N.M. R. Civ. P. Dist. Ct. 1-056
If alternative grounds for summary judgment have been presented to the court, the order granting or denying the motion for summary judgment shall specify the grounds upon which the order is based.
The memorandum in support of the motion shall set out a concise statement of all of the material facts as to which the moving party contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which the moving party relies.
A memorandum in opposition to the motion shall contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and shall state the number of the moving party's fact that is disputed. All material facts set forth in the statement of the moving party shall be deemed admitted unless specifically controverted.
N.M. R. Civ. P. Dist. Ct. 1-056
For statutes on confession of judgments, see Sections 39-1-9 to 39-1-18 NMSA 1978. Compiler's notes. - This rule is deemed to have superseded 105-822, C.S. 1929, relating to summary judgment for plaintiffs in contract actions. I. GENERAL CONSIDERATION. Summary judgment evidence. - For purposes of summary judgment, while a court must consider evidence even if the form of evidence, such as a deposition, would be inadmissible at trial, the court cannot consider evidence if the substance of the evidence is inadmissible at trial. Wilde v. Westland Dev. Co., Inc., 2010-NMCA-085, 148 N.M. 627, 241 P.3d 628. A court cannot consider evidence for purposes of summary judgment if the substance of the evidence would be inadmissible at trial. - In a foreclosure action, at the summary judgment stage of the proceedings, where defendants submitted an affidavit from an attorney who had conducted a loan audit, the district court did not abuse its discretion in striking the affidavit where most of the statements in the affidavit contained legal conclusions which would have been inadmissible at trial, and where the only statement in the affidavit concerning a disputed legal issue referred to documents and county records, copies of which were not attached to the affidavit, in violation of Rule 1-056(E) NMRA. Flagstar Bank v. Licha, 2015-NMCA-086. Standard for summary judgment. - Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Where reasonable minds will not differ as to an issue of material fact, the court may properly grant summary judgment. All reasonable inferences are construed in favor of the non-moving party. New Mexico courts view summary judgment with disfavor, preferring a trial on the merits. Summary judgment may be proper when the movant has met its initial burden of establishing a prima facie case for summary judgment. The evidence adduced must result in reasonable inferences. When disputed facts do not support reasonable inferences, they cannot serve as a basis for denying summary judgment. Only when the inferences are reasonable is summary judgment appropriate. In addition to requiring reasonable inferences, New Mexico law requires that the alleged facts at issue be material to survive summary judgment. To determine which facts are material, the court must look to the substantive law governing the dispute. The inquiry's focus should be on whether, under substantive law, the fact is necessary to give rise to a claim. Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280, rev'g 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873. Appellate review of summary judgment. - In reviewing an appeal from a summary judgment, an appellate court indulges all reasonable inferences and views all the facts in the light most favorable to the party opposing the summary judgment, and the district court's decision to grant summary judgment and all other issues of law are reviewed de novo. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012. Reasonableness of subdivision covenant amendments is a question of fact. - Where the original covenants of a subdivision in which plaintiffs owned a remote lot provided that the homeowner's association was responsible for maintaining all roads in the subdivision, including the road that served plaintiffs' lot; the homeowner's association amended the covenants to limit the homeowner's association's maintenance responsibility to specific roads that led to common recreation areas; the amendment excluded the road to plaintiffs' lot, but included roads that led to the majority of lots in the subdivision; and plaintiffs were still required to pay common assessments to fund maintenance costs of roads to the common recreation areas and to privately maintain the road to their lot, the issue of whether the amendment was reasonable was a question of fact and the district court erred in awarding summary judgment for the homeowner's association. Nettles v. Ticonderoga Owner's Ass'n, Inc., 2013-NMSC-030. Extrinsic evidence of ambiguity in document prevents summary judgment. - If a written document, construed in light of circumstances surrounding its making, is reasonably and fairly susceptible of different constructions, an ambiguity exists, and summary judgment is not proper and even if the language of a document appears to be clear and unambiguous, the court should consider extrinsic evidence of the circumstances surrounding the making of the document to decide whether the document is ambiguous. City of Rio Rancho v. Amrep Southwest, Inc., 2010-NMCA-075, 148 N.M. 542, 238 P.3d 911, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. Where defendant's final subdivision plat labeled a ten-acre parcel of land as a drainage easement; plaintiff claimed that the parties intended that the parcel be set aside as open space in perpetuity; defendant claimed that the parties intended that the parcel be encumbered by a drainage easement and that defendant retain ownership of the parcel; plaintiff presented extrinsic evidence that defendant's preliminary subdivision plat and drainage management plan designated the parcel as open space, defendant's agent had stated that the parcel would be part of a park site, defendant represented to purchasers of lots that the parcel was open space, the parcel is an elevated area that had no drainage control function, defendant knew that plaintiff carried the parcel on plaintiff's inventory of open space, and the designation of the parcel as a drainage easement was a surrogate means of dedication so that the parcel would not be confused with defendant's obligation to donate open space under a 1979 settlement agreement; defendant contended that the dedication statement on the final plat did not dedicate the parcel to plaintiff, because plaintiff had requested that the parcel not be dedicated, plaintiff required defendant to maintain the parcel, and plaintiff approved the platting of other parcels that were designated as drainage easements; and the district court granted summary judgment for defendant based on the language of the final plat, the extrinsic evidence of the parties presented a genuine issue of material fact as to the parties' intent in designating the parcel as a drainage easement and the district court erred in granting summary judgment for defendant. City of Rio Rancho v. Amrep Southwest, Inc., 2010-NMCA-075, 148 N.M. 542, 238 P.3d 911, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. Summary judgment based on admissions of a codefendant. - A summary judgment against one defendant cannot bind a codefendant where the summary judgment is based on the deemed admissions of the defendant. Alba v. Hayden, 2010-NMCA-037, 148 N.M. 465, 237 P.3d 767. Where plaintiff signed a real estate contract to sell property to defendant Hayden; defendant Hayden signed the contract and began making payments; plaintiff claimed that plaintiff orally withdrew plaintiff's offer to sell the property before defendant Hayden signed the contract; plaintiff refused to accept further payments from defendant Hayden; defendant Hayden transferred the property to defendant White by quitclaim deed; because defendant Hayden failed to answer requests for admissions, defendant Hayden was deemed to have admitted that defendant Hayden signed the contract after plaintiff rescinded the offer to sell the property and that defendant had not given any written assignment of any rights defendant Hayden claimed to possess to defendant White; the trial court entered summary judgment against defendant Hayden; and following a trial on the merits, the district court held that the contract between plaintiff and defendant Hayden was valid and that defendant White obtained a valid title from defendant Hayden, defendant White was not bound by the summary judgment entered against defendant Hayden. Alba v. Hayden, 2010-NMCA-037, 148 N.M. 465, 237 P.3d 767. Investigation by plaintiff's medical peers was reasonable as a matter of law. - Where defendant suspended plaintiff's medical privileges based on plaintiff's use of inappropriate sexually explicit language with patients; defendant claimed immunity from suit under 42 U.S.C. § 11112 of the Health Care Quality Act of 1986; the suspension was based primarily on a consideration by an ad hoc review committee of notes taken by a case manager during a telephone interview of the complaining patient after the patient had been discharged from the hospital; neither the case manager nor the complaining patient were ever contacted or questioned by defendant regarding the incident; and plaintiff's privileges were suspended after two investigations by separate ad hoc committees that included a review of the records of plaintiff's other patients, reviews of the ad hoc committee reports by defendant's medical executive committee, an appeal to a professional review committee at which plaintiff presented evidence and cross-examined witnesses, a final review by defendant's appellate review committee, and a review by defendant's board of trustees of the entire record, plaintiff's allegations of bad faith and failure of the ad hoc committee to interview the case manager and the complaining patient were not sufficient to meet the required burden on summary judgment of showing that the review process was unreasonable as a whole. Summers v. Ardent Health Servs., LLC, 2011-NMSC-017, 150 N.M. 123, 257 P.3d 943, rev'g 2010-NMCA-026, 147 N.M. 506, 226 P.3d 20. Genuine issue of material fact regarding medial negligence. - Where plaintiff was admitted to defendant's emergency room with abdominal pain; a contract radiologist performed an abdominal scan on plaintiff; the radiology report concluded that defendant had a diverticular abscess and that cancer was a possibility; the emergency physician and surgeon never received the radiologist's report; plaintiff was diagnosed with colon cancer fourteen months later; plaintiff sued defendant alleging that as a consequence of defendant's failure through an administrative inadequacy to forward the radiology report to the surgeon, plaintiff was treated for a diverticular abscess, allowing the cancer to grow; and in response to defendant's motion for summary judgment, plaintiff filed a statement by the surgeon that had the surgeon known about plaintiff's cancer, the surgeon would have contacted plaintiff and affidavits by plaintiff's oncologist that the delay in treating plaintiff's cancer had a significant impact on plaintiff's chances of survival, and an independent radiologist that the transmission of a cancer diagnosis by a radiologist to the treating physician was an ordinary communication issue, plaintiff's response was sufficient to show a genuine issue of material fact concerning defendant's negligence. Zamora v. St. Vincent Hospital, 2014-NMSC-035. Genuine issue of material fact regarding medical professional review process. - Where defendant suspended plaintiff's medical privileges based on defendant's finding that plaintiff used inappropriate sexually explicit language with patients; defendant filed a motion for summary judgment on the grounds that because defendant had suspended plaintiff's medical privileges after defendant had taken reasonable efforts to obtain the facts of the matter, defendant was immune from suit under 42 U.S.C. § 11112 of the Health Care Quality Act of 1986; the suspension was based primarily on a consideration of the notes taken by a case manager during a telephone interview of the complaining patient after the patient had been discharged from the hospital; neither the case manager nor the complaining patient were ever contacted or questioned by defendant regarding the incident; and plaintiff disputed the allegations throughout the professional review process, a genuine issue of material fact existed regarding the reasonableness of defendant's efforts to obtain the facts of the matter during the professional review process and the court properly denied defendant's motion for summary judgment. Summers v. Ardent Health Servs., LLC, 2010-NMCA-026, 147 N.M. 506, 226 P.3d 20, cert. granted, 2010-NMCERT-003, 148 N.M. 559, 240 P.3d 14. Effective grant of summary judgment. - Where decedent died in a nursing home; plaintiff, as the personal representative of decedent's estate, sued defendant for wrongful death; in its answer to plaintiff's complaint for wrongful death, defendant noted that its subsidiary was the owner and operator of the nursing home, denied that defendant owned and operated the nursing home, and denied that it was the employer of the staff of the nursing home; defendant filed a motion for summary judgment on plaintiff's punitive damages claim arguing that there was no evidence that either defendant or the nursing staff had any malicious intent; and in response to plaintiff's oral motion for a ruling at the hearing on defendant's motion for summary judgment, the district court found that defendant was the employer of the nursing staff, the district court's finding constituted partial summary judgment for plaintiff because the finding resolved a disputed question of fact concerning whether defendant employed the staff of the nursing home. Keith v. ManorCare, Inc., 2009-NMCA-119, 147 N.M. 209, 218 P.3d 1257, cert. granted, 2009-NMCERT-010. Estoppel to plead inconsistent claims. - Where decedent was employed in the gift shop of a tribal casino; the manager of the gift shop, decedent and another employee consumed a quart of rum at work; at the end of decedent's shift, decedent clocked out and returned to the gift shop to talk to the manager about a promotion; and decedent left the casino and was killed in an automobile accident; plaintiffs, who were decedents personal representatives, initially filed a complaint for workers' compensation benefits with the Workers' Compensation Administration; in the workers' compensation proceeding, defendants argued that plaintiffs had no remedy through workers' compensation because decedent's death did not occur within the course and scope of decedent's employment; plaintiffs acquiesced in defendants' argument and did not reject the workers' compensation mediator's recommendation that the claim be denied; and plaintiffs filed a wrongful death action in district court, summary judgment for defendants on the ground that workers' compensation provided the exclusive remedy was improper because defendants were estopped from arguing in district court, contrary to defendants' position in the workers' compensation proceeding, that because defendants were negligent in their actions preceding decedent's death, workers' compensation provided the exclusive remedy. Guzman v. Laguna Development Corp., 2009-NMCA-116, 147 N.M. 244, 219 P.3d 12. Court not bound by the parties' assertions of conclusions of law. - In ruling on a motion for summary judgment, a court is not bound by the petitioner's assertions of conclusions of law whether in a petition, complaint or motion for summary judgment, even if the conclusions are admitted by the opposing party. Vives v. Verzino, 2009-NMCA-083, 146 N.M. 673, 213 P.3d 823. The parties' assertions of conclusions of law are not binding on the court. - Where petitioner filed a declaratory judgment action to be removed from the sex offender registry; respondents filed motions to dismiss the action for lack of jurisdiction; the court denied the motions to dismiss; the parties agreed to resolve the case by summary judgment; and respondents never answered the petition or otherwise denied petitioner's averments that petitioner was not required by law to register as a sex offender, the district court was not bound by petitioner's uncontroverted conclusions of law. Vives v. Verzino, 2009-NMCA-083, 146 N.M. 673, 213 P.3d 823. Defendant's admissions of plaintiff's conclusions of law in his complaint were not material to summary judgment analysis. - Where defendant, in his answer to plaintiff's complaint, made certain admissions to plaintiff's conclusions of law regarding legal duties, and where plaintiff, in his response to defendant's motion for summary judgment, argued that defendant was bound by these admissions, the district court was not obligated to accept the admissions, but had an obligation independently to determine the accuracy of plaintiff's assertions of duty on the part of defendant. Therefore, defendant's admissions as to its duty in its answer were not material to the district court's determination whether disputed issues of fact precluded summary judgment in favor of defendant. Hernandez v. Grando's LLC, 2018-NMCA-072. Summary judgment improper where plaintiff established a question of fact as to lessor's duty to repair leased equipment. - Where plaintiff injured himself while exiting a commercial truck that plaintiff's employer had leased from defendant, and where defendant, who retained the right to inspect his leased vehicles, was specifically informed that the step of the truck was broken, the district court erred in granting defendant's motion for summary judgment, because plaintiff's affidavit testimony established a question of fact whether defendant had notice of the defect, and thus whether it owed and breached a duty to properly and adequately repair the defective truck step. Hernandez v. Grando's LLC, 2018-NMCA-072. Standing. - Family members are third-party beneficiaries of burial contracts and may sue for breach of a burial contract. Eisert v. Archdiocese of Santa Fe, 2009-NMCA-042, 146 N.M. 179, 207 P.3d 1156. Release of claims. - Where the owner, contractor and subcontractor were aware of the subcontractor's unliquidated claims for subballast when the subcontractor applied for payment of completed work under the contract and signed releases of all claims; the subballast was supplied at the request of the owner to address a soil problem that made it difficult to prospectively measure the exact amount of subballast required to correct the problem; the subcontractor's evidence showed that the understanding of the parties was that the subcontractor would supply additional subballast necessary to address the problem; the written communications concerning the understanding of the parties did not mention that the subcontractor had made an estimating error or that the subcontractor had assumed the risk of solving the problem; and the contractor had ignored the releases and issued a change order for separate field ticket work, the coverage of the releases was ambiguous and the district court improperly granted summary judgment on the subcontractor's claim for the additional subballast. J.R. Hale Contracting Co., Inc. v. Union Pacific R.R., 2008 -NMCA-037, 143 N.M. 574, 179 P.3d 579. Generally as to summary judgment. - Summary judgment provides a method whereby it is possible to determine whether a genuine claim for relief or defense exists and whether there is a genuine issue of fact warranting the submission of the case to the jury. Meeker v. Walker, 1969-NMSC-053, 80 N.M. 280, 454 P.2d 762; Agnew v. Libby, 1949-NMSC-004, 53 N.M. 56, 201 P.2d 775; Pederson v. Lothman, 1958-NMSC-003, 63 N.M. 364, 320 P.2d 378. Trial courts are to bring litigation to an end at an early stage when it clearly appears that one of the parties is entitled to a judgment in the case as made out by the pleadings and the admissions of the parties. The courts are not intended to substitute a new method of trial when an issue of fact exists. Buffington v. Continental Cas. Co., 1961 -NMSC-179, 69 N.M. 365, 367 P.2d 539 A summary judgment will be granted only when the moving party is entitled to a judgment as a matter of law upon clear and undisputed facts. The purpose of the hearing on the motion for such a judgment is not to resolve factual issues but to determine whether there is any genuine issue of material fact in dispute and, if not, to render judgment in accordance with the law as applied to the established facts or, if there be a genuine factual issue, to deny the motion for summary judgment and allow the action to proceed to a trial of the disputed facts. Great W. Constr. Co. v. N.C. Ribble Co., 1967-NMSC-085, 77 N.M. 725, 427 P.2d 246. The ordinary summary judgment procedures can be used to penetrate the allegations of the pleadings to determine whether plaintiff has standing to sue; that is, whether injury in fact actually exists. The procedures provided by this rule serve a worthwhile purpose in disposing of groundless claims or claims which cannot be proved without putting the parties and the courts through the trouble and expense of full-blown trials on these claims. De Vargas Sav. & Loan Ass'n v. Campbell, 1975-NMSC-026, 87 N.M. 469, 535 P.2d 1320. Purpose of summary judgment proceeding is to expedite litigation by determining whether a party possesses competent evidence to support his pleadings so as to raise genuine issues of material fact and, if he has not, then to dispose of the matters at that state of the proceeding. Goffe v. Pharmaseal Labs., Inc., 1976-NMCA-123, 90 N.M. 764, 568 P.2d 600, rev'd in part on other grounds, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589. The purpose of summary judgment is to search out the evidentiary facts and determine the existence of a material issue from them. Stake v. Woman's Div. of Christian Serv. of Bd. of Missions, 1963-NMSC-221, 73 N.M. 303, 387 P.2d 871. The purpose of this rule is to eliminate a trial in cases where there is no genuine issue of fact although such an issue is raised by the formal pleadings. Aktiengesellschaft Der Harlander, etc. v. Lawrence Walker Cotton Co., 1955-NMSC-090, 60 N.M. 154, 288 P.2d 691; Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846. This rule is obviously designed to expedite litigation by eliminating needless trials and by avoiding frivolous defenses delaying determination of the legitimate issues. Agnew v. Libby, 1949-NMSC-004, 53 N.M. 56, 201 P.2d 775. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. Goradia v. Hahn Co., 1991-NMSC-040, 111 N.M. 779, 810 P.2d 798. Summary proceeding determines whether issue of fact exists. - A summary proceeding is not used to decide an issue of fact but rather to determine whether one exists. Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589; First Nat'l Bank v. Nor-Am Agrl. Prods., Inc., 1975-NMCA-052, 88 N.M. 74, 537 P.2d 682, cert. denied, 88 N.M. 29, 536 P.2d 1085; Withers v. Board of Cnty. Comm'rs, 1981-NMCA-032, 96 N.M. 71, 628 P.2d 316. The sole purpose of a summary judgment proceeding is to determine whether a genuine issue of material fact exists. It is not to be used to decide an issue of fact. Cebolleta Land Grant ex rel. Board of Trustees v. Romero, 1982-NMSC-043, 98 N.M. 1, 644 P.2d 515. A summary judgment motion is not an opportunity to resolve factual issues, but should be employed to determine whether a factual dispute exists. Gardner-Zemke Co. v. State, 1990-NMSC-034, 109 N.M. 729, 790 P.2d 1010. Entry of summary judgment does not violate the right to a jury trial. - Neither the Seventh Amendment to the United States Constitution nor Article II, Section 12 of the Constitution of New Mexico creates an absolute right to a jury trial in all civil cases, but instead they preserve the existing common law right to have the facts of a case tried by a jury, and rules governing and permitting entry of summary judgment do not violate the right to have a jury decide a case. The summary judgment process differentiates issues, and sometimes cases, that may be resolved as matters of law from those to which a constitutional right to a jury exists. N.M. Law Group v. Byers, 2018-NMCA-023, cert. denied. Where plaintiff filed a motion for summary judgment in a dispute over legal fees, and where defendant responded to the motion, but did not dispute that he agreed to pay plaintiff for legal services, that plaintiff provided such services, including representation in two criminal cases, and that defendant had not fully paid plaintiff's bill for those services, the trial court did not err in granting plaintiff's motion for summary judgment or in denying defendant's motion to vacate the adverse summary judgment, because the district court was not called upon to decide any questions of fact in granting the motion for summary judgment, and therefore no jury trial was necessary and no right to such trial was violated. N.M. Law Group v. Byers, 2018-NMCA-023, cert. denied. Summary judgment may be proper even though disputed issues remain, if those issues are not material. Tapia v. Springer Transf. Co., 1987 -NMCA-089, 106 N.M. 461, 744 P.2d 1264. Not necessary to decide nonconstitutional issues before constitutional questions. - This rule does not postpone a summary judgment on constitutional issues until all nonconstitutional issues have been decided. Deer Mesa Corp. v. Los Tres Valles Special Zoning Dist. Comm'n, 1985-NMCA-114, 103 N.M. 675, 712 P.2d 21. Method of summary judgment is necessarily inquisitorial. State ex rel. State Hwy. Dep't v. Intertribal Indian Ceremonial Ass'n, 1971-NMSC-079, 82 N.M. 797, 487 P.2d 906. Summary judgment statute is drastic, and its purpose is not to substitute for existing methods in the trial of issues of fact. Holcomb v. Power, 1971-NMSC-124, 83 N.M. 496, 493 P.2d 981, cert. denied, 83 N.M. 473, 493 P.2d 958 (1972); McKay v. Farmers & Stockmens Bank, 1978-NMCA-070, 92 N.M. 181, 585 P.2d 325, cert. denied, 92 N.M. 79, 582 P.2d 1292; McFarland v. Helquist, 1979-NMCA-018, 92 N.M. 557, 591 P.2d 688; Garcia v. Presbyterian Hosp. Center, 1979-NMCA-034, 92 N.M. 652, 593 P.2d 487; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190; see also Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589. Summary judgment is drastic and its use strictly limited. North v. Pub. Serv. Co., 1982 -NMCA-012, 97 N.M. 406, 640 P.2d 512. Summary judgment is a drastic remedy which should be used with extreme caution. Cebolleta Land Grant ex rel. Bd. of Trustees v. Romero, 1982-NMSC-043, 98 N.M. 1, 644 P.2d 515. Use strictly limited. - Although the trial court may be of the opinion that eventually it must decide the issues in favor of the party moving for summary judgment, if there be a genuine issue on an essential fact, evidence thereon should be heard at a trial, and no attempt should be made to try the case in advance in the summary proceedings. Johnson v. J.S. & H. Constr. Co., 1969 -NMCA-122, 81 N.M. 42, 462 P.2d 627. Even where judgment given by court sua sponte. - The rule that summary judgment is not proper where there are material issues of fact involved applies where the summary judgment is given sua sponte by the court. Boggs v. Anderson, 1963-NMSC-087, 72 N.M. 136, 381 P.2d 419. Summary proceeding no substitute for trial. - A motion for summary judgment is not to be used as a substitute for a trial on the merits. Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589; Sooner Pipe & Supply Corp. v. Doerrie, 1961-NMSC-113, 69 N.M. 78, 364 P.2d 138; Hewitt-Robins, Inc. v. Lea County Sand & Gravel, Inc., 1962-NMSC-065, 70 N.M. 144, 371 P.2d 795; Federal Bldg. Serv. v. Mountain States Tel. & Tel. Co., 1966-NMSC-148, 76 N.M. 524, 417 P.2d 24; Southern Pac. Co. v. Timberlake, 1970-NMSC-013, 81 N.M. 250, 466 P.2d 96; Summers v. American Reliable Ins. Co., 1973 -NMSC-060, 85 N.M. 224, 511 P.2d 550; First Nat'l Bank v. Nor-Am Agrl. Prods., Inc., 1975-NMCA-052, 88 N.M. 74, 537 P.2d 682; Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470; Garcia v. Presbyterian Hosp. Ctr., 1979 -NMCA-034, 92 N.M. 652, 593 P.2d 487; Fischer v. Mascarenas, 1979-NMSC-063, 93 N.M. 199, 598 P.2d 1159; Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Parties may waive objection to said treatment. - If the parties turn the summary judgment proceedings into a trial, they will not be heard to object to that procedure. Summers v. American Reliable Ins. Co., 1973 -NMSC-060, 85 N.M. 224, 511 P.2d 550; Huerta v. New Jersey Zinc Co., 1973-NMCA-008, 84 N.M. 713, 507 P.2d 460, cert. denied, 84 N.M. 696, 507 P.2d 443. Summary judgment distinguished from motion to dismiss. - A summary judgment amounts to more than a motion to dismiss for failure to state a claim upon which relief may be granted; it is by its own terms a final judgment. The court goes beyond the allegations of the complaint and determines whether a claim can in reality be supported on the grounds alleged and whether a controversy as to an issue of fact exists as to the statements of the complaint. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Pretrial conference. - It is the purpose of the pretrial conference to simplify the issues, shape up the testimonial and documentary evidence and generally clear the decks for the trial, while the function of the summary judgment motion is to sift the proofs pro and con as submitted in the various affidavits and exhibits attached thereto so that a determination may be made without the expense and delay of a trial that there are or are not real, as distinct from mere fictitious or paper, issues which must be disposed of in the traditional manner by trial to the court or jury. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. Unlike directed verdict, defendant does not admit negligence in arguing for summary judgment. - Unlike a motion for directed verdict, defendant does not admit negligence when he presents facts outside the pleading and argues for summary judgment on the theory that plaintiff was contributorily negligent as a matter of law. Silva v. City of Albuquerque, 1980-NMCA-049, 94 N.M. 332, 610 P.2d 219. Granting of summary judgment in absence of motion. - Even if a plaintiff fails to move for summary judgment, the court would not be barred from granting summary judgment in his favor if there is no material factual issues in dispute. Martinez v. Logsdon, 1986-NMSC-056, 104 N.M. 479, 723 P.2d 248. Summary judgment by its own terms is a final judgment. Satterwhite v. Stolz, 1968-NMCA-039, 79 N.M. 320, 442 P.2d 810; Pederson v. Lothman, 1958-NMSC-003, 63 N.M. 364, 320 P.2d 378; Morris v. Miller & Smith Mfg. Co., 1961 -NMSC-152, 69 N.M. 238, 365 P.2d 664. Summary judgment is a final order and final orders are appealable. Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155. Summary judgment is an interlocutory order. - The grant or denial of a motion for summary judgment is an interlocutory order, and, therefore, the district court could properly reconsider its previous ruling notwithstanding the fact that a different judge had issued the ruling. Tabet Lumber Co. v. Romero, 1994-NMSC-033, 117 N.M. 429, 872 P.2d 847. Partial summary judgment not final. - Because the trial court entered a partial summary judgment, the court order is not a final judgment and therefore is not appealable. Aetna Life Ins. Co. v. Nix, 1973-NMSC-069, 85 N.M. 415, 512 P.2d 1251. Generally as to trial court stating findings and conclusions. - Findings of fact and conclusions of law are not required by the rules except in involved cases where the reason for the summary judgment is not otherwise clearly apparent from the record. Williams v. Herrera, 1972-NMCA-057, 83 N.M. 680, 496 P.2d 740. Statement of reasons necessary only as this rule requires. - Trial court is not required to state reasons for granting a summary judgment in greater detail than as provided in Subdivision (c) (see now Paragraph C). Garrett v. Nissen Corp., 1972-NMSC-046, 84 N.M. 16, 498 P.2d 1359, overruled on other grounds,Klopp v. Wackenhut Corp., 1992-NMSC-008, 113 N.M. 153, 824 P.2d 293; George v. Caton, 1979-NMCA-028, 93 N.M. 370, 93 N.M. 172, 600 P.2d 822, 598 P.2d 215. The trial court is not required to adopt a separate opinion or enter a recital in the record as to the exact grounds for the granting of a summary judgment beyond that required by this rule. Skarda v. Skarda, 1975-NMSC-028, 87 N.M. 497, 536 P.2d 257. A statement of the trial court's reasons for summary judgment is not required. Huerta v. New Jersey Zinc Co., 1973-NMCA-008, 84 N.M. 713, 507 P.2d 460, cert. denied, 84 N.M. 696, 507 P.2d 443. Findings of fact are not required in a summary judgment proceeding. Shumate v. Hillis, 1969-NMSC-065, 80 N.M. 308, 454 P.2d 965; Burden v. Colonial Homes, Inc., 1968-NMSC-056, 79 N.M. 170, 441 P.2d 210. The trial court is not required to adopt a separate opinion or to enter a recital in the record as to the exact grounds for granting summary judgment beyond the requirements of this rule. Akre v. Washburn, 1979-NMSC-017, 92 N.M. 487, 590 P.2d 635. Summary judgment presupposes no fact issues. - Since a summary judgment presupposes that there are no triable issues of fact, findings of fact and conclusions of law are not required in rendering judgment. Failure to make and enter findings and conclusions is not error. Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170; Federal Bldg. Serv. v. Mountain States Tel. & Tel. Co., 1966-NMSC-148, 76 N.M. 524, 417 P.2d 24; Cromer v. J.W. Jones Constr. Co., 1968 -NMCA-027, 79 N.M. 179, 441 P.2d 219, overruled on other grounds, Schiller v. Southwest Air Rangers, Inc., 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327. Points nonetheless preserved for review. - Summary judgment is neither a trial nor a substitute for trial. A tender or request for findings and conclusions is not required in summary judgment to preserve points for review. DeArman v. Popps, 1965-NMSC-026, 75 N.M. 39, 400 P.2d 215. Applicability to Workers' Compensation Administration proceedings. - The requirements of this rule are applicable to motions for summary judgment made in proceedings before the Workers' Compensation Administration. Junge v. John D. Morgan Constr. Co., 1994 -NMCA-106, 118 N.M. 457, 882 P.2d 48. Where summary judgment motion is made solely on pleadings without supporting affidavits, it serves the same function as a motion for judgment on the pleadings. Matkins v. Zero Refrigerated Lines, 1979-NMCA-095, 93 N.M. 511, 602 P.2d 195. Consideration of matter outside pleadings involves summary judgment proceeding. - Where the court considered the proceedings in a prior divorce action between defendant and her former husband in addition to the pleadings of the present action, the case was dismissed under this rule, not Rule 12(c) (see now Rule 1-012 NMRA) (relating to judgment on the pleadings). Richardson Ford Sales v. Cummins, 1964-NMSC-128, 74 N.M. 271, 393 P.2d 11. Insufficiency of complaint properly raised under two rules. - Insufficiency of complaint could have been raised by motion for judgment on the pleadings under Rule 12(c) (see now Rule 1-012 NMRA), and if this had been done the motion would have been sustained. The fact that the motion is one made under this rule does not alter the situation, however, and such defect was properly raised under this rule. Valdez v. City of Las Vegas, 1961-NMSC-052, 68 N.M. 304, 361 P.2d 613. Pretrial order does not preclude summary judgment. - Since the trial court has some discretion at trial to modify the issues delimited in a pretrial order, his discretion exists at earlier stages as well so that if issues of fact at pretrial conference later dissolve into issues of law before trial, summary judgment is appropriate upon proper motion and hearing. The mere listing of contested issues in a pretrial order does not preclude summary judgment on defendant's motion after a hearing. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. Rule 1-006 NMRA requirements not rigid in summary judgment proceedings. - Assuming but not deciding that Rule 6(d) (see now Rule 1-006 NMRA) applies to motions for summary judgment and requires any supporting affidavits to be filed simultaneously with them, nevertheless there is room for judicial discretion; Subdivision (b) (see now Paragraph B) shows that a rigid application of Rule 6(d) (see now Rule 1-006 NMRA) is not contemplated. Since it is permissible to renew motions for summary judgment previously denied to avoid circuity, the motions are treated as if they were refiled at the time the affidavits were filed, an approach which accords with the flexible approach contemplated by Subdivision (e) (see now Paragraph E). Cordova v. City of Albuquerque, 1974-NMCA-101, 86 N.M. 697, 526 P.2d 1290. Motion for summary judgment is not a responsive pleading within the meaning of Rule 15(a) (see now Rule 1-015 NMRA), providing for the timing of amendments to pleadings. Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170. Denial of motion not reviewable after final judgment on merits. - A denial of a motion for summary judgment is not reviewable after final judgment on the merits. If a summary judgment motion is improperly denied, the error is not reversible, for the result becomes merged in the subsequent trial. Green v. General Accident Ins. Co. of Am., 1987-NMSC-111, 106 N.M. 523, 746 P.2d 152. Appellate review of untimely motion. - Even if the motion was untimely, where the trial court addresses an untimely motion on the merits, appellate court may review the question presented. Deaton v. Guiterrez, 2004-NMCA-043, 135 N.M. 423, 89 P.3d 672, cert. denied, 2004-NMCERT-004. Reviewing court looks to whole record. - In deciding whether the summary judgment was proper, reviewing court must look to the whole record and take note of any evidence therein which puts a material fact in issue. Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, 90 N.M. 753, 568 P.2d 589; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. Summary judgment improper where trial judge failed to consider the whole record. - In a wrongful death lawsuit based on allegations of medical malpractice where plaintiffs alleged that defendants negligently failed to diagnose and treat decedent's influenza and that decedent's death could have been prevented had he been properly diagnosed and treated with the antiviral drug Tamiflu when he was seen in the emergency room, and where, following defendants' motion for summary judgment, the district court invited the plaintiffs to file a supplemental response to defendants' summary judgment motion, and where plaintiffs filed their supplemental response attaching documentation related to their expert witness's current physical condition as well as the qualifications and evaluation of their new proposed expert witness, the district court erred in granting defendants' motion for summary judgment without considering the supplemental information that the court invited plaintiffs to submit. Holzem v. Presbyterian Healthcare Servs., 2017-NMCA-013. Undisputed facts. - In reviewing the summary judgment, the court considers only undisputed facts and determines whether under those facts summary judgment was proper as a matter of law. Fleming v. Phelps-Dodge Corp., 1972-NMCA-060, 83 N.M. 715, 496 P.2d 1111. Reviewing court to take admitted facts as undisputed. - When a party admits, for purposes of a summary judgment motion, the veracity of the allegations in the complaint, a reviewing court should consider the facts pleaded as undisputed and determine if a basis is present to decide the issues as a matter of law. GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997 -NMSC-052, 124 N.M. 186, 947 P.2d 143. Reviewing court is not bound by grounds used by trial court as the basis for the granting of summary judgment. C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. Review cannot be based on evidence not before trial court. - An affidavit which was not before the trial court at the summary judgment hearing could not be considered by the court of appeals in reviewing the trial court's determination that summary judgment was appropriate. Schmidt v. St. Joseph's Hosp., 1987-NMCA-046, 105 N.M. 681, 736 P.2d 135. Burden on party who won summary judgment. - In order to sustain a summary judgment defendants have the burden of showing an absence of a genuine issue of material fact as a matter of law. Reinhart v. Rauscher Pierce Sec. Corp., 1971 -NMCA-144, 83 N.M. 194, 490 P.2d 240. Appellate court views matters in most favorable aspect supporting trial. - On summary judgment the appellate court must view the matters presented in the most favorable aspect they will bear in support of the right to trial on the issues. Read v. Western Farm Bureau Mut. Ins. Co., 1977 -NMCA-039, 90 N.M. 369, 563 P.2d 1162; Ginn v. MacAluso, 1957-NMSC-033, 62 N.M. 375, 310 P.2d 1034; Coca v. Arceo, 1962-NMSC-169, 71 N.M. 186, 376 P.2d 970; Cortez v. Martinez, 1968-NMSC-153, 79 N.M. 506, 445 P.2d 383; Nix v. Times Enters., Inc., 1972-NMCA-070, 83 N.M. 796, 498 P.2d 683; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. A reviewing court looks to the whole record and views matters in the light most favorable to support a trial on the merits. North v. Public Serv. Co., 1982 -NMCA-012, 97 N.M. 406, 640 P.2d 512. Unless appellant fails to present record showing judgment wrong. - The summary judgment is entitled to all presumptions in its favor where appellants fail to present a record showing it to be wrong. Shumate v. Hillis, 1969-NMSC-065, 80 N.M. 308, 454 P.2d 965. Plaintiff has the burden of clearly pointing out the asserted error of the trial court, and where even though the propriety of the summary judgment in favor of defendant is assumed to have been presented as a point relied on for reversal, if the point is neither argued nor supported by authority, it is considered as abandoned. Novak v. Dow, 1970-NMCA-104, 82 N.M. 30, 474 P.2d 712. Genuine issues deemed present where trial court's finding not challenged. - Where the insurance company did not challenge by cross-appeal the trial court's finding that genuine issues of material fact existed with respect to its agent's negligence and fraud and did not establish that its agent was not acting within the scope and authority of that agency, genuine issues of material fact were present on the liability of the company for the agent's claimed misdeeds. Read v. Western Farm Bureau Mut. Ins. Co., 1977 -NMCA-039, 90 N.M. 369, 563 P.2d 1162. Defenses cannot be invoked for first time on appeal. - In determining whether it was error to grant summary judgment, appellate court is limited to matters presented in the pleadings, affidavits and pretrial depositions, and defenses cannot be invoked for the first time on appeal. Western Farm Bureau Mut. Ins. Co. v. Barela, 1968-NMSC-082, 79 N.M. 149, 441 P.2d 47. Appellate court reversing summary judgment need not consider other issues. - Where on an appeal from an order granting defendant's motion for summary judgment in a malpractice action there are factual issues concerning negligence as a proximate cause of plaintiff 's condition, the court in reversing need not consider plaintiff 's other contentions concerning proximate cause. Binns v. Schoenbrun, 1970-NMCA-052, 81 N.M. 489, 468 P.2d 890. Proceedings upon reversal of summary judgment. - Since the trial court erred in granting summary judgment against one defendant (principal of the other), plaintiff must go to trial against it, prove a case for compensatory damages (to which plaintiff was no longer entitled, a judgment against the other tortfeasor having been discharged) and then prove culpable conduct in order to obtain judgment on the punitive element of damages, because punitive damages may only be awarded as an adjunct to compensatory or actual damages. Sierra Blanca Sales Co. v. Newco Indus., Inc., 1975-NMCA-118, 88 N.M. 472, 542 P.2d 52, rev'd on other grounds, 1976-NMSC-014, 89 N.M. 187, 548 P.2d 865. II. SUMMARY JUDGMENT FOR CLAIMANT. Genuine issue of material fact as to breach of bank's duty of ordinary care. - Where plaintiffs' employee, who was employed to assist with bookkeeping and balancing plaintiffs' accounts, forged 211 checks over an eighteen-month period; the bank had provided plaintiffs statements on a monthly basis, including photocopies of cancelled checks; the bank provided the statements directly to the employee and plaintiffs acknowledged receiving the statements; plaintiffs' senior officers reviewed the statements after the employee did and had an opportunity to detect the forgeries; and plaintiffs alleged that the bank was negligent and offered evidence that the bank broke its promise not to accept checks made out to cash unless an officer presented the check, signatures on the checks differed from those on the signature cards on file with the bank, and check amounts exceeded the teller limits but were cashed without supervisor approval; and plaintiffs alleged that the bank was negligent, plaintiffs' allegations were sufficient to raise a genuine issue of material fact that, if proved, the jury might find that the bank breached a duty of ordinary care. Associated Home & RV Sales, Inc. v. Bank of Belen, 2013-NMCA-018, 294 P.3d 1276. Ownership of bank account. - Where defendant opened a bank account in defendant's name as primary joint owner and in the names of defendant's children as secondary joint owners; defendant wanted defendant's children to be able to assist defendant with payment of bills and financial matters; plaintiffs obtained a judgment against one of defendant's children and served a writ of garnishment on the bank; the bank seized all funds in the account; defendant intervened and filed for summary judgment claiming that defendant was the sole owner of the account; and defendant supported the motion with an affidavit in which the child who was the judgment debtor stated that the child had never deposited or withdrawn money from the account, disclaimed any ownership in the account, and that the child was a joint owner merely to assist defendant, there was a genuine issue of material fact with respect to the ownership of the funds because the account documents indicated that the account was jointly owned by defendant and defendant's children. Alcantar v. Sanchez, 2011-NMCA-073, 150 N.M. 146, 257 P.3d 966. Implied contract with municipality. - Where a municipality enacted an ordinance that adopted a comprehensive personnel policy manual that required the municipality to offer to its retiring employees the option of continuing their health care coverage under the municipality's group plan at the active employee premium reimbursement rate; the petitioners, who retired from municipal service, accepted the municipality's offer at the time they retired and before the municipal council enacted an ordinance deleting the retirement insurance provision from the manual, municipal employees were required to be provided with a copy of and acknowledge receipt of the manual; employees were bound by the terms of the manual; the municipality felt bound to comply with the manual; municipal officials made admissions by their statements and conduct that the municipality was obligated to continue paying health insurance premiums for retirees who had accepted the municipality's offer to do so after the retirees had met the requirements of the ordinance existing at the time of retirement; and municipal officials made admissions that provisions of the manual became terms of an employment contract and the retirees had a vested interest in continued health insurance benefits, there was sufficient evidence to show the existence of genuine issues of material fact regarding whether an implied contract was formed and the scope of its terms. Beggs v. City of Portales, 2009-NMSC-023, 146 N.M. 372, 210 P.3d 798. Insufficient evidence. - Where decedent died in a nursing home; plaintiff, as the personal representative of decedent's estate, sued defendant for wrongful death; in its answer to plaintiff's complaint for wrongful death, defendant noted that its subsidiary was the owner and operator of the nursing home, denied that defendant owned and operated the nursing home, and denied that it was the employer of the staff of the nursing home; plaintiff's evidence dealt with the fact that both defendant and the nursing home used a common trade name and defendant's acknowledgment that the nursing home was one of defendant's subsidiaries; plaintiff's evidence was contradicted by defendant's evidence which indicated that the nursing home was owned and operated by a subsidiary and that the staff of the nursing home were employed by the subsidiary, plaintiff's evidence was insufficient to support a ruling as a matter of law that defendant was the employer of the staff of the nursing home. Keith v. ManorCare, Inc., 2009-NMCA-119, 147 N.M. 209, 218 P.3d 1257, cert. granted, 2009-NMCERT-010. Amendment procedures of restrictive covenants were ambiguous. - Where plaintiffs attempted to enforce a subdivision's restrictive covenants that prohibited trees in the subdivision from interfering with homeowners' views; the majority of owners amended the restrictive covenants to eliminate the foliage restriction that plaintiffs sought to enforce; the duration clause of the restrictive covenants required that seventy-five percent of the owners approve revisions of the covenants during the term of the covenants; and the amendment clause required that fifty-one percent of the owners approve amendments, the covenants were ambiguous as to the majority required to amend the covenants so that the validity of the amendment of the foliage restriction could not be determined as a matter of law. Lawton v. Schwartz, 2013-NMCA-086. Enforcement of restrictive covenants. - Where concerned residents and the developer of commercial property entered into a settlement agreement that contained restrictive covenants on the commercial property that ran with the land; the agreement did not give the residents a personal covenant in gross or a right to enforce the covenants; and the residents did not own any property that was benefited by the covenants, the residents did not have a right to enforce the covenants and the district court properly granted summary judgment in favor of the developer. Santa Fe Estates, Inc. v. Concerned Residents of S.F. North, Inc., 2009-NMCA-033, 146 N.M. 166, 207 P.3d 1143. Partial summary judgment upheld. - Trial court did not err in granting partial summary judgment against a party before completion of discovery, where such party did not file a motion to compel production of requested documents, did not seek a continuance of the summary judgment hearing, and had approximately two and a half months to discover the critical information after the filing of the summary judgment motions until the court's grant of summary judgment against it. Sun Country Sav. Bank v. McDowell, 1989-NMSC-043, 108 N.M. 528, 775 P.2d 730. Summary judgment upheld. - Where defendants' motion for summary judgment relied on the fact that plaintiffs at an early stage in the proceedings admitted that they lacked an expert witness, such a showing was sufficient to support a motion for summary judgment on the basis that the nonmoving party's evidence was insufficient to establish an essential element of the nonmoving party's claim. Blauwkamp v. University of N.M. Hosp., 1992 -NMCA-048, 114 N.M. 228, 836 P.2d 1249. Summary judgment in revival of statute of limitations on actions involving promissory notes. - Where debtor made partial payments on promissory notes that had matured years earlier, the partial payments revived the claims and caused the statute of limitations to run anew; there being no genuine issue of fact regarding the material fact addressing the revival of the statute of limitations, granting the summary judgment motion was proper. Lea Cnty. State Bank v. Markum Ranch P'ship, 2015-NMCA-026, cert. denied, 2015-NMCERT-003. Summary judgment erroneous in action involving promissory notes. - Where there was a genuine issue of material fact as to whether a guarantor of promissory notes consented to or ratified the sale of collateral or the subsequent partial payments on the promissory notes, summary judgment was improper. Lea Cnty. State Bank v. Markum Ranch P'ship, 2015-NMCA-026, cert. denied, 2015-NMCERT-003. Summary judgment erroneous in wage claim. - Employer's affidavit that employee was salaried, and thus not entitled to overtime, and had not accrued vacation time under her employment contract and employer's vacation policy, combined with a copy of the employment contract and other documentation, was sufficient to establish that there were disputed issues of fact concerning employer's liability for overtime and vacation pay which precluded summary judgment. Southworth v. Santa Fe Servs., 1998-NMCA-109, 125 N.M. 489, 963 P.2d 566. Summary judgment proper in quiet title action. - In a collateral attack on a 1948 quiet title judgment in San Juan County, in which service of process was accomplished by publication in a weekly newspaper, and where the plaintiffs in the 1948 complaint alleged that after diligent search and inquiry, they had been unable to learn or determine the names, places of residence, addresses and whereabouts of any unknown heirs of any deceased defendants or if any defendants were still living and residing in New Mexico, they could not be located because they had secreted themselves so that personal service of process could not be effected, and where the return of service completed by the sheriff of San Juan county indicated that after diligent search and inquiry, any predecessors-in-interest could not be located and personally served with process, the district court correctly found that the suit in this case constituted an improper collateral attack on the 1948 judgment quieting title in defendants' predecessors-in-interest, because constructive notice given in the underlying case was sufficiently reasonably calculated under the circumstances as they existed in 1948; constructive service of process by publication satisfies due process if the names and addresses of the defendants to be served are not reasonably ascertainable. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, rev'g 2015-NMCA-004, 340 P.3d 1277. Summary judgment erroneous in quiet title action. - Where movant in quiet title action failed to undertake a diligent and good faith effort to personally serve the necessary parties with process, but instead relied on constructive notice which is not favored and is permissible only out of necessity, the district court erred in granting summary judgment. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012. Collateral attack in the context of summary judgment. - A judgment entered against a party who did not receive effective service of process is subject to a collateral attack because a court has no jurisdiction over parties who have not been notified of a lawsuit against them. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012. Equitable principles in the context of summary judgment. - In quiet title action, where the evidence was insufficient to show that the complaining party was given sufficient notice that they were entitled to enforce their ownership rights, but delayed in asserting their rights or neglected to do so, the district court erred in granting summary judgment based on equitable principles of laches, waiver and judicial estoppel. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012. To obtain summary judgment, the moving party must meet the initial burden of establishing a prima facie case. - Where respondent filed a motion for summary judgment on his cross-claims against petitioner for fraud, negligent misrepresentation and violation of the Illinois Consumer Fraud Act, and where petitioner failed to respond to the motion, the district court erred in granting respondent's motion for summary judgment as a procedural matter, because before granting summary judgment, the district court must assess, despite the lack of a response, whether, on the merits the moving party satisfied the burden of establishing an absence of a genuine issue of fact, and that it was entitled as a matter of law to judgment in its favor. Freeman v. Fairchild, 2018-NMSC-023, rev'g 2015-NMCA-001, 340 P.3d 610. Prior to the entry of summary judgment, the district court must provide the nonmoving party adequate notice and an opportunity to be heard. - Where respondent filed a motion for summary judgment on his cross-claims against petitioner for fraud, negligent misrepresentation and violation of the Illinois Consumer Fraud Act, and where petitioner failed to respond to the motion, the district court erred in granting respondent's motion for summary judgment without providing petitioner more time to respond to the motion prior to entry of judgment, because New Mexico law requires adequate notice and opportunity to be heard prior to the entry of summary judgment in the absence of a response; the district court should have granted petitioner an extension of time to file a response or an opportunity to substantiate his claim that his failure to respond was the result of excusable neglect. Freeman v. Fairchild, 2018-NMSC-023, rev'g 2015-NMCA-001, 340 P.3d 610. Right for any reason erroneously applied in affirming entry of summary judgment. - Where respondent filed a motion for summary judgment on his cross-claims against petitioner for fraud, negligent misrepresentation and violation of the Illinois Consumer Fraud Act, and where the New Mexico Court of Appeals found that the district court erred in granting respondent's motion for summary judgment as a procedural matter, the Court of Appeals erred by applying the right for any reason doctrine to affirm summary judgment in respondent's favor, because the Court of Appeals applied incorrect substantive law to respondent's cross-claims for fraud and negligent misrepresentation and because the district court did not provide petitioner an opportunity to controvert the facts in the summary judgment motion or to substantiate his claim of excusable neglect. Freeman v. Fairchild, 2018-NMSC-023, rev'g 2015-NMCA-001, 340 P.3d 610. Summary judgment erroneous in breach of contract claim. - It was error for the district court to grant motion for summary judgment for breach of contract where plaintiffs could not establish that there was a contractual relationship between plaintiffs and defendant or that a third party was acting as plaintiffs' agent in their dealings with defendant. Freeman v. Fairchild, 2015-NMCA-001, cert. granted, 2014-NMCERT-012. III. SUMMARY JUDGMENT FOR DEFENDING PARTY. Attorney's duty to resolve conflicts according to professional standards. - Where the attorney represented the client as the personal representative of the wrongful death estates of the client's child and grandchild who had been killed in a collision between the client's car and a truck; the client claimed that the non-client, who was a statutory beneficiary and the parent of the client's child, had abandoned the child and was not entitled to any of the wrongful death proceeds; the attorney knew that the client had been drinking alcohol before the collision and that the collision occurred when the client stopped the client's car in a traffic lane of an interstate highway at night with the car lights off; the attorney negotiated a settlement agreement with the non-client that substantially reduced the non-client's entitlement to the wrongful death proceeds; the attorney told the non-client that the attorney did not represent the non-client, the attorney represented only the client, and the attorney was not providing services to the non-client; there was a dispute as to whether the attorney informed the non-client that the client challenged the non-client's right to receive any of the wrongful death proceeds; the attorney did not tell the non-client the size of the anticipated settlement, that the attorney represented the client against the non-client, or that the non-client was entitled to fifty percent of the wrongful death proceeds; and the non-client sued the attorney for malpractice, fraud, collusion and misrepresentation, summary judgment for the attorney was not appropriate because there were genuine issues of material fact regarding whether the attorney had a conflict of interest in representing the personal representative who was potentially liable for the decedents' deaths and whether the attorney handled the conflict of interest between the client and non-client with due care and skill without harming the statutory beneficiary and because the non-client's independent tort claims were not barred by the adversarial exception. Spencer v. Barber, 2013-NMSC-010, 299 P.3d 388, rev'g 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296. Bankruptcy court proceeding precluded subsequent malpractice claim. - Where petitioner filed a legal malpractice claim in state court against respondent attorneys who represented petitioner in a previous bankruptcy proceeding, the district court properly granted summary judgment for respondents on the grounds that res judicata barred petitioner's subsequent malpractice claim because the fee proceeding in bankruptcy court and the legal malpractice claim would have formed a convenient trial unit because the bankruptcy court was required to consider the quality of respondents' legal services in order to determine whether the fees requested were appropriate, and because petitioner could and should have brought the malpractice claim in the bankruptcy court where petitioner was aware of respondents' inadequate legal services, where petitioner suffered injury attributable to respondents' representation, and where petitioner was aware of the injury. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Successive injuries to property. - Where, in 1998, the municipality constructed a flood retention pond next to plaintiff's building; in the years following the construction of the retention pond, the building began to show signs of damage to the foundation, walls, roof, and floor; in 2008, plaintiff filed suit against the non-municipal defendants for damages; defendants claimed that plaintiff's suit was time barred because plaintiff knew or should have known about the injuries to the property more than four years before plaintiff filed suit; plaintiff contended that the property incurred separate injuries and each new injury had its own discovery date and period of limitations; defendants failed to show that the retention pond and seepage from the retention pond were permanent and that the damages were ascertainable at the time the retention pond was constructed; and there was evidence that when the retention pond was full, particularly during the monsoon season, the water migrated beneath the surface of plaintiff's property and that different cracks and damage developed in the foundation, walls, and ceiling of the building over time, summary judgment for defendants was not proper because material disputed facts existed regarding whether separate causes of action accrued with each new injury to the property. Yurcic v. City of Gallup, 2013-NMCA-039, 298 P.3d 500. Notice of injuries to property. - Where, in 1998, the municipality constructed a flood retention pond next to plaintiff's building; in the years following the construction of the retention pond, the building began to show signs of damage to the foundation, walls, roof, and floor; in 2008, plaintiff filed suit against the non-municipal defendants for damages; defendants claimed that plaintiff's suit was time barred because plaintiff knew or should have known about the injuries to the property more than four years before plaintiff filed suit; defendants argued that plaintiff was on notice of structural cracks in 1998 when plaintiff remodeled the building and plaintiff argued that plaintiff's tenant examined the premises in 1998 and found no noticeable problems with the structure of the building; defendant argued that in 2001, plaintiff's tenant reported a substantial crack in the tile floor, but offered no proof linking the crack with the retention pond; defendant argued that in 2002 or 2003, plaintiff's tenant informed plaintiff that the northeast side of the foundation of the building was substantially cracking, that the ground around it was saturated with water, and that the tenant believed that the retention pond caused the damage; and plaintiff contended that the tenant talked to plaintiff in 2004, summary judgment for defendants was not proper because material disputed facts existed about when plaintiff knew or should have known about the injuries to the property and the existence of plaintiff's claims against defendants. Yurcic v. City of Gallup, 2013-NMCA-039, 298 P.3d 500. Bank's duty in garnishment actions. - Where defendant opened a bank account in defendant's name as primary joint owner and in the names of defendant's children as secondary joint owners; defendant wanted defendant's children to be able to assist defendant with payment of bills and financial matters; plaintiffs obtained a judgment against one of defendant's children and served a writ of garnishment on the bank; the bank seized all funds in defendant's account; defendant filed suit against the bank for conversion; the bank filed for summary judgment claiming that the bank had complied with the writ of garnishment and other applicable laws; the writ of garnishment authorized the bank to seize only funds owned by the judgment debtor; and the bank violated Section 45-6-211 NMSA 1978 by seizing the funds without any acknowledgment of or concession to the interests of the non-debtor co-owners of the account and to the extent the writ of garnishment was notice of an adverse claim, the bank violated Section 58-1-7 NMSA 1978 by failing to require indemnity from plaintiffs or an order reflecting that all of the owners of the account had been joined as parties to the lawsuit which violations supported defendant's claim of conversion, the bank was not entitled to summary judgment. Alcantar v. Sanchez, 2011-NMCA-073, 150 N.M. 146, 257 P.3d 966. Bank account agreement was insufficient to authorize seizure of funds in garnishment action. - Where defendant opened a bank account in defendant's name as primary joint owner and in the names of defendant's children as secondary joint owners; defendant wanted defendant's children to be able to assist defendant with payment of bills and financial matters; defendant signed an account application in which defendant acknowledged that defendant had received a copy of an account agreement and agreed to be bound by the agreement; the agreement provided that in garnishment actions affecting any co-owner, the bank could treat all funds in the account as belonging to the judgment debtor; plaintiffs obtained a judgment against one of defendant's children and served a writ of garnishment on the bank; the bank seized all funds in defendant's account; defendant filed suit against the bank for conversion; the bank moved for summary judgment on the ground that the bank was authorized to seize the funds pursuant to the account agreement; and defendant filed an affidavit in which defendant denied ever receiving a copy of the account agreement; a genuine issue of material fact existed with respect to the applicability of the account agreement and the bank was not entitled to summary judgment. Alcantar v. Sanchez, 2011-NMCA-073, 150 N.M. 146, 257 P.3d 966. Failure to notify co-owner of funds seized by bank in garnishment action. - Where defendant opened a bank account in defendant's name as primary joint owner and in the names of defendant's children as secondary joint owners; defendant wanted defendant's children to be able to assist defendant with payment of bills and financial matters; plaintiffs obtained a judgment against one of defendant's children and served a writ of garnishment on the bank; the bank seized all funds in defendant's account but did not give defendant notice of the seizure; defendant filed suit against the bank for negligence; the bank moved for summary judgment, there are no statutory or common law rules that established a duty of the bank to notify non-debtor owners of a garnishment, and although the bank was entitled to summary judgment as to negligence, the claims for negligence were improperly dismissed because the bank had direct information concerning the plaintiffs' claim against the funds and a statutory duty to ensure that a garnishment not proceed against innocent depositors which, if established by the facts, may create a duty to notify non-debtor holders of the account about the claim. Alcantar v. Sanchez, 2011-NMCA-073, 150 N.M. 146, 257 P.3d 966. Claim of breach of covenant running with the land. - Where plaintiffs sued defendant for breach of deed restrictions that prohibited defendant from subdividing defendant's land; the land was subject to a recorded declaration of covenants prohibiting the subdivision of the land into less than one acre lots; at the time defendant purchased the land, the surrounding property did not have any improvements that would give defendant notice that there was a general plan of development other than the recorded restrictions; defendant's real estate agent told defendant that the land could be subdivided into one acre lots; the deed that was given to defendant contained a restriction that prohibited all subdivision of the land; the deed restriction placed a burden on defendant's land and a benefit on plaintiffs' property; identical restrictions were placed on property surrounding defendant's land; purchasers of property in the subdivision whose deeds did not contain the deed restriction were told that they were prohibited from subdividing; and the original owner of the subdivision wanted to restrict subdivision because of the unique layout of the property and a desire to limit density, defendant was not entitled to summary judgment on the ground that the deed restriction was not an enforceable covenant running with the land because defendant failed to show that the deed restriction did not touch and concern the land and that defendant did not have actual knowledge of the deed restriction and because there was a question of fact as to whether the original owner of the subdivision intended to create a covenant running with the land. Dunning v. Buending, 2011-NMCA-010, 149 N.M. 260, 247 P.3d 1145, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 900. Compliance with federal substantive law as it relates to oligopolies. - To ensure uniform application of federal and state laws in antitrust actions under the Antitrust Act, §§ 57-1-1 to 57-1-15 NMSA 1978, involving oligopolies, such as the tobacco industry, which are by nature interdependent such that it is likely that when one company acts in a certain manner, the other firms will determine whether it is in their best interest to follow the leader's action, plaintiffs must meet the standard of federal substantive antitrust law which requires that to show that there was an unlawful agreement, plaintiffs must present evidence that tends to exclude the possibility that defendants acted independently or plaintiffs cannot meet their burden of establishing a genuine issue of material fact to withstand summary judgment for defendants. Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280, rev'g 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873. Evidence of "plus factors" did not exclude the possibility of independent action. - Where plaintiffs alleged that defendants engaged in an agreement to fix the price of cigarettes; defendants were large manufacturers of cigarettes; defendant Philip Morris reduced wholesale prices on all brands; the other defendants followed the price reductions; defendants then began to increase wholesale prices in near lock-step fashion; and plaintiffs offered evidence of parallel pricing behavior, the economies of the market place, motivation to conspire, condensation of price tiers, actions contrary to self-interest, conspiratorial meetings in foreign markets, a smoking and health conspiracy, defendants monitoring the market through a business data service, opportunities to conspire, and pricing decisions made at high levels, the district court properly granted summary judgment for defendants, because plaintiff's evidence was just as consistent with lawful, independent actions as it was with price fixing and did not exclude independent conduct which was required to raise a genuine issue of material fact that there was an agreement among defendants to fix the price of cigarettes, and because defendants offered evidence of fierce retail competition that undermined the plausibility of a price-fixing agreement, that wholesale prices did not exceed the wholesale price levels that existed at the time defendants began to lower prices until almost five years later, and that plaintiffs' expert acknowledged that it was just as likely that defendants would have behaved in the same manner if they were acting independently and not under a price-fixing agreement. Romero v. Philip Morris, Inc., 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280, rev'g 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873. Surface lessee of land had no standing to sue for trespass and unjust enrichment. - Where plaintiff leased land for purposes of ranching and defendants pumped salt water from beyond the boundaries of the land into a disposal well on the land without the knowledge or consent of plaintiff, plaintiff did not have standing to sue defendants for trespass or unjust enrichment. McNeill v. Rice Eng'g & Operating, Inc., 2010-NMSC-015, 148 N.M. 16, 229 P.3d 489. Owner of land had no standing to sue for trespass for use of land prior to owner's acquisition of the land. - Where defendants pumped salt water from beyond the boundaries of plaintiff's land into a disposal well on plaintiff's land without the knowledge or consent of plaintiff or plaintiff's predecessor in interest, plaintiff did not have standing to sue defendants for trespass for acts that occurred prior to the time plaintiff owned the land. McNeill v. Rice Eng'g & Operating, Inc., 2010-NMSC-015, 148 N.M. 16, 229 P.3d 489. A nonparty, incidental beneficiary is not entitled to recover under a contract. - Where plaintiff brought a breach of contract claim after defendants conducted geophysical seismic surveys on land leased by plaintiff in order to evaluate potential future oil and gas operations, the district court did not err in determining that plaintiff was not entitled to recover under a contract between oil and gas operator and the company that was hired to conduct geophysical seismic surveys, because plaintiff was not a party to the contract but was an incidental beneficiary, a person who is neither the promisee of a contract nor the party to whom performance is to be rendered but who will derive a benefit from its performance. Woody Inv., LLC v. Sovereign Eagle, LLC, 2015-NMCA-111, cert. denied, 2015-NMCERT-010. Summary judgment based on qualified immunity. - The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. To overcome the qualified immunity defense, a plaintiff must demonstrate that the defendant's conduct violated a constitutional or statutory right and that the right was clearly established at the time of the conduct. On appeal from a grant of summary judgment based on qualified immunity, an appellate court looks at the undisputed facts and those facts adduced by the party opposing summary judgment to see if there is any evidentiary support for finding a possible violation of law and whether the law was clearly established at the time of the alleged violation. If there is a genuine dispute over a material fact relevant to whether qualified immunity applies, summary judgment on this basis is improper. Benavidez v. Shutiva, 2015-NMCA-065. Where county officers stopped plaintiff for leaving the scene of a traffic accident, plaintiff exited his vehicle and began arguing with officers about the cause of the accident, aggressively argued his innocence, insisted that he had done nothing wrong, and gestured with his arms and swore at the other driver in a loud voice; the officers arrested and charged plaintiff with leaving the scene of the accident, assault on the other driver, resisting arrest, and assault upon a peace officer; plaintiff filed a complaint under 42 U.S.C. § 1983 alleging unreasonable seizure, selective and malicious prosecution, excessive force, retaliation for exercise of the right to freedom of speech, and false imprisonment. In affirming in part and reversing in part, the court of appeals held that the district court properly granted summary judgment as to plaintiff's arrest because it was supported by probable cause and it was reasonable for the officers to believe that plaintiff assaulted a peace officer, properly granted summary judgment as to plaintiff's malicious prosecution claim based on the charge of leaving the scene of an accident because it was reasonable for the officers to believe that a crime had been committed based on plaintiff's admission that he failed to stop after the accident, erred in granting summary judgment as to plaintiff's malicious prosecution claim based on resisting arrest because there was a dispute over material facts related to the existence of probable cause, erred in granting summary judgment as to plaintiff's malicious prosecution claim based on the assault of the other driver because there was no probable cause supporting the charge, erred in granting summary judgment as to plaintiff's claim of excessive force because there were material questions of fact as to excessive force in handcuffing plaintiff, and properly granted summary judgment as to plaintiff's retaliatory arrest claim because it was not clear at the time that plaintiff was arrested whether a claim for retaliatory arrest would lie when probable cause supported the arrest. Benavidez v. Shutiva, 2015-NMCA-065. Police officer entitled to qualified immunity for DWI arrest. - Where state police officer placed plaintiff under arrest following failed sobriety tests, but prior to breathalyzer tests which yielded .000 breath alcohol content, the officer was entitled to qualified immunity because he had probable cause to arrest plaintiff based on her poor performance on the field sobriety tests, her bloodshot, watery eyes and odor of alcohol, and her admission to having drunk six beers the night before, and plaintiff failed to establish that the officer's failure to release her following her breathalyzer tests violated a clearly established right protected under the fourth amendment when the negative breath tests did not dispel probable cause to suspect that plaintiff was under the influence of drugs. Gallegos v. Vernier, 2019-NMCA-020, cert. denied. Police officer not entitled to qualified immunity for warrantless blood draw of plaintiff following DWI arrest. - Where state police officer arrested plaintiff for DWI following her poor performance on standard field sobriety tests, and where officer subjected plaintiff to a warrantless blood draw after plaintiff's breathalyzer tests yielded .000 breath alcohol content, the officer was not entitled to qualified immunity because the officer violated plaintiff's fourth amendment right when he ordered her blood to be drawn without a warrant and absent exigent circumstances, and clearly established law precluded a warrantless nonconsensual blood test. Gallegos v. Vernier, 2019-NMCA-020, cert. denied. Police officer had qualified immunity in Section 1983 action. - Where a municipal police officer stopped plaintiff for a traffic violation; the officer noticed a handgun in plaintiff's vehicle; dispatch informed the officer that plaintiff was a convicted felon; plaintiff produced an order from Texas that stated that plaintiff had a deferred conviction; the Texas order did not indicate the charge to which the order pertained, whether the charge was for a felony, or whether the order pertained to the same charge as the felony identified by dispatch; the officer did not find anything that indicated that the conviction about which dispatch had informed the officer was deferred or that the Texas order was authentic; and the officer arrested plaintiff on a charge of felon in possession of a firearm, because plaintiff's felony status at the time of arrest was uncertain and the officer reasonably believed that the officer had probable cause to arrest plaintiff, the district court did not err in granting the officer qualified immunity and summary judgment as a matter of law. Dickson v. City of Clovis, 2010-NMCA-058, 148 N.M. 831, 242 P.3d 398, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Municipality did not have supervisory liability under Section 1983 where municipal police officer had qualified immunity. - Where a municipal police officer stopped plaintiff for a traffic violation; the officer noticed a handgun in plaintiff's vehicle; dispatch informed the officer that plaintiff was a convicted felon; plaintiff produced an order from Texas that stated that plaintiff had a deferred conviction; the Texas order did not indicate the charge to which the order pertained, whether the charge was for a felony, or whether the order pertained to the same charge as the felony identified by dispatch; there was no evidence that the municipality that employed the officer had any policy or custom regarding arrest that violated civil rights; and the officer had qualified immunity, the municipality that employed the officer did not have supervisory liability under Section 1983. Dickson v. City of Clovis, 2010-NMCA-058, 148 N.M. 831, 242 P.3d 398, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Sales managers and salespersons were not employees. - Where, in a personal injury case, defendant's sales managers and salespersons sued defendant when an automobile in which they were riding was involved in an accident in which the occupants were killed or injured; the undisputed material facts showed that defendant operated a processing center for direct sales of magazine subscriptions; defendant entered into independent contractor agreements with sales managers to solicit magazine and book subscriptions; sales managers entered into independent contractor agreements with salespersons to sell magazine subscriptions to consumers; all of the agreements provided that the parties intended to create an independent contractor relationship not an employer-employee relationship; sales managers operated their sales crews as separate companies, were free to hire and fire their salespersons and determine where and when to solicit subscriptions, had no production quotas, were not required to sell only for defendant, and were paid through a credit/debit system that kept track of commissions due and money owed by the sales managers; defendant did not withhold taxes from sales managers; salespersons were hired and fired by sales managers; defendant did not determine the work hours or areas for salespersons; and sales managers determined the procedures for processing subscriptions and provided their salespersons with forms, price lists and other printed material, the sales managers and salespersons were not employees of defendant but independent contractors and summary judgment for defendant was proper. Korba v. Atlantic Circulation, Inc., 2010-NMCA-029, 148 N.M. 137, 231 P.3d 118. No common law duty of medical professionals to third party. - Where the decedent was struck and killed by an automobile driven by the perpetrator during a high-speed chase with police officers; the perpetrator had an extensive history of psychiatric illness; the same month the decedent was killed the perpetrator had been transported to the hospital pursuant to a district court order that the perpetrator be evaluated for civil commitment; the doctor who performed the evaluation discharged the perpetrator after five days because the perpetrator did not meet the criteria for continued commitment; the decedent was killed twelve days after the perpetrator was discharged from the hospital; and the perpetrator did not have an ongoing patient-provider relationship with the hospital and the doctor at the time of the accident, and further contacts between the perpetrator and the hospital and the doctor were not scheduled or planned, the hospital and the doctor did not have a common law duty to the decedent regarding the treatment and discharge of the perpetrator because the likelihood of injury to the decedent based on the hospital or doctor's actions was not foreseeable to the extent necessary to create a duty on the part of the hospital or the doctor, because the hospital and doctor did not have a "special relationship" with the perpetrator or the right or ability to control the perpetrator's conduct at the time of the accident, and because New Mexico public policy does not support such a duty. Ross v. City of Las Cruces, 2010-NMCA-015, 148 N.M. 81, 229 P.3d 1253. No statutory duty of medical professionals to third party. - Where the decedent was struck and killed by an automobile driven by the perpetrator during a high-speed chase with police officers; the perpetrator had an extensive history of psychiatric illness; approximately three months before the decedent was killed, the perpetrator had been charged with a misdemeanor assault in municipal court; at a competency hearing in district court the same month decedent was killed, the parties stipulated that the perpetrator was not competent to stand trial and the misdemeanor assault charge was remanded to municipal court for dismissal; at the competency hearing, the state intervened to seek an evaluation of the perpetrator for a civil commitment; the district court ordered that the perpetrator be transported to the hospital for evaluation; the doctor who performed the evaluation discharged the perpetrator after five days because the perpetrator did not meet the criteria for continued commitment; the transport order did not require that the perpetrator be returned to the facilities of the district court after discharge from the hospital; the perpetrator was not transported to the hospital in connection with a criminal matter; there was no finding by the district court that the perpetrator was a danger to himself or others; and the decedent was killed twelve days after the perpetrator was discharged from the hospital, the hospital and the doctor did not have a statutory duty to the decedent under Section 43-1-1(A) NMSA 1978 either to detain the perpetrator beyond the time required for the evaluation or to return the perpetrator to the district court facilities. Ross v. City of Las Cruces, 2010-NMCA-015, 148 N.M. 81, 229 P.3d 1253. Contract term was clear and unambiguous regarding termination. - Where plaintiff sued defendant, who was an optometrist, for breach of a non-compete provision in a sublease between the parties; the sublease provided that the sublease could be renewed if defendant gave plaintiff written notice at least 120 days prior to the end of the term of defendant's intent to renew, that defendant's notice of intent to renew would be superseded if plaintiff notified defendant in writing at least 120 days prior to the end of the term of plaintiff's intention to terminate the sublease at the end of the term, in which case the sublease would terminate at the end of the term, that the renewal would be on plaintiff's current form of sublease agreement, which defendant had to sign not less than 60 days prior to the end of the term, and that if defendant failed to sign the renewal sublease, defendant would be deemed to have elected not to renew the sublease; more than 120 days prior to end of the sublease, plaintiff sent defendant a letter explicitly stating that the letter was notice of non-renewal of the sublease, instructed defendant to sign a provision at the bottom of the letter acknowledging termination of the sublease, and enclosed a new sublease if defendant wished to continue subleasing space from plaintiff; defendant did not sign the acknowledgment of termination or accept the new sublease agreement; defendant sent a letter to plaintiff stating that defendant was not renewing the sublease; and defendant opened an optometry practice at a time and location that violated the non-compete provision in the sublease, the district court properly dismissed plaintiff's breach of contract claim on summary judgment because plaintiff had terminated the sublease and the non-compete provision as a matter of law so that the non-compete provision was not in effect when defendant established a new optometry practice. Lenscrafters, Inc. v. Kehoe, 2012-NMSC-020, 282 P.3d 758. Summary judgment was proper where plaintiff gave up potential contractual rights. - Where plaintiff contracted with Lincoln county for the authority to collect solid waste in the unincorporated areas of the county prior to the legislature adopting the Water and Sanitation District Act, §§ 73-21-1 to -55 NMSA 1978, to permit more densely populated unincorporated areas in the State's various counties to provide their own quasi-municipal services to benefit their residents, the district court properly granted summary judgment against plaintiff where plaintiff gave up any potential contractual right to provide solid waste disposal services when it failed to submit a proposal in response to defendant's request for proposals for continued operation of solid waste disposal services. Greentree Solid Waste Auth. v. Cty. of Lincoln, 2016-NMCA-005, cert. denied, 2015-NMCERT-012. Conflicting provisions in prime contract and subcontract. - In a breach of contract case, where contractor incurred millions of dollars in damages for redesign and repair costs due to subcontractor's defective work, and where the prime contract and subcontract both contained provisions allocating subcontractor's liability to contractor, the subcontract's allocation of liability governed because, although the subcontract incorporated the prime contract by reference, the general rule is that when specific provisions in a subcontract conflict with provisions in a prime contract, the subcontract prevails over general language of a standard incorporation clause, and giving effect to the "words of definite limitation" in the subcontract that expressly limited the incorporation by reference of the prime contract into the subcontract, the limitation of liability clause in the prime contract did not apply when liability was otherwise provided for in the subcontract. The district court erred in granting subcontractor's motion for summary judgment. Centex/Worthgroup, LLC v. Worthgroup Architects LP, 2016-NMCA-013, cert. denied, 2015-NMCERT-012. Ambiguous contract. - Where five individuals, including plaintiff, personally guaranteed a $500,000 bank loan to a third party; the five guarantors entered into a memorandum agreement to pay equal shares of any unpaid amounts; the guarantors also entered into a compensation agreement with the third party in which the third party agreed to pay each guarantor a premium of $1.00 for each dollar guaranteed as compensation for the risk the guarantors had taken in guaranteeing the loan; when the third party defaulted on the loan, plaintiff refused to pay a pro-rata share of the amount due; three of the guarantors paid $500,000 due on the loan; the third party subsequently paid the three guarantors a premium of $500,000 pursuant to the compensation agreement; and plaintiff sued the three guarantors to recover $100,000 of the premium, the district court erred in granting summary judgment to the three guarantors because the compensation agreement was ambiguous as to what event triggered payment of the premium and as to whether the parties intended the memorandum agreement and the compensation agreement to be construed together. Randles v. Hanson, 2011-NMCA-059, 150 N.M. 362, 258 P.3d 1154. Rescission of contract denied. - Where plaintiff and defendant entered into an agreement for the development of commercial property; the business relationship between the parties was subsequently terminated when the parties entered into a settlement agreement in which plaintiff released all claims against defendant; plaintiff sought to rescind the settlement agreement in order to pursue claims against defendant under the property development agreement; and plaintiff failed to tender back the monetary payment plaintiff had received under the settlement agreement, plaintiff was barred from rescinding the settlement agreement and the court properly granted summary judgment against plaintiff. Branch v. Chamisa Development Corporation, Ltd., 2009-NMCA-131, 147 N.M. 397, 223 P.3d 942. Claims for fraud in the inducement of a settlement agreement denied. - Where plaintiff and defendant entered into an agreement for the development of commercial property; the business relationship between plaintiff and defendant was subsequently terminated when the parties entered into a settlement agreement in which plaintiff released all claims against defendant; plaintiff alleged that plaintiff was induced to enter into the settlement agreement by defendant's fraudulent misrepresentations and concealment; and the record showed that during the negotiations for the settlement agreement, plaintiff suspected that defendant was misrepresenting information, plaintiff knew that plaintiff had not received full disclosure from defendant, and plaintiff nevertheless went ahead with the settlement, plaintiff knew that plaintiff was releasing any fraud claims against defendant and the court properly granted summary judgment against plaintiff. Branch v. Chamisa Dev. Corp., Ltd., 2009-NMCA-131, 147 N.M. 397, 223 P.3d 942. Claim for breach of a fiduciary duty denied. - Where plaintiff and defendant entered into an agreement for the development of commercial property; the property development agreement specifically disclaimed any partnership or joint venture between the parties; the business relationship between plaintiff and defendant was subsequently terminated when the parties entered into a settlement agreement in which plaintiff released all claims against defendant as of the date of the settlement agreement; and plaintiff claimed that defendant breached its fiduciary duty to plaintiff because defendant had not disclosed to plaintiff information concerning a purchase offer for the property that defendant had received during the negotiations for the settlement agreement, the parties were parties to an arm's-length commercial transaction when they entered into the settlement agreement and the court properly granted summary judgment against plaintiff. Branch v. Chamisa Dev. Corp., Ltd., 2009-NMCA-131, 147 N.M. 397, 223 P.3d 942. Duty of care to baseball spectators. - An owner/occupant of a commercial baseball stadium owns a duty that is symmetrical to the duty of the spectator. Spectators must exercise ordinary care to protect themselves from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk. Edward C. v. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086, rev'g Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827. Defendant followed the rules of baseball. - Where a child was seated at picnic tables located in the left outfield stands at a baseball stadium; without warning or notice pre-game batting practice began, and defendant hit a ball directly into the left field picnic tables; the ball struck the child in the head; and defendant was attempting to do what the official rules and defendant's team expected defendant to do, defendant made a prima facie case that defendant's actions satisfied defendant's duty to exercise reasonable care under the circumstances. Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827, rev'd, Edward C. v. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086. Foreseeability and duty analysis. - Foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases. If a court is deciding that a defendant does not have a duty or that an existing duty should be limited, the court is required to articulate specific policy reasons, unrelated to foreseeability considerations. Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. Foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis. When a court considers foreseeability, it is to analyze no-breach-of-duty or no-legal-cause as a matter of law, not whether a duty exists. Rodriguez v. Del Sol Shopping Ctr. Assoc., 2014 -NMSC-014, rev'g 2013-NMCA-020, 297 P.3d 334 and overruling, in part, Edward C. V. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086, and overruling Chavez v. Desert Eagle Distributing Co., 2007-NMCA-018, 141 N.M. 116, 151 P.3d 77. Where a truck crashed through the front glass of a medical center in a shopping mall killing three people and injuring several others; plaintiff alleged that the shopping center negligently contributed to the accident by failing to adequately take measures to prevent vehicles from crashing into businesses in the mall; the Court of Appeals determined that defendants had no duty of care to protect invitees within its buildings from criminally reckless drivers; and to arrive at its no-duty determination, the Court of Appeals focused predominantly on foreseeability considerations and the reasonableness of defendants' conduct, the Court of Appeals should not have considered foreseeability when it determined that defendants had no duty of care to protect plaintiffs from criminally reckless drivers. Rodriguez v. Del Sol Shopping Ctr. Assoc., 2014 -NMSC-014, rev'g 2013-NMCA-020, 297 P.3d 334 and overruling, in part, Edward C. V. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086 and overruling Chavez v. Desert Eagle Distributing Co., 2007-NMCA-018, 141 N.M. 116, 151 P.3d 77. Duty of business owners to protect indoor patrons. - Where the driver of a truck was driving the truck in the parking lot of defendants' shopping mall when the truck's accelerator became stuck, the brakes failed, and the driver had a seizure, causing the driver to lose consciousness; the truck crashed through the glass wall of a medical center in the shopping mall killing or injuring the plaintiffs, who were inside the medical center; and the shopping mall parking lot was in full compliance with applicable state and local building codes, the district court properly granted defendants summary judgment dismissing plaintiffs' claims as a matter of law because the scope of the duty of ordinary care owed by the owner and operators of the shopping mall did not include a duty to prevent injury to patrons, who were inside the buildings of the shopping mall, from runaway vehicles. Rodriguez v. Del Sol Shopping Ctr. Assoc., L.P., 2013-NMCA-020, 297 P.3d 334, rev'd, 2014-NMSC-014. No duty of the operator of a business to prevent the sudden, deliberate targeted assassination of customers on its premises. - In a premises liability case for alleged wrongful death and personal injury against the defendant who was the owner and operator of a convenience store and gas station, where the occupants of a car were suddenly and deliberately shot by a person whom the driver of the car had previously threatened with a gun; at the time of the shooting, the car was parked in the parking lot of the defendant's convenience store; and prior to the shooting, there were police reports of theft of gasoline and alcohol, physical altercations involving loiterers, domestic violence, harassment, traffic accidents, vandalism, and trespassing at the convenience store, the owner of the convenience store did not owe the occupants of the car a duty to prevent the shooting because the shooting was not foreseeable and summary judgment for the owner was proper. Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, 146 N.M. 520, 212 P.3d 408, cert. denied, 2009-NMCERT-005. Negligence claim fails when there is no disputed material fact as to proximate cause. - Where plaintiff, while driving her vehicle, collided with a train and then filed a civil lawsuit for personal injury and damages against the railway and the county that maintained the roadway on the basis of negligence in maintaining a safe railroad crossing and roadway, the district court did not err in granting defendants' motion for summary judgment where there was no evidence that defective conditions of the crossing or roadway were causally connected to the collision, and where evidence regarding visual obstructions at the area around the crossing and the collision did not establish that the roadway or the crossing caused the collision. The district court properly concluded that there was no disputed material fact as to proximate cause, and that no reasonable jury would find that the breach of duty by defendants legally caused the damages suffered by plaintiff. Paez v. Burlington N. Santa Fe Ry., 2015-NMCA-112. Summary judgment was improper when there was a genuine issue of material fact as to cause of motorcycle accident. - Where plaintiff was a passenger on a motorcycle that collided with another vehicle that failed to observe a stop sign and entered the path of the motorcycle, killing the driver of the motorcycle and severely injuring plaintiff, plaintiff brought suit against defendants, alleging that defendants were liable for her injuries because, prior to the accident, defendants served alcohol to the driver of the motorcycle to the point of intoxication. Where plaintiff presented testimony from an accident reconstruction expert that the motorcycle driver's intoxication was the cause of the accident and plaintiff's resulting injuries, summary judgment was improper, because based on traditional principles of summary judgment in which all logical inferences are to be resolved in favor of the non-moving party and all inferences must be viewed in a light most favorable to a trial on the merits, plaintiff adduced sufficient evidence to establish a genuine dispute as to whether the motorcycle driver's intoxication prevented him from avoiding the accident. Madrid v. Brinker Rest. Corp., 2016 -NMSC-003, rev'g No. 31,244, mem. op. (N.M. Ct. App. Apr. 8, 2013). Intentional interference with a contractual relationship. - In an action for intentional interference with a contractual relationship based on the termination of the defendant from the defendant's employment, the sole-intent-to-harm standard does not apply to the improper-means ground of an intentional interference with contractual relationship claim and the plaintiff is not require to show that the defendant used improper means solely to harm the plaintiff. Zarr v. Washington Tru Solutions, LLC, 2009-NMCA-050, 146 N.M. 274, 208 P.3d 919, overruling Los Alamos Nat'l Bank v. Martinez Surveying, 2006-NMCA-081, 140 N.M. 41, 139 P.3d 201. In an action for intentional interference with a contractual relationship based on the termination of the defendant from the defendant's employment, the sole-intent-to-harm standard applies to the improper-motive ground of an intentional-interference-with-contractual-relations claim and requires the plaintiff to show that the defendant had an improper motive solely to harm the plaintiff. Zarr v. Washington Tru Solutions, LLC, 2009-NMCA-050, 146 N.M. 274, 208 P.3d 919, overruling Los Alamos Nat'l Bank v. Martinez Surveying, 2006-NMCA-081, 140 N.M. 41, 139 P.3d 201. Where an employee's employment was at-will, the sole-motive test is the correct standard to apply to the improper-motive ground of an intentional interference with a contractual relationship claim. Zarr v. Washington Tru Solutions, LLC, 2009-NMCA-050, 146 N.M. 274, 208 P.3d 919, overruling Los Alamos Nat'l Bank v. Martinez Surveying, 2006-NMCA-081, 140 N.M. 41, 139 P.3d 201. Where the employee, who was responsible for oversight and forecasting of the employer's budget, experienced difficulties with the employee's supervisor that were related to the employee's budget responsibilities and to personal friction between the employee and the employee's supervisor and where the employee was discharged from employment because the employee did not follow the proper channels when the employee by-passed the employee's supervisor with the employee's concerns about proposed budget proposals, the employee failed to show that the sole motive of the employer for discharging the employee was to harm the employee because the employer acted in part for legitimate business reasons and no material issue of fact existed to defeat the employer's motion for summary judgment. Zarr v. Washington Tru Solutions, LLC, 2009-NMCA-050, 146 N.M. 274, 208 P.3d 919, overruling Los Alamos Nat'l Bank v. Martinez Surveying, 2006-NMCA-081, 140 N.M. 41, 139 P.3d 201. Tortious interference with a contractual relationship. - Where plaintiff, which was an eyeglass-dispensing store, sued defendant, who was an optometrist, to enforce a non-compete provision in a sublease agreement between the parties; after plaintiff terminated the sublease; defendant established an optometry practice in subleased space from a different eyeglass-dispensing store at a time and location that violated the restrictions of the non-compete provision; defendant counter-claimed for intentional interference with a contractual relationship and alleged that plaintiff interfered with defendant's existing contract with the second eyeglass-dispensing store, with defendant's prospective contracts with the second eyeglass-dispensing store, and with defendant's patients at plaintiff's store and the second eyeglass-dispensing store; defendant's sublease with the second eyeglass-dispensing store expired and defendant rejected a renewal offer; and defendant offered no evidence to establish that defendant was unable to fulfill defendant's contractual obligations with the second eyeglass-dispensing store, that plaintiff caused defendant to lose the benefits of the contract with the second eyeglass-dispensing store, that plaintiff's primary motive for filing its lawsuit was personal vengeance or spite for the purpose of harming defendant's relationship with the second eyeglass-dispensing store, that plaintiff's request that defendant steer patients to plaintiff's store and provide defendant's patient list to plaintiff was beyond the profit motive, for personal vengeance or spite, or that plaintiff provided false and misleading information to patients who tried to contact defendant, the district court properly dismissed defendant's tortious interference with a contractual relationship claim on summary judgment. Lenscrafters, Inc. v. Kehoe, 2012-NMSC-020, 282 P.3d 758. Malicious abuse of process. - Summary judgment for the defendants in a malicious abuse of process action was proper where the undisputed material facts showed that the defendants filed their action against the plaintiff after they had performed a reasonable pre-filing investigation of their claims against the plaintiff and that the knowledge arising from their pre-filing investigation supported a reasonable belief that the defendants had probable cause to bring their claims against the plaintiff. Guest v. Berardinelli, 2008-NMCA-144, 145 N.M. 186, 195 P.3d 353. Where plaintiff sued defendant to enforce a non-compete provision in a sublease agreement; defendant counter-claimed for malicious abuse of process based solely on plaintiff's filing its lawsuit; and the undisputed facts were that the sublease contained a non-compete provision, there were inconsistencies in letters between the parties regarding the termination of the sublease; defendant violated the time and location restrictions of the non-compete provision, the district court correctly ruled that plaintiff's lawsuit was not filed without lawful probable cause and dismissed defendant's malicious abuse of process claim on summary judgment. Lenscrafters, Inc. v. Kehoe, 2012-NMSC-020, 282 P.3d 758. In a malicious abuse of process action, evidence that the defendant refused to dismiss the plaintiff from the defendant's action against the plaintiff without a settlement agreement, without evidence of extortion or other fraudulent behavior, cannot give rise to a procedural impropriety sufficient to support an action for malicious abuse of process and to defeat a motion for summary judgment for the defendant. Guest v. Berardinelli, 2008-NMCA-144, 145 N.M. 186, 195 P.3d 353. No outrageous conduct. - Where plaintiff alleged that his employer wrongfully discriminated against him, disciplined him and discharged him, but did not allege facts to show that his employer's actions constituted outrageous behavior, plaintiff's state claim for intentional infliction of emotional distress was preempted by the National Labor Relations Act, 29 U.S.C. §§ 151-169 (2000) would have nevertheless failed under state law. Weise v. Washington Tru Solutions, LLC, 2008-NMCA-121, 144 N.M. 867, 192 P.3d 1244. Where plaintiff failed to allege that defamatory statements by his employer were circulated with malice and that the statements caused harm beyond the defamation itself, plaintiff's state claim for defamation was preempted by the National Labor Relations Act, 29 U.S.C. §§ 151-169 (2000). Weise v. Washington Tru Solutions, LLC, 2008-NMCA-121, 144 N.M. 867, 192 P.3d 1244. Summary judgment appropriate in defamation case where plaintiff, as a public official, failed to proffer a scintilla of evidence of actual malice. - Where plaintiff, a paid civilian employee and an unpaid reserve police officer of the Albuquerque Police Department (APD), brought defamation and false light invasion of privacy claims against publishing company and reporter concerning a number of statements contained within articles written by the reporter and published in the Albuquerque Journal that plaintiff collected overtime pay for police-related work when state law and city ordinance prohibited reserve officers from being paid for such work, the district court did not err in granting defendants' motion for summary judgment where defendants presented time sheets and court records that showed plaintiff had claimed overtime for "investigation" work, made arrests during those periods as evidenced by uniform incident reports, described himself in those reports as working "under cover with the Vice Unit," named himself as the "reporting officer," and identified his rank as detective, all at times that records reflect he was being compensated as an employee of APD, and where plaintiff, as a public official, failed to present evidence showing that a false publication was made with a high degree of awareness of probable falsity or sufficient evidence to permit the conclusion that defendants in fact entertained serious doubts as to the truth of the publication. Young v. Wilham, 2017-NMCA-087, cert. denied. The Federal Railroad Safety Act does not preclude an excessive speed claim under the Federal Employee's Liability Act. - Where a railroad employee brought a negligence claim under the Federal Employee's Liability Act (FELA), 45 U.S.C. §§ 51-60, against his employer, the BNSF Railway Company (BNSF), summary judgment for BNSF was improper because under federal preclusion law, when there are two acts upon the same subject, the rule is to give effect to both if possible, and the Federal Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-20168, does not expressly preclude FELA excessive speed claims, and allowing a FELA excessive speed claim does not create an irreconcilable conflict with FRSA because FELA and FRSA are complementary and permitting a FELA excessive speed claim furthers the purposes of both statutes. Noice v. BNSF Ry. Co., 2016 -NMSC-032, aff'g 2015-NMCA-054, 348 P.3d 1043. Claims under the Federal Employers Liability Act are not precluded by the Federal Railroad Safety Act. - Where railroad employee brought a negligence claim against his employer railroad under the Federal Employers Liability Act, 45 U.S.C. § 51 (FELA), summary judgment for defendant railroad was not proper because a speed-based negligence claim under FELA is not precluded by the speed regulations under the Federal Railroad Safety Act, 49 U.S.C. § 20101 (FRSA); the two acts are complimentary and have different purposes, FELA being enacted to protect the safety of railroad workers by allowing negligence suits against their employers, and FRSA being enacted to provide national uniformity in railroad safety regulations. Noice v. BNSF Ry. Co., 2015 -NMCA-054, cert. granted, 2015-NMCERT-005. Respondeat superior. - An employer who consented to the use of the vehicle driven by its employee and who had a right to control the employee's operation of the vehicle was not liable as a matter of law for injuries to plaintiff in an automobile accident that occurred when the employee was driving home after work. Lessard v. Coronado Paint & Decorating Center, Inc., 2007-NMCA-122, 142 N.M. 583, 168 P.3d 155, cert. granted, 2007-NMCERT-009. Negligent hiring and retention. - An employer has a duty to the motoring public to use due care to hire and retain employees who will drive vehicles in the scope of their employment and whether that duty includes a duty to investigate the employee's driving record and how that duty may be satisfied is a question of breach of the employer's duty which is a question of fact for the jury. Lessard v. Coronado Paint & Decorating Center, Inc., 2007-NMCA-122, 142 N.M. 583, 168 P.3d 155, cert. granted, 2007-NMCERT-009. IV. MOTION AND PROCEEDINGS THEREON. A. IN GENERAL. Genuine issue of material fact raised by the failure of plaintiffs' union to consider the merits of plaintiffs' grievances. - Where plaintiffs were terminated as full-time teachers; the union filed a grievance on behalf of plaintiffs; instead of pursuing plaintiffs' grievances in arbitration, the union settled the grievances; and the union failed to pursue, obtain and evaluate the reasons for the termination of plaintiffs, to discuss the reasons for termination with plaintiffs, and to evaluate the merits of plaintiffs' grievances, a genuine issue of material fact existed as to whether the union breached the duty of fair representation. Callahan v. New Mexico Fed'n of Teachers-TVI, 2010-NMCA-004, 147 N.M. 453, 224 P.3d 1258, cert. denied, 2009-NMCERT-012. Genuine issues of fact as to an implied employment contract. - Where the employer promulgated a comprehensive and specific set of procedures for handling almost all types of work-related problems; the employer made statements in the procedures which suggested that the procedures were put into place in order to create a sense of fairness and that managers and employees were required to use the procedures; in managers' training sessions, the employer represented that termination was for cause and only after progressive discipline; and the employer had a practice of only terminating for cause, a genuine issue of material fact existed as to whether the employer's words and conduct would lead a reasonable employee to believe that the employer was bound by an implied contract that the employee would only be fired for cause and after the application of progressive disciplinary procedures. West v. Washington Tru Solutions, LLC, 2010-NMCA-001, 147 N.M. 424, 224 P.3d 651, cert. denied, 2009-NMCERT-011. Employer's control over employee of an independent contractor. - The extent of an employer's control informs both the question of whether the employer owes a duty to an independent contractor's employee and the question of whether the employer breached its duty and caused the employee's injuries. Thus, the employer owes a duty to an employee of an independent contractor if the employer has some kind of supervisory control over the independent contractor and, if the employer owes this duty, it may be liable if it exercises its control in a negligent manner that causes injury to the independent contractor's employee. Both inquiries are fact driven. With respect to the employer's duty, the parties must introduce evidence of the extent of the employer's control over the independent contractor's operations. Once the duty is established, the parties must introduce evidence on the question of liability, which involves the way in which the employer exercised its control. Sherman v. Cimarex Energy Co., 2014-NMCA-026, cert. denied, 2014-NMCERT-001. Genuine issue as to employer's control over employee of an independent contractor. - Where plaintiff worked as a tool pusher for an independent contractor who had contracted with defendant to drill an oil well; plaintiff was asleep in the doghouse when defendant's drilling consultant woke plaintiff up to perform a task on the blowout preventor; plaintiff fell over a handrail while walking down the stairs from the doghouse; and plaintiff introduced evidence that the contract between the independent contractor and defendant provided that the independent contractor would provide labor and perform services under the direction, supervision and control of defendant, defendant assumed sole responsibility and liability for the operations of the parties, defendant agreed to adhere to the independent contractor's safety policies, plaintiff answered to defendant's drilling consultant while they worked on the rig, at the time of the accident, plaintiff had worked twelve consecutive days and had not had any sleep for twenty-four hours before the accident, and workers on the rig and the drilling consultant knew that plaintiff was fatigued at the time of the accident, the evidence created genuine issues of fact as to whether defendant had supervisory control over the independent contractor's operations, whether defendant breached any duty it owed to plaintiff, and whether those actions caused plaintiff's injuries. Sherman v. Cimarex Energy Co., 2014-NMCA-026, cert. denied, 2014-NMCERT-001. Improper procedure. - Where decedent died in a nursing home; plaintiff, as the personal representative of decedent's estate, sued defendant for wrongful death; in its answer to plaintiff's complaint for wrongful death, defendant noted that its subsidiary was the owner and operator of the nursing home, denied that defendant owned and operated the nursing home, and denied that it was the employer of the staff of the nursing home; plaintiff did not file a motion for summary judgment on the employment relationship between defendant and the staff of the nursing home; at the hearing on defendant's motion for summary judgment on plaintiff's punitive damages claim, plaintiff orally asked the court for a ruling on the employment issue; and the court allowed defendant to respond orally at the hearing, accepted one exhibit from defendant showing the corporate structure of defendant and its subsidiaries, and refused to consider other exhibits offered by defendant, the court failed to follow the proper procedure for resolving an issue of fact before trial through summary judgment because the court denied defendant notice that summary judgment could be entered against it and a meaningful opportunity to respond to plaintiff's request for a ruling on the employment issue. Keith v. ManorCare, Inc., 2009-NMCA-119, 147 N.M. 209, 218 P.3d 1257, cert. granted, 2009-NMCERT-010. Duty of care to baseball spectators. - An owner/occupant of a commercial baseball stadium owns a duty that is symmetrical to the duty of the spectator. Spectators must exercise ordinary care to protect themselves from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk. Edward C. v. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086, rev'g Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827. The court declined to adopt the "baseball rule", which provides that in the exercise of reasonable care, the proprietor of a ballpark need only provide screening for the area of the field behind home plate, where the danger of being struck by a ball is greatest. Such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, because comparative negligence principles allow the fact finder to take into account the risks that spectators voluntarily accept when they attend baseball games, as well as the ability of stadium owners to guard against unreasonable risks that are not essential to the game itself. Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827, rev'd, Edward C. v. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086. Where a child was seated at picnic tables located in the left outfield stands at a baseball stadium; without warning or notice pre-game batting practice began, and a player hit a ball directly into the left field picnic tables; the ball struck the child in the head; plaintiffs alleged that by providing picnic-style seating, which invites spectators to turn their attention away from the field, the owner and operator of the baseball stadium had a duty to screen the picnic area in addition to the area behind home plate, and that because spectators were not necessarily aware that balls might fly into the picnic area during pre-game batting practice, the owner and operator had a duty to provide a warning that batting practice was about to begin and that spectators should be alert for foul or home run balls; and the owner and operator did not present any evidence that they took any action to protect spectators beyond screening the stands behind home plate, plaintiff's allegations raised issues of fact regarding the actions the owner and operator might reasonably be expected to take in order to protect spectators in the picnic area. Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827, rev'd, Edward C. v. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086. Foreseeability of modifications to manufactured product. - Where a rock crusher was manufactured with a solid metal protective shield covering a flywheel; rock jams were common and maintenance of the crusher was required; the feed box of the crusher was difficult to access to clear jams and to maintain the crusher; the purchaser of the rock crusher modified the crusher by removing the protective shield covering the flywheel and adding a step next to the flywheel to make it easier to clear jams and to perform maintenance; and the decedent was injured by the flywheel as the decedent knelt on the step to clear a jam, there was a genuine issue of material fact as to foreseeability. Chairez v James Hamilton Const. Co., 2009 -NMCA-093, 146 N.M. 794, 215 P.3d 732. Evidence to rule out conscious parallelism in antitrust conspiracy case. - Where the plaintiff alleged that cigarette manufacturers conspired during a seven year period to fix the prices of cigarettes in New Mexico and where the plaintiff's evidence showed that during the seven year period, the tobacco industry exhibited an unprecedented degree of parallelism; what had previously been ten price tiers had been consolidated into two price tiers; twelve in-tandum increases occurred in the prices of both premium and discount cigarettes; the multi-variable, multi-price-tier parallelism went well beyond the price leadership within a single-tier market demonstrated by the cigarette industry prior to the introduction of generic cigarettes; and the parallelism involved parallelism among market tiers that formerly had been in vigorous competition, the evidence allowed a reasonable fact finder to reject conscious parallelism as a plausible explanation for the parallelism in the cigarette industry, thereby leaving the competing inference of conspiracy as the most likely explanation for the parallelism and created a genuine issue of material fact. Romero v. Philip Morris, Inc., 2009-NMCA-022, 145 N.M. 658, 203 P.3d 873, cert. granted, 2009-NMCERT-002. Where the plaintiff asked her union to submit a grievance addressing her salary step assignment; the union representatives never told the plaintiff that the union would not follow through with her grievance; the initially required written grievance was never filed; the union representatives never told the plaintiff that they would not or could not pursue her grievance because they had never filed the initially required written grievance; the union never told the plaintiff that her claim was not valid; and the union failed to point to any admissible evidence that explained its reasons for not filing the initially required written grievance, an issue of fact existed concerning the reasons the union failed to file a written grievance. Howse v. Roswell Indep. Sch. Dist., 2008 -NMCA-095, 144 N.M. 502, 188 P.3d 1253, cert. denied, 2008-NMCERT-006, 144 N.M. 380, 188 P.3d 104. Genuine issues of fact raised by reasonableness of union settlement of prohibited practices complaint. - Plaintiffs' claim that the union breached its duty of fair representation by settling a prohibited practices complaint filed on behalf of some union members concerning the loss of promotional opportunity due to a flawed promotion process, but failing to include the plaintiffs in the settlement, presented genuine issues of material fact as to whether the union arbitrarily excluded the plaintiffs from the resolution of the prohibited practices complaint. Granberry v. Albuquerque Police Officers Ass'n, 2008-NMCA-094, 144 N.M. 595, 189 P.3d 1217. Genuine issues of fact raised by preclusive effect of union bylaws. - In an action against a union for breach of the duty of fair representation, in which the union settled a prohibited practices complaint that it filed on behalf of some union members concerning the loss of promotional opportunity due to a flawed promotion process, but failed to include the plaintiffs in the settlement and in which the union bylaws required members involved in an unfair labor practice to notify the union and lend the members' names to any action filed by the union to resolve the unfair labor practice and the plaintiffs offered facts to show that the union typically filed prohibited practices complaints on behalf of all of its affected members without naming individuals and that the plaintiffs and other members had benefited from such complaints in the past without requesting union assistance, the plaintiffs' claim presented genuine issues of material fact as to the viability of the bylaw. Granberry v. Albuquerque Police Officers Ass'n, 2008-NMCA-094, 144 N.M. 595, 189 P.3d 1217. Non-moving party's due process rights violated. - Where the trial court granted partial summary judgment to multiple plaintiffs as to liability on several different claims, even though only one plaintiff moved for summary judgment on one claim, the trial court violated the defendant's due process rights by adjudicating claims against it and striking its affirmative defenses without giving it notice and a reasonable opportunity to respond or present evidence to establish a genuine issue of material fact as to each of the claims adjudicated against it. Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, 133 N.M. 669, 68 P.3d 909, cert. denied, 133 N.M. 539, 65 P.3d 1094. Effect of failure to timely respond to motion. - Dismissal with prejudice was too severe a sanction against a party who failed to respond to opponent's motion for summary judgment, failing a satisfactory explanation by the district court for ordering dismissal with prejudice. Lujan v. City of Albuquerque, 2003-NMCA-104, 134 N.M. 207, 75 P.3d 423. The proper manner in which to request entry of an order granting a motion for summary judgment and to request entry of judgment of dismissal with prejudice, when the order and judgment are sought based on failure to timely respond to a motion for summary judgment, is through a written motion as provided under Rule 1-007(A) and (B)(1) NMRA, providing fifteen days to respond after service of the motion pursuant to Rule 1-007.1(D) NMRA. Lujan v. City of Albuquerque, 2003-NMCA-104, 134 N.M. 207, 75 P.3d 423. Party not prejudiced by short notice where aware movant previously sought summary judgment. - A party cannot be heard to complain that it was prejudiced by short notice of a bankruptcy court hearing on a motion for emergency relief and summary judgment where the party was on notice that the movant had sought summary judgment in prior state proceedings, especially where the order granting summary judgment was subject to a motion to vacate. GECC v. Montgomery Mall Ltd. Partnership, 704 F.2d 1173 (10th Cir.), cert. denied, 464 U.S. 830, 104 S. Ct. 108, 78 L. Ed. 2d 110 (1983). Motion for continuance. - This rule does not require the court to grant a continuance, but rather gives the court discretion to do so if appropriate. Griffin v. Thomas, 2004-NMCA-088, 136 N.M. 129, 95 P.3d 1044. No abuse of discretion in refusing continuance. - Where the appellate court is unable to perceive any benefit that plaintiff could have received had the district court granted his motion for a continuance, any prejudice to plaintiff occurring as a result of the denial, or any legitimate motive for further delaying the proceedings, the district court did not abuse its discretion in refusing to grant plaintiff's motion for a continuance. Griffin v. Thomas, 2004-NMCA-088, 136 N.M. 129, 95 P.3d 1044. Summary judgment appropriate following motion to dismiss. - The trial court's authority to grant summary judgment under this rule is not limited by a motion to dismiss pursuant to Rule 1-012 NMRA when the opposing party had reasonable notice of the issues underlying the summary judgment, together with the opportunity to be heard, and failed to make a specific allegation of prejudice at the appropriate time. Aldridge v. Mims, 1994-NMCA-114, 118 N.M. 661, 884 P.2d 817. Dismissal motion treated as summary judgment motion when outside matters considered. - When matters outside the pleadings are considered on a motion to dismiss, the motion will be treated as one for summary judgment. Transamerica Ins. Co. v. Sydow, 1981-NMCA-121, 97 N.M. 51, 636 P.2d 322. Motion to dismiss treated as motion for summary judgment. Emery v. University of N.M. Med. Center, 1981-NMCA-059, 96 N.M. 144, 628 P.2d 1140. Basis for granting summary judgment. - Summary judgment is proper when there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Matkins v. Zero Refrigerated Lines, 1979-NMCA-095, 93 N.M. 511, 602 P.2d 195; Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds, Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155; Phillips v. Allstate Ins. Co., 1979 -NMCA-146, 93 N.M. 648, 603 P.2d 1105; Hertz Corp. v. Paloni, 1980-NMCA-158, 95 N.M. 212, 619 P.2d 1256; Richards v. Upjohn Co., 1980-NMCA-062, 95 N.M. 675, 625 P.2d 1192, cert. denied, 94 N.M. 675, 615 P.2d 992; Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291; Frontier Leasing, Inc. v. C.F.B., Inc., 1981-NMSC-073, 96 N.M. 491, 632 P.2d 726; Savinsky v. Bromley Group, Ltd., 1987-NMCA-078, 106 N.M. 175, 740 P.2d 1159; Garcia v. Smith Pipe & Steel Co., 1988-NMCA-078, 107 N.M. 808, 765 P.2d 1176. Summary judgment should only be granted where there is no genuine issue as to any material fact and where the moving party is entitled to a judgment as a matter of law. Sweenhart v. Co-Con, Inc., 1981-NMCA-031, 95 N.M. 773, 626 P.2d 310. Summary judgment is proper when the pleadings and the evidence in form of depositions, answers to interrogatories, admissions, affidavits and stipulations, if any, show that there is no genuine issue of material fact, and that the moving party is entitled to summary judgment as a matter of law. Vaughn v. State, Taxation & Revenue Dep't, 1982-NMCA-112, 98 N.M. 362, 648 P.2d 820. If the facts are not in dispute, but only the legal effect of the facts is presented for determination, then summary judgment may properly be granted; and it is well established that whether a duty exists under the circumstances of a given case is a pure question of law for the court to determine. Koenig v. Perez, 1986-NMSC-066, 104 N.M. 664, 726 P.2d 341. Summary judgment should be granted when no genuine issue of material fact exists that requires a jury trial. FDIC v. Alto Constr. Co., 1989 -NMSC-075, 109 N.M. 165, 783 P.2d 475. Summary judgment is improper so long as one issue of material fact remains. Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470; Frontier Leasing, Inc. v. C.F.B., Inc., 1981-NMSC-073, 96 N.M. 491, 632 P.2d 726; Security Bank & Trust v. Parmer, 1981-NMSC-118, 97 N.M. 108, 637 P.2d 539. Substantial dispute as to material fact forecloses summary judgment. McKay v. Farmers & Stockmens Bank, 1978-NMCA-070, 92 N.M. 181, 585 P.2d 325, cert. denied, 92 N.M. 79, 582 P.2d 1292. Propriety of summary judgment must be independently determined by trial court. - Where both parties moved for summary judgment alleging the absence of a material fact issue, it was nevertheless the duty of the trial court to independently determine whether a genuine issue of fact was actually present. Giese v. Mountain States Tel. & Tel. Co., 1962-NMSC-125, 71 N.M. 70, 376 P.2d 24; Harp v. Gourley, 1961-NMSC-026, 68 N.M. 162, 359 P.2d 942. Facts must be clear and undisputed. - A summary judgment proceeding is not to decide the issue of fact but rather to determine whether one exists and is proper only where the moving party is entitled to the judgment as a matter of law upon clear and undisputed facts. De La Torre v. Kennecott Copper Corp., 1976-NMCA-108, 89 N.M. 683, 556 P.2d 839. Where defendants admitted execution of a note, no denial under oath of the genuineness of the note attached as an exhibit was made as required by Rule 9(j) (see now Rule 1-009 NMRA), the terms of the note are self-explanatory and no material issue remained to be determined except the unpaid balance, the court properly entered summary judgment against defendants. General Acceptance Corp. v. Hollis, 1965-NMSC-135, 75 N.M. 553, 408 P.2d 53 (decided prior to 1986 amendment of Rule 1-009 NMRA). Issues of fact are not to be decided on motions for summary judgment, which should be denied unless the court is convinced from all the pleadings, depositions, admissions and affidavits before it that party moving is entitled thereto as a matter of law. Wieneke v. Chalmers, 1963-NMSC-158, 73 N.M. 8, 385 P.2d 65. Where there have been shown to be factual conflicts in opposing affidavits and where legal defenses do not clearly appear as a matter of law, summary judgment is not proper. Skarda v. Skarda, 1975-NMSC-028, 87 N.M. 497, 536 P.2d 257. Genuine issue as to reasonableness of plaintiff's conduct. - Since the word "NIL" did not communicate to plaintiff (a 19-year-old with a high school education) that medical expense coverage, which he had been assured would be included, was omitted from the policy, and the term was of doubtful meaning and ambiguous to him, a genuine issue of material fact existed as to whether the insured's conduct was that of a reasonable person, such as an ordinary lay person, such that reformation would be in order. Read v. W. Farm Bureau Mut. Ins. Co., 1977 -NMCA-039, 90 N.M. 369, 563 P.2d 1162. Proper amendment of summary judgment motions. - Since motions must be directed to specific parties, a movant has the option to amend the summary judgment motion to add additional parties or to change parties, if necessary, with the motion relating back to the date of the original motion if the party has received such notice so he will not be prejudiced. By failing to amend his motion, defendant failed to make a summary judgment motion against this plaintiff. Thus, the summary judgment motion granted must be reversed. Perea v. Snyder, 1994-NMCA-064, 117 N.M. 774, 877 P.2d 580. Collision avoidance is factual issue. - In a wrongful death action, the question of whether a motorist could have avoided a collision with a pedestrian by keeping a proper lookout and maintaining proper control of his vehicle is normally a factual issue for the trier of fact. Trujillo v. Treat, 1988-NMCA-017, 107 N.M. 58, 752 P.2d 250. Doctors' opinions create factual issue as to malpractice. - Because of the opinion of several doctors as to fundamental techniques applicable no matter where the doctor practices medicine, there was a factual issue under the locality rule. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Genuine issue as to condition of electric lines. - Where plaintiff in a personal injury case claimed that he was told by defendant that all electric lines were dead, and defendant disputed this statement, a genuine issue of fact was raised regardless of whether it was reasonable for plaintiff to rely on the statement. New Mexico Elec. Serv. Co. v. Montanez, 1976-NMSC-028, 89 N.M. 278, 551 P.2d 634. Foreseeability and gun safety are jury issues. - Trial court erred in granting summary judgment in favor of gun maker and gun seller in an action arising from an accidental shooting because whether the misuse of the gun was foreseeable and whether the gun was safe were jury issues. Smith v. Bryco Arms, 2001-NMCA-090, 131 N.M. 87, 33 P.3d 638, cert. denied, 131 N.M. 221, 34 P.3d 610 (2002). Absence of apparent injury is sufficient excuse for delay in giving notice to insurer where there is no reasonable ground for believing at the time that bodily injury would result from the accident, even where the insured knows of the accident upon which a later claim for damages is based; therefore questions of fact existed concerning the nature of defendant's injury, and the trial court's order granting summary judgment was error. Ohio Cas. Ins. Co. v. Lamy Columbus Club, 1969-NMSC-153, 80 N.M. 740, 461 P.2d 155. Denial of sufficient service of process raises material issue. - Where the judgment sued on recited sufficient service of process but the defendant denied such service, this certainly raised an issue of material fact which could not be resolved by taking evidence at a hearing on summary judgment without proof by uncontradicted affidavit or deposition. Shumate v. Hillis, 1969-NMSC-065, 80 N.M. 308, 454 P.2d 965. Substantial fact issue raised by contradictory evidence. - Where trial court had before it evidence which was in some respects directly contradictory such that, eliminating opinion and hearsay statements, a substantial issue of material fact was raised, the motion for summary judgment should have been denied. Sandoval v. Board of Regents, 1965-NMSC-069, 75 N.M. 261, 403 P.2d 699. Material issues of fact preventing summary judgment. - Trial court's ruling in favor of plaintiff's motion for summary judgment was erroneous, where defendant's affidavit contained numerous specific allegations in support of its counterclaim, and where substantial evidence weighed in favor of both parties' assertions. Lotspeich v. Golden Oil Co., 1998-NMCA-101, 125 N.M. 365, 961 P.2d 790. Expert's opinion raises fact issue on general bodily impairment. - Where medical expert testified that as a result of the severance of the leg the claimant suffered no other organic bodily impairment but did suffer a psychic trauma greater than the average person under the circumstances and that such psychic trauma was directly traceable to the said severance and rendered claimant totally unable to perform any gainful employment, there was presented an issuable fact as to whether there was general bodily impairment other than that naturally flowing from the loss of the member, and defendant was not entitled to summary judgment. Gonzales v. Gackle Drilling Co., 1962-NMSC-063, 70 N.M. 131, 371 P.2d 605. Material issue raised by testimony explaining ambiguity in contract. - When testimony was admissible to explain the ambiguity present in a written contract, an issue of material fact not determinable on motion for summary judgment was present. Harp v. Gourley, 1961-NMSC-026, 68 N.M. 162, 359 P.2d 942. Genuine issue as to fraud in connection with probate of will. - District court erred in finding that there was no genuine issue as to one or more of the material facts necessary to give rise to a claim for fraud in connection with the informal probate of a will, where questions raised by the papers filed with the probate court constituted issues of fact and affidavits in support of a motion for summary judgment did not negate them. Eoff v. Forrest, 1990-NMSC-033, 109 N.M. 695, 789 P.2d 1262. Summary judgment for defendant in legal malpractice action. - Summary judgment in favor of defendant in legal malpractice action was proper where plaintiff failed to controvert defendants' factual allegation that they were unaware of original defendant's oral promises to plaintiff. Selby v. Roggow, 1999-NMCA-044, 126 N.M. 766, 975 P.2d 379. Summary judgment for the defendant in a legal malpractice action was improper where there were genuine issues of material fact as to whether the plaintiff could have prevailed on the underlying fraud claim. Meiboom v. Carmody, 2003-NMCA-145, 134 N.M. 699, 82 P.3d 66, cert. denied, 2003-NMCERT-003. Granting summary judgment in ejectment despite substantial evidence otherwise is error. - A court errs in granting summary judgment in ejectment where there is substantial evidence to the effect that defendants are the true owners of the property, and the plaintiffs do not meet their burden of establishing that they, rather than the defendants, are entitled to possession of the property. Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Action against school board members wherein summary judgment improper. - In an action brought against members of a school board and its superintendent, where issues of material fact existed: (1) as to whether the plaintiff had been dismissed without prior determination of the board, and (2) whether he was either an "employee" or a "certified school personnel of the school district," a summary judgment is improper. Gallegos v. Los Lunas Consol. Schs. Bd. of Educ., 1980-NMCA-117, 95 N.M. 160, 619 P.2d 836. Whether consent not necessary before surgery issue of fact precluding summary judgment. - A physician must obtain an adult patient's consent before performing surgery. Consent is not necessary, however, in an emergency situation or when disclosure of the risk of surgery would be harmful to the patient. Whether a particular patient falls within either of these exceptions is an issue of fact precluding judgment. Eis v. Chesnut, 1981-NMCA-040, 96 N.M. 45, 627 P.2d 1244. Genuine issue concerning prior decree's implementation precludes summary judgment. - Summary judgment is not proper where there remain in the cause genuine issues of material fact concerning the proper implementation of a prior decree. Marquez v. Juan Tafoya Land Corp., 1981-NMSC-080, 96 N.M. 503, 632 P.2d 738. No genuine issue as to duty to care for parking lot. - Where the provisions of a lease agreement do not require that a tenant care for a parking lot, and there is no showing that the tenant exercised control over the parking lot nor had the responsibility of maintaining the premises in a safe condition, no genuine issue of fact exists as to the tenant's duty, and therefore, the trial court may correctly grant the defendant's summary judgment motion. Torres v. Piggly Wiggly Shop Rite Foods, Inc., 1979-NMCA-093, 93 N.M. 408, 600 P.2d 1198, cert. denied, 93 N.M. 683, 604 P.2d 821. Where there is no evidence of estoppel, summary judgment is proper, as there is no genuine issue of material fact on that ground. Garcia v. Albuquerque Pub. Schs., 1983 -NMCA-056, 99 N.M. 741, 663 P.2d 1198. Summary judgment not granted if court finds evidence sufficient to create reasonable doubt as to the existence of a genuine issue. Hertz Corp. v. Paloni, 1980-NMCA-158, 95 N.M. 212, 619 P.2d 1256. If the evidence is sufficient to create a reasonable doubt as to the existence of a genuine issue, summary judgment cannot be granted. Poorbaugh v. Mullen, 1981-NMCA-009, 96 N.M. 598, 633 P.2d 706. If reasonable minds differ on issues matter is for the jury. Kelly v. Montoya, 1970-NMCA-063, 81 N.M. 591, 470 P.2d 563. Where certain showings raised material issues of fact as to whether the safe operation of the crane which killed plaintiff's decedent was its lessor's work and as to whether the lessor had a right to control safety matters, summary judgment on these matters was improper, and whether crane operator was or was not a special employee of lessee in connection with safety matters in the operation of the crane was a factual question for the jury. Fresquez v. Southwestern Indus. Contractors & Riggers, 1976-NMCA-090, 89 N.M. 525, 554 P.2d 986, cert. denied, 90 N.M. 8, 558 P.2d 620. Where the court was unwilling to rule on whether agent had actual authority based upon his title as a matter of law, and where questions existed as to the nature and extent of that authority, a genuine issue of material fact existed requiring reversal of the summary judgment. Pribble v. Aetna Life Ins. Co., 1972 -NMSC-063, 84 N.M. 211, 501 P.2d 255. Where there existed an issue of fact as to whether the defendant should have anticipated that physical harm would be caused to its business invitees if the roof were permitted to remain in its snowy and icy condition, in spite of the fact that the danger was known and obvious the granting of summary judgment was improper. Proctor v. Waxler, 1972-NMSC-057, 84 N.M. 361, 503 P.2d 644. The court's determination that an easement offered to plaintiffs by the defendants did afford reasonable access to and from the property of plaintiffs is a factual determination, which at a summary judgment hearing was improper. Coe v. City of Albuquerque, 1970-NMSC-041, 81 N.M. 361, 467 P.2d 27. It was a question of fact whether appellee's letter constituted an unconditional offer to supply the specified product requested by the appellant, and therefore disposition by summary judgment was improper. Cillessen Bros. Constr. Co. v. Frank Paxton Lumber Co., 1968-NMSC-070, 79 N.M. 95, 440 P.2d 133. Where review of the record convinces court that the record is not such that plaintiff's conduct can be said as a matter of law to have constituted contributory negligence barring her recovery, the entry of a summary judgment dismissing plaintiff's action was error requiring reversal. Behymer v. Kimbell-Diamond Co., 1967-NMSC-260, 78 N.M. 570, 434 P.2d 392. Where permission as to use of automobile involved in accident was in dispute, there was an unresolved issue of material fact and granting of summary judgment was improper. Barela v. Lopez, 1963-NMSC-186, 73 N.M. 121, 385 P.2d 975. Where construction of contract depends on extrinsic facts, summary judgment precluded. - Whether an ambiguity exists in an agreement is a matter of law. But once this determination has been made, the construction of the agreement depends on extrinsic facts and circumstances, and then the terms of the agreement become questions of fact for the jury. Young v. Thomas, 1979-NMSC-105, 93 N.M. 677, 604 P.2d 370. Summary judgment proper where only legal effect of facts presented for determination. - Where the facts are not in dispute but only the legal effect of the facts is presented for determination, summary judgment may be properly granted. Sanders v. Smith, 1972-NMCA-016, 83 N.M. 706, 496 P.2d 1102, cert. denied, 83 N.M. 698, 496 P.2d 1094; Pederson v. Lothman, 1958-NMSC-003, 63 N.M. 364, 320 P.2d 378; Meeker v. Walker, 1969-NMSC-053, 80 N.M. 280, 454 P.2d 762; Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846; Westgate Families v. County Clerk, 1983-NMSC-061, 100 N.M. 146, 667 P.2d 453. Where the facts are not in dispute and all that remains is the legal effect of the facts, summary judgment is proper. Lovato v. Duke City Lumber Co., 1982-NMCA-021, 97 N.M. 545, 641 P.2d 1092. Summary judgment proper where evidentiary rule leaves plaintiffs unable to prove a necessary element of their case. - Where plaintiffs filed suit for damages against defendants, alleging fraud, constructive fraud, intentional misrepresentation, and conversion, claiming that defendants, during the formation of a joint business venture, failed to disclose a nineteen-year-old nolo contendere plea to a theft of trade secrets charge, and alleging that had plaintiffs known of the plea, they never would have agreed to go into business with defendants, the district court did not err in granting defendants' motion for summary judgment, because Rule 11-410 NMRA prohibits the admission of a nolo contendere plea against the pleader in subsequent proceedings, thereby leaving plaintiffs unable to prove misrepresentation, a necessary element of their case. Kipnis v. Jusbasche, 2017-NMSC-006, rev'g 2015-NMCA-071, 352 P.3d 687. Summary judgment improper where conflicting inferences can be drawn from undisputed facts. - Summary judgment is improper where the relevant facts are undisputed, but where conflicting inferences can be drawn from the basic facts and the credibility of witnesses. Kipnis v. Jusbasche, 2015-NMCA-071, cert. granted, 2015-NMCERT-006. Where plaintiffs filed suit against defendant for fraud, constructive fraud, and conversion, claiming that defendant breached a duty to disclose the fact that he pled nolo contendere to a charge of theft of trade secrets nineteen years earlier, summary judgment was improper, even though the basic fact that defendant failed to inform plaintiffs about his plea and sentence when plaintiffs inquired about defendant's personal history prior to entering into a business relationship, because reasonable minds could differ as to the materiality of the basic facts, and development of additional facts was appropriate in order for the trial court to properly determine whether a duty to disclose arose. Kipnis v. Jusbasche, 2015-NMCA-071, cert. granted, 2015-NMCERT-006. Improper where proximate cause issue remains. - Even though a prima facie showing of the plaintiff's negligence has been made, summary judgment is improper if the issue of proximate cause remains. Ruiz v. Southern Pac. Transp. Co., 1981 -NMCA-094, 97 N.M. 194, 638 P.2d 406. If after considering all matters presented in the light most favorable to the party opposing the motion for summary judgment there is no genuine issue of material fact and a basis is therefore present to decide the issues as a matter of law, then the summary judgment should be granted. Montoya v. City of Albuquerque, 1970-NMSC-132, 82 N.M. 90, 476 P.2d 60. When the evidence on an issue of fact tendered by the pleadings is undisputed and the inferences to be drawn therefrom are not open to doubt by reasonable men, the issue is no longer one of fact to be submitted to the jury but becomes a question of law. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Where it was undisputed that the display rack over which or upon which plaintiff fell was in plain view and could have been seen by her had she looked, there was no material issue which would warrant a trial, and summary judgment was proper. Perry v. Color Tile, 1970-NMCA-009, 81 N.M. 143, 464 P.2d 562. The fact that appellant tripped and fell over a curb on what appeared to be a portion of the public sidewalk does not of itself raise a presumption of negligence on the part of the person who built or maintained the curb. There were no facts or inferences to be drawn therefrom which would have justified the submission to a jury of any issue of negligence on the part of appellee; therefore summary judgment was proper for disposition of this case. Giese v. Mountain States Tel. & Tel. Co., 1962-NMSC-125, 71 N.M. 70, 376 P.2d 24. Bar of statute of limitations question of law. - Where the facts are not disputed the question whether the case is within the bar of the statute of limitations is one of law for the court. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Likewise whether accord and satisfaction. - Where there is only the question of law as to whether there was an accord and satisfaction, based upon the pleadings and the admissions on file, there is no genuine issue of material fact, and the defendants are entitled to judgment as a matter of law. Such a case appears to be particularly well-suited for the use of the summary judgment procedure. Electric Supply Co. v. United States Fid. & Guar. Co., 1969-NMSC-003, 79 N.M. 722, 449 P.2d 324. Whether option contract or right of first refusal. - The undisputed facts of the case are that plaintiff wrote a letter to defendant offering to buy certain land and that defendant answered in a letter that it would take "no action at this time" but that "if the present position of our committee changes you will be so informed immediately." As a matter of law, there was neither an option contract nor a right of first refusal arising from any construction which can reasonably be placed upon the disputed facts; thus there is no genuine issue of any material fact, and summary judgment is proper. Shriners Hosps. for Shriners Hosps. for Crippled Children v. Kirby Cattle Co., 1976-NMSC-013, 89 N.M. 169, 548 P.2d 449. Summary judgment proper where basis present for decision as matter of law. - If upon consideration of all material undisputed facts a basis is present to decide the issues as a matter of law, summary judgment is proper. Worley v. United States Borax & Chem. Corp., 1967-NMSC-129, 78 N.M. 112, 428 P.2d 651. If the undisputed facts as a matter of law will support a judgment in favor of the moving party, then the summary judgment should be granted. GECC v. Tidenberg, 1967-NMSC-126, 78 N.M. 59, 428 P.2d 33. Where a completed arbitration had occurred with all parties having participated and submitted their proofs and allegations to the arbitrator and an award was made, summary judgment was properly rendered for defendant insurer in subsequent suit alleging insurer's bad faith in resorting to arbitration. Chacon v. Mountain States Mut. Cas. Co., 1971 -NMCA-051, 82 N.M. 602, 485 P.2d 358. Unless rocky, barren, unplatted and unsettled land located within an area sought to be annexed could not be considered, where owners of acreage in excess of the required percentage had signed an annexation petition, the defendant's motion for summary judgment was correctly sustained in an action brought to enjoin the annexation. Hughes v. City of Carlsbad, 1949-NMSC-018, 53 N.M. 150, 203 P.2d 995. Actual knowledge of defect not shown by plaintiff. - A public electric utility cannot be held liable for an allegedly defective installation which it did not build or control unless it is shown that the utility furnished electricity with actual knowledge of a defect, and since it was shown that the utility had no actual knowledge in this case, summary judgment in its favor was properly granted. New Mexico Elec. Serv. Co. v. Montanez, 1976-NMSC-028, 89 N.M. 278, 551 P.2d 634. Deviation from standard medical practice. - In a malpractice case testimony of a medical doctor (a professor at the University of New Mexico medical school and a highly qualified surgeon) that he would have inserted a cantor tube in a different fashion failed to raise a genuine issue as to negligence on the part of the defendant doctor, an osteopathic surgeon, since there was no evidence that he knew or should have known about the procedure used by the witness and the record was completely void of any testimony that the technique was taught in osteopathic schools or seminars, was the subject of any medical literature or texts, or was in general use by osteopathic surgeons in the area or at any other place. There was literally no evidence of deviation from a recognized standard of osteopathic practice and no showing at all that the defendant's action or failure to act was the proximate cause of any injury to the deceased. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. Summary judgment may be proper even though disputed issue remains. - If the undisputed facts as a matter of law will support a judgment in favor of the moving party, then the summary judgment should be granted even though there may be a dispute in the facts on other immaterial issues. Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 1967-NMSC-086, 77 N.M. 730, 427 P.2d 249. Since certain affirmative defenses are often susceptible of categorical proof, a summary adjudication of a claim based on negligence may appropriately be rendered for the defendant when such is the case and the defense is legally sufficient; thus even if an issue of material fact remains as to the negligence of the defendant, summary judgment is proper because the contributory negligence of plaintiff barred her recovery. Catalano v. Lewis, 1977-NMCA-016, 90 N.M. 215, 561 P.2d 488 (Ct. App.), cert. denied, 90 N.M. 254, 561 P.2d 1347. Summary judgment may be proper though some disputed issues remain, if there are sufficient undisputed facts to support a judgment and the disputed facts relate to immaterial issues. Oschwald v. Christie, 1980-NMSC-136, 95 N.M. 251, 620 P.2d 1276. Test in determining right to summary judgment is whether, if the case had been tried, a motion for new trial would have been inevitable. Southern Union Gas Co. v. Briner Rust Proofing Co., 1958-NMSC-123, 65 N.M. 32, 331 P.2d 531. Subsequent directed verdict preferable to summary judgment. - A case of negligence need not have been made out by the plaintiff in order that she be entitled to present the merits of her case to the factfinder. Even in cases where the judge is of the opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment. Sandoval v. Board of Regents, 1965-NMSC-069, 75 N.M. 261, 403 P.2d 699. In cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented. Coca v. Arceo, 1962-NMSC-169, 71 N.M. 186, 376 P.2d 970. Summary judgment inappropriate where insufficient details. - Where there are insufficient details for a confident application of legal principles the granting of summary judgment is inappropriate, and a determination of the case should await the taking of testimony and completion of the record. Toulouse v. Armendariz, 1964-NMSC-210, 74 N.M. 507, 395 P.2d 231. Facts insufficiently developed or further resolution necessary. - Summary judgment is not appropriate when the facts before the court are insufficiently developed or where further factual resolution is essential for determination of the central legal issues involved. National Excess Ins. Co. v. Bingham, 1987-NMCA-109, 106 N.M. 325, 742 P.2d 537. Facts subject to equally logical, conflicting inferences. - Summary judgment is not proper if equally logical but conflicting inferences can be drawn from the facts before the court. National Excess Ins. Co. v. Bingham, 1987-NMCA-109, 106 N.M. 325, 742 P.2d 537. Admissions did not determine all issues. - In action to recover balance of rent due, the admissions that an agreement had been entered into for a rental of $300 and that $100 had been paid thereon did not determine all the issues of fact and thus entitle the appellants, as a matter of law, to a summary judgment or a judgment on the pleadings. Ellis v. Parmer, 1966-NMSC-161, 76 N.M. 626, 417 P.2d 436. Summary judgment improper where evidence shows nonmoving party has enforceable right. - Since an independent contractor who installed the electric lines which injured plaintiff had a duty of care to anyone who might be foreseeably endangered by the allegedly defective construction, including plaintiff as an employee of another independent electrical contractor, summary judgment for the contractor was an improper action by the trial court. Whether the defendant breached his duty of reasonable care or proximately caused the injuries in question remain for the jury to decide. The conflicting evidence must be evaluated by the factfinder. New Mexico Elec. Serv. Co. v. Montanez, 1976-NMSC-028, 89 N.M. 278, 551 P.2d 634. Where defendant has a duty to exercise reasonable care to keep premises free of ice and snow, a genuine issue of fact exists as to defendant's negligence, and summary judgment is not properly granted. Proctor v. Waxler, 1971-NMCA-106, 83 N.M. 58, 488 P.2d 108, aff'd, 1972-NMSC-057, 84 N.M. 361, 503 P.2d 644. Where plat showed open areas labelled "golf course," "clubhouse" and "tennis courts," and though plat was not recorded it was used to induce sales of lots with these areas designated for common use, but no such course, courts or clubhouse had been built, then the lot owners had an enforceable right, and granting summary judgment was error. Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 1967-NMSC-086, 77 N.M. 730, 427 P.2d 249. Trial court erred in granting appellee's motion for summary judgment in personal injury suit on grounds that appellant (a welder sent to appellee's premises by his regular employer) was a special employee and thus was barred from further recovery by the Workmen's Compensation Act, where testimony of appellant disclosed that the work he was engaged in at the time of the accident was in the usual performance of his duties and that if any of appellee's agents had given him instructions contrary to those of his regular employer he would not have followed them. Such evidence, if not contradicted by other evidence to be offered in the trial thereafter ordered, would have required the conclusion that appellant was employed solely by his regular employer and thus was not prevented from recovery from appellee. Davison v. Tom Brown Drilling Co., 1966-NMSC-115, 76 N.M. 412, 415 P.2d 541. Where there is a deed to one of the parties conveying a specific property, payment of taxes, possession by one of the parties, the presence of a common predecessor in the chain of title of both parties and other circumstances supporting a party's claim of ownership of the land, there is an issue of material fact, thereby making summary judgment impermissible. Fischer v. Mascarenas, 1979-NMSC-063, 93 N.M. 199, 598 P.2d 1159. Where, with knowledge of a false representation of an employee's physical condition to obtain employment, together with knowledge that the employee was an experienced electronics assembler, the defendant continued the plaintiff in her employment, this is sufficient to show that the defendant intentionally relinquished its right to terminate the plaintiff's employment, and therefore, a genuine issue of material fact exists whether the defendant waived its defense under the falsification concept. Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728. Lack of specificity in motion. - Where a party has timely alerted the trial court to the lack of specificity and difficulty in responding to a general motion, such as one for summary judgment, the trial court should carefully evaluate the prejudice which may result if the motion is heard or ruled upon without ordering further clarification of the grounds upon which the motion is premised. National Excess Ins. Co. v. Bingham, 1987-NMCA-109, 106 N.M. 325, 742 P.2d 537. Lack of record. - Lack of a record did not preclude summary judgment where the party opposing summary judgment limited his opposition to only one issue that did not require a determination of facts, only their legal effect, and so advised the trial court. Carter v. Thurber, 1987-NMCA-126, 106 N.M. 429, 744 P.2d 557. Oral hearing not required. - In considering a motion for summary judgment, the district court is not required to hold an oral hearing when the opposing party has had an adequate opportunity to respond to the movant's arguments through the briefing process. Flagstar Bank v. Licha, 2015-NMCA-086. In a foreclosure action, where defendants filed a written response in opposition to plaintiff's summary judgment motion and did not claim that they did not have an opportunity to respond to plaintiff's arguments during the briefing process, the district court did not err when it granted summary judgment without a hearing. Flagstar Bank v. Licha, 2015-NMCA-086. Opportunity to respond to merits of motion. - Where the court relies upon oral argument as the means for responding to the motion for summary judgment, due process requirements compel that each party be permitted a reasonable opportunity to be heard, and where defendant's motion for summary judgment lacked supporting affidavits or any factual explanation for its basis and defendant did not file any brief accompanying its motion, plaintiff was denied an opportunity to respond to the merits of the motion. National Excess Ins. Co. v. Bingham, 1987-NMCA-109, 106 N.M. 325, 742 P.2d 537. Summary judgment generally inappropriate in negligence cases. - Where an issue of negligence is involved, ordinarily the trial court should allow a jury to determine whether "reasonable minds" can differ. Tapia v. McKenzie, 1971-NMCA-128, 83 N.M. 116, 489 P.2d 181. Especially in negligence cases, the weight of authority is to deny summary judgment for the obvious reason that there are ordinarily material fact issues to be determined. Cortez v. Martinez, 1968-NMSC-153, 79 N.M. 506, 445 P.2d 383, overruled on other grounds, McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238, criticized in Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. It is the general proposition that issues of negligence, including such related issues as contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant but should be resolved by trial in the ordinary manner. Coca v. Arceo, 1962-NMSC-169, 71 N.M. 186, 376 P.2d 970. In a negligence action for failure of a retail store to control crowds, causing plaintiff to fall down an escalator, summary judgment for defendants, the store and its operations manager, was inappropriate since the jury should have been permitted to consider whether a prudent person would have been led to believe that the operations manager possessed apparent authority to bind the store to pay plaintiff's medical expenses. Romero v. Mervyn's, 1987-NMSC-099, 106 N.M. 389, 744 P.2d 164. As well as in other tort cases. - A claim of defamation, like other tort claims, raises questions of fact which generally preclude summary judgment adjudication. Phillips v. Allstate Ins. Co., 1979 -NMCA-146, 93 N.M. 648, 603 P.2d 1105. Where a genuine issue of material fact exists as to whether an employer committed a tort against a person by blacklisting him, summary judgment may not be granted. Andrews v. Stearns-Roger, Inc., 1979-NMSC-089, 93 N.M. 527, 602 P.2d 624. Unless evidence undisputed and reasonable minds cannot differ. - Negligence and causal connection are generally questions of fact for the jury, but where the evidence is undisputed and reasonable minds cannot differ, the question is one of law to be resolved by the judge. New Mexico State Hwy. Dep't v. Van Dyke, 1977-NMSC-027, 90 N.M. 357, 563 P.2d 1150. Ordinarily negligence is a question for the jury, but when reasonable minds cannot differ as to facts and the inferences to be drawn therefrom the question is one of law to be summarily determined by the court. Where plaintiff failed to show any facts in support of her claim that the defendants knew of the patient's foregoing alleged propensities and knew that the patient's condition was such that an assault might be expected to follow, which must be established before liability may be imposed, grant of a summary judgment for defendant was proper. Stake v. Woman's Div. of Christian Serv. of Bd. of Missions, 1963-NMSC-221, 73 N.M. 303, 387 P.2d 871, criticized in Tapia v. McKenzie, 1971-NMCA-128, 83 N.M. 116, 489 P.2d 181. Summary judgment proper where failure to perform required act. - Questions of negligence should generally not be decided by summary judgment, but that general rule does not apply when the alleged negligence is a failure to perform an act which one has no duty to perform. Devlin v. Bowden, 1982-NMCA-038, 97 N.M. 547, 641 P.2d 1094, overruled on other grounds, Ruiz v. Garcia, 1993-NMSC-009, 115 N.M. 269, 850 P.2d 972. When proper in product liability action. - In a product liability action, the trial court acts properly in granting a motion for summary judgment where the testimony presented suffices to establish a prima facie showing that the product was not defective when sold, and where the opposing parties have failed to present any contrary evidence sufficient to establish a genuine issue of fact for trial. Livingston v. Begay, 1982-NMSC-121, 98 N.M. 712, 652 P.2d 734. Defamation actions. - The finding of summary judgment is premature where it is rendered before the thoughts, editorial processes and other information in the exclusive control of an alleged defamer can be examined. Marchiondo v. Brown, 1982-NMSC-076, 98 N.M. 394, 649 P.2d 462. When affirmative defenses alleged. - Where assumption of risk is raised as an affirmative defense by defendant, an issue in the defense is whether plaintiff voluntarily assumed the risk. This involves determining whether or not there was a reasonable alternative course of conduct available to plaintiff, which is a factual question that cannot be decided as a matter of law, so that summary judgment is not proper. Proctor v. Waxler, 1971-NMCA-106, 83 N.M. 58, 488 P.2d 108, aff'd, 1972-NMSC-057, 84 N.M. 361, 503 P.2d 644. Plaintiff's conduct in walking from her car up to the time of her fall creates a genuine issue of fact on the matter of contributory negligence and does not constitute negligence as a matter of law; summary judgment is therefore not proper. Proctor v. Waxler, 1971-NMCA-106, 83 N.M. 58, 488 P.2d 108, aff'd, 1972-NMSC-057, 84 N.M. 361, 503 P.2d 644. Summary judgment in a negligence case is proper when an affirmative defense such as contributory negligence is proved as a matter of law. Catalano v. Lewis, 1977-NMCA-016, 90 N.M. 215, 561 P.2d 488, cert. denied, 90 N.M. 254, 561 P.2d 1347. Contributory negligence is ordinarily a fact question to be determined by the jury. Where, however, reasonable minds cannot differ on the question and readily reach the conclusion that plaintiff was negligent and that his negligence contributed proximately with that of defendant to cause the injury complained of, contributory negligence should be declared as a matter of law. Allen v. Papas, 1969-NMCA-023, 80 N.M. 159, 452 P.2d 493. The plaintiff, when moving for summary judgment, has the burden to rebut the defendant's affirmative defenses but when a defense, such as accord and satisfaction, is totally without merit, plaintiff is not obligated to put on proof beyond all reasonable doubt to make a prima facie case for summary judgment. Transamerica Ins. Co. v. Sydow, 1988-NMSC-029, 107 N.M. 104, 753 P.2d 350. Case held ripe for summary adjudication. - Where the nonmoving party's defenses are limited to one or more affirmative defenses and there is no triable issue of fact as to any of the affirmative defenses or they are all legally insufficient, then the case is ripe for summary adjudication. Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470. When proximate cause element of case. - Proximate cause is an ultimate fact, usually an inference to be drawn from facts proved. It becomes a question of law only when facts regarding causation are undisputed and all reasonable inferences therefrom are plain, consistent and uncontradictory. Unless as a matter of law there was an independent intervening cause, there is a factual issue on proximate cause. Harless v. Ewing, 1969-NMCA-021, 80 N.M. 149, 452 P.2d 483. Where the facts are not in dispute and the reasonable inferences from those facts are plain and consistent, proximate cause becomes an issue of law. Galvan v. City of Albuquerque, 1973-NMCA-049, 85 N.M. 42, 508 P.2d 1339. Summary judgment not warranted by mere showing of negligent motor vehicle operation. - A mere showing that the decedent operated a motor vehicle negligently in violation of Sections 66-7-104 and 66-8-102 NMSA 1978 is not sufficient to warrant summary judgment, as it does not conclusively establish that the decedent's negligence was a contributing proximate cause of the accident. Sweenhart v. Co-Con, Inc., 1981-NMCA-031, 95 N.M. 773, 626 P.2d 310. Intent usually jury question. - Intent may be inferred from the circumstances, and as intent is usually a question for the jury because its determination often depends on credibility of the witnesses, the granting of summary judgment was improper. Maxey v. Quintana, 1972-NMCA-069, 84 N.M. 38, 499 P.2d 356, cert. denied, 84 N.M. 37, 499 P.2d 355. Good faith is usually a question of fact. McKay v. Farmers & Stockmens Bank, 1978-NMCA-070, 92 N.M. 181, 585 P.2d 325, cert. denied, 92 N.M. 79, 582 P.2d 1292. Prior knowledge or notice. - Whether the purchasers of real estate are innocent purchasers for value or whether they had prior knowledge or notice of an unrecorded deed from the sellers of the realty is a genuine issue of fact. Jeffers v. Martinez, 1979-NMSC-083, 93 N.M. 508, 601 P.2d 1204. Likewise waiver. - Waiver is the intentional abandonment or relinquishment of a known right, and an intention to waive a right is ordinarily a question of fact. Reinhart v. Rauscher Pierce Sec. Corp., 1971 -NMCA-144, 83 N.M. 194, 490 P.2d 240; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. Insufficient time between service and judgment renders judgment erroneous. - Where service of the motion for summary judgment was by mail, and the judgment was entered prior to the time plaintiff could have been required to interpose counter-affidavits or other opposing evidence in accordance with Rule 6(e) (see now Rule 1-006 NMRA), the entry of summary judgment was error. Barnett v. Cal M, Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. Absence of original depositions where copies available. - Where the record shows that copies of the depositions were in fact available, there is no merit to the contention that summary judgment was erroneous because the originals of the four depositions were not on file at the time of the hearing. Smith v. Klebanoff, 1972-NMCA-075, 84 N.M. 50, 499 P.2d 368, cert. denied, 84 N.M. 37, 499 P.2d 355. Summary judgment properly based on independent judgment pending on appeal. - The trial court could base its summary judgment on the declaratory judgment in an independent proceeding, thus giving effect to a decision that was pending on appeal, because there was no showing that the declaratory judgment had been superseded or stayed; the judgment was in effect and could be enforced. Chavez v. Mountainair Sch. Bd., 1969 -NMCA-060, 80 N.M. 450, 457 P.2d 382. Defense argued but not alleged in pleadings. - Where motions for summary judgment were fully controverted and there was no surprise or prejudice, the trial court properly considered the defense of accord and satisfaction despite the fact that the pleadings did not allege that defense. Electric Supply Co. v. United States Fid. & Guar. Co., 1969-NMSC-003, 79 N.M. 722, 449 P.2d 324. Situation when challenged complaint taken as true. - Where no answer has been filed and the summary judgment motion is not supported by affidavits, every allegation of the complaint must be taken as true. Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170. Court must consider the effect of the pleadings where the complaint specifically alleges two items of negligence which are only reached by inference in the depositions and affidavits; if these allegations raise a factual issue proximate cause may be inferred from these facts and not by an inference from an inference. The pleadings must also be considered where the complaint specifically alleges proximate cause as a fact; if the complaint raises a factual issue as to proximate cause summary judgment is improper. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Court will consider nature of defense. - The purpose of a summary judgment proceeding is to determine whether a defense exists. Since summary judgment may only be granted where no genuine issue of material fact is presented by the pleadings, affidavits and depositions, this court will consider the nature of the defense submitted by a defendant. Western Farm Bureau Mut. Ins. Co. v. Barela, 1968-NMSC-082, 79 N.M. 149, 441 P.2d 47. Magistrate's findings not material. - Where there was nothing to show that district court on trial de novo failed to consider the matters required to be considered by Subdivision (c) (see now Paragraph C), grant of summary judgment was not rendered erroneous by magistrate's earlier findings. Southern Union Gas Co. v. Taylor, 1971-NMSC-067,82 N.M. 670, 486 P.2d 606. Oral testimony proper at hearing on motion. - A pleading seeking summary judgment is a motion, and Rule 43(e) (see now Rule 1-043 NMRA) permits the court to hear oral testimony at a hearing on a motion. Summers v. American Reliable Ins. Co., 1973 -NMSC-060, 85 N.M. 224, 511 P.2d 550. Sanctions for failure to file timely motion. - Sanctions for violating this rule were proper based on a party's failure to file its memorandum in opposition to the motion for summary judgment until the afternoon before the matter was set to be heard. Avlin Inc. v. Manis, 1998-NMCA-011, 124 N.M. 544, 953 P.2d 309. B. BURDEN OF PROOF. Unrebutted prima facie case for summary judgment. - When plaintiffs alleged their former attorney incorrectly advised them of the statute of limitation on their claim against a third party but failed to offer any evidence of a genuine issue of material fact that supported their claim against the third party, summary judgment for the attorney was proper. Bassett v. Sheehan, Sheehan & Stelzner, P.A., 2008-NMCA-072, 144 N.M. 178, 184 P.3d 1072. Statutory burden of proof held inapplicable in summary judgment proceedings. - The burden of proof set out in Section 55-1-208 NMSA 1978 (relating to options to accelerate at will) applies to the quantum of evidence and sufficiency of proof as to the lack of good faith after all the evidence is before the court; that burden does not apply to a motion for summary judgment where the sole question is whether a genuine issue of material fact exists. At all times on a motion for summary judgment, the burden of proof is on the movant to show the absence of a genuine issue of fact. McKay v. Farmers & Stockmens Bank, 1978-NMCA-070, 92 N.M. 181, 585 P.2d 325, cert. denied, 92 N.M. 79, 582 P.2d 1292. Burden on moving party to show summary judgment appropriate. - Burden rests on the party moving for summary judgment to establish that no genuine issue of material fact exists for trial and that the movant is entitled to judgment as a matter of law, and if the movant fails to meet this burden summary judgment is erroneous. Brock v. Goodman, 1972-NMCA-028, 83 N.M. 580, 494 P.2d 1397, rev'd on other grounds, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676; Tapia v. McKenzie, 1971-NMCA-128, 83 N.M. 116, 489 P.2d 181; Sanchez v. Public Serv. Co., 1971 -NMCA-094, 82 N.M. 752, 487 P.2d 180, rev'd on other grounds, 1971-NMSC-105, 83 N.M. 245, 490 P.2d 962; Sanchez v. Shop Rite Foods, 1971-NMCA-016, 82 N.M. 369, 482 P.2d 72; Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190; Phillips v. Allstate Ins. Co., 1979 -NMCA-146, 93 N.M. 648, 603 P.2d 1105. In justifying their termination of plaintiff's employment, defendant regents in seeking summary judgment had the burden of showing prima facie that plaintiff was an officer, and they did not meet that burden. Feldman v. Regents of Univ. of N.M., 1975-NMCA-111, 88 N.M. 392, 540 P.2d 872. Where defendants failed to show that plaintiffs were not entitled to rely on agent's alleged misrepresentations, they did not make a showing entitling them to summary judgment on this issue. Steadman v. Turner, 1973-NMCA-033, 84 N.M. 738, 507 P.2d 799. Where the facts before the trial court made a prima facie showing as to the means by which cow got out of the pasture but did not make a prima facie showing of no negligence on the part of defendant because they showed nothing as to action, inaction or foreseeability on the part of defendant in connection with the means of escape, summary judgment was improperly granted because defendant did not make a prima facie showing that he was entitled thereto. Tapia v. McKenzie, 1971-NMCA-128, 83 N.M. 116, 489 P.2d 181. Estoppel is the preclusion by acts or conduct from asserting a right which might otherwise have existed to the detriment and prejudice of another who in reliance on such acts and conduct has acted thereon; in the absence of proof of the acts or conduct relied upon, a claim of estoppel will not constitute a defense sufficient for granting of summary judgment. Reinhart v. Rauscher Pierce Sec. Corp., 1971 -NMCA-144, 83 N.M. 194, 490 P.2d 240; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. In summary judgment proceedings, the burden rests upon the movant to show there is no genuine issue or material fact to submit to a fact finder, be it a court or jury. Nevertheless, an opposing party may not remain silent in the face of a meritorious showing by movant. Air Eng'r Co. v. Corporacion de la Fonda, 1977-NMSC-084, 91 N.M. 135, 571 P.2d 402. The moving party need only make a prima facie showing that he is entitled to summary judgment, and is not required to show beyond all possibility that a genuine issue of fact does not exist. Holguin v. Smith's Food King Properties, Inc., 1987-NMCA-060, 105 N.M. 737, 737 P.2d 96. Burden on movant even where nonmoving party fails to respond to motion. - Where nonmoving party failed to respond to motion for summary judgment, it was error for the district court to grant summary judgment motion solely on the basis of the failure to respond, because the moving party must show that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Atherton v. Gopin, 2015-NMCA-003, cert. granted, 2014-NMCERT-012. Where the meaning of a material contract term is in dispute, in order to establish that no genuine issue of material fact exists, a party seeking affirmative relief based on its interpretation of the contract necessarily bears the burden of establishing that its interpretation controls. Farmington Police Officers' Assn. v. City of Farmington, 2006-NMCA-077, 139 N.M. 750, 137 P.3d 1204. By establishing prima facie case therefor. - Where defendant moves for summary judgment under this rule, the burden is on defendant to establish a prima facie case showing there is no genuine issue of material fact. Lackey v. Mesa Petroleum Co., 1976-NMCA-085, 90 N.M. 65, 559 P.2d 1192. Prima facie showing necessary. - The movant need only make a prima facie showing that he is entitled to summary judgment, and is not required to show beyond all possibility that a genuine issue of fact does not exist. Savinsky v. Bromley Group, Ltd., 1987-NMCA-078, 106 N.M. 175, 740 P.2d 1159. Prima facie showing means such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. Kelly v. Board of Trustees, 1974-NMCA-139, 87 N.M. 112, 529 P.2d 1233, cert. denied, 87 N.M. 111, 529 P.2d 1232. Burden shifts to nonmoving party after movant makes a prima facie showing. - A defendant seeking summary judgment bears the initial burden of negating at least one of the essential elements upon which the plaintiff's claims are grounded. Once a showing is made, the burden shifts to the plaintiff to come forward with admissible evidence to establish each required element of the claim. Where the defendant negates an essential element of the plaintiff's case, and the plaintiff fails to show that admissible evidence creates an issue of fact regarding that element, summary judgment is appropriate. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. In nuisance and prima facie tort case, one element of which is causation, where plaintiff failed to demonstrate that admissible scientific evidence supported his theory of general causation, that is, that exposure to electromagnetic fields causes, or is capable of causing, the injuries that plaintiff complains of, namely, adverse health effects from electromagnetic hypersensitivity, the district court did not err in granting defendant's motion for summary judgment. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. No burden on nonmoving party until movant makes prima facie showing. - Movant for summary judgment has the burden of establishing the absence of a material issue of fact and that it is entitled to summary judgment as a matter of law. Until movant makes a prima facie showing that it is entitled to summary judgment, there is no requirement upon nonmovant to make any showing as to factual issues. Steadman v. Turner, 1973-NMCA-033, 84 N.M. 738, 507 P.2d 799. A party moving for summary judgment has the burden of establishing that there is no material issue of fact to be determined by the factfinder and that he is entitled to judgment as a matter of law; the burden is not on the opposing party to prove a prima facie case. Yeary v. Aztec Discts., Inc., 1971-NMCA-163, 83 N.M. 319, 491 P.2d 536; Coca v. Arceo, 1962-NMSC-169, 71 N.M. 186, 376 P.2d 970; Barber's Super Mkts., Inc. v. Stryker, 1970-NMSC-027, 81 N.M. 227, 465 P.2d 284; Kelly v. Montoya, 1970-NMCA-063, 81 N.M. 591, 470 P.2d 563. In initially opposing defendant's motion for summary judgment, plaintiffs did not have the burden of establishing a prima facie case. Until defendant made a prima facie showing that it was entitled to summary judgment there was no requirement upon plaintiffs to show that a factual issue existed. Sanchez v. Shop Rite Foods, 1971-NMCA-016, 82 N.M. 369, 482 P.2d 72. To obtain summary judgment, the moving party must meet the initial burden of establishing a prima facie case. - Where respondent filed a motion for summary judgment on his cross-claims against petitioner for fraud, negligent misrepresentation and violation of the Illinois Consumer Fraud Act, and where petitioner failed to respond to the motion, the district court erred in granting respondent's motion for summary judgment as a procedural matter, because before granting summary judgment, the district court must assess, despite the lack of a response, whether, on the merits the moving party satisfied the burden of establishing an absence of a genuine issue of fact, and that it was entitled as a matter of law to judgment in its favor. Freeman v. Fairchild, 2018-NMSC-023, rev'g 2015-NMCA-001, 340 P.3d 610. Prior to the entry of summary judgment, the district court must provide the nonmoving party adequate notice and an opportunity to be heard. - Where respondent filed a motion for summary judgment on his cross-claims against petitioner for fraud, negligent misrepresentation and violation of the Illinois Consumer Fraud Act, and where petitioner failed to respond to the motion, the district court erred in granting respondent's motion for summary judgment without providing petitioner more time to respond to the motion prior to entry of judgment, because New Mexico law requires adequate notice and opportunity to be heard prior to the entry of summary judgment in the absence of a response; the district court should have granted petitioner an extension of time to file a response or an opportunity to substantiate his claim that his failure to respond was the result of excusable neglect. Freeman v. Fairchild, 2018-NMSC-023, rev'g 2015-NMCA-001, 340 P.3d 610. Right for any reason erroneously applied in affirming entry of summary judgment. - Where respondent filed a motion for summary judgment on his cross-claims against petitioner for fraud, negligent misrepresentation and violation of the Illinois Consumer Fraud Act, and where the New Mexico Court of Appeals found that the district court erred in granting respondent's motion for summary judgment as a procedural matter, the Court of Appeals erred by applying the right for any reason doctrine to affirm summary judgment in respondent's favor, because the Court of Appeals applied incorrect substantive law to respondent's cross-claims for fraud and negligent misrepresentation and because the district court did not provide petitioner an opportunity to controvert the facts in the summary judgment motion or to substantiate his claim of excusable neglect. Freeman v. Fairchild, 2018-NMSC-023, rev'g 2015-NMCA-001, 340 P.3d 610. No requirement on nonmoving party to respond to motion for summary judgment. - Where nonmoving party failed to respond to motion for summary judgment, it was error for the district court to grant summary judgment motion solely on the basis of the failure to respond, because the moving party must make a prima facie showing with regard to factual issues. Freeman v. Fairchild, 2015-NMCA-001, cert. granted, 2014-NMCERT-012. Prima facie showing is sufficient to support summary judgment. - Although it was error for the district court to grant motion for summary judgment based solely on the defendant's failure to respond to motion, movant was still entitled to summary judgment where movant came forward with such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question and that movant was entitled to judgment as a matter of law. Freeman v. Fairchild, 2015-NMCA-001, cert. granted, 2014-NMCERT-012. Prima facie showing is sufficient to support proceeding. - The burden on the movant does not require him to show or demonstrate beyond all possibility that no genuine issue of fact exists. To place this burden upon him would be contrary to the express provisions of Subdivision (e) (see now Paragraph E) and would make this rule almost, if not entirely, useless. Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676; Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470. A movant for summary judgment is not required to show or demonstrate beyond all possibility that no genuine issue of fact exists but rather must make a prima facie showing for summary judgment. The burden is then on the nonmoving party to show the existence of questions of fact requiring a trial. Cordova v. City of Albuquerque, 1974-NMCA-101, 86 N.M. 697, 526 P.2d 1290; McFarland v. Helquist, 1979-NMCA-018, 92 N.M. 557, 591 P.2d 688; Peoples State Bank v. Ohio Cas. Ins. Co., 1981-NMSC-106, 96 N.M. 751, 635 P.2d 306. To prevail in a summary judgment proceeding, a defendant need only make a prima facie showing of entitlement to summary judgment. Once a defendant has made such a prima facie case, the burden then shifts to the plaintiff to show at least a reasonable doubt as to whether a genuine issue of fact exists. Quintana v. University of Cal., 1991-NMCA-016, 111 N.M. 679, 808 P.2d 964. Burden of proof shifts once prima facie case shown. - Once the defendant has made a prima facie showing that he is entitled to summary judgment, the burden is on the plaintiff to show that there is a genuine factual issue and that the defendant is not entitled as a matter of law to summary judgment. Knippel v. Northern Communications, Inc., 1982-NMCA-009, 97 N.M. 401, 640 P.2d 507. Upon making a prima facie showing, the burden then shifts to the opponent who must show at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact. Savinsky v. Bromley Group, Ltd., 1987-NMCA-078, 106 N.M. 175, 740 P.2d 1159. Once a prima facie showing is made by the moving party, the burden is then shifted to the party resisting the motion, who must show at least a reasonable doubt as to the existence of a genuine issue of fact. Holguin v. Smith's Food King Properties, Inc., 1987-NMCA-060, 105 N.M. 737, 737 P.2d 96. Once prima facie case shown, nonmovant must demonstrate the existence of specific evidentiary facts that would require a trial on the merits. - Where plaintiff, a resident physician at the University of New Mexico School of Medicine, was dismissed from the residency program and brought suit against the Board of Regents of the University of New Mexico, claiming wrongful discharge for breach of an employment contract, the district court did not err in granting defendant's motion for summary judgment where defendant set forth undisputed facts that the terms of plaintiff's employment contract required her to adjudicate her contract dispute through a formal three-step grievance procedure, and that plaintiff initiated that process but did not complete the third step consisting of final and binding arbitration, and where plaintiff failed to demonstrate the existence of specific evidentiary facts that would require a trial on the merits. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009. Once showing made, resisting party must demonstrate reasonable doubt on genuine issue. - Once a prima facie showing has been made, the moving party is entitled to summary judgment unless the party resisting the motion demonstrates at least a reasonable doubt as to whether a genuine issue exists. Cargill v. Sherrod, 1981-NMSC-071, 96 N.M. 431, 631 P.2d 726. Facts deemed admitted where not disputed. - Where plaintiff did not dispute the facts set out in defendant's statement of material facts, pursuant to Paragraph D of this rule, those facts are deemed admitted. Cordova v. New Mexico Taxation & Revenue Dep't., 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104. Facts deemed admitted pursuant to Paragraph D of this rule were sufficient to establish a prima facie case of entitlement to summary judgment. Bank of N.Y. v. Regional Housing Auth., 2005-NMCA-116, 138 N.M. 389, 120 P.3d 471. Movant must counter affirmative defenses. - A party moving for summary judgment on the basis of his complaint must demonstrate that no genuine issue of material fact exists as to affirmative defenses stated in the opposing party's pleadings. Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470. Prima facie showing sufficient. - It is the movant's obligation to produce the necessary affidavits or other material to expose the nonmovant's affirmative defenses as unmerited, but that obligation is no different from the original obligation on the movant; he is not required to show or demonstrate beyond all possibility that no genuine issue of fact exists, but rather it is enough if he submits some material in order to shift the burden to the nonmoving party. Fidelity Nat'l Bank v. Tommy L. Goff, Inc., 1978-NMSC-074, 92 N.M. 106, 583 P.2d 470. Burden as to tolling of statute of limitation. - In a motion for summary judgment, the party claiming that a statute of limitation should be tolled has the burden of alleging sufficient facts that if proven would toll the statute. Stringer v. Dudoich, 1978-NMSC-071, 92 N.M. 98, 583 P.2d 462. Burden establishing status of land satisfied. - Plaintiff's submission of the 1990 patent as evidence that the land was public land until 1990, coupled with submission of the deed evidencing that title to the property lay in plaintiff, satisfied plaintiff's burden of making a prima facie showing of entitlement to summary judgment against defendants. Deaton v. Guiterrez, 2004-NMCA-043, 135 N.M. 423, 89 P.3d 672, cert. denied, 2004-NMCERT-004. Conversion of motion to dismiss to one for summary judgment. - When a Rule 1-012B NMRA motion to dismiss is converted into a summary judgment motion and the movant has satisfied its burden under this rule establishing a prima facie case for summary judgment, the opposing party must come forward and show the existence of a genuine issue of material fact rendering summary judgment inappropriate. Hern v. Crist, 1987-NMCA-019, 105 N.M. 645, 735 P.2d 1151. C. MANNER OF DECISION. Criterion used to determine whether an issue of fact exists in a summary judgment proceeding. Akre v. Washburn, 1979-NMSC-017, 92 N.M. 487, 590 P.2d 635. Generally as to manner of ruling on summary judgment. - In resolving the question as to whether summary judgment should be granted the trial court does not weigh the evidence, nor does the appellate court. The pleadings, affidavits, interrogatories and admissions, if any, must be viewed in the most favorable aspect they will bear in support of the rights of the party opposing the motion to a trial of the issues, and the party against whom a motion for summary judgment is directed is entitled to have all reasonable inferences construed in his favor. Wheeler v. Board of Cnty. Comm'rs, 1964-NMSC-081, 74 N.M. 165, 391 P.2d 664. In determining whether the plaintiff's evidence would support a judgment for him, the court will accept as true all evidence in the record favorable to plaintiff's claim, giving him the benefit of all fair and reasonable inferences deducible therefrom and disregarding all evidence and inferences to the contrary. Cook v. O'Connell, 1959-NMSC-003, 65 N.M. 170, 334 P.2d 551. Neither trial court nor appellate court should weigh the evidence in determining whether summary judgment should be granted. Gonzales v. Gackle Drilling Co., 1962-NMSC-063, 70 N.M. 131, 371 P.2d 605; Sooner Pipe & Supply Corp. v. Doerrie, 1961-NMSC-113, 69 N.M. 78, 364 P.2d 138; Hinojosa v. Nielson, 1971-NMCA-147, 83 N.M. 267, 490 P.2d 1240, cert. denied, 83 N.M. 259, 490 P.2d 1232; Williams v. Herrera, 1972-NMCA-057, 83 N.M. 680, 496 P.2d 740; Huerta v. New Jersey Zinc Co., 1973-NMCA-008, 84 N.M. 713, 507 P.2d 460, cert. denied, 84 N.M. 696, 507 P.2d 443; Fresquez v. Southwestern Indus. Contractors & Riggers, 1976-NMCA-090, 89 N.M. 525, 554 P.2d 986, cert. denied, 90 N.M. 8, 558 P.2d 620; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. Neither the trial court nor the appellate court is to weigh the evidence in considering a motion for summary judgment. Metzgar v. Martinez, 1981-NMCA-024, 97 N.M. 180, 637 P.2d 1235, rev'd on other grounds, 1981-NMSC-126, 97 N.M. 173, 637 P.2d 1228. Factual conflicts in opposing testimony must be resolved at trial. - In summary judgment proceeding the trial court could not weigh the factual conflicts in the opposing affidavits and thus could not resolve issues of credibility. Steadman v. Turner, 1973-NMCA-033, 84 N.M. 738, 507 P.2d 799; Security Bank & Trust v. Parmer, 1981-NMSC-118, 97 N.M. 108, 637 P.2d 539. Suggested inconsistencies are not to be resolved in a summary proceeding by equating affiant's statement with truth and plaintiff's testimony with falsity. The resolution of the apparent conflict, the credibility of the witnesses and the weight to be given their testimony are questions for the trier of the facts. Wisehart v. Mountain States Tel. & Tel. Co., 1969-NMCA-024, 80 N.M. 251, 453 P.2d 771, cert. denied, 80 N.M. 234, 453 P.2d 597. No matter how well prepared the parties, how fully developed the issues to be tried, and how complete the discovery, summary judgment is no substitute for trial. When material facts are in dispute, their resolution may not be determined by the trial judge summarily, but must be resolved after a trial on those factual issues. Hutcherson v. Dawn Trucking Co., 1988-NMCA-051, 107 N.M. 358, 758 P.2d 308. Likewise conflicts in testimony of single witness. - Where a conflict arises in statements on a material fact made by a witness in an affidavit and a deposition, summary judgment is improper. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Where the testimony of a single witness conflicts on a material fact, summary judgment is improper; the question is for the jury. Although movants for summary judgment in a personal injury suit contended that it was useless to go to trial since one of their employees, a crucial witness, was going to testify according to his affidavit in support of the motion and to distinguish his conflicting deposition testimony, nevertheless summary judgment was improper since the jury might choose to believe that the prior statement, made before the case arose, was accurate and that the subsequent affidavit was colored by employee loyalty. Rodriguez v. State, 1974-NMCA-083, 86 N.M. 535, 525 P.2d 895. Where plaintiff gave conflicting testimony in his deposition, the conflict is to be resolved by the trier of fact, and granting defendants summary judgment was improper. Hinojosa v. Nielson, 1971-NMCA-147, 83 N.M. 267, 490 P.2d 1240, cert. denied, 83 N.M. 259, 490 P.2d 1232; Security Bank & Trust v. Parmer, 1981-NMSC-118, 97 N.M. 108, 637 P.2d 539. Allied parties. - Where a factual conflict exists in plaintiffs' testimony summary judgment is improper because appellate courts do not weigh the evidence; summary judgment may be granted only where the facts are clear and undisputed. Sanders v. Smith, 1972-NMCA-016, 83 N.M. 706, 496 P.2d 1102, cert. denied, 83 N.M. 698, 496 P.2d 1094. Discovery not completed. - As a general rule, a court should not grant summary judgment before a party has completed discovery, particularly when further factual resolution is essential to determine the central legal issues involved or the facts before the court are insufficiently developed. Sun Country Sav. Bank v. McDowell, 1989-NMSC-043, 108 N.M. 528, 775 P.2d 730. Whether grant of summary judgment was premature based on discovery issues. - Generally, a court should not grant summary judgment before a party has completed discovery. In determining whether summary judgment was premature based upon discovery issues, a court must consider whether the nonmovant sought a continuance during the summary judgment motion stage to complete its discovery, whether between the time the summary judgment motion was filed and the grant of summary judgment, the nonmovant had sufficient time to obtain discovery, whether the nonmovant submitted an affidavit in opposition to the summary judgment motion containing a statement of the time required to complete the discovery, the particular evidence needed, where the particular evidence was located and the methods used to obtain the evidence, and whether the party who moved for summary judgment gave an appropriate response to a discovery request from the nonmoving party. Flagstar Bank v. Licha, 2015-NMCA-086. In a foreclosure action, the district court did not abuse its discretion in denying defendants more time to conduct discovery before it granted plaintiff's summary judgment motion where during the four-month period between the time defendants received plaintiff's initial discovery responses and the time plaintiff filed its summary judgment motion, defendants made no formal objection to the manner in which plaintiff responded to the discovery requests, nor did defendants seek additional discovery from plaintiff, defendants did not submit an affidavit with their opposition detailing the time required to complete their discovery or the methods needed to obtain the evidence they sought, and during the three-month interval between the time that plaintiff moved for summary judgment and the district court's order granting it, defendants did not propound any further discovery requests upon plaintiff, did not move to compel plaintiff to produce any documents they claimed that plaintiff improperly withheld, and they did not move for a stay or continuance of the summary judgment proceedings. Moreover, defendants did not dispute plaintiff's claim that it provided defendants with an opportunity to inspect the original promissory note but defendants failed to do so. Flagstar Bank v. Licha, 2015-NMCA-086. Fact that contradictory inferences exist shows that evidence is not undisputed, and the conflict in the testimony of a single witness is to be resolved by the trier of fact. The trial court could not properly resolve such conflict on a motion for summary judgment, for by doing so it would be weighing the evidence. Kelly v. Montoya, 1970-NMCA-063, 81 N.M. 591, 470 P.2d 563. Credibility generally not proper issue for summary judgment. - Courts should not resolve a genuine issue of credibility at a hearing on the motion for summary judgment, at least in the absence of a showing that the witnesses whose credibility is in question cannot be produced at the trial. Gallegos v. Wallace, 1964-NMSC-224, 74 N.M. 760, 398 P.2d 982. Credibility of defendant's testimony, as sole witness, not applied to summary judgment procedures. - The rule that where a defendant leads a plaintiff into danger which results in plaintiff's death, and defendant is the sole eyewitness of decedent's conduct, defendant's testimony, though uncontradicted and undisputed, is not conclusive on the issue of decedent's contributory negligence, and the credibility of defendant's testimony, no matter how plausible, is a question of fact for the jury, cannot be applied to summary judgment procedures. Silva v. City of Albuquerque, 1980-NMCA-049, 94 N.M. 332, 610 P.2d 219. Physical facts and conditions may point unerringly to the truth so as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them; however the physical facts must be such that conflicting oral testimony is inherently improbable. Sanchez v. Public Serv. Co., 1971 -NMSC-105, 83 N.M. 245, 490 P.2d 962. Matters should be construed in support of right to trial. - The pleadings, depositions and other matters presented and considered by the court must be viewed in the most favorable aspect they will bear in support of the right to a trial of the issues. Gonzales v. Gackle Drilling Co., 1962-NMSC-063, 70 N.M. 131, 371 P.2d 605; Wisehart v. Mountain States Tel. & Tel. Co., 1969-NMCA-024, 80 N.M. 251, 453 P.2d 771, cert. denied, 80 N.M. 234, 453 P.2d 597; Perry v. Color Tile, 1970-NMCA-009, 81 N.M. 143, 464 P.2d 562; Sanchez v. Public Serv. Co., 1971 -NMSC-105, 83 N.M. 245, 490 P.2d 962; Sparks v. Melmar Corp., 1979-NMSC-064, 93 N.M. 201, 598 P.2d 1161. In determining whether summary judgment is proper, the evidence must be viewed in the light most favorable to support the right to a trial on the merits. Holliday v. Talk of Town, Inc., 1982-NMCA-103, 98 N.M. 354, 648 P.2d 812. In light most favorable to nonmoving party. - Motions for summary judgments must be viewed in the light most favorable to the party opposing them. Wilson v. Albuquerque Bd. of Realtors, 1970-NMSC-096, 81 N.M. 657, 472 P.2d 371, overruled on other grounds, Garrett v. Nissen Corp., 1972-NMSC-046, 84 N.M. 16, 498 P.2d 1359; Garcia v. Presbyterian Hosp. Center, 1979-NMCA-034, 92 N.M. 652, 593 P.2d 487; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. The trial court has the duty of viewing the pleadings and all the testimony and evidence submitted in support of the motion for summary judgment in the most favorable manner possible in support of a denial of the motion. Brazell v. Save-On Drug, Inc., 1968-NMCA-095, 79 N.M. 716, 449 P.2d 86; Hubbard v. Mathis, 1963-NMSC-126, 72 N.M. 270, 383 P.2d 240; Institute for Essential Hous., Inc. v. Keith, 1966-NMSC-067, 76 N.M. 492, 416 P.2d 157; Las Cruces Country Club, Inc. v. City of Las Cruces, 1970-NMSC-016, 81 N.M. 387, 467 P.2d 403. The trial court is obliged to view the pleadings, affidavits and depositions in the light most favorable to the party opposing the motion. State v. Integon Indem. Corp., 1987 -NMSC-029, 105 N.M. 611, 735 P.2d 528. All reasonable inferences are to be resolved in favor of trial and against summary judgment. Shumate v. Hillis, 1969-NMSC-065, 80 N.M. 308, 454 P.2d 965; Smith v. State, 1968-NMCA-013, 79 N.M. 25, 439 P.2d 242. In a light most favorable to nonmoving party. - A party opposing a motion for summary judgment is entitled to have all reasonable inferences construed in a light most favorable to him. Barber's Super Mkts., Inc. v. Stryker, 1970-NMSC-027, 81 N.M. 227, 465 P.2d 284; Hewitt-Robins, Inc. v. Lea Cnty. Sand & Gravel, Inc., 1962-NMSC-065, 70 N.M. 144, 371 P.2d 795; Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170; Montoya v. City of Albuquerque, 1970-NMSC-132, 82 N.M. 90, 476 P.2d 60; Yeary v. Aztec Discts., Inc., 1971-NMCA-163, 83 N.M. 319, 491 P.2d 536. On motion for summary judgment the opposing party must be given the benefit of all reasonable inferences to be drawn from the pleadings, affidavits and depositions. Baca v. Britt, 1963-NMSC-157, 73 N.M. 1, 385 P.2d 61. Conflicting inferences drawn from basic facts. - Even where the basic facts are undisputed, if equally logical but conflicting inferences can be drawn from the facts, summary judgment should be denied. Yeary v. Aztec Discts., Inc., 1971-NMCA-163, 83 N.M. 319, 491 P.2d 536; Fischer v. Mascarenas, 1979-NMSC-063, 93 N.M. 199, 598 P.2d 1159; Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). If equally logical but conflicting inferences may be drawn from the facts and if any of these inferences would preclude granting of a judgment as a matter of law, then the motion for a summary judgment must be denied. Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 1967-NMSC-086, 77 N.M. 730, 427 P.2d 249. Even in a case where the basic facts are undisputed, it is frequently possible that equally logical but conflicting inferences may be drawn from the facts, which would preclude the granting of summary judgment. Hewitt-Robins, Inc. v. Lea Cnty. Sand & Gravel, Inc., 1962-NMSC-065, 70 N.M. 144, 371 P.2d 795. Inferences must be reasonable. - The inferences which the party opposing the motion for summary judgment is entitled to have drawn from all the matters properly before and considered by the trial court must be reasonable inferences. Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. For reasonable men to fairly differ upon whether there is a triable issue of fact, there must be reasonable inferences arising from the facts on which to base the differences. Martinez v. City of Albuquerque, 1972-NMCA-121, 84 N.M. 189, 500 P.2d 1312. Permissible. - All permissible inferences from the facts established favorable to the party opposing the entry of summary judgment must be considered in determining whether an issue of fact requiring trial exists. Mahona-Jojanto, Inc. v. Bank of N.M., 1968-NMSC-110, 79 N.M. 293, 442 P.2d 783. Inference of negligence arising from pain following operation not overcome by expert opinion. - Where a patient alleges that a physician was negligent in failing to diagnose the cause of pain and has made out a prima facie case of negligence, the opinion of medical experts that the physician's treatment was not negligent is not sufficient to overcome the reasonable inference arising from the absence of pain before and after the first operation and continuous pain following the second operation. Under these circumstances summary judgment is not proper. Eis v. Chesnut, 1981-NMCA-040, 96 N.M. 45, 627 P.2d 1244. Nonmoving party given benefit of all reasonable doubts. - On a motion for summary judgment the trial court must give the party opposing the motion the benefit of all reasonable doubts in determining whether a genuine issue exists. New Mexico Elec. Serv. Co. v. Montanez, 1976-NMSC-028, 89 N.M. 278, 551 P.2d 634; Zamora v. Foster, 1972-NMCA-118, 84 N.M. 177, 500 P.2d 1001; First Nat'l Bank v. Nor-Am Agrl. Prods., Inc., 1975-NMCA-052, 88 N.M. 74, 537 P.2d 682, cert. denied, 88 N.M. 29, 536 P.2d 1085; Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71; Torres v. Piggly Wiggly Shop Rite Foods, Inc., 1979-NMCA-093, 93 N.M. 408, 600 P.2d 1198, cert. denied, 93 N.M. 683, 604 P.2d 821; Santistevan v. Centinel Bank, 1980-NMCA-161, 96 N.M. 734, 634 P.2d 1286, aff'd in part, rev'd on other grounds, 1981-NMSC-092, 96 N.M. 730, 634 P.2d 1282. All reasonable inferences are to be made in favor of the party opposing a summary judgment motion. Poorbaugh v. Mullen, 1981-NMCA-009, 96 N.M. 598, 633 P.2d 706; Koenig v. Perez, 1986-NMSC-066, 104 N.M. 664, 726 P.2d 341. Party opposing motion is to be given benefit of all reasonable doubts in determining whether a genuine issue exists, and if there are such reasonable doubts summary judgment should be denied. McKay v. Farmers & Stockmens Bank, 1978-NMCA-070, 92 N.M. 181, 585 P.2d 325, cert. denied, 92 N.M. 79, 582 P.2d 1292. Of all doubts. - It is the function of the trial court to resolve all doubts as to the existence of material issues of fact against the moving party and to deny the motion for summary judgment, unless the court is convinced from a consideration of the pleadings, depositions, admissions and affidavits that such party is entitled to summary judgment as a matter of law. Morris v. Miller & Smith Mfg. Co., 1961 -NMSC-152, 69 N.M. 238, 365 P.2d 664; Pederson v. Lothman, 1958-NMSC-003, 63 N.M. 364, 320 P.2d 378; C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. In any case where doubt exists upon examining the pleadings, affidavits and depositions as to the existence of a genuine issue as to a material fact, the doubt is to be resolved against the moving side. Agnew v. Libby, 1949-NMSC-004, 53 N.M. 56, 201 P.2d 775; McLain v. Haley, 1949-NMSC-036, 53 N.M. 327, 207 P.2d 1013. Of the slightest doubt. - When there is the slightest doubt as to the facts it is not proper to grant a motion for summary judgment because under such circumstances the litigants are entitled to a trial of the issues presented. Michelson v. House, 1950-NMSC-010, 54 N.M. 197, 218 P.2d 861; Binns v. Schoenbrun, 1970-NMCA-052, 81 N.M. 489, 468 P.2d 890. Summary judgment should not be employed where there is the slightest doubt as to the existence of an issue of material fact. Frontier Leasing, Inc. v. C.F.B., Inc., 1981-NMSC-073, 96 N.M. 491, 632 P.2d 726. Reasonable doubt does not mean slightest doubt. - Equating a "genuine issue as to any material fact" with a slight doubt or the slightest doubt has resulted in a disregard of the clear language of this rule and a departure from its meaning and purpose; such statements, if taken literally, would mean that there could hardly ever be a summary judgment, for at least a slight doubt can be developed as to practically all things human. A better formulation would be that the party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. If there are such reasonable doubts, summary judgment should be denied. Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. Summary judgments are no longer to be reversed on the basis of slight issues of fact. Galvan v. City of Albuquerque, 1973-NMCA-049, 85 N.M. 42, 508 P.2d 1339. A party against whom summary judgment is asserted is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists as to any material fact in the case. This does not mean that summary judgment should not be granted if there is the slightest doubt as to the facts, but rather that summary judgment should be denied if there are reasonable doubts or a substantial dispute as to a material fact. Skarda v. Skarda, 1975-NMSC-028, 87 N.M. 497, 536 P.2d 257. A substantial dispute as to a material fact forecloses summary judgment. Chevron Oil Co. v. Sutton, 1973-NMSC-111, 85 N.M. 679, 515 P.2d 1283; Torres v. Piggly Wiggly Shop Rite Foods, Inc., 1979-NMCA-093, 93 N.M. 408, 600 P.2d 1198, cert. denied, 93 N.M. 683, 604 P.2d 821. While summary judgment is not properly granted if there is an "issue of material fact," it will not be reversed on appeal on the basis of slight issues of fact. Oschwald v. Christie, 1980-NMSC-136, 95 N.M. 251, 620 P.2d 1276. V. FORM OF AFFIDAVITS, FURTHER TESTIMONY AND DEFENSE BY NONMOVING PARTY. A. IN GENERAL. Discovery documents. - The court was entitled to rely on the documents provided as part of discovery in granting summary judgment for the defendants where the plaintiff did not object to their use in the motion for summary judgment and did not argue the factual validity of the documents. Alliance Health of Santa Teresa, Inc. v. National Presto Industries, Inc., 2007-NMCA-157, 143 N.M. 133, 173 P.3d 55. This rule does not require movant to attach affidavits. Deaton v. Guiterrez, 2004-NMCA-043, 135 N.M. 423, 89 P.3d 672, cert. denied, 2004-NMCERT-004. Language of Subdivision (e) (see now Paragraph E) is mandatory in nature, but does not provide that inadequate or defective affidavits shall not be considered by the trial court. Chavez v. Ronquillo, 1980-NMCA-069, 94 N.M. 442, 612 P.2d 234. When affidavit properly before court. - An affidavit presented on the day of a summary judgment hearing is properly before the district court and, when subsequently made a part of the corrected record on appeal, is properly before the appellate court. Hunick v. Orona, 1983-NMSC-009, 99 N.M. 306, 657 P.2d 633. Court properly considered affidavits submitted by defendants in support of motions for summary judgment. Zamora v. Creamland Dairies, Inc., 1987-NMCA-144, 106 N.M. 628, 747 P.2d 923. Oral testimony at hearing. - Because this rule is silent concerning the use of oral testimony to support or oppose motions for summary judgment, such practice is to be used, if at all, only upon a proper showing that the party seeking to offer such testimony has first exercised due diligence in attempting to secure affidavits or deposition testimony for submission incident to such motion, and that for reasons beyond his control has been unable to obtain the affidavits or depositions. Marquez v. Gomez, 1991-NMCA-066, 116 N.M. 626, 866 P.2d 354. B. FORM OF AFFIDAVITS. Party must move to strike affidavit that violates this rule. Chavez v. Ronquillo, 1980-NMCA-069, 94 N.M. 442, 612 P.2d 234. Affidavits need not contain any affirmative showing of admissibility. Chavez v. Ronquillo, 1980-NMCA-069, 94 N.M. 442, 612 P.2d 234. Mere assertions made by movant seeking summary judgment are meaningless unless supported by affidavits pursuant to Subdivision (e) (see now Paragraph E) or by other admissible evidence. C & H Constr. & Paving Co. v. Citizens Bank, 1979-NMCA-077, 93 N.M. 150, 597 P.2d 1190. Affidavits containing belief or opinion testimony alone cannot create genuine issue of fact which would preclude a summary judgment, because they are not based on "personal knowledge," as required by Subdivision (e) (see now Paragraph E). Martinez v. Metzgar, 1981-NMSC-126, 97 N.M. 173, 637 P.2d 1228. Affidavit form required. - The trial court properly refused to admit an investigative report proffered by plaintiff in challenging defendant's motion for summary judgment because it was not in a form to be considered; that is, it was not an affidavit. Cordova v. City of Albuquerque, 1974-NMCA-101, 86 N.M. 697, 526 P.2d 1290. Affidavit form required. - District court did not abuse its discretion by refusing to admit a police accident report for summary judgment purposes because it was not an affidavit and was not presented with other sworn testimony based on personal knowledge. Rivera v. Trujillo, 1999-NMCA-129, 128 N.M. 106, 990 P.2d 219, cert. denied, 128 N.M. 148, 990 P.2d 822. Error not to consider affidavit. - Where plaintiff brought a breach of contract claim after defendants conducted geophysical seismic surveys on land leased by plaintiff in order to evaluate potential future oil and gas operations, and where plaintiff submitted an affidavit to clarify his deposition testimony regarding a claim for damages to the leased lands, and where the complaint and discovery provided to defendants clearly put defendants on notice that plaintiff was seeking damages to the leased lands, it was error for the district court not to consider the affidavit. Woody Inv., LLC v. Sovereign Eagle, LLC, 2015-NMCA-111, cert. denied, 2015-NMCERT-010. Verified pleading may constitute equivalent of affidavit. - A verified pleading made on personal knowledge, setting forth such facts as would be admissible in evidence and showing affirmatively that affiant is competent to testify to the matters stated therein, may properly be considered as equivalent to a supporting or opposing affidavit, as the case may be. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Where a verified pleading does not meet the affidavit requirements of Subdivision (e) (see now Paragraph E), it has no greater effect than an unverified pleading. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Common-sense interpretation of language should be applied. - In ruling on motions for summary judgment, a trial court should apply a common-sense interpretation of the language used by the affiant or deponent to determine whether the requirements of Paragraph E have been satisfied. Western Bank v. Biava, 1990-NMSC-023, 109 N.M. 550, 787 P.2d 830. Affidavit not considered because contents neither explanatory nor admissible. - When the affidavit neither identifies the tests performed nor explains how the tests were performed nor satisfactorily explains the conclusion as to speed, and as the affidavit did not set forth facts admissible in evidence, it was not entitled to consideration. Galvan v. City of Albuquerque, 1973-NMCA-049, 85 N.M. 42, 508 P.2d 1339. Contents of business records admissible. - The contents of a noncontroverted affidavit which contained copies of business records were not hearsay and consequently were admissible in support of a motion for summary judgment. Federal Bldg. Serv. v. Mountain States Tel. & Tel. Co., 1966-NMSC-148, 76 N.M. 524, 417 P.2d 24. Testimony of nonqualified expert incompetent. - Meteorologist's failure to show he was qualified to speak on stress of glass rendered his testimony incompetent under Subdivision (e) (see now Paragraph E). Lay v. Vip's Big Boy Restaurant, Inc., 1976-NMCA-033, 89 N.M. 155, 548 P.2d 117. Substance of affidavit not in compliance with rule. - Plaintiff's attempt to establish an issue of fact on defendant's last clear chance to avoid the accident through the affidavit of an expert witness failed, both because the affidavit opinion evidence was not competent evidence and because the affidavit, even if admissible, did not show that defendant had time for appreciation, thought and effective action. Catalano v. Lewis, 1977-NMCA-016, 90 N.M. 215, 561 P.2d 488, cert. denied, 90 N.M. 254, 561 P.2d 1347. An affidavit by plaintiff's counsel in opposition to defendant's motion for summary judgment, concerning information the deponent gathered from speaking with several witnesses was properly stricken by the trial court for failure to comply with personal knowledge, admissibility and competency requirements of Subdivision (e) (see now Paragraph E). Carter v. Burn Constr. Co., 1973 -NMCA-156, 85 N.M. 27, 508 P.2d 1324, cert. denied, 85 N.M. 5, 508 P.2d 1302. Affidavits held sufficient. - Document concerning informal proceedings which occurred at hospital, during which defendant's attorney questioned nondefendant doctors about postoperative procedures after admission of alleged malpractice victim into the hospital, did not fall within the category necessary to show whether there was a genuine issue as to any material fact in medical malpractice suit where document did not disclose that the witnesses were duly sworn nor that they had read the document and where they neither signed it nor waived signature. Gandara v. Wilson, 1973-NMCA-065, 85 N.M. 161, 509 P.2d 1356. Where at time of summary judgment hearing plaintiff sought to dispute the amount of runoff and the propriety of the culvert's design by offering two unsworn and uncertified reports of other engineers and where no affidavits or depositions were offered in connection with these reports and they were not admissible in the form in which they were offered, there was no evidence before the court at the time of the consideration of the motion for summary judgment to present a genuine issue of material fact. Martin v. Board of Educ., 1968-NMSC-178, 79 N.M. 636, 447 P.2d 516, criticized on another point Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. The affidavit of the state penitentiary's medical records director, stating that attached exhibits represented an accurate summary of the medical records maintained by the penitentiary, sufficiently demonstrated personal knowledge and that the records were what they purported to be, and were properly considered by the court in ruling upon the defendant's motion for summary judgment in an inmate's civil rights action. Archuleta v. Goldman, 1987-NMCA-049, 107 N.M. 547, 761 P.2d 425. In a case involving a will contest, an affidavit representing opinion testimony of an expert, which testimony would be admissible at trial, was proper for summary judgment consideration even though it was not based on the affiant's personal knowledge. In re Estate of Keeney, 1995-NMCA-102, 121 N.M. 58, 908 P.2d 751. Affidavits held insufficient. - Although affidavits attached to complaint seeking recovery on two open account debts might have supported a judgment under verified accounts statute, those affidavits were not sufficient to meet provisions of summary judgment rule under Subdivision (e) (see now Paragraph E). New Mexico Tire & Battery Co. v. Ole Tires, Inc., 1984-NMSC-063, 101 N.M. 357, 683 P.2d 39. Effect of affidavit's insufficiency. - Where the affidavit on which summary judgment had to rely was insufficient as a matter of law, defendant did not make a prima facie case entitling it to summary judgment, and the summary judgment was reversible. Sanchez v. Shop Rite Foods, 1971-NMCA-016, 82 N.M. 369, 482 P.2d 72. C. BURDEN ON NONMOVING PARTY. Nonmoving party must counter movant's prima facie case for summary judgment. - Movant for summary judgment has the burden of establishing a prima facie showing that no genuine factual issue exists. Once this burden is satisfied the nonmoving party then has the obligation of showing that there is such a genuine factual issue requiring a trial and that movant is not entitled as a matter of law to summary judgment. Smith Constr. Co. v. Knights of Columbus, Council No. 1226, 1974-NMSC-016, 86 N.M. 50, 519 P.2d 286; Feldman v. Regents of Univ. of N.M., 1975-NMCA-111, 88 N.M. 392, 540 P.2d 872. Plaintiff has a duty, when faced by a motion for summary judgment, to show the court that a material or genuine issue of fact is present. Spears v. Canon de Carnue Land Grant, 1969-NMSC-163, 80 N.M. 766, 461 P.2d 415; Taylor v. Alston, 1968-NMCA-082, 79 N.M. 643, 447 P.2d 523. Where defendant on the basis of depositions and an affidavit makes a prima facie showing that neither of plaintiff's two claims was the proximate cause of the accident, it is for plaintiff to show there was a factual issue concerning proximate cause in order to defeat a motion for summary judgment. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Paragraph E contemplates that the movant need only make a prima facie showing of entitlement to summary judgment. Once a prima facie showing is made, the burden shifts to the party opposing the motion to show at least a reasonable doubt as to whether a genuine issue for trial exists. Koenig v. Perez, 1986-NMSC-066, 104 N.M. 664, 726 P.2d 341; Requarth v. Brophy, 1990-NMCA-116, 111 N.M. 51, 801 P.2d 121. When a party makes a prima facie showing of no genuine issue of material fact, the nonmovant has the burden to come forward with affidavits or other documentation sufficient to raise a reasonable doubt that such an issue exists. FDIC v. Alto Constr. Co., 1989 -NMSC-075, 109 N.M. 165, 783 P.2d 475. Plaintiff failed in her burden to oppose the motion for summary judgment where plaintiff's response to the motion and her supporting memorandum did not controvert any facts in the manner mandated by Paragraph (D)(2). Richardson v. Glass, 1992-NMSC-046, 114 N.M. 119, 835 P.2d 835. Prima facie showing means such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. Summary judgment proper where nonmoving party's burden not met. - After defendant established a prima facie showing that no genuine issue of material fact existed, it became the duty of plaintiff to show there was a factual issue present, and where plaintiff failed to do this summary judgment in favor of defendant was proper. Williams v. Herrera, 1972-NMCA-057, 83 N.M. 680, 496 P.2d 740; Mora-San Miguel Elec. Coop. v. Hicks & Ragland Consulting & Eng'r Co., 1979-NMCA-082, 93 N.M. 175, 598 P.2d 218. Affidavit failed to create a genuine factual dispute. - An apparent contradiction between a nonmovant's testimony at deposition and subsequent affidavit is not sufficient to create a genuine dispute of material fact. Rivera v. Trujillo, 1999-NMCA-129, 128 N.M. 106, 990 P.2d 219, cert. denied, 128 N.M. 148, 990 P.2d 822. No evidence present. - Where plaintiff failed to sustain its burden of showing the presence of a material fact issue, no evidence was present which, when considered in a light most favorable to plaintiff's position, would support an inference of negligence on the part of defendant, no facts were in disagreement but only the law applicable under the circumstances and the action of the trial court in granting summary judgment was correct. Dillard v. Southwestern Pub. Serv. Co., 1963 -NMSC-179, 73 N.M. 40, 385 P.2d 564. Defendant's affidavit supporting its motion for summary judgment stated that it had no knowledge or notice that the publication in question contained any article which invaded plaintiff's privacy, the plaintiff did not controvert the affidavit. Consequently, there was no genuine issue of a material fact insofar as this point is concerned, and summary judgment was properly granted in favor of defendant. Blount v. TD Publ'g Corp., 1966-NMSC-262, 77 N.M. 384, 423 P.2d 421. Summary judgment improper where nonmoving party's burden met. - Where with knowledge of the false representation of an employee's physical condition to obtain employment, together with knowledge that the employee was an experienced electronics assembler, the defendant continued the plaintiff in her employment, this is sufficient to show that the defendant intentionally relinquished its right to terminate the plaintiff's employment, and therefore, genuine issue of material fact exists whether the defendant waived its defense under the falsification concept. Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728. After the defendant attorney sustained his burden to establish the absence of a fact issued by expert testimony, the plaintiffs could not remain silent as they must apprise the court of available expert proof to the contrary and then produce it; in the absence of expert proof defendant's summary judgment on the issue of legal malpractice was properly granted. Sanders v. Smith, 1972-NMCA-016, 83 N.M. 706, 496 P.2d 1102, cert. denied, 83 N.M. 698, 496 P.2d 1094. Paragraph F provides relief in proper cases. - The burden was on defendants to show an absence of a genuine issue of fact or that they were entitled as a matter of law for some other reason to a summary judgment in their favor. However once defendants had made a prima facie showing that they were entitled to summary judgment, the burden was on plaintiff to show that there was a genuine factual issue and that defendants were not entitled as a matter of law to summary judgment. This burden is contemplated and required by Subdivision (e) (see now Paragraph E), and relief from this burden may be granted, at least temporarily, under Subdivision (f) (see now Paragraph F). Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. Opposing party may not remain silent in the face of a meritorious showing by a movant. Cessna Fin. Corp. v. Mesilla Valley Flying Serv., Inc., 1969-NMSC-169, 81 N.M. 10, 462 P.2d 144, cert. denied, 397 U.S. 1076, 90 S. Ct. 1521, 25 L. Ed. 2d 811 (1970); Southern Union Gas Co. v. Briner Rust Proofing Co., 1958-NMSC-123, 65 N.M. 32, 331 P.2d 531; Mercury Gas & Oil Corp. v. Rincon Oil & Gas Corp., 1968-NMSC-132, 79 N.M. 537, 445 P.2d 958; Akre v. Washburn, 1979-NMSC-017, 92 N.M. 487, 590 P.2d 635. Although favored procedurally, party opposing summary judgment cannot stand idly by and rely solely on the allegations contained in its complaint or upon mere argument or contention to defeat the motion if a prima facie showing has been made. Oschwald v. Christie, 1980-NMSC-136, 95 N.M. 251, 620 P.2d 1276. Deposition not silence. - Although a party opposing a motion for summary judgment may not remain silent in the face of a meritorious showing by movant, the deposition of plaintiff can hardly be considered as silence. Wisehart v. Mountain States Tel. & Tel. Co., 1969-NMCA-024, 80 N.M. 251, 453 P.2d 771, cert. denied, 80 N.M. 234, 453 P.2d 597. Bare contention that factual issue exists not enough. - Mere argument or contention of existence of a material issue of fact does not make it so. The party opposing a motion for summary judgment cannot defeat the motion and require a trial by the bare contention that an issue of fact exists but must show that evidence is available which would justify a trial of the issue. Spears v. Canon de Carnue Land Grant, 1969-NMSC-163, 80 N.M. 766, 461 P.2d 415; Aktiengesellschaft Der Harlander, etc. v. Lawrence Walker Cotton Co., 1955-NMSC-090, 60 N.M. 154, 288 P.2d 691. When the moving party demonstrates that no genuine issue as to a material fact exists as a matter of law, the moving party is entitled to summary judgment and the opposing party cannot defeat the motion by a bare contention that an issue of fact exists. Air Eng'r Co. v. Corporacion de la Fonda, 1977-NMSC-084, 91 N.M. 135, 571 P.2d 402. In a summary judgment proceeding if defendants-movants made a prima facie showing of no genuine issue of fact, it would have been plaintiff's burden to show a factual issue existed. Plaintiff cannot defeat a prima facie showing for summary judgment by contending that a factual issue exists. Feldman v. Regents of Univ. of N.M., 1975-NMCA-111, 88 N.M. 392, 540 P.2d 872. Once the opposing party denies the moving party's claim in his deposition, it is incumbent upon the moving party to show that evidence is available to justify a trial on that issue: he cannot simply rely upon his complaint, general allegations or arguments of counsel. State Farm Mut. Auto. Ins. Co. v. Sutherland, 1980-NMSC-090, 94 N.M. 653, 615 P.2d 268. There may be no genuine issue even though there is formal issue; neither a purely formal denial nor general allegations necessarily defeat summary judgment. In re Environmental Planning Comm'n, 1974-NMSC-093, 87 N.M. 215, 531 P.2d 949. Summary judgment should be rendered, even though an issue may be raised formally by the pleadings, where the supporting affidavits and other extraneous materials, if any (such as depositions, admissions and the opposing affidavit), show that there is no genuine issue of material fact. Stubborn reliance upon allegations and denials in the pleadings will not alone suffice when faced with affidavits or other materials showing the absence of triable issues of material fact. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Uncontroverted facts in affidavits taken as true. - The mere argument or contention of the existence of a material issue of fact does not make it so, and uncontroverted facts contained in affidavits must be taken as true; however where the material portions of the affidavits are controverted, then there exist issues which must be resolved by trial. Wisehart v. Mountain States Tel. & Tel. Co., 1969-NMCA-024, 80 N.M. 251, 453 P.2d 771, cert. denied, 80 N.M. 234, 453 P.2d 597. Where the facts set forth in affidavits and supporting documents are uncontroverted, the facts must be taken as true in support of a motion for summary judgment. State ex rel. Bardacke v. New Mexico Fed. Sav. & Loan Ass'n, 1985-NMSC-045, 102 N.M. 673, 699 P.2d 604. Likewise facts supporting motion not controverted by affidavits or depositions. - Where there are no opposing affidavits or depositions which controvert any of the facts set forth in support of motion for summary judgment, said facts must be taken as true. Carrillo v. Hoyl, 1973-NMCA-149, 85 N.M. 751, 517 P.2d 73. Nonmoving party must set forth specific facts. - The opposing party cannot defeat a motion for summary judgment and require a trial by a mere contention that an issue of fact exists. He must show that evidence is available which would justify a trial of the issue. Cessna Fin. Corp. v. Mesilla Valley Flying Serv., Inc., 1969-NMSC-169, 81 N.M. 10, 462 P.2d 144, cert. denied, 397 U.S. 1076, 90 S. Ct. 1521, 25 L. Ed. 2d 811 (1970); Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. In considering a motion for summary judgment the court goes beyond the allegations of the complaint and determines whether a claim can in reality be supported on the ground alleged. The adverse party may not rest upon the mere allegations of his pleading, but his response must set forth specific facts showing there is a genuine issue for trial. Green v. Manpower, Inc., 1970-NMCA-100, 81 N.M. 788, 474 P.2d 80, criticized on another point Goodman v. Brock, 1972-NMSC-043, 83 N.M. 789, 498 P.2d 676. Defendant met the burden of showing that there was a genuine issue of fact as to plaintiffs' claim of embezzlement, conversion, fraud and forgery where in his affidavit opposing the motion for summary judgment defendant contended that he did not voluntarily sign the statement of admission and note for the amount allegedly embezzled prepared by plaintiffs' security officer, that he was confused and in shock and did not understand the contents of the statement or the amount of the note and that he was threatened with prosecution if he refused to sign, which note and statement were the sole items of evidence offered by plaintiffs in support of their motion for summary judgment. Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71. Where defendant insurer made a prima facie showing in its affidavits of no waiver or estoppel to rely on an "other insurance clause" in plaintiff's policy, based on an alleged meeting with plaintiff four days subsequent to the applications for insurance and prior to the time the applications were mailed to the company, but plaintiff's affidavit stated that no such meeting occurred, there was an issue of fact as to whether the meeting occurred, and defendant's summary judgment on the issues of waiver and estoppel was reversed. Bell v. Weinacker, 1975-NMCA-134, 88 N.M. 557, 543 P.2d 1185. Plaintiff had a duty, when faced by the motion for summary judgment, to show the court that a fact issue was present. If the opposite party had sustained his burden to establish the absence of a fact issue but there was available additional proof to the contrary, it was the duty of the party moved against to so apprise the court. Cervantes v. Forbis, 1964-NMSC-022, 73 N.M. 445, 389 P.2d 210. Where appellee in support of his motion for summary judgment introduced affidavits controverting the allegations of appellant's petition, it was incumbent upon appellant to show specific facts controverting appellee's motion. Failing to do so, appellant could no longer rely on the allegations of his complaint as presenting an issue of material fact. In re Estate of Snyder, 1970-NMSC-022, 81 N.M. 231, 465 P.2d 288. Where defendant has made a showing that there is no genuine issue as to proximate cause, plaintiff is required to show that evidence is available to justify a trial on that issue. The "bare contentions" of the complaint are not a showing of evidence available and thus do not raise a factual issue as to proximate cause. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. In a suit by one doctor against another for defamation where defendant and plaintiff both testified in their depositions that the letter in question was written to initiate peer review, their testimony was sufficient to invoke the applicability of the absolute privilege of statements made to initiate a hearing before a grievance committee of the medical profession, thereby making a prima facie showing that no material issue of fact existed. The burden was then on the plaintiff as the party resisting the motion for summary judgment to come forward and demonstrate that a genuine issue of fact requiring a trial did exist; this burden not being met, defendant was entitled to judgment as a matter of law. Franklin v. Blank, 1974-NMCA-086, 86 N.M. 585, 525 P.2d 945. Once defendants made a prima facie showing of entitlement to summary judgment, the burden of proving the existence of genuine material factual issues shifted to plaintiffs, requiring them to come forward and show by affidavits or other means, admissible evidence indicating material facts tending to establish each required element of their claims. Blauwkamp v. University of N.M. Hosp., 1992 -NMCA-048, 114 N.M. 228, 836 P.2d 1249. Demonstrate significance. - In challenging defendant's motion for summary judgment on plaintiff's wrongful death claim, the burden was upon plaintiff to demonstrate the significance of the gunpowder residue test result, and since she did not do so the test result raised no issue as to the sufficiency of the showing by the defendants. Cordova v. City of Albuquerque, 1974-NMCA-101, 86 N.M. 697, 526 P.2d 1290. Where an acting manager's alleged statements are admissible as evidence of liability such testimony does not raise an issue of fact as against defendant if plaintiff makes no showing that the acting manager had authority to make the statements attributed to him. Rekart v. Safeway Stores, Inc., 1970-NMCA-020, 81 N.M. 491, 468 P.2d 892. Speculation and opinion insufficient to defeat motion. - Where an affidavit is no more than self-serving speculation and is factually-unsupported opinion testimony, and where the affiant has no personal knowledge, the affidavit is not sufficient to defeat a motion for summary judgment. Pedigo v. Valley Mobile Homes, Inc., 1982-NMCA-066, 97 N.M. 795, 643 P.2d 1247. Reasonable inferences construed in favor of nonmoving party. - In determining whether plaintiffs met their burden of showing that an issue of fact exists, this court will construe all reasonable inferences in favor of plaintiffs. Smith v. Klebanoff, 1972-NMCA-075, 84 N.M. 50, 499 P.2d 368, cert. denied, 84 N.M. 37, 499 P.2d 355. Quantum of proof necessary to preclude summary judgment is not the same as that required to set aside a release at trial because in summary judgment the court merely determines whether there is a truly controverted issue of fact, not whether the proof is sufficient to prove the particular fact. It is sufficient to raise a factual issue to avoid summary judgment. Linton v. Mauer-Neuer Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126. Nonmoving party entitled to reasonable opportunity to present pertinent material. - When the trial court improperly granted protective orders to a witness and to defendants which prevented plaintiff from taking their depositions as he had a right to do, plaintiff was denied a reasonable opportunity to present all material pertinent to the action to establish a genuine issue of material fact, and the trial court erred in granting summary judgment for defendants. Kirby Cattle Co. v. Shriners Hosps. for Crippled Children, 1975-NMCA-140, 88 N.M. 605, 544 P.2d 1170, rev'd on other grounds, 1976-NMSC-013, 89 N.M. 169, 548 P.2d 449. Discovery issues not directly relevant in summary judgment proceedings. - The defendant had a duty to resist plaintiffs' motion for summary judgment with whatever evidentiary material he could produce. The trial court was bound to consider such evidentiary material in arriving at its decision to grant or deny the motion, and it mistakenly struck defendant's response affidavit on grounds that he had allegedly refused to furnish certain information contained therein to plaintiffs during discovery proceedings. Rainbo Baking Co. v. Apodaca, 1975-NMCA-122, 88 N.M. 501, 542 P.2d 1191, cert. denied, 89 N.M. 6, 546 P.2d 71. So long as interrogatories and answers thereto do not constitute a demonstration of the invalidity of the plaintiff's claim, the mere inadequacy of the answers to the interrogatories to establish the claim has no persuasiveness in ruling on a motion for summary judgment since there is no burden on the plaintiff to establish his case in a pretrial interrogatory or deposition. Wheeler v. Board of Cnty. Comm'rs, 1964-NMSC-081, 74 N.M. 165, 391 P.2d 664. VI. WHEN AFFIDAVITS ARE UNAVAILABLE. Information was available before summary judgment hearing. - Where registered shareholders sold and transferred their certificates of shares in the defendant corporation; the certificates were subsequently transferred to plaintiff in 1989; the intervening certificate holders did not register the certificates in their names; the registered shareholders obtained replacement certificates in 1987; when plaintiff attempted to register the original certificates in plaintiff's name in 1990 and in 2007, the corporation refused to register the original certificates; when plaintiff discovered in 2007 that the corporation had issued replacement certificates to the registered shareholders, plaintiff filed suit for fraud; in plaintiff's verified complaint, plaintiff alleged that the chief executive officer of the corporation had informed plaintiff that plaintiff's certificates would be noted in the corporation's records; plaintiff died during the course of the litigation; in response to defendants' motion for summary judgment on the grounds that plaintiff's action was barred by the statute of limitations, plaintiff's estate contended that the statute of limitations had been tolled and that the verified statements in plaintiff's complaint were sworn statements that supported plaintiff's argument; after the trial court granted the motion for summary judgment, the estate filed a motion for reconsideration and attached the affidavit of the shareholder relations director of the corporation which tended to confirm plaintiff's verified statements; the estate claimed that the shareholder relations director was unavailable to sign an affidavit until after plaintiff filed a response to the motion for summary judgment; and although plaintiff knew that the shareholder relations director had knowledge of issues relating to plaintiff and the certificates before the hearing summary judgment proceeding, plaintiff did not mention the potential testimony during the summary judgment proceeding, the trial court did not abuse its discretion in denying the motion for reconsideration and in refusing to consider the affidavit. Wilde v. Westland Dev. Co., Inc., 2010-NMCA-085, 148 N.M. 627, 241 P.3d 628. Purpose of rule. - There is a duty imposed upon one opposing a motion for summary judgment to resist it by whatever type of evidentiary material that is at hand. If, however, due to fortuitous circumstances or for other good reasons a party finds himself presently unable to controvert the motion, a procedure is available under this rule to prevent injustice; he may request time to obtain material to justify his position. Hamilton v. Hughes, 1958-NMSC-029, 64 N.M. 1, 322 P.2d 335. Law reviews. - For comment, "Attractive Nuisance - Liability of the United States for Accidental Drowning of Infant Trespassers in Middle Rio Grande Project Irrigation Ditches," see 10 Nat. Resources J. 137 (1970). For survey, "Civil Procedure in New Mexico in 1975," see 6 N.M.L. Rev. 367 (1976). For survey, "Administrative Law," see 6 N.M.L. Rev. 401 (1976). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983). For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988). For article, "Summary Judgment in New Mexico Following Bartlett v. Mirabal", see 33 N.M.L. Rev. 503 (2003). Am. Jur. 2d, A.L.R. and C.J.S. references. - 22A Am. Jur. 2d Declaratory Judgments §§225, 226; 73 Am. Jur. 2d Summary Judgment §§4, 12 to 14, 16 to 22, 26 to 36, 41 to 44. Binding effect of court's order entered after pretrial conference, 22 A.L.R.2d 599. Procedure and course of action by trial court, where both parties move for summary judgment, 36 A.L.R.2d 881. Court's power, on motion for summary judgment, to enter judgment against movant, 48 A.L.R.2d 1188. Gross or wanton negligence, propriety of granting summary judgment in case involving issue of, 50 A.L.R.2d 1309. Statute of limitations raised by motion for summary judgment, 61 A.L.R.2d 341. Less than all parties against whom relief is sought, power of court to grant summary judgment against, 67 A.L.R.2d 1456. Interrogatories, propriety of considering answers to, in determining motion for summary judgment, 74 A.L.R.2d 984. Multiple claims, propriety of summary judgment on part of single claim of, 75 A.L.R.2d 1201. Constitutionality of legislation raised by motion for summary judgment, 83 A.L.R.2d 838. Answer to complaint or petition, propriety of entering summary judgment for plaintiff before defendant files or serves, 85 A.L.R.2d 825. Res judicata raised by motion for summary judgment under Federal Rule 56 and similar state statutes or rules, 95 A.L.R.2d 648. Mandamus or prohibition cases, 3 A.L.R.3d 675. Counterclaim, proceeding for summary judgment as affected by presentation of, 8 A.L.R.3d 1361. Reviewability of order denying motion for summary judgment, 15 A.L.R.3d 899. Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113. Admissibility of oral testimony at state summary judgment hearing, 53 A.L.R.4th 527. Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings, 53 A.L.R.4th 561. Sufficiency of showing, under Rule 56(f) of Federal Rules of Civil Procedure, of inability to present by affidavit facts justifying opposition to motion for summary judgment, 47 A.L.R. Fed. 206. Propriety, under Rule 56(c) of the Federal Rules of Civil Procedure, of granting oral motion for summary judgment, 52 A.L.R. Fed. 567. Necessity of oral argument on motion for summary judgment or judgment on pleadings in federal court, 105 A.L.R. Fed. 755. Propriety, under rule 56 of the Federal Rules of Civil Procedure, of granting summary judgment when deponent contradicts in affidavit earlier admission of fact in deposition, 131 A.L.R. Fed. 403. 49 C.J.S. Judgments §§ 127 to 132.