Breen v. Tax & Rev
Opinion
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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
8 Plaintiff-Appellant,
9 v. NO. 29,849
12 Defendant-Appellee.
14 James A. Hall, District Judge
15 Peter Breen 16 Santa Fe, NM
17 Pro Se Appellant
18 Law Office of Michael Dickman 19 Michael Dickman 20 Santa Fe, NM
21 for Appellee
23 BUSTAMANTE, Judge. 1 Plaintiff appeals pro se from an order dismissing Defendants’ counterclaim and
2 allowing Defendants to seek post-trial sanctions. We proposed to dismiss for lack of
3 a sufficiently final order, and Plaintiff has filed a timely memorandum in opposition.
4 Remaining unpersuaded by Plaintiff’s memorandum, we dismiss the appeal for lack
5 of a sufficiently final order.
6 As discussed more fully in our previous notice, the right to appeal is usually
7 restricted to final judgments and decisions. See NMSA 1978, § 39-3-2 (1966); Kelly
8 Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d 1033, 1036-42 (1992).
9 “For purposes of appeal, an order or judgment is not considered final unless all issues
10 of law and fact have been determined and the case disposed of by the trial court to the
11 fullest extent possible.” B.L. Goldberg & Assocs. Inc. v. Uptown, Inc., 103 N.M. 277,
12 278, 705 P.2d 683, 684 (1985). Whether an order is final, such that appeal is
13 statutorily authorized, is a jurisdictional question that this Court is required to raise
14 on its own motion. Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964
15 P.2d 844.
16 In our notice of proposed summary disposition we proposed to dismiss
17 Plaintiff’s appeal because the order which is the subject of the appeal only dismisses
18 Defendants’ counterclaim while all of Plaintiff’s claims against Defendants are still
19 pending. [RP 246] We also noted that there were ongoing discovery issues pending
2 1 possible trial on the merits. [See generally RP 260-283] Finally, we observed that the
2 order being appealed allows Defendants to file a motion for sanctions after trial but
3 makes no findings whatsoever as to whether Defendants will be entitled to any
4 sanctions at that time. [RP 246]
5 In our notice, we also proposed to reject Plaintiff’s assertion that the matter is
6 appropriate for interlocutory review pursuant to Subsection C of New Mexico’s “Anti
7 SLAPP” (“Strategic Lawsuit Against Public Participation”) statute found at NMSA
8 1978, § 38-2-9.1 (2001). See § 38-2-9.1(C) (allowing expedited appeal from “a trial
9 court order on the special motions described in Subsection B of this section or from
10 a trial court's failure to rule on the motion on an expedited basis”). We proposed to
11 reject Plaintiff’s assertion because to whatever extent Defendants’ counterclaim could
12 be considered a SLAPP suit as addressed in Section 38-2-9.1(A), Plaintiff received the
13 relief requested because the counterclaim was dismissed. [DS 4] See § 38-2-9.1 (A)
14 (stating that actions seeking money damages “against a person for conduct or speech
15 undertaken or made in connection with a public hearing or public meeting in a
16 quasi-judicial proceeding before a tribunal or decision-making body of any political
17 subdivision of the state” are subject to special motions to dismiss, for judgment on the
18 pleadings, and motions for summary judgment and “shall be considered by the court
19 on a priority or expedited basis”).
3 1 In his memorandum in opposition, Plaintiff contends that he is entitled to
2 interlocutory appeal because the district court’s order failed to dismiss Defendants’
3 SLAPP suit but merely converted it to a motion for sanctions. [MIO 8-9] He argues
4 that Defendants’ counterclaim against him for statements made in the administrative
5 claims with the Federal Equal Employment Opportunity Commission (“EEOC “) and
6 the New Mexico Human Rights Division (“HRD”) squarely fall in the ambit of the
7 Anti-SLAPP statute. [MIO 6] He then strenuously argues that the policy behind the
8 Anti-SLAPP statute requires that interlocutory review be available as a matter of right
9 to a SLAPP suit defendant such as himself. [MIO 4-8] We are unpersuaded because
10 Defendants’ counterclaim did not seek to recover against Plaintiff for Plaintiff’s
11 actions before the HRD or in any other “quasi-judicial proceeding.” Section 38-2-
12 9.1(A).
13 Section 38-2-9.1(A) is directed at lawsuits filed “against a person for conduct
14 or speech undertaken or made in connection with a public hearing or public meeting
15 in a quasi-judicial proceeding before a tribunal or decision-making body of any
16 political subdivision of the state.” Moreover, “public meeting in a quasi-judicial
17 proceeding” is defined as including “any meeting established and held by a state or
18 local governmental entity, including without limitations, meetings or presentations
19 before state, city, town or village councils, planning commissions, review boards or
4 1 commissions.” Section 38-2-9.1(D).
5 1 Contrary to Plaintiff’s contentions, Defendants did not sue him “for the cost of
2 defending an administrative complaint made to the [HRD] and the [EEOC].” [MIO
3 1] Review of Defendant’s counterclaim establishes that Defendants never sought to
4 recover their costs or attorney fees incurred in appearing before the HRD or any other
5 “quasi-judicial proceeding before a tribunal . . . of any political subdivision.” Section
6 38-2-9.(A). [RP 73-78] Instead, they only sought to recover costs incurred in
7 defending the allegedly frivolous lawsuit filed by Plaintiff in district court. [RP 77 ¶
8 17]
9 As Defendants’ allegations do not fall within the parameters of Section 38-2-9.1
10 (A), we are not convinced that Plaintiff has a right to interlocutory review of the
11 district court’s order dismissing the counterclaim yet allowing Defendants to move for
12 sanctions after trial.
13 Finally, in light of our determination that Defendants’ counterclaim never fell
14 within the provisions of Section 38-2-9.1(A), we decline to consider Plaintiff’s
15 citations to out-of-state authority to support his contention that he was entitled to
16 either outright dismissal of Defendants’ counterclaim or judgment with prejudice
17 instead of reformation of the counterclaim into a request for sanctions. [MIO 9-13]
18 Therefore, for the reasons discussed more fully in our notice of proposed
19 summary disposition, we dismiss Plaintiff’s appeal because it is not sufficiently final
6 1 and it is not appropriate for interlocutory review because Defendants’ counterclaim
2 does not implicate the provisions of Section 38-2-9.1. Based upon lack of finality, we
3 also decline to consider the merits of Plaintiff’s contention that the district court’s
4 order is infirm because Defendants’ attorneys lack authority to prosecute the
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