Ogden v. Torres

• Court: New Mexico Court of Appeals
• Decided: December 11, 2009
• Docket: 29,746
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 CARLOS OGDEN and 8 HENRY BURK FLEMING,

9 Plaintiffs-Appellees,

10 v. NO. 29,746

11 PETE Q. TORRES and 12 ROSEMARY MACDONALD,

13 Defendants-Appellants.

14 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 15 Gary Jeffreys, District Judge

16 Jeffrey W. Smith 17 Deming, NM

18 for Appellees

19 Peter A. Keys 20 Silver City, NM

21 for Appellants

22 MEMORANDUM OPINION

23 WECHSLER, Judge. 1 Pete Torres and Rosemary McDonald (Defendants) seek to appeal from an

2 amended default judgment and order denying relief pursuant to Rule 1-060(B)

3 NMRA. We issued a notice of proposed summary disposition, proposing to dismiss

4 the appeal principally for want of a final order. Defendants have filed a memorandum

5 in opposition. After due consideration, we remain unpersuaded that this matter is

6 properly before us. We therefore dismiss.

7 As we explained in the notice of proposed summary disposition, the right to

8 appeal is generally restricted to final judgments and decisions. See NMSA 1978, §

9 39-3-2 (1966); see also Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40,

10 824 P.2d 1033, 1036-42 (1992). Whether an order is final, such that appeal is

11 statutorily authorized, is a jurisdictional question that this Court is required to raise

12 on its own motion. Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964

13 P.2d 844. “[F]or purposes of appeal, an order or judgment is not considered final

14 unless all issues of law and fact have been determined and the case disposed of by the

15 trial court to the fullest extent possible.” B.L. Goldberg & Assocs., Inc. v. Uptown,

16 Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985).

17 As we previously indicated, the order from which Defendants seek to appeal

18 does not resolve the underlying issues to the fullest extent possible. To the contrary,

2 1 the question of damages, which was specifically and repeatedly raised in the

2 complaint, [RP 1-15] remains pending for decision “at a later date.” [RP 60] Under

3 such circumstances, the underlying order cannot be regarded as final and appealable.

4 See Principal Mut. Life Ins. Co. v. Straus, 116 N.M. 412, 416, 863 P.2d 447, 451

5 (1993) (observing that, “when a request for damages is part of a declaratory action . . .

6 the judgment is not final until the damage award is quantified,” and holding that an

7 order addressing liability was not final because the amount of the damages and

8 attorney fees had not been determined); Cole v. McNeill, 102 N.M. 146, 148, 692 P.2d

9 532, 534 (Ct. App. 1984) (holding that an order denying a motion to set aside a default

10 judgment was not final and appealable when a question of damages remained

11 unresolved).

12 In their memorandum in opposition, Defendants provide no response to our

13 stated concerns about the lack of a final, appealable order. Instead, they focus

14 exclusively on the question of Rosemary McDonald’s standing. [MIO 1-4] Although

15 her apparent lack of standing remains a concern, the absence of a final order renders

16 this issue superfluous.

17 Accordingly, for the reasons stated above and in our notice of proposed

18 summary disposition, this appeal is dismissed.

3 1 IT IS SO ORDERED.

2 _______________________________ 3 JAMES J. WECHSLER, Judge 4 WE CONCUR:

5 _________________________________ 6 MICHAEL D. BUSTAMANTE, Judge

7 _________________________________ 8 JONATHAN B. SUTIN, Judge