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I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM '00'04- 15:42:23 2012.08.08

Certiorari Denied, June 29, 2012, No. 33,651 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Opinion Number: 2012-NMCA-071 Filing Date: May 1, 2012 Docket No. 30,764 JONATHAN MADRID, Plaintiff-Appellant, v. VILLAGE OF CHAMA, Defendant-Appellee. APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY Sheri A. Raphaelson, District Judge Serra & Garrity, P.C. Diane Garrity Santa Fe, NM for Appellant Scheuer, Yost & Patterson, P.C. Tony F. Ortiz Kristin L. Davidson Santa Fe, NM for Appellee OPINION VANZI, Judge. {1} Plaintiff Jonathan Madrid appeals from a district court order granting a motion to dismiss in favor of Defendant Village of Chama (the Village). We address two issues on appeal: (1) whether Madrid was required to appeal the Village's administrative decision terminating his employment by petitioning the district court for a writ of certiorari and (2) 1

whether the district court erred when it concluded that Madrid failed to state a claim on which relief could be granted because the Village's employee handbook, Village of Chama, N.M., Personnel Policies 1999-01 (the Ordinance), clearly stated that it did not create an implied contract. We reverse. We hold that Madrid was not required to petition the district court for a writ of certiorari. Thus, Madrid's failure to timely appeal the decision pursuant to Rule 1-075(D) NMRA was not a jurisdictional defect requiring dismissal. We further hold that the district court erred in granting the Village's Rule 1-012(B)(6) NMRA motion for failure to state a claim. Finally, we clarify that our courts should not evaluate motions to dismiss for failure to state a claim in accordance with the United States Supreme Court's interpretation of the Federal Rules of Civil Procedure. BACKGROUND {2} Plaintiff was discharged from his employment with the Village on July 15, 2009. Proceeding under Article IX, Section 9.140 of the Ordinance, Madrid filed a request for a post-termination (appeal) hearing in order to contest the allegations that led to his termination. The appeal hearing was scheduled for July 22, 2009, and Madrid's appeal was listed as an agenda item for the meeting. During the meeting, the Village Council attempted to change the appeal hearing to a pre-termination hearing. The next day, the Mayor issued a letter stating that Madrid was terminated at that time even though Madrid had been terminated since July 15, 2009, and had not received any income from the Village since that date. {3} Madrid timely appealed the July 23, 2009 termination decision and, on September 8, 2009, the Council conducted a post-termination hearing. After a full vote by the Village Council with the Mayor present, Madrid was fired from his position. Pursuant to the Ordinance, the Village was required to inform Madrid of its final decision in writing within fourteen days. Village of Chama, N.M., Personnel Policies 1999-01, art. IX,

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