June 17, 2020- Lindsay O’Brien Quarrie v. Board of Regents of the New Mexico Institute of Mining and Technology, No. A-1-CA-37163

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
LINDSAY O’BRIEN QUARRIE, Ul. 1772020 PRTG AM
Plaintiff- Appellant, ~fe4
Mark Reynolds
Vv. No. A-1-CA-37163
BOARD OF REGENTS OF THE NEW
MEXICO INSTTTUTE OF MINING
AND TECHNOLOGY,
Defendant- Appellee.

APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
Matthew G. Reynolds, District J udge

Lindsay O’ Brien Quarmie
Socorro, NM

Pro Se Appellant
Conklin Woodcock & Ziegler, P.C.
Alisa Wigley-DeLara
Darin A. Childers
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
B. ZAMORA, Judge.
(4 Plaintiff Lindsay O’ Brien Quamie sued Defendant the Board of Regents of the
New Mexico Institute of Mining and Technology for breach of contract and punitive
damages. The district court dismissed Plaintiff's claim with prejudice for failure to

state a claim upon which relief may be granted, finding it barred by govemmental

2
immunity, pursuant to NMSA 1978, Section 37-1-23(A) (1976). Plaintiff contends	1
the district court erred because it failed to find there was an implied-in-fact contract	2
between the parties sufficient to defeat immunity.1 We affirm.	3
BACKGROUND	4
{2} 	The following facts were elicited from Plaintiff’s amended complaint and the	5
exhibits attached thereto. From 2004 to 2012, Plaintiff was enrolled in Defendant’s	6
doctoral program, seeking to obtain a Ph.D. in Materials Engineering. During this	7
period, Plaintiff made progress toward obtaining his degree, but also experienced	8
conflict with members of his doctoral committee. This conflict came to a head one	9
week prior to Plaintiff’s “planned dissertation defense,” a required element of the	10
degree. Although Plaintiff passed the defense, members of his committee expressed	11
concern that he was deficient in his knowledge of the discipline and that he was not	12
yet ready to defend his dissertation. According to Defendant, Plaintiff responded to	13
these statements by issuing threats against the members of his committee. As a	14
consequence, Plaintiff was immediately terminated from the doctoral program.	15
Plaintiff 	denied 	making 	any 	threats 	and 	appealed 	his 	termination 	but 	was	16
unsuccessful in his efforts to be reinstated.	17
1 Plaintiff also asks us to find that “priority jurisdiction does not apply to like
lawsuits concurrently pending in federal and state courts[.]” Because the district
court’s dismissal of Plaintiff’s claim was predicated solely on governmental
immunity from suit on contract claims, and because the court expressly declined to
rule on the question of priority jurisdiction, that issue is not properly before us.

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{3} 	Plaintiff filed a civil rights complaint against Defendant with the U.S.	1
Department of Education and the Office of Civil Rights and, eventually, filed suit in	2
federal court. The suit was dismissed with prejudice by the federal district court, but	3
in an effort to forestall additional litigation, Defendant proposed a settlement	4
whereby Plaintiff would agree to forgo a civil action against Defendant in exchange	5
for 	$6000 	and 	Defendant’s 	promise 	to 	remove 	all 	references 	to 	Plaintiff’s	6
termination from his academic file. As part of the agreement, Plaintiff also agreed	7
never to apply for readmission to Defendant’s institution. The parties executed the	8
agreement on October 8, 2015.	9
{4} 	According 	to 	Plaintiff, Defendant 	immediately breached 	the settlement	10
agreement because it failed to remove from his academic records a letter from the	11
Defendant’s Dean of Graduate Studies stating that Plaintiff’s enrollment had been	12
terminated. Believing himself no longer bound by the settlement, Plaintiff applied	13
for readmission to Defendant’s doctoral program in December 2016 by completing	14
and submitting an online application and paying a “processing fee” of $45. Having	15
received neither a decision on his application nor a refund of his fee by the fall of	16
2017, Plaintiff filed suit against Defendant in state court, alleging breach of contract	17
and seeking punitive damages.	18
{5} 	Defendant moved to dismiss the complaint pursuant to Rule 1-012(B)(6)	19
NMRA, arguing that the action was barred by the priority jurisdiction doctrine and	20

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governmental immunity precluding suits based on unwritten contracts. See Section	1
37-1-23(A) 	(granting 	governmental 	entities 	immunity from actions 	based 	on	2
contract, other than actions based on valid written contracts). The district court	3
granted the motion, finding Plaintiff was barred by the immunity statute from	4
pursuing his complaint, but “mak[ing] no ruling with regards to the priority	5
jurisdiction doctrine.” This appeal followed.	6
DISCUSSION	7
{6} 	We review a district court’s decision to dismiss a case under Rule 1-012(B)(6)	8
de novo. Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917. This	9
includes dismissals based on a finding of governmental immunity. See Campos de	10
Suenos, 	Ltd. 	v. 	Cty. 	of 	Bernalillo, 	2001-NMCA-043, 	¶ 	10, 	130 	N.M. 	563,	11
28 P.3d 1104 (stating that “the application of the facts of a case to an assertion of	12
immunity, is a legal question that we review de novo”). A motion to dismiss for	13
failure to state a claim “tests the legal sufficiency of the complaint, not the facts that	14
support it.” Am. Fed’n of State, Cty. & Mun. Emps. Council 18 v. State, 2013-	15
NMCA-106, ¶ 6, 314 P.3d 674 (internal quotation marks and citation omitted).	16
Accordingly, we accept all well-pleaded allegations of the complaint as true and	17

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resolve all doubts in favor of the sufficiency of the complaint.2 See Delfino, 2011-	1
NMSC-015, ¶ 12.	2
{7} 	Plaintiff argues the district court erred in granting Defendant’s motion to	3
dismiss because “the Ph[.]D[.] application process between him and [Defendant] is	4
an implied contract and . . . in the State of New Mexico implied contracts can meet	5
the requirements for waiving sovereign immunity[.]” Defendant contends we should	6
affirm the district court’s dismissal because Plaintiff’s complaint does not allege the	7
existence of a writing sufficient to defeat governmental immunity, and Plaintiff	8
“fails to direct this Court to any written contract between the parties (including any	9
purported implied-in-fact contract) that could support his claim.”	10
{8} 	Section 	37-1-23(A) 	provides 	that 	“[g]overnmental 	entities 	are 	granted	11
immunity from actions based on contract, except actions based on a valid written	12
contract.” Although Section 37-1-23(A) bears some resemblance to the statute of	13
2 Throughout this case, Plaintiff has referenced exhibits attached to the
amended complaint. We note that neither party argues that the district court erred in
deciding the motion under the standard for a motion to dismiss as opposed to a
motion for summary judgment. See Rule 1-012 (stating that if “matters outside the
pleading are presented to and not excluded by the court, the [Rule 1-012(B)(6)]
motion shall be treated as one for summary judgment and disposed of as provided in
Rule 1-056 NMRA.”). See State ex rel. Human Servs. Dep't v. Staples, 1982-NMSC-
099, ¶¶ 3, 5, 98 N.M. 540, 650 P.2d 824 (noting that “courts risk overlooking
important facts or legal considerations when they take it upon themselves to raise,
argue, and decide legal questions overlooked by the lawyers who tailor the case to
fit within their legal theories.” (alteration, internal quotation marks, and citation
omitted)). Thus, we apply the standard of review for a Rule 1-012(B)(6) motion.

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frauds, it is not a mere defense to liability but instead an entire bar to suit, relieving	1
the defendant from the burden of defending a trial on the merits. Campos de Suenos,	2
2001-NMCA-043, ¶¶ 12-15. The purpose of the statute is “to protect the public purse	3
and to require that parties seeking recovery from the state for benefits conferred on	4
it have ‘valid written contracts,’ which presumably will have been carefully	5
negotiated[.]” Hydro Conduit Corp. v. Kemble, 1990-NMSC-061, ¶ 23, 110 N.M.	6
173, 	793 P.2d 	855. Additionally, 	encouraging 	parties 	who 	contract 	with 	the	7
government to do so in writing “facilitate[s] clarity in contractual terms and	8
obligations.” Cockrell v. Bd. of Regents of N.M. State Univ., 2002-NMSC-009, ¶ 22,	9
132 N.M. 156, 45 P.3d 876.	10
{9} 	Nonetheless, and in spite of the plain language of Section 37-1-23(A),	11
Plaintiff’s claim for breach of contract does not assert the existence of a writing	12
memorializing a contract between the parties. Instead, Plaintiff claims that when	13
Defendant e-mailed him a receipt for his payment of the processing fee, this was a	14
“representation” to Plaintiff that gave rise to an implied-in-fact contract that is	15
sufficient to defeat immunity. To succeed on his claim, Plaintiff must demonstrate	16
both that an implied-in-fact contract existed between the parties and that such a	17
contract is sufficient to defeat immunity in these circumstances. See Garcia v.	18
Middle Rio Grande Conserv. Dist., 1996-NMSC-029, ¶¶ 9, 15, 121 N.M. 728, 918	19
P.2d 7 (stating “[f]irst we address whether [the plaintiff and the defendant] entered	20

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into an employment contract” and “[n]ext, we address whether Section 37-1-23(A)	1
. . . incorporates an implied employment contract that includes written terms as set	2
forth in a personnel policy”). We conclude he has demonstrated neither.	3
{10} 	First, Plaintiff has failed to adequately plead the existence of an implied-in-	4
fact contract. “Implied-in-fact contracts are founded upon a meeting of minds,	5
which, although not embodied in an express contract, is inferred . . . from conduct	6
of the parties showing, in the light of the surrounding circumstances, their tacit	7
understanding.” Orion Tech. Res., LLC v. Los Alamos Nat’l Sec., LLC, 2012-	8
NMCA-097, ¶ 9, 287 P.3d 967 (internal quotation marks and citation omitted). An	9
implied-in-fact contract may be “ ‘based on the parties’ mutual assent as manifested	10
by their conduct.” Garcia, 1996-NMSC-029, ¶ 15, n.1 (internal quotation marks and	11
citation omitted). According to Plaintiff’s complaint, an implied-in-fact contract	12
between the parties was constituted upon Plaintiff’s submission of his application	13
and payment of the $45 processing fee. Although on its face this allegation does not	14
suggest mutuality (because it fails to indicate any conduct on the part of Defendant	15
signifying assent), on appeal, Plaintiff adds that the confirmation receipt, which lists	16
the date and time of receipt of payment, a notification email address associated with	17
Defendant, a confirmation number, and the words “Thank you for your payment,”	18
constituted the necessary “assenting conduct” giving rise to the implied contract.	19

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{11} 	We disagree. “Implied contract claims require proof that the promise or	1
representation [is] definite, specific, or explicit so that there is a reasonable	2
expectation of contractual rights.” Avalos v. Bd. of Regents of N.M. State Univ.,	3
2017-NMCA-082, ¶ 18, 406 P.3d 551 (internal quotation marks and citation	4
omitted). Non-promissory, general language that fails to establish an obligation is	5
insufficiently “definite, specific, or explicit” to create such an expectation. Id.	6
Plaintiff has pointed to no promissory language of any kind from Defendant, either	7
in the confirmation receipt or in any of the instructions accompanying the online	8
application. 3 To 	the 	contrary, 	the 	sole 	writing 	described 	by 	Plaintiff—the	9
confirmation receipt—contains only general language confirming receipt of the	10
3 Plaintiff alleges that a promise by Defendant to act on his application is
“strongly implied” by (1) “longstanding practice” at Defendant’s institution and
other New Mexico institutions of higher learning; (2) Defendant’s issuance of a
receipt for payment; and (3) the fact that “when an entity . . . accepts a payment for
a service and/or goods, that acceptance indicates that the entity has agreed to provide
that service or deliver those goods in the expected amount of time.” Plaintiff has
failed to identify any authorities in support of his assertion that a promise inferred
from institutional or society-wide practices may give rise to an implied-in-fact
contract and we therefore assume none exist. See Curry v. Great Nw. Ins. Co., 2014-
NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an
argument, we may assume no such authority exists.”). We also note that such a rule
would run contrary to existing New Mexico law requiring proof of a “definite,
specific, or explicit” representation in order to find an enforceable implied-in-fact
contract and would render the “valid written contract” requirement of Section 37-1-
23(A) a nullity. See Avalos, 2017-NMCA-082, ¶ 18 (requiring implied contract
claims to have proof of definite, specific, or explicit promises); see also Campos de
Suenos, 2001-NMCA-043, ¶ 18 (stating that allowing a defendant to “cobble
together” a contract undermines the requirement of a valid written contract under
Section 37-1-23(A)).

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processing fee; there is no language promising additional action by Defendant. Nor	1
does Plaintiff’s complaint include any allegations about the content of the online	2
application that might give rise to a reasonable expectation that Defendant had	3
agreed to obligate itself. See generally Espinosa v. Town of Taos, 1995-NMSC-070,	4
¶ 15, 120 N.M. 680, 905 P.2d 718 (declining to find a valid written contract giving	5
rise to obligation for liability based on application for admission to a day camp	6
program).	7
{12} 	Even if we were to agree with Plaintiff that the parties’ conduct gave rise to	8
an implied-in-fact contract, his breach of contract claim would still be barred by	9
Section 37-1-23(A) because an implied-in-fact contract unsupported by a writing is	10
not a “valid written contract” under the statute. See Eaton Martinez & Hart, P.C. v.	11
Univ. of N.M. Hosp., 1997-NMSC-015, ¶ 9, 123 N.M. 76, 934 P.2d 270 (stating that	12
“[t]he Legislature has imposed a statutory requirement that a contract claim must be	13
supported by a writing in order for it to be enforceable against the [s]tate”); see also	14
Wills v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105, ¶ 25, 357 P.3d 453	15
(stating that, even where the parties’ conduct gives rise to an implied employment	16
contract, without a showing of written terms, immunity bars contract claim against	17
governmental entity). Notwithstanding these authorities, Plaintiff contends that	18
Garcia supports his position that, so long as an implied-in-fact contract identifies its	19

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terms and is not subject to disputed validity, it is sufficient to waive governmental	1
immunity. This misstates Garcia and New Mexico law.	2
{13} 	In Garcia, we considered whether an implied-in-fact employment contract,	3
supported in writing by a detailed and comprehensive personnel manual, could	4
support an action against a governmental entity in spite of Section 37-1-23(A). 1996-	5
NMSC-029 ¶ 14. We specifically focused our inquiry on whether immunity under	6
the statute could be waived by an “implied employment contract that includes	7
written terms as set forth in a personnel policy[.]” Id. As we observed in Campos de	8
Suenos, our analysis in Garcia was “deeply rooted in employment law.” We	9
recognized the unique role that employment manuals play in establishing the	10
contours of the employment contract and in tempering the harshness of the common	11
law doctrine of at will employment. 2001-NMCA-043, ¶¶ 24-28. Our holding in	12
Garcia was grounded in our assessment that the comprehensive personnel manual	13
at issue so shaped the employer/employee relationship, and was so specific in its	14
terms, that it obviated any concern that the terms of the contract might be “long	15
forgotten” in the enormous volume of government contracts or that the defendant	16
might not have been authorized to execute it. Garcia, 1996-NMSC-029, ¶¶ 16-17.	17

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{14} 	Plaintiff asks us to extend this holding to implied contracts arising outside of	1
the employment context and unsupported by comprehensive written terms.4 Neither	2
Garcia nor any other New Mexico authority support such an extension. See Garcia,	3
1996-NMSC-029, ¶ 20 (“On the facts of this case, and in view of the legitimate	4
policy goals [of the statute], we hold that this implied employment contract, which	5
includes a written personnel policy, constitutes a ‘valid written contract’ required to	6
waive 	governmental 	immunity[.]”); 	see 	also 	Wills, 	2015-NMCA-105, 	¶ 	25	7
(clarifying that “Garcia stands for the proposition that where an employment	8
contract may be implied from ‘written terms’ it may be considered a ‘valid written	9
contract’ ” and declining to find an implied employment contract unsupported by	10
written terms sufficient to waive immunity); Campos de Suenos, 2001-NMCA-043,	11
¶ 28 (declining to extend the application of Garcia beyond the employment context).	12
In fact, we have rejected such invitations in cases alleging much more fulsome	13
supportive writings than are alleged here. See Campos de Suenos, 2001-NMCA-043,	14
¶¶ 18, 28 (holding that an implied-in-fact contract supported by “a slew of partial	15
4 In his Reply Brief, Plaintiff contends that the written terms of the asserted
implied-in-fact contract can be found in the confirmation receipt and on Defendant’s
website. But the information Plaintiff asks us to infer from these writings does not
include the terms of the agreement forming the basis of Plaintiff’s claim. Instead, it
includes instructions for submitting his application and information indicating
receipt of the application. As we have discussed, these are non-promissory in nature,
and insufficiently definite, specific or explicit to give rise to an expectation of the
rights Plaintiff seeks to enforce. See Avalos, 2017-NMCA-082, ¶ 18.

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writings” was insufficient to defeat governmental immunity); see also Avalos, 2017-	1
NMCA-082, ¶ 18 (holding that a letter offering admission to an academic program,	2
a student handbook, and a handbook acknowledgment form did not, taken together,	3
constitute an implied contract that would waive immunity under Section 37-1-	4
23(A)).	5
{15} 	In enacting Section 37-1-23(A), the Legislature demanded formality in the	6
execution of contracts entered with governmental entities and placed the risk of loss	7
on “those seeking promises from the government[.]” Univ. of N.M. Police Officer’s	8
Ass’n v. Univ. of N.M., 2005-NMSC-030, ¶ 21, 138 N.M. 360, 120 P.3d 442. Were	9
we to adopt Plaintiff’s interpretation of the statute—that virtually any implied	10
contract, with or without a supportive writing memorializing its terms, may be	11
deemed a “valid written contract” for purposes of defeating immunity—we would	12
have 	to 	disregard 	both 	the 	plain 	language 	of 	Section 	37-1-23(A) 	and 	the	13
Legislature’s intent in enacting it. Accordingly, we hold that the district court did	14
not err in granting Defendant’s motion to dismiss pursuant to Rule 1-012(B)(6).	15
CONCLUSION	16
{16} 	For the foregoing reasons, we affirm.	17
{17} 	IT IS SO ORDERED.	18
_____________________________	19
BRIANA H. ZAMORA, Judge	20

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WE CONCUR:
Jacqueline R. Medina JACQUELINE R. MEDINA, Judge
4 5
SHAMMARA H. HENDERSON, Judge
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