{ "id": 706838, "name": "Tom CARTER, Plaintiff-Appellant, v. Jerry THURBER, et al., Defendants-Appellees", "name_abbreviation": "Carter v. Thurber", "decision_date": "1987-10-06", "docket_number": "No. 10097", "first_page": "429", "last_page": "432", "citations": [ { "type": "official", "cite": "106 N.M. 429" }, { "type": "parallel", "cite": "744 P.2d 557" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "580 P.2d 222", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10450693 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/p2d/580/0222-01" ] }, { "cite": "93 Ariz. 400", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 614116 ], "weight": 2, "year": 1963, "pin_cites": [ { "parenthetical": "En Banc" }, { "parenthetical": "En Banc" } ], "opinion_index": 0, "case_paths": [ "/ariz/93/0400-01" ] }, { "cite": "105 N.M. 57", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598951 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/105/0057-01" ] }, { "cite": "98 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582525 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0690-01" ] }, { "cite": "100 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0773-01" ] }, { "cite": "55 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582941 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0353-01" ] }, { "cite": "95 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575499 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0773-01" ] }, { "cite": "82 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326184 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0072-01" ] }, { "cite": "100 N.M. 745", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588614 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0745-01" ] } ], "analysis": { "cardinality": 489, "char_count": 8077, "ocr_confidence": 0.776, "pagerank": { "raw": 8.992201099981634e-08, "percentile": 0.5029405189260069 }, "sha256": "a1fad18fb716dce24864bce0b94eb36e2791021bd846951ec0ea5a493d5b693a", "simhash": "1:cf03775e3d66f01c", "word_count": 1323 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY, C.J., and GARCIA, J., concur." ], "parties": [ "Tom CARTER, Plaintiff-Appellant, v. Jerry THURBER, et al., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nPlaintiff appeals from a summary judgment dismissing with prejudice his state court action as against defendants Jerry Thurber and the City of Grants. The trial court determined as a matter of law that plaintiff\u2019s claims against those defendants were barred under the doctrine of res judicata by reason of a prior dismissal for lack of prosecution in a federal district court case.\nPlaintiff raises two issues on appeal. First, plaintiff maintains that summary judgment could not be awarded on the basis of res judicata without the federal court action being made a part of the record. Second, relying on Myers v. Olson, 100 N.M. 745, 676 P.2d 822 (1984), plaintiff argues that because the state court action was filed first, a subsequent judgment entered in the federal court action could not bar prosecution. Defendants counter, arguing that plaintiff waived the lack of record or invited error; that summary judgment is supported by the record; that because the federal court action was adjudicated first, it bars prosecution; and that plaintiff\u2019s failure to include the record on appeal is fatal. Alternatively, defendants ask that the case be remanded.\nUnder the circumstances of this case, we hold that the lack of a record does not preclude summary judgment and that final adjudication in the federal suit barred further action in the state court. Accordingly, we affirm.\nIn his complaint in this action, plaintiff sought damages from his former employer, the City of Grants, and its chief of police, Jerry Thurber, for alleged activities that plaintiff claims prevented him from gaining employment after his termination from the Grants Police Department. Defendants Thurber and the City of Grants moved for summary judgment, attaching to their motion a copy of an order of dismissal by the United States District Court for the District of New Mexico, entered on January 25, 1985, the style of which names the same parties as before the trial court and before us on appeal. Defendants claimed the dismissal for lack of prosecution under Fed.R.Civ.P. 41(b) amounted to a final adjudication on the merits and barred further prosecution in the state court under the doctrine of res judicata.\nPlaintiff contends that, other than the order of dismissal, none of the remainder of the federal court\u2019s proceedings was before the trial court and, therefore, genuine issues of material fact existed that precluded summary judgment. Ordinarily, the lack of a record precludes review, see, e.g., Adams v. Loffland Brothers Drilling Co., 82 N.M. 72, 475 P.2d 466 (Ct.App.1970), and summary judgment can only be granted upon clear and undisputed facts. Sweenhart v. Co-Con, Inc., 95 N.M. 773, 626 P.2d 310 (Ct.App.1981). Where, however, a party opposing summary judgment limits his opposition, as was done here, to only one issue that did not require a determination of facts, only their legal effect, and so advised the trial court, he cannot be heard to complain on appeal. See Dollarhide v. Gunstream, 55 N.M. 353, 233 P.2d 1042 (1951).\nAt the hearing, plaintiff objected when defense counsel started to describe the nature of the federal court action; however, no ruling was made. Defendants\u2019 counsel proceeded to describe that suit as involving a discrimination action growing out of the same facts alleged in this action. When plaintiff\u2019s counsel responded, he briefly summarized the two actions as \u201cstemming from the activities [of] Mr. Thurber * * * after Mr. Carter was dismissed.\u201d\nPlaintiff\u2019s second point assumes a proper record would show that the federal action was a discrimination suit involving his termination from the Grants Police Department and defendants\u2019 action following that termination. Thus, plaintiff does not dispute what the federal record discloses; only the fact that such record was not before the state district court when summary judgment was granted. We are compelled to inquire what prejudice results when the facts are not challenged? We could send the matter back to allow defendants to refile their motion to attach the federal court pleadings. It seems a waste of judicial resources to do so when plaintiff does not question what the pleadings reveal. Absent a legitimate reason to remand, we accomplish nothing and would only cause delay. See Hester v. Hester, 100 N.M. 773, 676 P.2d 1338 (Ct.App.1984) (no remand necessary where trial court made findings after notice of appeal filed).\nPlaintiff correctly argues that in order to dismiss under res judicata there must be an identity of parties or privies; identity of capacity or character of persons for or against whom the claim is made; the same cause of action; and same subject matter. Three Rivers Land Co. v. Maddoux, 98 N.M. 690, 652 P.2d 240 (1982), overruled on other grounds, Universal Life Church v. Coxon, 105 N.M. 57, 728 P.2d 467 (1986). Not once, however, did plaintiff dispute that the elements of identity of the parties, subject matter or cause of action had been met. Nor did he object to the trial court reviewing the federal court complaint that was provided by defendants, but which did not get into the record. Finally, plaintiff did not contend below that he had been deprived of \u201ca full and fair opportunity to litigate all issues arising out of [his] claim.\u201d Myers v. Olson, 100 N.M. at 747, 676 P.2d at 824. While quoting language to this effect in his appellate brief, plaintiff provided no further discussion.\nThat plaintiff\u2019s only argument focused on the time of filing is made clear by the following:\nTHE COURT: Is there anything further? Mr. Fernandez, rather than \u2014 right now this is your only argument as to her motion, and that\u2019s the case of Myers v. Olson?\nMR. FERNANDEZ: That\u2019s correct, Your Honor.\nTHE COURT: Okay.\nMR. FERNANDEZ: It\u2019s based on the subsequent action. Res judicata applies certainly to the subsequent actions, but not to the acts pending at the same time.\nThere may be other grounds, but not specifically for that reason.\nTHE COURT: Counsel, thank you. If there\u2019s nothing further, you\u2019re both excused. Thank you.\nMR. FERNANDEZ: Thank you, Your Honor.\nPlaintiff maintains that because the state court action was filed before the federal case, it does not constitute a \u201csubsequent suit\u201d and, thus, res judicata is inapplicable. In support of this claim, plaintiff cites to language in Myers v. Olson.\nWe do not read Myers v. Olson as narrowly as plaintiff. In that case, the supreme court said, \u201cUnder the doctrine of res judicata, a prior judgment on the merits bars a subsequent suit involving the same parties or privies based on the same cause of action.\u201d Id., 100 N.M. at 747, 676 P.2d at 824 (emphasis added). The supreme court went on to say that the rationale for the application of the doctrine is to protect individuals from the burden of multiple litigation, \u201cto promote judicial economy, and to promote the policy favoring reliance on final judgments by minimizing the possibility of inconsistent decisions.\u201d Id. Plaintiff does not tell us how that rationale would be affected by which suit was filed first.\nIn Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963) (En Banc), the Arizona Supreme Court held that if two actions involving the same issues and parties are pending at the same time when a judgment in one becomes final, it may be raised in bar of the other, regardless of which action was begun first.\nThe order in the federal suit was a final adjudication and effectively barred the present suit. See Fed.R.Civ.P. 41(b); 5 J. Moore, J. Lucas & J. Wicker, Moore\u2019s Federal Practice 1141.14 at 41-196 (2d ed. 1986); Curry v. Educoa Preschool, Inc., 580 P.2d 222 (Utah 1978).\nSummary judgment is affirmed. Plaintiff shall bear the costs of appeal.\nIT IS SO ORDERED.\nDONNELLY, C.J., and GARCIA, J., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Gary Fernandez, Grants, for plaintiff-appellant.", "M. Clea Gutterson, Gallagher & Casados, P.C., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "744 P.2d 557\nTom CARTER, Plaintiff-Appellant, v. Jerry THURBER, et al., Defendants-Appellees.\nNo. 10097.\nCourt of Appeals of New Mexico.\nOct. 6, 1987.\nGary Fernandez, Grants, for plaintiff-appellant.\nM. Clea Gutterson, Gallagher & Casados, P.C., Albuquerque, for defendants-appellees." }, "file_name": "0429-01", "first_page_order": 469, "last_page_order": 472 }