August 15, 2019- Beverly Rodriguez v. Jeffrey Smith, No. A-1-CA-36749

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1 . 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BEVERLYRODRIGUEZ,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-36749
5 JEFFREY SMITH and NEW
6 MEXICO STATE POLICE,
7 a Division of NEW MEXICO
8 DEPARTMENT OF PUBLIC
9 SAFETY,
10 	Defendants-Appellees.
11 	APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
12 Joh, F. Davis, District Judge
13 	The Baker Law Group
14 Jeffrey L. Baker
15 	Renni Zifferblatt
16 Albuquerque, NM
17 for Appellant
18 Wiggins, Williams & Wiggins, P .C.
19 Patricia G. Williams
20 Albuquerque, NM
21 	for Appellees
22 	MEMORANDUM OPINION
23 	BOGARDUS, Judge.
24 	{1} 	Plaintiff Beverly Rodriguez appeals from the district court's grant of summary
25 judgment,in favor of Defendants Jeffrey Smith, a New Mexico State Police (NMSP)
Court of Appeals of New Mexico
Filed 8/15/2019 9:42 AM

1 agent, and the NMSP. 1 Specifically, Plaintiff challenges the propriety of the district
2 court's reliance on facts found in a prior, federal court proceeding to collaterally
3 estop her district court claims of false arrest, false imprisonment, and malicious
4 abuse of process against Defendant. Concluding that part of the district court's
5 application of collateral estoppel was proper, we affirm in part and reverse in part.
6 BACKGROUND
7 	{2} 	Plaintiff sued Defendant in federal court, pursuant to 42 U.S.C. § 1983 (2018),
8 alleging violations of her rights under the Fourth and Fourteenth Amendments of the
9 United States Constitution and simultaneously sued Defendant in state district court,
10 alleging false arrest, false imprisonment, malicious abuse of process, and other
11 	statutory violations 2 under state law.
12 	{3} 	Plaintiffs claims are based on the following facts, as found by the federal
13 	court. Importantly, Plaintiff does not dispute the basic factual framework reflected
14 	in the federal court's ruling. Defendant, an agent with the NMSP, began a criminal
15 	investigation seeking evidence of fraud, embezzlement, and larceny in the Cuba
1Plaintiffs claim against the NMSP was based on a theory of respondeat
superior for the actions of Defendant. We refer to both Officer Smith and NMSP as
Defendant throughout this opinion.
20n appeal, Plaintiff does not argue that the district court erred in granting
summary judgment on her "statutory violations" claim. The question of the propriety
of that grant is therefore not before us. See Worthey v. Sedillo Title Guar., Inc., 1973-
NMSC-072, 120, 85 N.M. 339, 512 P.2d 667.
2

1 Independent School District, for which Plaintiff worked. Defendant reported to
2 officials his suspicion that fraud had been committed by certain bus contractors, one
3 of whom was Plaintiffs uncle. As part of his investigation, Defendant interviewed
4 Plaintiff about the suspected fraud. During the interview, Plaintiff stated that she had
5 bought the metal disability ramps that were in her front yard at a school district
6 auction years earlier. After the interview, Defendant began investigating whether the
7 ramps were stolen. He prepared an affidavit for a warrant to arrest Plaintiff. A deputy
8 district attorney approved the affidavit, and Defendant swore it before a magistrate
9 judge. Defendant also prepared a criminal complaint charging Plaintiff with larceny;
10 it too was signed by the magistrate judge. After a deputy district attorney reviewed
11 	and approved it, Defendant then swore an affidavit before a district court judge for
12 a warrant to search Plaintiffs property.
13 	{4} 	Defendant and another state police agent served the warrants on Plaintiff at
14 her home. Defendant discussed the case at length there with Plaintiff and her
15 	husband. Defendant told them, in essence, that it was not her, but rather the bus
16 contractors, who were the target of the investigation. Defendant insinuated that
17 unless Plaintiff incriminated her uncle, the felony charge against her would be
18 	pursued. Plaintiff was arrested and transported to a detention center. At Defendant's
19 request, the state Department of Transportation removed the ramps from Plaintiffs
20 yard. Later, at a grand jury proceeding, Defendant testified regarding the criminal
3

1 complaint against Plaintiff. The grand jury refused to issue an indictment and no true
2 bill was returned.
3 {5} 	While Plaintiffs state court case was pending, Defendant filed a motion for
4 summary judgment in the federal case. The federal court granted Defendant's motion
5 based on the defense of qualified immunity. In granting the motion, the court found
6 that: (1) Defendant did not knowingly make false statements or act with reckless
7 disregard for the truth in obtaining the search and arrest warrants; (2) it would not
8 have been evident to a reasonably competent officer that the affidavits lacked
9 probable cause; and (3) the arrest warrant was supported by probable cause as a
10 matter of fact and law.
11 	{6} 	In the meantime, Plaintiff added a new claim to her federal complaint:
12 malicious prosecution under federal law. In response, Defendant filed a motion for
13 	summary judgment on the malicious prosecution claim. In granting the motion, the
14 court stated that "the existence of probable cause is fatal to [Plaintiffs] claim" but
15 	nonetheless discussed the malice element of the claim and found that Plaintiff failed
16 to show malice. The federal court then dismissed Plaintiffs amended complaint.
17 {7} 	After 	the 	federal 	court 	granted 	Defendant's 	first 	motion 	for 	summary
18 judgment, Defendant moved for summary judgment in state district court based on
19 the application of collateral estoppel. At the hearing on the motion, the federal
20 	court's second order was presented to the district court without objection. The
4

1 district court granted summary judgment, reasoning that "the facts 'found' by [the
2 federal court] ... are entitled to preclusive effect" and that "[Defendant has] made a
3 prima facie showing that summary judgment is proper and [Plaintiff] has not shown
4 	specific evidentiary facts in the form of admissible evidence that give rise to a
5 genuine issue of material fact requiring a trial on the merits." This appeal followed.
6 DISCUSSION
7 I. 	Standard of Review
8 {8} 	"Summary judgment is appropriate where there are no genuine issues of
9 material fact and the movant is entitled to judgment as a matter oflaw." Self v. United
10 Parcel Serv., Inc., 1998-NMSC-046, ,-r 6, 126 N.M. 396,970 P.2d 582. Where issues
11 	on appeal involve only questions of law, we review those questions de novo. Id.
12 {9} 	Our decision turns on whether the district court correctly applied collateral
13 	estoppel to Plaintiffs state law claims. "In general, we review a decision by the
14 district court to apply or not apply the doctrine of collateral estoppel for an abuse of
15 	discretion." 	Bank 	of N.Y. 	v. 	Romero, 	2016-NMCA-091, 	,-r 23, 	382 	P.3d 	991
16 ( alteration, internal quotation marks, and citation omitted). However, when, as here,
17 the facts are not in dispute, "the preclusive effect of a prior judgment is a question
18 	of law reviewed de novo." Rosette, Inc. v. U.S. Dep't of the Interior, 2007-NMCA-
19 	136, ,-r 31, 142 N.M. 717, 169 P.3d 704. Thus, we review the district court's grant of
5

1 summary judgment, which was based on its application of collateral estoppel, de
2 novo.
3 II. 	Principles of Collateral Estoppel
4 	{to} 	Collateral estoppel, or to use a more descriptive term, "issue preclusion[,]"
5 "prevents a party from re[]litigating ultimate facts or issues actually and necessarily
6 decided in a prior suit." Romero, 2016-NMCA-091, ,-r 23 (internal quotation marks
7 and citation omitted). Issue preclusion is available even when, as here, the issue is
8 submitted and determined in the prior proceeding 	on a motion for 	summary
9 judgment. Restatement (Second) of Judgments § 27 cmt. d (1982). Likewise, a party
10 	in state court may be precluded from relitigating an issue previously litigated in
11 	federal court. See, e.g., Edwards v. First Fed. Sav. & Loan Ass'n of Clovis, 1985-
12 NMCA-015, 133, 102 N.M. 396,696 P.2d 484 ("It would be unthinkable to suggest
13 	that state courts should be free to disregard the judgments of federal courts[.]"
14 (internal quotation marks and citation omitted)); see also 18B Charles Alan Wright
15 	et al., Federal Practice and Procedure§ 4468 (2d ed. 2019).
16 	{11} 	Collateral estoppel is available only if the party seeking its application
17 demonstrates that
18
19
20
21
22
(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.
6

I 	Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022,, 9, 148 N.M. 228,
2 233 P.3d 362 (internal quotation marks and citation omitted).
3 	{12} 	An issue is not "necessarily determined" in the prior litigation, however, "if a
4 judgment of a court of first instance is based on determinations of two issues, either
5 of which standing independently would be sufficient to support the result, the
6 judgment is not conclusive with respect to either issue standing alone." Stan Lee
7 Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 n.1 (10th Cir. 2014) (quoting
8 Restatement (Second) of Judgments§ 27 cmt. i); accord Manlove v. Sullivan, 1989-
9 NMSC-029, , 	14, 	108 N.M. 471, 775 P.2d 237. One reason for the rule that
10 preclusion is unavailable when a prior judgment rests on alternative, independent
11 	grounds is that "a determination in the alternative may not have been as carefully or
12 rigorously considered as it would have if it had been necessary to the result, and in
13 	that sense it has some of the characteristics of dicta." Restatement (Second) of
14 Judgments§ 27 cmt. i.
15 	{13} 	Even if the party seeking preclusion establishes that the elements of collateral
16 estoppel are present, an exception may apply; that is, a trial court "may determine
17 that its application would be fundamentally unfair and would not further the aim of
18 the doctrine, which is to prevent endless relitigation of issues." Silva v. State, 1987-
19 NMSC-107, ,, 7, 12, 106 N.M. 472, 745 P.2d 380. "Fundamental fairness requires
20 that the party against whom estoppel is asserted had a full and fair opportunity to
7

1 litigate." Id. 17. The burden is on that party to prove that it was deprived of this full
2 and fair opportunity. See Larsen v. Farmington Mun. Sch., 2010-NMCA-094, 110,
3 	148 N.M. 926,242 P.3d 493.
4 	{14} 	In this case, Plaintiff gives three main reasons that the district court's
5 application of collateral .estoppel was unfair. She first points to the difference
6 between the legal standards associated with her federal law claims and those
7 associated with her state law claims. Plaintiff argues that the federal law claims,
8 which require proof of intent, are more burdensome to prove than the state law
9 claims, which she characterizes as negligence-based. Second, Plaintiff points out
10 that the qualified immunity defense, which precluded Defendant's liability under the
11 	federal law claims, is not a defense to her state law claims. Lastly, Plaintiff notes
12 that the federal and state summary judgment standards differ. On this point, Plaintiff
13 	seems to· argue that summary judgment to dispose of cases is more favored in federal
14 courts than in our state courts and so, in accordance with New Mexico's policy
15 	preference that cases be decided on the merits, she should be allowed a trial on the
16 merits of her state law claims.
17 III. 	Application of Collateral Estoppel
18 	{15} 	We first consider whether the elements of collateral estoppel, as applied to the
19 facts of this case, are established.
8

1 A. 	Plaintiff Was a Party In the Prior Proceeding, and the Causes of Action
2 	In the Two Proceedings Are Different
3 	{16} 	The first two collateral estoppel elements are present. Plaintiff was obviously
4 a party to the prior, federal proceeding, and the causes of action before the state
5 court-false 	arrest, 	false 	imprisonment, 	and 	malicious 	abuse 	of process-are
6 different from those before the federal court: violations of constitutional rights under
7 42 u.s.c. § 1983.
8 B.
9
10 {17}
The Probable Cause Issue Was 	Actually Litigated 	and 	Necessarily
Determined In the Prior Proceeding
The second two collateral estoppel elements are likewise present. Plaintiff
11 	raised the issue of Defendant's lack of probable cause for her arrest in her response
12 to Defendant's first federal court summary judgment motion. Plaintiff argued that
13 	"the affidavit for the arrest warrant did not establish probable cause[.]" The federal
14 court considered the matter and resolved it in Defendant's favor, as stated in its first
15 	order: "[PlaintiffJ failed to establish a constitutional violation for lack of probable
16 cause on the face of the arrest warrant affidavit." Later, in response to Defendant's
17 second federal court motion for summary judgment and presumably in an effort to
18 	alter the probable cause analysis, Plaintiff submitted proposed factual corrections.
19 Taking 	the 	new 	information 	into 	account, 	the 	federal 	court 	reaffirmed 	its
20 determination that Plaintiffs arrest was based on probable cause. Based on this
21 	record, 	we conclude that the probable cause issue was actually litigated and
9

1 necessarily determined in the prior proceeding. 	See 	Restatement (Second) 	of
2 Judgments § 27 cmt. d ("When an issue is properly raised, by the pleadings or
3 otherwise, and is submitted for determination, and is determined, the issue is actually
4 litigated.").
5 {18} 	Resolution of the probable cause issue in Defendant's favor disposes of
6 Plaintiffs claims of false arrest and false imprisonment. Under our case law, the
7 existence of probable cause squarely defeats those claims. See, e.g., Benavidez v.
8 Shutiva, 2015-NMCA-065, 1 12, 350 P.3d 1234 ("When probable cause is present,
9 a person cannot be held liable for false arrest or imprisonment, since probable cause
10 provides him with the necessary authority to carry out the arrest." (internal quotation
11 	marks and citation omitted)).
12 {19} 	In sum, each of the collateral estoppel elements, as applied to Plaintiffs false
13 	arrest and false imprisonment claims, is present. Before turning to whether the "full
14 and fair opportunity" exception applies in the context of those claims, we consider
15 	whether 	the 	issue 	of malice 	was 	likewise 	actually 	litigated 	and 	necessarily
16 determined by the federal court.
17 C. 	The Malice Issue Was Actually Litigated but Not Necessarily Determined
18 	In the Prior Proceeding
19 	{20} 	Whether 	Defendant 	acted 	with 	malice 	in 	causmg 	Plaintiffs 	continued
20 confinement or prosecution was at issue in the federal court proceeding. Plaintiff
10

1 raised this issue in bringing a claim for malicious prosecution under federal law. The
2 federal court analyzed Plaintiffs claim in relation to what the court considered
3 essential 	elements 	of malicious 	prosecution, 	including 	the 	element 	that 	"the
4 defendant acted with malice[.]" The court concluded that Plaintiff had "not shown
5 evidence of [Defendant's] malicious intent." Having been raised, submitted, and
6 determined, the malice issue was actually litigated.
7 	{21} 	However, the malice issue was not necessarily determined. The federal court's
8 second order stated that Plaintiff failed to make two showings, each one directly
9 related to one of the malicious prosecution elements. The court concluded first that
10 Plaintiff failed to show that "there was no probable cause to support the original
11 	arrest, continued confinement, or prosecution[.]" The court characterized this failure
12 as "fatal" to the malicious prosecution claim. The court nevertheless said it would
13 	"briefly analyze" the issue of whether Defendant acted with malice. The court
14 concluded that Plaintiff failed to make that showing.
15 	{22} 	In other words, the federal court's second grant of summary judgment was
16 based on both its resolution of the probable cause issue and its resolution of the
17 malice issue. Together, they are "two issues, either of which standing independently
18 	would be sufficient to support the result[.]" Stan Lee Media, Inc., 774 F.3d at 1297
19 n.1. The federal court's judgment with respect to the malice issue, therefore, was not
20 necessarily determined. See id. Having not satisfied all the requisites for collateral
11

1 estoppel, the no-malice determination should not be given preclusive effect and is
2 unavailable in the context of Plaintiffs state law malicious abuse of process claim.
3 	{23} 	Malicious abuse of process under our state law consists of the following
4 elements: "(1) the use of process in a judicial proceeding that would be improper in
5 the regular prosecution or defense of a claim or charge; (2) a primary motive in the
6 use of process to accomplish an illegitimate end; and, (3) damages." Durham v.
7 Guest, 2009-NMSC-007, , 29, 145 N.M. 694, 204 P.3d 19. An improper use of
8 process, as referenced in the first element, "may be sl:wwn by ( 1) filing a complaint
9 without probable cause, or (2) an irregularity or impropriety suggesting extortion,
10 delay, or harassment, or other conduct formerly actionable under the tort of abuse of
11 	process." Id. ( alteration, internal quotation marks, and citation omitted). As such, the
12 claim is not disposed of, because the elements associated with it can be established
13 	despite a showing of probable cause.
14 	{24} 	Given that the 	determinations required for Plaintiff to 	succeed on her
15 	malicious abuse of process claim extend beyond those necessary to dispose of her
16 	federal law claims, the district court erred insofar as it collaterally estopped Plaintiff
17 from litigating the malicious abuse of process claim. See Dejlon v. Sawyers, 2006-
18 NMSC-025, ,, 16, 27, 139 N.M. 637, 137 P.3d 577 (stating that collateral estoppel
19 does not apply when the findings required to succeed in a subsequent proceeding
20 differ from those required to succeed on a claim in a prior proceeding).
12

1 D. 	Plaintiff Had a Full and Fair Opportunity to Litigate Her Initial Claims
2 	In the Prior Proceeding
3 	{25} 	Having determined that the collateral estoppel elements, as applied to the
4 probable cause issue at the center of the false arrest and false imprisonment claims,
5 are present, 	we now consider whether Plaintiff was 	afforded a full 	and fair
6 opportunity to litigate the issue.
7 	{26} 	When deciding whether a party had a "full and fair opportunity to litigate" an
8 issue, a trial court is t<:> weigh "countervailing equities[,]" Silva, 1987-NMSC-107,
9 112, for example, "whether the non-movant had the incentive to vigorously litigate
10 the prior action," Rex, Inc. v. Manufactured Haus. Comm., 1995-NMSC-023, 114,
11 	119 N.M. 	500, 	892 	P.2d 947. 	Other considerations 	are 	"whether procedural
12 differences between the two actions, such as representation by counsel, presentation
13 	of evidence, questioning of witnesses, and appellate review, would make preclusion
14 unfair" and "whether policy considerations exist to deny any preclusive effect." Id.
15 	{27} 	Plaintiff fails to show how she lacked the incentive to vigorously litigate the
16 federal court action. See id. That is, she highlights no specific deficiency relative to
17 this consideration, and the record reveals none. On the contrary, Plaintiffs argument
18 tends to prove that she had an incentive to vigorously litigate. Plaintiff cites as an
19 	inequity the difficulty in proving the federal law claims relative to proving the state
20 law claims. Assuming that proving the federal law claims is indeed more difficult, it
13

1 would stand to reason that, in an effort to succeed in the federal court proceeding,
2 Plaintiff would have the incentive to bring forward every piece of evidence available
3 to prove that Defendant acted without probable cause. Given this inference and the
4 lack of evidence to the contrary, we conclude that Plaintiffs incentive to vigorously
5 litigate the prior action was robust enough to satisfy this consideration's standard.
6 {28} 	We consider next whether procedural differences between the two actions
7 would make preclusion unfair. See id. Here, too, Plaintiff highlights no deficiency
8 of the kind expressly contemplated inRex-"representation by counsel, presentation
9 of evidence, questioning of witnesses, and appellate review[,]" id.-and discussed
10 at length in cases like Shovelin v. Central N.M Electric Cooperative, Inc., 1993-
11 	NMSC-015, 	,, 17, 	19-20, 	115 	N.M. 	293, 	850 	P.2d 996 	(observing that the
12 procedural and evidentiary rules applicable in unemployment compensation cases
13 	differ from those followed in district courts and also that the qualifications of
14 adjudicators 	in 	each 	of those 	tribunals 	differ), 	and 	Mascarenas 	v. 	City 	of
15 Albuquerque, 	2012-NMCA-031, 	, 36, 	274 	P.3d 	781 	(considering 	specific
16 characteristics of the prior proceeding, such as counsel representation, allowance for
17 witness testimony, and qualifications of the hearing officer). The record on appeal
18 	contains no indication of procedural differences between the proceedings that would
19 make preclusion unfair. We therefore assume there were none. 	See Reeves v.
20 	Wimberly, 1998-NMCA-038,, 21, 107 N.M. 231, 755 P.2d 75.
14

1 {29} 	Finally, Plaintiff obliquely argues that the heightened burden of persuasion
2 she had to meet to prove her § 1983 claim, coupled with the federal courts' very
3 clifferent approach to summary judgment adjudication should move the balance of
4 fairness in her favor. See Restatement (Second) of Judgments§ 28 cmt. (4) (1982)
5 (noting that relitigation of an issue in a subsequent action may not be precluded if
6 "[t]he party against whom preclusion is sought had a significantly heavier burden of
7 persuasion with respect to the issue in the initial action than in the subsequent
8 action"). We acknowledge the differences Plaintiff points to, but conclude that they
9 did not play an unfair role in the federal court's determination that probable cause
10 supported the arrest and search warrants, which Defendant relies on for his defense.
11 	Plaintiff does not argue that the basic historical facts supporting the warrants are
12 	inaccurate or flawed enough to bring into question the validity of the warrants. As
13 	such, the differences between the federal and state systems are irrelevant to our
14 inquiry. Accordingly, it was proper for the district court to apply collateral estoppel
15 	to preclude the litigation of Plaintiffs false arrest and false imprisonment claims,
16 	since those claims can be defeated by a probable cause determination in Defendant's
17 favor, and since the probable cause issue was actually litigated and necessarily
18 	determined in the prior proceeding.
19 	{30} 	Conversely, the malice issue was not necessarily determined in the prior
20 proceeding, and so the requisites for collateral estoppel as applied to that issue have·
15

1 not been met. Accordingly, preclusion is not available for the federal court's no-
2 malice determination. Therefore, it was improper for the district court to apply
3 collateral estoppel to preclude the litigation of Plaintiffs malicious abuse of process
4 claim.
5 CONCLUSION
6 {31} 	We affirm in part, reverse in part, 	and remand for further proceedings
7 consistent with this opinion.
8 	{32}
9
10
IT IS SO ORDERED.
11 	WECONCUR:
12 	~C-b. 	.13 	RICHARD C. BOSSO7urliePro Tempore
14 --------------------15 	MICHAEL D. BUSTAMANTE, Judge Pro Tempore
16