Lopez v. Kline

1998 NMCA 016, 953 P.2d 304, 124 N.M. 539
CourtNew Mexico Court of Appeals
DecidedNovember 26, 1997
Docket17668
StatusPublished
Cited by20 cases

This text of 1998 NMCA 016 (Lopez v. Kline) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopez v. Kline, 1998 NMCA 016, 953 P.2d 304, 124 N.M. 539 (N.M. Ct. App. 1997).

Opinions

OPINION

DONNELLY, Judge.

1. On appeal, Plaintiff challenges the trial court’s award of summary judgment dismissing her suit alleging breach of an express or implied contract of employment, breach of an express and implied contract to provide neutral references to prospective employers, and that Lawrence Kline and Herbert M. Denish & Associates, Inc. (Defendant), made statements which were defamatory. We affirm in part and reverse in part.

FACTS AND PROCEDURAL POSTURE

2. Plaintiff was initially employed as a part-time executive assistant by Defendant, a planning and consulting firm in Albuquerque, New Mexico. In June 1989 she became a full-time employee with the firm. Approximately five months later, she was diagnosed as having a brain tumor. Shortly thereafter Plaintiff spoke with Mr. Herbert Denish and told him that the doctors recommended that she be promptly operated on to remove the tumor. She asked to be permitted to go on medical leave.

3. Plaintiffs affidavit in opposition to Defendant’s motion for summary judgment, stated that after Denish was advised of Plaintiffs illness, he told her she could take off as much time as she needed to “take care of [her] medical condition,” and that she should not “worry about losing [her] job ... [and that her] job would be there when [she] returned from the medical leave.” It is undisputed that Plaintiff was placed on medical leave effective January 1,1990.

4. In February 1990 Plaintiff met with Denish and told him she wanted to return to work. Plaintiffs affidavit recites that he told her to “take care of [her] health problems first, and then come back to work,” and that he told her “not to worry about [her] job.” Two months later, in April 1990, Plaintiff made an appointment to talk about returning to work. Defendant cancelled the appointment and then rescheduled it. On April 20, 1990, before the parties met for a rescheduled appointment, Plaintiff received a letter from Denish advising her that her employment had been terminated effective April 12, 1990.

5. Following her termination, Plaintiff applied for a position with the American Federation of Government Employees (A.F.G.E.) and listed Defendant as a reference. On August 6,1990, Gloria Johnson, a representative of A.F.G.E., called Defendant for a reference and spoke to Mr. Lawrence Kline, employee and officer of Defendant corporation. According to an affidavit of Johnson, submitted in opposition to the motion to dismiss, Kline responded to this inquiry, saying: “ ‘Oh, is she still alive and well?’ ”, and “ ‘[s]he was sick [and] had lots of medical problems.’ ” Kline also said, “ ‘[s]he went on extended leave. The insurance company told us that she was a high risk and advised us to terminate her. That’s the reason we fired her.’” Johnson also stated that Kline told her that Plaintiff had been “‘an excellent employee and had leadership potential.’ ”

6. Plaintiff filed suit on August 6, 1993, against Defendant. The trial court consolidated this cause with another case filed by Plaintiff against Qual-Med. Qual-Med is not a party to this appeal. Defendant filed a motion for summary judgment on April 1, 1996. Following a hearing, the trial court granted summary judgment on both counts.

DISCUSSION

7. Plaintiff asserts that the trial court erred in granting summary judgment on her claim of breach of a contract of employment and her separate claim of defamation.

8. Summary judgment is appropriate only upon a showing by the moving party that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Ciup v. Chevron U.S.A, Inc., 1996 NMSC 062, ¶7, 122 N.M. 537, 928 P.2d 263. A party opposing summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists, and all reasonable inferences are to be construed in favor of the opposing party. See Sarracino v. Martinez, 117 N.M. 193, 194, 870 P.2d 155, 156 (Ct.App.1994). A fact is material if such fact may affect the outcome of the case. See Parker v. E.I. Du Pont de Nemours & Co., 1995 NMCA 173, 121 N.M. 120, 124, 909 P.2d 1, 5. Where a genuine controversy is found to exist as to a material issue of fact, summary judgment is inappropriate and the matter should be resolved at a trial on the merits. See Lexington Ins. Co. v. Rummel, 1997 NMSC 043, ¶ 15, 123 N.M. 774, 945 P.2d 992.

9. Applying this familiar appellate standard of review, we first examine Plaintiffs claim of breach of contract of employment. Plaintiffs complaint alleged, among other things, that Defendant breached an implied contract not to discharge her. Defendant’s motion for summary judgment asserted that it had a legal right to terminate Plaintiffs employment without cause because Plaintiff was an employee at will. The motion for summary judgment was accompanied by a copy of portions of Defendant’s personnel manual,1 excerpts from depositions of Plaintiff, answers to interrogatories sent to Plaintiff, and both an affidavit and deposition of Johnson, the representative of A.F.G.E. who had called Defendant seeking information about Plaintiff.2 In response to Defendant’s motion, Plaintiff relied upon both her own affidavit and deposition, Johnson’s affidavit and deposition, and Defendant’s personnel manual.

10. Both parties recognize that New Mexico follows the general rule that employment contracts supported by no consideration other than the performance of duties and payment of salary are employment agreements for an indefinite period and are terminable at will by either the employer or the employee, absent an express agreement specifying the terms of such employment. See Garrity v. Overland Sheepskin Co., 1996 NMSC 032, ¶ 10, 121 N.M. 710, 917 P.2d 1382; Hartbarger v. Frank Paxton Co., 115 N.M. 665, 672, 857 P.2d 776, 783 (1993). An employment agreement for an indefinite period is’presumed to be terminable at will unless the parties have otherwise agreed. See Newberry v. Allied Stores, Inc., 108 N.M. 424, 426, 773 P.2d 1231, 1233 (1989); Kestenbaum v. Pennzoil Co., 108 N.M. 20, 24-26, 766 P.2d 280, 284-86 (1988). An at-will employer-employee relationship is subject to termination at any time, with or without cause. See Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 730, 749 P.2d 1105, 1109 (1988).

11. New Mexico courts recognize two exceptions to the foregoing rule, namely, that an employer may be liable in damages to an employee, on public policy grounds, for a wrongful termination under facts disclosing unlawful retaliatory discharge or where the facts disclose the existence of an implied employment contract provision that limits the employer’s* authority to discharge. See Hartbarger, 115 N.M. at 668, 857 P.2d at 779; Melnick, 106 N.M. at 730, 749 P.2d at 1109.

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Lopez v. Kline
1998 NMCA 016 (New Mexico Court of Appeals, 1997)

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Bluebook (online)
1998 NMCA 016, 953 P.2d 304, 124 N.M. 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-kline-nmctapp-1997.