Ortega v. Transamerica Ins. Co., 2877
Decision Date | 06 September 1977 |
Docket Number | No. 2877,2877 |
Citation | 91 N.M. 31,569 P.2d 957,1977 NMCA 106 |
Parties | Ernest ORTEGA, Felipe Lucero, Mavis Gaillour, Catkin 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. |
Court | Court of Appeals of New Mexico |
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 and the New Mexico Occupational Disease Disablement Law, § 59-11-1 through § 59-11-34, N.M.S.A.1953 . 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.
Two rules are applicable to this appeal. Section 21-12-3(a), N.M.S.A.1953 (Repl. Vol. 4, Supp.1975) states:
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.))
(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 Chenoweth, the original suit was against four defendants. The trial court granted summary judgment dismissing the claims against three of the defendants "without prejudice." The plaintiff in that case appealed and this Court in Cause No. 1813 dismissed for lack of an appealable order under Civil Procedure Rule 54(b)(1) (§ 21-1-1(54)(b)(1), N.M.S.A.1953 (Repl. Vol. 4, Supp.1975)). Therefore, dismissal without prejudice is not a final order and is not appealable. Chavez v. Chenoweth, supra.
Secondly, the trial court did not direct the entry of a final judgment adjudicating plaintiffs' claims on Counts I and II in compliance with Rule 54(b)(1).
Rule 54(b)(1) requires that there be an ". . . express determination that there is no just reason for delay" if a final judgment is to be entered as to fewer than all of the claims. Carpenter v. Merrett, 82 N.M. 185, 477 P.2d 819 (1970); Mock Homes, Inc. v. Wakely, 82 N.M. 179, 477 P.2d 813 (1970); Voisen v. Kantor, 81 N.M. 560, 469 P.2d 709 (1970); Chronister v. State Farm Mutual Automobile Insurance Company, 67 N.M. 170, 353 P.2d 1059 (1960). This rule scrupulously recognizes the statutory requirement of a final decision before an appellate court can exercise its jurisdiction. Baca Land and Cattle Company v. New Mexico Timber Inc., 384 F.2d 701 (10th Cir. 1967).
A judgment or order entered on fewer than all the claims asserted against a party, absent an express determination by the court that there is no just reason for delay, is not a final order and hence not appealable.
Since we dismiss this appeal for lack of jurisdiction, we do not reach the merits of whether the joinder of statutory and common law claims is proper.
The appeal is dismissed.
IT IS SO ORDERED.
A dismissal of this appeal on jurisdictional grounds deprives plaintiffs of any claim for workmen's compensation or occupational disease benefits. The dismissal of plaintiffs' claim "without prejudice" in the trial court means without prejudice to the right to bring another suit as if no suit had been brought. Palmer v. Rucker, 289 Ala. 496, 268 So.2d 773 (1972); Chambreau v. Coughlan, 263 Cal.App.2d 712, 69 Cal.Rptr. 783 (1968). A dismissal without prejudice leaves the parties as if no action had been instituted. Taylor v. Slater, 21 R.I. 104, 41 A. 1001 (1898).
McCuistion v. McCuistion, 73 N.M. 27, 385 P.2d 357 (1963) involved a voluntary dismissal. The Court said:
The voluntary dismissal of a suit leaves a situation . . . the same as though the suit had never been brought; and upon such voluntary dismissal, all prior proceedings and orders in the case are vitiated and annulled, and jurisdiction of the court is immediately terminated. (Emphasis added) (73 N.M. at 29, 385 P.2d at 358)
McCuistion was followed in Gonzales v. Oil, Chemical and Atomic Workers Int. U., 77 N.M. 61, 419 P.2d 257 (1966).
The rule is the same whether the dismissal is made of a claim "without prejudice" by a court or a voluntary dismissal is made by a party. Under this rule, another claim can be made provided it is not barred by the statute of limitations.
Section 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) of the Workmen's Compensation Act, and § 59-11-15.1, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) of the Occupational Disease Disablement...
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