Castro v. Univ. of N.M. Med. Grp. ( 2023 )

This decision of the New Mexico Court of Appeals was not selected for publication in
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39933
MARICAR CASTRO,
Plaintiff-Appellant,
v.
UNIVERSITY OF NEW MEXICO
MEDICAL GROUP,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Daniel E. Ramczyk, District Court Judge
Gilpin Law Firm, LLC
Donald G. Gilpin
Christopher P. Machin
Albuquerque, NM
for Appellant
Garcia Law Group, LLC
Bryan C. Garcia
Meghan S. Nocholson
Andrew J. Deakyne
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Plaintiff Maricar Castro appeals the grant of summary judgment on her
Whistleblower Protection Act (WPA) claim, NMSA 1978, Sections 10-16C-1 to -6
(2010). The district court granted summary judgment in favor of Defendant University of
New Mexico Medical Group after finding, as a matter of law, that Defendant was not
subject to the WPA because of its status as a private, nonprofit corporation under the
University Research Park and Economic Development Act (URPEDA), NMSA 1978, §§
21-28-1 to -25 (1989, as amended through 2022).1 On appeal, Plaintiff argues that the
district court erroneously granted summary judgment because (1) a genuine issue of
material fact exists as to whether Defendant was a public employer subject to the WPA
and (2) the district court’s earlier denial of Defendant’s motion to dismiss Plaintiff’s WPA
claim was law of the case.2 Plaintiff has failed to convince us of error and we therefore
affirm.3
BACKGROUND
{2} Defendant employed Plaintiff as the chief radiation therapist at the UNM Cancer
Center. Plaintiff claims she witnessed unsafe and unethical practices occurring in her
department and reported them to a compliance hotline during a state audit, and to the
executive director of human resources. Thereafter, Defendant discharged Plaintiff from
her position, indicating that Plaintiff had violated internal policy and that her services
were no longer needed. Plaintiff then filed a complaint seeking monetary damages
under the WPA and common law wrongful discharge alleging that her termination
constituted retaliation for reporting her concerns.
{3} Defendant filed a motion to dismiss, arguing that URPEDA provided university
research park corporations immunity from both the WPA and wrongful discharge claims.
The parties did not dispute at this stage, nor later during summary judgment, that
Defendant is incorporated under URPEDA and is a university research park corporation.
{4} The district court granted Defendant’s motion to dismiss on the wrongful
discharge claim, but denied the motion as to Plaintiff’s WPA claim. The district court did
not provide reasoning in its order, but when it announced its decision in court indicated
that the WPA could potentially apply to research park corporations incorporated under
1Section 21-28-7 was amended during the pendency of this appeal. See § 21-28-7 (1998, amended
2022). We apply the version in effect at the time of the events giving rise to this lawsuit. All citations to
Section 21-28-7 in this opinion are to the 1998 version.
2Plaintiff also appeals the grant of a motion to dismiss her wrongful discharge claim. However, Plaintiff
conceded that the URPEDA immunized Defendant from wrongful discharge claims in her response to the
motion to dismiss and at the hearing on that motion. See § 21-28-7(C) (“A research park corporation, its
officers, directors and employees shall be granted immunity from liability for any tort as provided in the
Tort Claims Act (TCA)[, NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2020)].”) Considering
this concession, Plaintiff cannot reasonably claim that she fairly invoked a ruling by the district court on
this issue. See Premier Tr. of Nev., Inc. v. City of Albuquerque, 2021-NMCA-004, ¶ 30, 482 P.3d 1261(“To preserve an issue for review on appeal, it must appear that the appellant fairly invoked a ruling of the
trial court on the same grounds argued in the appellate court.” (alteration, internal quotation marks, and
citation omitted)); see also Vigil v. Taintor, 2020-NMCA-037, ¶ 8, 472 P.3d 1220 (providing that “[w]e will
not review arguments that were not preserved in the district court” and that we will not “consider as
preserved arguments that are waived below” (internal quotation marks and citation omitted)). Accordingly,
we decline to review this unpreserved argument.
3The Court ordered that the parties provide supplemental briefing in this appeal and both parties timely
complied. The briefs were considered along with those initially filed by the parties in resolving the issues
presented on appeal.
the URPEDA because the WPA might not fall within the term “laws relating to
personnel” as used by Section 21-28-7(A). Defendant unsuccessfully sought a writ of
superintending control to our Supreme Court after the district court denied the motion to
dismiss the WPA claim. Order, UNM Medical Group v. Butkus, S-1-SC-37662, (N.M.
June 6, 2019).
{5} Defendant then filed two summary judgment motions directed to Plaintiff’s WPA
claim: one based on its URPEDA status as a private corporation and the other based on
the legitimate business purpose of termination. In her response to Defendant’s motion
for summary judgment based on its URPEDA status, Plaintiff admitted that Defendant is
a private sector, nonprofit corporation incorporated under URPEDA and the Nonprofit
Corporations Act, NMSA 1978, §§ 53-8-1 to -99 (1975, as amended through 2021).
However, Plaintiff also argued that Defendant is a “public entity of UNM” and therefore
subject to the WPA, even though Defendant is a nonprofit corporation.
{6} Without a hearing, the district court granted Defendant’s motion for summary
judgment based on its URPEDA status and consequently determined Defendant’s other
such motion to be moot. The district court found that there was no factual dispute that
Defendant is a private, nonprofit corporation and that the “specific and plain language of
the URPEDA makes clear that Plaintiff is not permitted to bring personnel claims
against . . . Defendant which are available only against public entities.” Thus, the district
court dismissed the WPA claim as a matter of law. Plaintiff appealed.
DISCUSSION
I. The District Court Did Not Err In Concluding That There is no Genuine
Issue Of Material Fact as to Whether Defendant was a Public Employer
Subject To The WPA
{7} Plaintiff argues that the district court erred in determining that the plain language
of the URPEDA precludes WPA claims and that a genuine dispute of material fact
prevents the grant of summary judgment on this issue. Defendant responds that the
district court correctly granted summary judgment because the plain language of the
URPEDA precludes WPA claims, and there were otherwise no material issues of fact in
dispute. Plaintiff has not persuaded us of error.
{8} We review de novo the district court’s grant of summary judgment, the language
of the URPEDA and WPA, and the application of that language to the facts presented in
this case. See Cox v. N.M. Dep’t of Pub. Safety, 2010-NMCA-096, ¶ 4, 148 N.M. 934,
242 P.3d 501 (observing that “[a]n appeal from the grant of a motion for summary
judgment presents a question of law and is reviewed de novo” and “[t]he meaning of
language used in a statute is a question of law that we review de novo” (internal
quotation marks and citations omitted)). However, “it is the appellant’s burden to
persuade us that the district court erred” because “there is a presumption of correctness
in the rulings and decisions of the district court.” See Hall v. City of Carlsbad, 2023-
NMCA-042, ¶ 5, 531 P.3d 642 (internal quotation marks and citation omitted). In
granting summary judgment, the district court determined that “[t]he specific and plain
language of the URPEDA makes clear that Plaintiff is not permitted to bring [WPA]
claims against this Defendant which are available only against public entities.” We thus
began our analysis by engaging in statutory construction to determine whether the WPA
applies to research park corporations created under the URPEDA, or whether Section
21-28-7 precludes application of the WPA.
{9} “In interpreting statutes, we seek to give effect to the Legislature’s intent, and in
determining intent we look to the language used and consider the statute’s history and
background.” Valenzuela v. Snyder, 2014-NMCA-061, ¶ 16, 326 P.3d 1120 (internal
quotation marks and citation omitted). “Our courts have repeatedly observed that a
statute’s plain language is the most reliable indicator of legislative intent.” Stennis v. City
of Santa Fe, 2010-NMCA-108, ¶ 10, 149 N.M. 92, 244 P.3d 787. “[W]hen a statute
contains language which is clear and unambiguous, we must give effect to that
language and refrain from further statutory interpretation.” Truong v. Allstate Ins. Co.,
2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (internal quotation marks and
citation omitted). “We will not depart from the plain wording of a statute, unless it is
necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature
could not have intended, or to deal with an irreconcilable conflict among statutory
provisions.” Regents of the Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶
28, 125 N.M. 401, 962 P.2d 1236.
{10} The Legislature enacted the URPEDA in 1989, in part, to allow universities to
form “research park corporations” under the Nonprofit Corporation Act, and “to promote,
develop and administer research parks or technological innovations for scientific,
educational and economic development opportunities.” Section 21-28-4(A). Research
park corporations are “separate and apart from the state and the university,” id., are
governed by a board of directors appointed by the university’s regents, § 21-28-4(B),
and may sue and be sued in their corporate names. Section 21-28-6(B).
{11} The URPEDA specifically provides the following limitations on suits against
research park corporations:
A. A research park corporation shall not be deemed an agency,
public body or other political subdivision of New Mexico, including for
purposes of applying statutes and laws relating to personnel, procurement
of goods and services, meetings of the board of directors, gross receipts
tax, disposition or acquisition of property, capital outlays, per diem and
mileage and inspection of records.
B. A research park corporation shall be deemed:
(1) an agency or other political subdivision of the state for
purposes of applying statutes and laws relating to the furnishing of
goods and services to the university that operates it and the risk
management fund; and
(2) a public employer for the purposes of the Public
Employee Bargaining Act (PEBA)[, NMSA 1978, 10-7E-1 to -26
(2003, as amended through 2020),] if it owns, operates or manages
a health care facility or employs individuals who work at a health
care facility.
C. A research park corporation, its officers, directors and
employees shall be granted immunity from liability for any tort as provided
in the Tort Claims Act (TCA)[, NMSA 1978, 41-4-1 to -27 (1976, as
amended through 2020)]. A research park corporation may enter into
agreements with insurance carriers to insure against a loss in connection
with its operations even though the loss may be included among losses
covered by the risk management fund of New Mexico.
Section 21-28-7 (emphasis added).
{12} The WPA, in turn, prohibits a public employer from taking retaliatory action
against a public employee. See § 10-16C-3. The WPA defines a “public employer” as:
(1) any department, agency, office, institution, board,
commission, committee, branch or district of state government;
(2) any political subdivision of the state, created under either
general or special act, that receives or expends public money from
whatever source derived;
(3) any entity or instrumentality of the state specifically provided
for by law; and
(4) every office or officer of any entity listed in Paragraphs (1)
through (3) of this subsection.
Section 10-16C-2(C).
{13} Plaintiff acknowledges that, pursuant to URPEDA, Defendant cannot be
considered “an agency, public body or other public subdivision of New Mexico” for
purposes of personnel laws, including the WPA. Plaintiff contends instead that URPEDA
does not address “entities or instrumentalities” and maintains that Defendant is an
“entity or instrumentality of the state specifically provided by law,” § 10-16C-2(C)(3), and
therefore a “public employer” pursuant to the plain language of the WPA. Concluding
otherwise, Plaintiff continues, would lead to absurd results. Defendant responds that the
plain language of URPEDA “specifically articulates that [Defendant] is not a public
employer,” and “[t]he WPA only applies to public employers,” therefore “[t]he WPA does
not apply to [Defendant].”
{14} To determine whether the Legislature intended for the URPEDA to preempt WPA
claims against research park corporations, we first turn to the applicable statutory
language. See Valenzuela, 2014-NMCA-061, ¶ 16. As quoted above, the WPA’s
definition of “public employer” explicitly includes the terms “agency” and “political
subdivision.” Section 10-16C-2(C)(1)-(2). This terminology overlaps with the WPA’s
public employer definition, id., and the URPEDA language, see § 21-28-7(A), and is the
first indication that the Legislature did not intend for WPA to apply to research park
corporations. See N.M. Indus. Energy Consumers v. N.M. Pub. Regul. Comm’n, 2007-
NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105 (“[T]wo statutes covering the same
subject matter should be harmonized and construed together when possible, in a way
that facilitates their operation and achievement of their goals.” (citation omitted)).
Nevertheless, Plaintiff argues that Defendant is an “entity or instrumentality of the state
specifically provided for by law”—as enumerated under the WPA as subject to its
requirements—and therefore the WPA applies. See § 10-16C-2(C)(3).
{15} Although the plain language in the URPEDA does not explicitly preempt research
park corporations from being deemed an “entity or instrumentality of the state,” under
Section 10-16C-2(C)(3) of the WPA, we examine whether these terms fall within the
meaning of “public body,” as used in Section 21-28-7(A) of URPEDA. We requested the
parties to provide supplemental briefing on this topic. In response, Plaintiff conceded
that “there is no substantive difference” between the terms in the WPA and URPEDA.
Given this concession, we treat the terms as coextensive for the purposes of this
appeal. See, e.g., Pirtle v. Legislative Council Comm. of N.M. Legislature, 2021-NMSC-
026, ¶ 58, 492 P.3d 586 (“As a general rule, appellate courts rely on adversarial briefing
to decide legal issues and avoid reaching out to construct legal arguments that the
parties, intentionally or otherwise, have not presented.”). In light of Plaintiff’s
concession, and Plaintiff’s failure to develop an argument in her brief in chief or reply
brief as to why we should treat the term “entity of the State” any different from “an
instrumentality of the state,” we do not consider the matter further. See Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining
to consider an undeveloped argument). Consequently, accepting Plaintiff’s argument
and concluding that Defendant is an “entity or instrumentality of the state,” § 10-16C-
2(C)(3), subject to the WPA, would necessarily violate URPEDA’s directive to not deem
a research park corporation a “public body,” § 21-28-7(A).
{16} The conclusion that Defendant is not a public employer and thus not subject to
the WPA is supported by the exception included in Section 21-28-7(B) of URPEDA.
There is one exception to the general rule that “research park corporations shall not be
deemed an agency, public body or other political subdivision.” See § 21-28-7(A)-(B).
Section 21-28-7(B) requires research park corporations to be deemed “an agency or
other political subdivision of the state for purposes of applying statutes and laws relating
to the furnishing of goods and services to the university that operates it and the risk
management fund.” This limited and specific exception demonstrates that the
Legislature generally intended to preclude research park corporations from being
treated as public employers, unless otherwise specifically directed. See Augustin Plains
Ranch v. D’Antonio, 2023-NMCA-001, ¶ 13, 521 P.3d 1226 (“[T]he Legislature knows
how to include language in a statute if it so desires.” (internal quotation marks and
citation omitted)).
{17} Next, we reject Plaintiff’s argument that our holding leads to an absurd result
because it would “deny employees of an entity under URPEDA from relief under both
the [WPA] and common law wrongful discharge.” This Court has recognized that
“[w]hen a peculiarity in the literal language of a statute leads to an absurd result, the
court may construe the statute according to its purpose to avoid the absurdity.” City of
Rio Rancho v. Logan, 2008-NMCA-011, ¶ 18, 143 N.M. 281, 175 P.3d 949 (citation
omitted). However, “we diverge from the plain meaning of a statute to avoid an absurd
result only when it is clear that the legislature did not intend such a result.” State v.
Maestas, 2007-NMSC-001, ¶ 22,140 N.M. 836, 149 P.3d 933; see also BOKF, N.A. v.
Unknown Heirs of Pacheco, 2021-NMCA-010, 484 P.3d 1020 (“We may only add words
to a statute where it is necessary to make the statute conform to the Legislature’s clear
intent, or to prevent the statute from being absurd.” (alterations, internal quotation
marks, and citation omitted)).
{18} Concluding that the WPA language created an exception to URPEDA’s general
prohibition against treating a research park corporation as public bodies would read into
a statute language that is not there, which we cannot do. High Ridge Hinkle Joint
Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599(“The court will not read into a statute or ordinance language which is not there,
particularly if it makes sense as written.” (internal quotation marks and citation omitted)).
The plain meaning of the statutes is clear and unambiguous, and there is no clear
evidence that the Legislature intended a different result; therefore we must refrain from
further interpretation. See Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930
P.2d 153 (“[W]hen a statute contains language which is clear and unambiguous, we
must give effect to that language and refrain from further statutory interpretation.”
(internal quotation marks and citation omitted).
{19} Furthermore, as this Court recently observed when addressing a similar
contention, see Gardner v. N.M. Health Ins. Exch., mem. op. ¶ 14 (N.M. Ct. App. Feb.
23, 2023) (nonprecedential), the Legislature may exempt from or limit liability of
government bodies, entities, agencies, etc., and to do so is a policy decision. See § 41-
4-2(A) (stating that it is “the public policy of New Mexico that governmental entities” are
“only . . . liable within the limitations of the [TCA]”); see also § 21-28-7(C) (stating that
“[a] research park corporation, its officers, directors and employees shall be granted
immunity from liability for any tort as provided in the [TCA]”); see also § 10-16C-6 (“A
civil action pursuant to the [WPA] shall forever be barred unless the action is filed within
two years from the date on which the retaliatory action occurred.”). “Unless a statute
violates the Constitution, we will not question the wisdom, policy, or justness of
legislation enacted by our Legislature.” Aeda v. Aeda, 2013-NMCA-095, ¶ 11, 310 P.3d
646 (alteration, internal quotation marks, and citation omitted). We will not say that the
Legislature’s proper exercise of its power was absurd when creating Defendant and
limiting its liability.
II. The District Court did Not Err In Concluding that the Law of the Case
Doctrine did not Preclude Granting Summary Judgment
{20} Finally, we address Plaintiff argument that, by denying Defendant’s prior motion
to dismiss Plaintiff’s WPA claim, the district court decided that the URPEDA did not
preclude WPA claims as matter of law, and therefore the law of the case doctrine
preempted the district court from granting Defendant’s subsequent motion for summary
judgment. We do not agree the law of the case precluded the district court’s entry of
summary judgment.
{21} The “law of the case doctrine relates to litigation of the same issue recurring
within the same suit.” Cordova v. Larsen, 2004-NMCA-087, ¶ 10, 136 N.M. 87, 94 P.3d
830. “Under the law of the case doctrine, a decision on an issue of law made at one
stage of a case becomes a binding precedent in successive stages of the same
litigation.” Id. (internal quotation marks and citation omitted). The district court’s denial of
Defendant’s motion to dismiss the WPA claim was an interlocutory order, not a final
judgment on the merits of Plaintiff’s action. See, e.g., Sims v. Sims, 1996-NMSC-078, ¶
59, 122 N.M. 618, 930 P.2d 153 (“An interlocutory decision is any decision made by the
court prior to the final judgment.”); Gutierrez v. Gutierrez, 1993-NMCA-103, ¶ 3, 116
N.M. 86, 860 P.2d 216 (dismissing an appeal from a denial of a motion to dismiss on
the ground that such an order is not final). “An interlocutory order may be revised at any
time prior to final judgment,” Sims, 1996-NMSC-078, ¶ 59, and this Court has held that
the law of the case doctrine does not prevent a district court from doing so, see Laughlin
v. Convenient Mgmt. Services, Inc., 2013-NMCA-088, ¶ 23, 308 P.3d 992 (observing
that “although it would be grossly inefficient for district courts to review repeatedly their
interlocutory rulings, the law-of-the-case doctrine does not prohibit the practice”
(alteration, internal quotation marks, and citation omitted)); Bell v. N.M. Interstate
Stream Comm’n, 1996-NMCA-010, ¶¶ 12-17, 121 N.M. 328, 911 P.2d 222 (providing
that “the law-of-the-case doctrine does not preclude a trial court from overturning an
earlier interlocutory order”). Thus, even assuming for the purposes of this opinion that,
as Plaintiff argues, the district court determined at the motion to dismiss stage that the
URPEDA did not preclude WPA claims as matter of law, we perceive no error in the
district court’s later decision to grant Defendant’s motion for summary judgment on the
basis that the URPEDA does preclude WPA claims against Defendant.
CONCLUSION
{22} For the foregoing reasons, we affirm.
{23} IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
J. MILES HANISEE, Judge