January 15, 2014 – Sate of New Mexico ex rel. David Peterson v. Aramark Correctional Services, LLC, No. 32,128

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: January 15, 2014
NO. 32,128
STATE OF NEW MEXICO ex rel.
DAVID PETERSON,
Qui Tam Plaintiff-Appellant,
v.
ARAMARK CORRECTIONAL SERVICES, LLC,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge
Streubel Kochersberger Mortimer LLC
Donald F. Kochersberger III
Albuquerque, NM
for Appellant
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Andrew G. Schultz
Albuquerque, NM
for Appellee

1 The district court proceedings and the briefing in this case occurred prior to
our recognition in Pielhau v. State Farm Mutual Automobile Insurance Co., 2013-
NMCA-112, ¶ 7 n.1, __ P.3d __, that the term “res judicata” encompasses both claim
and issue preclusion. In accord with Pielhau, in this Opinion we substitute the terms
“claim 	preclusion” 	and 	“issue 	preclusion” 	for 	the 	terms 	“res 	judicata” 	and
OPINION
SUTIN, Judge.
{1} 	Qui Tam Plaintiff David Peterson (Plaintiff), on behalf of the State, sued
Aramark Correctional Services, LLC (Aramark) in May 2010, claiming that Aramark
violated the Fraud Against Taxpayers Act (the Act), NMSA 1978, §§ 44-9-1 to -14
(2007). See § 44-9-5(A) (stating that a person bringing an action under the Act, on
behalf of the State, shall be referred to as the qui tam plaintiff). The lawsuit was based
on allegations that Aramark, who was under contract to provide meals for inmates in
the Western New Mexico Correctional Facility (the Facility) of the New Mexico
Department of Corrections (the Department), failed and refused to comply with certain
provisions of the contract and then sought payment under the contract based on false
representations of compliance. Plaintiff filed the lawsuit in an effort “to recoup the
moneys wrongfully paid to Aramark.”
{2} 	Aramark moved for summary judgment claiming that a lawsuit brought by
Plaintiff in 2008 barred the present action on the bases of claim preclusion and issue
preclusion.1 Separately, Aramark moved to dismiss Plaintiff’s claims that were based

“collateralestoppel.” 	See 18 Charles Alan Wright et al., Federal Practice and
Procedure § 4402, ch. 13 (2d ed. 2002).
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on conduct that occurred prior to the enactment of the Act so as to comply with the
prohibition against the application of ex post facto laws. The district court granted
summary judgment in favor of Aramark on the bases of claim and issue preclusion,
and it also granted Aramark’s motion to dismiss Plaintiff’s claims for conduct that
occurred before the enactment of the Act. Plaintiff appeals.
{3} 	We reverse the court’s summary judgment, holding that the doctrines of claim
preclusion and issue preclusion do not apply in this case. 	We affirm the court’s
dismissal of claims that were based on Aramark’s conduct that occurred prior to the
enactment of the Act.
BACKGROUND
The Act
{4} 	The Act “tracks closely the longstanding federal False Claims Act[.]” State ex
rel. Foy v. Austin Capital Mgmt., Ltd., 2013-NMCA-043, ¶ 7, 297 P.3d 357, cert.
granted, 2013-NMCERT-003, 300 P.3d 1181. In relevant part, Section 44-9-3 of the
Act provides that:
A. A person shall not:
(1) 	knowingly present, or cause to be presented, to an employee,
officer[,] or agent of the [S]tate or to a contractor, grantee[,] or other

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recipient of state funds a false or fraudulent claim for payment or
approval;
(2) 	knowingly make or use, or cause to be made or used, a false
misleading[,] or fraudulent record or statement to obtain or support the
approval of or the payment on a false or fraudulent claim[.]
Section 44-9-3(A)(1), (2). The Act provides that “[a] person may bring a civil action
for a violation of [the Act’s prohibitions] on behalf of the person and the [S]tate[,]”
which action “shall be brought in the name of the [S]tate.” Section 44-9-5(A). When
a complaint is filed by a qui tam plaintiff, the attorney general may intervene on
behalf of the State and take over the action. See § 44-9-5(C). If the attorney general
declines to take over, however, the qui tam plaintiff may proceed with the action. See
§ 44-9-5(D)(2). The court “may permit the attorney general to intervene at a later date
upon a showing of good cause.” Section 44-9-6(F).
{5} 	A person who violates the Act’s prohibitions is liable for “three times the
amount of damages sustained by the [S]tate because of the violation[,] . . . a civil
penalty[,] . . . the costs of a civil action brought to recover damages or penalties[,] and
. . . reasonable attorney fees[.]” Section 44-9-3(C). Further, “[i]f the [S]tate does not
proceed with an action brought by a qui tam plaintiff and the [S]tate prevails in the
action, the qui tam plaintiff shall receive an amount that is not less than twenty-five
percent or more than thirty percent of the proceeds of the action or settlement[.]”

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Section 44-9-7(B). The remaining proceeds collected in an action or a settlement must
be paid to the State. Section 44-9-7(E).
The Parties
{6} 	Plaintiff is an inmate at the Facility, in the custody and care of the Department.
Aramark entered into a contract (the contract) with the State of New Mexico in 2004
to provide food services for a number of adult corrections facilities in New Mexico
including the Facility where Plaintiff resides.
The Contract Between Aramark and the State
{7} 	Pursuant to the contract, Aramark had an obligation to provide meals to
inmates that were comprised of ingredients of a specific quality and met specific
nutritional content requirements. 	Among the provisions of the contract was a
requirement that Aramark provide food for religious diets for those inmates who had
been approved by the Department to receive a religious diet. 	Also, Aramark was
required to provide the State with monthly status reports that were to include a
detailed invoice reflecting the number and type of meals served and the cost
associated therewith. It was also required, bi-weekly, to submit a bill to the State to
generate payment for meal services that it had provided.

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Plaintiff’s 2008 Lawsuit
{8} 	At the outset, we note that a 2002 lawsuit filed by Plaintiff is not relevant to the
issues in this appeal; thus, although it is mentioned in the record, it will not be
discussed further in this Opinion.
{9} 	In 2008 Plaintiff, pro se, filed a lawsuit against Aramark, among others,
claiming breach of duty, fraud, unfair practices, and violation of the New Mexico
Religious Freedom Restoration Act, NMSA 1978, §§ 28-22-1 to -5 (2000), and
seeking actual and punitive damages. 	Plaintiff’s overarching claim in the 2008
lawsuit was that although he had been approved to receive a religious vegetarian diet,
the defendants “refused to provide [him] with a nutritionally adequate vegetarian
diet.”
{10} 	In relevant part, in the 2008 lawsuit, Plaintiff alleged that the “[c]ontract and
prison policy require the [d]efendant [to] provide 3400 calories and 60 grams of high
biological protein per day[,]” but “[t]he [d]efendants provide . . . Plaintiff with
between 1400 and 1900 calories per day[,]” and they provide Plaintiff “with between
zero and [thirty] grams of high biological protein per day.” Plaintiff also stated that
“[t]he . . . [Department], the prison[,] and the taxpayers have paid the [d]efendants to
provide . . . Plaintiff with a nutritionally adequate diet that complies with prison
policy, state law, and the contract[.]” Yet, he alleged that “[t]he [d]efendants do not

6
provide sufficient fresh fruit and fresh [vegetables] for a nutritionally adequate diet[,]”
and they “proffered a vegetarian diet menu” but they “falsely claim[ed]” that beans
or legumes and peanut butter are high biological protein food sources. 	He further
alleged that “[t]he [d]efendants provide a product that claims to be scrambled egg
mix[, but which] does not comply with the [New Mexico] egg grading act nor the
contract.”
{11} 	Based on the foregoing, Plaintiff claimed that the defendants “restrict [his] free
exercise of religion by denying him a nutritionally adequate vegetarian diet”;
“intentionally misappropriated and [took away] . . . food[] that belongs to . . . Plaintiff
and others by means of fraudulent conduct, practices[,] and representations”; “falsely
made parts of any writing purporting to have legal efficacy with intent to injure and
defraud . . . Plaintiff”; and “made false material statements upon public vouchers and
invoices supporting public vouchers with intent that the vouchers and invoices shall
be relied upon for the expenditure of public money.” Plaintiff claimed that he “was
and is being harmed by these actions of the [d]efendants” in that he “is hungry all the
time[,] . . . is chronically malnourished[,] . . . is caused to have his family and friends
support him with food money contrary to state law[, and] . . . is prohibited from freely
exercising his religious beliefs.”

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{12} 	The district court granted summary judgment in favor of the defendants in
Plaintiff’s 2008 lawsuit. Based on the undisputed facts before it, the court found that
Plaintiff failed “to demonstrate that the defendants . . . breached any duty owed to . . .
[P]laintiff or that he . . . suffered any damages as a result of their actions or failures[.]”
The court also found that Plaintiff “failed to show that the defendants . . . made any
untrue representations of fact to . . . [P]laintiff,” and that Plaintiff failed “to show that
the defendants . . . restricted [his] right to exercise his religion.” As such, the court
concluded that Plaintiff’s claims lacked merit. 	The court also concluded that, as a
private citizen, Plaintiff lacked standing to prosecute any violations of the New
Mexico Criminal Code; therefore, his claims alleging criminal activity lacked merit.
{13} 	Plaintiff appealed the court’s summary judgment, and this Court issued a
memorandum opinion affirming the judgment. See Peterson v. Neubauer, No. 30,235,
2010 WL 4621717, at *1 (N.M. Ct. App. July 28, 2010). 	In relevant part, the
memorandum opinion stated the following.
In his docketing statement, Plaintiff contends that he was entitled
to summary judgment on his claims of making or permitting false public
vouchers . . . . 	In our notice of proposed summary disposition, we
proposed to disagree because [that claim[] . . . involve[s] criminal
allegations, 	and 	Plaintiff 	is 	not 	authorized 	to 	prosecute 	criminal
violations.
. . . .

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Finally, in our notice, we proposed to hold that Plaintiff was not
entitled to prevail on his claim to restrain the payment or receipt of
public money pursuant to NMSA 1978, Section 30-23-4 (1963) because
Plaintiff’s 	complaint 	fails 	to 	request 	injunctive 	relief 	and 	the
governmental agency that is allegedly wrongfully paying money to
Defendants is not even named as a defendant. . . . Plaintiff fails to point
out any errors in our analysis except to contend he has a right to bring
this action based upon the . . . Act[.] However, Plaintiff has failed to
state a claim under that statute because he has failed to bring any action
in the name of the [S]tate.
Id. at *1-2 (citations omitted).
The Present Lawsuit
{14} 	Plaintiff, pro se, filed the present lawsuit in May 2010. In May 2011, having
acquired counsel to represent him in this matter, Plaintiff filed an amended complaint
followed by a second amended complaint on behalf of the State for violation of the
Act. 	The crux of Plaintiff’s claims in the present lawsuit was that Aramark
“consistently, and knowingly, failed and refused to provide the specific nutritional
content and food quality specified in the [contract,]” and, notwithstanding its failure
to comply with the contract, Aramark “repeatedly requested payment from the State
for its non-conforming products and services.” 	Thus, according to Plaintiff’s
complaint, “[t]he State has paid many millions of dollars to Aramark on [the basis of
Aramark’s] false claims.” By bringing the present lawsuit, Plaintiff sought “to recoup
the moneys wrongfully paid to Aramark.”

9
{15} 	In the second amended complaint, Plaintiff alleged that Aramark failed to
comply with the contract’s requirements pertaining to the quality of food ingredients
and nutritional content of the meals that it provides to inmates. For instance, Plaintiff
alleged that the contract requires Aramark to provide USDA Grade AA (large) eggs
and to provide at least fifteen percent of all calories from protein; however, “the eggs
provided by Aramark are not USDA Grade AA (large)[,]” and the meals “consistently
provide less [than fifteen percent] of calories from protein[.]” Plaintiff further alleged
that “[d]espite knowing that it was not complying with the material terms of the
[contract,]” 	Aramark 	“repeatedly 	generated 	reports 	reflecting 	that 	it 	was 	in
compliance” and requested full payment pursuant to the terms of the contract. As a
result, Plaintiff alleged that “the State paid Aramark for services and goods that
Aramark did not provide[.]”
{16} 	Based on the foregoing allegations, Plaintiff claimed that “Aramark knowingly
presented a false and/or fraudulent claim for payment to the State”; that “Aramark
knowingly made, used, or caused to be used, a false, misleading[,] and/or fraudulent
record or statement to obtain support or approval for payment on a false and/or
fraudulent claim”; and that the State was damaged as a result of Aramark’s actions.
Plaintiff requested a judgment in the State’s favor, including an award of three times
the amount of damages sustained by the State, a civil penalty for each violation of the

10
Act, costs incurred in prosecuting the action, and attorney fees. The attorney general
chose not to intervene.
{17} 	In July 2011, Aramark moved for summary judgment on the bases of claim
preclusion and issue preclusion. 	In its motion for summary judgment, Aramark
argued that “[t]he allegations in the present lawsuit are virtually identical to those of
[the 2008 lawsuit] against Aramark” and that “Plaintiff should not be permitted to re[-
]package the allegations from [the 2008 lawsuit] as a qui tam action and litigate a
second lawsuit containing the same contentions.” 	Aramark attached exhibits in
support of its summary judgment motion, including Plaintiff’s 2008 complaint, the
district court’s “findings and conclusions” from the 2008 lawsuit, and this Court’s
memorandum opinion affirming the district court’s summary judgment as to
Plaintiff’s 2008 lawsuit. Aramark’s arguments supporting summary judgment will be
discussed, as necessary, later in this Opinion.
{18} 	On the same day that it filed its motion for summary judgment, Aramark also
filed a motion to dismiss pursuant to Rule 1-012(B)(6) NMRA and Rule 1-009(B)
NMRA. See Rule 1-012(B)(6) (permitting a party to file a motion defending against
a claim based on the opposing party’s “failure to state a claim upon which relief can
be granted”); see also Rule 1-009(B) (“In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.”). As

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grounds for dismissal, Aramark argued that Plaintiff’s complaint failed to comply with
Rule 1-009(B) in that it failed to specify the factual bases of the fraud allegations,
failed to identify Aramark’s alleged wrongdoing, and failed “to identify a single false
claim for payment made to the State.” 	Thus, it failed to present “a legally cogent
theory of recovery” and should be dismissed.
{19} 	Alternatively, Aramark argued in its motion to dismiss that if the complaint
was not dismissed entirely, it should be dismissed in part to preclude any claims
arising before July 1, 2007, so as to comport with the constitutional prohibition
against the application of ex post facto laws. As a basis for this alternative argument,
Aramark noted that Plaintiff appeared to be alleging wrongful conduct that dated back
to June 2004; however, the Act was codified on July 1, 2007.
{20} 	In March 2012, the district court held a hearing on Aramark’s motions for
summary judgment and dismissal. Following the hearing, the district court entered
a written order of dismissal with prejudice. In the order, the district court stated that
Aramark properly established each of the elements required under the doctrines of
claim preclusion and issue preclusion, and thus ordered that Plaintiff was barred from
pursuing his claims in the present lawsuit. 	Accordingly, the district court granted
Aramark’s motion for summary judgment, and dismissed, with prejudice, all claims
brought on behalf of Plaintiff, stating, however, that its order did not prejudice the

12
State’s ability to bring a related action based on the same facts. Further, the court
dismissed with prejudice Plaintiff’s claims that were based on conduct occurring
before July 1, 2007—the effective date of the Act—because they would require
retroactive application of the Act in violation of the prohibition against ex post facto
laws. The court did not enter a ruling in regard to Aramark’s Rule 1-012(B)(6) and
Rule 1-009(B) arguments, indicating rather that it was taking that aspect of the motion
to dismiss “under advisement.” Plaintiff appeals from the court’s order.
{21} 	On appeal, Plaintiff argues that the district court erred in granting summary
judgment on the bases of claim and issue preclusion, respectively. He also argues that
the court erred in dismissing the claims that accrued prior to July 1, 2007, arguing that
the prohibition against ex post facto laws does not apply in this case. The parties do
not claim that relevant facts are in dispute.
{22} 	We hold that the doctrines of claim preclusion and issue preclusion do not bar
the present lawsuit and reverse the court’s summary judgment. We affirm the court’s
order made pursuant to the prohibition against ex post facto laws, dismissing claims
that were based on activity that occurred prior to July 1, 2007.
DISCUSSION
Standard of Review

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{23} 	“When the facts are not in dispute, the preclusive effect of a prior judgment
is a question of law reviewed de novo.” 	Rosette, Inc. v. United States Dep’t of the
Interior, 2007-NMCA-136, ¶ 31, 142 N.M. 717, 169 P.3d 704. 	Additionally, in
reviewing an appeal from summary judgment, where the “issues on appeal involve
only questions of law, we review those questions de novo.” Id. ¶ 16. Thus, as to all
issues in this appeal, our review is de novo.
Claim Preclusion
{24} 	The doctrine of claim preclusion “bars re[-]litigation of the same claim
between the same parties or their privies when the first litigation resulted in a final
judgment on the merits.” Deflon v. Sawyers, 2006-NMSC-025, ¶ 2, 139 N.M. 637,
137 P.3d 577 (internal quotation marks and citation omitted). “It treats a judgment,
once rendered, as the full measure of relief to be accorded between the same parties
on the same claim or cause of action.” 18 Wright et al., supra, § 4402, at 8-9 (internal
quotation marks and citation omitted). A defendant claiming that the plaintiff’s claim
is barred under the doctrine of claim preclusion must demonstrate that the following
four elements are met: (1) “the parties must be the same or in privity[,]” (2) “the
subject matter must be identical[,]” (3) “the capacity or character of persons for or
against whom the claim is made must be the same[,]” and (4) “the same cause of
action must be involved in both suits.” 	Deflon, 2006-NMSC-025, ¶ 3 (internal

14
quotation marks and citation omitted); see Moffat v. Branch, 2005-NMCA-103, ¶¶ 10-
11, 138 N.M. 224, 118 P.3d 732 (stating that the defendant bears the burden of
establishing claim preclusion by showing that each element is met).
{25} 	Plaintiff argues that the third and fourth elements of claim preclusion were not
satisfied. 	We thus begin our discussion by considering whether “the capacity or
character of persons for or against whom the claim is made” was the same in the 2008
lawsuit as in the present action. 	Deflon, 2006-NMSC-025, ¶ 3 (internal quotation
marks and citation omitted).
{26} 	Plaintiff argues that the court erred in finding that his complaint was barred by
claim preclusion because his capacity as an individual plaintiff in the 2008 lawsuit
differed from his capacity as qui tam relator on behalf of the State in the present
lawsuit. 	In support of this argument, Plaintiff cites United States ex rel. Lusby v.
Rolls-Royce Corp., 570 F.3d 849, 852 (7th Cir. 2009), in which the Seventh Circuit
Court of Appeals held that an individual employment lawsuit did not bar a subsequent
qui tam action under the federal False Claims Act.
{27} 	Aramark argues that rather than following Lusby, we should instead follow the
lead of the Fifth Circuit Court of Appeals in United States ex rel. Laird v. Lockheed
Martin Engineering & Science Services Co., 336 F.3d 346 (5th Cir. 2003), abrogated
on other grounds by Rockwell International Corp. v. United States, 549 U.S. 457

15
(2007). 	Aramark relies on Laird for its conclusion that the “identity of parties”
element of claim preclusion was met where the plaintiff brought a wrongful discharge
lawsuit, followed by a qui tam action, both of which stemmed from the same set of
circumstances. Id. at 349-50, 358.
{28} 	Although Laird supports Aramark’s argument that because Plaintiff was
involved in both lawsuits, the “same party” element of claim preclusion is satisfied,
Plaintiff does not argue differently, and therefore the “same parties” element is not
before us in this appeal. See id. at 358 (stating that because the plaintiff was a party
in interest in both actions, the “identity of parties” element was satisfied). Moreover,
both Laird, upon which Aramark relies, and Lusby, upon which Plaintiff relies,
support Plaintiff’s argument that his capacity as qui tam relator on behalf of the State
is different from his capacity as an individual in the 2008 lawsuit.
{29} 	In Laird, the court distinguished between the plaintiff’s capacity in his
wrongful discharge suit versus his capacity as a relator for the United States in the qui
tam action by observing the distinct remedies and recovery sought and the plaintiff’s
motive in bringing the respective suits. 336 F.3d at 359-60. The Laird court observed
that in his wrongful discharge suit, the plaintiff “sought general damages and lost
wages, as well as mental anguish and exemplary damages, all in his personal
capacity”; whereas, in his qui tam suit, the plaintiff, in his capacity “as relator, sought

16
set statutory penalties under the [False Claims Act] and pre- and post-judgment
interest.” 	Id. at 359. 	The court further noted that the plaintiff’s “motivation in
bringing his wrongful discharge suit . . . is different from his motivation for bringing
a qui tam suit” in that in the wrongful discharge suit, the plaintiff “wished to be
compensated or made whole following what he saw as a wrongful discharge that was
personal”; whereas, in his qui tam suit, he sought to “recover from [the defendant] on
behalf of the government and in the name of the government for alleged fraud on the
government[.]” Id. at 359-60 (emphasis omitted). Based in part on the foregoing, the
Laird court concluded that the plaintiff’s qui tam action was not barred by the doctrine
of claim preclusion. Id. at 360.
{30} 	The Lusby court followed the Laird court’s lead, stating: “we join the fifth
circuit in concluding that the resolution of personal employment litigation does not
preclude a qui tam action, in which the relator acts as a representative of the public.”
Lusby, 570 F.3d at 852 (emphasis omitted). In the Lusby court’s view, the importance
of recognizing the different capacities of a qui tam plaintiff versus a private litigant
stems from the need to protect the interests of the government. Id. That is, when the
government chooses not to intervene in a qui tam action, it nevertheless remains a real
party in interest because its financial interests are at stake, but those interests are
represented exclusively by the qui tam plaintiff. 	Id.; see United States ex rel.

17
Eisenstein v. City of New York, 556 U.S. 928, 934-35 (2009) (“The phrase, real party
in interest, is a term of art . . . refer[ring] to an actor with a substantive right whose
interests may be represented in litigation by another.” (internal quotation marks
omitted)). Thus, the Lusby court reasoned that “[i]t would be inappropriate to snuff
out [the government’s] interest just because a potential relator thoughtlessly omitted
a qui tam claim from a personal suit.” 570 F.3d at 852 (emphasis omitted). Moreover,
the Lusby court reasoned, were a personal lawsuit held to preclude a qui tam suit on
claim preclusion grounds, the government would be incapable of vindicating its
interest by bringing a new qui tam suit, either on its own or through another relator
because “ ‘the United States is bound by the judgment in all [False Claims Act]
actions regardless of its participation in the case.’ ” 	Id. at 853 (quoting Eisenstein,
556 U.S. at 936).
{31} 	Applying the rationale of Laird and Lusby to the present case, we conclude that
Plaintiff’s capacity in the 2008 lawsuit differed from his capacity in the present
lawsuit. As an individual plaintiff in the 2008 lawsuit, Plaintiff sought recovery as a
result of alleged wrongful acts perpetrated by the defendants upon Plaintiff,
personally. Specifically, he sought actual and punitive damages, on his own behalf,
for the alleged personal injuries that he suffered, including having been hungry,
malnourished, forced to rely upon family and friends for “food money,” and having

18
been prohibited from freely exercising his religion. Plaintiff’s obvious motivation for
bringing the 2008 lawsuit was to be compensated or made whole for what he saw as
the defendants’ failure or refusal to provide Plaintiff, personally, with a nutritionally
adequate ovo lacto vegetarian diet in accordance with the contractual obligation to do
so.
{32} 	In contrast, in his capacity as qui tam relator in the present lawsuit, Plaintiff
sought, on behalf of and in the name of the State, to recover damages sustained by the
State as a result of its having allegedly “paid many millions of dollars to Aramark”
based on Aramark’s allegedly false claims. Cf. Laird, 336 F.3d at 360 (stating that in
contrast to his wrongful discharge lawsuit, the plaintiff sought, in his qui tam action,
to recover from the defendant “on behalf of the government and in the name of the
government for alleged fraud on the government”). 	The State’s interest in this
lawsuit, which is represented exclusively by Plaintiff because the attorney general
chose not to intervene, should not, to use the Lusby court’s language, be “snuff[ed]
out” simply because Plaintiff failed, in his 2008 lawsuit, to raise a qui tam claim. 570
F.3d at 852; see Peterson, 2010 WL 4621717, at *2 (noting that the plaintiff had failed
to bring a qui tam claim).
{33} 	In sum, Plaintiff’s capacity in the two lawsuits differed. Therefore, the court
erred in concluding that Aramark established each of the elements required under the

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doctrine of claim preclusion. Because the claim preclusion doctrine does not bar a
subsequent lawsuit unless all four elements are met, we do not consider the parties’
remaining claim preclusion arguments. 	See Moffat, 2005-NMCA-103, ¶¶ 10-11
(stating that claim preclusion requires the defendant to show that each element was
satisfied). We reverse the court’s order granting summary judgment on the basis of
claim preclusion.
Issue Preclusion
{34} 	The doctrine of “issue preclusion[] prevents a party from re-litigating ultimate
facts or issues actually and necessarily decided in a prior suit.” Deflon, 2006-NMSC-
025, ¶ 13 (emphasis, internal quotation marks, and citation omitted). Its purpose “is
to prevent endless re[-]litigation of the same issues under the guise of different causes
of action.” 	Rosette, Inc., 2007-NMCA-136, ¶ 39 (internal quotation marks and
citation omitted). Issue preclusion bars re-litigation of the same issue if each of the
following four elements are met.
(1) the party to be estopped was a party to the prior proceeding, (2) the
cause of action in the case presently before the court is different from the
cause of action in the prior adjudication, (3) the issue was actually
litigated in the prior adjudication, and (4) the issue was necessarily
determined in the prior litigation.
Ideal v. Burlington Res. Oil & Gas Co., 2010-NMSC-022, ¶ 9, 148 N.M. 228, 233
P.3d 362 (internal quotation marks and citation omitted); see DeLisle v. Avallone,

20
1994-NMCA-012, ¶ 9, 117 N.M. 602, 874 P.2d 1266 (stating the elements differently
and explaining that, in order for issue preclusion to apply, what was “actually
litigated” and “necessarily determined” in the earlier lawsuit must be the “same
ultimate issue or fact” at issue in the present lawsuit). 	“It is insufficient for the
invocation of issue preclusion that some question of fact or law in a later suit was
relevant to a prior adjudication between the parties; the contested issue must have
been litigated and necessary to the judgment earlier rendered.” 	18 Wright et al.,
supra, § 4402, at 9 (internal quotation marks and citation omitted).
{35} 	Plaintiff does not dispute that he was a party to the 2008 lawsuit, and he
concedes that both the 2008 lawsuit and the present lawsuit each concerned Aramark’s
provision of “poor quality meals.” Nevertheless, Plaintiff argues that issue preclusion
does not bar the present lawsuit because the “ultimate issues or facts” necessary for
the consideration whether Aramark violated the Act were not determined by the court
in the 2008 lawsuit. Aramark disagrees.
{36} 	According to Aramark, Plaintiff’s allegations that “his meals did not comply
with the State’s contractual and policy requirements and that [Aramark] engaged in
fraud in submitting invoices for those deficient meals were actually litigated” in the
2008 lawsuit. Aramark also argues that the issue whether it made any false statements
or claims regarding such meals was actually litigated in the 2008 lawsuit. Further, as

21
to whether the issues in the present lawsuit were necessarily determined, Aramark
argues that in its order pertaining to the 2008 lawsuit the district court found, in
relevant part, that Aramark’s meals were nutritionally sufficient and that Aramark did
not make any false statements. See Ideal, 2010-NMSC-022, ¶ 9 (stating the factors
of issue preclusion, including that the issue was necessarily determined in the earlier
lawsuit). As such, Aramark argues that “the issues in the present case were already
determined in the 2008 lawsuit.”
{37} 	To resolve the question whether the issues or facts in the present lawsuit were
actually litigated and necessarily determined in the 2008 lawsuit, we review the
elements required to prove the claims raised in the 2008 lawsuit. Cf. Deflon, 2006-
NMSC-025, ¶ 16 (evaluating an issue preclusion argument by considering the
elements of a claim in the plaintiff’s earlier lawsuit to determine whether those in the
later lawsuit required the same findings in order to succeed).
{38} 	Plaintiff’s 2008 lawsuit raised four claims: 	(1) breach of duty, (2) fraud,
(3) unfair practices, and (4) violation of the New Mexico Religious Freedom
Restoration Act. The district court construed Plaintiff’s breach of duty claim to be a
claim that the defendants breached a duty to Plaintiff to provide a nutritionally
adequate ovo lacto vegetarian diet. To prevail in his breach of duty claim, Plaintiff
was required to establish that the defendants owed him a duty to provide a

22
nutritionally adequate vegetarian diet, that the defendants breached that duty, and that
the breach was the cause of Plaintiff’s alleged malnourishment and other harm. Cf.
Ross v. City of Las Cruces, 2010-NMCA-015, ¶ 10, 148 N.M. 81, 229 P.3d 1253
(setting out the elements of a negligence claim). The court observed, as a matter of
undisputed material fact, that Plaintiff was not a qualified medical or nutritional
expert. As such, the court granted summary judgment in favor of the defendants as
to Plaintiff’s breach of duty claim, concluding that Plaintiff’s claims of “nutritional
inadequacy and medical causation require[d] the testimony of a qualified medical
expert.”
{39} 	As to Plaintiff’s fraud claim, the district court interpreted it to be a claim that
the defendants made “untrue representations of fact to . . . [P]laintiff.” Relying on
Saylor v. Valles, 2003-NMCA-037, 133 N.M. 432, 63 P.3d 1152, for the elements of
fraud, the court determined that Plaintiff had failed to provide evidence “that the
defendants intentionally made any misrepresentations of fact to him or that . . .
[P]laintiff relied upon such misrepresentations to his detriment.” See id. ¶ 21 (stating
that a fraudulent misrepresentation claim “requires that the injured party show that the
other party (1) made a misrepresentation of fact . . . (2) with the intent to deceive and
to induce the injured party to act upon it, (3) and upon which the injured party actually
and detrimentally relies”).

23
{40} 	As to Plaintiff’s claim of unfair practices, the district court, relying on Santa
Fe Custom Shutters & Doors, Inc. v. Home Depot U.S.A., Inc., 2005-NMCA-051, 137
N.M. 524, 113 P.3d 347, stated that Plaintiff’s “claim for unfair trade practices is
without merit in the absence of evidence that the defendants made any untrue
statements of material fact.” In Santa Fe Custom Shutters, this Court observed that
an unfair or deceptive trade practice is “any false or misleading oral or written
statement . . . knowingly made in connection with the sale . . . of goods or services . . .
by any person in the regular course of his trade or commerce, which may, tends to or
does deceive or mislead any person.” 	Id. ¶ 14 (omissions in original) (internal
quotation marks and citation omitted). 	Also in Santa Fe Custom Shutters, we
observed that the foregoing definition “contemplates a plaintiff who seeks or acquires
goods or services and a defendant who provides goods or services.” 	Id. 	Thus, to
prevail in his unfair practices claim, Plaintiff was required to show that he sought to
acquire the defendants’ goods and services and that the defendants knowingly made
false or misleading statements to Plaintiff in connection with the sale of goods or
services to him. See id.
{41} 	Finally, as to Plaintiff’s claim in the 2008 lawsuit that the defendants violated
the New Mexico Religious Freedom Restoration Act, the district court determined that
Plaintiff “fail[ed] to show that the defendants, whether as state actors or otherwise,

24
have restricted . . . [P]laintiff’s right to exercise his religion.” The Religious Freedom
Restoration Act prohibits a government agency from restricting a person’s free
exercise of religion unless the restriction is one of general applicability, does not
directly 	discriminate 	against 	religion, is 	essential 	to 	furthering 	a 	compelling
government interest, and its application is the least restrictive means of furthering that
interest. Section 28-22-3. Thus, in order to prevail on his claim that the defendants
violated the Religious Freedom Restoration Act, Plaintiff would have had to prove
that the defendants were a government agency that restricted his religion in a manner
that was either not essential to furthering a compelling government interest or was not
the least restrictive means of furthering the compelling government interest. See id.
{42} 	In contrast to the foregoing claims raised in the 2008 lawsuit, in order to
prevail in the present lawsuit, Plaintiff was required to prove the following three
allegations: (1) that “Aramark knowingly presented a false and/or fraudulent claim
for payment to the State”; (2) that “Aramark knowingly made, used, or caused to be
used, a false, misleading[,] and/or fraudulent record or statement to obtain support or
approval for payment on a false and/or fraudulent claim”; and (3) that “[a]s a result
of Aramark[’]s actions, the State has been damaged[.]” 	See § 44-9-3(A)(1), (2)
(stating the relevant prohibitions under the Act).

25
{43} 	Aramark argues that the question whether it knowingly presented a false and/or
fraudulent claim for payment to the State was actually litigated and necessarily
decided in the 2008 lawsuit. In support of this contention, Aramark points to the fact
that the district court found no evidence that Aramark made any false representations
of fact to Plaintiff and no evidence that it committed fraud or unfair trade practices.
The district court’s conclusions in the 2008 lawsuit regarding fraud and unfair trade
practices do not support Aramark’s issue preclusion argument.
{44} 	In the 2008 lawsuit, the district court concluded that Aramark had not made
any false representations of fact to Plaintiff. That conclusion formed a partial basis
for 	the 	court’s 	further 	conclusion 	that 	Plaintiff’s 	fraud 	claim 	lacked 	merit.
Nevertheless, whether Aramark made false representations of fact to Plaintiff,
personally, is irrelevant in the present lawsuit, which solely concerns the question
whether Aramark made false representations of fact to the State. 	Resolution of
Plaintiff’s claim in the 2008 lawsuit that he, personally, was defrauded by Aramark
did not require actual litigation of, or a determination as to whether Aramark
defrauded the State. Moreover, there is no indication from the court’s order in the
2008 lawsuit that Plaintiff’s unfair trade practices claim encompassed actual litigation
or a necessary determination whether the State, rather than Plaintiff, was misled.

26
{45} 	In sum, it seems obvious from the documents in the 2008 lawsuit, made part
of the record in this case, that Plaintiff and the court focused exclusively on whether
Plaintiff was personally defrauded or misled. 	As such, the relevant issue in this
case–—whether Aramark knowingly presented a false and/or fraudulent claim for
payment 	to 	the 	State—is 	not 	precluded 	by 	the 	2008 	lawsuit. 	The 	court’s
determination to the contrary was made in error.
{46} 	Aramark also argues that Plaintiff’s “allegations that his meals did not comply
with the State’s contractual and policy requirements” were actually litigated and
decided against Plaintiff in the 2008 lawsuit. In support of this point, Aramark states
that the court, in the 2008 lawsuit, found that Plaintiff’s meals “met the standards of
a host of different organizations and was high in protein generally.” 	In the 2008
lawsuit, the court did address whether Plaintiff’s meals satisfied the relevant
nutritional requirements of an ovo lacto vegetarian diet. 	But the district court’s
conclusion regarding the nutritional adequacy of Plaintiff’s vegetarian meals did not
involve an actual litigation or a necessary determination of the relevant issues in the
present lawsuit.
{47} 	What the court addressed, in the 2008 lawsuit, was the adequacy of Plaintiff’s
ovo lacto vegetarian meals, because Plaintiff’s claims centered on allegations that his
vegetarian meals were inadequate and that he was harmed as a result. Resolution of

27
the claims in the 2008 lawsuit that were personal to Plaintiff’s own dietary needs did
not 	require 	or 	involve 	litigation 	of 	the 	question 	at 	issue 	in 	the 	present
lawsuit—whether the meals that Aramark serves to the broad population of inmates
in the Department’s custody, including those inmates who are not entitled to a special
religious diet, meet the contract’s nutritional and quality standards.
{48} 	Moreover, the court’s resolution of Plaintiff’s breach of duty claim in the 2008
lawsuit did not rest on any resolution of questions whether the meals served by
Aramark met the nutritional and quality standards of the contract; rather, the court’s
summary judgment order as to that claim centered on the absence of expert medical
testimony to prove medical causation. We see no basis in the court’s order in the 2008
lawsuit from which to conclude that it considered the adequacy of any meals provided
by Aramark beyond those that it served to Plaintiff. Nor do we see any basis in the
court’s order from which to conclude that issues concerning the quality of the eggs or
the protein percentages of the meals served by Aramark and whether those values
comported with the contract’s requirements were actually litigated or necessarily
decided in the 2008 case.
{49} 	In sum, notwithstanding the fact that the 2008 lawsuit and the present lawsuit
both involve some underlying fact questions regarding the adequacy of Aramark’s
meals and allegedly false statements about those meals, that commonality is an

28
insufficient basis on which to apply the doctrine of issue preclusion. See 18 Wright
et al., supra, § 4402, at 9 (stating that “[i]t is insufficient for the invocation of issue
preclusion that some question of fact or law in a later suit was relevant to a prior
adjudication between the parties” (internal quotation marks and citation omitted)).
The questions relevant to Plaintiff’s present lawsuit, namely, whether Aramark
knowingly presented a false and/or fraudulent claim for payment to the State for the
meals that it provided to the broad population of inmates in the Department’s custody,
whether Aramark knowingly misled the State regarding the adequacy of the meals
provided to inmates to obtain payment pursuant to the contract, and whether the State
was damaged as a result, were neither litigated nor necessarily decided in the 2008
lawsuit. 	See id. (explaining that “the contested issue must have been litigated and
necessary to the judgment earlier rendered” for the doctrine of issue preclusion to
apply (internal quotation marks and citation omitted)). Therefore, the court erred in
granting summary judgment on the basis of issue preclusion, and its judgment in that
regard is reversed.

29
Retroactive Application of the Act
{50} 	Plaintiff’s final argument is that the court erred in dismissing his claims to the
extent that they sought relief under the Act for conduct that occurred before July 1,
2007. The court’s dismissal in that regard was premised on the fact that claims that
accrued prior to the enactment of the Act would require retroactive application of the
Act and would, therefore, violate federal and state prohibitions against ex post facto
laws. 	As Plaintiff acknowledges in his brief in chief, this Court has held that
retroactive application of the Act would violate the prohibition against ex post facto
laws. See Foy, 2013-NMCA-043, ¶ 52. Thus, Plaintiff’s decision to raise this issue
in his brief in chief was, in Plaintiff’s words, an attempt “to preserve this argument in
the event that the Supreme Court decides to consider the issue.” 	Presently, the
Supreme Court has granted certiorari in Foy, but has not yet issued an opinion in the
matter. 	See 300 P.3d 1181. 	Accordingly, pursuant to our holding in Foy, 2013-
NMCA-043, ¶ 52, we affirm the district court’s dismissal of any claims under the Act
that accrued prior to July 1, 2007.
CONCLUSION
{51} 	We reverse the district court’s summary judgment on the bases of claim
preclusion and issue preclusion. The court’s dismissal of Plaintiff’s claims that were

30
based on conduct that occurred prior to July 1, 2007, is affirmed pursuant to our
holding in Foy.
{52} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
RODERICK T. KENNEDY, Chief Judge
___________________________________
JAMES J. WECHSLER, Judge