Khalsa v. Puri

• Court: New Mexico Court of Appeals
• Decided: October 3, 2016
• Docket: 34,911
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SOPURKH KAUR KHALSA, SHAKTI 3 PARWHA KAUR KHALSA, and EK ONG 4 KAR KAUR KHALSA, Trustees of the 5 Yogi Bhajan Administrative Trust,

6 Plaintiffs-Appellees,

7 v. No. 34,911

8 INDERJIT KAUR PURI,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 Sarah M. Singleton, District Judge

12 Wray & Girard, P.C. 13 J. Katherine Girard 14 Katherine Wray 15 Albuquerque, NM

16 Sanders & Westbrook, P.C. 17 Maureen A. Sanders 18 Albuquerque, NM

19 Philip B. Davis 20 Albuquerque, NM

21 for Appellees 1 The Bowles Law Firm 2 Jason Bowles 3 Albuquerque, NM

4 The Soni Law Firm 5 Surjit P. Soni 6 Pasadena, CA

7 for Appellant

8 MEMORANDUM OPINION

9 BUSTAMANTE, Judge.

10 {1} Inderjit Kaur Puri (Appellant) appeals from the district court’s post judgment

11 order on her motion to quash the subpoena issued by the trial court at the request of

12 Sopurkh Kaur Khalsa, et al., (Appellees), and for a protective order. This Court’s

13 second calendar notice proposed to dismiss on the basis that the order appealed from

14 is not final and appealable. Appellees filed a memorandum in response, and Appellant

15 filed a memorandum in opposition, to this Court’s proposed disposition. Not

16 persuaded by Appellant’s arguments, we dismiss the appeal.

17 {2} Appellant contends that the order appealed from is immediately appealable

18 because it is a collateral order unrelated to the merits of the case, which have been

19 fully decided, and for which all appeals from the merits have been exhausted. [MIO

20 2] Appellant urges this Court to reach the merits of this appeal and determine that

21 service was improper, and that Appellant’s income tax returns are statutorily

2 1 privileged from discovery. [Id.] Therefore, Appellant asserts, dismissal of the appeal

2 would waste the party’s resources and result in futile acts by the district court to

3 enforce what is clearly an unlawful order. [Id.]

4 {3} Specifically, Appellant argues that the order is a final, appealable order [MIO

5 3-4], and challenges this Court’s reliance on King v. Allstate Ins. Co., 2004-NMCA-

6 031, ¶ 19, 135 N.M. 206, 86 P.3d 631. [MIO 5] Appellant asserts that the proposition

7 stated in King, that “an order compelling discovery is not a collateral order,” is

8 distinguishable and inapplicable here, id. ¶ 18, where a final judgment on the merits

9 of the underlying case has already been entered [MIO 5-6], and relies instead on Breen

10 v. State Taxation & Revenue Department, 2012-NMCA-101, ¶ 13, 287 P.3d 379.

11 Appellant contends that this case is akin to Breen because here, the underlying case

12 resulted in a final judgment, and having been affirmed on appeal, all of Appellant’s

13 rights to appeal have been exhausted. We disagree.

14 {4} In Breen, the defendants sought issuance of subpoenas to both the State

15 Taxation and Revenue Department and the plaintiff’s wife, requiring disclosure of tax

16 records and returns from wife, a non-party to the lawsuit. 2012-NMCA-101, ¶ 10.

17 This Court recognized that the principle in King did not apply because the person to

18 whom the subpoena was issued was a non-party whose “issues cannot fairly be

19 resolved at the end of a trial of the underlying case and would be unreviewable on

3 1 appeal from a final judgment because she is not a party to the action.” Breen, 2012-

2 NMCA-101, ¶ 10. Moreover, because the same subpoena was also issued to the

3 Department subpoenaing the production of the non-party’s income tax returns over

4 her objections, and she had “no power of refusal to comply with that subpoena,” a

5 contempt proceeding would not be available for appeal. Id. ¶ 16. However, unlike

6 Breen, where the “effect of the order with regard to issuing the subpoena to the

7 Department [was] also final as to resolving [wife’s] assertion of confidentiality and

8 privilege,” id. ¶ 16, here Appellant is a party to the action and has recourse by way of

9 refusing to comply with the subpoena and appealing from the contempt order.

10 {5} We therefore conclude that the order is not a collateral order properly

11 reviewable under Rule 12-503(E)(2)(c) NMRA because the order, at minimum, is not

12 “effectively unreviewable on appeal from a final judgment.” Carrillo v. Rostro, 1992-

13 NMSC-054, ¶ 16, 114 N.M. 607, 845 P.2d 130 (internal quotation marks and citation

14 omitted). Insofar as Appellant asserts that dismissing the appeal and compelling her

15 to be subjected to a contempt order to be able to seek review of an asserted unlawful

16 order is inequitable and unjust, her arguments are better directed at the Supreme

17 Court. This Court is bound by Supreme Court precedent. State ex rel. Martinez v. City

18 of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 N.M. 375, 89 P.3d 47.

4 1 {6} For the reasons stated herein, and in this Court’s second calendar notice, we

2 dismiss the appeal.

3 {7} IT IS SO ORDERED.

4 _______________________________________ 5 MICHAEL D. BUSTAMANTE, Judge

6 WE CONCUR: 7

8 9 RODERICK T. KENNEDY, Judge

10 11 J. MILES HANISEE, Judge