Stаnley D. HANDMAKER, M.D., Ph.D., Plaintiff-Appellee, v. Jane HENNEY, M.D., in her individual and official capacities, Shirley Murphy, M.D., in her individual and official capacities, Paul Roth, M.D., in his individual and official capacities, Shannan Carter, in her individual capacity, Clark Hansbarger, M.D., in his individual capacity, Leonard M. Napolitano, Ph.D., in his individual capacity, and The University of New Mexico, Defendants-Appellants.
No. 24475.
Supreme Court of New Mexico.
Nov. 17, 1999.
1999-NMSC-043 | 992 P.2d 879
{38} In sum, I believe this ordinance is both overbroad in the encroachment on parental rights, and vague in the attempt to define conduct by generalized reference to the First Amendment.
Miller, Stratvert & Torgerson, P.A., Ranne B. Miller, Virginia Anderman, Albuquerque, for Appellee.
OPINION
SERNA, Justice.
{1} Dr. Stanley D. Handmaker, following his removal from an administrative position, filed suit against the University of New Mexico for breach of his employment contract and against numerous university officials for related claims. UNM moved for summary judgment on the ground of sovereign immunity, and the district court denied the motion. UNM then petitioned the Court of Appeals for writ of error to the district court. Upon certification from the Court of Appeals, we conclude that determinations regarding sovereign immunity from actions based on contract are generally reviewable by writ of error; however, the trial court did not err in determining that governmental immunity is inapplicable in this case due to the existence of a written contract. We also conclude that the trial court‘s determination that genuine issues of material fact exist regarding the breach of contract claim is not a final order and is not subject to review by writ of error. Accordingly, we affirm in part and dismiss the appeal in part.
I. Facts
{2} Dr. Handmaker has been a faculty member at the UNM School of Medicine since 1977 and is currently a tenured professor in pediatric medicine. Like other faculty members аt UNM, Dr. Handmaker‘s employment contract with UNM is renewed annually. In 1981, Dr. Handmaker began serving as director of the division of developmental disabilities. Dr. Handmaker‘s 1986-1987 employment contract designated him as administrator of the developmental disability program, which, because there was no change in Dr. Handmaker‘s duties, included the position of director of the division of developmental disabilities. At that time, Dr. Handmaker‘s contract provided $5000 for his administrative duties.
{3} In 1990, UNM, with Dr. Handmaker‘s assistance, received an administrative core grant to establish the New Mexico University Affiliated Program (UAP), a nationally recognized academic center for training and research in developmental disabilities. Dr. Handmaker served as director of the UAP from its inception. Although the position of UAP director entailed additional administrative duties, Dr. Handmaker‘s employment contract continued to designate him as administrator of the developmental disability program and made no mention of the UAP. Dr. Handmaker‘s administrative salary increased to $10,000 in his 1991-1992 employment contract. His 1993-1994 employment contract again designated him as administrator of the developmental disability program and continued to provide an administrative salary of $10,000.
{4} During the 1993-1994 academic year, the School of Medicine established an internal review committee to evaluate Dr. Handmaker‘s performance as director of the UAP. After receiving the committee‘s report, the dean of the School of Medicine informed Dr. Handmaker by writing on January 21, 1994, that he had “chosen to have [Dr. Handmaker] remain as Director of the University Affiliated Program. However, [Dr. Handmaker‘s] directorship is under probationary conditions for the remainder of the calendar year 1994....” According to Dr. Handmaker, he made good faith efforts during the spring of 1994 to comply with the dean‘s probationary conditions. On May 25, 1994, the chair of the department of pediatrics informed Dr. Handmaker in writing that his 1994-1995 contract would include a four percent incrеase in salary, including the administrative salary component.
{5} Dr. Handmaker received no progress report on his performance as director of UAP and received no indication that he was
{6} Dr. Handmaker filed a breach of contract claim against UNM as a result of his removal as director of the UAP. Specifically, he claims that UNM‘s course of action violated the faculty handbook and internal policies and procedures and that removing him from his administrative position without just cause constituted a breach of his express employment contract. Dr. Handmaker also claims that UNM breached an implied covenant of good faith and fair dealing. In response to Dr. Handmaker‘s claims, UNM filed a motion for summary judgment in the district court. In addition to denying the merits of Dr. Handmaker‘s breach of contract claims, UNM asserted sovereign immunity pursuant to
II. Writs of Error and the Collateral Order Doctrine
{7} As a general matter, this Court‘s appellate jurisdiction is limited to review of “any final judgment or decision, any interlocutory order or decision whiсh practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights.”
{8} There is no question that the district court‘s denial of UNM‘s motion for summary judgment is an interlocutory order which fails to dispose of the merits of the action and is, therefore, not a final decision for purposes of Section 39-3-2. See B.L. Goldberg & Assocs. v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985) (“For purposes of appeal, an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible.“). UNM, however, contends that an interlocutory determination of sovereign immunity for actions based on contract falls within the limited exception to the principle of finality known as the collateral order doctrine.
{9} We recently examined the collateral order doctrine and its application in New Mexico. Sеe Carrillo v. Rostro, 114 N.M. 607, 612-19, 845 P.2d 130, 135-42 (1992). In Carrillo, we explained that the collateral order doctrine, which was initially crafted by
{10} As we explained in Carrillo, the collateral order doctrine is a limited exception to the principle of finality. The three criteria outlined in Carrillo as preconditions to invoking the collateral order doctrine are necessary to prevent the “interruption of trial court proceedings by any party claiming hardship because of postponement of review—a result that the final-judgment rule seeks to prevent.” Carrillo, 114 N.M. at 616, 845 P.2d at 139. In fact, we noted in Carrillo that many courts have severely limited application of the doctrine to avert piecemeal appeals “becom[ing] the order of the day.” Id. As a result of the potential for abuse of the doctrine, we established the writ of error as the appropriate procedural device to implement the collateral order doctrine to “ensur[e] that review under the ... doctrine occurs only when justified.” Id. We now clаrify that the three criteria for application of the doctrine should serve as a guide in deciding whether to issue a writ of error in this context. Thus, a petitioner for writ of error must demonstrate, beyond error in the district court, that the impugned order conclusively determines a disputed issue that is entirely separate from the merits of the action and that would be effectively unreviewable from a final judgment. See Carrillo, 114 N.M. at 613, 845 P.2d at 136.
{11} We believe that determinations with respect to sovereign immunity from actions based on contract generally meet the three criteria discussed in Carrillo. The first two criteria are relatively straightforward in this case. Typically, determinations concеrning immunity under Section 37-1-23(A) will finally resolve the issue of governmental immunity and will be separate from and collateral to the merits of the action. Cf. Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (stating that a determination of qualified immunity “easily meets these requirements” and that “a claim of immunity is conceptually distinct from the merits of the plaintiff‘s claim“).
{12} The third criterion, whether an order would be effectively unreviewable on appeal from a final judgment, is somewhat more ambiguous. In Allen v. Board of Education, 106 N.M. 673, 674, 748 P.2d 516, 517 (Ct.App.1987), a defendant sought direct appeal of the trial court‘s denial of a motion for summary judgment based on sovereign immunity under the Tort Claims Act,
{13} In Carrillo, we discussed the reasoning of the Court of Appeals in Allen and reiterated the significance of the distinction between immunity from suit and immunity from liability. Carrillo, 114 N.M. at 614, 845 P.2d at 137; accord Carmona v. Hagerman Irrig. Co., 1998-NMSC-007, n. 5, 125 N.M. 59, 957 P.2d 44. We concluded in Carrillo that qualified immunity under
{14} In deciding whether determinations of immunity from actions based on contract affect “rights that will be irretrievably lost, absent immediatе review and regardless of the outcome of an appeal from the final judgment, ... the essence of the collateral order doctrine,” Carrillo, 114 N.M. at 614, 845 P.2d at 137, we rely on the reasoning of Allen and Carrillo concerning the distinction between immunity from suit and immunity from liability and the importance of legislative intent. Unlike the Legislature‘s grant of immunity from liability under the Tort Claims Act discussed in Allen, the Legislature has provided that “[g]overnmental entities are granted immunity from actions based on contract, except actions based on a valid written contract.” Section 37-1-23(A) (emphasis added). The plain language of Section 37-1-23(A), by granting “immunity from actions” based on unwritten contracts, suggests a legislative intent to establish an entitlement on the part of the government not to stand trial or face the other burdens of litigation for actions based on unwritten contracts. See Whitely v. New Mexico State Personnel Bd., 115 N.M. 308, 311, 850 P.2d 1011, 1014 (1993) (stating that “the plain language of the statute [is] the primary indicator of legislative intent“). Similarly, we have previously held “that the issue of governmental immunity [under Section 37-1-23(A)] is jurisdictional in nature,” Spray v. City of Albuquerque, 94 N.M. 199, 201, 608 P.2d 511, 513 (1980), and that one of the purposes of immunity for actions based on unwritten contracts rests on the difficulty of determining, without reference to a written instrument, whether a governmental agency is authorized to enter into the contract, see Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029, ¶ 17, 121 N.M. 728, 918 P.2d 7. We determine, then, that Section 37-1-23(A) protects the important governmental interest of avoiding the burdens of a trial on thе merits and that this interest will otherwise evade meaningful appellate review absent application of the collateral order doctrine. Thus, we conclude that interlocutory determinations concerning sovereign immunity under Section 37-1-23(A), contrary to determinations of sovereign immunity under the Tort Claims Act, are generally subject to the collateral order doctrine.
III. The Collateral Order Doctrine in Relation to the Present Matter
{15} Although the collateral order doctrine, and its procedural impetus, the writ of error, generally apply to determinations of immunity under Section 37-1-23(A), our review by writ of error is necessarily limited by the nature of immunity established by the Legislature. Governmental immunity under Section 37-1-23(A) is limited to unwritten contracts and does not apply to a contract action against the government that is based on a valid written contract. As a result, a governmental defendant‘s motion for summary judgment in an action based on contract may involve two separate questions: (1) whether the action is based on a written contract or is, instead, subject to governmental immunity under Section 37-1-23(A); and
{16} The United States Supreme Court, in a unanimous opinion, recently reached a similar conclusion with respect to claims of qualified immunity. See Johnson v. Jones, 515 U.S. 304, 313-19, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (discussing Johnson). In Johnson, a governmental official being sued under
A. The Trial Court‘s Determination Regarding Sovereign Immunity
{17} In this case, Dr. Handmaker had written employment contracts with UNM. His breach of contract claim centers around the terms of employment under those contracts, including the procedure and grounds necessary for termination from an administrative position. UNM concedes that Dr. Handmaker‘s 1993-1994 written contract, which designated him as administrator of the development disabilities program and in-
B. The Trial Court‘s Determination that Genuine Issues of Material Fact Exist
{18} UNM also claims as a basis for issuing a writ of error that the trial court improperly determined that Dr. Handmaker raised genuine issues of material faсt regarding his claim that UNM breached the employment contract. “Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. On review, “we examine the whole record for any evidence that places a genuine issue of material fact in dispute,” Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 15, 123 N.M. 752, 945 P.2d 970, and we view the facts in a light most favorable to the party opposing the motion and draw all reasonable inferences in support of a trial on the merits, see Silverman v. Progressive Broad., Inc., 1998-NMCA-107, ¶ 7, 125 N.M. 500, 964 P.2d 61.
{19} In reviewing UNM‘s argument, we first note that the face of the 1994-1995 contract is ambiguous concerning Dr. Handmaker‘s administrative responsibilities for two reasons: (1) neither the 1993-1994 nor the 1994-1995 сontract made any mention of the UAP, yet UNM conceded that directorship of the UAP was included in the 1993-1994 contract; and (2) the contract contained an apparent contradiction between the change in administrative designation, from administrator of the developmental disability program to director of the division of developmental disabilities, and the failure to modify Dr. Handmaker‘s administrative salary from his 1993-1994 contract. See Mark V, Inc. v. Mellekas, 114 N.M. 778, 845 P.2d 1232 (1993) (“An ambiguity exists in an agreement when the parties’ expressions of mutual assent lack clarity. The question whether an agreement contains an ambiguity is a matter of law to be decided by the trial court.” (citation omitted)). Nevеrtheless, in light of the express written notice Dr. Handmaker received of his termination as director of the UAP prior to signing the 1994-1995 contract, we are skeptical that Dr. Handmaker could have raised a genuine issue of material fact that the administrative designation in the 1994-1995 contract was intended to include his directorship of the UAP. See C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504, 817 P.2d 238 (1991) (“[I]n determining whether a term or expression to which the parties have agreed is unclear, a court may hear evidence of the circumstances surrounding the making of the contract and of any relevant usage of trade, course of dealing, and course of performance.” (footnote omitted)). Additionally, UNM сorrectly asserts that in New Mexico there is a presumption that termination from employment is at will unless otherwise agreed upon by the parties, Garcia, 1996-NMSC-029, ¶ 10, 121 N.M. 728, 918 P.2d 7, and UNM thus claims that, because only his position as associate professor was protected by tenure, Dr. Handmaker‘s administrative positions were terminable at will.2
{20} However, we believe that these assertions are not properly before this Court on petition for writ of error. UNM‘s claims require the interpretation of a written contract and are unrelated to its assertion of sovereign immunity. Cf. 15A Wright et al., supra, § 3914.10, at 662 (“One possible approach to ... cases [involving qualified immunity in which the defendant denies committing the acts that form the basis of the claim] is to conclude that a factual argument of noninvolvement presents issues that intrinsically do not involve official immunity.“). The true issue raised in UNM‘s motion for summary judgment was not whether a written contract with a governmental agency existed but, instead, the meaning of the terms and conditions of an existing written contract between UNM and Dr. Handmaker, specifically the terms of removal from administrative positions. Cf. Johnson, 515 U.S. at 318, 115 S.Ct. 2151 (suggesting that appellate courts will be cautious to limit appellate review “in a case where the appealable issue appears simply a means to lead the court to review the underlying factual matter“). UNM‘s reliance on the presumption of at-will employment for administrative positions and extrinsic evidence to prove that the 1994-1995 contract withdrew Dr. Handmaker from director of the UAP only serves to emphasize the extent to which UNM‘s arguments are intertwined with the merits of Dr. Handmaker‘s breach of contract claim. Cf. Mitchell, 472 U.S. at 528, 105 S.Ct. 2806 (“An appellate court reviewing the denial of the defendant‘s claim of immunity need not consider the correctness of the plaintiff‘s version of the facts, nor even determine whether the plaintiff‘s allegations actually state a claim.“). The trial court‘s order denying UNM‘s motion for summary judgment entails issues involving the ultimate facts necеssary for disposition of the merits of the action. Cf. Allen, 106 N.M. at 674-75, 748 P.2d at 517-18 (holding that, because the issue of immunity raised in the interlocutory order “requires a determination of the very ingredients of the causes of action themselves,” it “fail[ed] to meet the Cohen requirements for appellate review under the collateral order exception to the final judgment rule“). Further, the trial court‘s order does not finally determine these issues; the trial court concluded only that Dr. Handmaker had raised genuine issues of material fact and did not conclude that UNM had in fact breached its contract. Cf. Carrillo, 114 N.M. at 622-23, 845 P.2d at 145-46 (“[A]n adjudication [denying a motion for summary judgment based on qualified immunity] does not determine that defendants are liable.... Establishing the defendants’ liability or nonliability must await the outcome of the trial that a denial of summary judgment entails.“).
{21} As with most denials of motions for summary judgment, this portion of the district court‘s order is more appropriately left to further examination by the district court
IV. Conclusion
{22} As a general matter, the limited exception to the rule of finality known as the collateral order doctrine applies to district court determinations regarding governmental immunity under Section 37-1-23(A), and such determinations are subject to review by writ of error. In this case, the trial court‘s denial of UNM‘s motion for summary judgment determined two issues: (1) Section 37-1-23(A) does not provide governmental immunity in this case; and (2) Dr. Handmaker has raised genuine issues of material fact with respect to his breach of contract claim. With respect to the first determination, we conclude that the trial court did not err because Dr. Handmaker‘s claim is based on a written contract. With respect to the second determination, we conclude that it is not an appropriate subjеct of review by writ of error, and we decline to address, as a premature appeal, whether the trial court improperly decided that genuine issues of material fact exist. We conclude that the trial court properly denied UNM‘s claim of governmental immunity under Section 37-1-23(A), and we apply the finality of judgments rule to the remainder of UNM‘s claims on appeal.
{23} IT IS SO ORDERED.
MINZNER, C.J., and BACA, J., concur.
FRANCHINI, J. (concurring in part and dissenting in part).
MAES, J. (concurring in part and dissenting in part).
FRANCHINI, Justice. (Special Concurrence and Dissent).
{24} I CONCUR with the opinion that this matter is reviewable under Carrillo v. Rostro, 114 N.M. 607, 845 P.2d 130 (1992), because it concerns collateral determinations regarding governmental immunity under Section 37-1-23(A) and is reviewable by this Court by writ of error.
{25} However, I DISSENT from the analysis and the result reached in the opinion for the following reasons:
{26} I do not agrеe with the majority that Doctor Handmaker‘s contracts were ambiguous. Dr. Handmaker had a written contract for the years 1993-1994, which ended on June 30, 1994. That written contract had no provision for renewal of the administrative position as head of UAP (University of Administrative Program). Further, the contract specified that the administrative services could be terminated during the contract
{27} The Doctor‘s contract for 1994-1995 does not include the directorship of UAP. He was given notice of this on June 28, 1994. He was effectively terminated as UAP director on July 1, 1994, at which time he was an at will employee regarding the directorship.
{28} Therefore, since there was no written contract on July 1, 1994, the Doctor cannot sue UNM for breach of contract because of Section 37-1-23(A), the Sovereign of Immunity Statute. UNM had the right, and in fact did not choose, to renew the Doctor‘s contract for the directorship of UAP after June 30, 1994. The amended complaint does not bring the case under the jurisdiction of the District Court and therefore does not moot it.
{29} The majority‘s reliance on the case of Garcia v. Middle Rio Grande Conservancy District, 121 N.M. 728, 918 P.2d 7 (1996) is misplaced. Garcia held that a written personal policy manual constituted an implied-in-fact term of employment contract and was not subject to immunity under Sec-tion 37-1-23-A. Here, there are no provisions in the Faculty Handboоk, like those present in Garcia, that specify particular administrative duties or personnel policies which might support a written contract claim against UNM by Dr. Handmaker to continue as director of UAP.
{30} In my opinion, this case is controlled by Hydro Conduit Corp. v. Kemble, 110 N.M. 173, 176, 793 P.2d 855, 861 (1990), and Trujillo v. Gonzales, 106 N.M. 620, 621, 747 P.2d 915, 916 (1987). These cases both support the proposition that Section 37-1-23(A) supplies immunity from implied contracts and that the Doctor‘s claim, in order to survive summary judgment, must be supported by explicit language appearing in the contract. No such explicit language is present here. Further, Dr. Handmaker cannot rely on representations by University officials concerning the contract. See id.
{31} Claims against other people at UNM do not prevent us from issuing a writ of error. I believe this is the case even though there may be issues of fact to be determined as to those individuals. These issues were stated by the trial court as its reason for denying UNM a summary judgment. For the reasons I have stated, I believe this was error.
{32} I would remand this case to the District Court with instructions to enter a Summary Judgment for UNM.
{33} The majority holding otherwise, I respectfully dissent.
MAES, J., concurs.