Lucero v. Tachias

• Court: New Mexico Court of Appeals
• Decided: July 9, 2014
• Docket: 33,558
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 AGREPINA LUCERO , and RONALD O. 3 LUCERO, and SARAH E. LUCERO,

4 Plaintiffs-Appellants,

5 v. No. 33,558

6 MICHAEL H. TACHIAS and 7 ROWENA E. TACHIAS, RESTIE 8 SANDOVAL and ANNIE SANDOVAL; 9 DANIEL LUCERO and YOLANDA 10 LUCERO; SANDOVAL COUNTY 11 BOARD OF COUNTY COMMISSIONERS; 12 and ALL UNKNOWN PERSONS WHO 13 MAY CLAIM A LIEN, INTEREST OR 14 TITLE ADVERSE TO THE PLAINTIFFS,

15 Defendants-Appellees,

16 ERNESTO TACHIAS,

17 Intervenor.

18 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 19 George P. Eichwald, District Judge

20 Crowley & Gribble, P.C. 21 Clayton E. Crowley 22 Albuquerque, NM

23 for Appellants

24 Lakins Law Firm, P.C. 1 Charles Norman Lakins 2 Albuquerque, NM

3 for Appellees

4 MEMORANDUM OPINION

5 HANISEE, Judge.

6 {1} Appellants Agrepina Lucero, Ronald Lucero, and Sarah Lucero (Plaintiffs)

7 appeal from the district court’s ruling that Plaintiffs did not prove their claim of

8 adverse possession to the disputed land and are thus not entitled to quiet title in their

9 favor. The district court entered its findings and conclusions on September 10, 2013

10 [RP Vol.II/390], to which Plaintiffs responded by filing their September 24, 2013,

11 “motion to alter or amend judgment pursuant to Rule 1-059 NMRA” (motion). [RP

12 Vol.II/427, 437, 472] The district court subsequently denied Plaintiffs’ motion, and

13 in its January 17, 2014, order doing so expressly stated “[t]his order shall constitute

14 a final and appealable order.” [RP Vol.II/480] Plaintiffs now appeal from the district

15 court’s denial of their motion. [RP Vol.II/480, 481]

16 {2} While acknowledging the district court’s language expressing finality in its

17 order, our notice nonetheless proposed to dismiss, in pertinent part because matters

18 remain below to be decided. As provided in our notice, while the district court’s

19 findings and conclusions set forth that Appellees (Defendants) and Ernesto Tachio

20 (Intervenor) are entitled to damages [RP Vol.I/66, 68; II/412-14, 315], the district

2 1 court has yet to determine the amount of damages to which they are entitled. Because

2 the matter of damages remains to be decided, we conclude that there is not a final

3 order or judgment for purposes of appeal. See generally Valley Improvement Ass’n v.

4 Hartford Accident & Indem. Co., 1993-NMSC-061, ¶¶ 1, 8, 116 N.M. 426, 863 P.2d

5 1047 (holding that because the district court awarded damages, but failed to quantify

6 them, the district court’s judgment was not final); B.L. Goldberg & Assocs., Inc. v.

7 Uptown, Inc., 1985-NMSC-084, ¶ 3, 103 N.M. 277, 705 P.2d 683 (recognizing that

8 an order or judgment is generally not considered final unless all issues of law and fact

9 have been determined and the case disposed of by the trial court to the fullest extent

10 possible); Curbello v. Vaughn, 1966-NMSC-179, ¶¶ 1-3, 76 N.M. 687, 417 P.2d 881

11 (stating that where the district court had entered findings and conclusions but had not

12 entered an order or judgment carrying out the findings and conclusions, no final order

13 had been entered in the case for purposes of appeal).

14 {3} Recognizing that “there are damages issues left to be tried and that those issues

15 are not final” [MIO 2], Plaintiffs argue that this Court should nonetheless consider

16 their appeal. As support for their argument, Plaintiffs provide that the trial below was

17 bifurcated between equitable and legal issues [MIO 1], that the present appeal

18 addresses the equitable issues relating to injunctive relief [MIO 2-3, 9], and that “the

19 judicial policy of orderly proceedings favor[s] appellate review at this stage of the

3 1 proceedings” because “there will most likely be two damages trials instead of one.”

2 [MIO 2] While Plaintiffs urge us to consider the merits of their appeal despite the

3 outstanding damages matter, we decline to do so because we disfavor piecemeal

4 appeals. See Executive Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, ¶¶ 8,

5 11, 125 N.M. 78, 957 P.2d 63 (recognizing New Mexico’s strong policy of

6 disfavoring piecemeal appeals).

7 {4} In recognition that the order from which they appeal lacks finality, Plaintiffs

8 request this Court to treat their appeal as interlocutory, “at least with regard to those

9 Findings and Conclusions which are interlocutory in nature.” [MIO 5] Without

10 commenting on whether the merits of this case would be appropriate for interlocutory

11 review, we decline Plaintiffs’ request for two preliminary reasons. First, even if we

12 were to treat Plaintiffs’ docketing statement as a non-conforming application for

13 interlocutory appeal, it was not filed in this Court within fifteen days of the district

14 court’s January 17, 2014, order, as required by Rule 12-203(A) NMRA (mandating

15 that an application for interlocutory appeal be filed within fifteen days after the entry

16 of the order appealed from). And second, as required by NMSA 1978, Section 39-3-

17 4(A) (1999) and Rule 12-203(B), the district court must certify the order for

18 interlocutory review by stating that “the order or decision involves a controlling

19 question of law as to which there is substantial ground for difference of opinion and

4 1 that an immediate appeal from the order or decision may materially advance the

2 ultimate termination of the litigation.” Section 39-3-4(A). The order from which

3 Plaintiffs appeal, however, does not contain this required language, and we decline to

4 exercise jurisdiction over an interlocutory appeal absent this required certification

5 language. See generally State v. Lobato, 2006-NMCA-051, ¶ 38, 139 N.M. 431, 134

6 P.3d 122 (recognizing that incorporation of the mandated certification language is

7 required to permit interlocutory review). In so declining, we reject Plaintiffs’

8 argument that the holding in Healthsource, Inc. v. X-Ray Assocs. of N.M., P.C., 2005-

9 NMCA-097, 138 N.M. 70, 116 P.3d 861, supports their arguments for interlocutory

10 relief. [MIO 9-10] Healthsource is instructive for its ruling that while Rule

11 1-054(B)(2) may provide finality to one party, it does not extend finality to a second

12 party if issues remain pending against such party. Healthsource, Inc., 2005-NMCA-

13 097, ¶¶ 14-15. Any analogy between Rule 1-054 and the requisite certification

14 language for interlocutory appeal, we believe, is misguided.

15 {5} For the reasons provided in our notice and above, we dismiss for lack of a final

16 order.

17 {6} IT IS SO ORDERED.

18 19 J. MILES HANISEE, Judge

5 1 WE CONCUR:

2 3 JAMES J. WECHSLER, Judge

4 5 TIMOTHY L. GARCIA, Judge