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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

DUSTY STONE , 7 Plaintiff-Appellant, 8

v. NO. 30,872 9 COUNTY OF QUAY, FRANKLIN McCAUSLAND, 10 BILL CURRY, ROBERT LOPEZ, RICHARD 11 PRIMROSE, and LARRY MOORE , 12 Defendants-Appellees. 13
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 14 David P. Reeb, Jr., District Judge 15 Dusty Stone 16 San Jon, NM 17 for Appellant 18 Slease & Martinez, P.A. 19 William D. Slease 20 Albuquerque, NM 21 for Appellees 22

MEMORANDUM OPINION 23 VIGIL, Judge. 242 Plaintiff appeals an order dismissing his complaint for failure to state a claim. 1 In this Court’s notice of proposed summary disposition, we proposed to affirm. 2 Plaintiff has filed a memorandum in oppositi on, which we have duly considered. As 3 we are not persuaded by Plaintiff’s arguments, we affirm. 4 Dismissal Pursuant to Rule 1-012(B)(6) NMRA 5 In this Court’s notice of proposed summary disposition, we proposed to affirm 6 the dismissal of Plaintiff’s claim fo r breach of contract because a county 7 commission’s meeting minutes do not constitu te a valid, written contract under which 8 a county or its commissioners may be sued. See Campos de Suenos, Ltd. v. Cnty. of 9 Bernalillo , 2001-NMCA-043, ¶¶ 23-28, 130 N.M. 563, 28 P.3d 1104. Therefore, as 10 there was no written contract, we proposed to hold that Plaintiff’s claim against 11 Defendant County of Quay was forecl osed by NMSA 1978, Section 37-1-23(A) 12 (1976), which states that “[g]overnmentalentities are granted immunity from actions 13 based on contract, except actions based on a valid written contract.” We also 14 proposed to hold that the minutes on which Plaintiff relied as the basis for his breach 15 of contract claim against the individual Defendants did not s upport his allegation of 16 a contract between those individuals and Plaintiff. See Healthsource, Inc. v. X-Ray 17 Assocs. of N.M. , 2005-NMCA-097, ¶ 19, 138 N.M. 70, 116 P.3d 861 (affirming the 18 dismissal of a breach of contract claim where the complaint alleged a valid written 193 contract, but the contract itself did not support the claim, and stating that “where an 1 obligation in the pleading does not conform to the writing exhibited as a basis thereof, 2 the document rather than the pleading controls”). 3 In Plaintiff’s memorandum in opposition, he asserts that the commission 4 minutes constitute written evidence of an or al contract between Plaintiff and the 5 individual Defendants. Howe ver, Plaintiff’s complaint was specifically based on an 6 allegation of a written contract, not on any or al agreement. [RP 1-3] Furthermore, 7 although Plaintiff’s complaint referred to a “verbal offer,” the complaint alleges that 8 Plaintiff “did not accept the verbal offer.” [RP 2] There can be no contract where 9 there is no acceptance of an offer. See Hartbarger v. Frank Paxton Co. , 115 N.M. 10 665, 669, 857 P.2d 776, 780 (1993) (“Ordinarily, to be legally enforceable, a contract 11 must be factually supported by an offer, an acceptance, consideration, and mutual 12 assent.”)

. We therefore conclude that the di strict court did not err in dismissing 13 Plaintiff’s claim for breach of contract. 14 In this Court’s notice of proposed summary disposition, we proposed to affirm 15 the dismissal of Plaintiff’s claim for cons tructive fraud because the Tort Claims Act 16 provides immunity from suit for such a claim for both governmental entities and 17 public employees. See NMSA 1978, § 41-4-4(A) (2001) (“A governmental entity and 18 any public employee while acting within the scope of duty are granted immunity from 194 liability for any tort except as waivedby the New Mexico Religious Freedom 1 Restoration Act and by Sections 41-4-5 through 41-4-12 NMSA 1978.”); see also 2 Valdez v. State , 2002-NMSC-028, ¶ 9, 132 N.M. 667, 54 P.3d 71 (upholding the 3 district court’s dismissal of a claim for constructive fraud against a governmental 4 entity and a public employee pur suant to Rule 1-012(B)(6) NMRA because such 5 claims are not permitted by the Tort Claims Act). 6 In Plaintiff’s memorandum in opposition, he argues that Defendants were acting 7 outside of their scope of dutie s by attempting to bribe Plainti ff. However, as we stated 8 in our notice of proposed summary disposition, such actions, even if proved, would 9 not deprive Defendants of the protections of the Act. See Celaya v. Hall , 10 2004-NMSC-005, ¶ 25, 135 N.M. 115, 85 P.3d 239 (explaining that a public 11 employee’s “scope of dutie s” under the Tort Claims Act is not limited to acts 12 officially requested, required, or authorizedbecause such an interpretation of the Act 13 “would render all unlawful acts, which are always unauthorized, beyond the remedial 14 scope of the TCA[,]” and stating that the Act “clearly contemplates” immunity for 15 “employees who abuse their officially authorized duties, even to the extent of some 16 tortious and criminal activity”). Therefore, we conclude that the district court did not 17 err in dismissing Plaintiff’s claim of constructive fraud. 185 Whether the Motion Should Have Been Treated as a Motion for Summary 1 Judgment 2 Plaintiff asserts that the district c ourt erred by refusing to treat Defendants’ 3 motion to dismiss as one for summary judgment. [DS 2] In our notice of proposed 4 summary disposition, we proposed to find no reversible error because even if the 5 district court erred, such error did not prej udice Plaintiff. This Court will not reverse 6 an error when the ruling will not change the result. See In re Estate of Heeter, 113 7 N.M. 691, 695, 831 P.2d 990, 994 (Ct. App. 1992). Plaintiff’s memorandum in 8 opposition restates the general rule regarding when a motion to dismiss shall be 9 treated as one for summary judgment, but Plaintiff does not respond to this Court’s 10 proposed analysis regarding the lack of prejudice. [MIO 3] We find no reversible 11 error because Plaintiff has not demonstratedthat this claimed error prejudiced him. 12 See Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our 13 courts have repeatedly held that, in summary calendar cases, the burden is on the party 14 opposing the proposed disposition to clearly point out errors in fact or law.”). 15 The Lack of Findings and Conclusions 16 Plaintiff contends that the district court erred by not making findings of fact and 17 conclusions of law in ruling on the motion to dismiss. In our notice of proposed 18 summary disposition, we explained that Rule 1-052(A) NMRA provides that such 19 findings and conclusions are unnecessary. Plaintiff responds by arguing that Rule 1- 206 041(B) NMRA requires the entry of findings and conclusions. [MIO 3] However that 1 rule applies when a case has been tried by th e district court, which did not occur here. 2 Accordingly we conclude that the district court did not err in re fusing to enter findings 3 and conclusions. 4 Therefore, for the reasons stated in this opinion and in our notice of proposed 5 summary disposition, we affirm. 6 IT IS SO ORDERED. 7

_______________________________ 8 MICHAEL E. VIGIL, Judge 9

WE CONCUR: 10

___________________________ 11 JAMES J. WECHSLER, Judge 12

___________________________ 13 CYNTHIA A. FRY, Judge 14