UNIVERSITY POLICE ASS'N v. University

• Citation: 92 P.3d 667,135 N.M. 655,2004 NMCA 50
• Decision Date: 02 March 2004
• Docket Number: No. 22111.,22111.
• Parties: UNIVERSITY OF NEW MEXICO POLICE OFFICER'S ASSOCIATION, Plaintiff-Appellee, v. The UNIVERSITY OF NEW MEXICO and The University of New Mexico Police Department, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

92 P.3d 667

135 N.M. 655

2004 NMCA 50

UNIVERSITY OF NEW MEXICO POLICE OFFICER'S ASSOCIATION, Plaintiff-Appellee, v. The UNIVERSITY OF NEW MEXICO and The University of New Mexico Police Department, Defendants-Appellants.

No. 22111.

Court of Appeals of New Mexico.

March 2, 2004.

Certiorari Granted April 23, 2004.

Frederick M. Mowrer, Law Offices of Raymond G. Sanchez, Albuquerque, for Appellee.

Charles N. Estes, Jr., Office of University Counsel, Edward Ricco, Rodey, Dickason, Akin & Robb, P.A., Albuquerque, for Appellants.

Certiorari Granted, No. 28,559, April 23, 2004.

OPINION

ROBINSON, J.

{1} This case concerns the interpretation of a collective bargaining agreement entered into in 1996 between the University of New Mexico (the University) and the University of New Mexico Police Officer's Association (the Association). The trial court determined that the University breached its agreement with the Association by underpaying police officers and awarded damages accordingly. On appeal, the University argues that (1) under NMSA 1978, § 37-1-23(A) (1976), it is immune from suit, and (2) the action is barred because the Association failed to exhaust its administrative remedies. We affirm.

Background

{2} The trial court articulated thirty-two findings of fact, which provided an extensive background for its rationale. The University challenges only one finding of fact. We set the background for this case based upon the remaining facts as found by the trial court. See Tres Ladrones, Inc. v. Fitch, 1999-NMCA-076, ¶ 17, 127 N.M. 437, 982 P.2d 488

(stating that a trial court's unchallenged findings of fact are binding on appeal). The University recognized in the early 1990s that its system of classifying and compensating employees was in "a state of disarray" due to significant changes in both its operations and in the nature of work in general. It hired an outside organization to study the wages being paid to its employees. The purpose of the UNMPact, as the study came to be called, was to address the inadequacy of University pay in light of the wages paid in comparable markets. The UNMPact classified employees and proposed to pay wages in accordance with comparable markets and the wages paid for similar work.

{3} While the study was in progress, the Association was organized to represent the police officers and sergeants of the University's police force. In 1996, the Association began negotiations with the University regarding the Association's first collective bargaining agreement that would cover its members. However, by the fall of 1996, the parties had reached an impasse on the issue of officer salaries.

{4} On October 26, 1996, Susan Carkeek, Associate Vice President and Director of Human Resources for the University, gave a presentation concerning the UNMPact to officials of the Association. Although, conflicting testimony was presented at trial as to the substance of this presentation, the trial court expressly found that during Carkeek's presentation, representatives of the Association were told that police officer wages would be increased to an amount equal to the average salary of first-year officers for the Albuquerque Police Department and the Bernalillo County Sheriff's Department, effective January 1, 1997. Carkeek was specifically asked whether a comparison would be made between the Association's wages and those of smaller departments. She replied "No," that the marketplace used for this analysis would be the Albuquerque Police Department and the Bernalillo County Sheriff's Department. The average salary then for an entry-level Albuquerque Police Department or Bernalillo County Sheriff's officer was $13.68 per hour.

{5} Association representatives reported to their membership on Carkeek's presentation, and the members voted to accept an employment contract with the University which included the UNMPact. The vote was based on an express understanding that salaries would be adjusted to $13.68 per hour for those officers not presently earning that wage. The Association ratified its first collective bargaining agreement with the University on November 21, 1996, based on this understanding, and included within that agreement a provision that the parties agreed to fully implement the UNMPact.

{6} In January or February 1997, the University sent individual members of the Association letters informing them of the salary they would receive based on the UNMPact. The police officers also received instructions on filing a request for reconsideration if they objected to the new salary level. The request was to be submitted on a form provided by the University. The trial court explicitly found that the University did not mail any information concerning requests for reconsideration to the Association as required by the collective bargaining agreement. Yet, the trial court found that the Association completed a reconsideration form and submitted it to the University. This last finding is the only one challenged on appeal.

{7} Based on these findings, the trial court concluded that the collective bargaining agreement required the University to pay police officers $13.68 per hour and that the University breached the contract by paying officers less than that amount. In addition, the trial court concluded that the Association did not fail to exhaust its administrative remedies. Indeed, the trial court determined that the Association continually pressured the University, from April 1997 through the time of trial, to pay its police officers the correct wage by means of grievance proceedings, the filing of a Prohibited Practice Complaint with the Public Employee Labor Relations Board, and the exchange of letters with the University.

Section 37-1-23(A) Does Not Immunize the University from this Lawsuit

{8} The University does not challenge the trial court's finding that the Association was promised that implementation of the UNMPact would result in raising the hourly wage of its member officers to $13.68 per hour. However, it contends enforcement of this representation is barred by Section 37-1-23(A). Under the circumstances of this case, we disagree.

{9} Whether Section 37-1-23(A) bars a particular action is an issue of law that is reviewed de novo on appeal. See Campos de Suenos, Ltd. v. County of Bernalillo, 2001-NMCA-043, ¶ 10, 130 N.M. 563, 28 P.3d 1104

("[T]he application of the facts of a case to an assertion of immunity, is a legal question that we review de novo.").

{10} Section 37-1-23(A) provides: "Governmental entities are granted immunity from actions based on contract, except actions based on a valid written contract." This section has been interpreted to require only that there be a valid written contract underlying a claim. See Treloar v. County of Chaves, 2001-NMCA-074, ¶ 16, 130 N.M. 794, 32 P.3d 803

. Thus, when an action arises from a valid written contract, the action is not barred by Section 37-1-23(A) even though the action involves equitable claims such as reformation based on mutual mistake, see Ballard v. Chavez, 117 N.M. 1, 2 n. 2, 868 P.2d 646, 647 n. 2 (1994), or breach of an implied warranty, see Vinnell Corp. v. State, 85 N.M. 311, 312, 512 P.2d 71, 72 (1973) (holding that highway construction contractor who is misled by incorrect plans and specifications may recover for the resulting extra expenses). More recently, the New Mexico Supreme Court indicated that if there is a valid written contract, Section 37-1-23(A) will not bar litigation that may involve a dispute concerning the terms and conditions of the contract. See Handmaker v. Henney, 1999-NMSC-043, ¶¶ 17-20, 128 N.M. 328, 992 P.2d 879.

{11} The University characterizes this dispute as involving "a contract term that was established only through alleged oral representations." We do not agree. It is undisputed that there is a valid written contract between the Association and the University. The contract provides that "[t]he parties agree to participate in and fully implement the UNMPact classification and compensation study." The question to be resolved by the trial court was what this provision meant to the Association at the time it agreed to the provision. See Maine v. Garvin, 76 N.M. 546, 550-51, 417 P.2d 40, 43 (1966)

("Parol evidence may not be received when its purpose and effect is to contradict, vary, modify, or add to a written agreement, but is generally admissible to supply terms not in the written contract, to explain ambiguities in the written agreement, or to show fraud, misrepresentations, or mistake."); C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504, 509, 817 P.2d 238, 243 (1991) ("It is important to bear in mind that the meaning the court seeks to determine is the meaning one party (or both parties, as the circumstances may require) attached to a particular term or expression at the time the parties agreed to those provisions."). In determining what this phrase meant to the parties, the trial court in this case could consider "evidence of the circumstances surrounding the making of the contract and of any relevant usage of trade, course of dealing, and course of performance." See id. This type of evidence can be used initially to determine whether the provision was ambiguous and, if so, to resolve the ambiguity. Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 13, 129 N.M. 698, 12 P.3d 960.

{12} The University appears to recognize that the testimony concerning Carkeek's representations made at the October 26 meeting was offered to clarify the meaning of the contract language concerning the UNMPact. However, it asserts that this approach was rejected by Campos de Suenos, 2001-NMCA-043, ¶ 23, 130 N.M. 563, 28 P.3d 1104. We cannot agree. In Campos de Suenos, the developer of a parcel of land argued that even though there was no written contract between the developer and the county, a series of writings could be used to create a "valid written contract" within the meaning of the...