FROM THE DISTRICT COURT OF SAN JUAN COUNTY Louis E. DePauli
Jr., District Judge
Kennedy Kennedy & Ives, LLC Shannon L. Kennedy Joseph P.
Kennedy Laura S. Ives Albuquerque, NM for Appellee
Stratvert P.A. Virginia Anderman Albuquerque, NM Lorenz Law
Alice T. Lorenz Albuquerque, NM for Appellants
MICHAEL E. VIGIL, Judge
The City of Farmington, Farmington Police Department (FPD),
and FPD Chief Kyle Westall (collectively, Defendants), appeal
from a jury verdict awarding damages to Plaintiff Frank Dart,
an FPD detective, under New Mexico's Whistleblower
Protection Act (the WPA), NMSA 1978, §§ 10-16C-1 to
-6 (2010). Plaintiffs WPA claim stemmed from his
communication to Defendants that he believed Defendants were
in violation of NMSA 1978, Section 32A-4-3
(2005) by failing to promptly and immediately
investigate reports of child abuse and neglect referred to
FPD from the New Mexico Children, Youth and Families
Department (CYFD). Defendants raise four issues on appeal:
(1) whether the district court erred in denying their
pretrial motion for summary judgment; (2) whether the
jury's verdict in favor of Plaintiff was supported by
substantial evidence; (3) whether the district court abused
its discretion in denying admission of internal FPD
memorandam that Defendants contend were crucial to their
defense; and (4) whether a comment made by Plaintiffs counsel
during a bench conference, which may have been heard by the
jury, prejudiced Defendants and tainted the jury's
verdict. We affirm.
As an FPD detective, Plaintiff was assigned to investigate
crimes against children, including CYFD referrals. He was
later assigned to serve simultaneously on an FBI-FPD Cyber
Crime Task Force (CCTF) aimed at investigating and
apprehending high-technology criminals. At the time of the
communications underlying Plaintiffs WPA claims, Plaintiffs
direct supervisor was Sergeant Robert Perez. Plaintiffs
complaint alleged multiple violations of the WPA.
Defendants' motion for summary judgment was granted on
all the claimed violations except one. The district court
determined that there were disputed issues of material fact
about whether Plaintiff made communications to FPD concerning
the department's failure to fulfill its statutory duties
under Section 32A-4-3 and whether those communications were
protected under the WPA, and permitted this claim to proceed
Following trial, the jury awarded Plaintiff $4, 000 in
economic damages and awarded $200, 000 damages for emotional
pain and suffering. Defendants filed two post-trial motions.
The first sought judgment as a matter of law, arguing that
Plaintiff failed to present sufficient evidence to support
the verdict. The second sought remittitur of the award for
pain and suffering, or in the alternative, a new trial,
arguing that the jury's award was not supported by the
evidence, and the district court erred in excluding evidence
that Defendants argued was crucial to their defense, and that
Defendants were prejudiced by statements made by Plaintiffs
counsel during a bench conference that may have been heard by
the jury. The district court denied the post-trial motions,
and Defendants appeal.
The District Court's Partial Denial of Defendants'
Motion for Summary Judgment
We begin by addressing Defendants' claim that the
district court erred in denying their motion for summary
judgment. Because it did so only on the basis of its finding
that Plaintiff had raised genuine issues of material fact
existed as to whether Plaintiff engaged in communications
protected under the WPA, this argument is not reviewable.
See Green v. Gen. Accident Ins. Co. of Am., 1987-
NMSC-111, 119, 106 N.M. 523, 746 P.2d 152 (holding that
"denial of a motion for summary judgment is not
reviewable after final judgment on the merits[, and i]f a
summary judgment motion is improperly denied, the error is
not reversible for the result becomes merged in the
subsequent trial"); Gallegos v. State Bd. of
Educ., 1997- NMCA-040, 11 7-12, 123 N.M. 362, 940 P.2d
468 (stating that a narrow exception to the general rule
stated in Green applies to permit post-trial appeal
of denial of summary judgment, but only if "(1) the
facts are not in dispute; (2) the only basis of the ruling is
a matter of law which does not depend to any degree on facts
to be addressed at trial; (.3) there is a denial of the
motion; and (4) there is an entry of a final judgment with an
appeal therefrom"). The Green exception does
not apply because as already discussed, the facts in the
summary judgment record were disputed. Moreover, those
disputes were resolved by the jury in Plaintiff's favor
after hearing both sides.
Sufficiency of the Evidence Establishing Plaintiffs WPA
The focus of Defendants' appeal is that insufficient
evidence was presented to support the jury's verdict in
favor of Plaintiff under the WPA. Specifically, Defendants
challenge the sufficiency of the evidence to establish that
(1) "Plaintiff engaged in protected activity by
communicating to his superiors his belief that [Defendants]
were violating state law by failing [their] duty required by
state law"; and (2) "Plaintiff had a good faith
belief that. . . Defendants were in violation of state
Standard of Review
"In reviewing a sufficiency of the evidence claim, this
Court views the evidence in a light most favorable to the
prevailing party and disregards any inferences and evidence
to the contrary." Littell v. Allstate Ins. Co.,
2008-NMCA- 012, ¶13, 143 N.M. 506, 177 P.3d 1080
(alteration, internal quotation marks, and citation omitted).
"We defer to the jury's determination regarding the
credibility of witnesses and the reconciliation of
inconsistent or contradictory evidence." Id.
"We simply review the evidence to determine whether
there is evidence that a reasonable mind would find adequate
to support a conclusion." Id. (internal
quotation marks and citation omitted). "Jury
instructions become the law of the case against which the
sufficiency of the evidence is to be measured."
Atler v. Murphy Enters. Inc., 2005- NMCA-006, ¶
13, 136 N.M. 701, 104 P.3d 1092 (internal quotation marks and
citation omitted); see also Littell, 2008-NMCA-012,
¶ 33 (stating that in reviewing the jury's verdict
in favor of the plaintiff as to his hostile work environment
claim for substantial evidence, "[w]e evaluate the
evidence with reference to the language of the jury
instructions given, which constitute the law of the
The Jury Instructions
There were no objections to any of the jury instructions we
discuss below. The jury was instructed, in pertinent part:
The Plaintiff... seeks compensation from... Defendants ...
for damages that Plaintiff says were caused by retaliatory
actions in violation of the [WPA.]
More specifically, Plaintiff asserts the following:
1. While Plaintiff was a detective, he communicated to his
superiors his good faith belief that the Defendants were
violating state law by failing in [their] duties regarding
the handling of child abuse cases.
2. Based upon his communications to his superiors that ...
Defendants... were violating the law, Plaintiffs superiors
engaged in retaliatory action against the Plaintiff.
3. Plaintiff suffered economic and emotional damage because
of the adverse employment action taken against him.
4. Plaintiff claims he is entitled to damages he suffered
because Defendants' actions violated the [WPA].
jury was further instructed that Plaintiff had the burden of
proving the following essential elements "by the ...