This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 BRUCE E. THOMPSON, 7 as Personal Representative of the 8 Wrongful Death Estate of 9 RICHARD BROWN, 10 Plaintiff-Appellant, 11

v. NO. 30,537 12
TORRANCE COUNTY BOARD OF 13 COMMISSIONERS, SHERIFF CLARENCE 14 GIBSON, DOROTHY GIBSON, JEANINE ARNOLD, 15 MICHAEL STACK, JAMES LEDBETTER, 16 and DEPUTY JOHN DOE, individually and as 17 Torrance County Sheriffs o fficers and employees, and 18 THE STATE OF NEW MEXICO, NEW MEXICO 19 STATE POLICE, a division of the NEW MEXICO 20 DEPARTMENT OF PUBLIC SAFETY, 21 FARON SEGOTTA, CHIEF OF POLICE, SHARON DOE 22 DISPATCHER, and OFFICER CHRIS COLEY, 23 individually and as New Mexico State Police Officers 24 and employees, 25 Defendants-Appellees. 26
APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 27 Kevin R. Sweazea, District Judge 28 Gaddy Jaramillo Lawyers 29 David J. Jaramillo 302 Maria E. Touchet 1 Albuquerque, NM 2

Rachel E. Higgins 3 Albuquerque, NM 4 for Appellants 5 Wallin & Briones Law Firm, LLC 6 Dennis K. Wallin 7 Brandon Huss 8 Albuquerque, NM 9 for Appellees Torrance County Board of Commissioners, 10 Sheriff Clarence Gibson, Dorothy Gibson, 11 Michael Stack, James Ledbetter, and 12 Deputy John Doe, individually and as Torrance 13 County Sheriff’s officers and employees 14 Beall & Biehler 15 Mary T. Torres 16 Albuquerque, NM 17 for Appellee Jeanine Arnold 18 Brennan & Sullivan, P.A. 19 Christina L.G. Brennan 20 James P. Sullivan 21 Santa Fe, NM 22 for Appellees State of New Mexico, New Mexico 23 State Police, New Mexico Department of 24 Public Safety, Faron Segotta, Sharon Doe, 25 Officer Chris Coley 263 MEMORANDUM OPINION 1 GARCIA, Judge. 2 As personal representative of the estateof Richard Brown, Bruce E. Thompson 3 (Plaintiff) appeals the district court’s order dismissing Counts I, II, IV, and VI of his 4 complaint as a matter of law. Plaintiff pr esents three arguments on appeal: (1) the 5 911 dispatchers are subject to a waiver of immunity for law enforcement officers, or, 6 alternatively, the district court erred innot allowing Plainti ff to conduct additional 7 discovery regarding factual i ssues related to the waiver ; (2) the 911 dispatchers are 8 subject to a waiver of immunity becau se their actions involve the operation of 9 machinery or equipment; and (3) the Enhanced 911 Act, NMSA 1978, Section 63-9D10 10 (2005), indicates that the Legislature did not intend to provide tort immunity based 11 upon the use of non-enhanced 911 systems. Wereverse the district court’s dismissal 12 of Counts I, II, IV, and VI, and we remand for further pro ceedings consistent with this 13 Opinion. 14
BACKGROUND 15 We take all facts properly pled in the co mplaint as true. This lawsuit arose from 16 the death of Richard Brown (D ecedent), who was fifteen months old at the time of his 17 death. In pertinent part, Plaintiff’s comp laint alleged the following facts. Decedent’s 18 mother was driving with Decedent in the vehicle when she “experienced a psychotic 194 break.” Decedent’s mother took off her clothing and the clothing of Decedent, 1 abandoned the vehicle, and began walking with Decedent along the highway. A 2 passing motorist placed a 911 call during this period, describing the location of 3 Decedent and his mother as being approximately four miles north of Encino, New 4 Mexico. A Torrance County dispatcher contacted a New Mexico State Police 5 (NMSP) dispatcher and errone ously described the location of Decedent and his mother 6 as being approximately four miles north of Vaughn, New Mexico. An officer was 7 dispatched to the erroneous location. Moth er eventually turned up, but had abandoned 8 Decedent, who subsequently died as a result of exposure to the elements. 9 Count I of Plaintiff’s complaint allege d the negligence of the Torrance County 10 dispatch operators, Defendants Jeanine Arnold, Michael Stack, and James Ledbetter 11 (collectively, the County Dispatchers), infailing to convey accurate information and 12 failing to take any subsequent action regarding Decedent’s welfare. Count II alleged 13 that Defendant Sheriff Gibson (Gibson) was negligent in his policies, training, and 14 supervision of the County Dispatchers. Count III alleged that Gibson and Deputy 15 John Doe were negligent in failing to timely commence a missing person search for 16 Decedent. Count IV alle ged the negligence of the NMSP dispatch operator, 17 Defendant Sharon Doe (the NMSP Dispat cher), in failing to convey accurate 18 information and failing to verify the accuracy of the reported location. Count V 195 alleged the negligence of De fendant Chris Coley in his response to the dispatch. 1 Count VI alleged that the New Mexico Department of Public Safety (NMDPS) and 2 Defendant Faron Segotta (Sego tta) were negligent in failing to implement adequate 3 policies and failing to properly screen, hire, train, monitor, supervise, and/or discipline 4 NMSP employees, including the NMSP Dispatcher . Plaintiff further alleged that the 5 negligence of Gibson, the County Dispatch ers, and the NMSP Dispatcher occurred 6 while they were acting in th e scope of their duties as law enforcement officers and/or 7 public employees, as defined in the New Mexico Tort Claims Act, NMSA 1978, 8 Section 41-4-3(D), (F)(2) (2009). 9 Defendants filed a motion to dismiss C ounts I and II of Plaintiff’s complaint 10 pursuant to Rule 1-012(B)(6) and (C) NMRA. At the hearing on the motion to 11 dismiss, Defendants clarified that the moti on to dismiss did not deal with the counts 12 involving the NMSP or other Defendants, but only the Torrance County Defendants 13 in Counts I and II. The district court entered an order dismi ssing Counts I and II 14 involving Torrance County Defendants, as well as Counts IV and VI involving 15 Segotta and the NMSP. Although the record is unclear regarding why the district 16 court included Counts IV and VI in the order of dismissal, Plaintiff indicates that 17 Counts IV and VI were “included in the form of order” to allow the waiver of 18 immunity issue for the 911 dispatchers to bedecided together. Plaintiff subsequently 196 filed this interlocutory appeal. 1
DISCUSSION 2 Preliminary Matter Regarding Attachments to Briefs 3 Initially, we note that this Court did not consider Defendants’ attachments to 4 the answer brief on appeal. Rule 12-213(F)(4) NMRA explicitly prohibits 5 attachments to appellate briefs because thisCourt will not consider documents that are 6 not part of the record on appeal. In re Mokiligon , 2005-NMCA-021, ¶ 7, 137 N.M. 7 22, 106 P.3d 584. 8
Standard of Review 9 The district court dismissed Counts I, II, IV, and VI of Plaintiff’s complaint 10 pursuant to Rule 1-012(B)(6) for failure to state a claim for which relief could be 11 granted. We review the district court’s ruling de novo to determine whether Plaintiff 12 could “obtain relief under any state of facts provable under the claim.” N.M. Pub. 13 Schs. Ins. Auth. v. Arthur J. Gallagher & Co. , 2008-NMSC-067, ¶ 11, 145 N.M. 316, 14 198 P.3d 342 (internal quotation marks and citation omitted). “[W]e take the 15 well-pleaded facts alleged in the complaint as true and test the legal sufficiency of the 16 claims.” Hunnicutt v. Sewell , 2009-NMCA-121, ¶ 8, 147 N.M. 272, 219 P.3d 529 17 (internal quotation marks and citation omitted) . Finally, we construe the complaint 18 in the light most favorable to Plaintiff, resolving all doubts in favor of the sufficiency 197 of the complaint. Young v. Van Duyne , 2004-NMCA-074, ¶ 13, 135 N.M. 695, 92 1 P.3d 1269. 2 Waiver of Immunity for Law Enforcement Officers 3 Plaintiff argues that the district court erred in dismissing Counts I and IV of the 4 complaint because the County Dispatchers and the NMSP Dispatcher are subject to 5 the waiver of immunity for law enforcem ent officers as a matter of law under NMSA 6 1978, Section 41-4-12 (1977). In the alternative, Plaintiff contends that the district 7 court erred by not allowing Plaintiff to conduct additional disc overy regarding the 8 duties of the County and NMSP Dispatchers and other factual issues relevant to 9 whether dispatchers are law enforcement officers as defined by Section 41-4-3(D). 10 Plaintiff’s complaint alleged that the negligence of both the County Dispatchers 11 and the NMSP Dispatcher occurre d while they were acting inthe scope of their duties 12 as law enforcement officers, as defined inSection 41-4-3(D), (F)(2). In dismissing 13 Count I of Plaintiff’s complaint against the County Dispatchers, the district court 14 determined that the issue of whether di spatchers are law enfo rcement officers under 15 Section 41-4-3(D) is a question of law thatis appropriate for resolution in a motion 16 to dismiss. The court clarified that it did not consider affidavits submitted by 17 Defendants, including one affidavit regarding the duties of th e dispatchers. The court 18 ultimately determined that the County Disp atchers were not law enforcement officers 198 as a matter of law and dismissed Count I of Plaintiff’s complaint. On these same 1 grounds, the district court dismissed Count IV of Plaintiff’s complaint against the 2 NMSP Dispatcher. 3 In pertinent part, Section 41-4-12 waivesimmunity for wrongful death resulting 4 from the “deprivation of any rights, priv ileges[,] or immunities secured by the 5 constitution and laws of the United Stat es or New Mexico when caused by law 6 enforcement officers while acting within the scope of their duties.” Section 41-4-3(D) 7 defines a “law enforcement officer” as follows: 8 [A] full-time salaried public employ ee of a governmental entity, or a 9 certified part-time salaried police officer employed by a governmental 10 entity, whose principal duties under law are to hold in custody any 11 person accused of a criminal offense, to maintain public order or to make 12 arrests for crimes, or members of the national guard when called to 13 active duty by the governor[.] 14 Plaintiff argues that the County Dispat chers and the NMSP Dispatcher are law 15 enforcement officers because they maintain public order. 16 Whether a person is a law enforcement officer as contemplated by Section 41-4- 17 3(D) involves a mixed question of fact and law. See Limacher v. Spivey , 18 2008-NMCA-163, ¶ 9, 145 N.M. 344, 198 P.3d 370 (reasoning that whether a person 19 is a “law enforcement officer” as defined by Section 41-4-3(D) involves a question 20 of material fact) (internal quotation marks omitted); see also Baptiste v. City of Las 21
Cruces , 115 N.M. 178, 181, 848 P.2d 1105, 1108 (C t. App. 1993) (recognizing that 229 whether a person is a “law enforcement offi cer” involves questions of fact regarding 1 the person’s duties as well as legal ques tions regarding whether those duties fall 2 within the statutory defin ition of a law enforcement officer). In order for a 3 governmental employee to fall within the law enforcement exception, his or her 4 principal duties must be encompassed under one of the enumerated duties listed in 5 Section 41-4-3(D). Limacher , 2008-NMCA-163, ¶ 9. Furthe rmore, the district court 6 should consider various factual and legal questions, including the following: (1) 7 whether a majority of the governmental employee’s time is devoted to maintaining 8 public order; (2) insofar as the duties of the governmental employee involve 9 maintaining public order, whether those duties are traditionally performed by law 10 enforcement officers; and (3) if the duty isnot a traditional duty of law enforcement 11 officers, whether it comes within the meaning of “maintaining public order” pursuant 12 to Section 41-4-3(D). See Baptiste ,115 N.M. at 181, 848 P.2d at 1108. (internal 13 quotation marks omitted). 14 We hold that the district court erred in concluding that whether the County 15 Dispatchers and the NMSP Dispatcher ar e law enforcement officers pursuant to 16 Section 41-4-3(D) is purely a matter of law that was appropriate for resolution in a 17 Rule 1-012(B)(6) motion to dismiss. As a result, we reverse th e district court’s 18 dismissal of Counts I and IV of Plaintiff’s complaint and remand to the district court 1910 for further proceedings consistent with this Opinion. As in Baptiste , however, we note 1 that our reversal does not foreclose the di strict court from granting summary judgment 2 on this issue after the parties submit additional evidence to the court. 115 N.M. at 3 181, 848 P.2d at 1108. 4 Waiver of Immunity Based Upon the Op eration of Machinery or Equipment 5 Plaintiff argues that the district c ourt erred in dismi ssing Counts II and VI 6 pursuant to Rule 1-012(B)(6) because a waiver of immunity occurred under NMSA 7 1978, Section 41-4-6(A) (2007), based upon th e negligent operation of machinery or 8 equipment by the County Dispatchers and the NMSP Dispatcher. 9 Plaintiff alleged the following facts related to the negligent operation of 10 machinery or equipment and negligent training and supervision in the operation of that 11 equipment. The County Dispatchers comm unicated erroneous information regarding 12 Decedent’s location to the NMSP Dispatch er by utilizing the 911 telephone/dispatcher 13 equipment. Calls received by the County Di spatchers, including the 911 call at issue, 14 are recorded and are immediately availabl e for playback by the County Dispatchers. 15 The County Dispatchers and the NMSP Dispatcher failed to utilize the 911 16 telephone/dispatcher equipment to review and verify the accuracy of Decedent’s 17 location. The County Dispatchers and th e NMSP Dispatcher breached their duties as 18 public employees to exercise reasonable car e when serving as dispatchers, including 1911 the duty to convey accurate information re garding Decedent’s location. The conduct 1 of the Torrance County Dispatchers and th e NMSP Dispatcher “resulted in wrongful 2 death caused by the actions of public employ ees while acting in the scope of their 3 duties in the operation or maintenance of a building, machinery[,] and/or equipment.” 4 Finally, the failure of the Torrance County Dispatchers and the NMSP Dispatcher to 5 play back the 911 call or to take other acti ons to verify the accur acy of the call and to 6 ensure the welfare of Decedent were the re sult of inadequate policies, training, and 7 supervision. 8 The district court clarified that the basis of Plaintiff’s claim in Count II 9 regarding Gibson’s negligence in supervis ion and training was that Torrance County 10 was negligent in the operation of the 911 phone/dispatch equipment and, as a result, 11 a waiver of immunity occurred under Section 41-4-6(A). Ultimately, the court 12 concluded that Plaintiff failed to allegethat the phone used in answering and 13 responding to the 911 call caused injury base d upon its improper operation. The court 14 reasoned that the use of the phone was in cidental to the a lleged communication of 15 erroneous information and that the alle ged negligence was not based upon the use of 16 the phone, but the communication of erroneous information. As a result, the court 17 granted the motion to dismiss Count II pur suant to Rule 1-012( B)(6). The court 18 dismissed Count VI against NMDPS and Segotta on these same grounds. 1912 In pertinent part, Section 41-4-6(A) states that the immunity provided in NMSA 1 1978, Section 41-4-4 (2001), “does not apply to liability for damages resulting from 2 . . . wrongful death . . . caused by the negligence of public employees while acting 3 within the scope of their duties in the operation or maintenance of any . . . machinery 4 [or] equipment[.]” The meaning of “operation or maintenance” is broadly interpreted 5 “to encourage the [s]tate . . . to prevent or correct dangerous conditions on public 6 property.” Romero v. Valencia County , 2003-NMCA-019, ¶ 5, 133 N.M. 214, 62 P.3d 7 305 (internal quotation marks and citation omitted). 8
In Romero , this Court reversed the district court’s order of dismissal for failure 9 to state a claim wher e the complaint alleged injury caused by the negligence of public 10 employees in the operation or maintenance of a waste facility platform and that the 11 platform fell within the definition of buildings, machinery, equipment, or furnishings 12 under Section 41-4-6(A). See Romero , 2003-NMCA-019, ¶¶ 11-12. This Court has 13 also recognized that a defendant’s failure to provide equipment or proper training in 14 the use of equipment may be considered “operation and maintenance” as contemplated 15 by Section 41-4-6(A). See Garner v. Dep’t of Corr. , 120 N.M. 547, 548-49, 903 P.2d 16 858, 859-60 (Ct. App. 1995) (reversing dismissal of the complaint under Rule 1- 17 012(B)(6) and concluding that the defendant’s failure to provide safety glasses or 18 proper training in the use of equipment may be considered a part of operation and 1913 maintenance under Section 41-4-6(A)). 1 Relying upon Romero and Garner , we conclude that Plaintiff’s complaint stated 2 a claim that a waiver of immunity occurred under Section 41-4-6(A). Similarly, to 3
Romero , Plaintiff alleged wrongful death caused by the negligence of public 4 employees in the operation or maintenance of 911 telephone/dispatcher equipment and 5 that the equipment fell within the definition of buildings, machinery, or equipment 6 under Section 41-4-6(A). See Romero , 2003-NMCA-019, ¶¶ 11-12. Furthermore, 7 similar to Garner , Plaintiff alleged that the ne gligence of the Torrance County 8 Dispatchers and the NMSP Dispatcher in failing to properly utilize the 911 9 telephone/dispatcher equipment to play b ack the 911 call and to verify the accuracy 10 of Decedent’s location resulted from inadequate policies, training, and supervision. 11 120 N.M. at 549, 903 P.2d at 860. In construing the complaint in the light most 12 favorable to Plaintiff and re solving all doubts in favor of the complaint’s sufficiency, 13 we conclude that the distri ct court erred in dismissing Counts II and VI for a failure 14 to state a claim regarding a waiver of immunity under Section 41-4-6(A). See Young , 15 2004-NMCA-074, ¶ 13. 16 Our reversal does not, however, preclude the district court from considering 17 whether a waiver of immunity occurred under Section 41-4-6(A) on summary 18 judgment. See McCurry v. City of Farmington , 97 N.M. 728, 731, 643 P.2d 292, 295 1914 (Ct. App 1982) (concluding that utilizing fire trucks and other equipment to ignite and 1 put out fires during a training exercise fell within the meaning of operation and 2 maintenance of machinery, equipment, or furnishings under Section 41-4-6 and 3 reversing the district court’s award of summary judgment to the defendants); but see 4 Gallegos v. State , 107 N.M. 349, 351, 758 P.2d 299, 301 (Ct. App. 1987) (concluding 5 that using a mop wringer as a weapon did not provide a waiver of immunity under 6 Section 41-4-6 based upon the failure to allege that a def ect in the equipment caused 7 the injury and expressing concern that extending liability on those facts “would open 8 the door to liability for virtually all claims involving buildings, equipment, 9 machinery[,] or furnishings”). In this appeal, we simply hold that the district court 10 erred in granting Defendants’ motion to dismiss for failure to state a claim upon which 11 relief could be granted. Accordingly, wereverse the district court’s dismissal of 12 Counts II and VI under Rule 1-012(B)(6). 13
Enhanced 911 Act 14 Finally, Plaintiff argues that Section 63-9D-10 of the Enhanced 911 Act 15 confirms that the present, non-enhanced 911 systems were not intended to be immune 16 from suit. 17 We conclude that Plainti ff failed to preserve the Enhanced 911 Act issue, and 18 we decline to consider it on appeal. “To preserve an issue for review on appeal, it 1915 must appear that the appellant fairly invoked a ruling of the trial court on the same 1 grounds argued in the appellate court.” Lopez v. Las Cruces Police Dep’t , 2 2006-NMCA-074, ¶ 6, 139 N.M. 730, 137 P. 3d 670 (alteration omitted) (internal 3 quotation marks and citation omitted). “[O]n appeal, the party must specifically point 4 out where, in the record, the party invoked th e court’s ruling on the issue. Absent that 5 citation to the record or any obvious preservation, we will not consider the issue.” 6 Crutchfield v. N.M. Dep’t of Taxation & Revenue , 2005-NMCA-022, ¶ 14, 137 N.M. 7 26, 106 P.3d 1273. Here, Plaintiff fails to cite to the record to show how the 8 Enhanced 911 Act issue was preserved be low or to provide any argument that 9 preservation was not required, and we similarly were unabl e to locate any preservation 10 of the issue in the record. As a result, we decline to address Plaintiff’s argument 11 regarding the Enhanced 911 Act on appeal. 12 Similarly, we do not address Defendants’ Enhanced 911 Act argument under 13 the right for any reason doctrine. Even if an issue was not preserved below, “our 14 appellate courts will affirm a district court’s decision if it is right for any reason, so 15 long as the circumstances do not make it unfair to the appellant to affirm.” Cordova 16 v. World Fin. Corp. of N.M. , 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901; see 17 Meiboom v. Watson , 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 18 (reasoning that when applying a right for any reason doctrine, appe llate courts will not 1916 assume the district court’s role and delve into fact-dependent inquiries). Neither party 1 raised factual allegations below regarding whether Torrance County and the NMSP 2 had enhanced 911 systems. Furthermore, on appeal, the parties dispute the critical 3 factual issue regarding whether Torrance C ounty had an enhanced 911 system at the 4 time of the incident. As a result, we conclude that it would be unfair to Plaintiff for 5 this Court to address Defendants’ new arguments regarding the Enhanced 911 Act for 6 the first time on appeal. 7
CONCLUSION 8 For the foregoing reasons, we reverse the district court’s dismissal of Counts 9 I, II, IV, and VI of Plaintiff’s complaint, and we remand for further proceedings 10 consistent with this Opinion. 11
IT IS SO ORDERED. 12

______________________________ 13 TIMOTHY L. GARCIA, Judge 14

WE CONCUR: 1517 _________________________________ 1 CYNTHIA A. FRY, Judge 2

_________________________________ 3 RODERICK T. KENNEDY, Judge 4