 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 INARA CEDRINS,

 8          Plaintiff-Appellant,

 9 v.                                                                                    NO. 30,543

10 SANTA FE COMMUNITY COLLEGE,

11          Defendant-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Sarah M. Singleton, District Judge

14 Inara Cedrins
15 Chicago, Ill

16 Pro Se Appellant

17 Sutin, Thayer & Browne, P.C.
18 Susan M. Hapka
19 Albuquerque, NM

20 for Appellee



21                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Plaintiff appeals pro se from an order granting Defendant’s motion for summary

 3 judgment on Plaintiff’s claim for breach of contract and granting Defendant’s motion

 4 to dismiss on the remainder of Plaintiff’s claims. We proposed to affirm in a notice

 5 of proposed summary disposition, and Plaintiff filed a timely objection to our

 6 proposed disposition. Defendant then filed a timely memorandum in support of our

 7 proposed summary disposition. After reviewing Plaintiff’s objection and Defendant’s

 8 memorandum, we remain convinced that affirmance is appropriate and thus we affirm

 9 the district court’s order dismissing Plaintiff’s claims and granting summary judgment

10 to Defendant.

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 . “The movant

14 need only make a prima facie showing that he is entitled to summary judgment. Upon

15 the movant making a prima facie showing, the burden shifts to the party opposing the

16 motion to demonstrate the existence of specific evidentiary facts which would require

17 trial on the merits.” Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-

18 45 (1992) (citations omitted). A party opposing summary judgment may not simply

19 argue that evidentiary facts requiring a trial on the merits may exist, “nor may [a


                                              2
 1 party] rest upon the allegations of the complaint.” Dow v. Chilili Coop. Ass’n, 105

 2 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986).



 3 Breach of contract

 4        In our previous notice of proposed summary disposition, we proposed to affirm

 5 the order granting summary judgment on Plaintiff’s breach of contract claim because

 6 governmental entities such as Defendant are immune from actions based on contract

 7 unless the action is based on a written contract. [RP 266-274, 280-290] See NMSA

 8 1978, § 37-1-23(A) (1976). We noted that, in the absence of a valid written contract

 9 between Plaintiff and Defendant, sovereign immunity bars Plaintiff’s breach of

10 contract claim and any other claims based upon an alleged contract or agreement

11 between Plaintiff and Defendant. See, e.g., Cockrell v. Board of Regents of N.M. State

12 Univ., 2002-NMSC-009, ¶ 10, 132 N.M. 156, 45 P.3d 876 (discussing the doctrine of

13 sovereign immunity generally, and stating that, under Section 37-1-23(A), the state

14 is immune from contract actions that are not based on a valid written contract); see

15 also Handmaker v. Henney, 1999-NMSC-043, ¶ 14, 128 N.M. 328, 992 P.2d 879

16 (interpreting the language of Section 37-1-23(A) to suggest that the legislature

17 intended to “establish an entitlement on the part of the government not to stand trial

18 or face the other burdens of litigation for actions based on unwritten contracts”).


                                             3
 1        Plaintiff was explicitly told to produce a copy of the written contract including

 2 a copy of the portions of the student handbook upon which she relied and the portions

 3 which were allegedly breached. [RP 267, 384] She failed to do so and instead

 4 produced a few course descriptions, some information from Defendant’s website,

 5 some emails between herself and an instructor working for Defendant, and additional

 6 irrelevant materials, which she claims constitute a written contract. [Obj. 1; RP 111-

 7 131, 384] We are unpersuaded that these materials establish a written contract

 8 between Plaintiff and Defendant. [RP 384] See Campos de Suenos, Ltd. v. County of

 9 Bernalillo, 2001-NMCA-043, ¶ 26, 130 N.M. 563, 28 P.3d 1104 (expressing “grave

10 reservations” whether any implied-in-fact contract should override governmental

11 immunity outside of the employment context); cf. Ruegsegger v. Board of Regents of

12 W. N.M. Univ., 2007-NMCA-030, ¶¶ 21-37, 141 N.M. 306, 154 P.3d 681 (holding

13 that, even if a student under some set of circumstances could assert a breach of

14 contract claim against a governmental entity based upon the terms of a student

15 handbook, given the materials presented in this case, the plaintiff had failed to state

16 such a claim).

17        In light of Plaintiff’s failure to establish a written contract, the district court was

18 justified in concluding that Defendant is immune from suit on all causes of action

19 brought by Plaintiff in contract and dismissing those claims with prejudice.


                                                 4
 1 Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through
 2 2009) (UPA) and Other Claims Sounding in Tort

 3        In our previous notice, we proposed to affirm the dismissal of Plaintiff’s claim

 4 based on the UPA because the UPA does not cover governmental entities such as

 5 Defendant. See Stansell v. New Mexico Lottery, 2009-NMCA-062, ¶ 12, 146 N.M.

 6 417, 211 P.3d 214 (holding that a state entity is not a “person” subject to the UPA).

 7 Moreover, we proposed to hold that Plaintiff’s claims based on fraud,

 8 misrepresentation, or any other claims sounding in tort were properly dismissed

 9 because she failed to present a claim for which immunity had been waived under the

10 Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2009)

11 (TCA). [RP 384] See Valdez v. State, 2002-NMSC-028, ¶ 9, 132 N.M. 667, 54 P.3d

12 71 (holding that sovereign immunity is not waived under the TCA for claims based

13 upon “economic compulsion or constructive fraud” so “the government cannot be

14 sued for these causes of actions”).

15        In her objection, Plaintiff continues to claim that Defendant and its agents

16 should have given her additional information about the courses provided and

17 information about other less expensive alternatives, but she fails to show how her

18 contentions establish a claim for which immunity has been waived under the TCA.

19 [Obj. 1-2] Therefore, we affirm the dismissal of Plaintiff’s claims under the UPA and

20 any other claims for economic damages sounding in tort.

                                              5
 1 Remaining issues

 2        In her objection, Plaintiff reasserts her contention that “[e]vidence showed

 3 Plaintiff was at the top of her class” and that certain of her questions were never

 4 answered. [Obj. 2] She claims that the failure to answer her questions proves

 5 negligence and substandard teaching. [Obj. 2] Given that Plaintiff’s claims against

 6 Defendant were dismissed based on grounds of sovereign immunity, any such

 7 negligence on the part of Defendant’s staff in failing to answer Plaintiff’s questions

 8 or misstating Plaintiff’s academic standing is immaterial to the dismissal of her

 9 complaint. Therefore, these contentions, even if true, do not warrant reversal of the

10 district court’s order dismissing Plaintiff’s complaint. See generally In re Estate of

11 Heeter, 113 N.M. 691, 695, 831 P.2d 990, 994 (Ct. App. 1992) (stating that “[o]n

12 appeal, error will not be corrected if it will not change the result”).

13 Conclusion

14        For the reasons set forth above and those discussed in our notice of proposed

15 summary disposition, we affirm the district court’s order dismissing Plaintiff’s claims

16 and granting summary judgment to Defendant on Plaintiff’s claim for breach of

17 contract.

18        IT IS SO ORDERED.




                                               6
1                               ___________________________________
2                               CELIA FOY CASTILLO, Judge



3 WE CONCUR:




4 __________________________________
5 JAMES J. WECHSLER, Judge




6 __________________________________
7 JONATHAN B. SUTIN, Judge




                                  7
