White v. Monarch Properties

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 JOHN E. WHITE, 8 Plaintiff-Appellant, 9 v. NO. 29,877 10 MONARCH PROPERTIES, 11 Defendant-Appellee. 12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 13 Louis P. McDonald, District Judge 14 John E. White 15 Rio Rancho, NM 16 Pro Se Appellant 17 Moses, Dunn, Farmer & Tuthill P.C. 18 Ronald A. Tucker 19 Albuquerque, NM 20 for Appellee 21 MEMORANDUM OPINION 22 BUSTAMANTE, Judge. 1 Plaintiff appeals from the district court’s order granting partial summary 2 judgment in favor of Defendant. The district court’s order granting partial summary 3 judgment dismissed all of Plaintiff’s claims against Defendant with the exception of 4 his claims for slander and defamation. [RP 123-24] We issued a calendar notice 5 proposing summary dismissal on the basis that a final order has not been entered in 6 this case. Plaintiff filed a timely memorandum in opposition which we have duly 7 considered. Remaining unpersuaded, we dismiss this appeal for lack of a final order. 8 In general, the right to appeal is restricted to final judgments and decisions. See 9 NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 234-40 , [10] 824 P.2d 1033, 1036-42 (1992). In light of the procedural posture below, which 11 indicates that the litigation among the parties is ongoing, it appears that the order 12 granting partial summary judgment is not final. See Gates v. N.M. Taxation & 13 Revenue Dept., 2008-NMCA-023, ¶ 8 , 143 N.M. 446 , 176 P.3d 1178 (stating that, 14 generally, orders granting partial summary judgment are not final appealable orders 15 when other claims are left unresolved). 16 The only way the order presently under consideration could only be deemed 17 final is if it falls within the parameters of Rule 1-054(B)(1) NMRA. This rule 18 provides, “when more than one claim for relief is presented in an action, whether as 19 a claim, counterclaim, cross-claim or third-party claim, the court may enter a final 20 judgment as to one or more but fewer than all of the claims only upon an express [2] 1 determination that there is no just reason for delay. In the absence of such 2 determination, any order or other form of decision, however designated, which 3 adjudicates fewer than all the claims shall not terminate the action as to any of the 4 claims and the order or other form of decision is subject to revision at any time before 5 the entry of judgment adjudicating all the claims.” Id. 6 In this case, the order granting partial summary judgment does not contain an 7 express determination that there is no reason for delay or an express direction for entry 8 of judgment. Accordingly, the order granting partial summary judgment cannot be 9 classified as a final order within the parameters of Rule 1-054(B)(1). See Aetna Cas. 10 & Sur. Co. v. Miles, 80 N.M. 237 , 453 P.2d 757 (1969). Under the circumstances, 11 interlocutory appeal may have provided the only means of obtaining prompt review 12 of the district court’s ruling. See, e.g., Martinez v. Reid, 2002-NMSC-015, ¶ 1 , 132 13 N.M. 237 , 46 P.3d 1237 . However, Plaintiff has not petitioned for interlocutory 14 appeal in this case. Nor could he have done so, insofar as the district court’s order 15 lacks the requisite certifying language. See NMSA 1978, § 39-3-4(A) (1999); Rule 16 12-203(A) NMRA. For these reasons, the district court’s order does not appear to be 17 immediately reviewable. 18 We note that Plaintiff also purports to appeal from an order dismissing his claim 19 for breach of contract. [DS 1] Plaintiff asserts that the order was verbal in open court 20 on September 10, 2009. [DS 1] However, based on our review of the record, no such [3] 1 order has been entered. It appears that a jury trial occurred on September 9, 2009. 2 [RP 131] However, at this point, there is no indication that a final judgment has been 3 entered. 4 In his memorandum in opposition, Plaintiff does not dispute that the order from 5 which he seeks to appeal is not a final order. Rather, he states that this Court has 6 failed to consider that Judge McDonald improperly used a Conciliation Agreement 7 between the parties and improperly allowed Defendants to use the agreement in their 8 defense. [MIO 1] Plaintiff also states that he was not allowed to quote from the 9 agreement to demonstrate its misuse. [MIO 1] However, this appears to go to the 10 merits of the appeal, which, until a final order is entered in this case, is not properly 11 before us. We therefore do not address these contentions. 12 For these reasons, we dismiss the appeal. We note that Plaintiff is free to refile 13 the appeal once a final order is entered in this case. See Rule 12-201 NMRA 14 (governing the time for filing an appeal). 15 IT IS SO ORDERED. [16] 17 MICHAEL D. BUSTAMANTE, Judge 18 WE CONCUR: [19] 20 JONATHAN B. SUTIN, Judge [4] 1 RODERICK T. KENNEDY, Judge