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Bartlett v. Mirabal3/3/2000
case is so weak that no rational jury could return a verdict in that party's favor. If the evidence a party has on hand to respond to a motion for summary judgment is too weak to prove its case at trial, how does that same evidence justify empaneling a jury? What process occurs subsequent to summary judgment and prior to trial to transform this inadequate evidence into a submissible case? Anderson gives content to the term "genuine issue" by directly relating this term to the non-movant's burden at trial.
Moreover, I believe that the majority overstates the difficulties in applying Anderson. In particular, I do not accept the premise that adoption of Anderson would embroil trial courts in impermissible "weighing" of the evidence. When a trial court rules on a motion for directed verdict or a motion for judgment notwithstanding the verdict, it must evaluate the evidence under the relevant burden of proof. When we review the sufficiency of the evidence supporting a criminal conviction or a judgment terminating parental rights, we review the evidence in the light of heightened burdens of proof. It is clear, however, that regardless of the applicable burden of proof, in each of these contexts the court does not weigh the evidence in the sense of deciding credibility or assigning relative values to conflicting evidence. If courts did not consider the varying burdens of proof in reviewing the sufficiency of the evidence supporting a party's case, these varying burdens of proof could simply be disregarded by the factfinder. I believe that trial courts are capable of making the same type of distinctions we make in substantial evidence review, or that trial courts themselves routinely make in ruling on motions for a directed verdict, when they rule on motions for summary judgment.
Based on my review of the record, I believe that application of Anderson would likely be outcome-determinative in the present case. Cf. In re Estate of Gersbach, 1998-NMSC-013, 125 N.M. 269, 960 P.2d 811 (reversing trial court finding of undue influence on ground that evidence was insufficient to enable reasonable factfinder to find by clear and convincing evidence that testator made a gift he would not have made absent improper influence). Nevertheless, I have chosen to specially concur rather than to dissent because I believe that the dispositive question on appeal is whether our Supreme Court has, in fact, adopted the federal standards, and not whether New Mexico's traditional standards represent the better approach. If our Supreme Court has adopted Anderson and Celotex, we should apply their standards to this case. If the Supreme Court has not, adoption of the federal standards is tantamount to substantially rewriting Rule 1-056, and therefore is beyond the authority of this Court. See Tafoya v. S & S Plumbing Co., 97 N.M. 249, 252, 638 P.2d 1094, 1097 (Ct. App. 1981). While I am less confident than the other members of the panel that New Mexico still clings to its pre-Anderson/Celotex summary judgment standards, I concur in the result reached because of my belief that adoption of Anderson or Celotex should be accomplished, if at all, by express directive of our Supreme Court.
A. JOSEPH ALARID, Judge
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