 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CORRINE FLORES,

 8          Plaintiff-Appellant,

 9 v.                                                                                   NO. 31,295

10 BRETT HENDERSON, M.D.,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Manuel I. Arrieta, District Judge

14 Martin, Lutz, Roggow & Eubanks, P.C.
15 David P. Lutz
16 Las Cruces, NM

17 for Appellant

18 The Furth Firm
19 Ben Furth
20 Las Cruces, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1        Plaintiff appeals the grant of summary judgment in favor of Defendant on her

 2 complaint of tortious interference with prospective contractual relations. In our

 3 notice, we proposed to affirm. Plaintiff has timely responded. We have considered

 4 her arguments and affirm. We also proposed to dismiss the cross-appeal filed by

 5 Defendant, as no docketing statement was filed. Defendant has not responded to our

 6 proposal. Therefore, we dismiss his cross-appeal.

 7        In our notice, we identified the elements for a claim of tortious interference with

 8 prospective contractual relations. One of those elements requires a showing that the

 9 defendant had an improper motive solely to harm the plaintiff or acted through

10 improper means. Kelly v. St. Vincent Hosp., 102 N.M. 201, 207, 692 P.2d 1350, 1356

11 (Ct. App. 1984). Here, Defendant moved for summary judgment on the basis that he

12 had a legitimate business reason for his actions. See Zarr v. Washington True

13 Solutions, LLC, 2009-NMCA-050, ¶ 25, 146 N.M. 274, 208 P.3d 919 (citing Kelly,

14 102 N.M. at 207, 692 P.2d at 1356).

15        As we pointed out in our notice, once the movant meets his initial burden of

16 negating at least one of the essential elements upon which the claim is grounded, the

17 burden shifts to the non-moving party to come forward with admissible evidence to

18 establish each element of the claim. Plaintiff contends that this Court misapplied the

19 standard of review on the grant of summary judgment. She argues that we failed to


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 1 view all the pleadings and allegations of fact in the light most favorable to trial on the

 2 merits.    In particular, she points out that this Court mentioned only that her

 3 employment was not terminated, but did not point out that her transfer caused her to

 4 lose hours and pay. [MIO 6] We do not see how this fact creates a triable issue on

 5 whether or not Defendant employed an improper means or motive to interfere with

 6 Plaintiff’s employment.

 7        Also, she finds fault with our reference to her affidavit “questioning the care

 8 that Defendant provides his patients.” She points out that her affidavit concerned only

 9 the care provided her uncle and nothing about Defendant’s care of any of his other

10 patients. [MIO 6] Again, we fail to see how our phraseology affects the facts relevant

11 to triable issues. The affidavit questioned the care that Defendant provided one of his

12 patients, Plaintiff’s uncle. Whether it was one patient or many, it was nevertheless an

13 affidavit in which a nurse, who was attending to Defendant’s surgical patients,

14 questioned his care of a patient. Thus, the relevant facts are that Plaintiff, as a nurse,

15 filed an affidavit in a malpractice lawsuit against Defendant, in which she questioned

16 his care of her uncle, one of his surgical patients. [RP Vol. II, 218-220]

17        Further, she argues that the time frame of the retaliation began in 2008 after the

18 filing of her uncle’s lawsuit, not in 2009, when she filed her affidavit in that lawsuit.

19 She contends that her affidavit established that Defendant’s retaliation had been going


                                               3
 1 on for a year before she filed her affidavit. [RP Vol. II, 333-334] Thus, she appears

 2 to be arguing that the basis of Defendant’s request that she not attend any of his

 3 patients was the filing of the malpractice suit by her uncle rather than her affidavit

 4 filed in that suit. Plaintiff asserts that she has created an issue of material fact relating

 5 to when the interference began and that it was in fact caused by the filing of her

 6 uncle’s malpractice case. Plaintiff’s affidavit filed in that case indicates that she had

 7 questioned Defendant’s care of her uncle before the lawsuit was even filed. [RP Vol.

 8 II, 218-220] Thus, the fact that Defendant sought to limit her contact with his clients

 9 once the lawsuit was filed rather than when she filed his affidavit in that lawsuit is not

10 material. His request that she not attend his patients was a result of her questioning

11 the care that he gave one of his patients, her uncle. Thus, he established a valid

12 business reason for his request.

13        Plaintiff attempts to make this case about whether or not a person is protected

14 from truthfully testifying in a civil case. [MIO 1, 3, 12-13] It appears that Plaintiff

15 seeks to protect her “speech” by filing a lawsuit claiming tortious interference with

16 prospective contractual relations. However, as we pointed out in our notice, such a

17 claim is limited to an intentional interference with contractual relations through an

18 improper means or improper motive. M & M Rental Tools, Inc. v. Milchem, Inc., 94

19 N.M. 449, 453, 612 P.2d 241, 245 (Ct. App. 1980). There is liability only where the


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 1 interference is without justification. Even if there may have been a motive to harm

 2 the plaintiff, if there is a legitimate business reason for his actions, the defendant will

 3 not be liable. Zarr, 2009-NMCA-050, ¶ 25.

 4        Here, Defendant established a legitimate business reason for his action in

 5 requesting that Plaintiff not tend his patients. Even though Plaintiff argues that motive

 6 is a factual question and should get the benefit of a trial, motive is irrelevant if

 7 Defendant shows a legitimate business reason for his actions. See Clough v. Adventist

 8 Health Sys., Inc., 108 N.M. 801, 806, 780 P.2d 627, 632 (1989). Thus, material issues

 9 of fact relating to motive do not assist Plaintiff in meeting her burden of showing that

10 Defendant is not entitled to judgment as a matter of law.

11        Plaintiff asserts in her memorandum that this case can only be properly decided

12 on the general calendar. [MIO 10] First, she contends that this Court needs to review

13 the transcript of the summary judgment hearing in order to determine error. [MIO 10]

14 As there is no presentation of evidence at a summary judgment hearing, we fail to see

15 why the papers before this Court, which are what the district court based its decision

16 on, are insufficient to decide the case. Second, she contends that out-of-state

17 authorities support her claim that retaliation for the filing of a lawsuit can support a

18 complaint for interference with contractual relations. [MIO 10] This Court does not

19 need to rely on out-of-state authorities to decide the issues here. Thus, there is no


                                                5
 1 reason for assignment to the general calendar. Finally, she contends that this case

 2 raises important policy issues that should merit the benefit of “full appeal under the

 3 General Calendar.” [MIO 13] Plaintiff has been given the opportunity on the

 4 summary calendar to present her policy issues and her view of the relevant facts and

 5 law.      None of her arguments convince us that the district court erred in its

 6 determination in this case.

 7        For the reasons stated herein and in the notice of proposed disposition, we

 8 affirm.

 9        IT IS SO ORDERED.

10                                         __________________________________
11                                         LINDA M. VANZI, Judge

12 WE CONCUR:



13 _________________________________
14 JONATHAN B. SUTIN, Judge



15 _________________________________
16 CYNTHIA A FRY, Judge




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