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SAMMIE SINGH, SR., SAMMIE SINGH, JR., ED
PROVENCIO, LUPE GARCIA, JONNY DIAZ and
JOHN FLEMING and DR. NATHAN E. BOYD
ESTATE, BY JAMES SCOTT BOYD, PERSONAL
REPRESENTATIVE, and JAMES SCOTT BOYD, individually,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, STATE OF NEW
MEXICO, ELEPHANT BUTTE IRRIGATION DISTRICT
and CITY OF LAS CRUCES,
Defendants-Appellees.
Consolidated with
SAMMIE SINGH, SR., SAMMIE SINGH, JR., ED
PROVENCIO, LUPE GARCIA, JONNY DIAZ and
JOHN FLEMING and DR. NATHAN E. BOYD ESTATE,
BY JAMES SCOTT BOYD, PERSONAL REPRESENTATIVE,
and JAMES SCOTT BOYD, individually,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, STATE OF NEW
MEXICO, ELEPHANT BUTTE IRRIGATION DISTRICT
and CITY OF LAS CRUCES,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY, James
J. Wechsler, District Judge
Robert S. Simon, Albuquerque, NM, for
Appellants
Environment & Natural Resources
Division, United States Department of Justice, Matthew Littleton, Washington,
DC, for Appellee United States of America
Law Office of Steven L. Hernandez, P.C.,
Samantha R. Barncastle, Las Cruces, NM, for Appellee Elephant Butte Irrigation
District
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, TIMOTHY L. GARCIA, Judge
AUTHOR: MICHAEL D. BUSTAMANTE
{1} Appellants filed
separate appeals from two orders entered by the district court—the February 17,
2014, order granting partial summary judgment on certain issues, denying
Appellants’ motion for summary judgment, and setting a scheduling conference
[No.
33,968 RP 4664], as well as the June 18, 2014, order denying Appellants’
motion to stay further proceedings in Stream System 97-104
[No. 33,968 RP
5335]. Appellees United States and Elephant Butte Irrigation District filed
motions to dismiss each appeal for lack of appellate jurisdiction. Appellants
filed responses to the motions to dismiss, and we granted Appellees permission
to file a reply brief in Case No. 33,968. Having duly considered each of these
filings, we consolidate the appeals and dismiss both for the reasons stated in
this Opinion. We note that any citations in this Opinion to the record proper
are to the record proper filed in Case No. 33,968, since that record is much
less voluminous.
{2} Initially,
we deny Appellants’ request to file a sur-reply brief in Case No. 33,968. The
sur-reply brief proffered by Appellants is thirty (30) pages long, includes
attachments that have been previously submitted to this Court, and offers
nothing new for our consideration. Counsel for Appellants is cautioned to
refrain from repetitious and burdensome filings in the future.
{3} We also note that
counsel for Appellants has failed to bring up a record adequate to allow us to
determine whether we have jurisdiction over either one of these appeals. In
both appeals, Appellants requested permission to submit truncated records
proper and we granted those requests. Neither submitted record proper contains
a copy of the notice of appeal that was allegedly filed to trigger each appeal.
Furthermore, we have been unable to confirm the filing of such notices by using
the Odyssey electronic-filing program, because this water-adjudication case
does not appear in the Odyssey data-base. We therefore are not able to
determine, on the record submitted by Appellants, whether notices of appeal
were filed below and, if so, whether those notices were filed in a timely
manner. As discussed below, we do not have jurisdiction over either appeal because
neither appeal has been taken from a final, appealable order. Therefore, we
need not address the notice-of-appeal issue. However, counsel for Appellants
should be aware that when a limited record proper is filed, that record proper
must contain every document that is necessary to allow us to confirm our
authority to consider the appeal.
{4} As Appellants are
aware, having had a previous appeal dismissed on lack-of-finality grounds, this
Court’s jurisdiction lies from final, appealable orders.
See Kelly Inn No.
102, Inc. v. Kapnison,
1992-NMSC-005, ¶ 14,
113 N.M. 231,
824 P.2d 1033.
Generally, an order or judgment is not considered final unless all issues of
law and fact have been determined and the case disposed of by the district
court to the fullest extent possible.
See id. In this case it is obvious
that neither order disposes of all issues of law and fact in the proceedings
out of which the orders arose. As noted above, the first order is a grant of
partial summary judgment, a denial of Appellants’ motion for summary judgment,
and an order concerning scheduling of further proceedings. This order obviously
contemplates further proceedings in SS-97-104, the stream-system issue
presently being litigated by the parties. Similarly, the June 18, 2014, order
simply denies Appellants’ motion to stay further proceedings in SS-97-104;
denial of a stay does not in any way resolve all issues of law and fact that
are presented in a case.
{5} Appellants attempt
to avoid the above analysis by relying on Rule
1-054(B)(2) NMRA, and by arguing
that the district court has fully and finally disposed of all their claims to
superior ownership rights to the water claimed by the United States. Appellants
argue that those allegedly superior rights arose as a result of fraud committed
by agents of the United States over 100 years ago; during the remainder of this
opinion we will refer to this argument as Appellants’ “superior-title” claim.
As a result of several orders entered by the district court, Appellants
contend, their superior-title claim has been rejected by that court, with the
most recent example of that rejection being the February 17, 2014, order
entered in Case No. 33,672.
{6} It is true that
under Rule 1-054(B)(2), an order that adjudicates all issues as to a party is
final and appealable insofar as that party is concerned. However, if any issue
remains to be determined with respect to that party, the order will not be
appealable.
See Cordova v. Cline,
2013-NMCA-083, ¶¶ 16-17,
308 P.3d 975
(order dismissing plaintiff’s claims was final with respect to defendants who
had not filed counterclaims, but was not final as to defendants whose
counterclaims remained pending). We must therefore examine the two orders
involved in these appeals to determine whether as a result of these orders all
issues pertaining to Appellants have been resolved.
{7} We point out first
that this case is a stream-system adjudication, and Appellants have presumably
all filed claims to water rights that must be addressed. At this point we have
been given no information concerning the grounds for those claims; in other
words, we do not know whether some or all of the Appellants (who have presented
their arguments on appeal as a group rather than as disparate individuals) have
claims to water rights that are not dependent on the superior-title claim. If
that is the case, then disposing of the superior-title claim would not resolve
all of the claims that have been put forth by Appellants in this adjudication.
Therefore, even if an order did finally and unfavorably determine the
superior-title claim as to Appellants, that order would not be final and
appealable until all of Appellants’ possible claims to water rights have also
been resolved.
See Cordova.
{8} More fundamentally,
it does not appear that the district court has fully and finally resolved
Appellants’ superior-title claim. We recognize that there is language in the
February 2014 order to the effect that the superior-title claim has been
previously ruled upon and rejected by the district court.
[No. 33,968 RP
4667-68] Standing alone, that language implies that the district court does
not find the superior-title claim persuasive. However, the February 2014 order
merely denies Appellants’ motion for summary judgment on the superior-title
claim; it does not dismiss any Appellant from the adjudication as a whole or
from the SS-97-104 proceeding. Therefore, this order is an interlocutory order
that is subject to possible alteration in future proceedings.
See, e.g.,
Sims v. Sims,
1996-NMSC-078, ¶ 59,
122 N.M. 618,
930 P.2d 153 (“District
courts have plenary power over their interlocutory orders and may revise
them . . . at any time prior to final judgment.” (citation
omitted)).
{9} In fact, the June
2014 order denying Appellants’ request for a stay clarifies the district
court’s intent and strongly, if not conclusively, indicates the district court
will consider the superior-title issue, either during the SS-97-104 proceeding
or during expedited
inter se proceedings that may be held on a
representative basis.
[No. 33,968 RP 5337] In addition to the district
court’s mention of the above possibilities, we note that the district court
specifically headlined a section of the order as follows: “THE PRE-1906
CLAIMANTS’ RIGHTS TO PROJECT DIVERSION WORKS WILL BE DETERMINED IN THIS
ADJUDICATION.” It is difficult, if not impossible, to interpret this statement
in any other way except as an expression of the fact that the district court
has yet to resolve the superior-title issue unfavorably to Appellants, and plans
to address that issue in subsequent proceedings. We therefore cannot accept
Appellants’ contention that the district court has already decided the
superior-title issue adversely to Appellants.
{10} We find that the
district court has not yet made a final decision disposing of all claims raised
in this action by any individual Appellant or by Appellants as a whole. Absent
such a final decision, which would be tantamount to dismissing some or all of
the Appellants from this adjudication, Rule 1-054(B)(2) does not apply to this
situation. Since neither of the orders that are the bases of these appeals is
final and appealable, the motions to dismiss each appeal are granted and both
appeals are dismissed. Any further pleadings that may be filed in these consolidated
appeals shall be filed in Case No. 33,672.
MICHAEL D. BUSTAMANTE, Judge