City of Sunland Park v. PASEO DEL NORTE, 19516.

• Decision Date: 03 September 1999
• Docket Number: No. 19516.,19516.
• Citation: 990 P.2d 1286,128 N.M. 163
• Parties: CITY OF SUNLAND PARK, and Jack Pickel, Petitioners-Appellees, v. PASEO DEL NORTE LIMITED PARTNERSHIP, a New Mexico Limited Partnership, and the New Mexico State Highway and Transportation Department and Pete Rahn, Secretary, Defendants-Appellants, and Property Tax Division of the Taxation and Revenue Department, and All Unknown Owners or Claimants of the Properties Involved.
• Court: Court of Appeals of New Mexico

990 P.2d 1286

128 N.M. 163

CITY OF SUNLAND PARK, and Jack Pickel, Petitioners-Appellees, v. PASEO DEL NORTE LIMITED PARTNERSHIP, a New Mexico Limited Partnership, and the New Mexico State Highway and Transportation Department and Pete Rahn, Secretary, Defendants-Appellants, and Property Tax Division of the Taxation and Revenue Department, and All Unknown Owners or Claimants of the Properties Involved.

No. 19516.

Court of Appeals of New Mexico.

September 3, 1999.

Frank R. Coppler, Nancy E. Nickerson, Coppler & Mannick, P.C., Santa Fe, for Appellee City of Sunland Park.

Douglas Driggers, Las Cruces, for Appellee Jack Pickel.

Donald M. Salazar, Serina M. Garst, Rubin, Katz, Salazar, Alley & Rouse, a Professional Corporation, Santa Fe, for Appellant Paseo del Norte Limited Partnership.

Patricia A. Madrid, Attorney General, Arthur J. Waskey, General Counsel, William T. Moyers, Special Assistant Attorney General, Assistant General Counsel, Santa Fe, for Appellant New Mexico State Highway and Transportation Department and Pete Rahn.

Thomas R. Figart, Assistant County Attorney, Doña Ana County, Las Cruces, Amicus Curiae for Doña Ana County.

Daniel A. Bryant, Ruidoso, Amicus Curiae for New Mexico Association of Counties.

Randall Van Vleck, Santa Fe, Amicus Curiae for New Mexico Municipal League.

OPINION

HARTZ, Judge.

{1} This is an appeal from an order in a condemnation case granting immediate possession of land to Petitioners Jack Pickel and the City of Sunland Park (the City). Pickel is the general manager and part-owner of P.O.S.T. Land Limited Company (POST), a limited liability company. The appellants are Defendants Paseo del Norte Limited Partnership (PDN), the New Mexico State Highway and Transportation Department (the Highway Department), and its Secretary, Pete Rahn. Petitioners have moved to dismiss the appeal, arguing that there is no appealable final order in a condemnation case until the district court awards damages. In this case the district court had not resolved the issue of damages when it issued its order granting the right to immediate possession. We agree with Petitioners and dismiss the appeal for lack of appellate jurisdiction. We need not decide whether the appeal resulted in an automatic stay of the district court's order granting the right to possession. See NMSA 1978, § 39-3-23 (1966) (automatic stay granted when state appeals); Rule 1-062(E) NMRA 1999 (same).

BACKGROUND

{2} The dispute before us arises out of the efforts of the City to annex two parcels of land owned by POST and to provide city water services to the parcels. The parcels are near the Santa Teresa international port of entry, about five miles from the present city boundary. The City's plan is to provide the water from a city-owned well located near a former railroad right of way between the present city boundaries and the parcels. The purpose of the condemnation action is to acquire a utility easement one and one-half miles long by twenty feet wide along the former railroad right of way for a pipeline from the well to State Highway 136. The City has already laid a pipeline along State Highway 136 from the parcels to the point where the highway intersects the proposed easement. (This pipeline is the subject of another appeal.) Both PDN and the Highway Department claim ownership rights in the former railroad right of way.

{3} On January 30, 1998, the City and Pickel filed their petition for Condemnation and Request for Order of Immediate Possession. Petitioners claimed a right under NMSA 1978, § 72-1-5 (1981), to acquire by eminent domain a right of way for the construction, operation, and maintenance of water pipelines. The City also claimed a right of eminent domain under NMSA 1978, §§ 3-27-1 (1965) and -2 (1994) (relating to municipal water facilities). The action was brought in accordance with the provisions of the Eminent Domain Code, NMSA 1978, §§ 42A-1-1 to -33 (1981). On May 20, 1998, the district court entered an order under Section 42A-1-22, granting Petitioners immediate possession of the property described in the petition on condition that they deposit $11,350 with the clerk of the court. The district court denied a request from PDN and the Highway Department that the order contain language permitting them to pursue an interlocutory appeal. See NMSA 1978, § 39-3-4 (1971) (governing interlocutory appeals); Rule 12-203 NMRA 1999 (same). PDN filed a notice of appeal on May 29, 1998; the Highway Department and Rahn filed their notice of appeal on June 8. On June 17 the City filed with this Court a motion to dismiss the appeals because the district court had not entered a final order. The City also sought dissolution of the automatic stay. After the parties filed pleadings relating to the motion, we entered an order on July 30, 1998, holding the motion in abeyance pending submission of the appeal to a panel of this Court after full briefing on the merits.

{4} In their briefs on the merits the Highway Department and Rahn contend that the City and Pickel lacked authority to condemn land belonging to the State because no statute specifically grants such authority. PDN raises a number of additional arguments: (1) that it was denied its right to a jury trial, see Santa Fe S. Ry. v. Baucis Ltd. Liab. Co., 1998-NMCA-002, 124 N.M. 430, 952 P.2d 31; (2) that Petitioners had not established that the condemnation was for a public use; (3) that the City had no authority to condemn land to serve water to a non-inhabitant; (4) that Petitioners did not satisfy the requirements of Section 72-1-5; (5) that Petitioners had not established a need for immediate possession; and (6) that Petitioners had not engaged in good faith negotiations to acquire the property, as required by Section 42A-1-4. Defendants were supported by amicus briefs filed by Doña Ana County and the New Mexico Association of Counties. The City was supported by an amicus brief filed by the New Mexico Municipal League, Inc. Our jurisdiction does not depend, however, on the number of briefs filed, the number of issues raised, or even the merits of the appeal. As we now explain, the district court order was not a final order. Therefore, Defendants had no right to appeal, and this Court does not have jurisdiction.

DISCUSSION

{5} The right to appeal from district court orders in special statutory proceedings is set forth in NMSA 1978, § 39-3-7 (1966):

Within thirty days from the entry of 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, in any special statutory proceeding in the district court, any party aggrieved may appeal therefrom to the supreme court or to the court of appeals, as appellate jurisdiction may be vested by law in these courts.

This language is identical to that in NMSA 1978, § 39-3-2 (1966), except for the substitution of the words "special statutory proceeding" for "civil action." Therefore, New Mexico case law regarding appeals in civil actions is on point.

{6} The district court order granting Petitioners immediate possession did not come "after entry of judgment." Nor did the order "practically dispose[] of the merits of the action," because further proceedings (to award damages) are still necessary to resolve the dispute between the parties. See Floyd v. Towndrow, 48 N.M. 444, 446-48, 152 P.2d 391, 392-93 (1944) (affirmative defenses not resolved). The authority for the appeal thus depends upon whether the order was a "final judgment or decision."

{7} PDN contends that the issue has already been resolved in New Mexico. It asserts that the New Mexico Supreme Court has previously considered appeals from orders granting immediate possession. It cites to Kennedy v. Yates Petroleum Corp., 101 N.M. 268, 681 P.2d 53 (1984), and City of Raton v. Raton Ice Co., 26 N.M. 300, 191 P. 516 (1920). We do not agree that these decisions are authority for PDN's position. Kennedy was an appeal from dismissal of a trespass action; a related condemnation action was not on appeal. See Kennedy, 101 N.M. at 269-70, 681 P.2d at 54-55. As for City of Raton, the opinion did not discuss appellate jurisdiction. There may have been grounds for jurisdiction that are not apparent from the opinion, or the parties and the Court may simply have failed to appreciate the possibility of a jurisdictional problem. As we have said in the past, it would be a mistake to use an opinion as authority for a proposition not addressed in the opinion. See Deerman v. Board of County Comm'rs, 116 N.M. 501, 506-07, 864 P.2d 317, 322-23 (Ct.App.1993).

{8} In the absence of precedent directly on point, we look to finality doctrine in a broader context. "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.'" Sunwest Bank v. Nelson, 1998-NMSC-012, ¶ 6, 125 N.M. 170, 958 P.2d 740 (quoting B.L. Goldberg & Assocs., v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985)). When appeals are permitted before the complete disposition of the issues before the trial court, the delay and inefficiency can be considerable. See Catlin v. United States, 324 U.S. 229, 233-34, 65 S.Ct. 631, 89 L.Ed. 911 (1945); Baca v. Atchison, Topeka, & Santa Fe Ry., 1996-NMCA-054, ¶ 8, 121 N.M. 734, 918 P.2d 13. After a time-consuming appeal the parties may find themselves back where they started in the trial court, facing litigation of issues that could have been litigated more expeditiously before the appeal was taken. Or the parties and the appellate court may devote considerable effort to an issue that would have been mooted or of no practical importance if all issues before the trial court had been resolved prior to the appeal. See 15A Charles Alan Wright, et al., Federal Practice &...