Watson v. Addus HealthCare, Inc.

JESSE WATSON, Plaintiff-Appellant, v. ADDUS HEALTHCARE, INC. and CELESTINA QUIROZ, Defendants-Appellees.

No. A-1-CA-38913

Court of Appeals of New Mexico

January 23, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Marci E Beyer, District Court Judge

Fuqua Law & Policy, P.C. Scott Fuqua Santa Fe, NM Sloan Hatcher, Perry, Runge, Robertson, Smith & Jones John D. Sloan, Jr. Longview, TX Slate Stern, P.C. Slate Stern Santa Fe, NM for Appellant

Lewis Brisbois Bisgaard & Smith, LLP Gregory L. Biehler Elizabeth G. Perkins Albuquerque, NM for Appellees

MEMORANDUM OPINION

JENNIFER L. ATTREP, CHIEF JUDGE

{¶1} Plaintiff Jesse Watson appeals the district court's order dismissing his complaint for failure to state a claim. We affirm.

BACKGROUND

{¶2} The incident giving rise to this lawsuit involved Plaintiff his girlfriend, Defendant Catalina Quiroz; and her twin sister and Plaintiff's caregiver, Defendant Celestina Quiroz, who worked for Defendant Addus Healthcare, Inc. (Addus) as a home health caregiver. At the time of the incident, Plaintiff, Catalina, and Celestina lived together at a property owned by Catalina and Celestina's mother, Defendant Connie Quiroz.^[1] Plaintiff alleged that he was lit on fire and suffered life-altering injuries. Plaintiff's theory as to who was responsible for the fire varied over the four complaints he filed in this case. In his original complaint, Plaintiff alleged that Celestina threw gasoline on him as he was lighting a cigarette. In his first and second amended complaints, Plaintiff alleged that both Celestina and Catalina threw gasoline on him. In his third and final amended complaint (TAC), Plaintiff alleged that only Catalina threw gasoline on him. Plaintiff sued Connie, Catalina, Celestina, and Addus, making claims of negligence; negligent hiring, retention, and supervision; and vicarious liability.

{¶3} Celestina and Addus (collectively, Defendants) filed a Rule 1-012(B)(6) NMRA motion to dismiss the TAC. ^[2] Defendants argued Plaintiff's claims for negligence and vicarious liability failed as a matter of law because the TAC did not allege that Celestina had a special relationship with, or duty of control over, Catalina, who allegedly caused Plaintiff's injuries. Defendants further argued that Plaintiff's claim for negligent hiring, retention, and supervision failed as a matter of law because no reasonable jury could conclude any alleged negligence by Addus proximately caused the third-party attack by Catalina.

{¶4} In his response to Defendants' motion, Plaintiff disregarded the facts pled in the TAC and failed to contend that these facts could survive dismissal. Instead, Plaintiff advanced a different theory of liability-that he attempted suicide by pouring gasoline on himself and lighting himself on fire. In an apparent effort to force the district court to consider this unpled theory, and thereby transform the motion to dismiss into one for summary judgment, Plaintiff raised numerous unpled facts and attached nearly 125 pages of exhibits to his response. After holding a hearing, the district court granted the motion and dismissed the TAC with prejudice. This appeal followed.

DISCUSSION

{¶5} Plaintiff, much like he did below, dedicates the vast majority of his briefing to discussing why the facts underlying his unpled suicide-attempt theory warrant reversal of the district court's order. Given the absence of the suicide-attempt theory from the TAC, however, the viability of this argument is dependent upon the district court's having converted Plaintiff's motion into one for summary judgment. ^[3] Compare, e.g., Ruegsegger v. W. N.M. Univ. Bd. of Regents, 2007-NMCA-030, ¶ 11, 141 N.M. 306, 154 P.3d 681 ("A motion to dismiss for failure to state a claim under Rule 1-012(B)(6), tests the legal sufficiency of the complaint, accepting all well-pleaded factual allegations as true." (emphasis added) (internal quotation marks and citation omitted)), with City of Albuquerque v. BPLW Architects & Eng'rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146 ("On appeal from the grant of summary judgment, we ordinarily review the whole record in the light most favorable to the party opposing summary judgment to determine if there is any evidence that places a genuine issue of material fact in dispute." (emphasis added)). See generally Barreras v. N.M. Corr. Dep't, 1992-NMSC-059, ¶¶ 22-23, 114 N.M. 366, 838 P.2d 983 (providing that the plaintiffs' arguments relating to a claim not asserted in the complaint will not be considered for the first time on appeal and will not provide a basis for reversal); Houston v. Young, 1980-NMSC-053, ¶ 7, 94 N.M. 308, 610 P.2d 195 ("Amendments which alter or change the theory of a case are not permitted on appeal."). Because we conclude that Defendants' motion was not so converted, Plaintiff's contentions pertaining to the unpled suicide-attempt theory do nothing to persuade us of error. We explain.

I. Defendants' Motion to Dismiss Was Not Converted Into a Motion for Summary Judgment

{¶6} Plaintiff, in his brief in chief, simply assumes the district court order was one for summary judgment. In their answer brief, Defendants contend the district court treated their motion as one to dismiss and did not consider matters outside the pleadings. Specifically, according to Defendants, the district court granted their motion to dismiss because Plaintiff's TAC, as pled, failed to establish that they had a duty to protect Plaintiff from being harmed by Catalina and that no reliance on matters outside the pleadings was necessary to reach that determination. Plaintiff, in his reply brief, makes various arguments in opposition. We agree with Defendants.

{¶7} Rule 1-012(B) provides that a motion to dismiss shall be treated as a motion for summary judgment under Rule 1-056 NMRA if "matters outside the pleading are presented to and not excluded by the court." Even though the situation here might "fit[] the literal language of the Rule," this does not end our inquiry. See Dunn, 1999-NMCA-084, ¶¶ 6, 16-17 (determining that the plaintiff's submission of nearly 400 pages of attachments in his response to the defendants' motion to dismiss did not convert the motion into one for summary judgment); see also Ruegsegger, 2007-NMCA-030, ¶¶ 42-43 (determining that the plaintiff's attachment of an affidavit to her response to the defendants' motion to dismiss, and her "conclusory request" for summary judgment, did not convert the motion to dismiss into one for summary judgment); Henning v. Rounds, 2007-NMCA-139, ¶¶ 2-3, 142 N.M. 803, 171 P.3d 317 (presuming that the district court did not rely on letters attached to the plaintiff's response to the defendants' motion to dismiss, and declining to treat the motion to dismiss as a motion for summary judgment).

{¶8} In a case procedurally similar to this one, this Court in Dunn concluded that the defendants' motion to dismiss was not converted into a motion for summary judgment, notwithstanding the fact that "matters outside the pleadings [were] presented to and not excluded by the court," Rule 1-012(B), when the plaintiff attached 400 pages of documents to his response. Dunn, 1999-NMCA-084, ¶¶ 10-12, 14-17. Of significance to this determination, Dunn observed that the plaintiff's filing of attachments was "an unusual tactic" in opposing a motion to dismiss and emphasized that "[c]onversion from a motion to dismiss on the pleadings to a motion for summary judgment could rarely, if ever, benefit the party opposing the motion." Id. ¶ 13. This Court thus was reluctant to infer that the filing of attachments was an effort by the plaintiff to convert the motion to dismiss into one for summary judgment, particularly in the absence of an explicit request from the plaintiff to do so and in light of the plaintiff's expressed interest in pursuing further discovery. Id. ¶ 14. More importantly, however, this Court observed that the defendants and the district court both treated the matter as a motion to dismiss. Id. ¶ 15. The defendants in Dunn moved to dismiss under Rule 1-012(B)(6) and "restricted their arguments to the allegations of the amended complaint." Dunn, 1999-NMCA-084, ¶ 16. And the district court, based on an exchange with defense counsel, appeared to understand the purely legal nature of determining the sufficiency of a claim under Rule 1-012(B)(6). See Dunn, 1999-NMCA-084, ¶ 15.

{¶9} Applying the considerations from Dunn, we conclude Defendants' motion to dismiss was not converted into a motion for summary judgment and therefore this matter is governed by the Rule 1-012(B)(6) standard on appeal. See Dellaira v. Farmers Ins. Exch., 2004-NMCA-132, ¶ 7, 136 N.M. 552, 102 P.3d 111 (reviewing the defendant's motion under the standard applicable to Rule 1-012(B)(6) dismissals when the matter was not converted into a motion for summary judgment).

{¶10} Like the defendants in Dunn, Defendants here treated the matter as a motion to dismiss. See 1999-NMCA-084, ¶ 15. Defendants moved to dismiss pursuant to Rule 1-012(B)(6) for failure to state a claim upon which relief can be granted; they restricted their arguments to the allegations in the TAC; and they did not purport to rely on facts outside the TAC, including those contained in Plaintiff's response and attachments. See Dunn, 1999-NMCA-084, ¶ 16. And like the court in Dunn, the district court here treated the matter as a motion to dismiss. See id. ¶ 15. In particular, there is no indication in the record...