{ "id": 4244122, "name": "Cruz HOLGUIN, Plaintiff-Appellee, v. TSAY CORPORATION, Defendant-Appellant", "name_abbreviation": "Holguin v. Tsay Corp.", "decision_date": "2009-05-05", "docket_number": "No. 28,777", "first_page": "346", "last_page": "349", "citations": [ { "type": "official", "cite": "146 N.M. 346" }, { "type": "parallel", "cite": "210 P.3d 243" }, { "type": "parallel", "cite": "2009-NMCA-056" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2004-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428006 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0706-01" ] }, { "cite": "195 P.3d 1266", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "145 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2008-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2008-NMCA-132", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241975 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 8-10" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0018-01" ] }, { "cite": "122 N.M. 137", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322273 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "138, 140", "parenthetical": "holding the term \"bodily injury\" in the insurance policy at issue was not ambiguous and that emotional distress from loss of consortium did not constitute bodily injury or fall within that term" }, { "page": "945, 947", "parenthetical": "holding the term \"bodily injury\" in the insurance policy at issue was not ambiguous and that emotional distress from loss of consortium did not constitute bodily injury or fall within that term" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0137-01" ] }, { "cite": "2004-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428078 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "\u00b6\u00b6 6-8" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0068-01" ] }, { "cite": "2002-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260734 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0207-01" ] }, { "cite": "267 F.3d 848", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7348353, 9499804 ], "year": 2001, "pin_cites": [ { "page": "852", "parenthetical": "stating that the waiver \"must be clear\" and when a tribe consents to suit, \"any conditional limitation it imposes on that consent must be strictly construed and applied\" (internal quotation marks and citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/am-tribal-law/3/0848-01", "/f3d/267/0848-01" ] }, { "cite": "2006-NMCA-020", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543664 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "\u00b6\u00b6 21-25, 28" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0085-01" ] }, { "cite": "2005-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224591 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 7,10" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0682-01" ] }, { "cite": "187 F.3d 1174", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8167232, 11586106 ], "pin_cites": [ { "page": "1178-80" } ], "opinion_index": 0, "case_paths": [ "/am-tribal-law/2/1174-01", "/f3d/187/1174-01" ] }, { "cite": "114 N.M. 607", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731679 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "616, 617-19", "parenthetical": "adopting the collateral order doctrine and prescribing a writ of error as the proper procedural device for review of a denial of a motion for summary judgment" }, { "page": "139, 140-42", "parenthetical": "adopting the collateral order doctrine and prescribing a writ of error as the proper procedural device for review of a denial of a motion for summary judgment" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0607-01" ] } ], "analysis": { "cardinality": 623, "char_count": 10088, "ocr_confidence": 0.69, "pagerank": { "raw": 7.981362745852228e-08, "percentile": 0.4635604237930474 }, "sha256": "49b502da71f0f2f3c57213ca4f05d5d6b7cac423ae88bb88e30e0762c5134fd1", "simhash": "1:9216bf1541e4cb91", "word_count": 1648 }, "last_updated": "2023-07-14T18:28:31.770781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY, Chief Judge, and ROBERT E. ROBLES, Judge." ], "parties": [ "Cruz HOLGUIN, Plaintiff-Appellee, v. TSAY CORPORATION, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} On September 29, 2007, Cruz Holguin won a random drawing for a $250,000 prize at the Ohkay Owingeh Casino and Resort (the Casino) that Tsay Corporation (Tsay) sponsored. Holguin alleged that Tsay refused to pay him $250,000 and instead required him \u201cto elect to receive either $125,000 less income tax withholding or to receive payment of $250,000 spread over a period of [twenty] years.\u201d Pursuant to a limited waiver of immunity contained in a Tribal-State Class III Gaming Compact, a patron of the Casino was entitled to sue Tsay for damages arising out of bodily injury or property damage. Holguin sued Tsay for damages for breach of contract, conversion, unfair practices, and for two counts of invasion of privacy. Tsay moved to dismiss under Rule 1-012(B)(1) NMRA for lack of subject matter jurisdiction based on tribal sovereign immunity from suit. The district court granted Tsay\u2019s motion as to three counts, but denied Tsay\u2019s motion as to two counts of invasion of privacy. Tsay obtained a district court certification for an interlocutory appeal and sought relief in this Court pursuant to an interlocutory appeal, alternatively, a writ of error.\n{2} This Court granted the interlocutory appeal, but now grants Tsay\u2019s petition for a writ of error and reverses the district court. This Court has jurisdiction under the collateral order doctrine. That doctrine permits interlocutory relief from a denial of a motion to dismiss based on tribal sovereign immunity. See Carrillo v. Rostro, 114 N.M. 607, 616, 617-19, 845 P.2d 130, 139, 140-42 (1992) (adopting the collateral order doctrine and prescribing a writ of error as the proper procedural device for review of a denial of a motion for summary judgment); see also Osage Tribal Council ex rel. Osage Tribe of Indians v. United States Dep\u2019t of Labor, 187 F.3d 1174, 1178-80 (10th Cir.1999) (holding that the denial of a tribal immunity claim satisfies the collateral order doctrine and stating \u201ctribal immunity is of the sort that is immediately appealable\u201d).\n{3} We hold that Tsay is immune from suit based on a claim for emotional injury resulting from invasion of privacy. Therefore, the district court does not have subject matter jurisdiction of Holguin\u2019s claim.\nBACKGROUND\n{4} Holguin\u2019s complaint alleged that he participated in one of Tsay\u2019s \u201cMillion Dollar Giveaway\u201d drawings (the drawing), that he reasonably believed that he was entitled to the full $250,000 he had won from the drawing, that Tsay refused to pay him the full $250,000, that Tsay falsely advertised Holguin as winning the full $250,000, and that Tsay reaped significant economic benefit by that false and misleading advertisement and from the unauthorized use and appropriation of his likeness and name.\n{5} Tsay\u2019s motion to dismiss relied on provisions relating to its limited waiver of immunity contained in the Tribal-State Class III Gaming Compact between the State of New Mexico and Ohkay Owingeh (amended April 24, 2007), approved by the Principal Deputy Assistant Secretary of the Department of the Interior, 72 Fed.Reg. 36,717 (July 5, 2007) (the Compact). Tsay is a tribal entity owned by Ohkay Owingeh, and Tsay operates the Casino.\n{6} Section 8(A) of the Compact sets out a \u201cpolicy concerning protection of visitors.\u201d This provision states that \u201c[t]he safety and protection of visitors to a [g]aming [f]acility is a priority of the Tribe, and it is the purpose of this [s]ection to assure that any such persons who suffer bodily injury or property damage ... [shall] have an effective remedy for obtaining fair and just compensation.\u201d Section 8(D) of the Compact states that \u201c[t]he Tribe ... waives its defense of sovereign immunity in connection with any claims for compensatory damages for bodily injury or property damage.... This is a limited waiver and does not waive the Tribe\u2019s immunity from suit for any other purpose.\u201d\n{7} Tsay also relied on two other documents: (1) an Ohkay Casino document titled \u201c$1 Million Giveaway Rules & Regulations\u201d (the rules) that applied to the drawing, and (2) an Ohkay Casino information data sheet on which there is a \u201cPhotograph Release Agreement\u201d signed by Holguin (the release). The rules state that the \u201c[w]inner of $250,000 will have the choice of half the $250,000 cash ($125,000) or an annuity option valued at $250,000 over a 20-year span.\u201d The rules further state that \u201c[winners agree that as a condition of prize acceptance, the Ohkay Casino ... is authorized to use winner\u2019s name and photo for advertising and publicity with no compensation.\u201d The release states that \u201cOhkay Casino ... has sole permission to use my name [and] photograph ... for the purpose of advertisement and give all further and future rights to those images.\u201d\n{8} The district court denied Tsay\u2019s motion to dismiss as to the two counts of invasion of privacy and certified the action for interlocutory appeal, stating that its order involved \u201ca controlling question of law concerning the scope of tribal sovereign immunity as set forth in [Section] 8 of [the Compact].\u201d\nDISCUSSION\n{9} We review a district court\u2019s ruling on a Rule 1-012(B)(1) lack of subject matter jurisdiction issue de novo. Sanchez v. Santa Ana Golf Club, Inc., 2005-NMCA-003, \u00b6 4, 136 N.M. 682, 104 P.3d 548 (2004). We also review de novo whether an Indian tribe or an entity under its control has waived its sovereign immunity. Id.\n{10} Tsay argues that the words \u201cbodily injury\u201d and \u201cproperty damage\u201d unambiguously require physical damage to a patron\u2019s person or property and cannot be construed to mean or include emotional injury resulting from the invasion of privacy alleged. We agree with Tsay.\n{11} As New Mexico law has developed, the words \u201cbodily injury\u201d and \u201cproperty damage\u201d in Subsections 8(A) and (D) of the Compact relating to the safety of visitors and limited waiver of immunity are not ambiguous and mean \u201cphysical damage to ... persons or property.\u201d R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020, \u00b6\u00b6 21-25, 28, 139 N.M. 85, 128 P.3d 513 (2005). The drafters intended to provide a remedy to patrons who suffer physical injury to their persons or property. Id. \u00b6\u00b6 22, 24, 28. A waiver of immunity beyond that which is written in the Compact cannot be implied but must be express and unequivocal; also, a limited waiver must be strictly construed. Id. \u00b6 10; Sanchez, 2005-NMCA-003, \u00b6\u00b6 7,10; see Missouri River Servs., Inc. v. Omaha Tribe of Neb., 267 F.3d 848, 852 (8th Cir. 2001) (stating that the waiver \u201cmust be clear\u201d and when a tribe consents to suit, \u201cany conditional limitation it imposes on that consent must be strictly construed and applied\u201d (internal quotation marks and citations omitted)); Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, \u00b6 7, 132 N.M. 207, 46 P.3d 668 (\u201cA tribe can ... waive its own immunity by unequivocally expressing such a waiver.... Without an unequivocal and express waiver of sovereign immunity ..., state courts lack the power to entertain lawsuits against tribal entities.\u201d (citations omitted)).\n{12} Analyses in cases interpreting language in insurance contracts can be relevant to issues of sovereign immunity. See Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, \u00b6\u00b6 6-8, 135 N.M. 68, 84 P.3d 685 (2003). Requiring physical injury when applying the term \u201cbodily injury\u201d in insurance contracts is fixed law in New Mexico. See Gonzales v. Allstate Ins. Co., 122 N.M. 137, 138, 140, 921 P.2d 944, 945, 947 (1996) (holding the term \u201cbodily injury\u201d in the insurance policy at issue was not ambiguous and that emotional distress from loss of consortium did not constitute bodily injury or fall within that term); Hart v. State Farm Mut. Auto. Ins. Co., 2008-NMCA-132, \u00b6\u00b6 8-10, 145 N.M. 18, 193 P.3d 565 (determining that New Mexico cases addressing whether emotional injury is included in the concept of \u201cbodily injury\u201d required the conclusion that the child did not suffer bodily injury), cert. denied, 2008-NMCERT-008, 145 N.M. 254, 195 P.3d 1266; Economy Preferred Ins. Co. v. Jia, 2004-NMCA-076, \u00b6 11, 135 N.M. 706, 92 P.3d 1280 (stating that to interpret the terms of the insurance policy, the court \u201cmust differentiate between bodily injury and emotional injury,\u201d and stating that \u201cthe alternative would be to extend coverage for bodily harm to all emotional injury, a result that is inconsistent ... with common-sense notions of what a reasonable insured would understand from the policy language\u201d).\n{13} We can see no basis on which the district court could have appropriately denied Tsay\u2019s motion to dismiss as to the two counts of invasion of privacy. Holguin has presented no argument or authority that overcomes the controlling law requiring physical injury or damage. We are unpersuaded by Holguin\u2019s argument that use of his name and likeness is no different than if he were robbed of his jewelry and money at gunpoint. We leave that hypothetical, which, unlike the present case, involves threat, risk, and potential of physical harm, for another day. Presently, we are dealing solely with an alleged emotional injury resulting from an alleged inchoate, incorporeal invasion of his privacy. We cannot characterize Holguin\u2019s claim as one for damages for physical injury to himself or physical damage to property, and thus cannot characterize the claim as one for bodily injury or property damage.\nCONCLUSION\n{14} We reverse the district court\u2019s denial of Tsay\u2019s motion to dismiss as to the two counts of invasion of privacy. We hold that Tsay\u2019s motion with regard to these counts should have been granted. We instruct the court to enter an order dismissing Holguin\u2019s complaint as it pertains to these two remaining counts for lack of subject matter jurisdiction.\n{15} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY, Chief Judge, and ROBERT E. ROBLES, Judge.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Timothy L. Butler, Santa Fe, NM, for Appellee.", "Bergen Law Offices, L.L.C., Lee Bergen, Albuquerque, NM, for Appellant." ], "corrections": "", "head_matter": "2009-NMCA-056\n210 P.3d 243\nCruz HOLGUIN, Plaintiff-Appellee, v. TSAY CORPORATION, Defendant-Appellant.\nNo. 28,777.\nCourt of Appeals of New Mexico.\nMay 5, 2009.\nTimothy L. Butler, Santa Fe, NM, for Appellee.\nBergen Law Offices, L.L.C., Lee Bergen, Albuquerque, NM, for Appellant." }, "file_name": "0346-01", "first_page_order": 376, "last_page_order": 379 }