Bank of Rio Grand v. Picacho Hills ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BANK OF THE RIO GRANDE, N.A.,
3 Plaintiff-Appellee,
4 v. No. 31,841
5 PICACHO HILLS UTILITY COMPANY,
6 INC., STEPHEN C. BLANCO,
7 Defendants-Appellants,
8 and
9 BLANCO DEVELOPMENT, LLC,
10 Defendant.
11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
12 James T. Martin, District Judge
13 Kemp Smith, LLP
14 Ken Slavin
15 James W. Brewer
16 El Paso, TX
17 for Appellee
18 Alex Chisholm
19 Albuquerque, NM
20 for Appellants
1 MEMORANDUM OPINION
2 VIGIL, Judge.
3 Defendants Picacho Hills Utility Company, Inc. and Stephen C. Blanco
4 (Defendants) seek to appeal from an order appointing a receiver. We issued a notice
5 of proposed summary disposition, proposing to dismiss the appeal on grounds that the
6 district court’s order is not final. Defendants have filed a memorandum in opposition,
7 which we have duly considered. Because we remain unpersuaded by Defendants’
8 arguments, we dismiss the appeal.
9 As we observed in the notice of proposed summary disposition, the right to
10 appeal is generally restricted to final judgments and decisions. See NMSA 1978, §
11 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d 1033,
12 1036-42 (1992). Insofar as Defendants’ counterclaims remain unresolved, the order
13 from which appeal has been taken is not final. See Watson v. Blakely, 106 N.M. 687,
14 691, 748 P.2d 984, 988 (Ct. App. 1987) (“An order disposing of the issues contained
15 in the complaint but not the counterclaim is not a final judgment.”), overruled on
16 other grounds by Kelly Inn No. 102, 113 N.M. at 239, 824 P.2d at 1041; and see, e.g.,
17 Healthsource, Inc. v. X-Ray Assoc. of N.M., 2005-NMCA-097, ¶¶ 11-15, 138 N.M.
18 70, 116 P.3d 861 (observing that appeal may only be taken if all issues have been
19 resolved by the order under consideration; where counterclaims remain, immediate
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1 appeal is generally unavailable); Tarin’s, Inc. v. Tinley, 2000-NMCA-048, ¶ 2, 129
2 N.M. 185, 3 P.3d 680 (holding that a judgment containing no mention of a
3 counterclaim was not a final, appealable order).
4 In their memorandum in opposition Defendants argue that an immediate appeal
5 would serve judicial economy, provide guidance relative to the continuing litigation,
6 and promote Defendants’ right to a jury trial. [MIO 1-5] We find these arguments to
7 be unpersuasive. The fact that an immediate appeal might seem desirable from
8 Defendants’ perspective does not supply any basis for departing from the numerous
9 previously-cited authorities, which clearly reflect that the underlying decision is not
10 directly appealable as a matter of right.
11 Accordingly, for the foregoing reasons stated above and in the notice of
12 proposed summary disposition, we conclude that the district court’s order is not
13 immediately reviewable. The appeal is therefore summarily dismissed.
14 IT IS SO ORDERED.
15 _______________________________
16 MICHAEL E. VIGIL, Judge
17 WE CONCUR:
18 _________________________________
19 LINDA M. VANZI, Judge
20 _________________________________
21 TIMOTHY L. GARCIA, Judge
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