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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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 LEE CLOCKMAN, 2 Plaintiff-Appellant/Cross-Appellee, 3 v. No. 35,690 4 BARBARA MARBURGER, and 5 SLOAN FINE ART, LLC, 6 Defendants-Appellees /Cross-Appellants, 7 and 8 LUBA DELUCA, and 9 MOSIONZHNIK FINE ART, LLC 10 d/b/a MFA, LLC, 11 Defendants-Appellees. 12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 13 Sarah C. Backus, District Judge 14 Natelson Law Firm 15 Stephen Natelson 16 Taos, NM 17 for Appellant 18 Catron, Catron & Glassman, P.A. 19 Richard Glassman 20 Santa Fe, NM 212 for Appellees 1

MEMORANDUM OPINION 2 VANZI, Chief Judge. 3 {1} Plaintiff appeals from the district court’s order dismissing all of his claims 4 against Defendants Luba DeLuca and Mo sionzhnik Fine Art, LLC, d/b/a MFA, LLC 5 (collectively, MFA Defendants), as well as from the district court’s order dismissing 6 some, but not all, of his claims against Defendants Barbara Mar burger and Sloan Fine 7 Art, LLC (collectively, Sloan Defendants) . Sloan Defendants cross-appeal from the 8 portion of the district court’s order denyi ng their motion to dismiss Plaintiff’s breach 9 of contract claim, as well as from a prev ious order of the district court denying 10 Marburger’s motion to dismiss. This Court issued a calendar notice proposing 11 summary dismissal in part, summary affirman ce in part, and summary reversal in part. 12 [CN 2] 13 {2} In our calendar notice, we initially addressed the issue of finality with respect 14 to the portion of Plaintiff’s appeal challeng ing the district court’s dismissal of his 15 claims against Sloan Defendants, as well as Sloan Defendants’ cross-appeal. [CN 2-4] 16 For the reasons detailed in our calendar noti ce, we proposed to dismiss these appeals 17 for lack of a final, appealable order. [CN 4] Having received no memoranda in 184 opposition to our proposed disposition, we dismiss. See Hennessy v. Duryea , 1998- 1 NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“ Our courts have repeatedly held 2 that, in summary calendar cases, the burden is on the party opposing the proposed 3 disposition to clearly point out errors in fact or law.”). 4 {3} Similarly, we proposed to affirm the district court’s dismissal of Plaintiff’s 5 prima facie tort claim against MFA Defe ndants. [CN 9] Again, having received no 6 memorandum in opposition to our proposed disposition, we affirm. See Hennessy , 7 1998-NMCA-036, ¶ 24. 8 {4} With respect to Plaintiff’s challenge to the district court’s dismissal of his 9 tortious interference with a contract and civil conspiracy claims against MFA 10 Defendants, we proposed summary reversal. [CN 10] MFA Defendants filed a 11 memorandum in opposition to this Court’s proposed disposition, which we have duly 12 considered. Unpersuaded, we reverse. 13 {5} Specifically, as we noted in our calendar notice, a motion to dismiss tests the 14 legal sufficiency of the complaint. [CN 5] Healthsource, Inc. v. X-Ray Assocs. of 15 N.M. , 2005-NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861. For purposes of Rule 1- 16 012(B)(6) NMRA, we accept all well-pleaded f acts as true and evaluate whether the 17 claimant could prevail under any state of facts that might be proven in accordance 18 with the allegations of the complaint. [CN 5] N.M. Life Ins. Guar. Ass’n v. Quinn & 19 Co. , 1991-NMSC-036, ¶ 5, 111 N.M. 750, 809 P.2d 1278. A complaint should not be 205 dismissed unless there is a total failure to allege some matter essential to the relief 1 sought. Las Luminarias of the N.M. Council of the Blind v. Isengard , 1978-NMCA2 117, ¶ 3, 92 N.M. 297, 587 P. 2d 444. [CN 5] Motions to dismiss are infrequently 3 granted. [CN 5] Id . We review rulings on Rule 1- 012(B)(6) motions de novo. [CN 5] 4 Derringer v. State , 2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961. 5 {6} With respect to Plaintiff’s claim of tortious interference with a contract, he must 6 prove that (1) MFA Defendant s had knowledge of the contr act between Plaintiff and 7 Sloan Defendants; (2) performance of the c ontract was refused; (3) MFA Defendants 8 played an active and substantial part in cau sing Plaintiff to lose the benefits of his 9 contract; (4) damages flowed from the breached contract; and (5) MFA Defendants 10 induced the breach without justificati on or privilege to do so. [CN 6-7] See Ettenson 11 v. Burke , 2001-NMCA-003, ¶ 14, 130 N.M. 67, 17 P.3d 440. To establish a lack of 12 justification or privilege, there must beevidence that MFA Defendants acted with 13 either an improper motive or by improper means. [CN 7] See Guest v. Berardinelli , 14 2008-NMCA-144, ¶ 32, 145 N.M. 186, 195 P.3d 353; see also M&M Rental Tools, 15 Inc. v. Milchem, Inc. , 1980-NMCA-072, ¶ 38, 94 N.M . 449, 612 P.2d 241 (holding 16 that the plaintiff “has the burden of proving the interference was improper”). 17 {7} In our calendar notice, we suggested that it appeared that Plaintiff has pled facts 18 in his complaint bearing on MFA Defendants’ knowledge of Sloan’s agreement to pay 19 a commission to Plaintiff and the alleged inducement of Sloan Defendants to breach 206 the agreement, and that he was damaged by such interference. [CN 8] Mindful that our 1 rules of civil procedure require only notice pleading, and that the complaint need not 2 detail the factual basis for the allegations, see Trujillo v. Puro , 1984-NMCA-050, ¶ 3 34, 101 N.M. 408, 683 P.2d 963, we suggested that it appeared that Plaintiff could be 4 “entitled to relief under any state of facts provable under the claim” and that improper 5 motive or means can be reasonably inferred at this point from the alleged unjustified 6 and unprivileged inducement. [CN 8] Id. ¶ 31; see Derringer , 2003-NMCA-073, ¶ 5 7 (stating that all that is required is that “the essential elements prerequisite to the 8 granting of the relief sought can befound or reasonably inferred”). {8} In their 9 memorandum in opposition, MFA Defendants essentially argue the following: (1) 10 Plaintiff did not allege improper means or motive in his first amended complaint, and 11 this Court’s proposed determination that improper means or motive could be inferred 12 from the allegations in the complaint is improper because Plaintiff did not file his 13 complaint pro se [MIO 2-5]; (2) improper means or motive are primary elements, and 14 must be pled, not inferred [M IO 5-7]; and (3) Plaintiff doe s not believe that he needs 15 to prove improper means or motive [MIO 7- 8]. We address each of these contentions 16 in turn. 17 {9} First, we are in agreement with MFA Defendants that Plaintiff did not 18 specifically plead improper means or motive. [ See CN 8] However, we are not 19 convinced that we were inco rrect in our determination that improper means or motive 207 can be reasonably inferred at this point fro m Plaintiff’s allegation that the inducement 1 was unjustified and unprivileged. See Derringer , 2003-NMCA-073, ¶ 5. MFA 2 Defendants argue that such an “inferential approach” applies only to pro se 3 complainants, citing us to Derringer , Birdo v. Rodriguez , 1972-NMSC-062, 84 N.M. 4 207, 501 P.2d 195, and Ramer v. Place-Gallegos , 1994-NMCA-101, 118 N.M. 363, 5 881 P.2d 723, overruled on other grounds by Spect ron Dev. Lab. v. Am. Hollow 6 Boring Co. , 1997-NMCA-025, 123 N.M. 170, 936 P. 2d 852. [MIO 3-5] While it is 7 true that each of those cases illustrates th e court’s use of inferences in finding the 8 essential elements in a pro se complaint, th ere is no indication in any of the cited cases 9 that the inferential approach is limited to pro se complaints. In fact, Ramer states that 10 “[e]ven where the plaintiff is pro se, the ‘pleadings, however inartfully expressed, 11 must tell a story from which, looking to s ubstance rather than form, the essential 12 elements prerequisite to the granting of the relief sought can be found or reasonably 13 inferred.’ ” 1994-NMCA-101, ¶ 8 (quoting Birdo , 1972-NMSC-062, ¶ 6). Clearly, 14 Ramer ’s use of the phrase “even wh ere the plaintiff is pro se” expresses the notion that 15 the rule is not limited to pro se complainants. Linguistic c oncepts aside, in America 16 Federation of State, County and Muni cipal Employees Council 18 v. State , a case not 17 involving a pro se complainant, this Court reiterated that all that is required to survive 18 a motion to dismiss for failure to state a claim under Rule 1-012(B )(6) is that “the 19 essential elements prerequisite to the granting of the relief sought can be found or 208 reasonably inferred.” 2013-NMCA-106, ¶ 6, 314 P.3d 674 (internal quotation marks 1 and citation omitted). Consequently, we are not persuaded that our inference in this 2 case was improper. 3 {10} Next, along the same lines, MFA Defendant s contend that “the improper means 4 or motive element is a primary, and not s econdary, element of the tort” [MIO 5], and 5 thus cannot be inferred, instead, improper means or motive must be alleged “from the 6 start” [MIO 7]. Notably, however, MFA Defendants do not explain what they mean 7 by primary versus secondary elements of a tort or how this distinction affects our 8 holding that a complaint survives a Rule1-012(B)(6) motion to dismiss if “the 9 essential elements prerequisite to the granting of the relief sought can be found or 10 reasonably inferred.” Am. Fed’n of State, Cnty. & Mun. Emps. Council 18 , 2013- 11 NMCA-106, ¶ 6, 314 P.3d 674 (citation omitted). 12 {11} MFA Defendants cite three cases in support of their position. [MIO 5-6] The 13 first, M&M Rental Tools, Inc. , 1980-NMCA-072, ¶ 38, states that a plaintiff has the 14 burden of proving improper means or motive. While this may be true, there is nothing 15 in the case that indicates that improper mean s or motive must be pled with specificity 16 or that a court cannot infer improper mean s or motive from the allegations in the 17 complaint. Furthermore, although MFA De fendants couch the burden of proof as 18 establishing improper means or motive to “be the primary driver[s] of this tort,” thus 19 relegating the requirement that the inducemen t be done with lack of justification or 209 privilege to a “secondary issue” [MIO 6] , we note that our case law continues to 1 consider lack of justification or privilege tobe an element of tortious interference with 2 a contract. See Ettenson , 2001-NMCA-003, ¶ 14. Next, MFA Defendants cite Wills 3 v. Bd. of Regents of Univ. of N.M. , 2015-NMCA-105, 357 P.3d 453, for the 4 proposition that “the details of the allegations set forth in the complaint do matter” and 5 state that this Court was correct in affirmi ng the dismissal of the plaintiff’s claim for 6 failure to allege protected whistleblow er activity. [MIO 6-7] Our review of Wills 7 reveals, however, that this Court first in ferred plaintiff’s theory that his actions 8 constituted whistleblower activity from his complaint. See id. ¶ 16. We then went on 9 to evaluate that theory for legal sufficien cy, as contemplated by Rule 1-012(B)(6), and 10 affirm the district court’s determinati on that the plaintiff’s theory was legally 11 deficient. See Wills , 2015-NMCA-105, ¶¶ 17-21; see also Healthsource, Inc. , 2005- 12 NMCA-097, ¶ 16 (stating that a motion to dismiss tests the legal sufficiency of the 13 complaint). Thus, we are not convinced by Willsthat our proposed disposition is 14 incorrect. Likewise, we are unconvin ced by MFA Defendants’ citation to 15 Healthsource, Inc. , 2005-NMCA-097, without a pinpoi nt, for the general proposition 16 that “a district court must evaluate even a stated cause of action.” [MIO 6] For the 17 reasons detailed in our calendar notice and in this opinion, our evaluation of Plaintiff’s 18 complaint indicates that he has not failed tostate a claim for tortious interference with 19 a contract. See Delfino v. Griffo , 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 2010 (stating that appellate courts must resolve all doubts in favor of the sufficiency of the 1 complaint). Therefore, we are not convinced that our proposed disposition was 2 incorrect. 3 {12} MFA Defendants’ last argument with resp ect to the tortious interference with 4 a contract claim is that Plaintiff does notbelieve he must prove improper means or 5 motive and that we should therefore not infer improper means or motive from the 6 complaint. [MIO 7-8] Notably, this argument is not accompanied by supporting 7 authority. Thus, we are not convinced th at our proposed disposition was incorrect. See 8 In re Adoption of Doe , 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating 9 that where a party cites no authority to support an argument, we may assume no such 10 authority exists); Hennessy , 1998-NMCA-036, ¶ 24. However, we remind Plaintiff 11 that he has the burden of proving improper means or motive in order to establish that 12 MFA Defendants’ inducement of the breach of contract was without justification or 13 privilege, see M&M Rental Tools, Inc. , 1980-NMCA-072, ¶ 38, and if the evidence 14 is not sufficient, MFA Defendants have the option of pursuing summary judgment. Cf. 15 Valles v. Silverman , 2004-NMCA-019, ¶¶ 24, 29, 135 N.M. 91, 84 P.3d 1056 16 (reminding the plaintiffs that if it was determined, after discovery, that there was 17 insufficient evidence to prove an essential element of their claim, the defendant had 18 the option of pursuing summary judgment). 1911 {13} Lastly, with respect to our proposed revers al of the district court’s dismissal of 1 Plaintiff’s civil conspiracy claim [ see CN 9-10], MFA Defendants simply argue that 2 we should instead affirm the dismissal if we change our proposed disposition on 3 Plaintiff’s tortious interference with a contract claim [MIO 8-9]. For the reasons laid 4 out in our calendar notice, and because we are reversing the dismissal on the tortious 5 interference claim, we reverse the dismissal of the civil conspiracy claim as well. 6 {14} Accordingly, we dismiss the portion of Plaintiff’s appeal challenging the 7 district court’s dismissal of his claims against Sloan Defendants, as well as Sloan 8 Defendants’ cross-appeal, for lack of a final, appealable order; weaffirm the district 9 court’s dismissal of Plaintiff’s prima facie to rt claim; we reverse the district court’s 10 dismissal of Plaintiff’s tortious interfere nce with a contract and civil conspiracy 11 claims; and we remand to the district court for further proceedings. 12

{15} IT IS SO ORDERED. 13

__________________________________ 14 LINDA M. VANZI, Chief Judge 15 WE CONCUR: 16

_________________________________ 17 JAMES J. WECHSLER, Judge 1812 _________________________________ 1 STEPHEN G. FRENCH, Judge 2