Board of County Com'rs, Luna County v. Ogden

• Citation: 870 P.2d 143,117 N.M. 181,1994 NMCA 10
• Decision Date: 25 January 1994
• Docket Number: No. 14220,14220
• Parties: BOARD OF COUNTY COMMISSIONERS, LUNA COUNTY, New Mexico, Plaintiff-Appellee, v. Carlos OGDEN, Toy Ogden, and Jack Long (substituted for Jeff Smith), Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 143

870 P.2d 143

117 N.M. 181

BOARD OF COUNTY COMMISSIONERS, LUNA COUNTY, New Mexico, Plaintiff-Appellee, v. Carlos OGDEN, Toy Ogden, and Jack Long (substituted for Jeff

Smith), Defendants-Appellants.

No. 14220.

Court of Appeals of New Mexico.

Jan. 25, 1994.

Certiorari Denied March 8, 1994.

[117 N.M. 182] Kent Cooper, Jeffreys, Cooper & Associates, Deming, for plaintiff-appellee.

Carlos Ogden, Deming, for Toy Ogden.

Jack Long, Pro se.

Carlos Ogden, Pro se.

OPINION

APODACA, Judge.

On the Court's own motion, the memorandum opinion filed December 9, 1993, was withdrawn by separate order on December 17, 1993. The following opinion is now substituted in its place.

Defendants appeal the trial court's summary judgment entered in favor of Plaintiff and the dismissal of Defendants' counterclaim. Two issues are raised on appeal: (1) whether Plaintiff's quiet title and ejectment complaint was proper, inasmuch as the decision to file it was not made in an open meeting under the Open Meetings Act, NMSA 1978, Secs. 10-15-1 to -4 (Cum.Supp.1989); and (2) whether the trial court erred in granting summary judgment to Plaintiff. An additional issue raised in Plaintiff's answer brief is whether Defendant's Open Meetings Act issue is properly before this Court. We hold that the issue is properly before us. On the merits, we hold that the Open Meetings Act was not violated and that summary judgment was properly granted. Another issue raised in the docketing statement but not addressed in the brief in chief will not be reviewed. See Aragon v. Rio Costilla Coop. Livestock Ass'n, 112 N.M. 152, 153 n. 1, 812 P.2d 1300, 1301 n. 1 (1991). We therefore affirm the trial court's summary judgment.

DISCUSSION

1. Adequacy of Defendants' Notice of Appeal.

Plaintiff contends that Defendants did not comply with SCRA 1986, 12-202(B) (Repl.1992), because Defendants did not attach a copy of the order denying Defendants' motion to dismiss to the notice of appeal. This contention is the basis for Plaintiff's argument that Defendants' Open Meetings Act is not properly before this Court. Defendants' motion was premised on Plaintiff's alleged failure to comply with the Open Meetings Act. Defendants attached only a copy of the summary judgment (and the dismissal of Plaintiff's slander of title count contained in the complaint) to their notice of appeal. For the following reasons, we conclude that Defendants' Open Meetings Act issue is properly before us and thus address the merits.

SCRA 12-202(B) states:

The notice of appeal shall specify:

(1) each party taking the appeal;

(2) each party against whom the appeal is taken;

(3) the name and address of appellate counsel if different from the person filing the notice of appeal; and

(4) the name of the court to which the appeal is taken.

A copy of the judgment or order appealed from, showing the date of the judgment or order, shall be attached to the notice of appeal.

Plaintiff, relying on State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc., 85 N.M. 521, 514 P.2d 40 (1973), and Mabrey v. Mobile Oil Corp., 84 N.M. 272, 502 P.2d 297 (Ct.App.), cert. denied, 83 N.M. 740, 497 P.2d 742 (1972), apparently argues that SCRA 12-202(B) required Defendants to attach a copy of the order denying their dismissal motion to the notice of appeal. We do not construe the rule so strictly, despite its seemingly mandatory language.

Mabrey and Norvell involved the predecessor to SCRA 12-202, NMSA 1953, Repl.Vol. 4 (1970), Sec. 21-2-1(5)(5), which stated that "[t]he notice of appeal shall specify the parties taking the appeal and shall designate the judgment, order or part thereof appealed from." Norvell, 85 N.M. at 523, 514 P.2d at 42; Mabrey, 84 N.M. at 273, 502 P.2d at 298. In Mabrey, there were multiple parties and multiple claims. Mabrey, 84 N.M. at 274, 502 P.2d at 299. A summary judgment was entered between the defendant and a third party. Id. However, the summary judgment was not appealable when entered. Id.; NMSA 1953, Repl.Vol. 4 (1970), Sec. 21-1-1(54)(b). The judgment between the defendant and the plaintiff was entered on June 8, 1971. Mabrey, 84 N.M. at 274, 502 P.2d at 299. It did not incorporate the summary judgment between the defendant and the third party. Id. Defendant filed a notice of appeal, stating only that it appealed from the judgment filed June 8, 1971. Id. at 273, 502 P.2d at 298. This Court concluded that this notice was insufficient to appeal from the summary judgment in favor of the third party. Id.

We reasoned in that case that, where there are but one plaintiff and one defendant involved, a notice of appeal is sufficient if it states " 'Plaintiff hereby gives notice that she is taking appeal in the above-entitled cause,' " id. at 274, 502 P.2d at 299, because the appellee has not been misled. We recognize that Mabrey also stated that, "where more than one order by the trial court exists, an appellant has a duty to specify each order in the notice of appeal from which an appeal is taken." Id. However, we believe this language must be read in the context of the facts in Mabrey, where there were several orders of judgment between different parties. Because the summary judgment between the third party and the defendant was neither specifically appealed from nor incorporated into the June 8, 1971 judgment, the third party had no notice that the judgment in its favor was being appealed.

Similarly, in Norvell, there were multiple parties, including various intervenors. Id., 85 N.M. at 523, 514 P.2d at 42. Without analysis, our Supreme Court concluded that a notice of appeal filed by two intervenors that stated that they " 'hereby file their notice of appeal to the Supreme Court of the State of New Mexico' " was deficient. Id. Our Supreme Court's holding, however, recognized that the relevant rule had been liberally construed and stated that the notice in question fell short of compliance. Id. We note that the appellate rules at that time contained no provision similar to SCRA 1986, 12-312(C) (Repl.1992) (timely filed appeal not to be dismissed for technical violations of SCRA 12-202 that do not affect substantive rights). Compare NMSA 1953, Repl.Vol. 4 (1970), Sec. 21-2-1(16)(4) (no motion to dispose of a case except on the merits other than on jurisdictional grounds will be granted except upon a showing of prejudice or that the ends of justice require the motion be granted) with NMSA 1953, Repl.Vol. 4 (1970), Sec. 21-2-1(17)(10) ("The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect."). We conclude that the dispositive fact in Norvell was the presence of multiple potential appellants and the potential for prejudice that fact created.

Our conclusion that the dispositive fact in Mabrey and Norvell was the existence of multiple parties and judgments is bolstered by the fact that our Supreme Court, in Nevarez v. State Armory Bd., 84 N.M. 262, 502 P.2d 287 (1972), held that a notice of appeal from a final judgment (that " 'confirmed' " an earlier summary judgment on the issue of liability) was sufficient to appeal the issues of liability, even though the summary judgment was not specifically mentioned in the notice of appeal. Id. at 264, 502 P.2d at 289. Our Supreme Court noted that the appellees did not claim to be misled and also distinguished Mabrey partly because it involved multiple parties and multiple claims. Id.

Our conclusion that Defendants' notice of appeal was adequate is further confirmed by our Supreme Court's decisions in Govich v. North American Systems, Inc., 112 N.M. 226, 814 P.2d 94 (1991), and Marquez v. Gomez, 111 N.M. 14, 801 P.2d 84 (1990). In Marquez, our Supreme Court indicated that an appeal is not to be dismissed for technical violations of SCRA 12-202 that do not affect the substantive rights of the parties. Id. at 14-15, 801 P.2d at 84-85. In Govich, our Supreme Court rejected the interpretation of SCRA 12-202(B) here pressed by Plaintiff. Govich appealed from an order recognizing that a prior partial summary judgment had dismissed all of Govich's claims. Id. 112 N.M. at 229, 814 P.2d at 97. The appellees in that case argued that, since the summary judgment itself was not attached to the notice of appeal, our Supreme Court lacked jurisdiction to review that claim. Id. The Court's language in rejecting the argument in Govich is also dispositive of the issue in the present case:

Once notice of appeal has been timely filed, the specificity requirements of Rule 12-202(B) (content of notice) are meant to inform the appellee and the court of the scope of the appellate proceeding by delineating the ruling from which appeal is taken. However, under Rule 12-312(C) an appeal timely filed is not to be dismissed for technical violations of Rule 12-202 that do not affect the substantive rights of the parties. The policies in this state, and the purpose of the rule, are vindicated if the intent to appeal a specific judgment fairly can be inferred from the notice of appeal and if the appellee is not prejudiced by any mistake.

Id. at 230, 814 P.2d at 98.

In this case, Defendants' notice of appeal did not specifically refer to the order denying Defendants' motion to dismiss. However, based on our analysis of the record, we believe Defendants' intent to appeal from that order can be fairly inferred, especially since, but for the denial of that motion, the summary judgment would not have been entered. Additionally, Plaintiff has not alleged, and the record does not suggest, that Plaintiff was prejudiced or misled. As we read SCRA 12-202(B), attachment of only the relevant final judgment perfects an appeal from any previous oral or written orders encompassed in that judgment, as long as error has otherwise been preserved. We thus conclude that Defendants'...