OPINION
{1} A fired corporate officer sued both his employer and his chief executive officer, who was the controlling shareholder of the corporation and his immediate supervisor, for damages arising from his termination. The lawsuit alleges a potpourri of creative legal theories sounding in both tort and implied contract. As a matter of first impression under New Mexico law, we hold that an employee can sue his supervisor, individually, for the tort of interference with contractual relations, meaning contractual obligations owed by the corporation to the employee, and that this tort can provide the foundation for a civil conspiracy action. We also explain why the instruction submitted to the jury for this claim was fatally flawed. Further, we decide under Illinois law that this employee had an actionable claim against the corporation for breach of an implied contract of employment. After discussing these and other theories of relief raised by the parties, including counterclaims, we affirm in part, reverse in part, and remand for a new trial.
BACKGROUND
{2} Plaintiff, Robert Ettenson, was the associate publisher of Outside Magazine. He began working for Outside Magazine in 1985, and from then until 1994, he worked at the corporate headquarters in Chicago, Illinois. Outside Magazine is owned and published by Mariah Media, Inc.(Mariah). Ettenson’s supervisor at Mariah was Lawrence J. Burke, president and chief executive officer of the corporation, who also owned 93 percent of Mariah’s stock.
{3} In the early 1990’s, Burke decided to move Mariah’s headquarters from Chicago to Santa Fe. The move concerned Ettenson, who was worried about being removed from Chicago, a commercial hub in the advertising world. Anxious that he would be at a competitive disadvantage if he moved to Santa Fe, Ettenson shared his concerns with Burke, and he requested to remain with the company in Chicago. Burke assured Ettenson he would be taken care of if he moved to Santa Fe along with the rest of Mariah’s management.
{4} Between the time Burke announced the transition to Santa Fe and the time the move actually took place, other publishers approached Ettenson with lucrative job opportunities. Invariably, Ettenson informed Burke of these offers, and the two would discuss them together. One such job offer caused Ettenson to request a $30,000 salary increase from Burke to stay with Mariah, and Burke agreed in exchange for Ettenson tearing up the offer. That event prompted Burke, in April 1991, to issue Ettenson special non-voting stock in Mariah (hereinafter “phantom stock”) with the idea that Ettenson would redeem the phantom stock at a sizeable gain when Burke sold Mariah sometime in the future. Burke’s purpose in issuing the stock was to provide Ettenson with an incentive to remain with Mariah and not worry about annual salary increases. Both Burke and other Mariah officers repeatedly referred to the phantom stock as the source of Ettenson’s future financial security.
{5} The move to Santa Fe also made Ettenson anxious about his future employment prospects if he were to lose his job. Burke reassured Ettenson that his concerns were unfounded because when he sold the magazine, they would both retire millionaires, and Ettenson would not have to worry anymore about work. In other conversations with Ettenson, Burke represented that his job with Mariah was “secure,” and that Ettenson was part of the Outside family, as evidenced by Burke awarding him the phantom stock in Mariah.
{6} None of these verbal representations were reduced to writing, and Ettenson never had a written contract of employment with Mariah. In May 1994, Ettenson moved to Santa Fe. Despite the assurances of secure, long-term employment, on August 2, 1995, Burke summoned Ettenson into his Sarita Fe office and summarily fired him.
{7} Ettenson was devastated by the termination. Under the terms of his stock agreement, title to the phantom stock reverted to Mariah, and Ettenson was entitled to be paid no more than book value for his vested shares, payable over a two-year period. Burke fired Ettenson at a time when he was incurring substantial personal expenditures. His wedding was to take place the following month and included nearly one hundred invitees. He was in the midst of constructing a new house. In short, Ettenson was caught in a vulnerable financial position. He alleges that the timing of his termination was no coincidence; it was part of a strategy of economic coercion. Burke was trying to squeeze him financially and force him to waive whatever legal claims he had arising out of the termination.
{8} According to Ettenson, Burke implemented his strategy in various ways. Two days after firing Ettenson, Burke caused Mariah to deliver a check to Ettenson that included compensation for his unpaid wages, accrued vacation, and eight weeks of severance pay, along with a “Termination Agreement Letter.” When Ettenson asked Mariah officers about the legal effect of cashing the check, he was told that acceptance of the cheek would be construed as a release of all legal claims against Mariah. Despite needing the money, Ettenson refused to waive his legal claims, and returned the check. On September 5, 1995, Mariah finally paid Ettenson his final wages without conditions, approximately four weeks past the five-day limit prescribed by statute. See NMSA 1978, § 50-4-4(A) (1975). Ettenson still has not received any severance pay.
{9} To redress his summary termination and lack of severance compensation, Ettenson sued both Mariah and Burke asserting seven causes of action. Ettenson sued Mari-ah for breach of an implied contract of employment and for breach of an implied contract for severance pay, which the district court rejected on summary judgment. Ettenson also sued Burke individually for orchestrating a civil conspiracy to coerce him into waiving his suit against Mariah. Mariah counterclaimed, alleging lost advertising revenues and improper billing attributable to Ettenson. After a trial, the jury returned a verdict for Ettenson on two counts: civil conspiracy and breach of an implied contract for severance pay. Ettenson was awarded $23,076.92 against the corporation for failure to pay his implied severance contract, and $725,000 against Burke individually on the civil conspiracy count. The jury rejected Mariah’s counterclaim. All parties appeal.
DISCUSSION
{10} Ettenson, Burke, and Mariah each appeal separate rulings of the district court on a variety of grounds. We consider the parties’s arguments in order of them relative importance to the resolution of this case.
Civil Conspiracy
{11} The jury awarded Ettenson $725,000 against Burke, individually, on his civil conspiracy charge. The jury apportioned $125,000 of the verdict as emotional damages and $600,000 as punitive damages. Those damages were assessed against Burke for his role in wrongfully inducing Mariah to breach its implied contract for severance pay and to withhold Ettenson’s final pay past the statutorily prescribed due date, five days after termination. See § 50-4-4(A). Burke asserts eight points of error against the civil conspiracy verdict, which we reclassify into three groups. First, he challenges the theory of civil conspiracy and particularly a civil conspiracy to commit the tort of interference with contractual relations, arguing that it cannot apply to the facts of this case. Second, Burke maintains that the jury instruction on civil conspiracy and contractual interference was fatally defective. And third, Burke argues that the jury instructions impermissibly allowed for emotional and punitive damages, and failed to establish a causal connection between the conspiracy and the limited injuries for which Ettenson would be entitled to compensation. We disagree with Burke and concur with Ettenson on the first and third points of error. However, Burke persuades us as to the second argument regarding the flawed jury instruction, and accordingly, we reverse and remand for new proceedings consistent with this opinion.
The Legal Sufficiency of the Civil Conspiracy Claim
{12} To establish Burke’s liability for a civil conspiracy, Ettenson needed to demonstrate “(1) that a conspiracy between two or more individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to the conspiracy; and (3) that the plaintiff was damaged as a result of such acts.” Silva v. Town of Springer,
{13} Ettenson frames the independent, unlawful act as follows. He alleges that Burke conspired with Maiiah’s business manager and its attorney in an attempt to force Ettenson to waive his suit against Mariah. He withheld money from Ettenson at the time when Ettenson needed it most; when he was unemployed and confronted with the costs of his house construction and imminent marriage. Most significantly, Ettenson charges that Burke induced Mariah to breach obligations it owed to Ettenson: an implied contract for Ettenson’s severance pay and Ettenson’s statutory right to receive his final pay within five days of his termination. Ettenson offers the breach of these obligations, and particularly Burke’s inducement of that breach, as the independent, unlawful acts that make the conspiracy actionable. Because Ettenson argues the unlawfulness of the breached statutory right under a different legal theory, we treat it separately below. We first address Burke’s inducement of the breach of Ettenson’s implied contract for severance pay.
Tortious Interference with Contract
{14} Establishing tortious interference with contract is not easy. Ettenson had to prove that (1) Burke had “knowledge of the contract” between Ettenson and the corporation, (2) performance of the contract was refused, (3) Burke “played an active and substantial part in causing [Ettenson] to lose the benefits of his contract,” (4) damages flowed from the breached contract, and (5) Burke induced the breach “without justification or privilege to do so.” Wolf v. Perry,
{15} In framing the unlawful act underlying the conspiracy as tortious interference with contract, Ettensoris task was further complicated by the corporate setting: a corporate officer allegedly interfering with the contracts of his own corporation. Burke argues that tortious interference with contract is not legally cognizable when asserted against a corporate officer for interfering with the corporation’s own contracts. Therefore, Burke maintains that Ettenson’s civil conspiracy claim fails as a matter of law for want of an independent wrongful act. See Salazar v. Furr’s, Inc.,
{16} We acknowledge some support for the theory that a corporate officer is absolutely immune from suit for interfering with the contracts of his own corporation. See, e.g., Gonzalez v. Gutierrez,
[T]he servant who causes a breach of his master’s contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his master. His acts are in law the acts of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent ... must therefore fail, just as it would fail if brought against the master himself for wrongfully procuring a breach of his own contract.
Said v. Butt, 3 L.R. 497, 505-506 (K.B.1920). But even adherents to this reasoning usually place limits on a corporate officer’s immunity: that an officer can be liable when he acts outside his scope of authority. See Wellington Sys., Inc. v. Redding Group, Inc.,
{17} The prevailing view is not as Burke would have us believe. The majority of opinions recognize that a corporate officer is privileged to interfere with his corporation’s contracts only when he acts in good faith and in the best interests of the corporation, as opposed to Ms own private interests. The privilege is not absolute, but qualified. See Embree Constr. Group, Inc. v. Rafcor, Inc.,
{18} This qualified privilege exists because “[cjorporate officers or directors are privileged to interfere with or induce breach of the corporation’s contracts or business relations with others as long as their actions are in good faith and for the best interests of the corporation.” Phillips v. Montana Educ. Ass’n,
[t]he question of good faith and whether the [corporate officer] believed the act was for the best lawful interests of the corporation must be determined as of the time the inducement took place. To determine these questions it is proper for the trier of facts to ascertain whether the accused [corporate officer] acted to satisfy personal feelings against the third party, or to serve his own private interest with no benefit to the corporation.
Ong Hing v. Arizona Harness Raceway, Inc.,
{19} Examples of such “private interest with no benefit to the corporation” may help illuminate the task of the trial judge in ruling on a motion for summary judgment or furnishing an appropriate jury instruction. Id. For example, tortious interference with a contract of employment is not privileged if motivated by a corporate officer’s anger with the former employee for spurning his sexual advances. In a similar vein, the privilege has been overcome when a corporate official fired a key employee because he was personally interested in forcing a board member to sell him stock. See Chapman,
{20} A qualified privilege is more attune with our own case law than a blanket provision of absolute immumty would be. Cf. Stinson v. Berry,
{21} We also observe that the question of privilege is often fact specific; so much so that we cannot pass judgment in this opinion on whether Burke’s interference was privileged. Also, neither party briefed the appeal in those terms. We note, however, that it is Burke’s burden to plead and prove privilege as an affirmative defense. See M & M Rental Tools, Inc. v. Milchem, Inc.,
Conspiracy to Breach a Statutory Right
{22} Ettenson’s alternative theory for civil conspiracy liability rests on Burke’s interference with his statutory right to be paid within five days of his termination. See § 50-4^4(A). Ettenson uses the criminal accessory statute to argue that Burke “procured” the corporation to violate the five-day limit for final pay which, under NMSA 1978, Section 50-4-10 (1937), carries a misdemean- or penalty. See also NMSA 1978, § 30-1-13 (1972) (making it a crime when a person “procures, counsels, aids, or abets” another in criminal activity). Ettenson urges that Burke’s procurement of this misdemeanor violation by Mariah constitutes another underlying unlawful act that supports civil conspiracy liability. Ettenson’s argument does not persuade us.
{23} Initially, we note that it would be unfair for this Court to hold Burke liable under this theory because Ettenson makes the argument for the first time on appeal. See State v. Franks,
The Jury Instruction
{24} Burke’s second line of defense assumes the validity of the civil conspiracy theory, but challenges whether the jury instruction faithfully captured all the elements of tortious interference with contract. Ettenson tendered the following instruction used at trial:
To establish the claim of civil conspiracy against Burke, Ettenson has the burden of proving each of the following contentions applicable to Burke:
1) That Burke acted together with another person with an agreement or mutually implied understanding to force Ettenson to settle the claims he made in this lawsuit; and
2) That Burke and others used, or caused others to use, one or more of the following unlawful means to force Ettenson to settle the claims he made in this lawsuit:
A) Withheld Ettenson’s final pay for longer than five days after the date of the termination in violation of Section 50-4-4 N.M.S.A. (1978);
B) Withheld severance pay owed to Ettenson upon termination.
Ettenson also contends, and has the burden of proving, that he was damaged as a proximate result of the unlawful actions of Burke.
{25} Burke is correct. On its face, this instruction falls short. Section 2(B) of the instruction does not include the essential elements of a prima facie case of tortious interference with contract. See M & M Rental Tools, Inc.,
{26} Additionally, and of no less significance, the instruction omits the important element of Burke’s justification or privilege to interfere: whether Burke had a qualified privilege to interfere for the corporation’s best interests. As given, the instruction is one-sided; it presents only part of Ettenson’s prima facie case. The privilege defense is essential to the tortious interference instruction so that the jury can balance the competing interests at stake: shielding corporate officers when they act in good faith in furtherance of corporate goals, but withdrawing that protection if they use corporate power simply to serve their own, personal ends. See Phillips,
{27} Further, as indicated above, civil conspiracy liability cannot be based on the violation of criminal statutes. Therefore, Section 2(A) does not state a valid cause of action. Although the violation of the statute may have value as evidence of Burke’s improper motive, it is not a proper foundation for civil conspiracy liability.
{28} The instruction is fatally defective. As a result, the jury rendered a verdict based on what can only be described as a non-theory, or an incomplete theory, that does not afford the legal foundation necessary to support the judgment. Thus, this portion of the verdict is a legal nullity which we have no choice but to reverse. Because the theory is nonetheless supported by law, we reverse the verdict and remand for further proceedings to allow for reconsideration of the evidence under the appropriate legal standard.
Preservation
{29} Burke and Ettenson each raise preservation issues in regard to the civil conspiracy verdict. Ettenson argues that Burke could have presented a correct instruction with a more complete statement of the law on conspiracy and tortious interference. Ettenson’s argument is unpersuasive. Burke did not need to tender a correct jury instruction as long as he made a sufficient objection to the court below. A proper instruction is only required “in case of a failure to instruct on any point of law.” Rule 1-051(1) NMRA 2000. Burke repeatedly advised the court that the instruction first had to identify an independent tort and its elements before the jury could properly award damages for a civil conspiracy. Burke’s objections were well-taken. The instruction failed to set forth an independent tort, either by name or by elements, that would stand on its own apart from the claim of conspiracy. Burke renewed his objection after the court ruled on the instruction, and even tendered his own jury instruction, which the court rejected. We find that Burke’s objection was sufficient to alert the district court to the error, although we acknowledge the awkward position in which the parties placed the court by virtue of waiting until the eleventh hour to clarify their theories. We cannot allow Ettenson to benefit from the very confusion he helped create. See Cordova v.. Taos Ski Valley, Inc.,
{30} Burke, in turn, maintains that Ettenson waived any claim for tortious interference as his underlying tort because Ettenson “never characterized this claim as one for tortious interference with a contract.” The record, however, reflects that Ettenson did present his theory to the district court in terms of tortious interference with contract. Although Ettenson’s argument may have lacked clarity, Burke’s counsel was made aware of this theory as a basis of liability. In fact, Burke’s counsel specifically responded by arguing that a president of a corporation could not be sued for “tortious interference with contractual relations between the Plaintiff and the corporation,” and cited Salazar,
The Damages Awarded are Legally Supportable
{31} As his third and final line of defense, Burke attacks the amount of the award against him. On the civil conspiracy claim, the jury awarded Ettenson $600,000 as punitive damages and $125,000 as emotional distress damages against Burke individually. The punitive damages were based on Burke’s alleged attempt to “trick” Ettenson into waiving his rights to sue Mariah by sending him the Termination Agreement Letter. The letter never disclosed that Ettenson would waive his suit by cashing Mariah’s original check, and according to Ettenson, if he had not retained legal counsel, he would have fallen into Burke’s “trap.” According to one view of the evidence, when the trick failed, Burke used economic coercion to attempt to force Ettensoris waiver by withholding Ettenson’s final check and his severance pay. Similarly, Ettenson was not paid for his vested phantom stock until the full two-year period authorized in the stock agreement had expired, despite Mariah’s initial offer in the Termination Agreement Letter to accommodate Ettenson’s monetary needs “regarding the method of payment such as monthly, quarterly, or annually.” Ettenson had requested to be paid in monthly installments, but he was not. Ettenson also testified regarding his emotional state after the termination. He stated that he was distraught, depressed, lost his appetite, stayed awake at night, and contemplated suicide for the first and only time in his life. He sought counseling and medical treatment. His doctor prescribed anti-depressants and sleeping medications which he took for a “good part” of the remainder of the year.
{32} Burke argues that despite the evidence going to emotional and punitive damages, the court erred as a matter of law because those damages were not contemplated by the parties as part of the alleged, underlying contract. Because the issue could arise on remand, we consider it here. Similar to establishing liability for civil conspiracy, damages arising from the civil conspiracy must bear a direct relationship to the unlawful act underlying the conspiracy, in this case tortious interference with contract. Burke correctly points out that in the ordinary breach-of-contract case, emotional and punitive damages are usually outside the scope of consequential damages, and the same is true for the limited statutory damages allowed under Section 50-4-4. Burke argues that it would be inconsistent to allow any different damages for a tortious interference with that same contract or limited statutory right. Burke has a point. See Keeton, supra, § 129 at 1003-04 (noting the anomaly of enlarged damages for tortious interference with eon-tract but recognizing that courts allow punitive and emotional damage recovery).
{33} However, New Mexico has allowed punitive damage awards in other instances of tortious interference with contracts. See Christman v. Voyer,
{34} Compensation for emotional distress is recoverable as well, as long as the distress is causally connected to the breach of the underlying contract, which in this case is limited to the emotional distress proximately caused by the breach of the implied contract for severance pay. It would be inappropriate for the jury to award Ettenson emotional damages, or punitive damages for that matter, which were caused by the overall stress of being fired. Additionally, to recover emotional damages, the distress must be severe and “of such nature that ‘a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.’” Madrid v. Lincoln County Med. Ctr.,
Implied Contract of Employment
{35} The district court ruled against Ettenson on summary judgment with respect to his claim for an implied contract of employment. On appeal, Ettenson contends that he produced material evidence that should have permitted his claim to go to the jury. Because the representations creating the alleged contract took place in Chicago, the law of Illinois governs its validity. See Ratzlaff v. Seven Bar Flying Serv., Inc.,
{36} Under Illinois law, “an employment relationship without a fixed duration is terminable at will by either party.” Duldulao v. Saint Mary of Nazareth Hosp. Ctr.,
{37} Ettenson argues that he had an implied employment contract with Mariah whereby he could only be terminated for cause. He maintains that the verbal assurances he received from Burke and Rex Ryan, Mariah’s Chief Financial Officer, rose to the level of clear and definite promises, thereby creating an implied contract of employment. We examine the nature of the representations in the light most favorable to Ettenson to determine whether they present genuine issues of material fact that should be presented to a jury. See Estate of Griego v. Reliance Standard Life Ins. Co.,
{38} Our analysis begins with a conversation in which Burke talked Ettenson out of accepting a job offer from a rival publishing company. In critiquing the job - offer, Burke said of his competitor, “He’s the type of person who will walk into your office without warning, and fire you on the spot. You never have to worry about that happening here.” We find this statement, if believed by a jury, to be clear and definite. Therefore, at a minimum, this promise created a factual basis upon which a jury could find a contract for advance notice (of unspecified length) of an upcoming termination, which is contrary to at-will employment.
{39} Ettenson also swore in an affidavit that Rex Ryan told him that he would be employed with Mariah until Burke sold the company. When negotiating benefits with Ettenson, Ryan asked him not to “push too much” on salary increases. Ryan advised him that the real financial reward “was not in [his] annual compensation,” but rather in the value of his phantom stock “when Burke sold the company.” Ryan then assured Ettenson that he would retire wealthy from his share of the phantom stock because Ettenson “was going to be with the magazine for as long as Burke owned [it].”
{40} According to Ettenson’s affidavit, Burke ratified Ryan’s representations. Once, when Ettenson threatened to resign, Burke dissuaded him by pointing out the value of his phantom stock. Burke told him that other publishers would not offer him stock; declaring, “[W]hen I sell the magazine you’re going to be set for life.” On another occasion, while discussing one of Ettenson’s job offers, Burke reminded him that he was given stock so that they would both retire millionaires. Under the terms of the stock agreement, Ettenson could continue to hold the phantom stock only as long as he was employed with Mariah. In the same conversation Burke also told him, ‘Tour career is secure with me.” Burke repeated the assertion, “When I sell the magazine, we’ll both retire millionaires,” in less formal settings as well.
{41} These assurances were more than mere utterances of an “informal character which express[ ] only long continuing good will and hopes for eternal association.” Heuvelman v. Triplett Elec. Instrument Co.,
{42} Ettenson urges this Court to extend these enforceable promises to include the implied condition that he could only be fired for cause and after being given an opportunity to improve deficient performance. Although recent Illinois courts have not discussed how to flesh out the terms of an implied contract, there is Illinois precedent on this point. See Molitor v. Chicago Title & Trust Co.,
{43} In Molitor, the Illinois Appellate Court assumed an implied contract for permanent employment, and then decided what the parties intended by the term “permanent employment.” Id. The employment relationship was no longer at will. On the other hand, the employee was not entitled to employment as long as he lived, regardless of the quality of his work. Instead, the Illinois court held that as long as the corporation “had work which the [employee] could do, and desired to do, and so long as the [employee] was able to do his work satisfactorily, the defendant would employ him, and that in that sense the employment would be permanent.” Id.
{44} Applying Molitor to Ettenson’s claims, if the jury were to find an implied contract of employment that was intended to cover Ettenson until Burke sold the company, then the jury could fairly infer from the terms of the contract that Ettenson could not be fired before that time, unless for cause. Thus, we agree with Ettenson’s first suggestion. However, we decline to read into that contract, Ettenson’s second claim, that he was to be allowed an opportunity to improve his job performance before being fired because it is not supported by the evidence.
{45} The district court’s second reason for awarding summary judgment against the implied contract of employment claim was based on the Illinois statute of frauds, and its requirement that an agreement be in writing if the contract “is not to be performed within the space of one year from the making thereof.” 740 Ill. Comp. Stat. 80/1 (West 1998). A traditional exception to the statute of frauds is that a written contract is not required if “performance is possible by its terms within one year.” McInerney,
{46} Recently, the Illinois Supreme Court called into question the validity of this traditional exception as applied to certain employment contracts. In McInerney,
{47} Burke urges the Mclnemey rationale upon all implied employment contracts, not just permanent employment contracts. As with McInerney, Burke argues that this Court should examine the subjective intent of the parties to determine whether the one-year exception to the statute of frauds applies. He maintains that because Ettenson’s employment was for the “long term,” Ettenson necessarily envisioned a contract lasting longer than one year, and under McInerney a writing was required to enforce it.
{48} No Illinois court has had occasion to interpret McInerney,
{49} We find it significant that before Mclnemey discussed the statute of frauds, the court clarified two important issues for interpreting implied employment contracts: consideration and mutuality of obligation. See McInerney,
{50} Therefore, the holding of McInerney appears to apply primarily to lifetime or permanent employment contracts. As the three dissenting Justices pointed out, “only a ‘distinct minority’ of cases” have applied the statute of frauds in such a restrictive manner, even to permanent, lifetime contracts. Id.,
Implied Contract for Severance Pay
{51} Burke argues that the jury award for an implied contract for severance pay was based on legally insufficient evidence. Apparently, this claim was litigated under New Mexico law, and on appeal there were no assertions that Illinois law governs this claim. Burke contends that by rejecting the terms of the severance pay offered in Mariah’s “Termination Agreement Letter,” Ettenson failed to prove the element of mutual assent to any such implied contract. See UJI 13-816 NMRA 2000. This letter agreement, however, is not the contract that Ettenson sued upon for severance pay.
{52} Ettenson alleged an implied contract theory based on his annual benefit negotiations, and Mariah’s customary pattern, practice, and policy regarding severance. At trial, Ettenson testified that during his annual compensation negotiations he was led to believe that he was entitled to severance pay. Mai'iah never informed him that severance was conditional in any manner. Ettenson testified that if he had been informed that his severance pay was conditional, he would have negotiated for a higher salary. In reviewing a sufficiency of the evidence claim, we “‘resolve all disputed facts in favor of the successful party, indulge all reasonable inferences in support of a verdict, and disregard all evidence and inferences to the contrary.’” Coates v. WalMart Stores, Inc., 1999 NMSC 013, ¶ 46,
Mariah’s Counterclaim for Lost Advertising Revenue
{53} Mariah contends that Ettenson was responsible for $2.4 million in lost advertising revenue from its Southern California office. The court dismissed this count of the counterclaim due to the lack of particularized evidence on causation. Mariah argues that material facts were presented on the issue of causation sufficient to preclude summary judgment. We will affirm an order granting summary judgment when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Silva,
{54} The “circumstances under which an employer can maintain a negligence action against an employee are limited.” Daddow v. Carlsbad Mun. Sch. Dist.,
{55} Mariah attempted to overcome summary judgment by filing an affidavit from Burke that states Ettenson was responsible for the Southern California office, sales slumped there, and Ettenson’s management skills were causing some discontent with employees and customers. The proof requirements are strict for negligence actions in the context of business losses caused by poor management, and courts considering the liability of discretionary decision-makers have held that “[p]roximate cause of damage cannot be demonstrated by showing negligence and poor financial conditions. Because so many other factors may account for poor economic performance, a suing employer must demonstrate a specific causal link.” Id In this case, the issue of causation was a threshold question of law to be determined by the court. See Rekart v. Safeway Stores, Inc.,
Misrepresentation and Failure to Disclose
{56} Ettenson urges the Court to reinstate his claims of negligent misrepresentation, negligent failure to disclose, and fraudulent failure to disclose that the district court dismissed. These causes of action attempt to revive Ettenson’s closely related fraudulent misrepresentation claim; a claim that was submitted to the jury and rejected. Because Ettenson has not cited any authority supporting the application of these legal theories to the facts of this case, we conclude that these causes of action are without merit.
CONCLUSION
{57} For the reasons discussed above, we reverse Ettenson’s civil conspiracy verdict and reinstate Ettenson’s claim of an implied contract of employment. We affirm all other issues raised by any party on appeal, and remand for further proceedings in accordance with this opinion.
{58} IT IS SO ORDERED.