Court of Appeals of New Mexico

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

DUSTY STONE,
Plaintiff-Appellant,
v.
ROBIN H. SMITH and
ALETA SMITH,
Defendants-Appellees.

No. 32,583

COURT OF APPEALS OF NEW MEXICO

February 7, 2013

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY, Albert J. Mitchell, District Judge

COUNSEL

Dusty Stone, San Jon, NM, Pro Se Appellant

Donald C. Schutte, Tucumcari, NM, for Appellees

JUDGES

LINDA M. VANZI, Judge. WE CONCUR: M. MONICA ZAMORA, Judge, J. MILES HANISEE, Judge

AUTHOR: LINDA M. VANZI

MEMORANDUM OPINION

VANZI, Judge.

Plaintiff seeks to appeal from an order awarding summary judgment to Defendants. We issued a notice of proposed summary disposition, proposing to dismiss on the ground that the district court’s order is not final. Plaintiff has filed a memorandum in opposition, which we have duly considered. Because we remain unpersuaded that this matter is properly before us, we dismiss the appeal.

As we observed in the notice of proposed summary disposition, the right to appeal is generally restricted to final judgments and decisions. See NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 235-36, 824 P.2d 1033, 1037-38 (1992). Insofar as Defendants’ counterclaims remain unresolved, the order from which appeal has been taken is not final. See Watson v. Blakely, 106 N.M. 687, 691, 748 P.2d 984, 988 (Ct. App. 1987) (“An order disposing of the issues contained in the complaint but not the counterclaim is not a final judgment.”), overruled on other grounds by Kelly Inn, 113 N.M. at 239, 824 P.2d at 1041; and see, e.g., Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-NMCA-097, ¶¶ 11-15, 138 N.M. 70, 116 P.3d 861 (observing that appeal may only be taken if all issues have been resolved by the order under consideration; where counterclaims remain, immediate appeal is generally unavailable).

In his memorandum in opposition, we understand Plaintiff to argue that the district court’s order should be regarded as final because it contains an award of summary judgment. [MIO 1-3] However, not all awards of summary judgment are final. In a case such as this, where an award of summary judgment resolves all claims associated with the complaint but leaves one or more counterclaims unresolved, the judgment cannot be regarded as final. See, e.g., City of Albuquerque v. Jackson, 101 N.M. 457, 458-59, 684 P.2d 543, 544-45 (Ct. App. 1984) (holding that although an award of summary judgment disposed of all issues in connection with the original complaint, insofar as it left a counterclaim unresolved, it was not a final judgment).

We perceive no basis for departing from the numerous previously-cited authorities, which clearly reflect that the underlying decision is not directly appealable as a matter of right. Accordingly, for the reasons stated above and in the notice of proposed summary disposition, we conclude that the district court’s order is not immediately reviewable. The appeal is therefore summarily dismissed.

IT IS SO ORDERED.

LINDA M. VANZI, Judge

WE CONCUR:

M. MONICA ZAMORA, Judge

J. MILES HANISEE, Judge