T or C’s motion to dismiss Hot Springs Land Development case is denied

by Kathleen Sloan | June 21, 2021
5 min read

Seventh Judicial District Court Judge Shannon Murdock recently denied the City of Truth or Consequences’s motion to dismiss a case Hot Springs Land Development brought against the city in 2013.  

Judge Shannon Murdock
Judge Shannon Murdock sided with HSLD’s argument that its out-of-court actions and negotiations counted as evidence of its good-faith efforts to resolve the land dispute with the city. Source: New Mexico Courts

The original court case—a complaint for damages that was filed in federal court—alleged the city had not delivered on several promises to HSLD, particularly those concerning the provision of water and sewer services to land purchased by the development company near the municipal airport about 2008.

The two parties came to a settlement agreement in 2014 that has yet to be executed. The agreement stated the city will de-annex HSLD’s nearly 7,400 acres. A New Mexico limited liability company, HSLD had proposed to build a motor racetrack, a resort hotel and convention center, a retail area, an industrial park and 4,000 residences, among other amenities, on the property.

The de-annexation has not occurred because there is no state law that allows for de-annexation of land once it has been annexed by a municipality. HSLD pushed to have such enabling legislation adopted during the 2019 legislative session, with no success. Another stipulation of the settlement is that the city will return $100,000 of the $200,000 HSLD paid for water and sewer capacity—but only after de-annexation takes place.

The federal court assigned the local district court the job of overseeing the resolution of the settlement agreement. The case has been on the Seventh Judicial District Court’s docket since 2014.

The hearing on the motion to dismiss took place on June 9.

Representing the City of Truth or Consequences, Attorney James Sullivan of Brennan & Sullivan of Santa Fe, argued that the district court could dismiss the case under court rule 1-041 (E) (1), which states:

“Any party may move to dismiss the action, or any counterclaim, cross-claim or third-part claim with prejudiced if the party asserting the claim has failed to take any significant action to bring such claim to trial or other final disposition within two years from the filing of such action or claim.”

Sullivan argued before Murdock that HSLD had filed no motions in court nor made any discovery requests in the last two years.

“Instead,” the city’s attorney stated, “they have sought to obtain their objectives through political, legislative, or administrative means.”

HSLD argued that its out-of-court efforts counted toward achieving a final settlement and showed correspondence and other records.

Judge Murdock denied the city’s motion to dismiss on June 17. Citing case law, Murdock sided with HSLD’s reasoning that its out-of-court actions and negotiations counted as good-faith efforts to arrive at a final settlement, as required by the federal court’s settlement order.

THE DEVELOPMENT COMPANY’S OUT-OF-COURT ACTIONS

In October 2019 HSLD petitioned the New Mexico Municipal Boundary Commission to de-annex its acreage from T or C, allowing the property to once again become unincorporated Sierra County land. The commission informed HSLD it didn’t have the jurisdiction to take such action.

Also in October 2019, HSLD asked the New Mexico Department of Finance and Administration’s Local Government Division to give an opinion on HSLD’s petition to the Boundary Commission, but division officials said they, too, lacked authority to do so.

In November 2019, HSLD sent a draft ordinance to the Truth or Consequences City Commission and then City Manager Morris Madrid, reasoning that if the city could annex its land by ordinance, it could de-annex it by ordinance. Madrid acknowledged receipt of the ordinance in January 2020, but ongoing communications between HSLD consultant Greg Neal and Madrid resulted in no action—the item was never put on a city commission’s agenda.

In May 2020 Neal submitted a “mutual non-interference and severance agreement” for the city’s consideration. It stated the city would not block HSLD from developing its land, would pay the $100,000, and both parties would sign “mutually binding statements for cessation of active or pending litigation.”

At the end of May 2020, Madrid shared City Attorney John Appel’s opinion of the severance agreement with Neal. Appel is with Coppler Law Firm of Santa Fe.

“This agreement contains at least a kernel of a possible settlement,” Appel stated, “under which the parties would agree that the City will not provide ‘utilities’ to the HSLD lands, and would agree to refund HSLD its $100,000 pre-paid utility impact fee upon entering into the settlement agreement and getting a suitable release related to the pending litigation.”

The city took no action on the severance agreement, and Neal re-sent it in September 2020. According to court documents, Madrid informed Neal about a week later that he “did not have confidence in the new commission overall that they will make a decision.”

Neal was told (by whom was not disclosed in court documents) that the T or C City Commission would discuss the de-annexation ordinance and the severance agreement at its January 2021 meeting in closed session.

In April, the city filed its motion to dismiss.

HSLD Attorney Suzanne Odom of Montgomery & Andrews of Santa Fe stated in her written argument opposing the dismissal of the case:

“With the benefit of hindsight, it appears that the City intentionally drew out negotiations and misled Plaintiffs into believing that a resolution could be achieved until two years had elapsed . . . so that it would be in a position to file its present motion. This ruse contravenes not only the good-faith and timeliness provisions set forth in the Settlement Agreement Order, but also precludes the grant of Rule 1-041(E)(1) motion.”

The Sun asked the T or C city commissioners, City Attorney Jaime (Jay) Rubin and City Manager Bruce Swingle to comment on the denial of the motion to dismiss. Swingle responded via email on June 18:

“The city wants to put this decade long litigation behind us, so that both parties can move forward. The city commission has not had an opportunity to discuss Judge Murdock’s recent decision to deny the city’s motion to dismiss. If deemed appropriate, the commission could discuss the matter at their July 14th meeting. At this juncture, the city has not considered an ordinance allowing de-annexation. With respect to your question concerning [HSLD] infrastructure, all available and appropriate options will be considered for the best interest of the community.”  

HSLD consultant Greg Neal did not respond to a request for comment.

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Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at kathleen.sloan@gmail.com or 575-297-4146.
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HAVE YOU SEEN?

Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.

H.E.L.P.

This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.

1 thought on “T or C’s motion to dismiss Hot Springs Land Development case is denied”

  1. Susan Christie

    This has been going on since we moved here 15 years ago. Quite interesting that this has taken such a long while to resolve. I am sure that others have stories to tell about this entire matter. Maybe some will share here with their direct experience.

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