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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 TRACIE JERNIGAN, 8 Plaintiff-Appellant, 9 v. NO. 27,924
10 RICHARD L. GONZALES, 11 WESTLAND DEVELOPMENT 12 COMPANY, INC. and DOES 1-100,
13 Defendants-Appellees.
14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 Linda M. Vanzi, District Judge
16 Law Offices of Nicholas Koluncich III, LLC 17 Nicholas Koluncich III 18 Albuquerque, NM
19 Law Office of Arnold Padilla 20 Arnold Padilla 21 Albuquerque, NM
22 for Appellant
23 Law Office of Eric Sedillo Jeffries 24 Eric Sedillo Jeffries 25 Albuquerque, NM
26 for Appellee Gonzales
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1 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 2 Doulgas G. Schneebeck 3 Brian K. Nichols 4 Albuquerque, NM
5 for Appellee Westland Development 6 Company, Inc. and Does 1-100
7 MEMORANDUM OPINION 8 FRY, Chief Judge. 9 Plaintiff appeals two orders entered by the district court in favor of Defendant 10 Westland Development Company (Westland) dismissing her complaint and denying her 11 motion for clarification and/or reconsideration of the district court’s orders. We conclude 12 that Plaintiff’s notice of appeal from the order of dismissal was untimely filed, and we 13 dismiss her appeal to the extent that it challenges the merits of that order. We affirm 14 the district court’s denial of Plaintiff’s Rule 1-060(A) NMRA motion for clarification. 15 BACKGROUND 16 Plaintiff filed a complaint against Westland and others based on alleged insider 17 trading. Plaintiff claimed that Defendant Richard L. Gonzales obtained insider 18 information about Westland’s impending sale and purchased Plaintiff’s Westland 19 shares for $21 per share. Five weeks later, Westland announced a proposed merger, 20 pursuant to which Westland shareholders would receive $200 per share. Ultimately, 21 Westland entered into a different merger, at which point shares were valued at $315
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1 each. As against Westland, Plaintiff alleged claims for (1) insider trading, (2) 2 violations of the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, 3 as amended through 2009), (3) a demand for inspection of corporate records, and (4) 4 conspiracy. 5 Westland moved for dismissal of claims (1), (2), and (3), and for summary 6 judgment on claim (4). Following a hearing on these motions, the district court 7 entered an order on December 6, 2006, granting Westland’s motion to dismiss 8 Plaintiff’s claims for violation of the UPA, for inspection, and alleging insider trading. 9 It also granted Westland’s motion for summary judgment on Plaintiff’s conspiracy 10 claim. The order (Westland order) stated that “Plaintiff’s [c]omplaint and all claims 11 which were or could have been raised by Plaintiff against Westland in this action are 12 dismissed with prejudice.” Pursuant to Rule 1-054(B)(2) NMRA, the order was a 13 final order as to Westland. 14 On the same date, the district court entered an order (Gonzales order) 15 dismissing all claims against Defendant Gonzales except the claim of insider trading. 16 Twelve days later, Plaintiff filed a motion for clarification and/or reconsideration of 17 the Gonzales order. In that motion, Plaintiff did not seek clarification or 18 reconsideration of t23he Westland order.
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1 On January 5, 2007, thirty days after entry of the Westland order and eighteen 2 days after Plaintiff filed her motion for clarification of the Gonzales order, Plaintiff 3 filed a pleading entitled “Plaintiff[’s] Amendment to Her Expedited Motion for 4 Clarification and/or Reconsideration.” In this pleading, Plaintiff sought to add to her 5 previous motion for clarification of the Gonzales order, claiming that the Westland 6 order erroneously represented that the court had dismissed with prejudice all claims 7 that could have been brought against Westland. Plaintiff attached a proposed 8 amended order, which changed the Westland order to reflect dismissal of Plaintiff’s 9 complaint and all claims that were or could have been raised against Westland without 10 prejudice. The proposed order also stated that the order was final only with respect 11 to Plaintiff’s UPA and civil conspiracy claims against Westland. 12 On January 12, 2007, the district court entered an amended order of dismissal 13 related to the claims against Gonzales only, apparently in response to Plaintiff’s 14 original motion for clarification and/or reconsideration of the Gonzales order. On July 15 12, 2007, the district court entered its order on Plaintiff’s motion for clarification 16 and/or reconsideration of the Westland order. The order stated that “[t]he Westland 17 [o]rder accurately reflects the [c]ourt’s rulings at the November 28, 2006[,] hearing 18 on Westland’s [m]otion to [d]ismiss and [m]otion for [s]ummary [j]udgment.” 19 Plaintiff filed her notice of appeal against Westland on August 8, 2007.
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1 When this Court assigned this case to the general calendar, we instructed the 2 parties that “[i]n addition to any issues the parties may want to address on the general 3 calendar, we request that the parties address the timeliness of the notice of appeal, and 4 the finality of the order dismissing Westland.” Plaintiff declined our invitation and 5 failed to mention these issues in her brief in chief; she did not file a reply brief. 6 Westland analyzed these issues in its answer brief. 7 DISCUSSION 8 Finality of the Westland Order 9 We first consider whether the Westland order was final for purposes of appeal. 10 For two reasons, we conclude that it was. First, Rule 1-054(B)(2) provides that an 11 order adjudicating all issues as to one party “shall be a final one unless the court, in 12 its discretion, expressly provides otherwise.” The Westland order dismissed all claims 13 against Westland with prejudice, and it expressly provided that it was a final order. 14 Second, an order or judgment is considered final when all issues of law and fact have 15 been determined and the case has been disposed of by the trial court to the fullest 16 extent possible. Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 17 1033, 1038 (1992). The Westland order satisfies this description because no issues 18 of fact or law remained to be decided as between Plaintiff and Westland.
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1 Timeliness of Notice of Appeal 2 Plaintiff did not challenge the Westland order in any way until thirty days after 3 the order was filed. She attempted to tie her motion for clarification of the Westland 4 order to her earlier motion related to the Gonzales order, which was filed twelve days 5 after both the Westland and Gonzales orders were filed. However, even if we assume 6 that her motion regarding the Westland order relates back to the date she filed her 7 motion regarding the Gonzales order, it makes no difference to our analysis. 8 Plaintiff described her motion for clarification as being filed pursuant to Rule 9 1-060(A). We consider the nature of the motion in order to determine whether 10 Plaintiff’s description is accurate. See Chapel v. Nevitt, 2009-NMCA-017, ¶ 17, 145 11 N.M. 674, 203 P.3d 889 (explaining that “[n]omenclature is not controlling” in 12 determining which rule supports a motion (alteration in original) (internal quotation 13 marks and citation omitted)). 14 Rule 1-060(A) provides that “[c]lerical mistakes in judgments, orders or parts 15 of the record and errors therein arising from oversight or omission may be corrected 16 by the court at any time of its own initiative or on the motion of any party.” Thus, as 17 this Court has noted, “Rule 1-060(A) relief is appropriate where the court ‘blunders 18 in execution’ of a judgment, not where the court changes its mind.” In re Estates of 19 Hayes, 1998-NMCA-136, ¶ 16, 125 N.M. 820, 965 P.2d 939.
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1 It therefore appears that Plaintiff correctly characterized her motion as being 2 filed under Rule 1-060(A). Her motion made it clear that she sought to change the 3 words “with prejudice” to “without prejudice” and to clarify that the order was final 4 only as to two claims. In her view, the changes were consistent with the district 5 court’s ruling. This proposal constitutes a request to correct a clerical error as 6 contemplated by Rule 1-060(A). 7 The motion cannot be viewed as being based on either Rule 1-059(E) NMRA 8 or NMSA 1978, Section 39-1-1 (1917), because the motion did not question the 9 correctness of the court’s ruling. Cf. Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. 10 Co., 2007-NMSC-051, ¶ 9, 142 N.M. 527, 168 P.3d 99 (noting that a motion 11 questioning the correctness of a judgment and filed within ten days of judgment is 12 treated as being filed pursuant to Rule 1-059(E)); see Chapel, 2009-NMCA-017, 13 ¶¶ 17-18 (observing that a motion filed more than ten days after a judgment but within 14 thirty days of the judgment is deemed a motion for reconsideration under Section 39- 15 1-1). Furthermore, even if we considered the motion to have been filed under Rule 16 1-059(E), it was untimely because the first motion challenging the Gonzales order was 17 filed twelve days after entry, not within the ten-day period required by the rule. 18 Albuquerque Redi-Mix, Inc., 2007-NMSC-051, ¶ 10.
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1 Having concluded that Plaintiff correctly characterized her motion as being 2 filed pursuant to Rule 1-060(A), we turn now to a determination of the timeliness of 3 Plaintiff’s notice of appeal. The district court entered its order denying Plaintiff’s 4 motion for clarification and/or reconsideration of the Westland order on July 12, 2007, 5 and Plaintiff filed her notice of appeal twenty-six days later on August 8. Thus, 6 Plaintiff timely appealed from the July 12 order. See Rule 12-201(A)(2) NMRA 7 (stating that notice of appeal shall be filed within thirty days of the judgment or order 8 appealed from). However, this means that Plaintiff timely appealed only from the 9 order denying her Rule 1-060(A) motion; it does not mean that she timely appealed 10 from the Westland order, which dismissed all of her claims against Westland with 11 prejudice. This Court made it clear in In re Estates of Hayes that “if the time period 12 for filing a notice of appeal on the underlying judgment has elapsed, a Rule 1-060(A) 13 order does not establish a new time period for appealing the original judgment.” In 14 re Estates of Hayes, 1998-NMCA-136, ¶ 17; see Century Bank v. Hymans, 120 N.M. 15 684, 689 n.1, 905 P.2d 722, 727 n.1 (Ct. App. 1995) (“[T]he only appealable order 16 will be the order resolving the motion under Rule 1-060; the original judgment cannot 17 be the subject of the appeal.”). 18 The original Westland order was filed on December 6, 2006. The time for 19 appealing from that order expired on January 5, 2007. Because Plaintiff did not file
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1 her notice of appeal until August 8, 2007, the December 6 order cannot be the subject 2 of the present appeal. See Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 31, 139 3 N.M. 625, 136 P.3d 1035 (explaining that time for filing a notice of appeal is a 4 mandatory precondition to the exercise of jurisdiction over an appeal). Consequently, 5 the only issues Plaintiff raises in this appeal that we address are those related to the 6 merits of the district court’s order denying Plaintiff’s Rule 1-060(A) motion to correct 7 alleged clerical errors in the Westland order. 8 Merits of Plaintiff’s Appeal 9 Plaintiff raises five issues on appeal, arguing that the district court erred in: (1) 10 dismissing her claims related to insider trading, the demand for inspection of records, 11 and violations of the UPA; (2) granting Westland’s summary judgment on her claim 12 of conspiracy; (3) denying her leave to amend her complaint; (4) dismissing all claims 13 that Plaintiff did not but could have asserted against Westland; and (5) denying the 14 motion for clarification under Rule 1-060(A). The first two issues relate to the district 15 court’s dismissal of claims in the Westland order, and Plaintiff did not timely appeal 16 from that order. We therefore dismiss Plaintiff’s appeal to the extent it relies on the 17 first two issues. 18 The last three issues arguably relate to Plaintiff’s Rule 1-060(A) motion. We 19 consider those issues on their merits. We combine the fourth and fifth issues.
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1 Denial of Leave to Amend 2 In her response to Westland’s motion to dismiss, Plaintiff mentioned, with no 3 force or vigor or any detail, that she needed more discovery and then wanted leave to 4 amend. But she filed no motion to permit further discovery pending a decision on the 5 motion to dismiss, and she has not pointed out in her brief on appeal that she pursued 6 the need for specific discovery with the court before the court entered its dismissal 7 order. Were we nevertheless to interpret Plaintiff’s comment as a request to postpone 8 a decision on the motion while she pursued discovery and then sought leave to amend, 9 we could conclude that the request was merged in the Westland order from which 10 Plaintiff failed to file a timely notice of appeal; on that basis we could decline to 11 consider her argument. But in her Rule 1-060(A) motion Plaintiff peripherally 12 mentioned amendment in arguing that the court had not dismissed her claims with 13 prejudice. She stated, “[d]ismissing the [c]omplaint without leave to amend could 14 embolden [Westland] to oppose a new corrected amended complaint adding parties 15 . . . and adding new allegations based upon evidence that came to light after the 16 motions to dismiss and for summary judgment were filed.” This minimal approach 17 with a different direction hardly constituted a motion to vacate the dismissal order on 18 the ground that the court erred in not granting her leave to conduct further discovery 19 and to later amend. Yet, giving Plaintiff’s discussion of amendment in her motion the
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1 most charitable view possible, we will at least assume that the motion somehow 2 sought leave to amend her complaint. 3 We review the district court’s disposition of a request for leave to amend for 4 abuse of discretion. Reule Sun Corp. v. Valles, 2008-NMCA-115, ¶ 25, 144 N.M. 5 736, 191 P.3d 1197, cert. granted, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 6 1267. Although the court did not expressly rule on Plaintiff’s request, we construe its 7 denial of Plaintiff’s Rule 1-060(A) motion as a denial of her request for leave to 8 amend. See Stinson v. Berry, 1997-NMCA-076, ¶ 8, 123 N.M. 482, 943 P.2d 129 9 (deeming implicitly denied a motion to amend the complaint filed after argument of 10 the defendants’ summary judgment motions where, without ruling on the motion to 11 amend, the district court entered summary judgment inconsistent with the granting of 12 the amendment). 13 We conclude that the district court did not abuse its discretion in denying 14 Plaintiff’s request to file an amended complaint. Plaintiff’s request was ineffective. 15 For the relief she needed, she was required to clearly move to vacate the court’s 16 dismissal order on the ground that the court either mistakenly failed to dismiss without 17 prejudice to file an amended complaint, or otherwise erred in dismissing with 18 prejudice. She failed to do that. Further, even assuming that she could obtain relief 19 by seeking leave to amend at this point of the proceeding, the request did not attach
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1 a proposed amended complaint as required by Rule 1-007.1(C) NMRA. 2 Consequently, the proposed amendment was insufficient on its face. See Ruegsegger 3 v. W. N.M. Univ. Bd. of Regents, 2007-NMCA-030, ¶ 12, 141 N.M. 306, 154 P.3d 681 4 (filed 2006) (explaining that “[a]lthough, in general, leave to amend is freely granted, 5 whenever the insufficiency or futility of the proposed amended pleading is apparent 6 on its face, leave to amend may be denied because granting the motion would serve 7 no purpose” (internal quotation marks and citation omitted)). 8 Dismissal of Unstated Claims and Denial of Rule 1-060(A) Motion 9 Plaintiff argues that the district court erroneously “granted judgment on all 10 claims that were or could have been asserted by [Plaintiff] against Westland, without 11 allowing discovery, and with no leave to amend the [c]omplaint.” We have already 12 addressed the district court’s implicit denial of Plaintiff’s motion to amend. To the 13 extent that Plaintiff claims she was entitled to additional discovery, we conclude that 14 she did not raise this contention in her Rule 1-060(A) motion. She made no mention 15 of a desire for additional discovery in that motion. Because we are dismissing all 16 appellate issues except those raised in Plaintiff’s motion, we decline to consider this 17 argument. 18 We also decline to consider Plaintiff’s ostensibly separate argument that the 19 district court abused its discretion in denying her Rule 1-060(A) motion. Plaintiff
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1 again maintains that she did not have “an opportunity to use the facts to state a claim” 2 and that “the [d]istrict [c]ourt erred in failing to allow [Plaintiff] the time and 3 discovery [she] needed to develop her claims.” As we have already explained, 4 Plaintiff did not make this argument in her Rule 1-060(A) motion, and we therefore 5 decline to consider it. 6 CONCLUSION 7 For the foregoing reasons, we dismiss Plaintiff’s appeal from the Westland 8 order because it was not timely filed. We affirm the district court’s denial of 9 Plaintiff’s Rule 1-060(A) motion. 10 IT IS SO ORDERED.
11 12 CYNTHIA A. FRY, Chief Judge
13 WE CONCUR:
14 15 JAMES J. WECHSLER, Judge
16 17 JONATHAN B. SUTIN, Judge