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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ANITA JEAN RUDOLPH, 3 DECEASED, BY THE PERSONAL 4 REPRESENTATIVE OF THE 5 WRONGFUL DEATH ESTATE, 6 PAUL RUDOLPH,
7 Plaintiff-Appellee,
8 v. No. 33,195
9 MANOR ESTATES INC., D/B/A 10 PRINCETON PLACE; PRINCE & 11 LUFFEY, LLC, D/B/A PARAMOUNT 12 HEALTHCARE CONSULTANTS; 13 and DANNY PRINCE,
14 Defendants-Appellants,
15 and
16 WW HEALTHCARE, LLC; 17 HORACE WINCHESTER; and 18 JERRY WILLIAMSON,
19 Defendants,
20 and
21 WW HEALTHCARE, LLC; 22 HORACE WINCHESTER; and 23 JERRY WILLIAMSON,
24 Third-Party Plaintiffs, 1 v.
2 IRONSHORE SPECIALTY 3 INSURANCE COMPANY, a 4 foreign insurance company, and 5 VAN GILDER INSURANCE 6 CORPORATION, a foreign 7 insurance company,
8 Third-Party Defendants,
9 and
10 IRONSHORE SPECIALTY 11 INSURANCE COMPANY,
12 Counterclaimant and Fourth-Party Plaintiff,
13 v.
14 WW HEALTHCARE, LLC; 15 HORACE WINCHESTER; JERRY 16 WILLIAMSON; AND MANOR 17 ESTATES, INC.,
18 Counterdefendants and Fourth-Party Defendants.
19 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 20 Carl J. Butkus, District Judge
21 Harvey Law Firm, LLC 22 Jennifer J. Foote 23 Dusti D. Harvey 24 Albuquerque, NM
25 for Appellee
26 Frank Alvarez
2 1 Dallas, Tx
2 Hermes Sargent Bates, LLP 3 Kimberly A. Wilson 4 Christina Gratke Nason 5 Dallas, TX
6 for Appellants Manor Estates, Inc. Horace Winchester, 7 Danny Prince, Prince & Luffey
8 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 9 Spencer L. Edelman 10 Michelle A. Hernandez 11 Albuquerque, NM
12 for Defendant WW Healthcare, LLC
13 Rodey, Dickason, Sloan, Akin & Robb, P.A. 14 Seth Sparks 15 Sandra L. Beerle 16 Tyler M. Cuff 17 Jocelyn Drennan 18 Albuquerque, NM
19 for Third-Party Defendant Van Gilder Ins. Corp.
20 Bauman, Dow, McIntosh & Leon, P.C. 21 Mark C. Dow 22 Albuquerque, NM
23 for Third-Party Plaintiff Jerry Williamson
24 Civerolo, Gralow, Hill & Curtis, P.A. 25 Lisa Entress Pullen 26 Albuquerque, NM
27 for Counterclaimant/Fourth-Party Plaintiff 28 Ironshore Specialty Insurance Company
3 1 MEMORANDUM OPINION
2 FRY, Judge.
3 {1} Defendants appeal from the district court’s order denying their motion to
4 dismiss and to compel arbitration. We issued a notice of proposed summary
5 disposition, proposing summary reversal, on the grounds that Estate of Krahmer ex
6 rel. Peck v. Laurel Healthcare Providers, LLC, 2014-NMCA-001, ¶¶ 11, 13, 315 P.3d
7 298, holds that the New Mexico Wrongful Death Act binds a representative of the
8 estate to arbitrate if the arbitration agreement would have bound the decedent to
9 arbitrate his or her claims. We recognized that the district court’s order addressed
10 Plaintiff’s remaining claims for relief from the arbitration agreement, even though it
11 did not need to do so. Because we were not persuaded that the district court’s order
12 finally resolved those issues, however, we proposed to remand for further
13 proceedings.
14 {2} In response to our notice, Plaintiff agrees with this Court’s proposed disposition
15 and requests that this Court remand for the district court to make final determinations
16 regarding the enforceability of the arbitration clause. [Plaintiff’s Response 2-3]
17 Defendants also filed a response to our notice, agreeing that the district court’s order
18 should be reversed based on the holding in Krahmer and agreeing that the remaining
19 issues surrounding the arbitrability of Plaintiff’s claims were not finally resolved,
4 1 [MIO 1-2, 8-9] except for one. [MIO 2-8] Defendants ask that we address that issue
2 now and reverse the district court on that issue, also. [MIO 2-8] We are not persuaded
3 to address the issue now. We reverse on the basis of Krahmer and remand for the
4 district court to enter a final order resolving all the remaining claims regarding the
5 enforceability and/or applicability of the arbitration agreement.
6 {3} In their response to our notice, Defendants explain why they believe the district
7 court’s ruling—that Plaintiff’s personal injury claims resulting from rape fall outside
8 the scope of the arbitration agreement—is final as to that claim and why they believe
9 the ruling was in error. [MIO 2-8] Defendants do not, however, explain why they
10 believe we should reach out to that issue now when all of Plaintiff’s remaining claims
11 regarding the enforceability of the arbitration agreement have not been finally
12 resolved.
13 {4} Generally, “an order or judgment is not considered final unless all issues of law
14 and fact have been determined and the case disposed of by the trial court to the fullest
15 extent possible.” Executive Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008,
16 ¶ 5, 125 N.M. 78, 957 P.2d 63 (internal quotation marks and citation omitted). It is
17 clear that in this case the district court did not finally resolve whether Plaintiff’s
18 claims should be arbitrated. Even assuming that Defendants are correct that the district
19 court conclusively determined that Plaintiff’s personal injuries claim does not fall
5 1 within the arbitration agreement, it is undisputed that the district court has not
2 resolved whether the arbitration agreement is substantively or procedurally
3 unconscionable or whether it is grounded in mutual assent. The district court did not
4 include language in its order expressly ruling that its judgment is final as to Plaintiff’s
5 personal injury claim and that there is no just reason to delay an immediate appeal
6 therefrom, as is required under Rule 1-054(B)(1) NMRA. Cf. Collier v. Pennington,
7 2003-NMCA-064, ¶ 15, 133 N.M. 728, 69 P.3d 238 (stating that “an order that sends
8 some of the claims to arbitration and retains other claims for resolution by the district
9 court without finally resolving any of the claims between the parties is not final unless
10 the district court certifies it under Rule 1-054(B)(1) by determining that there is no
11 just reason for delay and directing that judgment be entered”).
12 {5} While we recognize that it could be argued that the district court had no cause
13 to include language required by Rule 1-054(B)(1) in its order, because the order
14 denied the motion to compel arbitration on other grounds, we also recognize that the
15 district court had no cause to reach the alternative, remaining issues at all. If the
16 district court reached those issues in anticipation that its ruling under Krahmer might
17 be reversed, then it also anticipated appellate review and chose not to include
18 language expressly stating that any of the alternative grounds for relief from the
19 arbitration agreement should be reviewed immediately.
6 1 {6} In any event, we believe that it would have been error to certify the issue
2 regarding the arbitrability of Plaintiff’s personal injury claim because it is intertwined
3 with the unresolved issues—in that it could be mooted by a final judgment on the
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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 ANITA JEAN RUDOLPH, 3 DECEASED, BY THE PERSONAL 4 REPRESENTATIVE OF THE 5 WRONGFUL DEATH ESTATE, 6 PAUL RUDOLPH,
7 Plaintiff-Appellee,
8 v. No. 33,195
9 MANOR ESTATES INC., D/B/A 10 PRINCETON PLACE; PRINCE & 11 LUFFEY, LLC, D/B/A PARAMOUNT 12 HEALTHCARE CONSULTANTS; 13 and DANNY PRINCE,
14 Defendants-Appellants,
15 and
16 WW HEALTHCARE, LLC; 17 HORACE WINCHESTER; and 18 JERRY WILLIAMSON,
19 Defendants,
20 and
21 WW HEALTHCARE, LLC; 22 HORACE WINCHESTER; and 23 JERRY WILLIAMSON,
24 Third-Party Plaintiffs, 1 v.
2 IRONSHORE SPECIALTY 3 INSURANCE COMPANY, a 4 foreign insurance company, and 5 VAN GILDER INSURANCE 6 CORPORATION, a foreign 7 insurance company,
8 Third-Party Defendants,
9 and
10 IRONSHORE SPECIALTY 11 INSURANCE COMPANY,
12 Counterclaimant and Fourth-Party Plaintiff,
13 v.
14 WW HEALTHCARE, LLC; 15 HORACE WINCHESTER; JERRY 16 WILLIAMSON; AND MANOR 17 ESTATES, INC.,
18 Counterdefendants and Fourth-Party Defendants.
19 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 20 Carl J. Butkus, District Judge
21 Harvey Law Firm, LLC 22 Jennifer J. Foote 23 Dusti D. Harvey 24 Albuquerque, NM
25 for Appellee
26 Frank Alvarez
2 1 Dallas, Tx
2 Hermes Sargent Bates, LLP 3 Kimberly A. Wilson 4 Christina Gratke Nason 5 Dallas, TX
6 for Appellants Manor Estates, Inc. Horace Winchester, 7 Danny Prince, Prince & Luffey
8 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 9 Spencer L. Edelman 10 Michelle A. Hernandez 11 Albuquerque, NM
12 for Defendant WW Healthcare, LLC
13 Rodey, Dickason, Sloan, Akin & Robb, P.A. 14 Seth Sparks 15 Sandra L. Beerle 16 Tyler M. Cuff 17 Jocelyn Drennan 18 Albuquerque, NM
19 for Third-Party Defendant Van Gilder Ins. Corp.
20 Bauman, Dow, McIntosh & Leon, P.C. 21 Mark C. Dow 22 Albuquerque, NM
23 for Third-Party Plaintiff Jerry Williamson
24 Civerolo, Gralow, Hill & Curtis, P.A. 25 Lisa Entress Pullen 26 Albuquerque, NM
27 for Counterclaimant/Fourth-Party Plaintiff 28 Ironshore Specialty Insurance Company
3 1 MEMORANDUM OPINION
2 FRY, Judge.
3 {1} Defendants appeal from the district court’s order denying their motion to
4 dismiss and to compel arbitration. We issued a notice of proposed summary
5 disposition, proposing summary reversal, on the grounds that Estate of Krahmer ex
6 rel. Peck v. Laurel Healthcare Providers, LLC, 2014-NMCA-001, ¶¶ 11, 13, 315 P.3d
7 298, holds that the New Mexico Wrongful Death Act binds a representative of the
8 estate to arbitrate if the arbitration agreement would have bound the decedent to
9 arbitrate his or her claims. We recognized that the district court’s order addressed
10 Plaintiff’s remaining claims for relief from the arbitration agreement, even though it
11 did not need to do so. Because we were not persuaded that the district court’s order
12 finally resolved those issues, however, we proposed to remand for further
13 proceedings.
14 {2} In response to our notice, Plaintiff agrees with this Court’s proposed disposition
15 and requests that this Court remand for the district court to make final determinations
16 regarding the enforceability of the arbitration clause. [Plaintiff’s Response 2-3]
17 Defendants also filed a response to our notice, agreeing that the district court’s order
18 should be reversed based on the holding in Krahmer and agreeing that the remaining
19 issues surrounding the arbitrability of Plaintiff’s claims were not finally resolved,
4 1 [MIO 1-2, 8-9] except for one. [MIO 2-8] Defendants ask that we address that issue
2 now and reverse the district court on that issue, also. [MIO 2-8] We are not persuaded
3 to address the issue now. We reverse on the basis of Krahmer and remand for the
4 district court to enter a final order resolving all the remaining claims regarding the
5 enforceability and/or applicability of the arbitration agreement.
6 {3} In their response to our notice, Defendants explain why they believe the district
7 court’s ruling—that Plaintiff’s personal injury claims resulting from rape fall outside
8 the scope of the arbitration agreement—is final as to that claim and why they believe
9 the ruling was in error. [MIO 2-8] Defendants do not, however, explain why they
10 believe we should reach out to that issue now when all of Plaintiff’s remaining claims
11 regarding the enforceability of the arbitration agreement have not been finally
12 resolved.
13 {4} Generally, “an order or judgment is not considered final unless all issues of law
14 and fact have been determined and the case disposed of by the trial court to the fullest
15 extent possible.” Executive Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008,
16 ¶ 5, 125 N.M. 78, 957 P.2d 63 (internal quotation marks and citation omitted). It is
17 clear that in this case the district court did not finally resolve whether Plaintiff’s
18 claims should be arbitrated. Even assuming that Defendants are correct that the district
19 court conclusively determined that Plaintiff’s personal injuries claim does not fall
5 1 within the arbitration agreement, it is undisputed that the district court has not
2 resolved whether the arbitration agreement is substantively or procedurally
3 unconscionable or whether it is grounded in mutual assent. The district court did not
4 include language in its order expressly ruling that its judgment is final as to Plaintiff’s
5 personal injury claim and that there is no just reason to delay an immediate appeal
6 therefrom, as is required under Rule 1-054(B)(1) NMRA. Cf. Collier v. Pennington,
7 2003-NMCA-064, ¶ 15, 133 N.M. 728, 69 P.3d 238 (stating that “an order that sends
8 some of the claims to arbitration and retains other claims for resolution by the district
9 court without finally resolving any of the claims between the parties is not final unless
10 the district court certifies it under Rule 1-054(B)(1) by determining that there is no
11 just reason for delay and directing that judgment be entered”).
12 {5} While we recognize that it could be argued that the district court had no cause
13 to include language required by Rule 1-054(B)(1) in its order, because the order
14 denied the motion to compel arbitration on other grounds, we also recognize that the
15 district court had no cause to reach the alternative, remaining issues at all. If the
16 district court reached those issues in anticipation that its ruling under Krahmer might
17 be reversed, then it also anticipated appellate review and chose not to include
18 language expressly stating that any of the alternative grounds for relief from the
19 arbitration agreement should be reviewed immediately.
6 1 {6} In any event, we believe that it would have been error to certify the issue
2 regarding the arbitrability of Plaintiff’s personal injury claim because it is intertwined
3 with the unresolved issues—in that it could be mooted by a final judgment on the
4 remaining issues—and it could result in piecemeal appeals. See Khalsa v. Levinson,
5 1998-NMCA-110, ¶¶ 20-21, 125 N.M. 680, 964 P.2d 844 (holding that even where
6 a district court exercises its discretion to make its ruling final under Rule 1-054(B)(1),
7 we will hold that the district court abused its discretion in doing so where the issues
8 are intertwined with unresolved claims and deny appellate review as premature). Our
9 notice contemplated an argument from Defendants that the district court may have
10 entered final rulings on some but not all of the alternative issues surrounding the
11 arbitrability of Plaintiff’s claims that we may review now. We proposed to disagree
12 that the rulings were final, and we also relied on our long-standing policies against
13 piecemeal appeals and facilitating meaningful appellate review of rulings based on a
14 sufficiently developed record. See, e.g., Burris-Awalt v. Knowles, 2010-NMCA-083,
15 ¶¶ 8-10, 148 N.M. 616, 241 P.3d 617 (discussing the policy against piecemeal appeals
16 and the need to balance judicial economy with the facilitation of meaningful appellate
17 review based on a sufficiently developed record). Defendants have not made any
18 compelling argument in response to our concern about finality and judicial efficiency.
7 1 {7} In the absence of certifying language from the district court, and without
2 compelling argument from Defendants about why immediate review of the district
3 court’s ruling is appropriate under the circumstances, we decline to address the merits
4 of the district court’s alternative ruling on only one of Plaintiff’s multiple claims.
5 {8} For the reasons set forth in the notice, we reverse the district court’s denial of
6 Defendants’ motion to compel arbitration on the basis that the New Mexico Wrongful
7 Death Act binds a representative of the estate to arbitrate if the arbitration agreement
8 would have bound the decedent to arbitrate his or her claims under Krahmer, 2014-
9 NMCA-001, ¶¶ 11, 13. We do not decide Defendants’ remaining issues and remand
10 for further proceedings on those matters.
11 {9} IT IS SO ORDERED.
12 13 CYNTHIA A. FRY, Judge
14 WE CONCUR:
15 16 MICHAEL D. BUSTAMANTE, Judge
17 18 TIMOTHY L. GARCIA, Judge