr. Martinez is an inspector with the Criminal Nuisance Abatement Unit of

the Albuquerque, New Mexico police department (APD). In 2004, he investigated

conditions on the residential property of plaintiffs Michael and Kathryn Raymond

(the Raymonds).1 Mr. Raymond allegedly performed car repairs and stored a number

of vehicles and parts on his property in violation of various Albuquerque (the City)

codes. Ultimately, the City and the Raymonds entered into a stipulated settlement

agreement approved by a state-court judge ordering the Raymonds to stop performing

automobile repairs other than on their own family cars and limiting any such repairs




precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      The Raymonds’ daughter, Patricia, was also a plaintiff in this action, but she
voluntarily dismissed her claims during trial.


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to maintenance and minor repairs confined to their closed garage. The agreement

also required the City to give notice before any future inspections of the property.

      On January 30, 2007, Mr. Martinez and defendant Bryan Neal, an APD

detective, went to the Raymonds’ property to investigate complaints that

Mr. Raymond was again storing vehicles and repairing them on the property. Neither

Mr. Martinez nor Detective Neal entered the property. As Mr. Martinez was taking

photographs, Mr. Raymond backed a car out of his driveway, allegedly asked

Detective Neal if they were “going to go through this shit again,” Aplt. App., Vol. IV

at 683, then sped off, leaving lengthy skid marks and a cloud of smoke.

Mr. Raymond circled the block and, upon returning, allegedly drove toward

Mr. Martinez in excess of the 25-mph speed limit, swerving away at the last minute.

Detective Neal then arrested and handcuffed Mr. Raymond, allegedly breaking

Mr. Raymond’s fingers in the process. Mr. Raymond was charged with reckless

driving and eluding, evading, or obstructing an officer. Ultimately, he was found

incompetent with regard to the charges.

      On February 1, 2007, Mr. Martinez obtained an Inspection Order and

Administrative Search Warrant for the entire Raymond premises. Although the

Raymonds’ house was a single-family residence with one physical address and one

legal property description, it included an attached mother-in-law apartment where




                                          -3-
Ms. Holmes, who is disabled by bipolar disorder, lived as a Section 8 resident.2

Neither Ms. Holmes nor her separate apartment were identified in the warrant

application or the warrant. When Mr. Martinez and at least eight or nine APD

officers executed the warrant, only Ms. Holmes was at home. Officers used a

battering ram on the Raymonds’ front door and also entered Ms. Holmes’s apartment.

Ms. Holmes was told to stand outside, which she did. She was outside for fifteen to

thirty minutes without proper clothing for the cold temperature before being given a

blanket and shoes.

      Mr. Martinez identified a number of code violations inside both the

Raymonds’ residence and Ms. Holmes’s apartment, including improper storage,

fire-code violations, and a gas leak in the Raymonds’ commercial stove. Outside,

Mr. Martinez documented twenty-six vehicles, twenty of which he deemed

inoperable, some apparently in the process of being repaired or dismantled. He also

found auto parts, repair equipment, and improperly stored automotive fluids. Based

on the code violations, all residents were ordered to vacate the premises by 9:00 p.m.

that day, and they remained displaced for five nights until the Raymonds filed an

appeal. Meanwhile, the state district court issued the Raymonds an order to appear

and show cause why they should not be held in contempt of the 2004 settlement

agreement. But before appearing, the Raymonds entered into a stipulated permanent


2
       “Section 8” refers to the federal rental-housing-assistance program for those
with low income.


                                         -4-
injunction that required them to remove all parts and cars other than their personal

vehicles; limited any repair work to maintenance and minor repairs of their own

personal vehicles confined to their closed garage; and prohibited them from working

on other peoples’ cars, storing cars other than their own personal vehicles, or storing

parts other than those used on their personal vehicles. The Raymonds apparently also

addressed the interior code violations.

      Plaintiffs then brought this action, and the case proceeded to a jury trial.

Three claims survived defendants’ trial motions for judgment as a matter of law and

were submitted to the jury: Mr. Raymond’s Fourth Amendment claims of excessive

force and wrongful arrest, and a state-law malicious-abuse-of-process claim brought

by the Raymonds and Ms. Holmes. The jury found in favor of defendants on

Mr. Raymond’s claims but in favor of Mrs. Raymond and Ms. Holmes on their

malicious-abuse-of-process claim. The jury awarded $3,100 in damages to

Mrs. Raymond and $100,000 in damages to Ms. Holmes. Mr. Martinez and the City

moved again for JMOL under Fed. R. Civ. P. 50(b) as to both Mrs. Raymond and

Ms. Holmes. The district court granted the motion as to Mrs. Raymond but denied it

as to Ms. Holmes. This appeal followed.

II.   DISCUSSION

      “We review the district court's denial of a Rule 50(b) motion for judgment as a

matter of law de novo, applying the same legal standard as the district court.”

Hardeman v. City of Albuquerque, 377 F.3d 1106, 1112 (10th Cir. 2004) (internal


                                          -5-
quotation marks omitted). “In reviewing the district court’s refusal to grant JMOL,

this court draws all reasonable inferences in favor of the nonmoving party.” Id.

(brackets and internal quotation marks omitted). “The district court’s refusal to grant

JMOL will only be reversed if the evidence points but one way and is susceptible to

no reasonable inferences supporting the party opposing the motion.” Id. (internal

quotation marks omitted). “Judgment as a matter of law is only appropriate if, after

reviewing all of the evidence in the record, there is no legally sufficient evidentiary

basis for a claim under the controlling law.” Hysten v. Burlington N. Santa Fe Rwy.

Co., 530 F.3d 1260, 1269 (10th Cir. 2008).

       Although “federal law controls the ultimate, procedural question whether

JMOL is appropriate,” the substantive law of the forum state, here New Mexico,

governs the analysis of the state-law claim of malicious abuse of process. Wagner v.

Live Nation Motor Sports, Inc., 586 F.3d 1237, 1244 (10th Cir. 2009) (brackets

omitted). Under New Mexico law, which construes “the tort of malicious abuse of

process . . . narrowly in order to protect the right of access to the courts,” the claim

has three elements: “(1) the use of process in a judicial proceeding that would be

improper in the regular prosecution or defense of a claim or charge; (2) a primary

motive in the use of process to accomplish an illegitimate end; and (3) damages.”

Durham v. Guest, 204 P.3d 19, 26 (N.M. 2009). “An improper use of process may be

shown by (1) filing a complaint without probable cause, or (2) an irregularity or

impropriety suggesting extortion, delay, or harassment, or other conduct formerly


                                           -6-
actionable under the tort of abuse of process.” Id. (brackets and internal quotation

marks omitted). “A use of process is deemed to be irregular or improper if it

(1) involves a procedural irregularity or a misuse of procedural devices such as

discovery, subpoenas, and attachments, or (2) indicates the wrongful use of

proceedings, such as an extortion attempt.” Id.

      As to the second element, “[t]here must be a purpose to accomplish an

illegitimate end.” DeVaney v. Thriftway Mktg. Corp., 953 P.2d 277, 287

(N.M. 1997), overruled on other grounds by Durham, 204 P.3d at 26; abrogated on

other grounds by Fleetwood Retail Corp. of N.M. v. LeDoux, 164 P.3d 31, 39-40

(N.M. 2007). Examples of an improper purpose include when a claim is pursued

“primarily in order to deprive another of the beneficial use of his or her property in a

manner unrelated to the merits of the claim” or “primarily for the purposes of

harassment or delay.” Id. An “an overt misuse of process, such as a lack of probable

cause, or an excessive attachment, may support an inference of an improper

purpose,” but “[t]he degree to which process has been misused will determine the

strength of the permissible inference of an improper motive.” Id. at 287-88.

      In ruling on the JMOL motion, the district court reasoned that Mrs. Raymond

failed to meet the first element of her claim because probable cause existed for

Mr. Martinez to search the Raymonds’ house for code violations. But in denying the

motion as to Ms. Holmes, the court explained that her claim was subject to a different

analysis. The court observed that even though Mr. Martinez knew Ms. Holmes lived


                                          -7-
in the separate Section 8 apartment, she was not named in the application for the

warrant, there were no allegations in the application of any code violations on her

behalf, and her name did not appear on the warrant. Thus, the court concluded that

there was sufficient evidence for the jury to find that the omission of Ms. Holmes’s

name from the warrant application was an irregularity or impropriety satisfying the

first element of her claim.

      Regarding the second element, the district court concluded that there was

sufficient evidence for a jury to find that Mr. Martinez obtained the warrant knowing

it was illegitimate as to Ms. Holmes and that “Defendants were so intent on evicting

the Raymonds that they completely disregarded Ms. Holmes.” Aplt. App., Vol. I

at 120. The court further explained that the jury could construe the failure to disclose

Ms. Holmes’s independent living arrangement in the warrant application as indicative

of a malicious purpose, namely, “to deprive her of her property in a manner unrelated

to the merits of the claims in the warrant, acting with ill will and with the intent to

accomplish an illegitimate end.” Id.

      Finally, the court concluded that Ms. Holmes’s testimony showed that she

sustained damages, satisfying the third element of her claim.

      Mr. Martinez has taken issue only with the district court’s analysis of the first

and second elements of Ms. Holmes’s claim. We easily agree with the district court

as to the first element. Mr. Martinez admitted at trial that, because of his 2004

investigation, he knew Ms. Holmes was “a non-family member” and living in the


                                           -8-
Raymonds’ house. Id., Vol. V at 803. He also stated that he wanted to ensure that

the entire premises was safe, in part because Ms. Holmes lived there. Id. From this

the jury could reasonably find that Mr. Martinez’s failure to include Ms. Holmes’s

name and living situation in his application for a warrant was “a procedural

irregularity or a misuse of [a] procedural device[.]” Durham, 204 P.3d at 26. We

further conclude that the jury could have reasonably determined that Mr. Martinez

lacked probable cause as to Ms. Holmes’s apartment because there was nothing in

particular about the observed external conditions, which were the basis for his

investigation on January 30, that suggested interior code violations in Ms. Holmes’s

apartment. As the district court pointed out, Mr. Martinez’s warrant application did

not allege any violations in her apartment.

      As to the second element, we conclude that the evidence does not point only in

favor of Mr. Martinez and that there are reasonable inferences supporting

Ms. Holmes. See Hardeman, 377 F.3d at 1112. The jury could have reasonably

inferred an improper purpose from the overt and egregious misuse of process that

occurred here—the omission of Ms. Holmes’s apartment from the warrant application

and warrant. See DeVaney, 953 P.2d at 287-78. The jury could have determined that

Mr. Martinez’s request to search the entire Raymond premises without identifying

Ms. Holmes’s apartment, which he knew to be a separate residence, was primarily an

effort to accomplish an illegitimate end—omitting Ms. Holmes’s name from the

application made it easier to obtain the warrant for the entire premises even though


                                         -9-
nothing in the exterior conditions suggested a code violation in the apartment. This

in turn increased the odds of evicting the Raymonds for an interior code violation.

The jury could have reasonably concluded that the intent to evict the Raymonds was

primarily motivated by Mr. Raymond’s aborted attempt to run Mr. Martinez down

two days earlier rather than by the complaints about outdoor automotive activities

that gave rise to the January 30 investigation. And the jury also could have decided

that Mr. Martinez’s motive extended to evicting or harassing the Raymonds’ tenant,

Ms. Holmes. Lending credence to a retaliation theory was conflicting testimony

whether there was a gas leak in the Raymond’s commercial stove (also a cause for

eviction) or whether those executing the warrant blew out the pilot light to conjure up

a gas leak. In addition, the jury could have found that Mr. Martinez obtained the

warrant in lieu of giving the Raymonds the pre-inspection notice required by the

2004 settlement agreement and that this was an illegitimate purpose that affected

Ms. Holmes as well as the Raymonds.

      Although the evidence does not necessarily compel such lines of thought, it is

sufficient to support them, which is all that is required to uphold a jury verdict.

See Hardeman, 377 F.3d at 1112. Mr. Martinez’s arguments do not persuade us

otherwise. He complains that there was no process to abuse vis-à-vis Ms. Holmes

because she was not named in the warrant. But the lack of process is precisely the

point, and as we have discussed, there was sufficient evidence to support a finding

that the omission of Ms. Holmes was an irregularity in the process Mr. Martinez used


                                          - 10 -
to enter and inspect her apartment. Mr. Martinez also argues that (1) the district

court erred in not concluding that Mr. Martinez was merely negligent in omitting

Ms. Holmes’s name from the warrant application and (2) Ms. Holmes could not

prevail on her claim of malicious abuse of process because the Raymonds did not

prevail on theirs. But he did not present these theories to the district court in his

post-trial JMOL motion, and we see no reason to overlook this failure to preserve the

issue for our review. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721

(10th Cir. 1993) (reiterating long-standing rule “that a party may not lose in the

district court on one theory of the case, and then prevail on appeal on a different

theory”).3

      The judgment of the district court is affirmed.


                                                   Entered for the Court


                                                   Monroe G. McKay
                                                   Circuit Judge




3
       Mr. Martinez did mention negligence in his JMOL motion, but only to state
that plaintiffs’ counsel suggested during trial that negligence was a cause of action,
and to argue that New Mexico had not waived its sovereign immunity for negligence
claims. See Aplt. App., Vol. I at 69.


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