1998 -NMSC- 12, Sunwest Bank of Albuquerque, New Mexico v. Nelson

• Decision Date: 21 April 1998
• Docket Number: No. 24802,24802
• Citation: 1998 NMSC 12,958 P.2d 740,125 N.M. 170
• Parties: , 1998 -NMSC- 12 SUNWEST BANK OF ALBUQUERQUE, NEW MEXICO, Conservator of the Estate of Nicole Elizabeth Landers, and Personal Representative of the Estate of Caroline Landers, Plaintiff-Appellant, v. Dr. Evan NELSON, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 740

958 P.2d 740

125 N.M. 170, 1998 -NMSC- 12

SUNWEST BANK OF ALBUQUERQUE, NEW MEXICO, Conservator of the

Estate of Nicole Elizabeth Landers, and Personal

Representative of the Estate of Caroline

Landers, Plaintiff-Appellant, v. Dr. Evan NELSON, Defendant-Appellee.

No. 24802.

Supreme Court of New Mexico.

April 21, 1998.

Durkovich, Martinez & Salazar, Stephen Durkovich, Pia Salazar, Albuquerque, for Appellant.

Atwood, Malone, Turner & Sabin, P.A., Rod M. Schumacher, Barbara A. Reddy, Roswell, for Appellee.

OPINION

MINZNER, Justice.

¶1 Sunwest Bank of Albuquerque appeals the dismissal of its complaint for wrongful death against Dr. Evan Nelson. Sunwest brought this action in Bernalillo County as conservator of the estate of Nicole Landers and as personal representative of the estate of the deceased, Caroline Landers. Upon Dr. Nelson's motion, the district court dismissed the complaint without prejudice for improper venue. We reverse and remand for further proceedings in Bernalillo County.

I.

¶2 Caroline Landers gave birth to her daughter, Nicole, in Roswell, New Mexico, with the assistance of Dr. Nelson. Following the birth, Caroline developed complications which ultimately resulted in her death. Her husband, Brandon Landers, sought a conservator for Nicole, and the District Court of Chaves County appointed Sunwest to serve as conservator. Subsequently, the District Court of Bernalillo County appointed Sunwest to serve as personal representative of Caroline's estate.

¶3 Sunwest then filed its complaint in the present action for wrongful death in Bernalillo County. Dr. Nelson filed a motion to dismiss on the grounds of improper venue or, alternatively, to transfer venue on the basis of forum non conveniens. Following this Court's opinion in First Financial Trust Co. v. Scott, 1996-NMSC-065, p 20, 122 N.M. 572, 929 P.2d 263 (overruling intrastate forum non conveniens precedent providing for the transfer of venue from one county to another on the basis that "the judiciary lacks the authority to adopt intrastate forum non conveniens"), Dr. Nelson withdrew the motion to transfer venue. However, Dr. Nelson continued to assert that Sunwest failed to establish the basis for venue in Bernalillo County and that the complaint should be dismissed. Dr. Nelson argued that Sunwest was not a resident of Bernalillo County, or of New Mexico. As a result, venue under the New Mexico venue statute, NMSA 1978, § 38-3-1(A) (1988), was proper only in Chaves County, the residence of Dr. Nelson and the location of the events forming the basis of Sunwest's complaint. Sunwest responded by submitting an affidavit from one of its executives stating that Sunwest is a national banking association with its principal place of business in Bernalillo County and engaging in banking activities exclusively in the counties of Bernalillo and Sandoval. The district court granted Dr. Nelson's motion and dismissed, without prejudice, Sunwest's complaint on the basis of improper venue. We accepted certification from the Court of Appeals on the ground that the application of Section 38-3-1(A) to a national banking association raises an issue of substantial public interest. ¹ See NMSA 1978, § 34-5-14(C)(2) (1972) (providing for certification to this Court by the Court of Appeals in matters involving an issue of substantial public interest).

II.

¶4 Before addressing the merits of the issue certified by the Court of Appeals, we must determine whether we have jurisdiction over this appeal. Dr. Nelson contends that the order dismissing Sunwest's complaint without prejudice is not a final appealable order.

¶5 "It is of course firmly established that, subject to certain exceptions, this Court has no jurisdiction to review an order or decision that is not final" within the meaning of NMSA 1978, § 39-3-2 (1966) (limiting appeals as of right to "any final judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights"). Carrillo v. Rostro, 114 N.M. 607, 612-13, 845 P.2d 130, 135-36 (1992); accord Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815, 907 P.2d 994, 996 (1995). It is equally well-established that this Court disfavors piecemeal appeals. Principal Mut. Life Ins. Co. v. Straus, 116 N.M. 412, 415, 863 P.2d 447, 450 (1993). Dr. Nelson asserts that a dismissal without prejudice generally is not a final order because it does not dispose of the merits of a claim. In addition, because Sunwest filed a complaint in Chaves County following the dismissal in Bernalillo County, Dr. Nelson argues that a resolution of the question of proper venue at this time would be contrary to the policy disfavoring piecemeal appeals.

¶6 Generally speaking, "[f]or purposes of appeal, 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 trial court to the fullest extent possible." B.L. Goldberg & Assocs. v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985). In Santa Fe Nat'l Bank v. Galt, 94 N.M. 111, 114-16, 607 P.2d 649, 652-54 (Ct.App.1979), the Court of Appeals, without explicitly addressing the question of finality, did exercise its jurisdiction to review an order of dismissal without prejudice for improper venue. In Galt, the Court of Appeals concluded that venue was not improper and that the dismissal was erroneous. Id. at 116, 607 P.2d at 654. As a result, the Court of Appeals reversed the order and remanded for reinstatement of the complaint. Id. ¶7 The Court of Appeals also has expressly analyzed the finality of dismissals without prejudice as a general rule. In Bralley v. City of Albuquerque, 102 N.M. 715, 718, 699 P.2d 646, 649 (Ct.App.1985), the Court of Appeals addressed the finality of a dismissal without prejudice for failure to exhaust administrative remedies. The Court of Appeals noted that a dismissal without prejudice " 'ordinarily imports further proceedings.' " Id. (quoting Chavez v. Chenoweth, 89 N.M. 423, 428, 553 P.2d 703, 708 (Ct.App.1976)). However, the Court of Appeals determined that "the order should be given a practical rather than a technical construction," Bralley, 102 N.M. at 718, 699 P.2d at 649; accord Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992), and that "[t]he test of whether a judgment is final so as to permit the taking of an immediate appeal, lies in the effect the judgment has upon the rights of some or all of the parties." Bralley, 102 N.M. at 718, 699 P.2d at 649. In evaluating a dismissal without prejudice, the Court of Appeals concluded that "[a]n order dismissing a party's entire complaint without authorizing or specifying a definite time for leave to file an amended complaint, is a final order for purposes of appeal." Id. "The designation of the dismissal of an action 'without prejudice' is in the nature of a judgment." Id. at 719, 699 P.2d at 650. As a result, the Court of Appeals determined that it lacked jurisdiction to hear the appeal because the plaintiff had not taken a timely appeal from the order dismissing his action without prejudice. Id.

¶8 Similarly, in Village of Los Ranchos de Albuquerque v. Shiveley, 110 N.M. 15, 17, 791 P.2d 466, 468 (Ct.App.1989), the Court of Appeals addressed an order of dismissal without prejudice for lack of standing. The Court of Appeals determined that "[a] decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is a final judgment." Id. The Court of Appeals followed Bralley and concluded that the order was final for purposes of appeal. "Although there was no determination on the merits, this order terminated the suit and the proceeding was completely disposed of so far as the court had power to dispose of it." Id. In Shiveley, unlike Bralley, there had been a timely appeal; thus, the Court of Appeals had jurisdiction. Id. at 17-18, 791 P.2d at 468-69.

¶9 We believe this analysis is dispositive and conclude that the dismissal of Sunwest's complaint without prejudice for improper venue is a final appealable order. While the district court's order did not decide the merits of the claim or preclude filing in an alternate venue, it disposed of the matter to the fullest extent possible in the court in which the action was filed. Unlike the dismissal of a complaint with leave to file an amendment, this order did not provide a specified time or manner for refiling. In fact, the order does not contemplate any refiling of the complaint in Bernalillo County. See Sherman v. American Fed'n of Musicians, 588 F.2d 1313, 1315 (10th Cir.1978) ("It is clear that the trial court determined that the action could not be saved by amendment of the complaint ... and that the plaintiff assumed, with reason, that he had no choice but to stand on his complaint...."); cf. Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 62 F.2d 1004, 1005 (2d Cir.1933) (Hand, J.) (r

easoning that an order compelling arbitration is final because it is the "last deliberative action of the court" with respect to the controversy before it), quoted in Britt, 120 N.M. at 815, 907 P.2d at 996. Further, we believe that the order decisively affected Sunwest's right, as plaintiff, to choose a venue pursuant to Section 38-3-1(A) and that an immediate appeal was necessary to vindicate this right. Thus, the dismissal without prejudice for improper venue is a final, appealable order. ² This Court does not lack jurisdiction.

III.

¶10 The Legislature has provided broad discretion to plaintiffs in choosing venue. See Scott, 1996-NMSC-065, p 18, 122 N.M. 572, 929 P.2d 263 (characterizing the venue statute as "expansive"). Specifically, the Legislature has directed in relevant part,

All civil actions commenced in the district courts shall be brought and shall be commenced in counties as follows and not otherwise:

A. First, except as...