1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
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5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 ANTOINETTE MOHAMMAD, a/k/a
8 ANTOINETTE LITTLE,
9 Plaintiff-Appellant,
10 v. NO. 31,308
11 CANYON VISTA APARTMENT and
12 MONARCH INVESTMENT &
13 MANAGEMENT GROUP LLC,
14 Defendants-Appellees.
15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
16 C. Shannon Bacon, District Judge
17 Alexander A. Wold, Jr.
18 Albuquerque, NM
19 for Appellant
20 Allen, Shepherd, Lewis, Syra & Chapman, P.A.
21 E. W. Shepherd
22 Randi N. Johnson
23 Albuquerque, NM
24 for Appellees
25 MEMORANDUM OPINION
26 BUSTAMANTE, Judge.
1 Plaintiff appeals the district court’s order granting summary judgment in favor
2 of Defendants. We proposed to reverse in a notice of proposed summary disposition,
3 and Defendants have filed a timely memorandum in opposition. Remaining
4 unpersuaded by Defendants’ arguments, we reverse.
5 “Summary judgment is appropriate where there are no genuine issues of
6 material fact and the movant is entitled to judgment as a matter of law.” Self v. United
7 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582; accord Rule
8 1-056(C) NMRA. Once the movant makes a prima facie showing entitling it to
9 summary judgment, the opposing party has the burden of establishing specific
10 evidentiary facts which require a “trial on the merits.” Roth v. Thompson, 113 N.M.
11 331, 334-35, 825 P.2d 1241, 1244-45 (1992). We review the grant of a motion for
12 summary judgment de novo. See Self, 1998-NMSC-046, ¶ 6. Finally, we observe that
13 summary judgment is a drastic remedy which should be used with extreme caution.
14 See Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 231, 836 P.2d 1249, 1252 (Ct.
15 App. 1992).
16 In their memorandum in opposition, Defendants claim that Plaintiff misstates
17 the issues decided by the district court in granting summary judgment and that she
18 “included unnecessary detail, conclusory statements, and legal argument in violation
19 of the New Mexico Rules of Appellate Procedure.” [MIO 1-6] They ask us to amend
20 Plaintiff’s statement of issues accordingly to reflect the correct issues of law that were
21 presented to the district court [MIO 3] and to strike all of Plaintiff’s improper or
22 incorrect “assertions, arguments, and conclusory statements.” [MIO 4, 7] We see no
2
1 reason to comply with Defendants’ requests because Defendants are not prejudiced
2 by any of these perceived errors or misrepresentations.
3 First, we need not strike Plaintiff’s allegedly improper assertions, arguments,
4 or conclusory allegations because our proposed disposition is based on our review of
5 the record, not the representations made by Plaintiff in her docketing statement about
6 matters that are irrelevant in analyzing the propriety of the district court’s summary
7 judgment order. Moreover, we need not formally amend Plaintiff’s statement of
8 issues because the analysis in our proposed disposition is directed to whether the
9 district court erred in granting summary judgment based upon the arguments and
10 showings presented by Defendants in support of their motion.
11 Review of Defendants’ motion and the district court’s decision, indicates that
12 summary judgment was granted because the district court found that Defendants had
13 established as a matter of law that they did not owe a duty to Plaintiff to keep the
14 stairs free of ice and snow. [RP 75-77, 83-84, 86-95, 169] Review of Defendants’
15 motion and the attachments thereto indicate that they prevailed based on proof that
16 Plaintiff alleged she fell down the icy apartment stairs on December 27, 2006, yet at
17 that point it had not snowed in Albuquerque for over a week. [RP 1, 75-77, 83-84, 86-
18 95; MIO 8] Defendants argued they could not have owed - or breached - a duty to
19 keep the stairs free of ice and snow because there could not have been any ice and
20 snow at the time Plaintiff allegedly fell. [RP 75-77; MIO 8] In support of their
21 argument, Defendants attached portions of Plaintiff’s deposition testimony and her
3
1 answers to interrogatories where she specifically and unequivocally claims that the
2 accident occurred on December 27. [RP 83-84, 97; MIO 8]
3 In our previous notice, we proposed to reverse the district court’s order because
4 we were not convinced that Defendants’ showing that it did not snow on December
5 26 or 27, negated Plaintiff’s allegations that she slipped on ice on the stairs or her
6 allegations that Defendants were negligent in failing to properly clear the steps and
7 sidewalks and failing to warn Plaintiff of the ice. [RP 1] We opined that even if it did
8 not snow on December 26 or 27, snow from earlier in December could have remained
9 on the stairs until the 27th. [RP 86, 88-89] Therefore, we were not convinced
10 Defendants established a prima facie case entitling them to summary judgment
11 because, assuming there was ice and snow remaining on December 27, 2006,
12 Defendants might have breached a duty in failing to remove it. See generally, Proctor
13 v. Waxler, 84 N.M. 361, 364, 503 P.2d 644, 647 (1972) (reversing the district court’s
14 order granting summary judgment to the defendants because issues of fact remained
15 as to whether the defendants exercised reasonable care in discovering an icy condition
16 on their premises, whether they exercised ordinary care in removing the ice and snow,
17 and whether they were negligent in failing to warn of the icy condition).
18 We also proposed to hold that, to whatever extent Defendants’ motion and
19 attachments thereto established a prima facie case entitling them to summary
20 judgment, Plaintiff’s response was sufficient to rebut that showing and to establish a
21 material issue of fact necessitating a trial. See Roth, 113 N.M. at 334-35, 825 P.2d at
22 1244-1245. In her response, Plaintiff argued that she must have been mistaken about
4
1 the precise date of the accident, and noted that the weather data showed significant
2 snow fall at other times in December. [RP 86, 88-89, 93-95, 114-116] Plaintiff also
3 submitted an affidavit claiming that it was snowing so hard on the day before the
4 accident that the methadone clinic was closed due to the poor weather and that she
5 saw no evidence Defendants had done anything to remove the snow or remedy the ice
6 on the day before she fell. [RP 121] Although Defendants claim Plaintiff never
7 “testified” as to the weather conditions the day before she fell and there is no evidence
8 in the record proper that such testimony was proffered, [MIO 5] we do not understand
9 this contention. Plaintiff’s affidavit clearly states it was snowing heavily the day
10 before she fell. [RP 121] That affidavit had been filed in the district court by the time
11 it entered the order granting summary judgment. [RP 169]
12 In their reply brief, and in their memorandum in opposition, Defendants claim
13 Plaintiff’s submissions are insufficient to defeat summary judgment because a party
14 may not create a factual dispute to defeat summary judgment by merely contradicting
15 statements previously made under oath. [RP 127-132; MIO 5-6] See Rivera v.
16 Trujillo, 1999-NMCA-129, ¶ 12, 128 N.M. 106, 990 P.2d 219 (holding that “post-hoc
17 efforts to nullify unambiguous admissions under oath will not create a factual dispute
18 sufficient to evade summary judgment”). They argue that Plaintiff definitely stated
19 in her complaint and deposition that the accident occurred on December 27, and she
20 should not be permitted to change that assertion to allege that the accident occurred
21 at some other point in December. [RP 131; MIO 10]
5
1 We acknowledge that Plaintiff’s deposition testimony, discovery responses, and
2 the complaint itself, clearly state that the fall occurred on December 27, 2006. [RP
3 1, 83-84, 97] However, as discussed in our previous notice, her deposition testimony
4 is internally inconsistent in that it also contains statements that at the time she fell, it
5 snowed for four days, which is contrary to her claim that the accident occurred on the
6 27th and is consistent with the weather from other days in December, specifically, the
7 29th and 30th. [RP 83] Thus, Plaintiff’s deposition testimony contains allegations
8 that appear inconsistent with the accident occurring on the 27th and such
9 inconsistencies must be resolved by the trier of fact. See Sandoval v. Bd. of Regents
10 of N.M. State Univ., 75 N.M. 261, 263, 403 P.2d 699, 701 (1965) (holding that, where
11 the trial court has evidence before it that is in some respects directly contradictory, a
12 substantial issue of material fact is raised thus precluding summary judgment); cf.
13 Jones v. Gibberd, 77 N.M. 222, 223, 421 P.2d 436, 437 (1966) (“We are committed
14 to the rule that in considering a motion for summary judgment for the defendant the
15 evidence must be considered in its most favorable aspect in favor of the plaintiff, and
16 if there is any doubt as to the facts, summary judgment should be resolved against the
17 moving party.”); Burgi v. Acid Eng’g, Inc., 104 N.M. 557, 561, 724 P.2d 765, 769 (Ct.
18 App. 1986) (observing that a conflict in testimony “entitles [the] plaintiff to present
19 the merits of her case to the fact finder . . . even if the trial judge believes that
20 ultimately a directed verdict against the plaintiff would be warranted”).
21 Defendants claim that allowing Plaintiff’s claim to go forward when it is
22 impossible to know the day on which the fall allegedly occurred, will make it
6
1 impossible for Defendants to defend this action. [MIO 10-11] They claim they
2 cannot defend a premises liability claim without knowing the date of the fall because
3 they cannot explain the precautions that were taken on any specific date to avoid the
4 accident. [MIO 11]
5 We are not persuaded this warrants summary judgment in Defendants’ favor.
6 At trial, they can alert the fact finder to their contention that Plaintiff is unable to
7 prove when, or if, the accident happened, and they can introduce Plaintiff’s
8 contradictory statements as to when the accident allegedly occurred and the evidence
9 showing that it could not have happened on the date Plaintiff initially provided in her
10 deposition and complaint. They can also introduce evidence of whatever steps are
11 customarily undertaken to remove snow from apartment stairways. All of this
12 evidence may call Plaintiff’s credibility into doubt and result in judgment for
13 Defendants due to Plaintiff’s inability to prove her case.
14 Conclusion
15 For the foregoing reasons as well as those set forth in our notice of proposed
16 disposition, we reverse the district court’s order granting summary judgment in favor
17 of Defendants.
18 IT IS SO ORDERED.
19
20 MICHAEL D. BUSTAMANTE, Judge
21 WE CONCUR:
7
1
2 MICHAEL E. VIGIL, Judge
3
4 LINDA M. VANZI, Judge
8