United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING PARTIAL SUMMARY
MATTER comes before the Court on Defendant's Motion for
Partial Summary Judgment on Affirmative Defense Based on
Public Policy (Doc. 33), filed September 6, 2018.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b),
the parties have consented to me serving as the presiding
judge and entering final judgment. Docs. 8, 9, 10.
Having reviewed the submissions of the parties and the
relevant law, and having conducted oral arguments, the Court
will grant Defendant's Motion for Partial Summary
Judgment. Specifically, the Court finds that a contingency
fee agreement for lobbying before the County Commission would
be unenforceable as in contravention of New Mexico's
Midway is a real estate agency and developer, while Defendant
Wagner is a business that assembles, sells, and leases
construction equipment. According to Midway, the parties
entered into an agreement in 2015 in which Midway would
assist Wagner in securing the approval of Industrial Revenue
Bonds (“IRBs”) to be issued by Bernalillo County.
Plaintiff maintains that an unwritten IRB agreement reached
in October 2015 requires that each year Wagner incurs
property tax savings from the IRB awards, Wagner must pay
Midway 18% of such savings. Wagner denies that the parties
entered into the IRB agreement as described by Midway.
Nevertheless, for purposes of this partial summary judgment
motion only, Wagner “will accept as true Midway's
allegation that the parties agreed to a fee based on a
percentage of the tax savings Wagner will enjoy as a result
of the IRBs.” Doc. 34 at 2.
suit against Wagner sets forth the following theories for
recovery of damages: (1) breach of contract, (2) unjust
enrichment, and (3) quantum meruit. Wagner now moves for
summary judgment on the breach of contract claim based on its
affirmative defense that the contingency payment term of the
parties' contract, as alleged by Midway, is unenforceable
on public policy grounds.
SUMMARY JUDGMENT STANDARD
to Federal Rule of Civil Procedure 56, “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “The movant bears the initial
burden of making a prima facie demonstration of the absence
of a genuine issue of material fact and entitlement to
judgment as a matter of law.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). The
burden then shifts “to the nonmoving party to show that
there is a genuine issue of material fact.” Bacchus
Indus., Inc., v. Arvin Indus., Inc., 939 F.2d 887, 891
(10th Cir. 1991).
“genuine” dispute exists where the evidence is
such that a reasonable jury could resolve the issue either
way. See Adler, 144 F.3d at 670 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
mere scintilla of evidence in the non-movant's favor is
not sufficient. Anderson, 477 U.S. at 252.
“When applying this standard, the Court examines the
factual record and reasonable inferences therefrom in the
light most favorable to the party opposing summary
judgment.” Hartwell v. Sw. Cheese Co., No. CV
15-1103 JAP/GJF, 2017 WL 944125, at *2 (D.N.M. Jan. 23,
2017). “Summary judgment is not ‘a disfavored
procedural shortcut but rather [it is] an integral part of
the Federal Rules as a whole, which are designed to secure
the just, speedy, and inexpensive determination of every
action.'” Garcia v. Vilsack, 628 F.Supp.2d
1306, 1308-09 (D.N.M. 2009) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986)).
the movant and the party opposing summary judgment are
obligated to “cit[e] to particular parts of materials
in the record” to support their factual positions.
Fed.R.Civ.P. 56(c)(1)(A). In this district, “[a]ll
material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”
D.N.M.LR-Civ. 56.1(b). Here, Plaintiff Midway does not
specifically controvert the material facts set forth by
Defendant Wagner, but rather argues that some of Wagner's
facts are not material and should be disregarded. Doc.
37 at 5-6. However, “the substantive law will
identity which facts are material.” Amparan v. Lake
Powell Car Rental Cos., 882 F.3d 943, 947 (10th Cir.
2018). Moreover, Plaintiff also does not set forth any of its
own undisputed material facts. Instead, it provides a factual
background that includes information about Wagner's prior
business dealings, which are irrelevant to this motion.
See Doc. 37 at 2-5. Defendant's material facts
are thus deemed undisputed, and there are no genuine disputes
as to any fact material to the resolution of Defendant's
UNDISPUTED MATERIAL FACTS
2012 and 2015 Wagner acquired land in Albuquerque to build a
new facility. Doc. 34, Undisputed Material Fact
(“UMF”) D. In June 2015, Midway and Wagner
entered into a consulting agreement whereby Midway would
perform advisory services in connection with Wagner's
development of its new property in Bernalillo County. UMF E.
On July 29, 2015, Midway and Wagner reached an additional
agreement, beyond the initial consulting agreement, for
Midway to assist Wagner in obtaining IRBs from the County for
Wagner's new property. UMFs J, K. As compensation, Midway
asserts that Wagner agreed to pay it 18% of the property tax
savings from the IRB awards each year for the succeeding 30
years. UMFs W, X. Midway's calculation for the value of
its services on the IRB project is ‘the present value
of the agreed percentage of actual tax savings realized by
Wagner over the life of the IRBs.” UMF CC.
described its duties on the IRB project as both
administrative and political. UMF O. Midway's
administrative duties included coordinating Wagner's
provision of information to the County to facilitate the
County's evaluation of Wagner's IRB application. UMF
P. Midway's political duties included working to obtain
three votes of the Bernalillo County Commission in order to
ultimately obtain IRBs from the County of Bernalillo. UMFs Q,
S. Midway did this by communicating with Commissioners,
providing them information, answering their questions, and
persuading them that Wagner's project was a good use of
the County's IRB incentives. UMF Q. These political
activities clearly fall within the definition of lobbying.
See, e.g., Black's Law Dictionary (6th ed. 1990)
(stating that “lobbying” means “[a]ll
attempts including personal solicitation to induce
legislators to vote in a certain way or to introduce
legislation”); see also NMSA § 2-11-2(D)
(stating that the definition of “lobbying”
includes “attempting to influence . . . an official
principal, D. McCall, “believed he could lay the
groundwork to make sure that [Wagner] obtained a majority
vote on the county commission.” UMF Q. Indeed, the
Bernalillo County Commission unanimously approved
Wagner's IRB application on October 27, 2015, and the
County enacted an ordinance authorizing issuance of the IRBs.
Mexico has a strong public policy in favor of freedom of
contract.Berlangieri v. Running Elk Corp.,
2003-NMSC-024, ¶ 20, 76 P.3d 1098. However,
“[c]ontracts in violation of the public policy of the
state cannot be enforced.” City of Artesia v.
Carter, 1980-NMCA-006, ¶ 12, 610 P.2d 198.
Contracts “are not to be held as void being contrary to
public policy, unless they are clearly contrary to what the
legislature or judicial decision has declared to be the
public policy, or they manifestly tend to injure the public
in some way.” K.R. Swerdfeger Constr. v. UNM Bd. of
Regents, 2006-NMCA-117, ¶ 23, 142 P.3d 962 (citing
Berlangieri v. Running Elk Corp., 2002-NMCA-060,
¶ 11, 48 P.3d 70, aff'd, 200 ...