A-1-CA-36622 | Omnilex

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Court of Appeals of New Mexico
Filed 6/6/2019 10:41 AM

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Court of Appeals of New Mexico
Filed 6/6/2019 10:41 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW woud: ;

Opinion Number:

Filing Date: June 6, 2019

No. A-1-CA-36622
KARIM SALEHPOOR,

Plaintiff-Appellee,

NEW MEXICO INSTITUTE OF MINING
AND TECHNOLOGY,

Defendant-Appellant,
and

WARREN OSTERGREN, DR. TOM ENGLER,
BOARD OF REGENTS OF THE NEW MEXICO
INSTITUTE OF MINING AND TECHNOLOGY,
and DANIEL LOPEZ,

Defendants.

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

Santiago E. Juarez
Albuquerque, NM

for Appellee

ark at

22} Keleher & McLeod, P.A.
23] Sean Olivas

24| Chris R. Marquez

25] Albuquerque, NM

26) for Appellant

OPINION
IVES, Judge.
4) Plaintiff Karim Salehpoor sued his former employer, Defendant New Mexico
Institute of Mining and Technology, claiming, among other things, that Defendant
wrongfully discharged him in violation of his employment contract. Defendant
moved for summary judgment based on two theories of sovereign immunity under
NMSA 1978, Section 37-1-23 (1976): (1) that Plaintiff's claim was time-barred and
(2) that his claim was not based on a valid written contract. The district court denied
the motion. We granted Defendant’s petition for a writ of error pursuant to Rule 12-
503 NMRA to review the nonfinal order. We affirm.
FACTS AND PROCEDURAL HISTORY
23 Beginning in January 2008, Defendant employed Plaintiff as a tenure-track
mechanical engineering professor under a series of written one-year employment
contracts, the most recent of which covered the 2011/2012 academic year from
August 8, 2011, through May 11, 2012. On April 2, 2012, Defendant’s Vice
President of Academic Affairs sent Plaintiff a memorandum informing him that
Defendant would not enter into a new employment contract with him and directing
him to “surrender all [of Defendant’s] property[,] including keys[,]” by May 11,

2012. Plaintiff continued working for Defendant through that date.

{3} Plaintiff commenced this lawsuit on May 12, 2014, alleging that Defendant
had breached their contract by wrongfully terminating him in violation of “the total
employment agreement.”! See generally Garcia v. Middle Rio Grande Conservancy
Dist., 1996-NMSC-029, 121 N.M. 728, 918 P.2d 7 (holding that an implied
employment contract based on a written personnel policy is a “written contract” for
purposes of Section 37-1-23(A)); Whittington v. State Dep’t of Pub. Safety, 2004-
NMCA-124, 136 N.M. 503, 100 P.3d 209 (making clear that the implied
employment contract doctrine is applicable beyond the context of at-will
employment and contractual terms relating to termination). Plaintiff alleged that his
employment had ended on May 11, 2012,” when Defendant “breached [the]
employment contract. . . by terminating [him,]” and that Defendant also breached
the employment contract “[o]n or about April 2012” when it gave “notice of the
impending termination of Plaintiff.” Plaintiff alleged that his contract with
Defendant “was reinforced and amplified by certain written personnel practices,

memoranda, policies, and procedures . . . based upon which Plaintiff had a

' Plaintiff's complaint also included a claim for wrongful termination in
violation of public policy, which the district court dismissed, and a claim for
defamation, on which the district court granted Defendant’s motion for summary
judgment. Neither claim is part of this appeal.

* Due to an apparent typographical error, the complaint alleged that Plaintiff's
“employment continued until May 11, 2013.” The surrounding allegations make
clear that Plaintiff meant to allege that his employment ended in 2012, and all of the
evidence before us is to that effect.

bdo

OIA nf W

reasonable expectation of continued employment with discharge only for good cause
proven.” The complaint specified that Defendant’s
written policies and procedures and actual practices included a program
of “progressive discipline” through which [Defendant] created self-
imposed limitations on any discharge or discipline of an employee.
These written policies and actual practices expressly limited the
grounds for discharge and created self[-]imposed mandatory pre-
termination steps and procedures.
(44 Defendant moved for summary judgment on Plaintiff's wrongful discharge
claim based on two theories of sovereign immunity under Section 37-1-23.
Defendant argued first that Section 37-1-23(B) barred Plaintiff's claim for wrongful
discharge based on breach of contract because Plaintiff filed his complaint more than
two years after his claim accrued. The parties did not dispute that Defendant gave
Plaintiff notice of his termination on April 2, 2012, that Plaintiffs’ employment
terminated May 11, 2012, or that Plaintiff filed his complaint on May 12, 2014.
Whether summary judgment was appropriate hinged on whether Plaintiff brought
his claim “within two years from the time of accrual.” Section 37-1-23(B). Plaintiff
argued that his claim accrued from the date of his termination, May 11, 2012, while
Defendant argued that Plaintiff’s claim accrued on April 2, 2012, when Defendant
gave Plaintiff the notice of nonrenewal.
{5} Asan additional basis for summary judgment, Defendant argued that Section

37-1-23(A) barred Plaintiff's claim because it was not based on a valid written

contract. This was so, according to Defendant, because Plaintiff had failed to allege
3

that Defendant had breached a specific contractual term of any policy, employment
manual, or other document. In response, Plaintiff pointed to his interrogatory
answers and affidavit, which referenced a document, titled “Regulations Governing
Academic Freedom and Tenure” (the Regulations), purportedly issued by
Defendant. In his affidavit, Plaintiff alleged that Defendant violated various
provisions of the Regulations, including the procedure for providing notice of
termination to employees and the prohibition against retaliatory termination.
Defendant replied, claiming that Plaintiff had failed to produce in discovery or in
response to the summary judgment motion any document that included the implied
contract terms Defendant had allegedly breached.

6} During the hearing on the summary judgment motion, Plaintiff's counsel read
a document that he identified as the Regulations into the record. Defendant objected
on the ground that Plaintiff had failed to produce the document in discovery and
asserted that it was therefore unable to identify the document from which Plaintiff's
counsel had read. The district court ordered supplemental briefing and directed
Plaintiff to produce the document he had read from during the hearing. Plaintiff
attached the Regulations to his supplemental brief along with responses to requests
for production that identified the Regulations. In response, Defendant complained
once again that Plaintiff had never produced the Regulations in discovery and argued

that Plaintiff had failed to authenticate the Regulations.

{7} The district court denied Defendant’s summary judgment motion. We granted
Defendant’s petition for a writ of error to review the district court’s order.
DISCUSSION

I. Statute of Limitations

{8} Defendant first argues that the district court erroneously denied Defendant’s
motion for summary judgment based on the two-year statute of limitations in Section
37-1-23(B). Defendant contends Plaintiff's claim for wrongful discharge by breach
of contract accrued on April 2, 2012, when Defendant notified Plaintiff that it had
decided not to renew Plaintiffs contract.

{9} Because the parties do not dispute when Defendant gave Plaintiff notice of his
termination, when Plaintiff's employment actually terminated, or when Plaintiff
filed his complaint, our review is limited to whether the district court correctly
applied the governing law to the undisputed facts. See Haas Enters. v. Davis, 2003-
NMCA-143, 7 9, 134 N.M. 675, 82 P.3d 42. (“When facts relevant to a statute of
limitations issue are not in dispute, the standard of review is whether the district
court correctly applied the law to the undisputed facts.”). We review this issue de
novo. Id.

{10} Section 37-1-23(B) provides that claims for breach of a valid written contract
against governmental entities “shall be forever barred unless brought within two

years from the time of accrual.” A claim accrues when all of the elements of the

claim are present—when the claim “come[s] into existence as an enforceable claim
or right[.]” Accrue, Black’s Law Dictionary (10th ed. 2014); see also 1 Calvin W.
Corman, Limitation of Actions § 6.1, at 370 (1991) (“It would clearly be unfair to
charge [a] plaintiff with the expiration of any time before the plaintiff's cause of
action could be prosecuted to a successful conclusion.”). Plaintiff's wrongful
discharge claim is based on Defendant’s alleged breach of an implied contractual
term, as described above. A breach of contract claim accrues at the time of breach.
Corman, supra, § 7.2.1, at 482. Accordingly, “[t]he statute of limitations on a breach
of contract claim runs from the date the contract is breached.” Nashan v. Nashan,
1995-NMCA-021, § 29, 119 N.M. 625, 894 P.2d 402. To determine whether Section
37-1-23(B) bars Plaintiff's claims, we must therefore identify the alleged breach.

{11}. We begin with the basic premise that, because “[t]he law of contract is the law
of promises[,]” 10 John E. Murray, Jr., Corbin on Contracts § 54.1, at 112 (rev. ed.

2014), an action for breach of contract is an action on a broken promise.’ Ordinarily,

3 Because of the “imbalance of power” inherent in the employer-employee
relationship and the need to protect the “reasonable expectations employers create
in their employees,” employment contracts “represent a unique body of law.”
Campos de Suenos, Ltd. v. Cty. of Bernalillo, 2001-NMCA-043, J 26, 130 N.M. 563,
28 P.3d 1104. While these and similar public policy considerations may require
departure from ordinary principles of contract law when those principles do not
square with the realities of modern employment, see, e.g., Hartbarger v. Frank
Paxton Co., 1993-NMSC-029, Jf 7-12, 115 N.M. 665, 857 P.2d 776, neither party
has persuaded us that such departure is necessary to decide this appeal.

a breach occurs when a party “fail[s] to perform a contractual obligation when that
performance is called for[,]” UJI 13-822 NMRA—in other words, when the party
fails to perform as promised. When an implied term of an employment agreement
obligates the employer to follow specified termination procedures or to terminate
the employee only for specified reasons, nonperformance occurs when the employer
actually terminates the employee without following those procedures or for reasons
other than those specified. See UJI 13-2302 NMRA (“[I]f [the employee’s] discharge
violated [the implied] agreement, then the discharge was wrongful.”); UJI 13-2303
NMRA (same); see also Gormley v. Coca-Cola Enters., 2004-NMCA-021, 9 12, 135
N.M. 128, 85 P.3d 252 (discussing “the termination element of a claim of breach of
implied contract to terminate for just cause only”).

{123 Applying these principles, we conclude that Defendant did not fail to perform
its obligations under any implied agreement by providing Plaintiff with the April 2,
2012, notice of nonrenewal. If Plaintiff is correct that an implied agreement required
Defendant to refrain from terminating Plaintiff unless Defendant used specific
procedures or had specific reasons for termination, Defendant could only breach the
agreement by actually terminating Plaintiff in a manner inconsistent with the
agreement’s terms. We therefore hold that Plaintiff's cause of action accrued when
Plaintiff's employment terminated, and that the time for bringing his wrongful

discharge claim under Section 37-1-23(B) began to run only then. Because Plaintiff

filed his complaint on May 12, 2014—exactly two years from the accrual of his
claim—the district court correctly concluded that Plaintiff's claim was timely.

{13}, Defendant does not claim that any breach by nonperformance occurred before
May 11, 2012. Instead, citing UJI 13-822, Defendant contends that the breach at
issue occurred, if at all, on April 2, 2012, when it notified Plaintiff that his contract
would not be renewed. We disagree.

414 UJI 13-822 and UJI 13-824 NMRA address the doctrine of anticipatory
repudiation. UJI 13-822 states that “[a] person may breach a contract by .. .
announcing ahead of time that he or she will not perform a contractual obligation
when the time for that performance comes due[.]” And UJI 13-824 provides that “[1]t
is a breach of contract if, before performance became due, [the promisor]
announce[s] or otherwise demonstrate[s the promisor’s] intention not to perform a
contractual obligation[.]” Neither these instructions nor other authorities addressing
anticipatory repudiation support Defendant’s requested holding. The doctrine of
anticipatory repudiation is an exception to the general rule that only a party’s failure
to perform as promised constitutes a breach. It allows a party to a contract to treat
the contract as breached upon learning of the other party’s repudiation of its
contractual obligations—its “distinct, unequivocal, and absolute refusal to perform
according to the terms of the agreement.” Gilmore v. Duderstadt, 1998-NMCA-086,

q 15, 125 N.M. 330, 961 P.2d 175 (internal quotation marks and citation omitted).

The doctrine protects a non-breaching party’s expectation, not only that the other
party will perform, but also that the other party will refrain from “substantially . . .
impair[ing]” that expectation of performance by allowing the non-repudiating party
to file suit immediately after communication of the repudiation. Restatement
(Second) of Contracts ch. 10, topic 3, intro. note (1981). See generally Murray,
supra, §§ 54.1, 54.2.

{15} Critically, however, an anticipatory repudiation “is not automatically” a
breach of contract; a repudiation does not operate as a breach unless “‘it [is] treated
as such at the election of the promisee.” UJI 13-824 Committee Commentary
(emphasis added). Because the decision to treat a repudiation as a breach is the non-
breaching party’s to make, repudiation does not start the statute of limitations clock
unless and until the non-repudiating party makes that decision. E.g., Murray, supra, |
§ 54.31, at 333 (“There is no necessity for making the statutory period of limitation
begin to run against the plaintiff until the day fixed by the contract for the rendition
of performance, at least unless the plaintiff definitely elects to regard the anticipatory
repudiation as a final breach.”); Corman, supra, § 7.2.1, at 488 (“The aggrieved party
is entitled to sue either when the anticipatory repudiation occurs or at the later time
for performance under the contract. The time of accrual consequently depends on
whether the injured party chooses to treat the anticipatory repudiation as a present

breach.”); 4 Arthur Linton Corbin, Corbin on Contracts § 989, at 967 (1951);

Restatement (First) of Contracts § 322 (1932); cf Gibbs v. Whelan, 1952-NMSC-
005, | 10, 56 N.M. 38, 239 P.2d 727 (“A party to a contract cannot take advantage
of his own act or omission to escape liability thereon.”).

{16} Defendant invokes the general principle that an anticipatory repudiation may
operate as a breach, but does not argue that Plaintiff elected to treat the notice of
April 2, 2012, as a breach before his employment terminated. We are under no
obligation to review undeveloped arguments, see Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, 9 15, 137 N.M. 339, 110 P.3d 1076, and we will not scour the
record for facts that might support Defendant’s position. The undisputed record
evidence suggests that Plaintiff did not treat the notice as a breach. He continued to
work for Defendant until his termination in May 2012, and he did not file suit until
after that time. Absent evidentiary support for a finding that Plaintiff elected to treat
the notice as a breach, we conclude that, even if Defendant’s notice of nonrenewal
rose to the level of an anticipatory repudiation, it did not start the statute of
limitations clock.

417} Defendant cites Tull v. City of Albuquerque, 1995-NMCA-123, 120 N.M. 829,
907 P.2d 1010, for the proposition that “‘[m]ere continuity of employment, without
more, is insufficient to prolong the life of a cause of action[.]’” /d. J 8 (quoting Del.
State Coll. v. Ricks, 449 U.S. 250, 257 (1980)). Neither this metaphor nor any other

aspect of Tull persuades us that the district court erred. In Tull, we rejected the

plaintiffs’ argument that a continuing-wrong theory extended the time in which to
bring contractual failure-to-promote claims under NMSA 1978, Section 37-1-24
(1941). Tull, 1995-NMCA-123, J 11. The plaintiffs were city employees who
alleged that they had been promised an increase in pay to reflect increased job
responsibilities they had assumed. Jd. JJ 2, 4. The plaintiffs claimed that a new
wrong in the form of a breach of contract occurred each time they received a
paycheck that did not reflect the allegedly promised levels of compensation. Jd. { 4.
According to the plaintiffs, each deficient paycheck restarted the limitations clock
for purposes of Section 37-1-24. Tull, 1995-NMCA-123, J 4. We disagreed,
concluding that “[t]he only actionable wrong alleged . . . [was] the [c]ity's initial
refusal to increase laintiffs’ salaries”—its breach of a “promise [to provide] a pay
raise as of the time [the plaintiffs| assumed increased job responsibilities.” Id. J{ 10-
11 (emphasis added). Accordingly, we held that because “the actual breach of
contract” at issue was the failure to pay increased wages, the “continuing
consequences [of that breach] in the form of lower paychecks . . . d[id] not extend
the life of Plaintiffs’ breach of contract cause of action[.]” Jd. | 11.

{18} Tull has no bearing on this appeal, the outcome of which does not depend on
whether the alleged wrong was single or continuing. The issue before us is when
Plaintiffs claim “accru[ed]” under Section 37-1-23(B), and, as we have explained,

that did not occur under the facts presented until the actual termination of Plaintiff's

employment. The metaphor we used in Tull does not fit here. The continuation of
Plaintiff's employment did not prolong the life of his wrongful termination claim. It
delayed the birth of that claim.’

Il. Valid Written Contract

{19} Defendant also argues that the district court erred by denying its motion for
summary judgment because Defendant is immune from Plaintiff's suit. Defendant
seeks refuge in Section 37-1-23(A), which grants “[g]overnmental entities . . .
immunity from actions based on contract, except actions based on a valid written
contract.”

20} Our process for reviewing an order denying summary judgment involving
immunity from suit “is more complex than a review of ordinary summary judgment
decisions.” Campos de Suenos, Ltd. v. County of Bernalillo, 2001-NMCA-043, ¥ 9,
130 N.M. 563, 28 P.3d 1104. “[A] party losing its immunity from suit in an adverse

summary judgment decision may file a writ of error seeking immediate review of

‘ Both parties urge us to borrow from opinions issued by courts in other
jurisdictions that address how those jurisdictions’ time-bar statutes apply to various
types of employment claims under those jurisdictions’ laws. Because New Mexico
law and established principles of contract law dictate the outcome of this appeal, we
have no need to rely on, or even discuss, the out-of-jurisdiction cases the parties have
cited. Cf In re Adoption of Francisco A., 1993-NMCA-144, § 67, 116 N.M. 708,
866 P.2d 1175 (Hartz, J., specially concurring) (recognizing that New Mexico is
unique and that discussing out-of-jurisdiction authorities is no substitute for
analyzing pertinent New Mexico law).

that decision in order to protect its right not to stand trial. Jd. Nevertheless, “not
every challenge to a denial of immunity is appropriate for immediate, collateral
review because some assertions of immunity are inseparable from the merits of the
case.” Id. We generally limit the scope of our review of immunity decisions under
the collateral order doctrine to “abstract issues of law,” but review evidentiary issues
that arise as we would in any summary judgment case, by viewing the evidence “in
the light most favorable to the party opposing the motion.” /d. JJ 9-10 (internal
quotation marks and citation omitted). We then “determine whether the opposing
party has presented sufficient evidence to overcome an assertion of immunity from
suit,” which “is a legal question that we review de novo.” Jd. ¥ 10.

21}. Applying this standard, we conclude that the district court did not err in
denying Defendant’s summary judgment motion. It is undisputed that Defendant and
Plaintiff executed a written employment contract in May 2011 covering Plaintiff's
employment between August 8, 2011, and May 11, 2012. When a written
employment contract exists, “our courts have been particularly sensitive to an
employee’s reliance upon extrinsic evidence to aid in interpreting an existing
employment relationship evidenced by a writing.” Univ. of N.M. Police Officer’s
Ass'n v. Univ. of N.M., 2005-NMSC-030, { 18, 138 N.M. 360, 120 P.3d 442. “[T]hat
extrinsic evidence has usually been in the form of other writings, such as a personnel

manual or written memoranda regarding a written contract.” /d.; see, e.g., Garcia,

1996-NMSC-029, §§ 12-13. “Whether an employer’s words and conduct support a
reasonable expectation on the part of employees that they will be dismissed only in
accordance with specified procedures or for specified reasons generally is a question
of fact for the jury.” Mealand v. E. N.M. Med. Ctr., 2001-NMCA-089, ¥ 9, 131 N.M.
65, 33 P.3d 285. The employer’s “promissory statement [must be] sufficiently
explicit to support a jury finding that this statement established a norm of conduct.”
Id. F 14 (alteration, internal quotation marks, and citation omitted).

22} Plaintiff's wrongful discharge theory rests on these precedents. Plaintiff
claims that the contract for the 2011/2012 academic year does not state all of the
terms of the parties’ employment agreement, that other documents memorialize
additional terms, and that Defendant breached those additional terms. In response to
Defendant’s summary judgment motion, Plaintiff relied on the Regulations
Governing Academic Freedom and Tenure. Plaintiff's counsel pointed to Subsection
II(D), which is titled “Non-reappointment and Termination of Appointments by the
Institute.” Counsel contended that Defendant had violated Subsection II(D) by
terminating Plaintiff without giving him sufficient advance notice. Defendant does
not argue on appeal that the content of the Regulations is insufficient, as a matter of
law, to support Plaintiff’s claim that Defendant had contractually restricted its power

to terminate him.

{23} Instead, Defendant argues that the district court’s reliance on the Regulations
in denying its summary judgment motion was improper for two apparently separate
reasons. First, Defendant argues that Plaintiff failed to present evidence that the
Regulations were in effect at the time his employment terminated. Defendant
appears to claim that if the Regulations were not in effect during the relevant time
period, then they were not part of the “written contract,” and Plaintiff's claim could
not be “based on” them for purposes of Section 37-1-23(A). If, however, it is
reasonable to infer from the record that the Regulations were in effect during the
relevant time period, we cannot reverse the district court. See Madrid v. Brinker Rest.
Corp., 2016-NMSC-003, ¢ 16, 363 P.3d 1197 (internal quotation marks and citation
omitted) (“We resolve all reasonable inferences in favor of the party opposing
summary judgment[.]”). The Regulations state that they were “[a]pproved by the
Board of Regents of New Mexico Institute of Mining and Technology 1 April 1985.”
On their face, the Regulations are evidence that Defendant adopted them before
Plaintiff joined Defendant’s faculty.> Defendant presented no evidence that the
Regulations did not remain in effect at the end of Plaintiff's employment. On this

record, the district court could have reasonably inferred that the Regulations were

> During the summary judgment hearing, the district court suggested that it
would grant the motion if it concluded, after reviewing the parties’ supplemental
briefs, that the Regulations went into effect after the 2011/2012 academic year.
Plaintiff's supplemental brief included the Regulations, which indicate that
Defendant adopted them long before Plaintiff's employment began.

still in effect at the time Plaintiff contends he was terminated. The district court could
only have granted summary judgment for Defendant by assuming that Defendant
had rescinded, replaced, or amended the Regulations in a manner and at a time that
precluded them from serving as implied terms of the parties’ contract. But summary
judgment decisions must rest on evidence, not assumptions. The district court did
not err by rejecting Defendant’s argument about effective dates.

24; Defendant also argues that Plaintiff failed to establish that the Regulations are
authentic under our rules of evidence. Had this been the only argument in
Defendant’s petition for a writ of error, we would have denied the petition. A district
court’s discretionary ruling about whether a particular document is authentic, see
State v. Trujillo, 2002-NMSC-005, J 15, 131 N.M. 709, 42 P.3d 814, does not cry
out for immediate review under a writ of error, even when that document is pertinent
to an immunity issue. As our Supreme Court has recognized, “considerations of
delay, comparative expertise of trial and appellate courts, and wise use of appellate
resources” weigh in favor of limiting collateral review to cases presenting abstract
issues of law. Handmaker v. Henney, 1999-NMSC-043, J 16, 128 N.M. 328, 992
P.2d 879 (internal quotation marks and citation omitted); see also Campos de
Suenos, Ltd., 2001-NMCA-043, J 17 (noting that we generally reserve writ of error
review for discrete legal issues). If we routinely used writs of error to review

discretionary rulings on the admissibility of evidence, we would expand the

collateral order doctrine beyond appropriate bounds, producing an excessive number
of piecemeal appeals. See Carrillo v. Rostro, 1992-NMSC-054, § 23, 114 N.M. 607,
845 P.2d 130 (noting that if the collateral order doctrine is applied in too many
contexts, it will “allow interruption of trial court proceedings by any party claiming
hardship because of postponement of review[,]” and “piecemeal appeals . . . will
become the order of the day”).

28} We nevertheless exercise our discretion to decide the merits of the
authentication issue because, under the unusual facts of this case, declining to review
the issue at this juncture would not advance the interests underlying the collateral
order doctrine. Because we have granted the writ of error to review other issues that
are properly before us, our simultaneous review of the related authentication
question does not increase delay and involves minimal expenditure of appellate
resources.

426} Where, as here, a party has raised a timely objection to evidence submitted in
summary judgment proceedings, the proponent of the evidence must “set forth facts
as would be admissible in evidence[.]” Mealand, 2001-NMCA-089, § 23 (internal
quotation marks and citation omitted). A district court’s evidentiary rulings,
including rulings on the authenticity of evidence, “will not be disturbed absent a
clear abuse of discretion.” Trujillo, 2002-NMSC-005, § 15 (internal quotation marks

and citations omitted); State v. Mora, 1997-NMSC-060, 7 53, 124 N.M. 346, 950

P.2d 789 (reviewing ruling on authenticity of documents for abuse of discretion),
abrogated on other grounds by State v. Frazier, 2007-NMSC-032, 142 N.M. 120,
164 P.3d 1. We will not presume that the district court abused its discretion, State v.
Bonilla, 2000-NMSC-037, J 6, 130 N.M. 1, 15 P.3d 491, but will instead presume
the “rectitude and regularity” of the proceedings, State v. Gonzales, 1986-NMCA-
050, § 28, 105 N.M. 238, 731 P.2d 381, overruled on other grounds by State v.
Tollardo, 2012-NMSC-008, { 37 n.6, 275 P.3d 110. The party challenging an
evidentiary ruling bears the burden of establishing that it “was obviously erroneous,
arbitrary or unwarranted.” Trujillo, 2002-NMSC-005, § 15 (internal quotation marks
and citations omitted).

27} When authentication is at issue, “[t]here is no abuse of discretion when the
evidence is shown by a preponderance of the evidence to be what it purports to be.”
State v. Jackson, 2018-NMCA-066, § 13, 429 P.3d 674 (internal quotation marks
and citation omitted). Rule 11-901(A) NMRA states: “To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it
is.” Rule 11-901(B) provides a non-exhaustive list of examples of evidence that
satisfy the authentication requirement. One example is evidence that has
“[d]istinctive characteristics and the like.” Rule 11-901(B)(4). An item of evidence

may be authenticated based on distinctive characteristics when “[t]he appearance,

contents, substance, internal patterns, or other distinctive characteristics of the item,
taken together with all the circumstances” support a finding that the item is what it
purports to be. /d.

283} The district court did not abuse its discretion because various distinctive
characteristics of the Regulations provided it with a sufficient basis for concluding
that they were more likely than not authentic. The first page of the document includes
a distinctive logo that features the school’s nickname (New Mexico Tech), a graphic
representation of three mountains, and the words “SCIENCE,” “ENGINEERING,”
“RESEARCH,” and “UNIVERSITY.” This same logo appears on two other key
documents that the court and the parties treated as authentic: the parties’ contract for
the 2011/2012 academic year and the memorandum notifying Plaintiff of
Defendant’s decision to terminate him. The first page of the Regulations also
includes an appropriate title, the formal name of the school, and the school’s
location. The second page includes a table of contents with many headings, all of
which describe subject matter appropriate for regulations on academic freedom and
tenure. The second page also states that the Regulations were “[a]pproved by the
Board of Regents of New Mexico Institute of Mining and Technology” in 1985. The
remaining ten pages of the document include text that addresses, in the order
indicated, the same topics listed in the table of contents. The “appearance, contents,

substance, [and] internal patterns,” Rule 11-901(B)(4), of the Regulations

12
13

14
15

sufficiently supported the district court’s conclusion that they were authentic.® Its
decision to consider the Regulations therefore was not “obviously erroneous,
arbitrary or unwarranted.” Trujillo, 2002-NMSC-005, § 15 (internal quotation marks
and citations omitted).

CONCLUSION

29} We affirm the district court’s order denying Defendant’s motion for summary
judgment and remand for further proceedings consistent with this opinion.

30} IT ISSO ORDERED.

ZACHARW AVES, Sudge

WE CONCUR:

JULIE J. VARGAS, Judge

his re Sorat Hud

KRISTINA BOGARDUS, Judge

June 6, 2019- Karim Salehpoor v. New Mexico Institute of Mining and Technology, No. A-1-CA-36622

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