1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

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

7 DUSTY STONE,

8 Plaintiff-Appellant,

9 v. NO. 30,872

10 COUNTY OF QUAY, FRANKLIN McCAUSLAND,

11 BILL CURRY, ROBERT LOPEZ, RICHARD

12 PRIMROSE, and LARRY MOORE,

13 Defendants-Appellees.

14 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

15 David P. Reeb, Jr., District Judge

16 Dusty Stone

17 San Jon, NM

18 for Appellant

19 Slease & Martinez, P.A.

20 William D. Slease

21 Albuquerque, NM

22 for Appellees

23 MEMORANDUM OPINION

24 VIGIL, Judge.
2

1 Plaintiff appeals an order dismissing his complaint for failure to state a claim.

2 In this Court’s notice of proposed summary disposition, we proposed to affirm.

3 Plaintiff has filed a memorandum in opposition, which we have duly considered. As

4 we are not persuaded by Plaintiff’s arguments, we affirm. 

5 Dismissal Pursuant to Rule 1-012(B)(6) NMRA

6 In this Court’s notice of proposed summary disposition, we proposed to affirm

7 the dismissal of Plaintiff’s claim for breach of contract because a county

8 commission’s meeting minutes do not constitute a valid, written contract under which

9 a county or its commissioners may be sued. See Campos de Suenos, Ltd. v. Cnty. of

10 Bernalillo, 2001-NMCA-043, ¶¶ 23-28, 130 N.M. 563, 28 P.3d 1104. Therefore, as

11 there was no written contract, we proposed to hold that Plaintiff’s claim against

12 Defendant County of Quay was foreclosed by NMSA 1978, Section 37-1-23(A)

13 (1976), which states that “[g]overnmental entities are granted immunity from actions

14 based on contract, except actions based on a valid written contract.” We also

15 proposed to hold that the minutes on which Plaintiff relied as the basis for his breach

16 of contract claim against the individual Defendants did not support his allegation of

17 a contract between those individuals and Plaintiff. See Healthsource, Inc. v. X-Ray

18 Assocs. of N.M., 2005-NMCA-097, ¶ 19, 138 N.M. 70, 116 P.3d 861 (affirming the

19 dismissal of a breach of contract claim where the complaint alleged a valid written
3

1 contract, but the contract itself did not support the claim, and stating that “where an

2 obligation in the pleading does not conform to the writing exhibited as a basis thereof,

3 the document rather than the pleading controls”).

4 In Plaintiff’s memorandum in opposition, he asserts that the commission

5 minutes constitute written evidence of an oral contract between Plaintiff and the

6 individual Defendants. However, Plaintiff’s complaint was specifically based on an

7 allegation of a written contract, not on any oral agreement. [RP 1-3] Furthermore,

8 although Plaintiff’s complaint referred to a “verbal offer,” the complaint alleges that

9 Plaintiff “did not accept the verbal offer.” [RP 2] There can be no contract where

10 there is no acceptance of an offer. See Hartbarger v. Frank Paxton Co., 115 N.M.

11 665, 669, 857 P.2d 776, 780 (1993) (“Ordinarily, to be legally enforceable, a contract

12 must be factually supported by an offer, an acceptance, consideration, and mutual

13 assent.”). We therefore conclude that the district court did not err in dismissing

14 Plaintiff’s claim for breach of contract.

15 In this Court’s notice of proposed summary disposition, we proposed to affirm

16 the dismissal of Plaintiff’s claim for constructive fraud because the Tort Claims Act

17 provides immunity from suit for such a claim for both governmental entities and

18 public employees. See NMSA 1978, § 41-4-4(A) (2001)(“A governmental entity and

19 any public employee while acting within the scope of duty are granted immunity from
4

1 liability for any tort except as waived by the New Mexico Religious Freedom

2 Restoration Act and by Sections 41-4-5 through 41-4-12 NMSA 1978.”); see also

3 Valdez v. State, 2002-NMSC-028, ¶ 9, 132 N.M. 667, 54 P.3d 71 (upholding the

4 district court’s dismissal of a claim for constructive fraud against a governmental

5 entity and a public employee pursuant to Rule 1-012(B)(6) NMRA because such

6 claims are not permitted by the Tort Claims Act). 

7 In Plaintiff’s memorandum in opposition, he argues that Defendants were acting

8 outside of their scope of duties by attempting to bribe Plaintiff. However, as we stated

9 in our notice of proposed summary disposition, such actions, even if proved, would

10 not deprive Defendants of the protections of the Act. See Celaya v. Hall,

11 2004-NMSC-005, ¶ 25, 135 N.M. 115, 85 P.3d 239 (explaining that a public

12 employee’s “scope of duties” under the Tort Claims Act is not limited to acts

13 officially requested, required, or authorized because such an interpretation of the Act

14 “would render all unlawful acts, which are always unauthorized, beyond the remedial

15 scope of the TCA[,]” and stating that the Act “clearly contemplates” immunity for

16 “employees who abuse their officially authorized duties, even to the extent of some

17 tortious and criminal activity”). Therefore, we conclude that the district court did not

18 err in dismissing Plaintiff’s claim of constructive fraud. 
5

1 Whether the Motion Should Have Been Treated as a Motion for Summary

2 Judgment

3 Plaintiff asserts that the district court erred by refusing to treat Defendants’

4 motion to dismiss as one for summary judgment. [DS 2] In our notice of proposed

5 summary disposition, we proposed to find no reversible error because even if the

6 district court erred, such error did not prejudice Plaintiff. This Court will not reverse

7 an error when the ruling will not change the result. See In re Estate of Heeter, 113

8 N.M. 691, 695, 831 P.2d 990, 994 (Ct. App. 1992). Plaintiff’s memorandum in

9 opposition restates the general rule regarding when a motion to dismiss shall be

10 treated as one for summary judgment, but Plaintiff does not respond to this Court’s

11 proposed analysis regarding the lack of prejudice. [MIO 3] We find no reversible

12 error because Plaintiff has not demonstrated that this claimed error prejudiced him.

13 See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our

14 courts have repeatedly held that, in summary calendar cases, the burden is on the party

15 opposing the proposed disposition to clearly point out errors in fact or law.”).

16 The Lack of Findings and Conclusions

17 Plaintiff contends that the district court erred by not making findings of fact and

18 conclusions of law in ruling on the motion to dismiss. In our notice of proposed

19 summary disposition, we explained that Rule 1-052(A) NMRA provides that such

20 findings and conclusions are unnecessary. Plaintiff responds by arguing that Rule 1-
6

1 041(B) NMRA requires the entry of findings and conclusions. [MIO 3] However that

2 rule applies when a case has been tried by the district court, which did not occur here.

3 Accordingly we conclude that the district court did not err in refusing to enter findings

4 and conclusions. 

5 Therefore, for the reasons stated in this opinion and in our notice of proposed

6 summary disposition, we affirm. 

7 IT IS SO ORDERED.

8 _______________________________

9 MICHAEL E. VIGIL, Judge

10 WE CONCUR:

11 ___________________________

12 JAMES J. WECHSLER, Judge

13 ___________________________

14 CYNTHIA A. FRY, Judge