Salehpoor v. New Mex. Inst. of Mining & Tech.

• Decision Date: 06 June 2019
• Docket Number: No. A-1-CA-36622,A-1-CA-36622
• Citation: 447 P.3d 1169
• Parties: Karim SALEHPOOR, Plaintiff-Appellee, v. NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Defendant-Appellant, and Warren Ostergren, Dr. Tom Engler, Board of Regents of the New Mexico Institute of Mining and Technology, and Daniel Lopez, Defendants.
• Court: Court of Appeals of New Mexico

447 P.3d 1169

Karim SALEHPOOR, Plaintiff-Appellee,

v. NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Defendant-Appellant,andWarren Ostergren, Dr. Tom Engler, Board of Regents of the New Mexico Institute of Mining and Technology, and Daniel Lopez, Defendants.

No. A-1-CA-36622

Court of Appeals of New Mexico.

Filing Date: June 6, 2019

Santiago E. Juarez, Albuquerque, NM, for Appellee.

Keleher & McLeod, P.A., Sean Olivas, Chris R. Marquez, Albuquerque, NM, for Appellant.

IVES, Judge.

{1} Plaintiff Karim Salehpoor sued his former employer, Defendant New Mexico Institute of Mining and Technology, claiming, among other things, that Defendant wrongfully discharged him in violation of his employment contract. Defendant moved for summary judgment based on two theories of sovereign immunity under NMSA 1978, Section 37-1-23 (1976): (1) that Plaintiff’s claim was time-barred and (2) that his claim was not based on a valid written contract. The district court denied the motion. We granted Defendant’s petition for a writ of error pursuant to Rule 12-503 NMRA to review the nonfinal order. We affirm.

FACTS AND PROCEDURAL HISTORY

{2} Beginning in January 2008, Defendant employed Plaintiff as a tenure-track mechanical engineering professor under a series of written one-year employment contracts, the most recent of which covered the 2011/2012 academic year from August 8, 2011, through May 11, 2012. On April 2, 2012, Defendant’s Vice President of Academic Affairs sent Plaintiff a memorandum informing him that Defendant would not enter into a new employment contract with him and directing him to "surrender all [of Defendant’s] property[,] including keys[,]" by May 11, 2012. Plaintiff continued working for Defendant through that date.

{3} Plaintiff commenced this lawsuit on May 12, 2014, alleging that Defendant had breached their contract by wrongfully terminating him in violation of "the total employment agreement."¹ See generally Garcia v. Middle Rio Grande Conservancy Dist. , 1996-NMSC-029, 121 N.M. 728, 918 P.2d 7 (holding that an implied employment contract based on a written personnel policy is a "written contract" for purposes of Section 37-1-23(A) ); Whittington v. State Dep’t of Pub. Safety , 2004-NMCA-124, 136 N.M. 503, 100 P.3d 209 (making clear that the implied employment contract doctrine is applicable beyond the context of at-will employment and contractual terms relating to termination). Plaintiff alleged that his employment had ended on May 11, 2012,² when Defendant "breached [the] employment contract... by terminating [him,]" and that Defendant also breached the employment contract "[o]n or about April 2012" when it gave "notice of the impending termination of Plaintiff." Plaintiff alleged that his contract with Defendant "was reinforced and amplified by certain written personnel practices, memoranda, policies, and procedures ... based upon which Plaintiff had a reasonable expectation of continued employment with discharge only for good cause proven." The complaint specified that Defendant’s

written policies and procedures and actual practices included a program of "progressive discipline" through which [Defendant] created self-imposed limitations on any discharge or discipline of an employee. These written policies and actual practices expressly limited the grounds for discharge and created self[-]imposed mandatory pre-termination steps and procedures.

{4} Defendant moved for summary judgment on Plaintiff’s wrongful discharge claim based on two theories of sovereign immunity under Section 37-1-23. Defendant argued first that Section 37-1-23(B) barred Plaintiff’s claim for wrongful discharge based on breach of contract because Plaintiff filed his complaint more than two years after his claim accrued. The parties did not dispute that Defendant gave Plaintiff notice of his termination on April 2, 2012, that Plaintiffs’ employment terminated May 11, 2012, or that Plaintiff filed his complaint on May 12, 2014. Whether summary judgment was appropriate hinged on whether Plaintiff brought his claim "within two years from the time of accrual." Section 37-1-23(B). Plaintiff argued that his claim accrued from the date of his termination, May 11, 2012, while Defendant argued that Plaintiff’s claim accrued on April 2, 2012, when Defendant gave Plaintiff the notice of nonrenewal.

{5} As an additional basis for summary judgment, Defendant argued that Section 37-1-23(A) barred Plaintiff’s claim because it was not based on a valid written contract. This was so, according to Defendant, because Plaintiff had failed to allege that Defendant had breached a specific contractual term of any policy, employment manual, or other document. In response, Plaintiff pointed to his interrogatory answers and affidavit, which referenced a document, titled "Regulations Governing Academic Freedom and Tenure" (the Regulations), purportedly issued by Defendant. In his affidavit, Plaintiff alleged that Defendant violated various provisions of the Regulations, including the procedure for providing notice of termination to employees and the prohibition against retaliatory termination. Defendant replied, claiming that Plaintiff had failed to produce in discovery or in response to the summary judgment motion any document that included the implied contract terms Defendant had allegedly breached.

{6} During the hearing on the summary judgment motion, Plaintiff’s counsel read a document that he identified as the Regulations into the record. Defendant objected on the ground that Plaintiff had failed to produce the document in discovery and asserted that it was therefore unable to identify the document from which Plaintiff’s counsel had read. The district court ordered supplemental briefing and directed Plaintiff to produce the document he had read from during the hearing. Plaintiff attached the Regulations to his supplemental brief along with responses to requests for production that identified the Regulations. In response, Defendant complained once again that Plaintiff had never produced the Regulations in discovery and argued that Plaintiff had failed to authenticate the Regulations.

{7} The district court denied Defendant’s summary judgment motion. We granted Defendant’s petition for a writ of error to review the district court’s order.

DISCUSSION

I. Statute of Limitations

{8} Defendant first argues that the district court erroneously denied Defendant’s motion for summary judgment based on the two-year statute of limitations in Section 37-1-23(B). Defendant contends Plaintiff’s claim for wrongful discharge by breach of contract accrued on April 2, 2012, when Defendant notified Plaintiff that it had decided not to renew Plaintiff’s contract.

{9} Because the parties do not dispute when Defendant gave Plaintiff notice of his termination, when Plaintiff’s employment actually terminated, or when Plaintiff filed his complaint, our review is limited to whether the district court correctly applied the governing law to the undisputed facts. See Haas Enters. v. Davis , 2003-NMCA-143, ¶ 9, 134 N.M. 675, 82 P.3d 42. ("When facts relevant to a statute of limitations issue are not in dispute, the standard of review is whether the district court correctly applied the law to the undisputed facts."). We review this issue de novo. Id.

{10} Section 37-1-23(B) provides that claims for breach of a valid written contract against governmental entities "shall be forever barred unless brought within two years from the time of accrual." A claim accrues when all of the elements of the claim are present—when the claim "come[s] into existence as an enforceable claim or right[.]" Accrue , Black’s Law Dictionary (10th ed. 2014); see also 1 Calvin W. Corman, Limitation of Actions § 6.1, at 370 (1991) ("It would clearly be unfair to charge [a] plaintiff with the expiration of any time before the plaintiff’s cause of action could be prosecuted to a successful conclusion."). Plaintiff’s wrongful discharge claim is based on Defendant’s alleged breach of an implied contractual term, as described above. A breach of contract claim accrues at the time of breach. Corman, supra , § 7.2.1, at 482. Accordingly, "[t]he statute of limitations on a breach of contract claim runs from the date the contract is breached." Nashan v. Nashan , 1995-NMCA-021, ¶ 29, 119 N.M. 625, 894 P.2d 402. To determine whether Section 37-1-23(B) bars Plaintiff’s claims, we must therefore identify the alleged breach.

{11} We begin with the basic premise that, because "[t]he law of contract is the law of promises[,]" 10 John E. Murray, Jr., Corbin on Contracts § 54.1, at 112 (rev. ed. 2014), an action for breach of contract is an action on a broken promise.³ Ordinarily, a breach occurs when a party "fail[s] to perform a contractual obligation when that performance is called for[,]" UJI 13-822 NMRA—in other words, when the party fails to perform as promised. When an implied term of an employment agreement obligates the employer to follow specified termination procedures or to terminate the employee only for specified reasons, nonperformance occurs when the employer actually terminates the employee without following those procedures or for reasons other than those specified. See UJI 13-2302 NMRA ("[I]f [the employee’s] discharge violated [the implied] agreement, then the discharge was wrongful."); UJI 13-2303 NMRA (same); see also Gormley v. Coca-Cola Enters. , 2004-NMCA-021, ¶ 12, 135 N.M. 128, 85 P.3d 252 (discussing "the termination element of a claim of breach of implied contract to terminate for just cause only").

{12} Applying these principles, we conclude that Defendant did not fail to perform its obligations under any implied agreement by providing Plaintiff with the April 2, 2012, notice of nonrenewal. If Plaintiff is correct that an implied agreement required Defendant to refrain from terminating Plaintiff unless Defendant used specific procedures or had specific reasons for termination, Defendant could only breach the...