This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

BILL CAVALIERE, 2 Plaintiff-Appellant, 3

v. NO. 31,531 4

NEW MEXICO INSTITUTE OF MINING 5 and TECHNOLOGY, through its 6 BOARD OF REGENTS, 7 Defendant-Appellee. 8

APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY 9 J.C. Robinson, District Judge 10 Caren I. Friedman 11 Santa Fe, NM 12 The Pickett Law Firm 13 Lawrence M. Pickett 14 Las Cruces, NM 15 for Appellant 16 Sandenaw Law Firm, P.C. 172 T.A. Sandenaw, Jr. 1 Las Cruces, NM 2 for Appellee 3 MEMORANDUM OPINION 4 HANISEE, Judge. 5 {1} Bill Cavaliere (Plaintiff) sued the Ne w Mexico Institute of Mining and 6 Technology (Defendant) for breach of employment contract and im plied covenant of 7 good faith and fair dealing. After trial, Defendant moved for judgment as a matter of 8 law, pursuant to Rule 1-050 NMRA. The distri ct court directed a verdict in favor of 9 Defendant and dismissed Plaintiff’s claims with prejudice. Plaintiff appeals, arguing 10 that the district court’s ruling improperly resolved conflicting evidence regarding the 11 existence and breach of an employment c ontract between the parties and thereby 12 denied him his constitutional right to a trial by jury. Because we determine that 13 judgment as a matter of law was improper, we reverse and remand for a new trial. 14 BACKGROUND 15 {2} In 2008 Plaintiff filed a lawsuit agai nst Defendant alleging that Defendant 16 breached an employment contract it had entered into with Plaintiff. Plaintiff sought 17 monetary and exemplary damages, and demanded a jury trial. Among the facts alleged 18 by Plaintiff in support of his complaint, he specifically asserted that in Fall 2003 191 The record reflects the use of various terms to describe the position that 18 Plaintiff alleges Defendant o ffered him. For the purposes of clarity, we use the term 19 “associate chief” as it appears to be the title agreed upon by the parties. 20 3 Defendant’s program manager offered him a j ob as captain or assistant chief of police 1 at Defendant’s Playas campus location. 1 Plaintiff claimed that he accepted the position 2 and commenced his responsibilities as asso ciate chief in October 2004, but that 3 approximately a year later, another individual was hired for the job and replaced him. 4 Plaintiff filed an administrative grievan ce in late 2005 regarding the hiring of his 5 replacement, but his complaint was rejectedby Defendant’s Board of Regents. Having 6 exhausted his administrative remedies, Plain tiff filed his complaint in the instant case. 7 {3} Defendant initially moved unsuccessfully to dismiss Plaintiff’s action for lack 8 of subject matter jurisdiction and failure to state a claim upon which relief can be 9 granted, pursuant to Rules 1-012(B)(1), (6) NMRA, respectively. Defendant then 10 answered Plaintiff’s complaint, and again sought dismissal, this time premised upon 11 assertions that the statute of limitations had expired and that Defendant was immune 12 from being sued based upon its status as a governmental entity under NMSA 1978, 13 § 37-1-23 (1976). Defendant also sought su mmary judgment based on the absence of 14 genuine issues of material fact; that Plai ntiff was “never hired to fill the claimed 15 position pursuant to any written contract;” and again asserting governmental immunity 16 from suit. The district court denied De fendant’s motion for summary judgment and 174 an ensuing motion for reconsideration, ba sed upon the district court’s conclusion that 1 “[t]here are questions of fact for a jury to decide.” 2 {4} The case proceeded to a jury trial, during which Plaintiff testified that he was 3 offered the position of chief of police inFall 2003 by Defendant’s program manager, 4 Michael Hensley, who reaffirmed the offer during a subsequent meeting in early 2004. 5 Although Plaintiff conceded during trial that Hensley later informed him that the chief 6 position was already occupied, and his title would be “associate chief” instead of 7 chief. Plaintiff testified that he “was satisfied with that” position and accepted the 8 offer. Plaintiff presented corroborating testimony of both RichUpshaw, another 9 employee of Defendant, and John McCarty, a witness who was present at one of the 10 meetings with Hensley. Upshaw tes tified that it was common knowledge that 11 Defendant, specifically through Hensley, wa s offering “positions to certain people.” 12 McCarty testified directly that his impression of the convers ation he witnessed 13 between Hensley and Plaintiff was that Hens ley “wanted [Plaintiff] to be the chief or 14 to be the officer in charge.” On cross-examination, he further stated, “it sounded very 15 clear to me that [Plaintiff] was actually offered that job.” 16 {5} Plaintiff additionally testified that Loui s Latasa, the director or chief of campus 17 police, confirmed Plaintiff’s position as associate chief on numerous occasions 18 throughout late 2004 and into early 2005. However, during Summer 2005, Plaintiff 195 testified he heard that the associate chie f’s position would instead be filled by the man 1 who ultimately replaced him, Richard Gomez. Plaintiff stated that when he confronted 2 Latasa about this informati on, Latasa denied its truth; however, Defendant hired 3 Gomez for the associate chief position and Gomez commenced his duties in January 4 2006. Although he was no longer employed as a ssociate chief, Plaintiff testified that 5 he remained working for the police department at the Playas campus. 6 {6} At the conclusion of Plaintiff’s case, Defendant moved for a directed verdict 7 pursuant to Rule 1-050. The district court de nied the motion because “if, at this point, 8 you considered the evidence in the light most favorable to [P]laintiff that the jury 9 could determine facts in his favor.” Duri ng its presentation of evidence, Defendant 10 called Hensley to testify and offered the deposition tes timony of Latasa. In court, 11 Hensley testified that he ne ver offered the associate chie f position to Plaintiff and that 12 he had “no authority to offer any job, much less a job at that level.” When confronted 13 with Plaintiff’s contrary testimony, Hensley stated, “[Plaintiff] has what his version 14 of something is, and I’m telling you . . . th e truth.” Similarly, during his deposition, 15 Latasa testified that he never talked to Plaintiff about being an associate chief because 16 “[t]here was no way that could be done.” He also testified that he never confirmed the 17 associate chief position with Plaintiff becau se “there was no need for an associate 18 director” and informed Plaintiff that his position would be that of a police officer. 196 Even though Latasa testified that he wa s in charge of hiring law enforcement 1 employees, he asserted that he “didn’t hire [Plaintiff].” When asked who hired 2 Plaintiff, Latasa responded with “according to [Plaintiff], Michael Hensley.” 3 However, Latasa could not provide any additional inform ation regarding Plaintiff’s 4 title apart from the fact that “[Plaintiff] was hired on the spot.” 5 {7} When both sides rested, Defendant agai n sought directed verdict, arguing that 6 “reasonable jurors would not be able to find the existence of a written contract of 7 employment for the position that [P]laintiff asserts an entitlement, and for which he 8 claims there has been a breach of contract.” In discussing the motion, the district court 9 observed that the “only evidence on [Plaintiff’s ] side . . . is the testimony of himself, 10 that he thought that when a police departme nt got started up thatLatasa and Hensley 11 told him he was going to be chief. And both Hensley and Latasa denied that. So it’s 12 evenly divided.” The district court further stated, “[t]here’s no question that there’s 13 an employment contract[,]” but indicated th at “I don’t think that there’s any evidence 14 that there was an agreement to hire him as associate chie f.” Over Plaintiff’s objection, 15 the court concluded, “I don’t think that Hensley hired him. And there’s nothing to 16 show that he had the authority.” The distri ct court found that there was not “evidence[] 17 sufficient to submit to the jury” and grante d Defendant’s motion for directed verdict, 18 dismissing Plaintiff’s claims with prejudice. 197 DISCUSSION 1 {8} On appeal, Plaintiff asserts error only withregard to the district court’s directed 2 verdict. “A directed verdict is a drastic measure that is generally disfavored inasmuch 3 as it may interfere with the jury function and intrude on a litigant’s right to a trial by 4 jury.” Torres v. El Paso Elec. Co. , 1999-NMSC-029, ¶ 26, 127 N.M. 729, 987 P.2d 5 386, overruled on other grounds by Herrera v. Quality Pontiac , 2003-NMSC-018, 6 134 N.M. 43, 73 P.3d 181. It is an appropriate remedy only “when there are no true 7 issues of fact to be presented to a jury ” and where “it is clear that the facts and 8 inferences are so strongly and overwhelmingly in favor of the moving party that the 9 judge believes that reasonable people coul d not arrive at a contrary result.” Torres , 10 1999-NMSC-029, ¶ 26 (internal quotation mark s and citation omitted). Our review is 11 de novo; however, we “consider all evid ence, insofar as the properly admitted 12 evidence is uncontroverted, and all reasonabl e inferences deducible therefrom in a 13 light most favorable to the party resisting the motion.” Id. (internal quotation marks 14 and citation omitted). 15 {9} Appealing the district court’s adverse ruling following the presentation of all 16 evidence and immediately before the jurywas to undertake its factfinding role, 17 Plaintiff contends that plainly conflicting evidence existed regarding an implied and 18 breached employment contract with Defendant. Such facts, he contended, constituted 198 an obligatory denial of Defendant’s request for directed verdict. It is undisputed that 1 Plaintiff’s claims to the associate chie f’s position are not contained in a written 2 employment contract; however, Pl aintiff contends that an implied contract was created 3 between the parties. Our Supreme Court has held that a “valid written contract[]” may 4 be implied. See Garcia v. Middle Rio Grande Conservancy Dist. , 1996-NMSC-029, 5 ¶¶ 14-15, 121 N.M. 728, 918 P.2d 7. “Whether an implied employment contract exists 6 is a question of fact, and it may be f ound in written representations such as an 7 employee handbook, in oral representations, inthe conduct of the parties, or in a 8 combination of representations and conduct.” Id. ¶ 10 (emphasis, internal quotation 9 marks, and citation omitted), citing Newberry v. Allied Stores, Inc. , 1989-NMSC-024, 10 ¶ 10, 108 N.M. 424, 773 P.2d 1231 (stating that animplied contract is an agreement 11 in which the parties, by co urse of conduct, have show n an intention to be bound by 12 agreement). 13 {10} In interpreting the record most favorablyto Plaintiff, as our Supreme Court’s 14 precedent requires, we determine that ev idence was presented during trial upon which 15 a jury could return a verdict in Plaintif f’s favor. “That such a recovery may appear 16 remote to the presiding judge should not deprive a party of a jury determination.” W. 17 States Mech. Contractors , Inc. v. Sandia Corp. , 1990-NMCA-094, ¶ 16, 110 N.M. 18 676, 798 P.2d 1062. Both Plaintiff’s and McCarty’s testimony lent support to 199 Plaintiff’s claim of the ex istence of an implied employment contract. The testimony 1 could be viewed by a jury to support a conc lusion that the program manager, Hensley, 2 offered Plaintiff the position of associate chief in spite of the absence of this 3 specificity in Plaintiff’s employment app lication or personnel forms and in spite of 4 Defendant’s contradictory witness testimony. Indeed, whether an implied contract 5 existed between the parties is a questi on of fact for the jury to decide. Garcia , 1996- 6 NMSC-029, ¶ 10. “The criteria are not what the jury could have concluded, but 7 whether they could have conc luded in any other way than for the beneficiary of the 8 directed verdict.” W. States Mech. Contractors , Inc. , 1990-NMCA-094, ¶ 17. 9 Accordingly, the district court’s determination that “[t]here was no substantial, 10 credible evidence of a written or oral contractto hire Plaintiff as . . . associate chief” 11 was error as witness credibility falls within the purview of the ju ry as the factfinder. 12 See Beavers v. Johnson Controls World Servs. , Inc. , 1995-NMCA-070, ¶ 43, 120 13 N.M. 343, 901 P.2d 761 (“[I]t is the province of the jury to determine the credibility 14 of the witnesses, reconcile inconsistent or contradictory testimony, and determine 15 where the truth lies.”). 16 {11} Defendant argues that the district court did not err in granting the directed 17 verdict because any oral promises asserted by Plaintiff were inconsistent with one of 18 several personnel action forms. Defendant argues that any inconsistencies between the 1910 purported oral promises and the written contract rendered the oral promises 1 unenforceable under Section 37-1-23(A). In s upport of its argument, Defendant cites 2 Trujillo v. Gonzalez , which holds that where parties have “[left] portions of written 3 contracts to oral expression, . . . oral e xpressions are legally significant only if they 4 are not contradictory and havesome effect upon interpretati on, application[ ,] and legal 5 operation of the written portion.” 1987-NM SC-119, ¶ 7, 106 N.M. 620, 747 P.2d 915 6 (emphasis omitted). We disagree with Defendant’s arguments on two bases. First, we 7 note that Trujillo is not analogous to the cas e before us. The issue in Trujillo was 8 whether the district court erred in granting a motion to dismiss the complaint for 9 failure to allege a valid written contract and whether the court should have allowed 10 extrinsic evidence of oral promises in order to determine the term of employment. Id. 11 ¶¶ 4, 6. In the case before us however, Defendant filed a motion to dismiss on the 12 basis that “no express, validwritten contract . . . support[ed] Plaintiff’s claim[.]” The 13 district court denied this motion and proceeded to hear extrinsic evidence through 14 witness testimony as to the existence or nonexistence of an implied employment 15 contract. 16 {12} Secondly, we do not accept Defendant’s contention that the written 17 documentation in the case is legally contradictory to Plaintiff’s assertion of oral 18 promises, rendering the oral promises unenforceable. In support of this argument, 1911 Defendant specifically points to Plaintiff’s application for employment in which he 1 listed the position he was seeking as “[l]awenforcement” and a personnel action form 2 where Plaintiff’s position is listed as “town site police officer.” Defendant asserts that 3 this personnel action form is the written c ontract; however, upon review of the record, 4 a subsequent personnel action form reveal s that Plaintiff’s “position title” was left 5 blank. The record additionally indicates that Defendant listed Plaintiff’s position as 6 “police chief” on one of its own official “annual off-campus receipt” forms. 7 Accordingly, Defendant’s own documen tation appears to harbor significant 8 inconsistency. 9 {13} Unlike the situation in Trujillo where the written documentation and the oral 10 promises were demonstrably inconsistent inthis case, there is discord within the 11 written documentation itself. The documents do not establish that Defendant did not 12 offer or hire Plaintiff for the associate ch ief position, nor do they establish Plaintiff’s 13 actual position title such that a reasonable jury could not find otherwise. See Melnick 14 v. State Farm Mut. Auto. Ins. Co. , 1988-NMSC-012, ¶ 11, 106 N.M. 726, 749 P.2d 15 1105 (A trial court should not grant a motion for directed verdict unless it is clear that 16 “the facts and inferences are so strongly and overwhelmingly in favor of the moving 17 party that the judge believes that reasonable people could not arrive at a contrary 18 result”). We conclude thatbased on the inconsistenc y within Defendant’s own 1912 documentation, along with the oral communications testified to by Plaintiff and 1 McCarty, a jury could have concluded that an implied contract existed between the 2 parties. See Trujillo , 1987-NMSC-119, ¶ 7. Accordingly, it was improper for the 3 district court to direct a verdict on the basis that “[t]here was no substantial [or] 4 credible evidence of a written or oral contract to hire Plaintiff as . . . associate chief.” 5 See Garcia , 1996-NMSC-029, ¶ 10. 6 {14} Defendant lastly contends that his employee handbook did not create an implied 7 contract that Plaintiff would be hired as the associate chief. De fendant argues as well 8 that no evidence was presented that th e handbook is “position explicit[,]” requiring 9 that Plaintiff be hired to serve in the speci fic position of associate chief. Again, we are 10 unpersuaded. Garciamakes very clear that an im plied employment contract can be 11 “found in written representations such as an employee handbook, in oral 12 representations, in the conduct of the partie s, or in a combination of representations 13 and conduct.” Id. (emphasis, internal quotation marks, and citation omitted). Thus, 14 whether an implied contract existed betweenthe parties is not limited to the employee 15 handbook, and in this case, the primary dis pute between the parties appears to be not 16 with the provisions of the employment handbook, but with whether or not Plaintiff 17 was orally offered the position of associate chief by Hensley. 1813 {15} Because we have determined that the i ssue of whether an implied employment 1 contract existed between the parties should have been left to the jury to decide and 2 remand for a new trial, we decline to address the parties’ remaining arguments 3 regarding whether Defendant breachedthe contract in hiring Gomez. 4 CONCLUSION 5 {16} The directed verdict is reversed, and th e case is remanded to the district court 6 for a new trial. 7 {17} IT IS SO ORDERED. 8

9 J. MILES HANISEE, Judge 10

WE CONCUR: 11

_________________________________ 12 RODERICK T. KENNEDY, Chief Judge 13

_________________________________ 14 CYNTHIA A. FRY, Judge 15