N.E.A. of N.M. v. Cent. Consol. Sch. Dist.

• Court: New Mexico Court of Appeals
• Decided: February 10, 2015
• Docket: 34,151
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 THE NATIONAL EDUCATION 3 ASSOCIATION OF NEW MEXICO, 4 CENTRAL CONSOLIDATED 5 EDUCATIONAL ASSOCIATION, 6 AND APRIL BAISAN,

7 Petitioners-Appellees,

8 v. NO. 34,151

9 CENTRAL CONSOLIDATED SCHOOL 10 DISTRICT AND DON LEVINSKI, 11 Superintendent,

12 Respondents-Appellants.

13 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 14 Karen L. Townsend, District Judge

15 Jones, Snead, Wertheim & Clifford, P.A. 16 Jerry Todd Wertheim 17 Roxie De Santiago 18 Santa Fe, NM

19 for Appellees

20 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 21 Zachary L. McCormick 1 Lorena Olmos 2 Mia L. Kern 3 Albuquerque, NM

4 for Appellants 5 MEMORANDUM OPINION

6 WECHSLER, Judge.

7 {1} Respondents seek to appeal from the district court’s order denying their motion

8 for reconsideration of the issuance of the writ of mandamus. We issued a notice of

9 proposed summary disposition, proposing to dismiss for lack of a final, appealable

10 order. Respondents have filed a memorandum in opposition to our notice. Petitioners

11 have filed a memorandum in support of our notice, which includes a request for

12 attorney fees. [MIS 8-10] We have considered both responses to our notice. We

13 remain persuaded that Respondents seek to appeal from a non-final order. Also, we

14 are not persuaded to award attorney fees on appeal, because Petitioners are not

15 expected to file a motion to dismiss or a response in support of our notice. For the

16 reasons stated below, we dismiss Respondents’ appeal. Petitioners’ request for

17 attorney fees is hereby denied. Because we dismiss in this opinion, Petitioners’ motion

18 to dismiss is rendered moot.

19 {2} Our notice proposed to hold that the district court abused its discretion in

20 certifying the writ for immediate appeal because neither the writ nor the order denying

21 reconsideration of the writ resolves Petitioners’ single claim for mandamus relief. See

2 1 Khalsa v. Levinson, 1998-NMCA-110, ¶ 19, 125 N.M. 680, 964 P.2d 844 (stating that

2 “this Court has held that a trial court abuses its discretion by certifying an order that

3 determines an issue common to some of the claims but does not actually dispose of

4 any one claim”). We pointed out that the issuance of a peremptory writ of mandamus

5 is not a final, appealable order where the amount of damages was not resolved, when

6 the petition requested, and the writ ordered, an indeterminate amount of damages,

7 attorney fees, and costs. See Board of Trustees of Village of Los Ranchos de

8 Albuquerque v. Sanchez, 2004-NMCA-128, ¶¶ 4, 7, 11, 136 N.M. 528, 101 P.3d 339

9 (holding in mandamus proceeding that issue of damages that was not a “ministerial

10 or formulaic calculation” precluded finality). Where there is no determinate award of

11 damages, the single claim for mandamus relief has not been resolved. See id., ¶¶ 4, 7,

12 11-12.

13 {3} In their memorandum in opposition, Respondents first discuss the propriety of

14 the district court’s decision to grant the writ. [MIO 2-6] Respondents argue that the

15 district court lacked jurisdiction to hear this matter and should have denied

16 Petitioners’ petition for writ of mandamus on that basis. [Id.] Although Respondents

17 can raise these arguments after the district court has entered a final order, we will not

18 improperly exercise our jurisdiction over a non-final order to entertain such an

3 1 argument. See Coulston Found. v. Madrid, 2004-NMCA-060, ¶ 7, 135 N.M. 667, 92

2 P.3d 679 (“This Court’s jurisdiction lies from final, appealable orders.”).

3 {4} In response to the proposed analysis contained in our notice, Respondents

4 contend that the issue of damages is not intertwined with the underlying issue of

5 whether Ms. Baisan is entitled to a hearing before the local school board. [MIO 6-8]

6 Respondents also claim that the “no just reason for delay” determination is for the

7 district court to decide, not for Respondents to defend. [Id.] We do not agree.

8 {5} As indicated in our notice, the district court improperly determined that there

9 were multiple claims in this mandamus action and that the district court was permitted

10 under Rule 1-054(B)(1) NMRA to certify its decision on one of those claims for

11 immediate review. This is not a case in which there are multiple claims. Review of the

12 district court’s non-final writ was more appropriately pursued by Respondents’

13 interlocutory appeal, which this Court has denied by order. National Education

14 Association of N.M. v. Consolidated Central School District, No. 34,043 (N.M. Ct.

15 App. Nov. 15, 2014). Respondents should await appeal upon the entry of a final

16 determination of damages, costs, and disbursements, as required by statute. See

17 NMSA 1978, § 44-2-12 (1884) (“If judgment is given for the plaintiff, he shall

18 recover the damages which he has sustained, together with costs and disbursements.”).

4 1 {6} For the reasons stated in this opinion and in our notice, we dismiss for lack of

2 a final, appealable order.

3 {7} IT IS SO ORDERED.

4 ________________________________ 5 JAMES J. WECHSLER, Judge

6 WE CONCUR:

7 ________________________________ 8 RODERICK T. KENNEDY, Judge

9 ________________________________ 10 J. MILES HANISEE, Judge