May 28, 2019- Keith Parrish v. Roosevelt County Board of County Commissioners, No. A-1-CA-37711

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 KEITH PARRISH,
3 	Plaintiff-Appellant,
4 V. 	NO. A-1-CA-37711
5 ROOSEVELT COUNTY BOARD
6 OF COUNTY COMMISSIONERS,
7 a political sub-division existing under
8 the laws of the State of New Mexico,
9 	Defendant-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
11 	Donna J. Mowrer, District Judge
12 Christian P. Christensen LLC
13 	Christian P. Christensen
14 Portales, NM
15 	for Appellant
16 New Mexico Association of Counties
17 Mark L. Drebing
18 	Albuquerque, NM
19 for Appellee
20 	MEMORANDUM OPINION
21 	ZAMORA, Chief Judge.
22 	{I} 	Plaintiff appeals from summary judgment granted in favor ofDefendant. This
23 	Court' s notice of proposed disposition proposed to summarily affirm. Plaintiff filed
Court of Appeals of New Mexico
Filed 5/28/2019 11:33 AM

1 a memorandum in opposition to the proposed disposition raising a new issue, which
2 we construe as a motion to 	amend the docketing statement. Unpersuaded by
3 Plaintiffs arguments, we deny the motion to amend and affirm.
4 	{2} 	Plaintiff argues that it was futile for him to file a grievance with the county
5 manager since it was he who made the decision-requiring fifty hour work weeks,
6 and no holiday or snow day pay- 	Plaintiff sought to grieve. [MIO 2] Thus, Plaintiff
7 asserts that there were no further legal or statutory remedies available after the county
8 manager's decision, which was final and non-grievable. [MIO 4] Plaintiff asserts the
9 general principle "that administrative remedies do not have to be exhausted when it
10 would be futile to do so or when a question of law is at issue." State ex rel. Regents
11 	ofE. N.M Univ. v. Baca, 2008-NMSC-047, i118, 144 N.M. 530, 189 P.3d 663.
12 	{3} 	Defendant's motion for summary judgment sought dismissal on jurisdictional
13 	grounds for failure to exhaust administrative remedies. Plaintiffs response did not
14 argue that he was not required to initiate a grievance because it would have been
15 	futile to do so. See Rule 12-32l(A) NMRA (providing that a question is preserved for
16 	appellate review if it "appear[ s] that a ruling or decision by the trial court was fairly
17 	invoked ... [and further, i]f a party has no opportunity to object to a ruling or order
18 	at the time it is made, the absence of an objection does not thereafter prejudice the
19 party"). Not having asserted futility as a defense to Defendant's motion for summary
2

1 judgment, we do not address the argument on appeal. See Gzaskow v. Pub. Emps. Ret.
2 Bd., 2017-NMCA-064, 123,403 P.3d 694 (noting that futility was not asserted in the
3 proceeding challenging the district court's jurisdiction).
4 {4} 	In a related argument, Plaintiff contends that a part of his claim is a result of
5 Defendant's inaction, and the grievance procedure therefore does not apply. [MIO 3]
6 Plaintiff relies on Granberryv. Albuquerque Police Officers Ass 'n, 2008-NMCA-094,
· 7 110, 144 N.M. 595, 189 P.3d 1217, for his contention. In that case, the plaintiffs
8 complaints concerning flaws in the promotion process were expressly excluded from
9 the grievance process in the collective bargaining contract governing the proper
10 procedures for relief. Id. The Granberry Court determined that the issue was a legal
11 	question and resolved it as a matter of law. See id. 19.
12 	{5} 	Our proposed disposition indicated that the interpretation of the applicable
13 	provision in the personnel manual presented a legal issue and proposed to conclude,
14 	as a matter oflaw, "that the permissive language in the grievance procedure only gave
15 	Plaintiff the option of first resolving his complaint with his supervisor, ifhe so chose,
16 	but in either case, required him to address it to the County Manager for a final
17 determination." [CN 5] See San Pedro Neighborhood Ass 'n v. Bd. of Cty. Comm 'rs
18 	of Santa Fe Cty., 2009-NMCA-045, 1 12, 146 N.M. 106, 206 P.3d 1011 ("[T]he
19 	interpretation of [an] ordinance is a question of law that we review de novo, using the
3

1 same rules of construction that apply to statutes."). We proposed to rely on the
2 parties' agreement that "grievance," as defined in the personnel manual, is "[a]
3 complaint of an employee concerning actions taken by management which result in
4 loss of pay to the employee, or which results from dissatisfaction with the working
5 conditions or relationships." [CN 3-4; see also DS 4; 2 RP 364] Because Plaintiff
6 does not dispute the facts relied upon for our proposed disposition, we affirm. See
7 Hennessy v. Duryea, 1998-NMCA-036, ,r 24, 124 N.M. 754, 955 P.2d 683 ("Our
8 courts have repeatedly held that, in summary calendar cases, the burden is on the
9 party opposing the proposed disposition to clearly point out errors in fact or law.").
10 	{6} 	Plaintiff further argues that breach of an implied-in-fact contract does not
11 	require exhaustion of administrative remedies. [MIO 4-5, 8] Plaintiff asserts that
12 whether an implied contract existed is a factual issue and New Mexico has not
13 	adopted a rule precluding an employee's breach of an implied-in-fact contract based
14 on oral assurances outside of the personnel manual before exhausting administrative
15 	remedies. [MIO 5-6] However, we see no difference between claims for a breach of
16 a written contract and breach of an implied-in-fact contract, and Plaintiff cites no
17 authority in this regard. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ,r 28, 320
18 	P.3d 482 ("Where a party cites no authority to support an argument, we may assume
19 	no such authority exists."). Therefore, we conclude that any claim Defendant
4

1 breached 	an 	implied 	contract 	also 	fails 	because 	Plaintiff 	did 	not 	exhaust
2 	administrative remedies.
3 	{7} 	Insofar as Plaintiff argues unjust enrichment, it appears from the record that
4 	Plaintiff raised this argument for the first time in response to Defendant's motion for
5 summary judgment. [2 RP 516-17] Plaintiff did not assert it as a cause of action in the
6 complaint. [l RP 1-4] Moreover, we are not persuaded that granting relief under an
7 unjust enrichment theory would have been proper where the personnel manual
8 expressly provided grievance procedures. See Arena Res. , Inc. v. Oba, Inc., 2010-
9 	NMCA-061, ,-r 21, 148 N.M. 483, 238 P.3d 357 (concluding that the district court
10 erred in invoking an unjust enrichment theory of recovery and in granting relief under
11 	that theory of recovery where the parties had an express contract).
12 	{8} 	Lastly, 	Plaintiff argues 	that 	promissory 	estoppel 	does 	not 	reqmre 	the
13 	exhaustion of administrative remedies. [MIO 4-8] Because this is a new argument not
14 raised in the docketing statement [DS 6], we construe it as a motion to amend. See
15 	State v. Rael, 1983-NMCA-081, ~ 15, 100 N.M. 193,668 P.2d 309 (enumerating the
16 requirements of a motion to amend the docketing statement). Plaintiff does not
17 	indicate whether or how it was raised below and it does not appear from the record
18 that it was preserved. See Losey v. Norwest Bank ofNM , N.A. (In re Norwest Bank
19 of N.M, N.A.), 2003-NMCA-128, ,-r 30, 134 N.M. 516, 80 P.3d 98 (stating that this
5

1 Court will not search the record for evidence of preservation). We therefore deny the
2 motion to amend. Rael, 1983-NMCA- 081 , 1 15 (requiring motion to amend to
3 indicate how the issue was preserved or why it may be raised for the first time on
4 appeal).
5 	{9} 	For these reasons, and those stated in the notice of proposed disposition, we
6 affirm.
7 	{to} 	IT IS SO ORDERED.
8
9
10 	WE CONCUR:
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6