(specially concurring in part and dissenting in part).
{31} I agree with the majority’s determination that the trial court erred in granting summary judgment for Plaintiffs. Although I do not disagree with the majority’s adoption in New Mexico of the Restatement (Second) of Contracts § 201 and the various out-of-state cases cited in the majority opinion, I have concerns about whether they apply to this case. I also disagree that this case should be remanded for further factual development. I would therefore remand with instructions to enter judgment for Defendants.
{32} With regard to the issue of whether the authorities relied on by the majority should be applied in this case, we do not ordinarily reach out to “decide [a] case on a theory not explored or argued by the parties on appeal.” Joslin v. Gregory, 2003-NMCA-133, ¶ 8, 134 N.M. 527, 80 P.3d 464. Here, the parties did not cite or rely on any of these authorities, instead presenting the ease as a simple one that could be decided with reference to New Mexico authorities. Each party contended that its reading of the contract should prevail as a matter of law based on the undisputed facts and the extrinsic evidence presented to the trial court as attachments to the summary judgment motions and responses. As stated by our Supreme Court, “[cjourts risk overlooking important facts or legal considerations when they take it upon themselves to raise, argue, and decide legal questions overlooked by the lawyers who tailor the case to fit within then-legal theories.” In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982) (alteration in original) (internal quotation marks and citation omitted). Although this statement might not apply to the simple citing of different or more pertinent authority than that cited by the parties, it does apply to “ignoring] the arguments presented and searching] for an alternative ground for decision.” Id. In this case, no party raised the relative burdens of proof in the context of summary judgment, and no party employed the analysis suggested by the Restatement or any similar analysis.
{33} Both parties moved for summary judgment, and both parties appeared to be of the belief that further extrinsic evidence would not be forthcoming and that the ease could be decided, one way or the other, on the basis of the CBA, the bargaining history resulting in the compromise regarding specialty position personnel decisions, and the undisputed facts surrounding the events at issue. Plaintiffs claim that those events constituted a “demotion,” while Defendants claim the events were “discipline” in the form of a “written reprimand” under Article 26(H) and a “reassignment” under Article 32, neither of which is arbitrable. In fact, Plaintiffs have never sought a trial at which they could present further extrinsic evidence, leading me to believe that such evidence does not likely exist. We have held that where the parties agree to have the trial court decide a case on cross-motions for summary judgment and where neither party claims that disputed facts exist, this Court will review the ease as presented by the parties and decide it one way or the other. See, e.g., Barncastle v. Am. Nat’l Prop. & Cas. Cos., 2000-NMCA-095, ¶ 5, 129 N.M. 672, 11 P.3d 1234. Here, both parties appear to have asked the trial court to interpret the CBA as a matter of law in view of the undisputed facts and uneontroverted evidence. Accordingly, we should decide the case on its merits, rather than remanding for additional factual development.
{34} Applying the majority’s law to the facts developed during the proceedings on cross-motions for summary judgment, it is apparent that Plaintiffs have failed in their burden of opposing Defendants’ motion for summary judgment. Plaintiffs, as the party seeking to alter the extrajudicial status quo, were required to show a reason for favoring their interpretation of the contract over Defendants’ interpretation. At best, Plaintiffs showed only that the CBA was reasonably susceptible of more than one interpretation. Such a showing is insufficient to allow the party bearing the burden of persuasion to prevail. See Maj. Op. ¶ 16 (citing cases and stating, “where the meaning of a material contract term is in dispute a party seeking affirmative relief based upon its interpretation necessarily bears the burden of establishing that its interpretation controls”).
{35} Because both parties indicated by filing for summary judgment that further factual development was not required, and because Plaintiffs failed to meet their burden, I would reverse the summary judgment in favor of Plaintiffs and remand with directions to enter summary judgment in favor of Defendants.