United States District Court, D. New Mexico
DON SALAZAR and ANDREA SALAZAR, individuals, d/b/a C&S TRUCKING CO., Plaintiff,
THE QUIKRETE COMPANIES, LLC, A Delaware limited liability company, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE.
several years of hauling mined material for Defendant
Quikrete Companies, LLC (Quikrete), Plaintiffs Don and Andrea
Salazar, d/b/a C&S Trucking Co. (C&S), sued to
recover damages when Quikrete hired a lower-cost competitor
to perform the work in 2018. Despite having no formal
agreement, C&S alleges that it purchased additional
equipment based on Quikrete's representations that
C&S would have rights to the hauling job. Nevertheless,
Quikrete found an alternative mover, and C&S lost this
business. C&S now seeks reliance damages based on its
dealings with Quikrete. In this Memorandum Opinion and Order,
the Court takes up Quikrete's Motion for Summary Judgment
contesting C&S's claims. (Doc. 35.) Given the
illusory promises and C&S's unreasonable reliance,
the Court will grant Quikrete's Motion for Summary
2013, C&S started hauling mined material for Quikrete.
(Doc. 1 (Compl.) ¶ 6.) It moved several thousand tons
from the mine in Monarch Pass, Colorado to Wellsville,
Colorado each year. (Id. ¶ 1.) According to tax
filings, Quikrete paid C&S an average of $239, 817.90 per
year through 2017. (Id. ¶¶ 1, 7.) Revenue
earned throughout this period ranged from $86, 084 at the low
end to a maximum of $393, 492. (Id. ¶ 7.)
performed more hauls for Quikrete, Mr. Salazar left his
employment with Roserock Oil. (Id. ¶ 8.)
Believing that C&S would continue to haul mined material
for Quikrete indefinitely, C&S purchased approximately
$418, 000 worth of equipment in 2014,  including: a
$150, 000 2014 Peterbilt truck; a $44, 000 Rancho Trailer; a
$60, 000 Travis Trailer; and a $165, 000 544 front end
loader. (Id.) C&S used this equipment for the
next few years not only for Quikrete, but also for other
mining companies. (Doc. 35-1 at 145:18-148:13.)
the 2016 and 2017 hauls, however, Super Ex began competing
with Plaintiff for the work. (Id. at 52:18-53:18.)
C&S alleges that it “hauled mined material to
Dallas at Quikrete's request at a reduced haul rate under
duress which caused C&S to lose $80, 917.59, . . .
benefit[ing] Quikrete.” (Doc. 1 ¶ 9.) Despite its
expectation that C&S would continue to haul for Quikrete,
“[o]n or about May 8, 2018, C&S . . . was notified
by a representative of Quikrete (Eric Leigh) that Quickrete
no longer needed [the] mined material hauling services of
C&S.” (Id. ¶ 11.) C&S has not
hauled for Quikrete since December 13, 2017. (Id.
initiated this lawsuit on August 9, 2018, after Quikrete
refused to compensate C&S for its alleged losses.
(Id. ¶ 17.) Plaintiff claims that
“Quikrete knew of C&S's expectation of
continued hauling and also knew that C&S had purchased
the equipment . . . in reliance on C&S's expectation
that it would continue to haul mined material for
Quikrete.” (Id. ¶ 14.) On this basis,
C&S now seeks $739, 735.40 for (i) the 2018 hauling
revenue, (ii) the equipment purchases, and (iii) the reduced
haul rates across 2016-17. (Id. ¶ 18.)
Defendant filed its Motion for Summary Judgment on April 24,
2019, asking the Court to dismiss the claim against it. (Doc.
judgment is appropriate when “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); see also Garrison v. Gambro,
Inc., 428 F.3d 933, 935 (10th Cir. 2005) (reiterating
the standard). A “genuine” issue arises when
“a rational trier of fact could resolve the issue
either way.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (citation omitted). And a
material fact “is essential to the proper disposition
of the claim.” Id. (citation omitted). To
support the motion, the moving party may employ
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations, . . .
admissions, interrogatory answers, or other materials.”
assessing motions for summary judgment, the Court takes all
reasonable inferences in favor of the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The moving party bears
the initial responsibility of “show[ing] that there is
an absence of evidence to support the nonmoving party's
case.” Bacchus Indus., Inc. v. Arvin Indus.,
Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the moving party passes this initial hurdle, “the
burden shifts to the nonmoving party to set forth specific
facts showing that there is a genuine triable issue.”
Johnson v. City of Roswell, 752 Fed.Appx. 646, 649
(10th Cir. 2018) (citing Schneider v. City of Grand
Junction Police Dep't, 717 F.3d 760, 767 (10th Cir.
2013). The purpose of summary judgment is to
“determin[e] whether there is the need for a
trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
diversity action, the Court applies New Mexico choice of law
rules. See Elec. Distrib., Inc. v. SFR, Inc., 166
F.3d 1074, 1083 (10th Cir. 1999). New Mexico utilizes a
lex loci approach to contracts, which looks to the
contracting location-or rather, where the accepting party
agrees to contract. See State Farm Mut. Ins. Co. v.
Conyers, 784 P.2d 986, 991 (N.M. 1989). Here, the
alleged contract arose from communications between offeror
Quikrete in Colorado and offerees Salazars at their home in
New Mexico. (Doc. 35 at 13.) As a result, the Court will
apply New Mexico law.
proceeds with a promissory estoppel theory. In Strata
Prod. Co. v. Mercury Expl. Co., the Supreme Court of New
Mexico provided the promissory estoppel standard. 916 P.2d
822, 828 (N.M. 1996). To make out a prima facie case, a party
(1) An actual promise must have been made which in
fact induced the promisee's action or forbearance; (2)
The promisee's reliance on the promise must have
been reasonable; (3) The promisee's action or
forbearance must have amounted to a substantial change in
position; (4) The promisee's action or forbearance
must have been actually foreseen or reasonably
foreseeable to the ...