Hoyt v. State

• Decision Date: 30 June 2015
• Docket Number: 32,762.
• Citation: 359 P.3d 147
• Parties: Sharon HOYT, Plaintiff–Appellee, v. STATE of New Mexico, New Mexico Office of the Medical Investigator, Ross E. Zumwalt, M.D., Chief Medical Investigator, Defendants–Appellants.
• Court: Court of Appeals of New Mexico

359 P.3d 147

Sharon HOYT, Plaintiff–Appellee

v.STATE of New Mexico, New Mexico Office of the Medical Investigator, Ross E. Zumwalt, M.D., Chief Medical Investigator, Defendants–Appellants.

32,762.

Court of Appeals of New Mexico.

June 30, 2015.

Wallin, Huss & Mendez, LLC, Brandon Huss, Dennis K. Wallin, Moriarty, NM, for Appellee.

Office of University Counsel, Kimberly N. Bell, Albuquerque, NM, for Appellants.

OPINION

KENNEDY, Judge.

{1} This is a mandamus case which scarcely resembles the statutory process imagined by the legislative and common law foundations of the writ. The Office of the Medical Investigator and Medical Investigator, Ross Zumwalt, (collectively, OMI) filed an answer to a petition for an alternative writ, and participated in a hearing on the merits. This renders the resulting writ a final peremptory writ from which an appeal must have been taken. It is undisputed that OMI did not file an appeal within thirty days of the writ being filed and issued. OMI's attempt to circumvent finality of the writ by filing a second answer to the peremptory writ instead of its notice of appeal fails.

{2} The case was final when the time for appeal had run from the date of the writ's issuance and filing, and the district court's attempt to make its later order the final order for purposes of appeal is ineffective. See NMSA 1987 § 44–2–14 (1887) (“[I]n all cases of proceedings by mandamus in any district court of this state, the final judgment of the court thereon shall be reviewable by appeal or writ of error in the same manner as now provided by law in other civil cases.”) NMSA 1978, § 39–3–2 (1966) (requiring appeals to be filed within thirty days after the judgment or order appealed from is filed in the district court); NMSA 1978, § 39–1–1 (1917) (stating that absent motions directed against the final judgment, judgments remain under the control of district courts for thirty days); Rule 12–201(D)(1) NMRA (stating that Section 39–1–1 may be tolled if motion directed at the judgment under Rule 1–050(B) NMRA or Rule 1–060(B) NMRA is pending).

{3} We take no position on the merits of the writ the district court issued. OMI's failure to file a timely notice of appeal deprives us of jurisdiction to entertain this case, and we dismiss the appeal.

I. BACKGROUND AND PROCEDURAL HISTORY

{4} Sharon Hoyt's husband died in 2000. Hoyt was dissatisfied with various aspects of what was listed on her husband's death certificate, such as the time and cause of death, and its statement that no autopsy had been performed. She sought to have the death certificate amended by the hospital where he died and which had performed an autopsy. Hoyt was unsuccessful in securing the change she sought through the hospital and made a request to OMI to amend the certificate; OMI declined. Approximately eight years after her husband's death, Hoyt filed a petition for writ of mandamus in the Seventh Judicial District Court against OMI and the Chief Medical Investigator, Ross Zumwalt. The petition requested that the district court compel OMI to file a corrected death certificate containing more accurate information based on a theory that OMI's interest in accuracy in the recording of death certificates created a mandatory duty to amend faulty certificates even if it did not attend the death or perform the autopsy.

{5} The petition stated a factual basis for the writ and asserted reasons the district court should compel OMI to act. Hoyt concluded her petition by asking for a writ of mandamus to issue, ordering OMI to amend the death certificate to include language she desired, “or in the alternative file a response hereto with this court stating why [OMI] should not be compelled to do so.” Hoyt did not submit a form of writ, and none was filed. Instead, a summons issued, directing OMI to file a responsive pleading within thirty days of service. OMI filed its response to the petition on October 23, 2008, alleging various reasons for the district court to decline to issue the writ, including that because the hospital, and not OMI, had attended her husband's death and performed the autopsy, OMI had no jurisdiction over Hoyt's husband's death, and Hoyt had not exhausted all of her remedies with the hospital. OMI further alleged that it had no legal authority or duty to amend the death certificate, that it was an improper party for a writ of mandamus, and the petition failed to state a claim for mandamus for which the petition should be denied. OMI filed no further pleadings.

{6} After a host of procedural delays and recusals, Judge George Eichwald of the Thirteenth Judicial District Court was designated by the Supreme Court to preside over this case on April 30, 2010. At a telephonic pretrial conference on August 19, 2010, the parties proposed a half-day trial, which the district court indicated would occur toward the end of the year.

{7} The court held a hearing on the merits of the petition on November 16, 2010, during which the district court heard testimony from Hoyt, took exhibits, and heard legal arguments from both parties. The death certificate in question and the autopsy report were both admitted without objection. OMI offered no evidence, but argued that it had no legal obligation to amend the death certificate and that Hoyt had an adequate remedy at law against the hospital.

{8} The district court granted the writ at the conclusion of the hearing and ordered that OMI make various amendments to the death certificate. The district court instructed Hoyt's attorney to “prepare the appropriate order, and get it to [OMI's counsel] signature, and then obviously ... OMI has an absolute right to appeal.” At the end of the hearing, counsel for OMI clarified with the court that the result of the hearing was “not an order, it would be a writ.” The district court stated that OMI had “every right to appeal my decision” and asked Hoyt to submit the writ quickly, so OMI “can make [a] decision[ ] as to whether or not [OMI] want[s] to appeal this matter.”

{9} The writ of mandamus was not filed until March 15, 2011. Although OMI was notified of the presentment of the writ before the court on that date, it informed Hoyt's counsel that it would not attend, nor would it take any action to approve the writ as to form, as it believed that it had no legal ability to affect the writ or its language. As filed, the writ is entitled “Writ of Mandamus” and does not include the word “peremptory.” The writ directs OMI to issue “an amended, corrected death certificate” within “30 days from the date this Writ is entered by the Court” and further required that in “the event that [OMI is,] for any reason[,] unable to effectuate the ordered changes, [OMI] shall take all available measures to cooperate with [Hoyt] to make such changes.”

{10} Thirty days later on April 16, 2012, OMI filed what it styled as an answer to an alternative writ of mandamus, operating under an assumption that the writ issued by the district court was an alternative writ. This pleading laid out OMI's belief that the writ was alternative for allegedly failing to include language required by the statutes governing peremptory writs and, therefore, permitted a response under NMSA 1978, § 44–2–8 (1884). In this “answer,” OMI asserted essentially the same grounds that it argued in its first response to the petition and during the hearing on the writ. Hoyt moved to strike OMI's answer. In a hearing on January 22, 2013, the district court granted the motion to strike and elaborated in its order granting the motion that, although “[t]he [w]rit issued by the [c]ourt was the final resolution of all matters pertaining to [the] case[,]” the order was the “final action ... from which appellate review [could] be taken.” OMI filed a notice of appeal from this order on February 19, 2013.

II. DISCUSSION

{11} The parties' briefs focus on whether mandamus was proper in this case. We will not address the merits in this case, however, because of the conclusive effect of OMI filing a second answer in the case rather than a notice of appeal.

{12} Owing to OMI's filing an answer to what it deemed an “alternative writ,” we must turn to whether OMI's eventual notice of appeal was timely. Hoyt asserts that the writ's language indicated it was peremptory as, indeed, the district court stated in its order of January 2013. OMI insists the writ was alternative, justifying its belief that it could properly file a response to the writ and that no appeal was proper at that time. See NMSA 1978, § 44–2–9 (1884) (providing that a defendant may show cause by answer to an alternative writ). If we hold that the writ is an alternative writ, the result would compel the district court's consideration of OMI's response, a new date of finality, and OMI's timely appeal from that order.

{13} For reasons stated below, we conclude that the writ issued by the district court was a final peremptory writ of mandamus at the time it was entered. We operate under Section 44–2–14, Id., (providing that writs be reviewed by appeal or writ of error as other civil cases) and Rule 12–201(A)(2) (requiring appeals to be filed “within thirty ... days after the judgment or order appealed from is filed in the district court clerk's office”), and hold that the writ of mandamus that the district court issued triggered the need to file a notice of appeal within thirty days of its filing. No notice of appeal or motion directed against the judgment was filed within that time. Upon the expiration of thirty days, OMI's appeal was no longer timely.

B. Writs of Mandamus—Statutory Requirements

{14} Mandamus is a creature of statute, and its regulating statutes can be found at NMSA 1978, Sections 44–2–1 to –14 (1953). Section 44–2–1 (stating that a writ of mandamus is regulated only by Chapter 44, Article 2). We concern ourselves here with only the procedural aspects of the proceedings before us.

{15} Mandamus has been a part of New Mexico's statutory remedies since 1884. Following the statutes and...