Stone v. Smith

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DUSTY STONE,
3 Plaintiff-Appellant,
4 v. NO. 32,583
5 ROBIN H. SMITH and
6 ALETA SMITH,
7 Defendants-Appellees.
8 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
9 Albert J. Mitchell, District Judge
10 Dusty Stone
11 San Jon, NM
12 Pro Se Appellant
13 Donald C. Schutte
14 Tucumcari, NM
15 for Appellees
16 MEMORANDUM OPINION
17 VANZI, Judge.
1 Plaintiff seeks to appeal from an order awarding summary judgment to
2 Defendants. We issued a notice of proposed summary disposition, proposing to
3 dismiss on the ground that the district court’s order is not final. Plaintiff has filed a
4 memorandum in opposition, which we have duly considered. Because we remain
5 unpersuaded that this matter is properly before us, we dismiss the appeal.
6 As we observed in the notice of proposed summary disposition, the right to
7 appeal is generally restricted to final judgments and decisions. See NMSA 1978, §
8 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 235-36, 824 P.2d 1033,
9 1037-38 (1992). Insofar as Defendants’ counterclaims remain unresolved, the order
10 from which appeal has been taken is not final. See Watson v. Blakely, 106 N.M. 687,
11 691, 748 P.2d 984, 988 (Ct. App. 1987) (“An order disposing of the issues contained
12 in the complaint but not the counterclaim is not a final judgment.”), overruled on
13 other grounds by Kelly Inn, 113 N.M. at 239, 824 P.2d at 1041; and see, e.g.,
14 Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-NMCA-097, ¶¶ 11-15, 138 N.M.
15 70, 116 P.3d 861 (observing that appeal may only be taken if all issues have been
16 resolved by the order under consideration; where counterclaims remain, immediate
17 appeal is generally unavailable).
18 In his memorandum in opposition, we understand Plaintiff to argue that the
19 district court’s order should be regarded as final because it contains an award of
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1 summary judgment. [MIO 1-3] However, not all awards of summary judgment are
2 final. In a case such as this, where an award of summary judgment resolves all claims
3 associated with the complaint but leaves one or more counterclaims unresolved, the
4 judgment cannot be regarded as final. See, e.g., City of Albuquerque v. Jackson, 101
5 N.M. 457, 458-59, 684 P.2d 543, 544-45 (Ct. App. 1984) (holding that although an
6 award of summary judgment disposed of all issues in connection with the original
7 complaint, insofar as it left a counterclaim unresolved, it was not a final judgment).
8 We perceive no basis for departing from the numerous previously-cited
9 authorities, which clearly reflect that the underlying decision is not directly appealable
10 as a matter of right. Accordingly, for the reasons stated above and in the notice of
11 proposed summary disposition, we conclude that the district court’s order is not
12 immediately reviewable. The appeal is therefore summarily dismissed.
13 IT IS SO ORDERED.
14 __________________________________
15 LINDA M. VANZI, Judge
16 WE CONCUR:
17 _________________________________
18 M. MONICA ZAMORA, Judge
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1 _________________________________
2 J. MILES HANISEE, Judge
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