Becerra v. Allstate ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 GABRIEL BECERRA,
3 Petitioner-Appellant,
4 v. NO. 32,456
5 ALLSTATE,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Nan G. Nash, District Judge
9 Gabriel Becerra
10 Albuquerque, NM
11 Pro Se Appellant
12 Simone, Roberts & Weiss, P.A.
13 Stephen M. Simone
14 David W. Frizzell
15 Albuquerque, NM
16 for Appellee
17 MEMORANDUM OPINION
18 VANZI, Judge.
1 {1} Appellant pro se, Gabriel Becerra, appeals the district court’s denial of his
2 motion to amend his counterclaim. We issued a notice of proposed summary
3 disposition proposing to dismiss for lack of a final order on January 16, 2013.
4 Appellant filed a timely memorandum in opposition. We have duly considered
5 Appellant’s arguments, and we remain unpersuaded. We therefore dismiss this
6 appeal.
7 {2} As an initial matter, we deny Appellant’s motion to amend the docketing
8 statement. Appellant’s motion to amend was filed on February 14, 2013. His
9 memorandum in opposition was filed on February 5, 2013. His motion to amend the
10 docketing statement is therefore untimely. See State v. Moore, 109 N.M. 119, 128-29,
11 782 P.2d 91, 100-01 (Ct. App. 1989) (stating that the time for filing a motion to
12 amend is with or before the first memorandum in opposition).
13 {3} This Court’s jurisdiction lies from final, appealable orders. See NMSA 1978,
14 § 39-3-2 (1966); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-35, 824 P.2d
15 1033, 1036-37 (1992). Whether an order is final, such that appeal is statutorily
16 authorized, is a jurisdictional question that this Court is required to raise on its own
17 motion. See Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815, 907 P.2d 994, 996
18 (1995); Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.
19 Generally, an order or judgment is not considered final unless all issues of law and
2
1 fact have been determined and the case disposed of by the trial court to the fullest
2 extent possible. See Kelly Inn, 113 N.M. at 236, 824 P.2d at 1038 (1992).
3 {4} Appellant seeks to appeal the district court’s denial of his motion to alter or
4 amend the judgment filed on September 10, 2012. [Amended DS 2, RP 2379, 2861]
5 Although the motion is entitled a motion to alter or amend the judgment, it in essence
6 asks the district court to reconsider its August 30, 2012 ruling, in which the district
7 court denied his motion to amend his counterclaim. [RP 2297, 2379] See Century
8 Bank v. Hymans, 120 N.M. 684, 689, 905 P.2d 722, 727 (Ct. App. 1995) (stating that
9 the substance of the motion, not its title, controls).
10 {5} In our notice of proposed summary disposition, we proposed to hold that the
11 district court’s order denying Appellant’s motion to amend his counterclaim and its
12 order denying reconsideration were not final appealable orders. See Clancy v.
13 Gooding, 98 N.M. 252, 254, 647 P.2d 885, 887 (Ct. App. 1982) (“Ordinarily, an order
14 denying a motion to amend a complaint is not final for purposes of appeal.”). In
15 Clancy, we held that an order denying a motion to amend a complaint to add an
16 insurance company as a defendant was not a final order where there was no indication
17 that the plaintiff’s cause of action against the insurance company would be effectively
18 lost or irreparably damaged as a result of the court’s denial of her motion to amend.
19 Id. at 255, 647 P.2d at 888. Additionally, in general, an order or judgment is not
20 considered final unless all issues of law and fact have been determined and the case
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1 disposed of by the trial court to the fullest extent possible. See Kelly Inn, 113 N.M.
2 at 236, 824 P.2d at 1038. Based on our review of the record, the district court’s denial
3 of Appellant’s motion did not dispose of the case to the fullest extent possible because
4 other claims and counterclaims involving the parties remained to be litigated. [RP
5 2300-2301]
6 {6} In his memorandum in opposition, Appellant states that the district court’s
7 denial of his motion to amend the complaint will result in his cause of action being
8 lost or irreparably harmed due to issues of waiver and estoppel. [MIO 3] However,
9 Appellant does not elaborate beyond this general assertion. We therefore do not
10 believe that Appellant has demonstrated how his cause of action would be irreparably
11 lost or damaged as a result of the district court’s denial to amend the counterclaim.
12 See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our
13 courts have repeatedly held that, in summary calendar cases, the burden is on the party
14 opposing the proposed disposition to clearly point out errors in fact or law.”); see also
15 Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not
16 search the record for facts, arguments, and rulings in order to support generalized
17 arguments.”).
18 {7} Appellant also argues that the district court’s order denying his motion is too
19 important to be denied review and “too independent of the cause itself to require that
20 appellate consideration be deferred until the whole case is adjudicated.” [MIO 3]
4
1 Appellant also states that his appeal is “directly related to matters of first impression,
2 clarification or modification to existing common law, statutes, or Insurance Code
3 which are in dire need of being addressed by a higher court.” [MIO 3-4] Again,
4 however, Appellant only makes generalized assertions and provides no information
5 or citation to relevant authority to support these claims. See Republican Party of N.M.
6 v. N.M. Taxation & Revenue Dep’t, 2010-NMCA-080, ¶ 38, 148 N.M. 877, 242 P.3d
7 444 (“[W]e do not review unclear or inadequately developed arguments or arguments
8 for which no authority has been cited.”); see also In re Adoption of Doe, 100 N.M.
9 764, 765, 676 P.2d 1329, 1330 (1984) (stating that where a party cites no authority to
10 support an argument, we may assume no such authority exists). Finally, Appellant
11 asserts, without citation to authority, that an order denying leave to file an amended
12 or supplemented counterclaim is final for purposes of appeal. [MIO 3] This Court
13 will not consider propositions that are unsupported by citation to authority. ITT Educ.
14 Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959
15 P.2d 969. We therefore reject this argument.
16 {8} For these reasons, we dismiss this appeal. We note that, once the district court
17 enters a final order in this case, Appellant is free to appeal in accordance with our
18 rules of procedure.
19 {9} IT IS SO ORDERED.
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1 __________________________________
2 LINDA M. VANZI, Judge
3 WE CONCUR:
4 _________________________________
5 JAMES J. WECHSLER, Judge
6 _________________________________
7 JONATHAN B. SUTIN, Judge
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