Dart v. Westall

• Decision Date: 23 July 2018
• Docket Number: NO. A-1-CA-34675,A-1-CA-34675
• Citation: 428 P.3d 292
• Parties: Frank DART, Plaintiff-Appellee, v. Chief Kyle WESTALL, City of Farmington Police Department, and City of Farmington, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

428 P.3d 292

Frank DART, Plaintiff-Appellee,

v.Chief Kyle WESTALL, City of Farmington Police Department, and City of Farmington, Defendants-Appellants.

NO. A-1-CA-34675

Court of Appeals of New Mexico.

Filing Date: July 23, 2018

Kennedy Kennedy & Ives, LLC, Shannon L. Kennedy, Joseph P. Kennedy, Laura S. Ives, Albuquerque, NM, for Appellee.

Miller Stratvert P.A., Virginia Anderman, Albuquerque, NM, Lorenz Law, Alice T. Lorenz, Albuquerque, NM, for Appellants.

VIGIL, Judge.

{1} The City of Farmington, Farmington Police Department (FPD), and FPD Chief Kyle Westall (collectively, Defendants), appeal from a jury verdict awarding damages to Plaintiff Frank Dart, an FPD detective, under New Mexico's Whistleblower Protection Act (the WPA), NMSA 1978, §§ 10-16C-1 to -6 (2010). Plaintiff's WPA claim stemmed from his communication to Defendants that he believed Defendants were in violation of NMSA 1978, Section 32A-4-3 (2005)¹ by failing to promptly and immediately investigate reports of child abuse and neglect referred to FPD from the New Mexico Children, Youth and Families Department (CYFD). Defendants raise four issues on appeal: (1) whether the district court erred in denying their pretrial motion for summary judgment; (2) whether the jury's verdict in favor of Plaintiff was supported by substantial evidence; (3) whether the district court abused its discretion in denying admission of internal FPD memoranda that Defendants contend were crucial to their defense; and (4) whether a comment made by Plaintiff's counsel during a bench conference, which may have been heard by the jury, prejudiced Defendants and tainted the jury's verdict. We affirm.

BACKGROUND

{2} As an FPD detective, Plaintiff was assigned to investigate crimes against children, including CYFD referrals. He was later assigned to serve simultaneously on an FBI-FPD Cyber Crime Task Force (CCTF) aimed at investigating and apprehending high-technology criminals. At the time of the communications underlying Plaintiff's WPA claims, Plaintiff's direct supervisor was Sergeant Robert Perez. Plaintiff's complaint alleged multiple violations of the WPA. Defendants' motion for summary judgment was granted on all the claimed violations except one. The district court determined that there were disputed issues of material fact about whether Plaintiff made communications to FPD concerning the department's failure to fulfill its statutory duties under Section 32A-4-3 and whether those communications were protected under the WPA, and permitted this claim to proceed to trial.

{3} Following trial, the jury awarded Plaintiff $4,000 in economic damages and awarded $200,000 damages for emotional pain and suffering. Defendants filed two post-trial motions. The first sought judgment as a matter of law, arguing that Plaintiff failed to present sufficient evidence to support the verdict. The second sought remittitur of the award for pain and suffering, or in the alternative, a new trial, arguing that the jury's award was not supported by the evidence, and the district court erred in excluding evidence that Defendants argued was crucial to their defense, and that Defendants were prejudiced by statements made by Plaintiff's counsel during a bench conference that may have been heard by the jury. The district court denied the post-trial motions, and Defendants appeal.

DISCUSSION

I. The District Court's Partial Denial of Defendants' Motion for Summary Judgment

{4} We begin by addressing Defendants' claim that the district court erred in denying their motion for summary judgment. Because it did so only on the basis of its finding that Plaintiff had raised genuine issues of material fact existed as to whether Plaintiff engaged in communications protected under the WPA, this argument is not reviewable. See Green v. Gen. Accident Ins. Co. of Am. , 1987-NMSC-111, ¶ 19, 106 N.M. 523, 746 P.2d 152 (holding that "denial of a motion for summary judgment is not reviewable after final judgment on the merits[, and i]f a summary judgment motion is improperly denied, the error is not reversible for the result becomes merged in the subsequent trial"); Gallegos v. State Bd. of Educ. , 1997-NMCA-040, ¶¶ 7-12, 123 N.M. 362, 940 P.2d 468 (stating that a narrow exception to the general rule stated in Green applies to permit post-trial appeal of denial of summary judgment, but only if "(1) the facts are not in dispute; (2) the only basis of the ruling is a matter of law which does not depend to any degree on facts to be addressed at trial; (3) there is a denial of the motion; and (4) there is an entry of a final judgment with an appeal therefrom"). The Green exception does not apply because as already discussed, the facts in the summary judgment record were disputed. Moreover, those disputes were resolved by the jury in Plaintiff's favor after hearing both sides.

II. Sufficiency of the Evidence Establishing Plaintiff's WPA Claim

{5} The focus of Defendants' appeal is that insufficient evidence was presented to support the jury's verdict in favor of Plaintiff under the WPA. Specifically, Defendants challenge the sufficiency of the evidence to establish that (1) "Plaintiff engaged in protected activity by communicating to his superiors his belief that [Defendants] were violating state law by failing [their] duty required by state law"; and (2) "Plaintiff had a good faith belief that ... Defendants were in violation of state law[.]"

A. Standard of Review

{6} "In reviewing a sufficiency of the evidence claim, this Court views the evidence in a light most favorable to the prevailing party and disregards any inferences and evidence to the contrary." Littell v. Allstate Ins. Co. , 2008-NMCA-012, ¶ 13, 143 N.M. 506, 177 P.3d 1080 (alteration, internal quotation marks, and citation omitted). "We defer to the jury's determination regarding the credibility of witnesses and the reconciliation of inconsistent or contradictory evidence." Id. "We simply review the evidence to determine whether there is evidence that a reasonable mind would find adequate to support a conclusion." Id. (internal quotation marks and citation omitted). "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." Atler v. Murphy Enters. Inc. , 2005-NMCA-006, ¶ 13, 136 N.M. 701, 104 P.3d 1092 (internal quotation marks and citation omitted); see also Littell , 2008-NMCA-012, ¶ 33, 143 N.M. 506, 177 P.3d 1080 (stating that in reviewing the jury's verdict in favor of the plaintiff as to his hostile work environment claim for substantial evidence, "[w]e evaluate the evidence with reference to the language of the jury instructions given, which constitute the law of the case").

B. The Jury Instructions

{7} There were no objections to any of the jury instructions we discuss below. The jury was instructed, in pertinent part:

The Plaintiff ... seeks compensation from ... Defendants ... for damages that Plaintiff says were caused by retaliatory actions in violation of the [WPA.]

More specifically, Plaintiff asserts the following:

1. While Plaintiff was a detective, he communicated to his superiors his good faith belief that the Defendants were violating state law by failing in [their] duties regarding the handling of child abuse cases.

2. Based upon his communications to his superiors that ... Defendants ... were violating the law, Plaintiff's superiors engaged in retaliatory action against the Plaintiff.

3. Plaintiff suffered economic and emotional damage because of the adverse employment action taken against him.

4. Plaintiff claims he is entitled to damages he suffered because Defendants' actions violated the [WPA].

The jury was further instructed that Plaintiff had the burden of proving the following essential elements "by the greater weight of the evidence":

1. Plaintiff engaged in protected activity by communicating to his superiors his belief that ... [ ]Defendants[ ] were violating state law by failing [their] duty required by state law;

2. Plaintiff had a good faith belief that ... Defendants were in violation of state law;

3. Plaintiff suffered a retaliatory action by Defendants;

4. Plaintiff's protected activity was a cause of the retaliatory action;

5. ... Plaintiff suffered damages because of the retaliatory actions.

"The jury was instructed that [t]o prove by the greater weight of the evidence means to establish that something is more likely true than not true." A "fact[,]" the jury was also instructed, "may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved."

C. Analysis

1. Sufficient Evidence Was Presented to Establish That Plaintiff Engaged in Communications That Constituted a "Protected Activity"

{8} Regarding the first element of Plaintiff's WPA claim, the jury was instructed that "[a] public employer violates the [WPA] if it takes a ‘retaliatory action’ against a public employee because the public employee communicates to the public employer, or to a third party, information about an action or a failure to act that the public employee believes in good faith constitutes an unlawful or improper act." This kind of communication constitutes a "protected activity." After deliberations, the jury answered "Yes" in response to a special interrogatory asking whether "Plaintiff engage[d] in protected activity by communicating to his superiors his belief that Defendants were violating state law by failing its duty required by state law[.]"

{9} The evidence at trial established that Plaintiff communicated to his supervisors and chain of command between 2002 and 2011 his belief that FPD was not timely investigating CYFD referrals. Plaintiff first voiced this belief in 2002 to his supervisor at the time, Sergeant Kim Walker, who responded by telling Plaintiff that "he didn't have time to deal with it, that he knew that there were a lot of" CYFD referrals, and that Plaintiff just needed...