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Seeds v. Lucero3/30/2005
{1} This case arises from a political and familial feud that has already resulted in two opinions from our Court. See VanderVossen v. City of Espanola, 2001-NMCA-016, 130 N.M. 287, 24 P.3d 319; Seeds v. VanderVossen, No. 22,718, (N.M. Ct. App. Aug. 11, 2003) (mem.). In this case, Plaintiffs Robert and Laura Seeds sued Robert's sister, Kathy VanderVossen, and Kathy's husband, Anthony VanderVossen, for alleged interference with Plaintiffs and their towing businesses in Espanola. Plaintiffs also sued Espanola's mayor, Richard Lucero (who is Anthony VanderVossen's uncle) and the city attorney, John Lenssen (together, City Defendants), contending that they used their official positions to assist the VanderVossens in their attempt to cause personal and financial harm to Plaintiffs. The issues in this appeal concern: (1) whether the City Defendants were acting within the scope of their duties and therefore were immune under the Tort Claims Act, NMSA 1978, ยงยง 41-4-1 to -29 (1976, as amended through 2004) (TCA), from a claim of conspiracy to commit certain tortious conduct; and (2) if so, whether the VanderVossens can be liable for civil conspiracy when the City Defendants, with whom they are alleged to have conspired, are immune. The trial court ruled that the City Defendants were immune under the TCA and also dismissed the civil conspiracy claim against the VanderVossens. We affirm the trial court's ruling that the City Defendants are immune, but we reinstate the civil conspiracy claim against the VanderVossens.
BACKGROUND
{2} We set out facts as alleged in Plaintiffs' first amended complaint, considering them undisputed for purposes of our disposition of the issues in this case. Plaintiffs and the VanderVossens are neighbors and business competitors. Each Plaintiff and each VanderVossen owns a towing business in Espanola. All licensed towing companies in Espanola are listed with local law enforcement agencies on 911 rotation logs. When a vehicle requires towing, the towing companies are called on a rotating basis. As we explain below, the rotation logs became a bone of contention between the parties.
{3} Plaintiff Robert Seeds and Defendant Lucero are political rivals. Mr. Seeds was an elected member of the Espanola City Council until the term ending in 1998. At that time he was defeated by a member of a slate of candidates that included Lucero as candidate for mayor. Lucero was elected mayor at that time, whereupon Mr. VanderVossen began to spend considerable time at the city offices, "where he used his position as nephew of the mayor to pressure city employees to take various actions" against Plaintiffs.
{4} Plaintiffs alleged that Lucero "directed city employees to take actions against [Plaintiffs] which were requested by Anthony VanderVossen, and which were designed to harass [Plaintiffs] and damage their businesses." Among the actions allegedly taken were: threatening to remove one of Plaintiffs' towing businesses from the 911 rotation logs and requesting law enforcement agencies to do so; filing baseless criminal complaints against Plaintiffs, at the behest of Mr. VanderVossen, for purported violations of municipal zoning ordinances, while at the same time refusing to prosecute the VanderVossens and others for their violations of the zoning ordinances; and providing assistance to the VanderVossens in their attempt to obtain utility easement rights across Plaintiffs' property. In addition, Plaintiffs alleged that the VanderVossens asked the city council to set aside a special zoning exception Mr. Seeds had obtained from the planning and zoning commission. When the council denied the VanderVossens' petition, Defendant Lenssen appealed the council's decision to t
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