Bralley v. City of Albuquerque
| Decision Date | 16 April 1985 |
| Docket Number | No. 7967,7967 |
| Citation | 1985 NMCA 43,102 N.M. 715,699 P.2d 646 |
| Parties | Mark G. BRALLEY, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Plaintiff appeals from four separate orders entered by the trial court: (1) dismissal of plaintiff's complaint without prejudice; (2) denial of plaintiff's first motion for reconsideration; (3) denial of a restraining order; and (4) denial of plaintiff's second motion for reconsideration. On appeal plaintiff raises three points, each of which may be fairly summarized as under the single issue of whether the trial court erred in dismissing his complaint which alleged discriminatory practices by the Albuquerque City Police Department and without according plaintiff a hearing in the district court on the merits.
Initially, we review a threshold jurisdictional issue to determine whether plaintiff's appeal is timely. We dismiss plaintiff's appeal on a jurisdictional basis.
On June 17, 1983, plaintiff filed an appeal in the District Court of Bernalillo County seeking review of an administrative decision rendered by the Albuquerque Police Department under Albuquerque, N.M. Municipal Ordinance Section 2-9-25(B)(3) (1980). The appeal alleged that plaintiff had been discriminatorily passed over for promotion. Thereafter, the City moved to dismiss the appeal on the grounds that plaintiff had failed to exhaust his administrative remedies.
The following chronology of events then transpired
Order dismissing plaintiff's
appeal Nov. 22, 1983
Plaintiff files motion to set
aside or reconsider Dec. 14, 1983
Order denying first motion to
reconsider Feb. 28, 1984
Plaintiff files second motion
to set aside or reconsider Mar. 28, 1984
Plaintiff files motion for
restraining order Apr. 20, 1984
Order denying motion for
restraining order May 3, 1984
Order denying second motion
to reconsider May 21, 1984
Plaintiff files notice of appeal June 20, 1984
The order of November 22, 1983 dismissing plaintiff's appeal stated that the City's motion to dismiss the action was granted on the grounds that plaintiff had failed to exhaust his administrative remedies. The order further provided that "IT IS ORDERED that the Complaint be dismissed without prejudice." Plaintiff filed a notice of appeal to this court on June 20, 1984. He appealed from the orders of the district court entered November 22, 1983, February 28, 1984, May 3, 1984, and May 21, 1984.
Albuquerque Municipal Ordinance Section 2-9-25 provides, inter alia, for an administrative appeal by city employees from actions of city officers which have improperly denied an employee a promotion or advancement in grade. Under Section 2-9-25(C), appeals from a denial of a promotion or advancement are denominated "Class II" grievances. Subsection E of the ordinance specifies the administrative review procedure which includes requiring an aggrieved employee to initially discuss the action complained of with his immediate supervisor, and if the matter is not thereby satisfactorily resolved, to "make a formal written complaint of his or her grievance to his * * * department head within ten (10) calendar days of the occurrence of the grievable action." The department head is then required, within ten calendar days of the receipt of the written grievance, to render a decision to the chief administrative officer of the city. Thereafter, the chief administrative officer is directed to appoint a hearing officer to investigate and hear the grievance.
Under the Municipal Ordinance, the hearing officer is required to render a written report setting out his findings and recommendations. The ordinance further provides that the Municipal Ordinance Sec. 2-9-25(E)(8).
On March 22, 1983, Frank Kleinhenz, Chief Administrative Officer for the City, notified plaintiff in writing that his request for a hearing on his grievance had been denied and that "the issue of the promotional process is not a grievable matter." Plaintiff filed an appeal from the decision of Kleinhenz on June 17, 1983 with the district court.
Does this court have jurisdiction to hear the appeal of plaintiff from the order of dismissal of the district court entered November 22, 1983 and the lower court's subsequent orders filed on February 28, May 3, and May 21, 1984?
The district court entered its order dismissing plaintiff's action on November 22, 1983, "without prejudice." Thereafter, on December 14, 1983, plaintiff filed a "Motion To Set Aside Order Dismissing Case Or In The Alternative Motion To Reconsider Order Dismissing Case." Under NMSA 1978, Civ.App.Rule 3(a) (Repl.Pamp.1984), plaintiff was required to file an appeal from the district court's order of dismissal within thirty days of the entry of the order, unless the order was not final, or the December 14, 1983 motion served to toll the time for the filing of plaintiff's appeal.
The order of the district court dismissing plaintiff's appeal specified that the dismissal was "without prejudice" predicated upon plaintiff's failure to exhaust his administrative remedies. Plaintiff contends the order of dismissal was not a final order and hence did not necessitate that an appeal be taken therefrom within the thirty-day period prescribed by Civ.App. Rule 3(a) and NMSA 1978, Section 39-3-2.
The issue of whether a district court's dismissal "without prejudice" of an action seeking review in the district court from a lower court or quasi-judicial decision of an administrative agency, constitutes a final appealable order, is a matter of first impression in New Mexico.
In Chavez v. Chenoweth, 89 N.M. 423, 553 P.2d 703 (Ct.App.1976), this court held that a dismissal "without prejudice" "ordinarily imports further proceedings." See also Montoya v. Anaconda Mining Co., 97 N.M. 1, 635 P.2d 1323 (Ct.App.1981). The 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. To determine whether an order is final, the order should be given a practical rather than a technical construction. Clancy v. Gooding, 98 N.M. 252, 647 P.2d 885 (Ct.App.1982). Whether an order is "final" may at times be difficult to ascertain. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). See also Hernandez v. Home Education Livelihood Program, Inc., 98 N.M. 125, 645 P.2d 1381 (Ct.App.1982).
An 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. E.g., Watkins v. Local School Board of Los Alamos Schools, 88 N.M. 276, 540 P.2d 206 (1975) (); Montoya v. Anaconda Mining Co. Compare Garver v. Public Service Co. of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966) ().
The Supreme Court of Utah held in Honerine Min. & Mill Co. v. Tallerday Steel Pipe & Tank Co., 30 Utah 449, 85 P. 626 (1906), that a final judgment of dismissal "without prejudice" may, depending upon the nature of the case, constitute a final judgment. The court stated:
It is true that to constitute a final judgment it is not essential that there be a final determination of the rights of the parties with reference to the subject-matter of the litigation, but merely with reference to the particular suit. It is the...
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