This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 CITY OF ALBUQUERQUE, ex rel., 3 ALBUQUERQUE POLICE 4 DEPARTMENT,
5 Plaintiff/Counter-Defendant-Appellant,
6 v. NO. 33,496
7 ONE (1) CHEVY S10, VIN: 8 1GCCS19X3W8133665, NEW 9 MEXICO LICENSE #FWB021,
10 Defendant,
11 v.
12 JOHN JARUZEL, on behalf of himself 13 and as the personal representative of the 14 estate of his deceased wife FE DUNCAN.
15 Claimants/Counter-Plaintiffs-Appellee
16 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 17 Clay Campbell, District Judge
18 David Tourek, City Attorney 19 Nicholas Bullock, Assistant City Attorney 20 Jeffrey B. Driggers, Assistant City Attorney 21 Gregory S. Wheeler, Assistant City Attorney 22 Albuquerque, NM 1 for Appellant
2 The Barnett Law Firm, P.A. 3 Colin L. Hunter 4 Diego Esquibel 5 Albuquerque, NM
6 for Appellees
7 MEMORANDUM OPINION
8 ZAMORA, Judge.
9 {1} The City of Albuquerque (Appellant), seeks to appeal from an order of the
10 district court granting summary judgment on Count IV of Appellee’s counter
11 complaint. We issued a notice of proposed summary disposition proposing to dismiss
12 this appeal for lack of a final order. Appellant has responded with a timely
13 memorandum in opposition, which we have duly considered. We remain unpersuaded
14 that our initial proposed disposition was incorrect, and we therefore dismiss this
15 appeal.
16 {2} “This Court’s jurisdiction lies from final, appealable orders.” Coulston Found.
17 v. Madrid, 2004-NMCA-060, ¶ 7, 135 N .M. 667, 92 P.3d 679: see also NMSA 1978,
18 § 39-3-2 (1966). Whether an order is final, such that an appeal is statutorily
19 authorized, is a jurisdictional question that this Court is required to raise on its own
20 motion. See Britt v. Phoenix Indem. Ins. Co., 1995-NMSC-075, ¶ 5, 120 N.M. 813,
2 1 907 P.2d 994; Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d
2 844.
3 {3} Generally, an “order or judgment is not considered final unless all issues of law
4 and fact have been determined and the case disposed of by the trial court to the fullest
5 extent possible.” See Kelly Inn No. 102, Inc. V. Kapnison, 1992-NMSC-005, ¶ 14,
6 113 N.M. 231, 824 P.2d 1033 (internal quotation marks and citation omitted). The
7 district court’s order granting summary judgment on Count IV of Appellee’s counter
8 complaint does not dispose of the case to the fullest extent possible because it only
9 resolves the constitutional claims raised in the counter complaint. Appellee also
10 asserted other claims against Appellant, alleging violations of the New Mexico
11 Forfeiture Act (NMFA), NMSA 1978, Section 31-27-6(E) (2002), and that the City
12 had unlawfully exceeded its authority under NMSA 1978, Section 3-18-17 (2009) to
13 define a “nuisance.” [RP 19-20]. The district court’s order granting summary
14 judgment does not resolve these claims.
15 {4} Additionally, the district court’s order does not contain decretal language
16 indicating that the district court intended for the order to be final and appealable. It
17 does not order that judgment be entered nor does it order any specific relief. See High
18 Ridge Hinkle Joint Venture v. City of Albuquerque, 1994-NMCA-139, ¶ 29, 119 N.M.
19 29, 888 P.2d 475 (stating that an appealable order must contain decretal language); see
3 1 also Khalsa, 1998-NMCA-110, ¶ 13, 125 N.M. 680, 964 P.2d 844 (stating that the
2 difference between a decision and a judgment is the “inclusion of decretal language
3 that carries the decision into effect by ordering that something happen or, when
4 appropriate, by entering judgment for a sum certain in favor of one party and against
5 the other party”). We therefore remain of the opinion that the order in this case is not
6 final. See Burris-Awalt v. Knowles, 2010-NMCA-083, ¶ 8, 148 N.M. 616, 241 P.3d
7 617 ((stating that a “decision is generally not considered final for purposes of appeal
8 if it contains neither decretal language nor provisions directing the entry of judgment”
9 (internal quotation marks and citation omitted)).
10 {5} In its memorandum in opposition, Appellant recognizes that Appellee has
11 outstanding claims under the NMFA and Section 3-18-17 (2009). [MIO 3] However,
12 Appellant argues that adjudication of these claims “would not alter the judgment or
13 moot or revise the Order.” [MIO 3] However, the issue is whether all claims between
14 the parties have been adjudicated, not whether the district court’s decision on Count
15 IV of the counter complaint would be affected by adjudication of the remaining
16 claims. See Rule 1-054(B)(1) (stating that the district court can enter a final order as
17 to one or more but fewer than all of the claims in an action only upon an express
18 determination that there is no just reason for delay, and in the absence of such
4 1 determination, any order which adjudicates fewer than all the claims shall not
2 terminate the action as to any of the claims).
3 {6} We also find fail to understand Appellant’s reliance on Clancy v Gooding,
4 1982-NMCA-096, 98 N.M. 252, 647 P.2d 885. [MIO 3] In Clancy, the issue before
5 the Court was whether the district court’s denial of the plaintiff’s motion to amend the
6 complaint was a final order. Id. ¶¶ 7-11. We held that the order in that case was not
7 final because plaintiff had not demonstrated that her cause of action against the
8 defendant would be effectively lost or irreparably damaged. Id. ¶10. Appellant now
9 argues that, unlike the plaintiff in Clancy, its cause of action is “effectively lost” as
10 a result of the lower court’s order. [MIO 4] In actuality, however, the cause of action
11 was not “effectively lost” but was adjudicated below, and Appellant did not prevail.
12 We fail to see how the fact that the district court decided against Appellant could
13 convert a non-final order into a final order where outstanding counterclaims and
14 demands for damages remain to be decided. Until the outstanding claims against
15 Appellant are decided, we remain of the opinion that there is no final order in this
16 case. See Village of Los Ranchos Bd. Of Trustees v. Sanchez, 2004-NMCA-128, ¶ 6,
17 136 N.M. 528, 101 P.3d 339 (“Because of the problems attendant to piecemeal
18 appeals, New Mexico courts adhere to the rule that an order or judgment is not final
19 for purposes of appeal if the issue of damages is outstanding.”).
5 1 {7} Appellant also argues that the district court is treating the order as a final order
2 because it has considered and rejected Appellee’s motion for attorney fees. Appellant
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This memorandum opinion was not selected for publication in the New Mexico Appellate 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 CITY OF ALBUQUERQUE, ex rel., 3 ALBUQUERQUE POLICE 4 DEPARTMENT,
5 Plaintiff/Counter-Defendant-Appellant,
6 v. NO. 33,496
7 ONE (1) CHEVY S10, VIN: 8 1GCCS19X3W8133665, NEW 9 MEXICO LICENSE #FWB021,
10 Defendant,
11 v.
12 JOHN JARUZEL, on behalf of himself 13 and as the personal representative of the 14 estate of his deceased wife FE DUNCAN.
15 Claimants/Counter-Plaintiffs-Appellee
16 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 17 Clay Campbell, District Judge
18 David Tourek, City Attorney 19 Nicholas Bullock, Assistant City Attorney 20 Jeffrey B. Driggers, Assistant City Attorney 21 Gregory S. Wheeler, Assistant City Attorney 22 Albuquerque, NM 1 for Appellant
2 The Barnett Law Firm, P.A. 3 Colin L. Hunter 4 Diego Esquibel 5 Albuquerque, NM
6 for Appellees
7 MEMORANDUM OPINION
8 ZAMORA, Judge.
9 {1} The City of Albuquerque (Appellant), seeks to appeal from an order of the
10 district court granting summary judgment on Count IV of Appellee’s counter
11 complaint. We issued a notice of proposed summary disposition proposing to dismiss
12 this appeal for lack of a final order. Appellant has responded with a timely
13 memorandum in opposition, which we have duly considered. We remain unpersuaded
14 that our initial proposed disposition was incorrect, and we therefore dismiss this
15 appeal.
16 {2} “This Court’s jurisdiction lies from final, appealable orders.” Coulston Found.
17 v. Madrid, 2004-NMCA-060, ¶ 7, 135 N .M. 667, 92 P.3d 679: see also NMSA 1978,
18 § 39-3-2 (1966). Whether an order is final, such that an appeal is statutorily
19 authorized, is a jurisdictional question that this Court is required to raise on its own
20 motion. See Britt v. Phoenix Indem. Ins. Co., 1995-NMSC-075, ¶ 5, 120 N.M. 813,
2 1 907 P.2d 994; Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d
2 844.
3 {3} Generally, an “order or judgment is not considered final unless all issues of law
4 and fact have been determined and the case disposed of by the trial court to the fullest
5 extent possible.” See Kelly Inn No. 102, Inc. V. Kapnison, 1992-NMSC-005, ¶ 14,
6 113 N.M. 231, 824 P.2d 1033 (internal quotation marks and citation omitted). The
7 district court’s order granting summary judgment on Count IV of Appellee’s counter
8 complaint does not dispose of the case to the fullest extent possible because it only
9 resolves the constitutional claims raised in the counter complaint. Appellee also
10 asserted other claims against Appellant, alleging violations of the New Mexico
11 Forfeiture Act (NMFA), NMSA 1978, Section 31-27-6(E) (2002), and that the City
12 had unlawfully exceeded its authority under NMSA 1978, Section 3-18-17 (2009) to
13 define a “nuisance.” [RP 19-20]. The district court’s order granting summary
14 judgment does not resolve these claims.
15 {4} Additionally, the district court’s order does not contain decretal language
16 indicating that the district court intended for the order to be final and appealable. It
17 does not order that judgment be entered nor does it order any specific relief. See High
18 Ridge Hinkle Joint Venture v. City of Albuquerque, 1994-NMCA-139, ¶ 29, 119 N.M.
19 29, 888 P.2d 475 (stating that an appealable order must contain decretal language); see
3 1 also Khalsa, 1998-NMCA-110, ¶ 13, 125 N.M. 680, 964 P.2d 844 (stating that the
2 difference between a decision and a judgment is the “inclusion of decretal language
3 that carries the decision into effect by ordering that something happen or, when
4 appropriate, by entering judgment for a sum certain in favor of one party and against
5 the other party”). We therefore remain of the opinion that the order in this case is not
6 final. See Burris-Awalt v. Knowles, 2010-NMCA-083, ¶ 8, 148 N.M. 616, 241 P.3d
7 617 ((stating that a “decision is generally not considered final for purposes of appeal
8 if it contains neither decretal language nor provisions directing the entry of judgment”
9 (internal quotation marks and citation omitted)).
10 {5} In its memorandum in opposition, Appellant recognizes that Appellee has
11 outstanding claims under the NMFA and Section 3-18-17 (2009). [MIO 3] However,
12 Appellant argues that adjudication of these claims “would not alter the judgment or
13 moot or revise the Order.” [MIO 3] However, the issue is whether all claims between
14 the parties have been adjudicated, not whether the district court’s decision on Count
15 IV of the counter complaint would be affected by adjudication of the remaining
16 claims. See Rule 1-054(B)(1) (stating that the district court can enter a final order as
17 to one or more but fewer than all of the claims in an action only upon an express
18 determination that there is no just reason for delay, and in the absence of such
4 1 determination, any order which adjudicates fewer than all the claims shall not
2 terminate the action as to any of the claims).
3 {6} We also find fail to understand Appellant’s reliance on Clancy v Gooding,
4 1982-NMCA-096, 98 N.M. 252, 647 P.2d 885. [MIO 3] In Clancy, the issue before
5 the Court was whether the district court’s denial of the plaintiff’s motion to amend the
6 complaint was a final order. Id. ¶¶ 7-11. We held that the order in that case was not
7 final because plaintiff had not demonstrated that her cause of action against the
8 defendant would be effectively lost or irreparably damaged. Id. ¶10. Appellant now
9 argues that, unlike the plaintiff in Clancy, its cause of action is “effectively lost” as
10 a result of the lower court’s order. [MIO 4] In actuality, however, the cause of action
11 was not “effectively lost” but was adjudicated below, and Appellant did not prevail.
12 We fail to see how the fact that the district court decided against Appellant could
13 convert a non-final order into a final order where outstanding counterclaims and
14 demands for damages remain to be decided. Until the outstanding claims against
15 Appellant are decided, we remain of the opinion that there is no final order in this
16 case. See Village of Los Ranchos Bd. Of Trustees v. Sanchez, 2004-NMCA-128, ¶ 6,
17 136 N.M. 528, 101 P.3d 339 (“Because of the problems attendant to piecemeal
18 appeals, New Mexico courts adhere to the rule that an order or judgment is not final
19 for purposes of appeal if the issue of damages is outstanding.”).
5 1 {7} Appellant also argues that the district court is treating the order as a final order
2 because it has considered and rejected Appellee’s motion for attorney fees. Appellant
3 argues that the district court did not consider the motion for fees to be premature and
4 considered it on the merits. Therefore, Appellant argues that the district court believes
5 that order is final. [MIO 4-5] However, as Appellant recognizes in its memorandum
6 in opposition, the order does not contain the requisite certification language of Rule
7 1-054(B)(1). We are of the opinion that the language in the rule is clear, and that in
8 the absence of proper certification, there is no final order in this case. See Rule 1-
9 054(B)(1) (“[W]hen more than one claim for relief is presented in an action, whether
10 as a claim, counterclaim, cross-claim[,] or third-party claim, the court may enter a
11 final judgment as to one or more but fewer than all of the claims only upon an express
12 determination that there is no just reason for delay. In the absence of such
13 determination, any order or other form of decision, however designated, which
14 adjudicates fewer than all the claims shall not terminate the action as to any of the
15 claims and the order or other form of decision is subject to revision at any time before
16 the entry of judgment adjudicating all the claims.”).
17 {8} Finally, we reject Appellant’s argument that the order should be treated as final
18 because news outlets may have misreported the import of the district court’s order.
19 [MIO 4-5] We note, however, that once a final order has been entered in this case,
6 1 Appellant is free to appeal in accordance with the rules of procedure. For these
2 reasons, we hold that there is no final order in this case, and the appeal is therefore
3 premature. See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 10, 112 N.M. 226, 814
4 P.2d 94 (stating that an order dismissing fewer than all of the claims generally is not
5 “a final order from which appeal properly may be taken”). We therefore dismiss this
6 appeal.
7 {9} IT IS SO ORDERED.
8 _______________________________ 9 M. MONICA ZAMORA, Judge
10 WE CONCUR:
11 __________________________________ 12 RODERICK KENNEDY, Chief Judge
13 __________________________________ 14 JONATHAN B. SUTIN, Judge