Govich v. North American Systems, Inc.

• Decision Date: 26 June 1991
• Docket Number: No. 19346,19346
• Parties: , Prod.Liab.Rep.(CCH)P. 12,936 Roane GOVICH, Daniel Govich and American National Fire Insurance Co., Plaintiffs-Appellants and Cross-Appellees, v. NORTH AMERICAN SYSTEMS, INC. and Ark-Les Switch Company, Defendants-Appellees and Cross-Appellants.
• Court: New Mexico Supreme Court

Page 94

814 P.2d 94

112 N.M. 226, Prod.Liab.Rep.(CCH)P. 12,936

Roane GOVICH, Daniel Govich and American National Fire Insurance Co., Plaintiffs-Appellants and Cross-Appellees, v. NORTH AMERICAN SYSTEMS, INC. and Ark-Les Switch Company Defendants-Appellees and Cross-Appellants.

No. 19346.

Supreme Court of New Mexico.

June 26, 1991.

Rehearing Denied July 22, 1991.

[112 N.M. 228] Samantha Dunning, Santa Fe, for appellants.

Lenssen & Mandel John L. Lenssen, Santa Fe, for appellee North American Systems.

Civerolo, Hansen & Wolf R. Galen Reimer, Carl J. Butkus, Albuquerque, for appellee ARK-Les Switch Co.

OPINION

RANSOM, Justice.

Roane Govich and her adult son, Daniel Govich, appeal from the district court's order dismissing their personal injury claims against North American Systems, Inc. ("Mr. Coffee") and Ark-Les Switch Company. We are called upon to address novel questions concerning the rescue doctrine in the context of comparative negligence. We reverse.

Daniel is hearing impaired. He is assisted by a dog specially trained to alert him to routine sounds of daily life, such as a ringing telephone or a knock at the door. On the evening of November 23, 1983, Daniel and Roane dined at a Santa Fe restaurant. Daniel was not accompanied by his dog. Upon returning to their home after dinner, they noticed smoke issuing from the house. Daniel opened a door to the house, and smoke billowed forth. Roane ran to a neighbor's house to call the fire department.

Daniel's dog was inside the burning house. After first calling his dog from outside the house, Daniel entered the house in repeated, but vain, attempts to rescue the dog. Daniel testified that "at the time of the rescue attempt of my dog I was under severe emotional distress due to the possibility of losing my dog and not knowing if all my possessions in the house would be destroyed." Roane returned, and upon seeing her son enter the burning house, made several entrances attempting to restrain Daniel. She testified that Daniel "was like a person who had lost his sanity. He could not understand the danger he was in." The dog perished, and Daniel and Roane were injured in the fire.

On January 22, 1985, the Goviches sued Mr. Coffee, alleging the fire was caused by a defective coffee maker. Ark-Les, the maker of an electrical component in the coffee maker, was named a defendant by amended complaint. Based upon theories of strict products liability, negligence, and breach of implied or express warranties, the Goviches sought damages for personal injuries, emotional distress, and lost wages. American National Fire Insurance Company, as the Goviches' subrogated insurer, sought recovery for damages to personal and real property.

Mr. Coffee and Ark-Les moved for partial summary judgment arguing that the Goviches were barred from recovery as a matter of law. The Goviches responded that summary judgment was precluded by the rescue doctrine and bystander recovery for negligent infliction of emotional distress. The rescue doctrine was raised in relation to both Roane and Daniel. The bystander theory has been abandoned on appeal.

On May 10, 1990, the district court¹ entered an order granting partial summary judgment in favor of Mr. Coffee and Ark-Les, dismissing the Goviches' personal injury claims. The court entered the following findings of fact:

7. The personal injuries as well as the emotional injuries and lost income of plaintiffs Roane Govich or Daniel Govich resulted entirely from their entry into the burning house.

8. The actions of plaintiff Daniel Govich in entering a burning home to rescue a dog [are] unreasonable conduct as a matter of law and he may not recover damages for personal injuries, lost income, or emotional damages that he may have suffered.

9. The actions of plaintiff Roane Govich in entering the burning home to retrieve her son were plainly occasioned by the unreasonable conduct of her son and not any act, omission or conduct of defendants and she is barred to collect damages for personal injuries, lost income, or emotional damages that she may have suffered.

10. There are no genuine issues of material fact as to causation for personal injuries, emotional distress, and lost income and defendants are entitled to summary judgment as a matter of law.

Accordingly, the court adjudged that:

1. The claims for personal injuries, emotional distress and lost income by plaintiffs, Roane Govich and Daniel Govich, be and the same are hereby dismissed.

2. The only claims remaining to be tried relate to liability of defendants to plaintiffs as to their claims for damages to the real and personal property destroyed or damaged in the fire.

On June 8 the Goviches filed notice of appeal from the May 10 order. On June 12 the district court denied defendants' motion to compel answers to interrogatories from the Goviches. In that order the court stated that the order for partial summary judgment had dismissed all the Goviches' claims. The court then dismissed the Goviches from the suit. On July 10 the Goviches filed notice of appeal from the June 12 order. Both appeals were taken to the court of appeals. The court of appeals transferred the action to this Court pursuant to NMSA 1978, Section 34-5-10 (Repl.Pamp.1990) (transfer to proper court by the court in which appeal is filed; a final determination of jurisdiction).

Jurisdiction. Ark-Les challenges our jurisdiction to hear this appeal, first arguing the partial summary judgment order is not a final order and, thus, cannot form the proper predicate for appeal. Second, citing SCRA 1986, 12-202(B) (notice of appeal shall attach the judgment or order from which appeal is taken) and cases construing the rule, Ark-Les maintains that the second notice of appeal conferred jurisdiction upon this Court only over the order attached to that notice. While we agree with Ark-Les that the partial summary judgment order was not appealable, we hold that we have jurisdiction over this appeal to review all issues properly preserved below arising from the partial summary judgment order.

The partial summary judgment only dismissed the Goviches' claims for personal injuries, emotional distress, and lost income. It provided that "[t]he only claims remaining to be tried relate to liability of defendants to plaintiffs as to their claims for damages to the real and personal property destroyed by the fire." Rule 54(C) provides that, in the absence of an express determination by the court that there is no just reason for delay, an adjudication of fewer than all the claims "shall not terminate the action as to any of the claims and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims." SCRA 1986, 1-054(C)(1). By its terms, the partial summary judgment order left unresolved the Goviches' property claims² and, thus, the May 10 order cannot be a final order from which appeal properly may be taken. Aetna Casualty & Sur. Co. v. Miles, 80 N.M. 237, 453 P.2d 757 (1969). Accordingly, the June 8 notice of appeal was ineffective to perfect the Goviches' appeal.

The Goviches timely filed notice of appeal from the June 12 order dismissing them from the suit. Because that order was a final order with respect to the Goviches, their appeal was perfected when the notice was filed. Nonetheless, citing Mabrey v. Mobil Oil Corp., 84 N.M. 272, 502 P.2d 297 (Ct.App.), cert. denied, 83 N.M 740, 497 P.2d 742 (1972), Ark-Les argues that because the second notice of appeal mentioned and attached only the order denying defendants' motion to compel, that notice fails to confer jurisdiction over the partial summary judgment order. We disagree.

While we recently held that appellate rules for the time and place of filing a notice of appeal govern the proper invocation of our jurisdiction, Lowe v. Bloom, 110 N.M. 555, 556, 798 P.2d 156, 157 (1990), we also have stated the policy of facilitating the right of appeal by liberally construing technical deficiencies in a notice of appeal otherwise satisfying the time and place of filing requirements. Marquez v. Gomez, 111 N.M. 14, 801 P.2d 84 (1990). The constitutional mandate that "an aggrieved party shall have the absolute right to one appeal" evinces the strong policy in this state that courts should facilitate, rather than hinder, the right to one appeal. See N.M. Const. art. VI, Sec. 2. Justice Montgomery explored this concept eloquently in his dissent to Lowe. As a matter of terminology, we properly should refer hereafter to the mandatory sections of our rules of appellate practice as "mandatory" and discard the term "jurisdictional" that has been used over time by most federal and state courts to describe a mandatory precondition to the exercise of jurisdiction. See Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988) (notice requirement under federal rule 4(a) is a mandatory precondition to the exercise of appellate jurisdiction). We strictly adhere to jurisdictional subject matter limits on this Court and we cannot exercise our discretion with respect to such questions. Though we have stated in categorical terms that we cannot entertain an appeal when the notice does not satisfy the requirements for time and place of filing, what we in essence have held is simply that, with respect to the mandates for time and place of filing the notice of appeal, we decline to exercise discretion to excuse or justify any improper attempt to invoke our jurisdiction. It is probably imprecise to say we cannot exercise such discretion.

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...