Sundial Press v. City of Albuquerque

• Decision Date: 23 June 1992
• Docket Number: No. 11358,11358
• Citation: 836 P.2d 1257,114 N.M. 236,1992 NMCA 68
• Parties: SUNDIAL PRESS, d/b/a Harris Books, et al., Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, et al., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1257

836 P.2d 1257

114 N.M. 236

SUNDIAL PRESS, d/b/a Harris Books, et al., Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, et al., Defendants-Appellees.

No. 11358.

Court of Appeals of New Mexico.

June 23, 1992.

[114 N.M. 238] Stephen G. French, Paul J. Kennedy, Albuquerque, for plaintiffs-appellants.

David S. Campbell, City Atty., Robert M. White, Asst. City Atty., Albuquerque, for defendants-appellees.

OPINION

CHAVEZ, Judge.

Plaintiffs appeal from a district court judgment, pursuant to SCRA 1986, 1-054(C)(1) dismissing one of three counts in plaintiffs' complaint. Plaintiffs raise three issues on appeal, including the question of whether the dismissal of count II is a final judgment. We find the issue of the finality of the judgment dispositive and do not address the remaining issues. We hold that the trial court erred in certifying this case for immediate appeal, and reverse and remand for further proceedings.

PLAINTIFFS' CLAIMS

In 1977, defendant City of Albuquerque (City) passed an ordinance that established various zoning requirements for adult business establishments, i.e., those that deal in sexually explicit matters in print or on film. Plaintiffs are purveyors of such sexually oriented matters through eight bookstores and theaters in Albuquerque. Plaintiffs' business locations did not comply with certain distance requirements in the ordinance, therefore plaintiffs sought conditional use permits. The City denied plaintiffs' requests for the permits, and plaintiffs filed a lawsuit in district court to challenge these denials.

The complaint includes a background section that describes the parties and the two zoning ordinances that apply to plaintiffs' businesses, the process of the City's enforcement of those ordinances, and the ultimate denial of plaintiffs' requests to continue to operate as conditional uses. Prior to each count, plaintiffs reallege all these facts. We detail plaintiffs' claims for relief to facilitate the analysis of this case.

In count I, plaintiffs petition for mandamus review of the City's decision to deny the conditional use permits. Plaintiffs allege various legal deficiencies in the denial of the permits. For instance, plaintiffs allege that in many respects the City erred in failing to consider certain facts in deciding to deny the requests. Plaintiffs also allege that the evidence was insufficient to support the denial, and that the City made legal errors. Finally, plaintiffs allege several constitutional issues. These are claims that the City's decision chilled plaintiffs' exercise of their freedom of speech, and that the zoning ordinance infringed on that same right. Plaintiffs further state claims based on unconstitutional vagueness and improper taking of property rights.

In count II, plaintiffs seek a declaratory judgment that the zoning ordinances are unconstitutional. They state the history of the applicable ordinances in this case. They then state two legal claims. Plaintiffs then allege what appear to be arguments all surrounding the constitutionality of the zoning ordinances. These allegations include claims based on equal protection, due process, unconstitutional vagueness, improper taking of property rights, and free speech.

In count III, plaintiffs sought damages for deprivation of a constitutional right. See 42 U.S.C. Sec. 1983 (1988). All allegations of this count focus on an alleged deprivation of the right to free speech.

In dismissing count II, the trial court relied on briefs, exhibits, and argument. At the behest of plaintiffs' former counsel, the order includes an express determination that there was no just reason to delay the finality of the judgment dismissing count II. Upon assigning this case to the general calendar, we requested that the parties brief the finality of the judgment.

CONSIDERATIONS FOR CERTIFICATION OF JUDGMENTS PURSUANT TO RULE 1-054(C)(1)

Rule 1-054(C)(1) states, in relevant part, that a trial court "may enter a final judgment as to one or more but fewer than all of the claims [in a case] only upon an express determination that there is no just reason for delay." At the outset, we note that Federal Rule of Civil Procedure 54(b) is, in all material respect, exactly the same as our Rule 1-054(C)(1). The reasoning of federal decisions on this matter, if not in conflict with controlling New Mexico authority, can be persuasive. See Lowery v. Atterbury, 113 N.M. 71, 823 P.2d 313 (1992). However, we are not bound by these federal decisions. They must be of sound logic and based on policies compatible with the law of this state. Id.

As an example, plaintiffs analyze this matter in jurisdictional terms because that is how the federal courts do so. See, e.g., Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360 (3d Cir.1975). Since the parties submitted their briefs, however, our supreme court has cast the analysis of whether an appeal is properly before a New Mexico appellate court in discretionary terms. The steps a party must take to perfect an appeal are mandatory, not jurisdictional. See Govich v. North Am. Sys., Inc., 112 N.M. 226, 814 P.2d 94 (1991). We have jurisdiction to consider the appeal, initially exercising our discretion to decide whether we ought to consider the merits. Id.; see also State v. Alvarez, 113 N.M. 82, 823 P.2d 324 (Ct.App.1991). The federal jurisdictional analysis is not persuasive here.

Further, there is authority for the view that appellate review of the trial court's discretion in certifying an immediate appeal is without deference to the trial court's ruling. See United States v. Crow, Pope & Land Enters., Inc., 474 F.2d 200 (5th Cir.1973); Griffin v. Bethesda Found., 609 P.2d 459 (Wyo.1980). We will not follow these decisions. They are contrary to the New Mexico rule that absent an abuse of discretion, we cannot disturb a trial court's Rule 1-054(C)(1) certification. See Banquest/First Nat'l Bank v. LMT, Inc., 105 N.M. 583, 734 P.2d 1266 (1987). The United States Supreme Court has elaborated on this standard of review. See Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). That Court stated that appellate review is to assure that the trial court considers appropriate factors in certifying that there is no just reason to delay finality of a claim. Id. The fact that the reviewing court might come to the same decision is not the question. Rather, the question is whether the trial court's consideration of the appropriate factors was reasonable in light of the policies of the applicable rule. Id. This standard of review is persuasive to us because it strongly resembles the abuse of discretion standard we apply in other situations. See Alpers v. Alpers, 111 N.M. 467, 806 P.2d 1057 (Ct.App.1990) (decision to grant or deny stay pending appeal); Jaramillo v. Fisher Controls Co., 102 N.M. 614, 698 P.2d 887 (Ct.App.1985) (decision on relevancy of evidence).

Relative to the mechanics of Rule 1-054(C)(1), we think it prudent to mention that it is an exception to the strong policy against piecemeal appeals. See Banquest/First Nat'l Bank, 105 N.M. at 585, 734 P.2d at 1268. The trial court should not certify judgments for immediate appeals merely to put off further work on a case or to accommodate counsel's wishes. Immediate appeals are not the norm. In a close case, the trial court should decide against certifying a judgment for immediate appeal. See Warner Bros., Inc. v. Wilkinson, 782 F.2d 136 (10th Cir.1985); Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099 (Utah 1991).

The text of the rule reveals that the trial court's task is a two step process. The trial court must first determine if there is a "final judgment as to one or more" claims. R. 1-054(C)(1). If so, the trial court must then determine if there is "no just reason for delay" in making the judgment final. Id. This is because parties may only appeal a final judgment. See NMSA 1978, Sec. 39-3-2 (Repl.Pamp.1991). Whether there is a just reason to delay the finality of a judgment presupposes that there indeed is a final judgment. The two-step process is the only way that a trial court can fulfill its responsibility in considering whether to apply Rule 1-054(C)(1). This is in accord with what seems to be the widespread federal practice. See Curtiss-Wright Corp., 446 U.S. at 7-8, 100 S.Ct. at 1464-65; United States Gen'l, Inc. v. Albert, 792 F.2d 678 (7th Cir.1986).

Our supreme court decisions on the subject state that trial courts have abused their discretion in certifying judgments under Rule 1-054(C)(1) for a variety of reasons. Within each opinion, there is mention that the trial court decision was not a final adjudication of a discrete claim. See Navajo Ref. Co. v. Southern Union Ref. Co., 105 N.M. 616, 735 P.2d 533 (1987); Banquest/First Nat'l Bank, 105 N.M. at 585, 734 P.2d at 1268. However, there is no indication that the lack of finality on a discrete claim is a separate part of the analysis. The other factors that the supreme court mentions appear to be subparts of the same analysis, that for the purposes of Rule 1-054(C)(1) there was but one discrete claim that the trial court had yet to fully resolve. As we shall discuss below, this type of analysis is implicitly the same as the analysis that the best considered federal opinions expressly undertake. We rely on the description of the trial court's duty under Rule 1-054(C)(1) found in Curtiss-Wright as instructive in implementing the existing appellate standard of review set forth in Navajo Refining Co. v. Southern Union Refining Co.

Plaintiffs next argue that in order for the trial court to comply with Rule 1-054(C)(1), the judgment had to be a complete disposition of a factually separate claim. According to plaintiffs' theory, if a complaint states claims that depend on a common nucleus of facts, the complaint states only one claim. This is the definition of a single claim that plaintiffs urge upon us. The United...