Dubeau v. Hogden ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MARION DUBEAU,
3 Petitioner-Appellee,
4 v. No. 36,018
5 JOHN HOGDEN,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 Matthew J. Wilson, District Judge
9 Cuddy & McCarthy, LLP
10 Julie A. Wittenberger
11 Santa Fe, NM
12 for Appellee
13 John Hogden
14 Santa Fe, NM
15 Pro Se Appellant
16 MEMORANDUM OPINION
17 HANISEE, Judge.
18 {1} Respondent John Hogden, a self-represented litigant, appeals from the district
19 court’s order denying his request that the district court judge recuse himself and
1 adopting the priority consultation recommendations. [2 RP 122] We entered a notice
2 of proposed summary disposition, proposing to dismiss for lack of a final order.
3 Respondent has filed a memorandum in opposition (MIO) to our notice, challenging
4 our proposed disposition. We are unpersuaded by Respondent’s arguments and
5 therefore dismiss.
6 {2} On appeal, Respondent raises eight issues relative to the district court’s rulings
7 in post-decree proceedings. Our calendar notice did not address the merits of
8 Respondent’s issues because, we explained, that it appeared that this case was not
9 properly before the Court. [CN 2-3] In response, Respondent
10 disputes this Court s proposal that there is no final
11 order in this case. [MIO 1-4] Respondent seeks a
12 definition of what it means to dispose of a case to
13 the fullest extent possible[.] [MIO 1] We direct him
14 to the following language, set forth by our Supreme
15 Court in Kelly Inn No. 102, Inc. v. Kapnison:
16 To distill from all of this a general
17 principle that will provide an easy answer to
18 the question of when a judgment is final
19 and when it is not is probably a hopeless
20 undertaking. We agree with the United States
2
1 Supreme Court that it is impossible to
2 devise a formula to resolve all marginal
3 cases coming within the twilight zone of
4 finality. One formula, not yet mentioned in
5 this opinion, has been phrased by our court
6 of appeals as follows: The test of whether a
7 judgment is final so as to permit the taking
8 of an immediate appeal, lies in the effect
9 the judgment has upon the rights of some
10 or all of the parties. But this, of course,
11 fails to explain what kind of effect upon the
12 rights of the parties is necessary for an
13 order to be considered as final.
14 We probably can do little better than to
15 propose the following guidelines, which may
16 answer some but undoubtedly will not
17 answer all of the difficult questions falling
18 into the twilight zone: Where a judgment
19 declares the rights and liabilities of the
20 parties to the underlying controversy, a
21 question remaining to be decided thereafter
22 will not prevent the judgment from being
23 final if resolution of that question will not
24 alter the judgment or moot or revise
25 decisions embodied therein. Where a
26 postjudgment request, such as one for attorney[] fees, raises
27 issues “collateral to” and “separate from” the decision on the merits,
28 such a request will not destroy the finality of the decision;
29 proceedings to carry out or give effect to
30 the judgment do not render the judgment
31 nonfinal, because the trial court always
3
1 retains jurisdiction to enforce its
2 unsuperseded judgment.
3 1992-NMSC-005, 20-21, 113 N.M. 231, 824 P.2d
4 1033 (internal quotation marks and citations
5 omitted).
6 {3} In this case, as we explained in our calendar
7 notice, the district court has yet to rule on
8 Respondent s motion for the court to refrain from
9 court-ordered defamation. [1 RP 113; CN 3] Because
10 the motion is directed at certain findings contained
11 in the priority consultation, which the district court
12 adopted as an order of the court the order from
13 which Respondent seeks to appeal a ruling on the
14 motion could alter, moot, or revise the judgment of
15 the district court. In other words, the motion is not
16 collateral to or separate from the decision on the
17 merits. Accordingly, the decision is non-final. See id.
4
1 {4} We acknowledge the possibility that the district
2 court is under the impression, as Respondent
3 suggests, that it has resolved all outstanding issues.
4 [MIO 2-3] However, that does not change this
5 Court s assessment of finality in this case. We
6 suggest that Respondent invoke a ruling on the
7 motion and re-file his appeal, if he so desires, once
8 the district court explicitly resolves the outstanding
9 motion.
10 {5} For the reasons set forth in our notice of proposed disposition and in this
11 opinion, we dismiss.
12 {6} IT IS SO ORDERED.
13
14 J. MILES HANISEE, Judge
15 WE CONCUR:
16
17 TIMOTHY L. GARCIA, Judge
5
1
2 M. MONICA ZAMORA, Judge
6