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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 MADELINE BEAUDION, ROSIE GRIEVES, 8 ANDRIA BRAUN, DAVID KAMPS, MARY 9 JACKSON, DEANNA PALMER, RENEE 10 PINKERGON, SANDY RYAN, NORBERT 11 SANCHEZ, AMANDA TORRES, 12 DOUGLAS FRASER, TRACIA HAWKINS, 13 and SALLY HARRIS, M.D.,
14 Plaintiffs-Appellants,
15 v. NO. 29,940
16 HARRY MAGNES, M.D., DOUGLAS 17 CULLING, D.O., JEREMY GLEESON, 18 M.D., and ABQ HEALTH PARTNERS, 19 LLC, a Delaware corporation,
20 Defendants-Appellees.
21 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 22 Valerie Mackie Huling, District Judge
23 Bauman, Dow & León, P.C. 24 Mark C. Dow 25 Deborah R. Stambaugh 26 Albuquerque, NM
27 for Appellants 2 1 Rodey, Dickason, Sloan, Akin & Robb, P.A. 2 R. Nelson Franse 3 Charles J. Vigil 4 Jennifer L. Stone 5 Albuquerque, NM
6 for Appellees
7 MEMORANDUM OPINION
8 KENNEDY, Judge.
9 Harry Magnes, M.D., the President and Chief Executive Officer of ABQ Health
10 Partners, LLC (ABQ HP) (collectively, Defendants), terminated ABQ HP’s practice
11 relationship with neurologist Sally Harris, M.D., on July 31, 2009, twenty days before
12 her effective date of resignation, August 21, 2009, from the group. Dr. Harris, along
13 with a group of her patients (collectively, Plaintiffs), filed suit against ABQ HP and
14 Dr. Magnes to allow Plaintiffs to be treated by Dr. Harris during those twenty days.
15 Plaintiffs now appeal the district court’s denial of their request for injunctive relief.
16 We hold that the appeal of the denial of the injunctive relief was rendered moot
17 on the date Dr. Harris opened her own practice. Furthermore, the district court’s order
18 was not final as other issues alleged as causes of action between Plaintiffs and
19 Defendants were not ruled upon or included in a final order from the district court.
20 Thus, we dismiss the appeal.
3 1 I. BACKGROUND
2 Dr. Harris tendered her resignation from ABQ HP on May 21, 2009, to be
3 effective ninety days thereafter. She had appointments scheduled with patients
4 through July. Nonetheless, ABQ HP terminated Dr. Harris’s employment effective
5 June 25, 2009. Dr. Harris had previously submitted a Harris Care Continuity Plan to
6 ABQ HP identifying her last day of work as July 31, 2009 and had scheduled vacation
7 from August 1 to 18. The Harris Care Continuity Plan identified the date Dr. Harris
8 would resume care to her patients in a new office as September 15, 2009. Plaintiffs
9 brought suit on June 29, 2009, asserting a plethora of claims against ABQ HP,
10 including breach of contract rights, breach of fiduciary duties owed to them, and
11 unfair practices. Plaintiffs also sought a preliminary injunction to reinstate Dr. Harris
12 to ABQ HP until July 31, 2009, which was denied by the district court. The district
13 court heard the motion for preliminary injunction on July 6, 2009, making a number
14 of oral rulings. The district court found that Dr. Harris would have seen patients only
15 through July 31, according to the Harris Care Continuity Plan, and that there would
16 be no irreparable harm if she was not reinstated until the end of July by ABQ HP. The
17 court also determined that notice had already been sent to Dr. Harris’s patients or
18 would be sent by July 10, 2009, and patients with pre-existing appointments through
19 July 31 would be sent a letter informing them that Dr. Suter of ABQ HP would be
4 1 available to provide care for them. Furthermore, all patients scheduled from August
2 1 through September 15, 2009 would be notified of dates on which Dr. Suter would
3 be available to see them until September 15, 2009, the date by which Dr. Harris was
4 ordered to open her own practice.
5 Plaintiffs immediately filed a motion to reconsider prior to the entry of a written
6 order. The district court entered its order on the motion for preliminary injunction and
7 ordered completion of Defendants’ patient care plan on August 4, 2009. The court
8 sent a letter to counsel on August 7, indicating that the order had been filed, but it was
9 not a final order. The district court entered its findings and conclusions on September
10 8, 2009, incorporating its findings of August 4 to its supplemental findings. It denied
11 Plaintiffs’ motion for reconsideration in a separate order, stating that its order of
12 August 4, 2009 was “now a final [o]rder.”
13 From this order, Plaintiffs appeal. In response, Defendants assert that the
14 preliminary injunction issue became moot as of September 15, 2009, when Dr. Harris
15 opened her own practice and could resume care of her patients. Defendants also
16 contend that the order denying the preliminary injunction was not final, irrespective
17 of the district court’s description of the order as “final.” We address these arguments
18 in turn, and for the reasons below, we agree with Defendants.
5 1 II. DISCUSSION
2 A. The Issue on Appeal is Moot
3 A case is moot when actual controversy no longer exists and the court cannot
4 grant the party any actual relief. Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M.
5 734, 31 P.3d 1008. “An action for injunctive relief is moot only if there is no
6 reasonable expectation that the alleged violation will recur and if interim relief or
7 events have completely and irrevocably eradicated the effects of the alleged
8 violation.” State ex rel. Udall v. Cresswell, 1998-NMCA-072, ¶ 28, 125 N.M. 276,
9 960 P.2d 818. In Rio Arriba County Board of Education v. Martinez, our Supreme
10 Court denied review where the school year that was the sole subject of a request for
11 a restraining order had already ended by the time the appeal was before the appellate
12 court. 74 N.M. 674, 679, 397 P.2d 471, 474 (1964). This Court explained that review
13 would be denied “where the questions involved, either by time or circumstance, have
14 become moot.” Id. (internal quotation marks and citation omitted).
15 In this case, the injunctive relief was specifically designed to provide relief to
16 Plaintiff patients by ensuring the continuity of their medical treatment during the time
17 after Dr. Harris ceased working at ABQ HP and before she resumed her practice on
18 September 15, 2009, two years ago. The very injunctive relief sought against ABQ
19 HP terminated by the terms of the motion for injunctive relief on September 15, 2009.
6 1 Because Dr. Harris resumed work on September 15, 2009, we conclude that any effect
2 on patient care or patient rights sought to be alleviated by the requested preliminary
3 injunction is now beyond the power of any court to provide.
4 Plaintiffs rely on Cresswell, in asserting that the issue on appeal is not moot.
5 They contend that there is a reasonable expectation that the “violation will recur” with
6 regard to “other patients” than Plaintiffs. 1998-NMCA-072, ¶ 28. Relying on
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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 MADELINE BEAUDION, ROSIE GRIEVES, 8 ANDRIA BRAUN, DAVID KAMPS, MARY 9 JACKSON, DEANNA PALMER, RENEE 10 PINKERGON, SANDY RYAN, NORBERT 11 SANCHEZ, AMANDA TORRES, 12 DOUGLAS FRASER, TRACIA HAWKINS, 13 and SALLY HARRIS, M.D.,
14 Plaintiffs-Appellants,
15 v. NO. 29,940
16 HARRY MAGNES, M.D., DOUGLAS 17 CULLING, D.O., JEREMY GLEESON, 18 M.D., and ABQ HEALTH PARTNERS, 19 LLC, a Delaware corporation,
20 Defendants-Appellees.
21 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 22 Valerie Mackie Huling, District Judge
23 Bauman, Dow & León, P.C. 24 Mark C. Dow 25 Deborah R. Stambaugh 26 Albuquerque, NM
27 for Appellants 2 1 Rodey, Dickason, Sloan, Akin & Robb, P.A. 2 R. Nelson Franse 3 Charles J. Vigil 4 Jennifer L. Stone 5 Albuquerque, NM
6 for Appellees
7 MEMORANDUM OPINION
8 KENNEDY, Judge.
9 Harry Magnes, M.D., the President and Chief Executive Officer of ABQ Health
10 Partners, LLC (ABQ HP) (collectively, Defendants), terminated ABQ HP’s practice
11 relationship with neurologist Sally Harris, M.D., on July 31, 2009, twenty days before
12 her effective date of resignation, August 21, 2009, from the group. Dr. Harris, along
13 with a group of her patients (collectively, Plaintiffs), filed suit against ABQ HP and
14 Dr. Magnes to allow Plaintiffs to be treated by Dr. Harris during those twenty days.
15 Plaintiffs now appeal the district court’s denial of their request for injunctive relief.
16 We hold that the appeal of the denial of the injunctive relief was rendered moot
17 on the date Dr. Harris opened her own practice. Furthermore, the district court’s order
18 was not final as other issues alleged as causes of action between Plaintiffs and
19 Defendants were not ruled upon or included in a final order from the district court.
20 Thus, we dismiss the appeal.
3 1 I. BACKGROUND
2 Dr. Harris tendered her resignation from ABQ HP on May 21, 2009, to be
3 effective ninety days thereafter. She had appointments scheduled with patients
4 through July. Nonetheless, ABQ HP terminated Dr. Harris’s employment effective
5 June 25, 2009. Dr. Harris had previously submitted a Harris Care Continuity Plan to
6 ABQ HP identifying her last day of work as July 31, 2009 and had scheduled vacation
7 from August 1 to 18. The Harris Care Continuity Plan identified the date Dr. Harris
8 would resume care to her patients in a new office as September 15, 2009. Plaintiffs
9 brought suit on June 29, 2009, asserting a plethora of claims against ABQ HP,
10 including breach of contract rights, breach of fiduciary duties owed to them, and
11 unfair practices. Plaintiffs also sought a preliminary injunction to reinstate Dr. Harris
12 to ABQ HP until July 31, 2009, which was denied by the district court. The district
13 court heard the motion for preliminary injunction on July 6, 2009, making a number
14 of oral rulings. The district court found that Dr. Harris would have seen patients only
15 through July 31, according to the Harris Care Continuity Plan, and that there would
16 be no irreparable harm if she was not reinstated until the end of July by ABQ HP. The
17 court also determined that notice had already been sent to Dr. Harris’s patients or
18 would be sent by July 10, 2009, and patients with pre-existing appointments through
19 July 31 would be sent a letter informing them that Dr. Suter of ABQ HP would be
4 1 available to provide care for them. Furthermore, all patients scheduled from August
2 1 through September 15, 2009 would be notified of dates on which Dr. Suter would
3 be available to see them until September 15, 2009, the date by which Dr. Harris was
4 ordered to open her own practice.
5 Plaintiffs immediately filed a motion to reconsider prior to the entry of a written
6 order. The district court entered its order on the motion for preliminary injunction and
7 ordered completion of Defendants’ patient care plan on August 4, 2009. The court
8 sent a letter to counsel on August 7, indicating that the order had been filed, but it was
9 not a final order. The district court entered its findings and conclusions on September
10 8, 2009, incorporating its findings of August 4 to its supplemental findings. It denied
11 Plaintiffs’ motion for reconsideration in a separate order, stating that its order of
12 August 4, 2009 was “now a final [o]rder.”
13 From this order, Plaintiffs appeal. In response, Defendants assert that the
14 preliminary injunction issue became moot as of September 15, 2009, when Dr. Harris
15 opened her own practice and could resume care of her patients. Defendants also
16 contend that the order denying the preliminary injunction was not final, irrespective
17 of the district court’s description of the order as “final.” We address these arguments
18 in turn, and for the reasons below, we agree with Defendants.
5 1 II. DISCUSSION
2 A. The Issue on Appeal is Moot
3 A case is moot when actual controversy no longer exists and the court cannot
4 grant the party any actual relief. Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M.
5 734, 31 P.3d 1008. “An action for injunctive relief is moot only if there is no
6 reasonable expectation that the alleged violation will recur and if interim relief or
7 events have completely and irrevocably eradicated the effects of the alleged
8 violation.” State ex rel. Udall v. Cresswell, 1998-NMCA-072, ¶ 28, 125 N.M. 276,
9 960 P.2d 818. In Rio Arriba County Board of Education v. Martinez, our Supreme
10 Court denied review where the school year that was the sole subject of a request for
11 a restraining order had already ended by the time the appeal was before the appellate
12 court. 74 N.M. 674, 679, 397 P.2d 471, 474 (1964). This Court explained that review
13 would be denied “where the questions involved, either by time or circumstance, have
14 become moot.” Id. (internal quotation marks and citation omitted).
15 In this case, the injunctive relief was specifically designed to provide relief to
16 Plaintiff patients by ensuring the continuity of their medical treatment during the time
17 after Dr. Harris ceased working at ABQ HP and before she resumed her practice on
18 September 15, 2009, two years ago. The very injunctive relief sought against ABQ
19 HP terminated by the terms of the motion for injunctive relief on September 15, 2009.
6 1 Because Dr. Harris resumed work on September 15, 2009, we conclude that any effect
2 on patient care or patient rights sought to be alleviated by the requested preliminary
3 injunction is now beyond the power of any court to provide.
4 Plaintiffs rely on Cresswell, in asserting that the issue on appeal is not moot.
5 They contend that there is a reasonable expectation that the “violation will recur” with
6 regard to “other patients” than Plaintiffs. 1998-NMCA-072, ¶ 28. Relying on
7 Cresswell, Plaintiffs also contend that their injunctive relief claim is not moot because
8 the effects of the violation have not been completely and irrevocably eradicated.
9 These arguments are unavailing because Plaintiffs asserted in their motion that their
10 need for an injunction only existed until such time as Dr. Harris resumed practicing
11 on her own. That she “was not able to treat her patients, and [they] did not receive
12 their scheduled treatment” for the period of time that lasted until September 15, 2009
13 is not a matter capable of recurring. Nor is it capable of resolution by an injunction
14 at this point in time because after September 15, 2009, patients resumed access to
15 treatment with Dr. Harris.
16 Plaintiffs also argue that their appeal is not moot since the case is one of
17 substantial public interest and the wrongs involved are capable of repetition evading
18 review under Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980). Mowrer held that
19 “[a] court should continue a cause . . . if the court discerns a likelihood of recurrence
7 1 of the same issue, generally in the framework of a ‘recurring’ controversy and ‘public
2 interest’ in maintaining the appeal.” Id. at 51-52, 618 P.2d at 889-90. We disagree
3 with Plaintiffs. As Dr. Harris is no longer working for ABQ HP, this wrong is not
4 capable of repetition such that it would require the injunction at issue in this case. If
5 a wrong was committed by ABQ HP in this case, it would only be capable of
6 repetition with relation to doctors other than Dr. Harris, who still have a practice
7 relationship with ABQ HP. The injunction sought here, which names Dr. Harris,
8 would not prevent any wrong that could occur with relation to doctors still working
9 at ABQ HP. Thus, the injunction at issue does not generally address a wrongful act
10 committed by ABQ HP that is capable of repetition evading review. The remedy
11 sought here is not one of public interest, as the injunction would have solely benefitted
12 Dr. Harris’s several existing patients. In addition, the injunction sought would no
13 longer be effective and is thus not of public interest since it was to apply to a time line
14 that expired two years ago. Furthermore, because the district court’s order was not
15 final, any potential damage from malfeasance of medical administrators as alleged by
16 Plaintiffs can still be addressed in the unresolved portions of this case, namely,
17 Plaintiffs’ suit for damages.
18 Plaintiffs filed a notice of appeal in due course, but failed to seek extraordinary
19 or expedited appellate review. Their appeal is now moot. In the absence of injunctive
8 1 relief, however, the substance of Plaintiffs’ claims remains to be adjudicated and the
2 denial of injunctive relief was not a final order.
3 B. The Order was not Final
4 Despite Plaintiffs’ characterization of the district court’s order denying the
5 injunction as final, “[w]hether an order is a ‘final order’ within the meaning of the
6 statute is a jurisdictional question that an appellate court is required to raise on its own
7 motion.” Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.
8 Generally, “an order or judgment is not considered final unless all issues of law and
9 fact have been determined and the case disposed of by the trial court to the fullest
10 extent possible.” Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d
11 1033, 1038 (1992) (internal quotation marks and citation omitted); Exec. Sports Club,
12 Inc. v. First Plaza Trust, 1998-NMSC-008, ¶ 5, 125 N.M. 78, 957 P.2d 63 (requiring
13 all issues of law and fact to be determined by a final order and the case disposed to the
14 fullest extent possible to be ripe for appeal). The term “finality,” however, “is to be
15 given a practical, rather than a technical, construction.” Kelly Inn, 113 N.M. at 236,
16 824 at 1038. In the absence of a final order, any appeal is premature and must be
17 dismissed.
18 In this case, the order denying the preliminary injunction did not determine the
19 rights of the parties on the merits, leaving those for future determination. The district
9 1 court has not considered the merits of Plaintiffs’ claims against Defendants. Below,
2 Plaintiffs asserted numerous claims against Defendants, including claims for
3 abandonment of Plaintiffs, breach of a fiduciary obligation to Plaintiffs, violations of
4 the New Mexico Medical Board regulations, violations of the Unfair Practices Act,
5 and deprivation of necessary care to Plaintiffs. These theories of recovery have not
6 yet been resolved, despite the court’s denial of the preliminary injunction. Similarly,
7 Plaintiffs’ motion for class certification has not been addressed.
8 Because many issues and avenues for relief were pled, and the court only
9 addressed the argument regarding continuance of Plaintiffs’ care until September 15,
10 2009, in denying the injunction, we conclude that the order was not final. Thus, we
11 also dismiss this appeal on the ground that it lacked the requisite finality for appeal.
12 III. CONCLUSION
13 The appeal herein is dismissed for mootness and lack of finality. Plaintiffs’
14 extensive arguments regarding the merits of their claims are best left to be resolved
15 below in a hearing on the merits. The matter is remanded to the district court for
16 further proceedings consistent with this Opinion.
10 1 IT IS SO ORDERED.
2 _______________________________ 3 RODERICK T. KENNEDY, Judge
4 WE CONCUR:
5 _________________________________ 6 JAMES J. WECHSLER, Judge
7 _________________________________ 8 MICHAEL D. BUSTAMANTE, Judge