Yurcic v. City of Gallup

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:59:01 2013.03.13

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-039

Filing Date: January 24, 2013

Docket No. 30,786

SUSAN YURCIC,

Plaintiff-Appellant,

v.

CITY OF GALLUP,
GALLUP FLYING SERVICE, and
MOLZEN-CORBIN & ASSOCIATES, P.A.

Defendants-Appellees,

and

JOHN DOE CONTRACTOR,

Defendant.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Grant L. Foutz, District Judge

Kelley Law Offices
Cody K. Kelley
Charlotte L. Itoh
Albuquerque, NM

for Appellant

Mason & Isaacson, P.A.
Lynn Isaacson
Gallup, NM

for Appellee City of Gallup

Keleher & McLeod, P.A.
Charles A. Pharris

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Cassandra R. Malone
Albuquerque, NM

for Appellee Gallup Flying Service

Montgomery & Andrews, P.A.
Kevin M. Sexton
Jaime R. Kennedy
Albuquerque, NM

for Appellee Molzen-Corbin & Associates, P.A.

OPINION

HANISEE, Judge.

{1} Susan Yurcic (Plaintiff) appeals the district court’s grant of summary judgment based
upon the statutes of limitations applicable to her lawsuit for damages caused by a flood
retention pond located adjacent to her building. Plaintiff argues that disputed material facts
exist as to when Plaintiff knew or should have known about the injuries to her property and
existence of her claims against Defendants. Alternatively, Plaintiff argues that her property
incurred separate injuries, and each new injury had its own discovery date and period of
limitation. For reasons explained below, we affirm in part, reverse in part, and remand to
the district court.

I. BACKGROUND

{2} Plaintiff and Johnna Yurcic (a former plaintiff in this case and Plaintiff’s late
husband, who died during the pendency of this case) owned property with a building located
next to the Gallup airport. In 1998, a retention pond (the pond) was dug directly next to
Plaintiff’s property to address flooding and drainage concerns on the airport property. The
pond has neither an impermeable liner nor an automatic pumping system. Since its
construction, the pond has often filled with water and has overflowed following rainstorms.
No efforts have ever been made to pump or drain the pond. Subsequently, water has
remained in the pond for long periods of time, seeping into the ground.

{3} In the years following the pond’s construction, the Yurcics’ building began
exhibiting signs of damage to the foundation, walls, roof, and floors. On May 12, 2008, the
Yurcics filed a complaint for nuisance, negligence, and damages against the City of Gallup
(the owner of the airport), Gallup Flying Service (the airport operator), Molzen-Corbin and
Associates, P.A. (the designer of the pond), and a John Doe contractor (the unknown
contractor who constructed the pond). In 2010, the City of Gallup (the City), Gallup Flying
Service, and Molzen-Corbin (collectively, Defendants) jointly moved for summary judgment
premised upon expiration of the applicable statutes of limitations. Defendants argued that,

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as early as 1998 but no later than 2003, the Yurcics had notice that the pond was damaging
their property and that they had a potential claim against Defendants. Defendants
respectively contended that because a two-year statute of limitations applies to claims
against the City and a four-year statute of limitations applies to claims against the other
defendants, the Yurcics’ 2008 lawsuit was barred in its entirety because the lawsuit was not
brought within either requisite period of prescription.

{4} In response, Plaintiff asserted that evidence established the existence of disputed
material facts as to whether she had notice of the damage and the potential claim against
Defendants before the statutes of limitations ran. Plaintiff also argued that summary
judgment was inappropriate because her property suffered successive injuries from the
pond’s seepage, for which new statutes of limitations accrued under Valdez v. Mountain Bell
Telephone Co., 107 N.M. 236, 239, 755 P.2d 80, 83 (Ct. App. 1988) (holding that the
plaintiff could sue for successive seepage injuries caused by a utility pole, even though the
statute of limitations expired on his initial claim, if the pole could be removed or the
nuisance could be abated at a reasonable cost, or if the extent of the damages were not
necessarily ascertainable when the plaintiff purchased the property). Following briefing by
the parties and a hearing on Defendant’s motion, the district court granted the motion.
Plaintiff now appeals.

II. STANDARD OF REVIEW

{5} “An appeal from the grant of a motion for summary judgment presents a question of
law and is reviewed de novo.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16,
141 N.M. 21, 150 P.3d 971. “Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment as a matter of law.” Self v.
United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal
from the grant of summary judgment, we ordinarily review the whole record in the light most
favorable to the party opposing summary judgment to determine if there is any evidence that
places a genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects
& Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no
material issues of fact are in dispute and an appeal presents only a question of law, we apply
de novo review and are not required to view the appeal in the light most favorable to the
party opposing summary judgment.” Id. “We are mindful that summary judgment is a
drastic remedial tool which demands the exercise of caution in its application, and we review
the record in the light most favorable to support a trial on the merits.” Woodhull v. Meinel,
2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation
omitted).

III. DISCUSSION

A. Disputed Material Facts Exist as to Whether Plaintiff Filed Her Complaint
Within the Four-Year Statute of Limitations

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{6} Plaintiff contends that disputed material facts exist as to whether the statute of
limitations expired prior to her filing the complaint against Defendants. We first address the
applicable statutes of limitations and then review Plaintiff’s arguments regarding the
existence of disputed facts.

{7} Pursuant to NMSA 1978, Section 37-1-4 (1880), a four-year statute of limitations
generally applies to claims “brought for injuries to property.” Plaintiff concedes and we
agree that a four-year statute of limitations generally applies to this suit under this statute.
But Defendants argued below and continue to argue on appeal that a two-year statute of
limitations applies to the City under NMSA 1978, Section 41-4-15 (1977) of the Tort Claims
Act. In its order granting summary judgment, the district court did not specifically address
whether it applied a two- or four-year statute of limitations to Plaintiff’s claims against the
City. Nonetheless, we conclude that, as a matter of law, the two-year statute of limitations
applies to claims brought against the City.

{8} Section 41-4-15(A) states that “[a]ctions against a governmental entity [must be]
commenced within two years after the date of occurrence resulting in loss, injury or death[.]”
In Cole v. City of Las Cruces, 99 N.M. 302, 305, 657 P.2d 629, 632 (1983), our Supreme
Court expressly stated that a city is a governmental entity “because of its legal status as a
local public body and as a political [subdivision] of the state.” (alteration in original)
(internal quotation marks and citations omitted). Pursuant to Cole, the City of Gallup
likewise is both a public body and political subdivision of the state. Thus, it is clearly a
governmental entity, and the two-year statute of limitations applies to Plaintiff’s claim
against it.

{9} Knowing the applicable periods of limitation, we move on to discuss the key issue
in this case: does evidence conflict as to when the existence of notice to Plaintiff
commenced the periods of limitation? “[I]n actions for injuries to . . . property, the cause of
action shall not be deemed to have accrued until the . . . injury . . . complained of, shall have
been discovered by the party aggrieved.” NMSA 1978, Section 37-1-7 (1880). “[U]nder the
discovery rule, the statute of limitations begins when the plaintiff acquires knowledge of
facts, conditions, or circumstances which would cause a reasonable person to make an
inquiry leading to the discovery of the concealed cause of action.” Gerke v. Romero,
2010-NMCA-060, ¶ 10, 148 N.M. 367, 237 P.3d 111 (internal quotation marks and citation
omitted); see Wilde v. Westland Dev. Co., Inc., 2010-NMCA-085, ¶ 18, 148 N.M. 627, 241
P.3d 628 (“For purposes of determining when the cause of action accrues, discovery is
defined as the discovery of such facts as would, on reasonable diligent investigation, lead
to knowledge of [the] fraud or other injury.” (alteration in original) (internal quotation marks
and citation omitted)). This means that “the statute of limitations is not tolled because a
claimant does not have knowledge of the full extent of injury, but that the time period begins
to run when the claimant has knowledge of sufficient facts to constitute a cause of action.”
Gerke, 2010-NMCA-060, ¶ 10 (citation omitted). We subsequently refer to the standard set
forth in the discovery rule, which requires knowledge of facts, conditions, or circumstances
which would cause a reasonable person to make an inquiry leading to the discovery of the

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cause of action, as “inquiry notice.” See TRW Inc. v. Andrews, 534 U.S. 19, 30 (2001)
(stating that certain events would place the plaintiff on “inquiry notice, and the discovery
rule would trigger the limitations period at that point, only if a reasonable person in [the
plaintiff’s] position would have learned of the injury in the exercise of due diligence.”
(internal quotation marks omitted)); Rhinehart v. Nowlin, 111 N.M. 319, 328, 805 P.2d 88,
97 (Ct. App. 1990) (“Whatever puts a party upon inquiry is sufficient ‘notice’ and the party
has a duty to inquire or he will be chargeable with all the facts.”).

{10} “Historically, the courts of this state have characterized the application of the
discovery rule as a jury question, particularly when conflicting inferences may be drawn.”
Williams v. Stewart, 2005-NMCA-061, ¶ 16, 137 N.M. 420, 112 P.3d 281. “As a general
rule, issues as to whether a claim has been timely filed or whether good cause exists for
delay in filing an action are questions of fact, and such issues only become issues of law
when the facts are undisputed.” Durham v. Sw. Developers Joint Venture,
2000-NMCA-010, ¶ 44, 128 N.M. 648, 996 P.2d 911. “Where there are disputed questions
of material fact as to whether a plaintiff is barred by the statute of limitations, these questions
are to be decided by a jury.” Medina v. Fuller, 1999-NMCA-011, ¶ 22, 126 N.M. 460, 971
P.2d 851 (alteration, internal quotation marks, and citation omitted).

{11} In granting summary judgment, the district court determined that Plaintiff had
sufficient notice of facts constituting a cause of action against Defendants at the time of at
least one of three instances of notice argued by Defendants. In their motion to dismiss,
Defendants asserted that Plaintiff acquired inquiry notice of the cause of action first in 1998,
when the pond was constructed, second in 2001, and third in 2002 or 2003. Each instance
of notice asserted by Defendants occurred in excess of four years from filing the complaint.
We analyze the evidence presented by the parties below to determine whether there are any
disputed material facts as to whether Plaintiff was or should have been on notice of a claim
against Defendants at the time of each asserted instance.

{12} Defendants first argued that sometime in 1998, Plaintiff noticed that “the northeast
corner of the Yurcic Building had some structural-type cracks in the masonry, the slab had
some cracks in it, and the corner of the building was sinking.” Defendants supported their
argument with testimony from Pat Mataya, a contractor who remodeled the building in 1998.
In a deposition, Mataya testified that Johnna Yurcic knew of and was concerned about the
above described structural-type cracks in the masonry and foundation of the building. He
added that Johnna Yurcic expressed concerns that the pond was causing some of the
problems with the building. To rebut this evidence, Plaintiff presented testimony of Bob
Witte, a former tenant of Plaintiff’s building. Prior to his initial occupation of the building
in March 1998, Witte examined the premises and found no noticeable problems with the
exterior or interior structure of the building at that time. Witte also testified that he first
noticed problems with the building’s exterior in 2001. We conclude that this conflicting
testimony regarding the presence or absence of visible signs of building damage presents a
question of fact as to whether there was any visible structural damage to the building in 1998
that would have then placed Plaintiff on inquiry notice of a cause of action against

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Defendants. Moreover, reasonable jurors listening to this conflicting testimony could
disagree about the veracity of Mataya’s testimony or the timing of Mataya’s conversation
with Johnna Yurcic about the pond. It would therefore be improper for the district court to
have granted summary judgment on the basis of the 1998 alleged acquisition of notice.

{13} Next, Defendants argued that Plaintiff had inquiry notice of a claim against
Defendants when Witte reported a crack in the floor tiles of the building in 2001.
Defendants stated and Plaintiff does not contest that in 2001, “Witte noticed [and reported
to Johnna Yurcic] that the tiles laid during the 1998 [r]emodel were separating and that there
was a quarter-inch crack in the floor that ran the entire length of the Yurcic building.”
Plaintiff argues that this fact alone is legally insufficient to cause a reasonable person to
make an inquiry leading to the discovery of the cause of action against Defendants.

{14} In district court, Defendants did not offer any proof that this crack would lead a
reasonable person to inquire as to the pond’s deteriorative effect on the building’s
foundation. Due to the absence of evidence within the record linking the appearance of the
crack with the nearby pond, we are unable to eliminate contrary explanations for this crack
as a matter of law. In fact, Mataya’s testimony attributed the crack to a cause other than the
pond. In response to Defendants’ question regarding the crack, Mataya explained that the
crack “might have just been a control joint. . . . [W]hen they pour the [concrete] slab,
sometimes they’ll have a control joint to separate the slabs, or the[y are] saw cut.” Because
the crack in the tile floor might have been caused by an extrinsic source, such as a control
joint, and there was then no evidence specifically linking the crack to the pond, we conclude
that mere knowledge of the existence of the crack in 2001 was legally insufficient to place
Plaintiff on inquiry notice of a claim against Defendants.

{15} Lastly, relying on testimony from Witte, Defendants argue that in 2002 or 2003,
Johnna Yurcic knew of the combination of structural damage and saturated ground sufficient
to have acquired inquiry notice of the claim against Defendants. Witte initially testified that
in 2002 or 2003, he noticed and then informed Johnna Yurcic about a crack in the foundation
of the northeast corner of the building, where the ground was “mushy.” Witte described the
damage as a “stair step crack” that extended ten feet on either side of the northeast corner
of the building. Witte testified that he notified Johnna Yurcic of the crack and told him that
he believed the pond was the cause of the building’s damage. Based on that conversation,
Johnna Yurcic sent a person to inspect the crack shortly thereafter.

{16} In response, Plaintiff countered that this conversation did not occur until 2004, and
therefore a genuine issue of material fact exists as to whether Plaintiff had notice of the
damage prior to May 12, 2004 (more than four years before filing this case). Plaintiff cited
Witte’s own subsequent testimony during the same deposition, where Witte clarified that he
noticed the crack in the northeast corner of the building sometime after appearing at a city
council meeting to express his concerns about mosquitos breeding in the pond. Witte stated
that he noticed the foundational crack “[a]nywhere from six months to a year” after the city
council meeting. When pressed for a greater level of specificity as to the timing of the

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notifying conversations, Witte responded that his “time-frame on this” was unclear as to the
precise date. Plaintiff argued below and continues to assert on appeal that the city council
meeting took place in June 2003. Yet neither Defendants nor Plaintiff provided evidence as
to when the city council meeting in question took place.

{17} Because of the express uncertainty of Witte’s recollection, combined with the parties’
inability to ascertain with greater precision the date on which the city council meeting took
place, we conclude that Witte’s testimony is inconclusive as to precisely when, within the
window of time between 2002 and 2004, he noticed and reported to Johnna Yurcic the
damage to the northeast corner of the building. Because this last of the asserted grounds for
summary judgment was also premised upon what are actually disputed material facts, it too
fails to factually establish that Plaintiff had inquiry notice in excess of four years from when
the Yurcic complaint was filed.

{18} Because material disputed facts exist about when Plaintiff acquired a sufficient level
of inquiry notice as to the existence of any claim assertable against Defendants, summary
judgment as to Gallup Flying Service and Molzen-Corbin was improper. We therefore
reverse the district court’s order as to those Defendants.

B. Plaintiff Had Notice of the Claims Against the City More Than Two Years
Before Filing

{19} Also based upon the foregoing discussion of evidence, it appears that Plaintiff
acquired inquiry notice of the claim against the City more than two years before the Yurcic
lawsuit was filed. Defendants’ evidence establishes that sometime in 2004 or earlier, Johnna
Yurcic received notice that the foundation on the northeast side of the building was
substantially cracking, that the ground around it was saturated with water, and that his
tenant, Witte, by then believed the pond to be the cause of the damage. The only arguments
Plaintiff makes to rebut Defendants’ contentions about notice of the moistened ground and
the crack in the building’s northeast corner is (1) that the notice occurred sometime within
a year after June 2003, the date on which Plaintiff alleges the city council meeting took
place; and (2) that she personally—distinct from her husband Johnna Yurcic—never had
notice of damage to the building until 2006.

{20} First, the facts of which Witte notified Johnna Yurcic by June 2004 placed Plaintiff
on inquiry notice more than three years before the suit was brought. Unlike the earlier, more
questionable evidence of the crack in the floor tiles, this latter evidence provided ample
indicia of a causal nexus between the pond’s saturation of the ground and the building’s
worsening structural damage. Evidence of the foundation’s twenty-foot-long stair step
crack, surrounded by soggy ground, and the tenant’s communication with Johnna Yurcic that
he believed the pond to be causing the foundational damage was sufficient to notify Plaintiff
of both (1) serious structural damage requiring further investigation, and (2) a causal link
between the pond and the injury to Plaintiff’s property. See generally Palumbo v. Roberti,
839 F. Supp. 80, 85 (D. Mass. 1993) (holding that inquiry notice was satisfied where the

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plaintiff had knowledge both of oil stored in the nearby neighboring building and of damage
to goods in her building caused by oil seepage); Redland v. Tharp, 498 P.2d 1240, 1242
(Wyo. 1972) (concluding that the plaintiffs were on notice of their claim regarding seepage
“when the area of [the] plaintiffs’ land became so boggy that farm machinery, vehicles, and
equipment became stuck”).

{21} Second, to the extent Plaintiff argues that she did not individually gain inquiry notice
of the damage until 2006, we conclude that the requirement of diligence as a co-owner of the
visibly damaged property warrants enforcement of the statute of limitations against her.
Under the discovery rule, “the statute of limitations begins to run when the plaintiff knows
or, with reasonable diligence should know, of his injury and its cause.” Gerke,
2010-NMCA-060, ¶ 12; see McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022,
¶ 37, 143 N.M. 740, 182 P.3d 121 (“In New Mexico, a cause of action arises when the
plaintiff discovers or with reasonable diligence should have discovered that a claim exists.”
(internal quotation marks and citation omitted)); Williams v. Stewart, 2005-NMCA-061, ¶
12, 137 N.M. 420, 112 P.3d 281 (stating that “[t]he discovery rule provides that the cause
of action accrues when the plaintiff discovers or with reasonable diligence should have
discovered that a claim exists” (internal quotation marks and citation omitted)); Milwaukee
Area Vocational Technical & Adult Educ. Dist. v. U.S. Steel Corp., 847 F.2d 435, 440 (7th
Cir. 1988) (stating that “the discovery rule is an objective standard that does not protect
those plaintiffs who sleep on their rights”); H. F. Wilcox Oil & Gas Co. v. Diffie, 186 F.2d
683, 697 (10th Cir. 1951) (concluding that an action brought by the plaintiff, the part-owner
of a mine, against his co-owner for conversion was barred by the statute of limitations where
the plaintiff failed to exercise diligence by examining his co-owner’s records, or asking the
co-owner for a report regarding the subject mine); Martin v. Esponge, 388 So. 2d 128, 129
(La. Ct. App. 1 Cir. 1980) (stating that in the context of a leasing agreement, “a co-owner
acts not only for himself but also as the agent of his other co-owners” (internal quotation
marks and citation omitted)). Here, it is clear that Johnna Yurcic, Plaintiff’s husband and
co-owner of the property, discovered the damage no later than when it was reported to him
by his tenant, Witte. If Plaintiff had been reasonably diligent as a co-owner, she would have,
at a minimum, communicated with her co-owner or tenant regarding the status of her
property. The assertion that Plaintiff did not engage in communications regarding the
seepage and damage, and the absence of her actual knowledge of it, does not absolve
Plaintiff of her duty to be reasonably diligent in discovering the injury and cause.

{22} Thus, the claims against the City are time barred unless Plaintiff can succeed under
her theory that each successive injury gave rise to a new cause of action with its own
discovery date and period of limitation. We note that this theory bears the potential to also
affect Plaintiff’s claim with regard to the other Defendants.

C. Summary Judgment Was Improper Under Valdez

{23} Plaintiff also contends that summary judgment was improper because successive
injuries occurred to the property due to the pattern of ongoing seepage and, as a result, under

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Valdez, separate causes of action accrued with each new injury to the property. Plaintiff
therefore asserts that, under Valdez, her claims for successive injuries arising within the
statute of limitations are not barred. We must determine whether under Valdez, Plaintiff’s
injuries constitute separate causes of action with their own statutes of limitation. We note
that if Plaintiff can only succeed in bringing her suit under the successive injury theory
established by Valdez, her recovery is limited to those injuries incurred within the respective
two- and four-year statutes of limitations. McNeill v. Rice Eng’g & Operating, Inc.,
2006-NMCA-015, ¶ 29, 139 N.M. 48, 128 P.3d 476 (stating that, “[a]lthough . . . some
jurisdictions set the cause of action accrual date for a claim for damages for all injuries from
the continuing trespass to be the date of the last injury[, under Valdez, t]he accrual date is
the date of each particular injury which, for an intermittent injury, is the date of that discrete
injury, or for a continuous injury, each new day”).

{24} In Valdez, a property owner sued a public service company for improperly
maintaining a telephone pole near a drainage ditch on the south side of the plaintiff’s
property, which caused water to back up onto and seep into the owner’s land. 107 N.M. at
237-38, 755 P.2d at 81-82. Within two or three years of purchasing his home, the plaintiff
observed that “the land on the south side of his home was constantly damp.” Id. at 238, 755
P.2d at 82. Almost a decade after purchase, the plaintiff noticed that walls inside his home
were cracking and was notified by his insurance company that the cracks were caused by
seepage. Id. Several years after the initial wall cracking, the foundation on the south side
of his house began sinking, cracking, and falling apart. Id. Under the facts of Valdez, it
appeared that the plaintiff knew, well beyond the applicable statute of limitations on his
initial claim, that his property had suffered damage as a result of water seepage. Id. On
appeal we considered, as a matter of first impression, whether a cause of action can accrue
with every new injury to the plaintiff’s property or whether the plaintiff’s complaint was
time-barred because the statute of limitations had already run on the first injury caused by
the recurring seepage. Id.

{25} After examining case law from other states dealing with this issue, we held that,
when the “nuisance is of permanent character, and its construction and continuance are
necessarily an injury, the damage is original, and . . . the statute of limitations begins to run
upon the construction of the nuisance.” Id. at 240, 755 P.2d at 84 (internal quotation marks
and citation omitted). On the other hand, we concluded that the plaintiff in Valdez could
recover for successive injuries from a temporary structure, which we defined as either “a
permanent structure which is not per se injurious” but which becomes injurious under
certain, temporary conditions, or a structure that “could possibly be easily removed at a
reasonable expense.” Id. In other words, if the nuisance is permanent and therefore
necessarily injurious, Plaintiff would not be able to recover if the statute of limitations has
run on her initial claim because subsequent causes of action are not created by subsequent
injuries. But, if the nuisance is temporary, Plaintiff could sue for later injuries caused by the
same seepage, as the statute of limitations would run anew with subsequent injuries. We
defined “[a] permanent structure or nuisance [a]s one that may not be readily remedied,
removed or abated at a reasonable expense, or one of a durable character evidently intended

9
to last indefinitely, costing as much to alter as to build.” Id. at 239, 755 P.2d at 83. In sum,
the nuisance is temporary if either the structure can be removed at a reasonable cost or the
nuisance can be remedied or abated at a reasonable cost.

{26} This Court in Valdez explained that, “[the p]laintiff alleges that the utility pole . . .
is a permanent structure which is not per se injurious, but becomes so with excessive rain
or snow. As such, the nuisance is temporary.” Id. at 240, 755 P.2d at 84. We also came to
the conclusion that “the utility pole . . . could probably be easily removed at a reasonable
expense, and is, therefore, a temporary structure.” Id. We held that, “[i]n either case,
successive actions may be brought because each new injury allows a new cause of action to
accrue.” Id. Additionally, we went on to hold that “successive recoveries should be allowed
following each injury, where the improvement is negligently constructed and the damage to
plaintiff’s property could not be reasonably calculated at the time of the completion of the
construction thereof.” Id. With these principles in mind, we concluded that the Valdez
plaintiff could sue for successive injuries caused by the utility pole, even though the statute
of limitations expired on his initial claim, because “the nuisance . . . is abatable[,] the injuries
are recurring[,] the extent of the damages were not necessarily ascertainable when plaintiff
purchased the property[,] and the nuisance is not necessarily injurious.” Id.

{27} In applying Valdez to the case at bar to determine whether Plaintiff can sue for
successive injuries, we identify the pertinent factual inquiries to be: (1) whether the pond
can be removed at a reasonable cost, (2) whether the seepage can be remedied or abated at
a reasonable expense, and (3) whether the damages caused by the seepage on Plaintiff’s
property could have been ascertainable when the pond was built. Neither party below
produced evidence to address these issues.

{28} On appeal, Defendants nonetheless contend that summary judgment was proper
because “Plaintiff presented no evidence below to demonstrate that the retention pond was
a temporary structure such that the rule in Valdez applied.” Defendants support this
assertion with a citation and parenthetical indicating that when Defendants have met their
burden of demonstrating a prima facie case in support of summary judgment, Plaintiff “bears
the burden of demonstrating the existence of specific facts to support a trial on the merits.”
Implicit in this assertion is that Defendants have successfully made a prima facie case for
summary judgment. Although Defendants correctly state the standard for shifting burdens
of proof, we conclude that they failed to make a prima facie showing below.

{29} “In the civil litigation context, the statute of limitations defense is generally an
affirmative defense[.]” State v. Kerby, 2007-NMSC-014, ¶ 13, 141 N.M. 413, 156 P.3d 704.
When asserting an affirmative defense as grounds for summary judgment, the “[d]efendant
carrie[s] the burden of making a prima facie showing as to each element of the definition [of
the defense].” Solorzano v. Bristow, 2004-NMCA-136, ¶ 15, 136 N.M. 658, 103 P.3d 582
(discussing the moving party’s burden in seeking summary judgment against the plaintiff on
the affirmative defense of suicide); see Romero v. Philip Morris Inc., 2010-NMSC-035, ¶
10, 148 N.M. 713, 242 P.3d 280 (stating that the moving party has the initial burden of

10
establishing a prima facie case for summary judgment). Prima facie case is defined as “[a]
party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule
in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009); see Hyden v. Law Firm
of McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 163, 848 P.2d 1086, 1090 (Ct.
App. 1993) (stating that a prima facie showing is defined as “such evidence as is sufficient
in law to raise a presumption of fact or establish the fact in question unless rebutted”
(internal quotation marks and citation omitted)).

{30} Since the statute of limitations is Defendants’ affirmative defense and since
Defendants are the moving parties, they have the burden of producing evidence regarding
every element of that defense. Here, the trier of fact cannot infer the necessary facts to
conclude that the suit is time barred without Defendants producing sufficient evidence to
address the issues pertinent to a Valdez determination. Thus, in order to obtain summary
judgment on the statute of limitations affirmative defense, Defendants have the duty to
produce sufficient evidence showing that the pond and seepage are permanent and that the
damages were ascertainable at the time the pond was constructed. Valdez, 107 N.M. at 240,
755 P.2d at 84. Because Defendants failed to make the requisite prima facie case, Plaintiff
bore no obligation to produce evidence to the contrary.

{31} Defendants argue that Valdez does not apply to this case, in part because the injuries
were not successive. We conclude there is abundant evidence to the contrary sufficient to
create a disputed issue of material fact. In arguing otherwise, Defendants rely solely on
testimony from Witte that the ground was “constantly wet.” First, this appears to
misconstrue Witte’s testimony, in which he then discussed the character of the ground during
monsoon season. Second, Plaintiff argued from the inception of this case that “[w]hen the
pond is full due to precipitation[,] the water is not contained inside the Airport’s property . . .
but instead the water migrates beneath the surface into the Yurcics’ property.” The record
appears to provide support to this theory that the pond was only a nuisance when full,
particularly during monsoon season. Moreover, the record shows that there was a series of
different injuries to the building: different cracks and damage developed in the foundation,
walls, and ceiling over time. Lastly, it appears that Defendants misconstrue our case law
regarding the characteristics of successive injuries. In Valdez, the seepage caused the ground
to be constantly damp, and such seepage resulted in a series of injuries, similar to those
which manifested in the case at bar. See Valdez, 107 N.M. at 238, 755 P.2d at 82. Based on
the standard exemplified in Valdez, Plaintiff appears to have incurred successive injuries.
For these reasons, we conclude that at the very least, disputed material facts exist regarding
whether the injuries were successive.

{32} Defendants argue that because “Johnna Yurcic was aware of specific damages to his
property [between 1998 and 2003] and believed that the pond was to blame[,]” he cannot
recover under the continuing wrong doctrine stated in Valdez. For support, Defendants cite
out-of-state case law for the proposition that “the doctrine cannot be employed where the
plaintiff’s injury is definite and discoverable, and nothing prevented the plaintiff from
coming forward to seek redress.” See Tiberi v. Cigna Corp., 89 F.3d 1423, 1431 (10th Cir.

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1996) (internal quotation marks and citation omitted). We disagree because first, as
determined above, Defendants have yet to prove that prior to June 2004, Johnna Yurcic was
or should have been aware of a definite injury caused by Defendants sufficient to constitute
inquiry notice. Second, Defendants appear to misconstrue the principle regarding definite
and discoverable injuries, which was originally derived from Wilson v. Giesen, 956 F.2d
738, 743 (7th Cir. 1992). The court in Wilson explained that a definite and discoverable
injury was one resulting from a tortious act which “caused direct damages that occurred at
a certain point in time—resulting in immediate and direct injury . . . with consequential
effects.” Id. (alteration in the original) (internal quotation marks and citation omitted). In
the case at bar, the damages occurred gradually over a long period of time, in relation to the
rise and fall of the pond water levels. There was no one specific point in time at which the
building suddenly sunk into the soggy ground, breaking the foundation and cracking the
building’s walls, floors, and ceiling. The injury was gradual and incremental, not immediate.
Thus, the continuing wrong theory appears to be applicable to this case.

{33} Arguing again that Valdez is inapplicable, Defendants cite Colorado case law for the
proposition that claims involving seepage arise when the property is first visibly affected by
the seepage. See Greene v. Green Acres Constr. Co., 543 P.2d 108 (Colo. App. 1975). We
note that Greene is legally distinct from the present inquiry regarding successive injuries.
Rather, it deals with the initial discovery of the injury, which is a topic we have already dealt
with above when analyzing the issue of when Plaintiff acquired notice of the Yurcic cause
of action. Thus, we are unpersuaded by Defendants’ assertion that this case is more similar
to Greene than Valdez.

{34} Since Defendants failed to present sufficient evidence establishing that separate
causes of action did not accrue with each ensuing injury to the property and therefore failed
to demonstrate that Valdez is inapplicable here, summary judgment was improper. We thus
reverse the district court on this ground as well.

C. Plaintiff Failed to Preserve Her Estoppel Argument

{35} Finally, Plaintiff argues the doctrine of equitable estoppel tolled the statute of
limitations in this case. Yet Plaintiff never argued estoppel below. “To preserve an issue
for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court
on the same grounds argued in the appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492,
496, 745 P.2d 717, 721 (Ct. App. 1987). The preservation rule “provides the lower court an
opportunity to correct any mistake, . . . provides the opposing party a fair opportunity to
show why the court should rule in its favor, and . . . creates a record from which this Court
may make informed decisions.” State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175
P.3d 942 (alterations in the original) (internal quotation marks and citation omitted).

{36} Here, Plaintiff argues that she raised the issue below in her answer brief responding
to the motion to dismiss. Yet the answer brief merely stated in a footnote that “Plaintiff also
notes that she and Johnna Yurcic held off on filing their complaint while waiting for a

12
response to the tort claims notice that they had filed in June 2007. A response was not
received on behalf of the City of Gallup until September 2007.” We conclude that this
footnote was insufficient to preserve the issue of estoppel for appellate review, as it never
invoked a ruling on the issue from the district court, and it failed to alert Defendants to an
opportunity to argue against estoppel below. As a result, we have no record from which to
render an informed ruling on the issue. We therefore decline to address Plaintiff’s estoppel
argument on appeal. See Andalucia Dev. Corp. v. City of Albuquerque, 2010-NMCA-052,
¶ 25, 148 N.M. 277, 234 P.3d 929 (“Appellate courts will not consider issues that went
unpreserved at the district court level.”).

IV. CONCLUSION

{37} We reverse the district court’s order of summary judgment because (1) disputed
material facts exist as to whether the statute of limitations barred Plaintiff’s initial claims
against Gallup Flying Service and Molzen-Corbin, and (2) disputed material facts exist
regarding whether separate causes of action accrued with each new injury to the property
under Valdez. We remand to the district court for proceedings consistent with this Opinion.

{38} IT IS SO ORDERED.

____________________________________
J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for Yurcic v. City of Gallup, No. 30,786

APPEAL AND ERROR
Preservation of Issues for Appeal
Remand
Standard of Review

CIVIL PROCEDURE
Estoppel
Limitation of Actions
Summary Judgment

GOVERNMENT

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Municipalities

PROPERTY
Trespass

TORTS
Notice
Tort Claims Act

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