COLE V. MCNEILL, 1984-NMCA-126, 102 N.M.
146, 692 P.2d 532 (Ct. App. 1984)
Charlene COLE, et al.,
Plaintiffs-Appellees,
vs.
Robert McNEILL, as Secretary for and the Health and
Environment Department of the State of New Mexico,
and The State of New Mexico,
Defendants-Appellants.
COURT OF APPEALS OF NEW MEXICO
1984-NMCA-126, 102 N.M. 146, 692 P.2d 532
APPEAL FROM THE DISTRICT COURT OF
VALENCIA COUNTY, Mayo T. Boucher, Judge
William G. Walker, General Counsel,
Clifford M. Rees, Special Assistant, Attorney General, New Mexico Health &
Environment Department, Santa Fe, New Mexico, Attorneys for
Defendants-Appellants.
Pedro G. Rael, Rael and Jarner, Anthony
Apodaca, Los Lunas, New Mexico, Attorneys for Plaintiffs-Appellees.
Wood, J., wrote the opinion. WE CONCUR: C.
FINCHER NEAL, Judge, WILLIAM W. BIVINS, Judge
{1} Plaintiffs, as employees
of the Los Lunas Hospital and Training School, sued to compel payment of
exemplary performance awards. The complaint, filed on February 7, 1984, alleges
that each plaintiff was recommended to receive an exemplary performance award,
that funds were appropriated to pay the awards and that defendant McNeill refused
to permit payment of the awards, contrary to law. Before the time for answer
had expired, and thus before defendants were in default, plaintiffs filed an
amended complaint. The record does not show that the amended complaint was
served on defendants.
See NMSA 1978, Civ.P.R. 5(a) (Repl. Pamp.1980). No
timely answer was filed to the complaint. The district court entered a judgment
by default on liability on March 20, 1984. The judgment reserves ruling on its
face on the issues of damages, interest on the awards, and reasonable attorney
fees, and provides that the issues are to be determined "at a hearing upon
notice to each Defendant." The record indicates that the hearing has not
taken place and that there has been no damage determination by the district
court.
{2} Defendants moved to set
aside the default judgment on April 4, 1984. This motion was denied by the
district court order of July 30, 1984. Defendants appeal from this July 30,
1984, order. Plaintiffs have moved to dismiss the appeal, arguing that
defendants have not appealed from a final order or decision.
{3} Civil appeals may be
taken from any final judgment or decision. NMSA 1978, Civ. App.R. 3(a) (Repl.
Pamp.1984). A judgment or decision is final if all issues of law and fact
necessary to be determined are in fact determined, and the case is completely
disposed of so far as the court has the power to dispose of it.
Johnson v. C
& H Construction Co., 78 N.M. 423,
432 P.2d 267 (Ct. App.1967). The
July 30, 1984, order is not a final judgment or decision.
{4} New Mexico decisions have
recognized that a judgment or order which reserves the issue of assessment of
damages for future determination is not a final order for purposes of appeal.
Texas
Pacific Oil Co. v. A.D. Jones Estate, Inc., 78 N.M. 348,
431 P.2d 490
(1967);
State ex rel. Sandoval v. Taylor, 43 N.M. 170,
87 P.2d 681
(1939). The default judgment in this action was granted only on liability. As
the district court stated: "There's no money involved in this particular
default judgment at this time." Issues remain to be decided by the
district court, thus there has been no final judgment or decision.
{5} Defendants cite
Wooley
v. Wicker, 75 N.M. 241,
403 P.2d 685 (1965) and
Gallegos v. Franklin,
89 N.M. 118,
547 P.2d 1160 (Ct. App.1976),
{*148}
for the proposition that any order denying a motion to set aside a default
judgment is a final, appealable order. While these decisions contain language
to that effect, they are distinguishable. None of the cases cited to use by
defendants involve the granting of a default judgment solely as to liability
with a reservation of the issue of damages, and a subsequent denial of a motion
to set aside the default on liability. Our decisions which have recognized the
appealability of such denial orders have involved default judgments which
awarded damages.
Armijo v. Armijo, 98 N.M. 518,
650 P.2d 40 (Ct.
App.1982);
Gallegos v. Franklin. No damage award has been made in this
action.
{6} There is a strong
judicial policy against piecemeal appeals. That policy is applicable here, and
will be applied. Orders denying motions to set aside default judgments where
the issue of damages has not been decided are not final judgments.
Cf.
Chronister v. State Farm Mutual Automobile Insurance Co., 67 N.M. 170,
353
P.2d 1059 (1960). Neither are they orders entered after entry of final judgment
which affect substantial rights. Defendants did not seek an interlocutory
appeal pursuant to NMSA 1978, Section
39-3-4(A).
{7} The July 30, 1984, order
was not an appealable decision. The appeal is dismissed. This dismissal does
not dispose of any contention on the merits. Should the trial court enter
judgment awarding damages to plaintiffs, defendants' appeal may properly assert
that the trial court lacked authority to enter the default judgment as to
liability and may properly assert that the trial court abused its discretion in
failing to set aside the default judgment as to liability. All we hold in this
opinion is that the appeal is premature for lack of an appealable decision.
WE CONCUR: C. FINCHER NEAL, Judge, WILLIAM W. BIVINS, Judge