Ortega v. Transamerica Ins. Co., 2877
| Citation | 91 N.M. 31, 569 P.2d 957, 1977 NMCA 106 |
| Case Date | September 06, 1977 |
| Court | Court of Appeals of New Mexico |
Page 957
Marriott, Mary Russell, Joan Harrigan, Valerie Estes, Laura
Douglas, Lucie Cardenas, Gail Stoehr, Nomi Harris, Emily
Miksovic, and Beth Loveridge, Plaintiffs-Appellants,
v.
TRANSAMERICA INSURANCE COMPANY, Richard L. Shube, and Krohn
Industries, Inc., Defendants-Appellees.
Page 958
[91 NM 32] William D. Diaco, McCulloch, Grisham & Lawless, P. A., Albuquerque, for plaintiffs-appellants.
Richard C. Civerolo, Civerolo, Hansen & Wolf, Albuquerque, for Transamerica Ins. Co.
Thomas D. Schall, Jr., Albuquerque, for Richard Shube.
John A. Klecan, Klecan & Roach, P. A., Albuquerque, for Krohn Industries, Inc.
LOPEZ, Judge.
Plaintiffs filed their complaint against defendants for injuries allegedly suffered in the course of employment. The complaint combined statutory claims under Workmen's Compensation and the Occupational Disease Disablement Act and common law claims based on tort and products liability. The trial court dismissed Counts I and II of the complaint which were based on the statutory claims of recovery. Plaintiffs appeal the dismissal of these two counts. We dismiss this appeal.
The issue on this appeal is whether the Court of Appeals has jurisdiction to review an order of the trial court dismissing two counts of plaintiffs' complaint without prejudice.
Plaintiffs' complaint was comprised of eight counts. The first two counts were based on the Workmen's Compensation Act, § 59-10-1 through § 59-10-7, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1960) and the New Mexico Occupational Disease Disablement Law, § 59-11-1 through § 59-11-34, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1960). The remaining counts alleged claims under the theories of tort and products liability. The plaintiffs filed a jury demand for the entire action.
Defendants moved to dismiss the complaint on various grounds, including improper joinder of statutory with common law claims.
The trial judge ordered the dismissal of Counts I and II without prejudice. The pertinent part of the order of dismissal from which this appeal is taken reads:
"IT IS FURTHER ORDERED that Count I under the Workmen (sic) Compensation Act and Count II under the Occupational Disease Act against RICHARD L. SHUBE and TRANSAMERICA INSURANCE COMPANY filed by ERNEST ORTEGA, et al and Count I under the Workmen (sic) Compensation Act and Count II under the Occupational Disease Act against RICHARD L. SHUBE and TRANSAMERICA INSURANCE COMPANY filed by DENISE WILCOX be, and the same are hereby, dismissed without prejudice."
The issues raised by the plaintiffs on appeal are the propriety of joinder of claims and parties in the complaint, and the impropriety of dismissal when the court should only have severed the statutory claims from the remaining causes of action.
The defendants raise as their first point the issue of the appealability of the trial court's order.
The dispositive issue in this case is whether the order of dismissal without prejudice is a sufficiently "final" order to allow this Court to exercise its jurisdiction.
Appealability of the Order of Dismissal
Two rules are applicable to this appeal. Section 21-12-3(a), N.M.S.A.1953 (Repl. Vol. 4, Supp.1975) states:
"(A)ny party aggrieved may appeal to the appropriate appellate court within thirty days after entry of
"(1) Any final judgment or decision;
"(2) Any interlocutory order or decision which practically disposes of the merits; . . .
"(3) Any final order after entry of judgment which affects substantial rights . . . ." (Emphasis added).
From the record it appears that this action involves multiple claims within the scope of Rule 54(b)(1) (§ 21-1-1(54)(b)(1), N.M.S.A.1953 (Repl. Vol. 4, Supp.1975.))
"(b) Judgment upon multiple claims or involving multiple parties. . . . (W)hen more than one (1) claim for relief is presented in an action, whether as a
Page 959
[91 NM 33] claim, counterclaim, cross-claim, or third-party claim, the court may enter a final judgment as to one (1) or more but fewer than all of the claims only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates 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." (Emphasis added).The question before this Court is whether the order of the district judge was a "final" order.
The first point to consider is what is contained in the order of the district judge. As was noted above, Counts I and II were dismissed "without prejudice." The effect of a dismissal without prejudice is that it ordinarily imports further proceedings. Chavez v. Chenoweth, 89 N.M. 423, 553 P.2d 703 (Ct.App.1976). In...
To continue reading
Request your trial
-
Watson v. Blakely, 9860
...of the claims is not a final order, and hence not appealable. See Rule 1-054(C)(1); Mitchell v. Mitchell; Ortega v. Transamerica Ins. Co., 91 N.M. 31, 569 P.2d 957 (Ct.App.1977). The judgment entered below modified the divorce decree so as to award joint custody, interpreted the provisions ......
-
Ortega v. Shube, 3959
...appealed to this court, and we dismissed the case on September 6, 1977, for lack of jurisdiction. Ortega v. Transamerica Insurance Co., 91 N.M. 31, 569 P.2d 957 (Ct.App.1977). About three weeks after the district court dismissed their claims, plaintiffs filed a second suit, only alleging th......
- State v. Lucero, 3092
-
Universal Constructors, Inc. v. Fielder, 13229
...without prejudice that specifically authorizes further proceedings in the case is not a final order. Cf. Ortega v. Transamerica Ins. Co., 91 N.M. 31, 33, 569 P.2d 957, 959 (Ct.App.1977) (dismissal without prejudice ordinarily imports further Our Supreme Court considered the effect of a simi......