Miller v. City of Albuquerque

• Decision Date: 06 August 1975
• Docket Number: No. 1721,1721
• Citation: 88 N.M. 324,1975 NMCA 99,540 P.2d 254
• Parties: Clair MILLER and James Thomas Inc., a New Mexico Corporation, Appellees, and Albuquerque Home Builders Association, Appellee, v. CITY OF ALBUQUERQUE, a Municipal Corporation, the City Commission of the City of Albuquerque, and the Environmental Planning Commission of the City of Albuquerque, Appellants.
• Court: Court of Appeals of New Mexico

Page 254

540 P.2d 254

88 N.M. 324

Clair MILLER and James Thomas Inc., a New Mexico

Corporation, Appellees, and Albuquerque Home Builders Association, Appellee, v. CITY OF ALBUQUERQUE, a Municipal Corporation, the City

Commission of the City of Albuquerque, and the

Environmental Planning Commission of the

City of Albuquerque, Appellants.

No. 1721.

Court of Appeals of New Mexico.

Aug. 6, 1975.

Certiorari Denied Sept. 3, 1975.

[88 N.M. 326] Briggs F. Cheney, Toulouse, Krehbiel & Cheney, P.A., Albuquerque, for appellants.

Gene C. Walton, Rodey, Dickason, Sloan, Akin & Robb, P.A., Terrance L. Dolan, Albuquerque, for appellees.

OPINION

WOOD, Chief Judge.

Judge M. Sanchez held Thompson (Attorney James M. Thompson, Assistant City Attorney) in contempt of court. Subsequently Judge M. Sanchez ordered Thompson and the City (City of Albuquerque) to pay certain attorney fees to plaintiffs. The appeal involves the propriety of these two orders. There are five issues: (1) the subject matter jurisdiction of this Court; (2) the appealability of certain orders; (3) the authority of Judge M. Sanchez to enter the orders; (4) the factual basis for the contempt order; and (5) an asserted abuse of discretion in entering both orders.

Subject Matter Jurisdiction

Thompson was held in civil contempt for failing to produce witnesses for depositions pursuant to court order. Thompson and the City were ordered to pay attorney fees for refusing to permit discovery. Thompson and the City appeal.

Plaintiffs moved that we transfer Thompson's appeal to the Supreme Court. Section 16--7--8, N.M.S.A.1953 (Repl.Vol. 4) gives this Court subject matter jurisdiction on appeal in any civil action which includes a count in which one or more parties seek damages on an issue based on tort. Among other claims, plaintiffs sought damages on the basis of asserted 'illegal and negligent' actions on the part of defendants. This Court had subject matter jurisdiction of Thompson's appeal. The motion to transfer was properly denied. See Measday v. Sweazea, 78 N.M. 781, 438 P.2d 525, 26 A.L.R.3d 1386 (Ct.App.1968); compare State v. Watson, 82 N.M. 769, 487 P.2d 197 (Ct.App.1971).

Appealability of Certain Orders

Defendants moved to dismiss plaintiffs' complaint. This motion was argued before Judge Payne. At the conclusion of the motion hearing, Judge Payne directed that counsel submit briefs on three specified legal issues. Judge Payne orally ordered 'that any depositions will be held in abeyance pending a determination of these issues.' Subsequently, by letter, Judge Payne advised counsel that the motion to dismiss would be denied. The letter directed the preparation of 'appropriate orders'. Before a formal order was entered, Judge Payne left the state to attend a judicial conference. In Judge Payne's absence, Judge M. Sanchez signed an order denying the motion to dismiss. This order is consistent with Judge Payne's letter.

On the same day that the order denying the motion to dismiss was signed, Judge M. Sanchez orally directed that previously noticed depositions should proceed to be taken. The formal order in connection with the depositions was signed by Judge R. Sanchez in the absence of Judge M. Sanchez. The record is to the effect that the order signed by Judge R. Sanchez was in accord with Judge M. Sanchez' oral ruling.

Thompson and the City did not comply with the order to proceed with the depositions. After various hearings before district judges, Judge M. Sanchez entered an order directing that specified depositions be taken or in the alternative, Thompson was to show cause why he should not be held in contempt. The result was an order holding Thompson in contempt of court. After proceedings in the Supreme Court were dismissed, an order was entered requiring Thompson and the City to pay certain attorney fees.

On appeal Thompson and the City argue the validity of three orders. This issue is concerned with the appealability of those orders.

The order holding Thompson in civil contempt is appealable under § 21--12--3(a)(4), N.M.S.A.1953 (Int.Supp.1974).

The order in connection with attorney fees holds Thompson and the City 'jointly and severally' liable. Thompson is not a party in the main action. The proceeding against Thompson is independent of the main action. Insofar as this order pertains to Thompson, it is a final judgment appealable under § 21--12--3(a)(1), supra. However, the City is a party to the main action. No final judgment has been entered against the City in the main action. Nor have all issues been decided against the City in the main action. See § 21--1--1(54) (b), N.M.S.A.1953 (Repl.Vol. 4, Supp.1973). Insofar as this order pertains to the City, it cannot be considered an appealable order unless the order against the City is also viewed as having been entered in a proceeding independent of the main action. Because the order is joint and several, the order against the City should be viewed the same as the order against Thompson. We hold it appealable on the same basis as the order against Thompson is appealable.

The third order is the one entered by Judge M. Sanchez denying the motion to dismiss. This order does not contain the requisite finding on which to base an application for an interlocutory appeal under § 21--10--3, N.M.S.A. 1953 (Repl.Vol. 4, Supp.1973). Thompson and the City have consistently taken the position that a decision whether to make the requisite finding should only have been made by Judge Payne and could not have properly been made by Judge M. Sanchez. This is not an issue in the appeal because the order denying the motion to dismiss is not an appealable order.

The order denying the motion to dismiss is a part of the main action. No final judgment has been entered and no interlocutory order has been entered which practically disposes of the merits. Section 21--12--3, supra.

Accordingly, the issues in this appeal are limited to the contempt order and the order concerning attorney fees.

Authority of Judge M. Sanchez to Enter the Orders

The validity of the two orders involved in this appeal depends upon the authority of Judge M. Sanchez to order that discovery proceed. The claim is that Judge M. Sanchez lacked authority to do so. The contention is that the judge first acquiring jurisdiction retains it to the exclusion of all others of coordinate position; that interference between judges of different divisions of the same court should not be tolerated.

Judge Payne and Judge M. Sanchez are judges of the same court. See State v. Peters, 69 N.M. 302, 366 P.2d 148 (1961), cert. denied, 369 U.S. 831 (1962). The judges hold coordinate positions. Section 16--3--5(B), N.M.S.A.1953 (Repl.Vol. 4) provides: 'All judges of a judicial district have equal judicial authority, rank and precedence * * *.'

We do not agree that Judge M. Sanchez interfered with Judge Payne's ruling concerning discovery. Judge Payne orally stayed the taking of depositions pending a determination of the motion to dismiss. Judge Payne's letter stated the motion to dismiss would be denied. It was subsequent to this letter that Judge M. Sanchez ordered discovery to proceed.

Even though no interference is shown by the record, Thompson and the City claim Judge M. Sanchez had no authority to enter any order in the case because Judge Payne first acquired jurisdiction in the case. This claim is too broad. Our concern is with Judge M. Sanchez' authority to enter orders concerning discovery. Even with the issue limited to the authority of Judge M. Sanchez to enter orders directed to discovery, the claim is that Judge M. Sanchez lacked authority. The cases on which Thompson and the City rely are not in point because they are concerned with the authority of a second judge to enter an order after an evidentiary hearing was held by the first judge. See Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890); McAllen v. Souza, 24 Cal.App.2d 247, 74 P.2d 853 (1937); Slaven v. Slaven, 22 Ohio Op. 230, 35 Ohio L.Abs. 268 (C.P.1941). No evidentiary hearing had been held in this case.

Judge Payne's oral order staying discovery until the motion to dismiss had been decided was an interlocutory order. Thus we are not concerned with the authority of a judge of concurrent jurisdiction to modify final orders of another judge. 'The only restraint upon a second judge in passing upon an interlocutory issue decided by another judge in the same case is one of comity only, which in no way infringes upon the power of the second judge to act.' Bowles v. Wilke, 175 F.2d 35 (7th Cir. 1949), cert. denied, 338 U.S. 861, 70 S.Ct. 104, 94 L.Ed. 528 (1949). See also, Brande v. S. & S. Machinery Co., 252 F.2d 297 (2d Cir. 1958); Graci v. United States, 301 F.Supp. 947 (E.D.La.1969), aff'd 456 F.2d 20 (5th Cir. 1971); Shawmut, Inc. v. American Viscose Corp., 11 F.R.D. 562 (S.D.N.Y.1951); Lane v. Clein, 137 So.2d 15 (Fla.App.1962); People v. Doherty, 192 N.Y.S.2d 140 (S.Ct.1959); compare In re Zuber's Estate, 24 Misc.2d 579, 202 N.Y.S.2d 931 (S.Ct.1960); Topping v. North Carolina State Board of Education, 249 N.C. 291, 106 S.E.2d 502 (1959).

Judge Payne's prior oral interlocutory order concerning depositions did not divest Judge M. Sanchez of authority to enter a subsequent interlocutory order concerning depositions in the same case. Judge M. Sanchez had authority as a judge of the district court to enter the orders concerning depositions and thus had authority to enter orders imposing sanctions when his discovery orders were violated.

Factual Basis for the Contempt Order

Thompson was held in contempt 'for having failed to produce witnesses pursuant to proper notice and Court Order.' The order gives Thompson the opportunity to purge himself of the contempt by producing the witnesses. Thompson was directed to pay $50.00 daily to the court clerk for each day he was in noncompliance with the requirement that witnesses be produced for the taking of their depositions.

Thompson cites case...