Vigil v. State Auditor's Office

• Decision Date: 21 July 2005
• Docket Number: No. 24,225.,24,225.
• Parties: Robert E. VIGIL, Petitioner-Appellant, v. STATE AUDITOR'S OFFICE of the State of New Mexico and Domingo P. Martinez, State Auditor, in his official and individual capacities, and the Accounting Firm of Dennis R. Kennedy, P.C., and Dennis R. Kennedy, CPA, president and owner of Dennis R. Kennedy, P.C., Respondents-Appellees.
• Court: New Mexico Supreme Court

116 P.3d 854

2005 NMCA 096

Robert E. VIGIL, Petitioner-Appellant, v. STATE AUDITOR'S OFFICE of the State of New Mexico and Domingo P. Martinez, State Auditor, in his official and individual capacities, and the Accounting Firm of Dennis R. Kennedy, P.C., and Dennis R. Kennedy, CPA, president and owner of Dennis R. Kennedy, P.C., Respondents-Appellees.

No. 24,225.

Court of Appeals of New Mexico.

June 1, 2005.

Certiorari Denied, No. 29,314, July 21, 2005.

COPYRIGHT MATERIAL OMITTED

Dave Romero, Jr., Romero Law Firm, P.A., Las Vegas, NM, for Appellant.

Sean Olivas, Keleher & McLeod, P.A., Albuquerque, NM, for Appellees State Auditor's Office of the State of New Mexico and Domingo P. Martinez.

David N. Hernandez, Albuquerque, NM, for Appellees Dennis R. Kennedy, P.C. and Dennis R. Kennedy, CPA.

OPINION

FRY, Judge.

{1} This case involves a dispute between two state auditors, Plaintiff Robert E. Vigil and Defendant Domingo P. Martinez. After Vigil left office as state auditor, Martinez took over and had an independent audit performed on Vigil's work at the agency by Defendant Dennis R. Kennedy, CPA, and his Albuquerque accounting firm, Dennis R. Kennedy, P.C. The report issued by Kennedy made several findings that were unfavorable to Vigil, and Vigil subsequently filed a complaint against Defendants Martinez, Kennedy, and the Office of the State Auditor (OSA), for defamation, prima facie tort, negligence, and intentional infliction of emotional distress. The district court dismissed Vigil's complaint, and Vigil now appeals, raising issues relating only to his claims for defamation and negligence. Unpersuaded by Vigil's arguments, we affirm.

BACKGROUND

{2} Vigil's complaint, which he filed pro se, contains the following factual allegations. Vigil is a former state auditor, who was subsequently replaced in that office by Martinez. In his capacity as state auditor, Martinez commissioned a special audit of Vigil's activities as state auditor. The special audit was performed by Kennedy and his accounting firm (collectively referred to in this opinion as "Kennedy"). Vigil alleged that the audit report implied that during his tenure as state auditor, Vigil committed or permitted numerous violations of New Mexico state law. Television broadcasts aired the story, and a newspaper article in the Albuquerque Journal reported that the New Mexico State Police had conducted an investigation into the report and had found "every indication that [a] strong pattern of public corruption existed."

{3} The district court dismissed Vigil's claims against all defendants in two separate orders, determining that Kennedy had no legal duty to Vigil, that Vigil's claims against the OSA and Martinez were barred by the statute of limitations, that the actions of Martinez and the OSA were within the scope of their governmental duties, and that no waiver of immunity existed for the alleged acts.

DISCUSSION

{4} "We review a ruling on a grant of a motion to dismiss de novo, accepting all well-pleaded factual allegations as true and resolving all doubts in favor of the sufficiency of the complaint." Stoneking v. Bank of Am., N.A., 2002-NMCA-042, ¶ 4, 132 N.M. 79, 43 P.3d 1089. Dismissal is proper only when the law does not support a claim under the facts presented. Id.

Preliminary Matters

{5} On appeal, Vigil has abandoned certain of the claims asserted below. Vigil's complaint brought claims for defamation against the OSA and Martinez under the Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -29 (1976, as amended through 2004), for defamation and prima facie tort against Martinez personally, and for negligence against Kennedy. Although the caption of the complaint lists a claim for intentional infliction of emotional distress, no allegations supporting this tort are stated in the complaint itself or were argued below. See Hakkila v. Hakkila, 112 N.M. 172, 182, 812 P.2d 1320, 1330 (Ct.App.1991) (Donnelly, J., specially concurring) (stating the following elements must be alleged to state a claim of intentional infliction of emotional distress: "(1) the conduct in question was extreme and outrageous; (2) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (3) the plaintiff's mental distress was extreme and severe; and (4) there is a causal connection between the defendant's conduct and the claimant's mental distress"). Similarly, no allegations supporting a claim of prima facie tort were made in the complaint or argued below. See Schmitz v. Smentowski, 109 N.M. 386, 394, 785 P.2d 726, 734 (1990) (stating that a claim for prima facie tort requires (1) "[a]n intentional, lawful act by defendant"; (2) "[a]n intent to injure the plaintiff"; (3) "[i]njury to plaintiff"; and (4) "insufficient justification for the defendant's acts" (citation omitted)). Vigil raises no issues on appeal arising from these two claims.

{6} Vigil also makes several arguments that we decline to address because they were not preserved. Vigil raises issues concerning Martinez's alleged breaches of statutes and regulations; because these issues were not alleged in the complaint and were not raised below, we will not address them separately. Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987) ("To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court."). We will consider Martinez's alleged breaches of statutes and regulations only to the extent that they suggest Martinez was not acting within his scope of duty when commissioning the special audit and publishing the report.

{7} In addition, Vigil now argues that he stated a claim for defamation against Kennedy. Although Vigil clearly alleged defamation claims in his complaint against the OSA and Martinez, as against Kennedy, Vigil alleged only that Kennedy owed Vigil a duty to ensure that the special audit was performed according to the standards of a reasonably prudent accounting firm undertaking an audit of a government agency. Moreover, in his response to Kennedy's motion to dismiss on the ground that Kennedy owed no duty of care to Vigil, Vigil asserted that his claim was "a common-law claim for damages to Plaintiff's reputation based on the negligence" of Kennedy's conduct in preparing the special audit report. In our view, the district court's attention was not alerted to a claim of defamation against Kennedy and, accordingly, it was not preserved for appeal. Id. Vigil appears to argue, however, that this is an issue of great public importance, apparently arguing that we should ignore preservation requirements and review the issue. See Andrews v. Saylor, 2003-NMCA-132, ¶ 25, 134 N.M. 545, 80 P.3d 482 (reviewing unpreserved error when issue raised is of general public interest). Because we are not persuaded that Vigil's allegations that he was personally defamed are of a general public nature affecting the interest of the State, we will not consider this unpreserved issue. See State v. Pacheco, 85 N.M. 778, 779, 517 P.2d 1304, 1305 (Ct.App.1973) (noting an exception to the preservation requirement for "questions of a general public nature affecting the interest of the [S]tate at large" (internal quotation marks and citation omitted)).

{8} We also note that Plaintiff's lawsuit names Martinez in his official and individual capacities. Because this lawsuit was not a civil rights action brought pursuant to 42 U.S.C. § 1983, those descriptions are inappropriate in this case, which alleged tort claims against the State and Martinez under the TCA, against Kennedy as a private citizen, and against Martinez as a private citizen not acting within his scope of duty. See Ford v. N.M. Dep't of Pub. Safety, 119 N.M. 405, 410-11, 891 P.2d 546, 551-52 (Ct.App.1994) (discussing the differences in procedure and remedies between TCA claims and civil rights claims). We first address the claims against the OSA and Martinez and then discuss the claims against Kennedy.

Tort Claims Against the OSA and Martinez

{9} Vigil argues that his claims against Martinez and the OSA should not have been dismissed. Specifically, he argues that these Defendants were not immune from his defamation claims under the TCA because they were not acting within the scope of their duties. Addressing the district court's alternative ground for dismissal, Vigil also argues that his claim was not time-barred.

{10} The TCA "delimits the scope of liability for government entities and their employees by: (1) retaining immunity for torts not waived by the TCA; and (2) waiving immunity and recognizing liability, subject to certain protections, for employees acting within their scope of duty." Celaya v. Hall, 2004-NMSC-005, ¶ 8, 135 N.M. 115, 85 P.3d 239 (citations omitted). Section 41-4-17(A) of the TCA provides

the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim.

The actions for which immunity is waived are set out in Sections 41-4-5 to -12 of the TCA and the Religious Freedom Restoration Act, NMSA 1978, § 28-22-4 (2000).

{11} In this case, Vigil does not argue that immunity is waived for his defamation claims under the express waiver provisions in Sections 41-4-5 to -12 or under Section 28-22-4. See Candelaria v. Robinson, 93 N.M. 786, 790, 606 P.2d 196, 200 (Ct.App.1980) (stating that unless a plaintiff alleges defamation by a law enforcement officer, immunity is not waived under the TCA). Instead, Vigil contends that because Martinez was acting outside his scope of duty, the TCA does not apply and Martinez is not immune.

{12} As the State argued to the district...