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

 2 HOMER SAENZ,

 3          Plaintiff-Appellant,

 4 v.                                                                            NO. 32,989

 5 CITY OF CARLSBAD,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Raymond L. Romero, District Judge

 9 William N. Weiss
10 Carlsbad, NM

11 for Appellant

12 City of Carlsbad
13 Eileen Riordan, City Attorney
14 Carlsbad, NM

15 for Appellee



16                                 MEMORANDUM OPINION

17 GARCIA, Judge.
 1   {1}         Plaintiff appeals from the district court’s order of summary judgment

 2 entered in favor of the City of Carlsbad (the City) on grounds that sovereign immunity

 3 was not waived for Plaintiff’s claims. We issued a notice of proposed summary

 4 disposition, proposing to affirm. Plaintiff has filed a response to our notice. We are

 5 not persuaded that district court erred, and affirm.

 6   {2}   On appeal, Plaintiff contends that the City had jurisdiction over the road, on

 7 which Plaintiff was injured, for purposes of establishing liability for breach of the duty

 8 to maintain the road under the Tort Claims Act, NMSA 1978, Section 41-4-11(A)

 9 (1991). [MIO 4, 10-15] At the heart of Plaintiff’s contentions is his assertion that the

10 City had jurisdiction over the road in question, the National Parks Highway (NPH),

11 and its sidewalks, because it was within the city limits and the City exercised control

12 over it. [Id.] Our notice proposed to hold that there was no material fact dispute that

13 the New Mexico Department of Transportation (NMDOT) owned the NPH and its

14 sidewalks, not the City, and that without an arrangement with the NMDOT for the

15 road’s maintenance, the City had no duty to maintain it. Our notice construed

16 Plaintiff’s arguments to be substantially similar to those rejected by this Court in

17 Bierner v. City of Truth or Consequences, 2004-NMCA-093, ¶¶ 16-20, 136 N.M. 197,

18 96 P.3d 322. Plaintiff’s response to our notice does not examine Bierner or explain

19 why our reliance on it was inappropriate. Instead, Plaintiff sets forth examples of how


                                               2
 1 the City exercised control over the NPH, which Plaintiff characterizes as “exercis[ing]

 2 exclusive jurisdiction” over the road. [MIO 11-14] Plaintiff relies mostly on

 3 Rutherford v. Chaves Cnty., 2002-NMCA-059, ¶ 12, 132 N.M. 289, 47 P.3d 448, in

 4 its discussion of the City’s jurisdiction. [MIO 11-15]

 5   {3}   We are not persuaded that Rutherford supports Plaintiff’s understanding of the

 6 term jurisdiction as it is used in the context of the duty to maintain a road. As the

 7 Bierner Court pointed out, “in Rutherford, the parties did not dispute that the

 8 government entity being sued was responsible for maintaining the road in question.”

 9 Bierner, 2004-NMCA-093, ¶ 19, (citing Rutherford, 2002-NMCA-059, ¶ 12). The

10 analysis in Rutherford involved what acts or omissions of the county constituted

11 maintenance. See Rutherford, 2002-NMCA-059, ¶ 15. In Bierner, this Court

12 specifically held that a city had no duty to maintain a road, as contemplated under the

13 waiver of immunity in the statute, that was owned by the Highway Department. 2004-

14 NMCA-093, ¶¶ 16-20. Jurisdiction over the road, to the extent the term has meaning

15 in this context, is linked to ownership and responsibility to maintain. See id. ¶¶ 11-20.

16 As in Bierner, Plaintiff asks us to “impose on another government entity a duty to

17 maintain a road it did not own[.]” Id. ¶ 19. As we did in Bierner, we decline to impose

18 such a duty in this case also. See id.




                                               3
1   {4}   For the reasons stated in this Opinion and in our notice, we affirm the district

2 court’s order of summary judgment in favor of the City.



3   {5}   IT IS SO ORDERED.



4
5                                          TIMOTHY L. GARCIA, Judge




6 WE CONCUR:



7
8 JAMES J. WECHSLER, Judge



 9
10 M. MONICA ZAMORA, Judge




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