 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 GILA REGIONAL MEDICAL CENTER,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 31,149

10 CHINONYEREM OSUAGWU, M.D.,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
13 Henry R. Quintero, District Judge

14 Sandenaw Law Firm, P.C.
15 CaraLyn Banks
16 Las Cruces, NM

17 for Appellee

18 Chinonyerem Osuagwu, M.D.
19 Albuquerque, NM

20 Pro Se Appellant


21                                 MEMORANDUM OPINION

22 VANZI, Judge.
 1        Chinonyerem Osuagwu, M.D. (Defendant) appeals from the district court’s

 2 order granting Gila Regional Medical Center’s (Plaintiff’s) motion for summary

 3 judgment. [RP 276] The calendar notice proposed summary reversal. [Ct. App. File,

 4 CN1] Defendant has filed a memorandum in support of the proposed disposition, and

 5 Plaintiff has filed a memorandum in opposition. [Ct. App. File, MIS, MIO] After

 6 due consideration, we remain persuaded that summary judgment is procedurally and

 7 substantively premature and inappropriate on the merits of Defendant’s affirmative

 8 defenses and proposed counterclaims.           We reverse and remand for further

 9 proceedings.

10 DISCUSSION

11        “Summary judgment is appropriate where there are no genuine issues of

12 material fact and the movant is entitled to judgment as a matter of law.” Self v. United

13 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review

14 these legal questions de novo.” Id.

15        Plaintiff’s complaint asserts that Defendant breached the hiring agreement,

16 because, when Defendant left prematurely, Defendant did not repay Plaintiff for the

17 living expenses stipend that Plaintiff paid Defendant while Defendant started his

18 medical practice at Plaintiff medical center. [RP 1-6] According to the motion for

19 summary judgment, it is undisputed that Plaintiff hired Defendant as an


                                              2
 1 obstetrician/gynecologist under a hiring contract and that Plaintiff paid Defendant

 2 approximately $168,000 in living expense stipend. [RP 158-59] It is also undisputed

 3 that Defendant left the practice prematurely, having been unfairly forced out

 4 (Defendant) or having “retired” and left the area (Plaintiff). Plaintiff contends it is

 5 entitled to summary judgment because Defendant breached the hiring contract by not

 6 paying back the living stipend when he “retired” from practice with Plaintiff, while

 7 Defendant contends that Plaintiff breached the hiring contract because he was

 8 terminated without cause/due process and based upon, among other things, alleged

 9 inaccuracies in the charges against him.

10        The district court notes in the order granting summary judgment that the

11 circumstances of Plaintiff’s leaving are at issue. [RP 277, No. 10] The district court

12 also rules on the merits of these disputed circumstances, however, stating that it has

13 viewed Plaintiff’s bylaws and finds that Defendant received due process. [RP 277,

14 No. 13] The district court further determines that, as a matter of law, Defendant does

15 not establish the defense of impossibility. [RP 277, No. 15] In the order, the district

16 court also asserts that Defendant admitted (in a transcript of proceedings) that

17 Defendant did not appeal from the proceedings that resulted in his dismissal or

18 termination/retirement. [RP 277, No. 12] Finally, the district court states in the order




                                              3
 1 that summary judgment for Plaintiff has rendered all other motions moot. [RP 278,

 2 No. 3]

 3          The record reflects that Defendant’s answer to Plaintiff’s complaint asserts

 4 Plaintiff’s breach of the hiring contract as an affirmative defense to Plaintiff’s claims

 5 that Defendant breached the contract. [RP 26, No. 20] Defendant, who had counsel

 6 at that time, also filed a motion to amend the answer to add counterclaims, which

 7 included allegations that Plaintiff had breached the hiring contract as well as other

 8 claims. [RP 42] Plaintiff responded, objecting to the motion to amend. [RP 52]

 9 Defendant replied. [RP 58] While it appears that there was a hearing on the motion

10 to amend on December 20, 2010, the record proper does not reflect that the district

11 court ruled on Defendant’s motion to amend his answer to add counterclaims. Rather,

12 Defendant’s counsel moved to withdraw, and the district court allowed him to do so.

13 [RP 74] The district court did not rule on Defendant’s motion to amend his answer

14 to add counterclaims.

15          In the memorandum, Plaintiff acknowledges that the district court did not

16 “technically” rule on Defendant’s motion to amend to add counterclaims but asserts

17 that the district court “de facto allowed the amendment” and evaluated the merits of

18 Defendant’s counterclaims in connection with granting summary judgment. [MIO 2]

19 In fact, Plaintiff acknowledges numerous factual disputes, argues the merits of its own


                                               4
 1 position, and points out that the district court resolved these disputes in granting

 2 summary judgment. [MIO 5-6, 8-9, 9-12, 21] To the extent that Plaintiff considers,

 3 throughout the memorandum in opposition, that it is appropriate for the district court

 4 to resolve disputed facts as part of summary judgment proceedings when trial is to the

 5 bench rather than a jury, we disagree. See, e.g., Truong v. Allstate Ins. Co.,

 6 2008-NMCA-051, ¶ 23, 143 N.M. 831, 182 P.3d 814 (discussing that summary

 7 judgment is not consistent with the fact finding involved in a bench trial), rev’d on

 8 other grounds, 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73. When factual disputes

 9 exist, the district court is required to hold a trial to the bench or to the jury as the case

10 may be. Again, the summary judgment phase of trial is not appropriate for resolving

11 factual disputes even when trial will be to the bench. At trial, the fact finder, here the

12 district court, weighs the evidence, determines the credibility of the witnesses, and

13 resolves the conflicts in the facts. Unlike following summary judgment, following

14 trial, the district court enters findings and conclusions and final judgment.

15        Finally, as we mentioned in the calendar notice, while the district court and/or

16 Plaintiff may consider Defendant’s failure to appeal from the underlying grievance

17 process to be an absolute defense to all of Defendant’s affirmative defenses and

18 counterclaims, it appears that the facts surrounding those proceedings, whether they

19 fully resolved the issues between Plaintiff and Defendant, when they ended, and when


                                                 5
 1 and how they were to be appealed, also have not been established and remain in

 2 dispute.

 3        Under the circumstances of this case, we hold that, as a procedural matter, the

 4 district court has prematurely and inappropriately granted summary judgment to

 5 Plaintiff on its breach of contract/money due claims; that is, prior to ruling on

 6 Defendant’s motion to amend his answer to add counterclaims. In addition, we hold

 7 that, as a substantive matter, the district court has prematurely and inappropriately

 8 ruled on the merits of Defendant’s affirmative defenses and/or proposed

 9 counterclaims, prior to ruling on Defendant’s motion to amend his answer to add

10 counterclaims under circumstances where Plaintiff has not set forth or established the

11 facts and legal doctrines applicable to the affirmative defenses and proposed

12 counterclaims, and the facts and the applicable legal doctrines are very much in

13 dispute.

14 CONCLUSION

15        We reverse the district court’s order granting Plaintiff summary judgment and

16 remand for a ruling on Defendant’s motion to amend and for trial on the merits.

17        IT IS SO ORDERED.



18                                         __________________________________
19                                         LINDA M. VANZI, Judge

                                             6
1 WE CONCUR:



2 _________________________________
3 RODERICK T. KENNEDY, Judge



4 _________________________________
5 TIMOTHY L. GARCIA, Judge




                                  7
