Boudar v. E.G.& G., Inc.

• Decision Date: 27 August 1987
• Docket Number: No. 16167,16167
• Citation: 742 P.2d 491,106 N.M. 279,1987 NMSC 77
• Parties: , 2 Indiv.Empl.Rts.Cas. (BNA) 1420 Jean BOUDAR, Plaintiff-Appellee, v. E.G. & G., INC., a foreign corporation, Defendant-Appellant, v. John BUENETTE, et al., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 491

742 P.2d 491

106 N.M. 279, 2 Indiv.Empl.Rts.Cas. (BNA) 1420

Jean BOUDAR, Plaintiff-Appellee, v. E.G. & G., INC., a foreign corporation, Defendant-Appellant, v. John BUENETTE, et al., Defendants-Appellees.

No. 16167.

Supreme Court of New Mexico.

Aug. 27, 1987.

Rehearing Denied Sept. 16, 1987.

Sutin, Thayer & Browne, Randy S. Bartell, Ron Segel, Santa Fe, for defendant-appellant.

Ortega & Snead, Michael Bustamante, Paskind, Lynch & Printz, Myra C. Lynch, Albuquerque, for plaintiff-appellee Boudar.

OPINION

SOSA, Senior Justice.

This matter is before us on rehearing. In our original opinion, Boudar v. E.G. & G., Inc., 105 N.M. 151, 730 P.2d 454 (1986), we reversed judgment in favor of Jean Boudar (Boudar) granted by the trial court sitting with a jury. In reversing, we found two errors: (1) the trial court should not have submitted to the jury Boudar's tort claim for wrongful discharge from his employment, and (2) the trial court should not have submitted to the jury Boudar's count alleging breach of contract of employment. On December 31, 1986, we denied Boudar's motion for rehearing. Then, however, after Boudar filed his motion for reconsideration of our denial of his motion for rehearing, we granted Boudar's motion for rehearing. After further consideration of the opinion filed on December 12, 1986, the pleadings of record, the original briefs on appeal, and the parties' briefs relevant to the motion for rehearing, we agree with Boudar that in our original opinion this Court misperceived certain aspects of the record and improvidently arrived at its decision. Accordingly, we withdraw the opinion filed on December 12, 1986 and substitute in its stead the following opinion, in which we affirm the trial court's judgment in its entirety.

Since our original opinion sets forth clearly the factual and procedural context out of which the appeal arose, we do not repeat such matters here.

THE ISSUE RAISED BY THE COURT OF APPEALS' PROSPECTIVE APPLICATION OF VIGIL V. ARZOLA

In our original opinion, we relied on the court of appeals' ruling in Vigil v. Arzola, 102 N.M. 682, 699 P.2d 613 (Ct.App.1983), rev'd on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984), ¹ and in particular on that portion of the court of appeals' ruling in which the newly defined public policy exception to the termination-at-will rule was given "modified prospective application." Id. 102 N.M. at 690-91, 699 P.2d at 621-22. We thus ruled that "[u]nder the court of appeals' holding concerning prospectivity, the rule of Vigil is not applicable to this case. The rule which is applicable to this case is the terminable-at-will rule. * * * " Boudar v. E.G. & G., Inc., 105 N.M. at 153, 730 P.2d at 456.

Upon reconsideration, we hold that the "modified prospective application" rule of Vigil v. Arzola was too narrowly defined. The court of appeals in Vigil ruled that only plaintiffs whose cases were filed after the date its decision became final were entitled to rely on the newly enunciated rule concerning the public policy exception to the terminable-at-will rule. In our judgment, plaintiffs asserting a cause of action based on the public policy exception should not be denied access to the courts on this issue simply because of the date on which their attorneys reach the courthouse with their clients' complaints. Hypothesize, for example, two plaintiffs with identical claims against their respective employers, both of whom raise well-pleaded causes of action based on the public policy exception. One client's attorney files the complaint the day before the ruling in Vigil became final, while the other client's attorney is dilatory in taking his pleadings to the courthouse, and thus files after the Vigil decision became final. Is either justice or logic served by denying the first plaintiff a day in court because his attorney was more diligent than the second attorney?

We feel that the modified prospective application of Vigil should be expanded as follows: For all cases filed on or before July 5, 1983, the date of the court of appeals' opinion, plaintiffs, counter-claimants or cross-claimants asserting in their pleadings of record a cause of action for retaliatory discharge which embodies the public policy exception, may rely on the Vigil rule in the prosecution of their actions, so long as trial of the case was not completed

[106 NM 281] before July 5, 1983. Naturally, similar causes of action filed after July 5, 1983 may also be predicated on the Vigil ruling. To the extent that the court of appeals' decision as to modified prospective application differs from the position we have advanced above, that decision is overruled. Accordingly, since trial in the present case began in 1985, even though the complaint was filed in 1982, we hold that the trial court did not err in allowing the jury to consider the issue of Boudar's tort claim for wrongful discharge.

THE ISSUE RAISED BY BOUDAR'S CLAIM OF BREACH OF CONTRACT OF EMPLOYMENT

In reviewing the record below, we find that we too narrowly evaluated the substance and content of the pleadings when we ruled in the decision filed on December 12, 1986 that "the first count of plaintiff's amended complaint did not plead a claim of breach of contract of employment and E.G. & G. never consented to trial of a claim for breach of contract." Boudar v. E.G. & G., Inc., 105 N.M. at 153, 730 P.2d at 456. Closer scrutiny of the record reveals that Boudar explicitly raised the contract issue and that E.G. & G. was fully apprised of this issue before trial.

In Boudar's original complaint paragraph seven stated: "Under normal circumstances, as a matter of implied contract or oral agreement between the plaintiff and E.G. & G., plaintiff would have been entitled to remain in his employment with the defendant E.G. & G., Inc. throughout such time as his services and performance as a photo lab technician were satisfactory." In Boudar's amended complaint, paragraph seven was changed to read in pertinent part: "Under normal circumstances, as a matter of express contract, implied contract or oral agreement * * * [then repeating the words in the original paragraph seven]" In E.G. & G.'s sixth affirmative defense to the amended complaint, it denied that Boudar had a contract of employment with E.G. & G. The conclusion is inescapable that E.G. & G. had thus been put on notice as to Boudar's allegation of breach of express and implied contract. Further, in E.G. & G.'s memorandum in support of its motion for partial summary judgment, it denies that two individual defendants interfered with Boudar's "contractual rights," speaks of another individual defendant's denying that Boudar had an "express contract," and concludes by saying: "Even if the Court believes that a question of fact exists as to whether plaintiff had a contract of employment, the record is undisputed that [certain individual] defendants cannot be liable for interference with contract."

The record clearly shows that Boudar properly pleaded a cause of action based on breach of contract, that E.G. & G. was put on notice as to this cause of action, and that the trial court properly allowed the jury to consider Boudar's contract claim. Any technical insufficiencies in Boudar's pleadings were overcome by the substantive content of the allegations raised therein, and the trial court thus correctly construed the pleadings so as to do substantial justice. Morrison v. Wyrsch, 93 N.M. 556, 603 P.2d 295 (1979); Wendenburg v. Allen Roofing Co., 104 N.M. 231, 719 P.2d 809 (1986).

ISSUES RAISED BY BOUDAR'S MOTION FOR REHEARING

E.G. & G. argues that we improperly granted Boudar's motion for rehearing, particularly because we had already denied Boudar's similar motion on December 31, 1986. Boudar's response to our first denial was to file a motion for reconsideration fourteen days after we had denied his original motion for rehearing, seeking another determination of the issues he had raised on appeal.

E.G. & G. argues that our granting of Boudar's motion for reconsideration will open the floodgates of endless post-appeal motions, so that litigants, and the bench and bar in general, will never be able to assure themselves that a case has been finally resolved. We acknowledge the wisdom of E.G. & G.'s argument, but we cannot allow the possibility of the future abuse of the procedure permitted here to deny justice to a party who has properly pursued his rights in the courts. Our decisions In Central Adjustment Bureau, Inc. v. Thevenet, 101 N.M. 612, 686 P.2d 954 (1984), we likewise admitted our oversight in a case in which we had made a decision that we considered final. There we held: "It cannot be questioned that, upon the [Supreme] Court's own motion or upon motion of any of the parties, the Court may recall its mandate [in order] to correct or clarify a matter inadvertently overlooked." Id. at 614, 686 P.2d at 956. Here, whether through "inadvertance" as in Central Adjustment Bureau, Inc. v. Thevenet, or because we have "overlooked or misapprehended" points of law or fact, as in SCRA 1986, Section 12-404, we must not allow procedural considerations to diminish the obligation we have to hasten a case toward a conclusion based on substantial justice. We note also that Section 12-404 states that a motion for rehearing may be filed "within fifteen (15) days after filing of the appellate court's disposition, or any subsequent modification of its disposition. * * * " (Emphasis added.) Sec. 12-404. Boudar's motion for reconsideration of our initial denial of his motion for rehearing can properly be considered a motion filed after a subsequent modification of our original denial.

[106 NM 282] must be final because they are right, and not right because they are final, even if we must take the untoward action of acknowledging our incorrect limitation of the issues presented to us on previous rehearing.

DISPOSAL OF SUBSTANTIVE ISSUES RAISED ON ORIGINAL APPEAL

E.G. & G....