Bank of Rio Grand v. Picacho Hills

• Court: New Mexico Court of Appeals
• Decided: May 3, 2012
• Docket: 31,841
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 BANK OF THE RIO GRANDE, N.A.,

3 Plaintiff-Appellee,

4 v. No. 31,841

5 PICACHO HILLS UTILITY COMPANY, 6 INC., STEPHEN C. BLANCO,

7 Defendants-Appellants,

8 and

9 BLANCO DEVELOPMENT, LLC,

10 Defendant.

11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 James T. Martin, District Judge

13 Kemp Smith, LLP 14 Ken Slavin 15 James W. Brewer 16 El Paso, TX

17 for Appellee

18 Alex Chisholm 19 Albuquerque, NM

20 for Appellants 1 MEMORANDUM OPINION

2 VIGIL, Judge.

3 Defendants Picacho Hills Utility Company, Inc. and Stephen C. Blanco

4 (Defendants) seek to appeal from an order appointing a receiver. We issued a notice

5 of proposed summary disposition, proposing to dismiss the appeal on grounds that the

6 district court’s order is not final. Defendants have filed a memorandum in opposition,

7 which we have duly considered. Because we remain unpersuaded by Defendants’

8 arguments, we dismiss the appeal.

9 As we observed in the notice of proposed summary disposition, the right to

10 appeal is generally restricted to final judgments and decisions. See NMSA 1978, §

11 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d 1033,

12 1036-42 (1992). Insofar as Defendants’ counterclaims remain unresolved, the order

13 from which appeal has been taken is not final. See Watson v. Blakely, 106 N.M. 687,

14 691, 748 P.2d 984, 988 (Ct. App. 1987) (“An order disposing of the issues contained

15 in the complaint but not the counterclaim is not a final judgment.”), overruled on

16 other grounds by Kelly Inn No. 102, 113 N.M. at 239, 824 P.2d at 1041; and see, e.g.,

17 Healthsource, Inc. v. X-Ray Assoc. of N.M., 2005-NMCA-097, ¶¶ 11-15, 138 N.M.

18 70, 116 P.3d 861 (observing that appeal may only be taken if all issues have been

19 resolved by the order under consideration; where counterclaims remain, immediate

2 1 appeal is generally unavailable); Tarin’s, Inc. v. Tinley, 2000-NMCA-048, ¶ 2, 129

2 N.M. 185, 3 P.3d 680 (holding that a judgment containing no mention of a

3 counterclaim was not a final, appealable order).

4 In their memorandum in opposition Defendants argue that an immediate appeal

5 would serve judicial economy, provide guidance relative to the continuing litigation,

6 and promote Defendants’ right to a jury trial. [MIO 1-5] We find these arguments to

7 be unpersuasive. The fact that an immediate appeal might seem desirable from

8 Defendants’ perspective does not supply any basis for departing from the numerous

9 previously-cited authorities, which clearly reflect that the underlying decision is not

10 directly appealable as a matter of right.

11 Accordingly, for the foregoing reasons stated above and in the notice of

12 proposed summary disposition, we conclude that the district court’s order is not

13 immediately reviewable. The appeal is therefore summarily dismissed.

14 IT IS SO ORDERED.

15 _______________________________ 16 MICHAEL E. VIGIL, Judge 17 WE CONCUR:

18 _________________________________ 19 LINDA M. VANZI, Judge

20 _________________________________ 21 TIMOTHY L. GARCIA, Judge