May 20, 2019- Michael Griego v. Duke City Redi-Mix, LLC, No. A-1-CA-37679

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Court of Appeals of New Mexico
Filed #/20/2019 8:36 AM

1 THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Mark Reynolds

2| MICHAEL GRIEGO,

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Al v. No. A-1-CA-37679

5] DUKE CITY REDI-MIX, LLC, |

6 Defendant-Appellee.

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APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8] Beatrice J. Brickhouse, District Judge

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9} Daniel Morris Faber
10] Albuquerque, NM

11} for Appellant
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13} The Spence Law Firm NM, LLC

14] Dennis K. Wallin

15} Albuquerque, NM

16] for Appellee

17 MEMORANDUM OPINION

19] 9} Plaintiff appeals from the district court’s order granting Defendant’s motion

20] to dismiss and dismissing Plaintiff's amended complaint. In this Court’s notice of

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osed_to_summarily affirm. Plaintiff filed a

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No
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memorandum in opposition (MIO), which we have duly considered. Remaining
unpersuaded, we affirm.

23 Inhis memorandum in opposition, Plaintiff continues to argue that the district
court erred in granting the motion to dismiss, and contends that the question of
whether Plaintiff’s expectations were reasonable so as to support a finding of an
implied contract should go to a jury. [MIO 3-4] However, as we explained in our
calendar notice, “an employer may be entitled to judgment as.a matter of law if the
employee’s expectations are not objectively reasonable.” [CN 5-6] West v. Wash.
Tru Sols., LLC, 2010-NMCA-001, § 7, 147 N.M. 424, 224 P.3d 651.

3} As we further explained in the calendar notice, and as the case law cited by
Plaintiff reiterates, Plaintiff's belief as to the existence of an implied contract, based
on the facts alleged in the amended complaint, is objectively unreasonable because
the cited handbook provision does nothing to restrict the employer’s power to
discharge. [CN 3, 5-6] Plaintiff contends this conclusion produces an absurd result
because an employer would be protected from liability for firing an employee who
follows an employer’s written order. [MIO 3] Such result is not absurd, but merely
reflects the nature of at-will employment. See Hartbarger v. Frank Paxton Co.,
1993-NMSC-029, 7 4, 115 N.M. 665, 857 P.2d 776 (“An at-will employment
relationship can be terminated by either party at any time for any reason or no

reason, without liability.” (emphasis added)). As Plaintiff acknowledges,

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employee may lawfully be terminated even “for following the employer’s orders.”
[MIO 2]

43 Plaintiff has not otherwise asserted any facts, law, or argument in his
memorandum in opposition that persuade this Court that our notice of proposed
disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, § 24, 124
N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar
cases, the burden is on the party opposing the proposed disposition to clearly point
out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, ¥ 10, 107 N.M.
421, 759 P.2d 1003 (stating that a party responding to a summary calendar notice
must come forward and specifically point out errors of law and fact, and the
repetition of earlier arguments does not fulfill this requirement), superseded by
statute on other grounds as stated in State v. Harris, 2013-NMCA-031, 43, 297 P.3d
374.

45} Accordingly, for the reasons stated in our notice of proposed disposition and
herein, we affirm the district court’s order.

3 ITISSO ORDERED:
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M. MONICA ZAMORA) Chief Judge
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WE CONCUR
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J. MILES HANISEE, Judge
4| Jacqueline YR. Medina 5 JACQUELINE R. MEDINA, Judge
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