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Bartlett v. Mirabal3/3/2000
UDY S. APODACA, Judge
I CONCUR:
RICHARD C. BOSSON, Judge
A. JOSEPH ALARID, Judge, specially concurring
ALARID, Judge (specially concurring)
I am unable to find a clear message in New Mexico cases discussing summary judgment standards in the aftermath of Anderson and Celotex, two controversial federal summary judgment cases. My review of New Mexico decisions indicates that Anderson and Celotex have been cited in seven reported appellate decisions. While Celotex`s holding concerning the movant's initial burden is not directly implicated in the present case, I have surveyed New Mexico cases citing either Anderson or Celotex because I believe they are equally indicative of a tendency to treat federal and state summary judgment standards as interchangeable.
In Furgason v. Clausen, 109 N.M. 331, 785 P.2d 242 (Ct. App. 1989), we acknowledged that in the wake of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), a plaintiff who is a public figure must establish by clear and convincing evidence that the defendant acted with actual malice, whereas a plaintiff who is not a public figure must merely establish that the defendant negligently failed to check the truth or falsity of the communication prior to publication. Furgason, 109 N.M. at 337-39, 785 P.2d at 248-50. In reversing the grant of summary judgment in favor of the defendant, we cited Anderson without any qualifying signal as direct support for the proposition that " motion for summary judgment in a defamation action necessarily involves determination of the substantive evidentiary standard of proof that would apply at a trial on the merits." Furgason, 109 N.M. at 339, 785 P.2d at 250.
In Blauwkamp v. University of New Mexico Hospital, 114 N.M. 228, 836 P.2d 1249, (Ct. App. 1992), we held that the defendants in a medical malpractice action could establish a prima facie case of entitlement to summary judgment merely by pointing out that the plaintiff lacked an expert witness and without the necessity of presenting an affidavit by their own expert. We discussed Celotex, holding that "on these facts Celotex and existing New Mexico cases produce the same result." Blauwkamp, 114 N.M. at 232, 836 P.2d at 1253.
More recently, in Wolford v. Lasater, 1999-NMCA-024, 126 N.M. 614, 973 P.2d 866, we considered whether differences in federal and state summary judgment standards would justify denying preclusive effect to a summary judgment granted in federal court. In Wolford, the plaintiff, citing Anderson, argued that the trial court should have refused to give preclusive effect to a prior federal summary judgment because plaintiff "had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action." Wolford, 1999-NMCA-024, 5 (quoting Restatement (Second) of Judgments ยง 28(4) (1980)). We rejected this argument, stating that " e agree with Defendants' argument that the federal and our own state's constructions of summary judgment do not differ substantively." Wolford, 1999-NMCA- 024, 11.
A review of New Mexico Supreme Court decisions indicates that our Supreme Court has cited Celotex or Anderson in four cases: Eoff, discussed in the majority opinion; Goradia v. Hahn Co., 111 N.M. 779, 810 P.2d 798 (1991); Paca v. K-Mart Corp., 108 N.M. 479, 775 P.2d 245 (1989) and Peck v. Title USA Ins. Corp., 108 N.M. 30, 766 P.2d 290 (1988). In Peck and Paca the Supreme Court, employing the introductory signal, "see also" cited Celotex for the unexceptional proposition that summary judgment is appropriate where there are no genuine issues of material fact. I find
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