Alstad v. City of Albuquerque

• Docket Number: A-1-CA-41096
• Decision Date: 26 December 2023
• Parties: MICHAEL ALSTAD, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

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MICHAEL ALSTAD, Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE, Defendant-Appellee.

No. A-1-CA-41096

Court of Appeals of New Mexico

December 26, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY DANIEL E. RAMCZYK, DISTRICT COURT JUDGE

Western Agriculture, Resource and Business Adovocates, LLP A. Blair Dunn Jared R. Vander Dussen Albuquerque, NM for Appellant

City of Albuquerque Victoria A. Gammill Ian G. Stoker Albuquerque, NM for Appellee

MEMORANDUM OPINION

JANE B. YOHALEM, Judge

{¶1} Plaintiff appeals from the district court's order granting summary judgment in favor of Defendant, on Plaintiff's claim pursuant to the Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6 (2010). [2 RP 449-51] This Court

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issued a notice of proposed disposition considering Plaintiff's arguments and proposing to affirm. [CN 6] Plaintiff has filed a memorandum in opposition to this Court's notice of proposed disposition. Defendant has filed a memorandum in support. Having given due consideration to Plaintiff's arguments, this Court affirms the grant of summary judgment.

{¶2} In this Court's calendar notice, we proposed to conclude that the district court did not err in resolving this complaint at the summary judgment phase. [CN 6] We acknowledged that Plaintiff argued that disputed material facts remained, but we noted that Plaintiff's docketing statement did not contain "a single fact regarding his case that would allow this Court to propose to conclude that the district court erred." [CN 4] See Rule 12-208 NMRA; State v. Talley, 1985-NMCA-058, ¶ 23, 103 N.M. 33, 702 P.2d 353 (explaining that a docketing statement is intended to serve as a fair substitute for the complete record on the summary calendar).

{¶3} In response to our notice, Plaintiff provides this Court with facts that Plaintiff claims are material and remain in dispute. [MIO 2-4] However, Plaintiff does not elaborate as to how those allegedly disputed facts are material to the WPA claim that Plaintiff asserts against Defendant. Plaintiff's response does not provide, for example, an explanation of the grounds on which Defendant sought summary judgment, the evidence presented to support Defendant's claims, the grounds on which the district court ruled, and how Plaintiff's evidence and argument in district

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court responded to Defendant's showing, in order to defeat summary judgment. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 ("We will not search the record for facts, arguments, and rulings in order to support generalized arguments."); In re Estate of Heeter, 1992-NMCA-032, ¶ 15, 113 N.M. 691, 831 P.2d 990 ("This [C]ourt will not search the record to find evidence to support an appellant's claims.").

{¶4} As we explained in our calendar notice, on summary judgment, with regard to factual disputes, the non-moving party is required to set forth "specific facts showing that there is a genuine issue for trial." See Rule 1-056(E) NMRA. "A party opposing a motion for summary judgment must make an affirmative showing by affidavit or other admissible evidence that there is a genuine issue of material fact once a prima facie showing is made by the movant." Associated Home & RV Sales, Inc. v. Bank of Belen, 2013-NMCA-018, ¶ 29, 294 P.3d 1276...