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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 LEE CLOCKMAN, 

3 Plaintiff-Appellant/Cross-Appellee,

4 v. No. 35,690

5 BARBARA MARBURGER, and

6 SLOAN FINE ART, LLC,

7 Defendants-Appellees/Cross-Appellants,

8 and

9 LUBA DELUCA, and

10 MOSIONZHNIK FINE ART, LLC

11 d/b/a MFA, LLC, 

12 Defendants-Appellees.

13 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

14 Sarah C. Backus, District Judge

15 Natelson Law Firm

16 Stephen Natelson

17 Taos, NM 

18 for Appellant

19 Catron, Catron & Glassman, P.A.

20 Richard Glassman

21 Santa Fe, NM 
2

1 for Appellees

2 MEMORANDUM OPINION

3 VANZI, Chief Judge.

4 {1} Plaintiff appeals from the district court’s order dismissing all of his claims

5 against Defendants Luba DeLuca and Mosionzhnik Fine Art, LLC, d/b/a MFA, LLC

6 (collectively, MFA Defendants), as well as from the district court’s order dismissing

7 some, but not all, of his claims against Defendants Barbara Marburger and Sloan Fine

8 Art, LLC (collectively, Sloan Defendants). Sloan Defendants cross-appeal from the

9 portion of the district court’s order denying their motion to dismiss Plaintiff’s breach

10 of contract claim, as well as from a previous order of the district court denying

11 Marburger’s motion to dismiss. This Court issued a calendar notice proposing

12 summary dismissal in part, summary affirmance in part, and summary reversal in part.

13 [CN 2]

14 {2} In our calendar notice, we initially addressed the issue of finality with respect

15 to the portion of Plaintiff’s appeal challenging the district court’s dismissal of his

16 claims against Sloan Defendants, as well as Sloan Defendants’ cross-appeal. [CN 2-4]

17 For the reasons detailed in our calendar notice, we proposed to dismiss these appeals

18 for lack of a final, appealable order. [CN 4] Having received no memoranda in
4

1 opposition to our proposed disposition, we dismiss. See Hennessy v. Duryea, 1998-

2 NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held

3 that, in summary calendar cases, the burden is on the party opposing the proposed

4 disposition to clearly point out errors in fact or law.”). 

5 {3} Similarly, we proposed to affirm the district court’s dismissal of Plaintiff’s

6 prima facie tort claim against MFA Defendants. [CN 9] Again, having received no

7 memorandum in opposition to our proposed disposition, we affirm. See Hennessy,

8 1998-NMCA-036, ¶ 24.

9 {4} With respect to Plaintiff’s challenge to the district court’s dismissal of his

10 tortious interference with a contract and civil conspiracy claims against MFA

11 Defendants, we proposed summary reversal. [CN 10] MFA Defendants filed a

12 memorandum in opposition to this Court’s proposed disposition, which we have duly

13 considered. Unpersuaded, we reverse.

14 {5} Specifically, as we noted in our calendar notice, a motion to dismiss tests the

15 legal sufficiency of the complaint. [CN 5] Healthsource, Inc. v. X-Ray Assocs. of

16 N.M., 2005-NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861. For purposes of Rule 1-

17 012(B)(6) NMRA, we accept all well-pleaded facts as true and evaluate whether the

18 claimant could prevail under any state of facts that might be proven in accordance

19 with the allegations of the complaint. [CN 5] N.M. Life Ins. Guar. Ass’n v. Quinn &

20 Co., 1991-NMSC-036, ¶ 5, 111 N.M. 750, 809 P.2d 1278. A complaint should not be
5

1 dismissed unless there is a total failure to allege some matter essential to the relief

2 sought. Las Luminarias of the N.M. Council of the Blind v. Isengard, 1978-NMCA3 117, ¶ 3, 92 N.M. 297, 587 P.2d 444. [CN 5] Motions to dismiss are infrequently

4 granted. [CN 5] Id. We review rulings on Rule 1-012(B)(6) motions de novo. [CN 5]

5 Derringer v. State, 2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961.

6 {6} With respect to Plaintiff’s claim of tortious interference with a contract, he must

7 prove that (1) MFA Defendants had knowledge of the contract between Plaintiff and

8 Sloan Defendants; (2) performance of the contract was refused; (3) MFA Defendants

9 played an active and substantial part in causing Plaintiff to lose the benefits of his

10 contract; (4) damages flowed from the breached contract; and (5) MFA Defendants

11 induced the breach without justification or privilege to do so. [CN 6-7] See Ettenson

12 v. Burke, 2001-NMCA-003, ¶ 14, 130 N.M. 67, 17 P.3d 440. To establish a lack of

13 justification or privilege, there must be evidence that MFA Defendants acted with

14 either an improper motive or by improper means. [CN 7] See Guest v. Berardinelli,

15 2008-NMCA-144, ¶ 32, 145 N.M. 186, 195 P.3d 353; see also M&M Rental Tools,

16 Inc. v. Milchem, Inc., 1980-NMCA-072, ¶ 38, 94 N.M. 449, 612 P.2d 241 (holding

17 that the plaintiff “has the burden of proving the interference was improper”).

18 {7} In our calendar notice, we suggested that it appeared that Plaintiff has pled facts

19 in his complaint bearing on MFA Defendants’ knowledge of Sloan’s agreement to pay

20 a commission to Plaintiff and the alleged inducement of Sloan Defendants to breach
6

1 the agreement, and that he was damaged by such interference. [CN 8] Mindful that our

2 rules of civil procedure require only notice pleading, and that the complaint need not

3 detail the factual basis for the allegations, see Trujillo v. Puro, 1984-NMCA-050, ¶

4 34, 101 N.M. 408, 683 P.2d 963, we suggested that it appeared that Plaintiff could be

5 “entitled to relief under any state of facts provable under the claim” and that improper

6 motive or means can be reasonably inferred at this point from the alleged unjustified

7 and unprivileged inducement. [CN 8] Id. ¶ 31; see Derringer, 2003-NMCA-073, ¶ 5

8 (stating that all that is required is that “the essential elements prerequisite to the

9 granting of the relief sought can be found or reasonably inferred”). {8} In their

10 memorandum in opposition, MFA Defendants essentially argue the following: (1)

11 Plaintiff did not allege improper means or motive in his first amended complaint, and

12 this Court’s proposed determination that improper means or motive could be inferred

13 from the allegations in the complaint is improper because Plaintiff did not file his

14 complaint pro se [MIO 2-5]; (2) improper means or motive are primary elements, and

15 must be pled, not inferred [MIO 5-7]; and (3) Plaintiff does not believe that he needs

16 to prove improper means or motive [MIO 7-8]. We address each of these contentions

17 in turn.

18 {9} First, we are in agreement with MFA Defendants that Plaintiff did not

19 specifically plead improper means or motive. [See CN 8] However, we are not

20 convinced that we were incorrect in our determination that improper means or motive
7

1 can be reasonably inferred at this point from Plaintiff’s allegation that the inducement

2 was unjustified and unprivileged. See Derringer, 2003-NMCA-073, ¶ 5. MFA

3 Defendants argue that such an “inferential approach” applies only to pro se

4 complainants, citing us to Derringer, Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M.

5 207, 501 P.2d 195, and Ramer v. Place-Gallegos, 1994-NMCA-101, 118 N.M. 363,

6 881 P.2d 723, overruled on other grounds by Spectron Dev. Lab. v. Am. Hollow

7 Boring Co., 1997-NMCA-025, 123 N.M. 170, 936 P.2d 852. [MIO 3-5] While it is

8 true that each of those cases illustrates the court’s use of inferences in finding the

9 essential elements in a pro se complaint, there is no indication in any of the cited cases

10 that the inferential approach is limited to pro se complaints. In fact, Ramer states that

11 “[e]ven where the plaintiff is pro se, the ‘pleadings, however inartfully expressed,

12 must tell a story from which, looking to substance rather than form, the essential

13 elements prerequisite to the granting of the relief sought can be found or reasonably

14 inferred.’ ” 1994-NMCA-101, ¶ 8 (quoting Birdo, 1972-NMSC-062, ¶ 6). Clearly,

15 Ramer’s use of the phrase “even where the plaintiff is pro se” expresses the notion that

16 the rule is not limited to pro se complainants. Linguistic concepts aside, in America

17 Federation of State, County and Municipal Employees Council 18 v. State, a case not

18 involving a pro se complainant, this Court reiterated that all that is required to survive

19 a motion to dismiss for failure to state a claim under Rule 1-012(B)(6) is that “the

20 essential elements prerequisite to the granting of the relief sought can be found or
8

1 reasonably inferred.” 2013-NMCA-106, ¶ 6, 314 P.3d 674 (internal quotation marks

2 and citation omitted). Consequently, we are not persuaded that our inference in this

3 case was improper.

4 {10} Next, along the same lines, MFA Defendants contend that “the improper means

5 or motive element is a primary, and not secondary, element of the tort” [MIO 5], and

6 thus cannot be inferred, instead, improper means or motive must be alleged “from the

7 start” [MIO 7]. Notably, however, MFA Defendants do not explain what they mean

8 by primary versus secondary elements of a tort or how this distinction affects our

9 holding that a complaint survives a Rule 1-012(B)(6) motion to dismiss if “the

10 essential elements prerequisite to the granting of the relief sought can be found or

11 reasonably inferred.” Am. Fed’n of State, Cnty. & Mun. Emps. Council 18, 2013-

12 NMCA-106, ¶ 6, 314 P.3d 674 (citation omitted). 

13 {11} MFA Defendants cite three cases in support of their position. [MIO 5-6] The

14 first, M&M Rental Tools, Inc., 1980-NMCA-072, ¶ 38, states that a plaintiff has the

15 burden of proving improper means or motive. While this may be true, there is nothing

16 in the case that indicates that improper means or motive must be pled with specificity

17 or that a court cannot infer improper means or motive from the allegations in the

18 complaint. Furthermore, although MFA Defendants couch the burden of proof as

19 establishing improper means or motive to “be the primary driver[s] of this tort,” thus

20 relegating the requirement that the inducement be done with lack of justification or
9

1 privilege to a “secondary issue” [MIO 6], we note that our case law continues to

2 consider lack of justification or privilege to be an element of tortious interference with

3 a contract. See Ettenson, 2001-NMCA-003, ¶ 14. Next, MFA Defendants cite Wills

4 v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105, 357 P.3d 453, for the

5 proposition that “the details of the allegations set forth in the complaint do matter” and

6 state that this Court was correct in affirming the dismissal of the plaintiff’s claim for

7 failure to allege protected whistleblower activity. [MIO 6-7] Our review of Wills

8 reveals, however, that this Court first inferred plaintiff’s theory that his actions

9 constituted whistleblower activity from his complaint. See id. ¶ 16. We then went on

10 to evaluate that theory for legal sufficiency, as contemplated by Rule 1-012(B)(6), and

11 affirm the district court’s determination that the plaintiff’s theory was legally

12 deficient. See Wills, 2015-NMCA-105, ¶¶ 17-21; see also Healthsource, Inc., 2005-

13 NMCA-097, ¶ 16 (stating that a motion to dismiss tests the legal sufficiency of the

14 complaint). Thus, we are not convinced by Wills that our proposed disposition is

15 incorrect. Likewise, we are unconvinced by MFA Defendants’ citation to

16 Healthsource, Inc., 2005-NMCA-097, without a pinpoint, for the general proposition

17 that “a district court must evaluate even a stated cause of action.” [MIO 6] For the

18 reasons detailed in our calendar notice and in this opinion, our evaluation of Plaintiff’s

19 complaint indicates that he has not failed to state a claim for tortious interference with

20 a contract. See Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917
10

1 (stating that appellate courts must resolve all doubts in favor of the sufficiency of the

2 complaint). Therefore, we are not convinced that our proposed disposition was

3 incorrect.

4 {12} MFA Defendants’ last argument with respect to the tortious interference with

5 a contract claim is that Plaintiff does not believe he must prove improper means or

6 motive and that we should therefore not infer improper means or motive from the

7 complaint. [MIO 7-8] Notably, this argument is not accompanied by supporting

8 authority. Thus, we are not convinced that our proposed disposition was incorrect. See

9 In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating

10 that where a party cites no authority to support an argument, we may assume no such

11 authority exists); Hennessy, 1998-NMCA-036, ¶ 24. However, we remind Plaintiff

12 that he has the burden of proving improper means or motive in order to establish that

13 MFA Defendants’ inducement of the breach of contract was without justification or

14 privilege, see M&M Rental Tools, Inc., 1980-NMCA-072, ¶ 38, and if the evidence

15 is not sufficient, MFA Defendants have the option of pursuing summary judgment. Cf.

16 Valles v. Silverman, 2004-NMCA-019, ¶¶ 24, 29, 135 N.M. 91, 84 P.3d 1056

17 (reminding the plaintiffs that if it was determined, after discovery, that there was

18 insufficient evidence to prove an essential element of their claim, the defendant had

19 the option of pursuing summary judgment).
11

1 {13} Lastly, with respect to our proposed reversal of the district court’s dismissal of

2 Plaintiff’s civil conspiracy claim [see CN 9-10], MFA Defendants simply argue that

3 we should instead affirm the dismissal if we change our proposed disposition on

4 Plaintiff’s tortious interference with a contract claim [MIO 8-9]. For the reasons laid

5 out in our calendar notice, and because we are reversing the dismissal on the tortious

6 interference claim, we reverse the dismissal of the civil conspiracy claim as well. 

7 {14} Accordingly, we dismiss the portion of Plaintiff’s appeal challenging the

8 district court’s dismissal of his claims against Sloan Defendants, as well as Sloan

9 Defendants’ cross-appeal, for lack of a final, appealable order; we affirm the district

10 court’s dismissal of Plaintiff’s prima facie tort claim; we reverse the district court’s

11 dismissal of Plaintiff’s tortious interference with a contract and civil conspiracy

12 claims; and we remand to the district court for further proceedings.

13 {15} IT IS SO ORDERED.

14 __________________________________

15 LINDA M. VANZI, Chief Judge

16 WE CONCUR:

17 _________________________________

18 JAMES J. WECHSLER, Judge
12

1 _________________________________

2 STEPHEN G. FRENCH, Judge