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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

THERESA DUNWORTH, 7 Plaintiff-Appellant, 8

v. NO. 29,080 9 JEFF JESIONOWSKI, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Nan G. Nash, District Judge 13 Michael D. Armstrong 14 Albuquerque, NM 15 for Appellant 16 Robert M. White, City Attorney 17 Peter H. Pierotti, Assistant City Attorney 18 Albuquerque, NM 19 for Appellee 20 MEMORANDUM OPINION 21 VIGIL, Judge. 22 Plaintiff appeals from summary judgment awarded on the basis that the facts 232 do not support Plaintiff’s claim of tortious interference with contractual relations. We 1 affirm. 2 

### FACTS 3 Plaintiff wanted to voice her opposition to a proposed zoning change in her 4 neighborhood which was being consideredby the Albuquerque Environmental 5 Planning Commission (EPC). A public heari ng was scheduled to address the public’s 6 concerns, but Plaintiff was unable to attend the meeting because of a medical 7 appointment. Plaintiff therefore decided to voice her opposition to the proposed 8 change in a letter which she drafted at her residence. 9 The following day Plaintiff copied and pasted the letter she had drafted into her 10 e-mail at work and e-mailed the letter to David Stallworth, a member of the City of 11 Albuquerque’s Planning Departme nt, to be submitted into th e public record. This e12 mail concluded, “Sincerely, Theresa M. Dunworth, Assistant Controller, NMMFA,” 13 and it included her office phone number. 14 Defendant is a member of the EPC and received a copy of the public letter 15 before the public hearing. During the pub lic meeting Defendant criticized Plaintiff 16 for writing her personal concerns duri ng business hours on New Mexico Mortgage 17 Finance Authority (NMMFA) equipment. He said: 18 I would support the motion for approval. And, I would also like to make 19 one other point, ok. And this is a classic lesson of something you should 203 never do, ok. And there’s a letter in here fro m Theresa Dunworth, the 1 assistant controller of the [NMMFA] , who took the time out of her busy 2 day during her job to write a page and a half letter in opposition of this, 3 e-mailed from the [NMMFA]. And I personally take great objection to 4 her having done this. Now I just thi nk the record needs to reflect that. 5 Plaintiff’s father was at the public meeti ng and after hearing Defendant’s statements 6 concerning his daughter, he confronted Defe ndant. Defendant told Plaintiff’s father 7 he was going to contact Plaintiff’s employer concerning the matter. 8 The following day Defendant requested a copy of the e-mail from Mr. 9 Stallworth. Defendant then contacted NMMFA, and obtained the name and e-mail 10 address of NMMFA’s director. Defendant sent a letter to the NMMFA director 11 complaining about Plaintiff’s activities. In the letter, Defendant said: 12 I am a member of the [EPC]. Ye sterday, we heard a case involving a 13 zone change request for a property on Carson Road located in the Old 14 Town area of Albuquerque. Incl uded in the package was this 15 correspondence sent from the Office [of] the [NMMFA], signed by the 16 Assistant Controller, Therese Dunworth. It is upsetting to me that 17 someone in that level of a position would send[—]actually take the time 18 to draft this type of personal correspondence from their office, sign it 19 with their official title and send it from their office email system. This 20 type of activity needs to [be] brought to the attention of the proper level 21 of authority and stopped immediately. It is unprofessional, offensive and 22 inappropriate. I would appreciat e if you would handle the matter 23 accordingly. 24 Plaintiff’s employment at NMMFA was subsequently terminated. 25 Procedural History 26 Plaintiff filed a complaint against Defe ndant alleging tortious interference with 274 contractual relations and defamation. A stipulated order of dismissal of Plaintiff’s 1 claim for defamation was filed and th e defamation claim was dismissed with 2 prejudice. Defendant filed a motion for summary judgment on the remaining claim 3 of tortious interference with contractual relations. Summary judgment was granted 4 and the case was dismissed with prejudice. Plaintiff appeals. 5 SUMMARY JUDGMENT AND STANDARD OF REVIEW 6 Under Rule 1-056(C) NMRA, a party is entitled to summary judgment “if the 7 pleadings, depositions, answers to interrogatories and admissions on file, together 8 with the affidavits, if any, show that ther e is no genuine issue as to any material fact 9 and that the moving party is entitled to a judgment as a matter of law.” See 10 Blauwkamp v. Univ. of N.M. Hosp. , 114 N.M. 228, 232, 836 P.2d 1249, 1253 (Ct. 11 App. 1992) (internal quotation marks omitted). In Romero v. Philip Morris, Inc. , 12 2010-NMSC-___, ¶ 10, ___ N.M. ___, ___ P. 3d ___ (No. 31,433, June 25, 2010), our 13 Supreme Court recently said: 14 In New Mexico, summary judgment may be proper when the 15 moving party has met its initial burden of establishing a prima facie case 16 for summary judgment. See Roth v. Thompson , 113 N.M. 331, 334-35, 17 825 P.2d 1241, 1244-45 (1992). By a prim a facie showing is meant such 18 evidence as is sufficient in law to rais e a presumption of fact or establish 19 the fact in question unless rebutted. Goodman v. Brock , 83 N.M. 789, 20 792-93, 498 P.2d 676, 679-80 (1972) (citations omitted). Once this 21 prima facie showing has been made, the burden shifts to the non-movant 22 to demonstrate the existence of sp ecific evidentiary facts which would 23 require trial on the merits. Roth , 113 N.M. at 335, 825 P.2d at 1245. 245 (internal quotation marks omitted). 1 We review an order granting summary judgment de novo. Self v. United Parcel 2 Serv. Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. 3 INTERFERENCE WITH CONTRACTUAL RELATIONS 4 To prove intentional interference with a contract, a plaintiff must establish that 5 the defendant, “‘without justification or privilege to do so, induces a third person not 6 to perform a contract with another.’” Deflon v. Sawyers , 2006-NMSC-025, ¶ 16, 139 7 N.M. 637, 137 P.3d 577 (quoting Wolf v. Perry , 65 N.M. 457, 461, 339 P.2d 679, 681 8 (1959)). This consists of proof of five elements: (1) the de fendant had knowledge of 9 the contract, (2) the plaintiff was unable to fulfill her contract obligations, (3) the 10 defendant played an active and substantial part in causing the plaintiff to lose the 11 benefits of the contract, (4) the plain tiff suffered damages resulting from the breach, 12 and (5) the defendant induced the breach without justification or privilege to do so. 13 Ettenson v. Burke , 2001-NMCA-003, ¶ 14, 130 N.M. 67, 17 P.3d 440. Additionally, 14 there must be evidence that the defendantacted with either an improper motive or 15 improper means, and the improper motive or improper means were used in persuading 16 the employer to breach the contract. Fikes v. Furst , 2003-NMSC-033, ¶¶ 20, 22, 134 17 N.M. 602, 81 P.3d 545. If the de fendant interfered in some way with the plaintiff’s 18 contract, “[t]he inquiry, in the end, should be to determine the [defendant’s] primary 196 motivation for the interference. If it was prim arily improper, then the [defendant] has 1 no privilege. If it was primarily proper, then liability should not attach.” Id. ¶ 23. 2 The summary judgment record establis hes that Defendant had knowledge that 3 Plaintiff was employed under a contract by NMMFA; that NMMFA terminated 4 Plaintiff’s employment; and that Plainti ff was damaged by the termination of her 5 employment. We therefore focus on whether the summary judgment record reveals 6 a genuine issue of material fact as to whether (1) Defendant played an active and 7 substantial part in causing NMMFA to terminate Plaintiff’s employment, and (2) 8 Defendant’s primary motivation fo r the inference was improper. 9 First, to play a “substantial and ac tive part” means voluntary conduct which 10 influences the promisor to breach his contract. Wolf , 65 N.M. at 461, 339 P.2d at 682. 11 Plaintiff argues that the email sent by Defendant to her employer was sufficient 12 evidence of a “substantial and active part” in causing her to lose benefits of her 13 contract with NMMFA. However, the recordfails to demonstrate why Plaintiff was 14 terminated from NMMFA. 15 NMMFA’s termination letter to Plaintiff states: 16 The [NM]MFA has considered your response regarding the e-mail that 17 was forwarded to the [NM]MFA on January 21, 2005 and your 18 employment is being terminatedfor the reasons communicated to you on 19 January 25, 2005

. 207 (Emphasis added.) The reasons that werecommunicated to Plaintiff on January 25, 1 2005, are not stated in the letter nor is ther e any other evidence inthe record of what 2 the reasons were that were communicated to Plaintiff. We note that Interrogatory No. 3 11 asked Plaintiff to describe fully and completely the circumstances of her 4 termination from NMMFA. However, we were not provided with Plaintiff’s answer 5 to the interrogatory. The specific reason orreasons why Plaintiff was terminated from 6 NMMFA are not disclosed by the record. We therefore cannot conclude the summary 7 judgment record creates an i ssue of fact that supports a finding that Defendant was a 8 “substantial and active part” in causing NMMFA to terminate its contract with 9 Plaintiff. 10 Defendant’s complaint merely brought Plaintiff’s actions to the attention of her 11 employer. Defendant believed that Plaintiff should not have been conducting personal 12 business during working hours. Defendant al so objected to Plaintiff ending her letter 13 with her title within NMMFA and her work phone number. That is the only action 14 that Defendant took. There is no evidence that Defendant demanded that Plaintiff be 15 terminated. He merely suggested that the behavior and actions of Plaintiff be handled 16 accordingly. It was NMMFA’s choice to reprimand Plaintiff as it pleased. There is 17 no evidence presented by Plaintiff that De fendant influenced NMMFA to take any 18 action which resulted in the breachof the employment contract. 198 Turning to the second question, the public hearing was held for members of the 1 public to voice their opinion about the propos ed zoning change. Plaintiff submitted 2 her letter into the public record. There was nothing intrinsically improper about 3 Defendant’s communicating about a document that was part of the public record. 4 Defendant asserted he saw anaction by Plaintiff that he felt was inappropriate for 5 someone in a public position and brought it to the attention of her supervisor. 6 Defendant objected to the fact that a pers onal letter appeared to be prepared under an 7 official agency capacity and prepared for transmission from the public agency during 8 agency hours. In response Plaintiff simplypresented no evidence that Defendant had 9 an improper motive or used an improper mean s. Plaintiff cannot simply stand on the 10 fact that Defendant wrote his letter to cr eate a question of fact about his motives. 11 CONCLUSION 12 The order of the district court is affirmed. 13 IT IS SO ORDERED. 14

_____________________ ___________ 15 MICHAEL E. VIGIL, Judge 169 WE CONCUR: 1

__________________________________ 2 CYNTHIA A. FRY, Chief Judge 3

__________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5