This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

EUGENE D. DOWNER, Jr., 7 Plaintiff-Appellant, 8

v. NO. 30,602 9 NEW MEXICO CORRECTIONS 10 DEPARTMENT, 11 Defendant-Appellee. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 James T. Martin, District Judge 14 Eugene D. Downer, Jr. 15 Cloudcroft, NM 16 Pro se Appellant 17 Sandenaw Law Firm, P.C. 18 CaraLyn Banks 19 Las Cruces, NM 20 for Appellee 21

MEMORANDUM OPINION 222 CASTILLO, Judge. 1 Plaintiff appeals from the district court’s order granting summary judgment in 2 favor of Defendant and dismissing his appeal. We issued a calendar notice proposing 3 summary reversal. Defendant has re sponded with a memorandum in opposition, 4 which we have duly considered. We remain unpersuaded, and wetherefore reverse. 5 This is an appeal from a decisi on of the Human Rights Commission (HRC) 6 taken pursuant to Rule 1-076 NMRA. In order to appeal from the HRC’s order 7 finding no probable cause, Plaintiff was required to file a notice of appeal in district 8 court in the form of a civil complaint within ninety days from the date of service of 9 the HRC’s order. SeeNMSA 1978, Section 28-1-13(A) (2005); see also Rule 1- 10 076(B), (D). The district court determined that Plaintiff did not timely file his notice 11 of appeal and dismissed in part on that basis. 12 We review the order dismissing the appeal as an order granting summary 13 judgment because the district court cons idered matters outside the pleadings in 14 granting the motion. [RP 691-700] See Sanchez v. Church of Scientology , 115 N.M. 15 660, 664, 857 P.2d 771, 775 (1993) (stating that the appellate court analyzes a motion 16 to dismiss as a summary judgment motion when matters outside the pleadings are 17 considered). “Summary judgment is appropriate where there are no genuine issues 18 of material fact and the movant is en titled to judgment as a matter of law.” Self v. 193 United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M . 396, 970 P.2d 582 (citation 1 omitted). “We review these legal questions de novo.” Id. 2 In his arguments before the district court on this issue, Plaintiff argued that the 3 ninety-day requirement for filing notice of appeal is not triggered until the decision 4 from the HRC is received, regardless of when it was mailed. [DS 3-4; RP 519] In his 5 response to the motion to dismiss, Plaintiff submitted the determination of no probable 6 cause letter he received from the Departme nt of Workforce Solutions, which states 7 that he has ninety days from receipt of the letter to appeal to the district court. [RP 8 596-598] 9 We hold that this evidence and Plaintiff’s argument before the district court that 10 the time limit in which to filethe appeal began to run on the date he received the 11 notice was sufficient to preclude summary judgment on the issue of the timeliness of 12 the appeal. See Ocana v. Am. Furniture Co. , 2004-NMSC-018, ¶ 20, 135 N.M. 539, 13 91 P.3d 58 (reversing the district court’s grant of summary judgment based on a late 14 notice of appeal in a Rule 1-076 appeal wh ere the plaintiff argued that the time period 15 for filing the notice of appeal did not begi n to run until actual receipt of the decision 16 and there was evidence from which a trier of fact could find that the actions of the 17 HRC tolled the time limits). 18 In its memorandum in opposition, Defendant continues to assert that the appeal 194 procedure clearly establishes that the date of service is the date the decision is mailed. 1 [MIO 2-5] However, for the reasons stat ed in our calendar notice, we disagree. 2 Additionally, even if we accept Defendant’s contention, we believe that Plaintiff’s 3 evidence that the HRC misinformed him that he had ninetydays from receipt of the 4 letter to file his notice of appeal, coupled w ith his arguments to the district court, was 5 sufficient to preclude summary judgment on the issue. See id. 6 Below, the district court alternativel y granted summary judgment to Defendant 7 on the merits. This was improper because De fendant’s motion to dismiss did not state 8 a valid legal basis for the district court to grant summary judgment. The motion was 9 insufficient to meet the requirements of Rule 1-056 NMRA, because it cites to the 10 wrong standard of review, and it does not st ate a legally sufficient basis for granting 11 summary judgment. [RP 241-246] See id. (stating that the movant must establish that 12 it is entitled to judgment as a matter of law). 13 Defendant responds in its memorandum in opposition that, despite its citation 14 to an erroneous standard of review in its motion to dismiss, the motion identified the 15 correct legal basis for granting the motion because it argued that Plaintiff would not 16 be able to make a prima f acie showing as a matter of law, identified the elements of 17 the discrimination and retaliation claims, and supplied the district court with the 18 record before the administrative agency. [MIO 9-10] 195 We disagree. Based on our review of th e record, we see nowhere in the motion 1 to dismiss where Defendant cites to the co rrect legal standard in its argument on the 2 merits of Plaintiff’s appeal. Rather, af ter citing to the standard of review for 3 administrative agency decisions rather th an the applicable denovo review, Defendant 4 argues throughout the motion that HRC’s d ecision should be affirmed based on that 5 standard of review. In the final paragraph of the motion, Defendant again asserts that 6 the district court is limited to reviewing the evidence presented to the administrative 7 agency, and states that any evidence or additional discovery that Plaintiff might 8 present was irrelevant to the district court’s review of the HRC’s decision. [RP 245] 9 See§ 28-1-13(A) (stating that a person aggrieved by an order of the commission may 10 obtain trial de novo in district court); see generally Linton v. Farmington Mun. Schs. , 11 86 N.M. 748, 749-50, 527 P.2d 789, 790-91 (1974) (noting the broader scope district 12 court review of appeals brought under the Human Rights Act compared to those 13 brought under the Administrative Procedures Ac t). We therefore reject Defendant’s 14 argument that the substance of the moti on cited to the correct legal standard. 15 We also reject Defendant’s argument that Plaintiff’s act of attaching evidence 16 to his response to the motion to dismiss indicated that “Plaintiff understood that he 17 needed to submit evidence to establish that he was entitled to bri ng a claim for age and 18 gender discrimination.” [MIO 12] Defendant’s motion to dismiss explicitly and 196 incorrectly states that any evidence Plaintiff might submit would be entirely irrelevant 1 to the district court’s revi ew of the issue. [RP 245] Under these circumstances, we 2 decline to make inferences and speculateregarding Plaintiff’s understanding of the 3 proceedings in order to salvage Defendant ’s legally insufficient summary judgment 4 motion. We therefore decline to treat Defendant’s motion to dismiss as a summary 5 judgment motion, even thought the district court considered matters outside the 6 pleadings in deciding the motion. 7 In its memorandum in opposition, Defendant continues to assert that it 8 subsequently cited to the co rrect standard of review in its reply in support of its 9 motion to dismiss. [MIO 10-11] However, for the reasons stated in our calendar 10 notice, we disagree that this was sufficient to allow Plaintiff an opportunity to respond 11 or to prevent prejudice. 12 We therefore reverse the district court and remand the case for further 13 proceedings. 14 IT IS SO ORDERED. 15

________________________________ 16 CELIA FOY CASTILLO, Judge 17 WE CONCUR: 18

__________________________________ 19 JAMES J. WECHSLER, Judge 207 __________________________________ 1 ROBERT E. ROBLES, Judge 2