Thompson v. Potter

Decision Date12 December 2011
Docket NumberNo. 29,705.,29,705.
Citation268 P.3d 57,2012 -NMCA- 014
PartiesT. David THOMPSON, Individually and as the Personal Representative of the Estate of Carolyn Rose Bennett, Plaintiff–Appellant, v. Doyle D. POTTER, R.PH., and NCS Healthcare of New Mexico, Inc., a/k/a NCS Healthcare Albuquerque, Defendants–Appellees.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Sandenaw Law Firm, P.C., Thomas A. Sandenaw, Jr., CaraLyn Banks, Las Cruces, NM, for Appellant.

Keleher & McLeod, P.A., Thomas C. Bird, Kathleen M. Wilson, Hari–Amrit Khalsa, Albuquerque, NM, for Appellees.

OPINION

VIGIL, Judge.

{1} This case requires us to examine for the first time the nature of the duty owed by a consulting pharmacist that has contracted with a nursing facility to provide pharmaceutical services to the patients of the nursing facility. On the record before us, we hold that there is no issue of material fact and that Defendants were properly granted summary judgment on all of Plaintiff's claims.

BACKGROUND

{2} Ms. Carolyn Bennett was admitted to the Casa Arena Blanca nursing home with a diagnosis of early dementia. Upon admission, her doctor prescribed Ativan to control agitation and seizure activity commonly associated with dementia. The prescription ordered that Ativan be administered three times per day, as well as on an as-needed “prn” basis for severe agitation. Eleven months after her admission, Ms. Bennett's doctor called Casa Arena and told a nurse employed by Casa Arena to discontinue the as-needed Ativan dose. The nurse improperly transcribed the order. Instead of discontinuing the as-needed Ativan dose, the nurse discontinued the daily dose. After missing twenty-one scheduled daily doses of Ativan over a period of seven days, Ms. Bennett suffered a grand mal seizure in her bathroom at Casa Arena and fell, which resulted in a fracture to her right hip. Ms. Bennett later died.

{3} Plaintiff, as husband and personal representative of Ms. Bennett, sued, asserting that Ms. Bennett's seizure was caused by the sudden and abrupt withdrawal of Ativan. He did not sue the nurse who improperly transcribed the doctor's order; he did not sue the nurse's employer, Casa Arena; and he did not sue the doctor who changed the prescription. He sued NCS Healthcare of Albuquerque (NCS),1 which was under contract with Casa Arena to provide pharmacy consultant services and pharmacy services to Casa Arena, and its registered pharmacist, Doyle Potter (Defendant). Plaintiff brought claims against NCS and Defendant for breach of contract, negligence, and negligence per se.

{4} Defendants filed motions for summary judgment. The district court initially denied the motions but then reconsidered and granted summary judgment in favor of Defendants on all of Plaintiff's claims. Plaintiff appeals, and we affirm. In our analysis of the issues, we discuss additional facts as necessary.

DISCUSSIONThe District Court's Reconsideration of Defendants' Motion for Summary Judgment

{5} As an initial matter, we address Plaintiff's argument that the district court erred in reconsidering Defendants' previously denied motions for summary judgment. The denial of a summary judgment motion is an interlocutory order and may be reconsidered by the district court at any time before final judgment. Tabet Lumber Co. v. Romero, 117 N.M. 429, 431, 872 P.2d 847, 849 (1994). Further, [i]t is permissible to renew motions for summary judgment previously denied.” Cordova v. City of Albuquerque, 86 N.M. 697, 705, 526 P.2d 1290, 1298 (Ct.App.1974). To the extent Plaintiff suggests that the district court must provide a rationale for reconsidering its order, Plaintiff has failed to cite any rule or case which requires the district court to state the basis for reconsidering its denial of a motion for summary judgment. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (explaining that issues raised on appeal that are unsupported by legal authority will not be reviewed on appeal). Further, while it is certainly preferable to know the district court's basis for granting or denying a motion for summary judgment, there is no requirement that the district court state its reasons beyond a statement that no genuine issues of material fact exist, and a specification of the ground upon which summary judgment has been granted if alternative grounds seeking summary judgment have been presented. Skarda v. Skarda, 87 N.M. 497, 499–500, 536 P.2d 257, 259–60 (1975); Rule 1–056(C) NMRA.

{6} Thus, we conclude that the district court did not err in reconsidering Defendants' previously denied motions for summary judgment, and we proceed to determine whether summary judgment was properly granted on the merits.

Standard of Review

{7} “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.

{8} The party moving for summary judgment has the burden of establishing a prima facie case for summary judgment by presenting “such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.” Romero v. Philip Morris Inc., 2010–NMSC–035, ¶ 10, 148 N.M. 713, 242 P.3d 280. The burden then “shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Id. (internal quotation marks and citation omitted). “When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Rule 1–056(E).

Breach of Contract Claims

{9} NCS and Casa Arena entered into two contracts, a pharmacy consultant agreement in which NCS agreed “to be responsible for the general supervision of the pharmaceutical products and pharmacy services provided” to Casa Arena and a pharmacy services agreement that relates to the purchase of pharmacy products and services. Plaintiff contends that NCS violated these contracts in various ways, causing Ms. Bennett's injuries and damages. Plaintiff asserts that although Ms. Bennett was not a party to the contracts, the breach of contract claims survive because NCS and Casa Arena intended Casa Arena residents, including Ms. Bennett, to be third-party beneficiaries of the contracts. Plaintiff bases his argument on the fact that performance of the contracts results in benefits to Casa Arena residents. Conversely, Defendants argue that the contracts in plain language clearly and unambiguously express an intent to exclude any rights in third parties. Defendants specifically point to a clause in both agreements that states: “Nothing in this Agreement is intended nor will be deemed to confer any benefits on any third party.” We therefore proceed to determine whether Ms. Bennett is a third-party beneficiary of the contracts.

{10} Generally, [o]ne who is not a party to a contract cannot sue to enforce it.” Casias v. Cont'l Cas. Co., 1998–NMCA–083, ¶ 11, 125 N.M. 297, 960 P.2d 839. However, [a] third-party may have an enforceable right against an actual party to a contract if the third-party is a beneficiary of the contract.” Callahan v. N.M. Fed'n of Teachers–TVI, 2006–NMSC–010, ¶ 20, 139 N.M. 201, 131 P.3d 51. There are two classes of potential beneficiaries to a contract, intended and incidental. Tarin's, Inc. v. Tinley, 2000–NMCA–048, ¶ 13, 129 N.M. 185, 3 P.3d 680. Only an intended beneficiary has a right to enforce a contract to which he is not a party. Id. The determination of whether a party is an intended beneficiary depends on the intent of the parties in making the contract. Id. Intent to benefit a third party “must appear either from the contract itself or from some evidence that the person claiming to be a third party beneficiary is an intended beneficiary.” Valdez v. Cillessen & Son, Inc., 105 N.M. 575, 581, 734 P.2d 1258, 1264 (1987). Permian Basin Inv. Corp. v. Lloyd, 63 N.M. 1, 7–8, 312 P.2d 533, 537 (1957). Incidental beneficiaries, on the other hand, are those who may derive incidental benefits from the performance of the contract but who were not intended to have rights to enforce it. Plaintiff contends that there are ambiguities in the contracts concerning whether the residents are third-party beneficiaries, and that the district court should have considered extrinsic evidence to determine whether such ambiguities existed. We take each argument in turn.

A. Viewing the Contract as a Harmonious Whole

{11} Plaintiff argues that when viewed as a harmonious whole, the contracts between NCS and Casa Arena evidence an intent to benefit Casa Arena residents. Plaintiff argues that despite the third-party exclusionary clauses, the parties' intent is evidenced by benefits to Casa Arena residents which result from performance of the contracts. Thus, Plaintiff contends, the contracts are ambiguous as to whether the third-party exclusionary clauses include Casa Arena residents.

{12} Courts view the entire contract to determine if there is an ambiguity. Heye v. Am. Golf Corp., 2003–NMCA–138, ¶ 14, 134 N.M. 558, 80 P.3d 495. A contract is ambiguous if different sections conflict or if the language of the contract is capable of...

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