Village of Los Ranchos de Albuquerque v. Shiveley

• Decision Date: 07 November 1989
• Docket Number: No. 10503,10503
• Citation: 1989 NMCA 95,110 N.M. 15,791 P.2d 466
• Parties: The VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, a Municipal Corporation, Plaintiff-Appellant, v. James R. SHIVELEY, Patsy S. Shiveley and Roadrunner Estates Association, a New Mexico Non-Profit Corporation, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 466

791 P.2d 466

110 N.M. 15

The VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, a Municipal Corporation, Plaintiff-Appellant, v. James R. SHIVELEY, Patsy S. Shiveley and Roadrunner Estates Association, a New Mexico Non-Profit Corporation Defendants-Appellees.

No. 10503.

Court of Appeals of New Mexico.

Nov. 7, 1989.

Certiorari Denied April 17, 1990.

John M. Wells, Wells & Mande, P.A., Albuquerque, for plaintiff-appellant.

Herb Kraus, Jennie Deden Behles, J.D., P.A., Albuquerque, for defendant-appellee Shiveley.

Thomas L. Grisham, Grisham, Lawless & Earl, J.D., P.A., Albuquerque, for defendant-appellee Roadrunner Estates.

OPINION

CHAVEZ, Judge.

Plaintiff is the Village of Los Ranchos (Village). Defendants are the individual owners and subdividers of a parcel of real estate, James and Patsy Shiveley (Shiveley), and the corporation created to hold title to the subdivision, Roadrunner Estates Association (Association).

The Village appeals the trial court's order granting summary judgment in favor of defendants and its order dismissing the complaint. The Village raises two issues: (1) whether the trial court erred in finding that the Village was attempting to enforce private covenants, and (2) whether the trial court erred in finding that a municipality which approves a subdivision plat based on certain restrictions or covenants cannot later enforce those restrictions or covenants, but may only enforce its subdivision ordinance. Defendants jointly cross-appeal, claiming (1) that the dismissals are not final, appealable orders, and (2) that the restrictions placed on the subdivision are restraints on alienation. We reverse and hold that a planning authority has standing to enforce reasonable restrictions imposed as a condition of subdivision approval.

BACKGROUND

On September 12, 1984, Shiveley and his engineer presented to the Village Board of Trustees (Board) a plan for subdividing his 8.0127 acres for a cluster housing development. Seven new homes were to be built on three acres (approximately one-quarter-acre for each lot); the remaining five acres (Lot 8) would be undivided land jointly owned by the residents (common area). This plan would allow Shiveley to comply with the Village's density requirements, which require lots to be a minimum of one acre in size, because each resident would have an interest in a one-acre lot, and the overall density of the subdivision would not exceed one home per acre. The proposal included a Plat of the subdivision (Plat) and a Declaration of Covenants, Conditions and Restrictions (Declarations).

The Village attorney and Shiveley disagreed as to whether the Declarations and the Plat were written to prevent the sale of the common land separately from the other lots. Apparently, the Board has required in prior subdivision approvals that the undivided interest in a common area not be separated or sold separately from the ownership of each individual lot. Hence, the restrictive covenants were needed to legally bind the owners to this requirement. Finally, pursuant to a revised Plat and Declarations, the subdivision was approved on the condition that Shiveley furnish the Mayor with the sales contract for review before any lots were sold. The Plat and Declarations were filed and recorded on September 19, 1984, and October 2, 1984, respectively.

After obtaining approval for the subdivision, the Association gave Shiveley a ninety-nine-year lease to the common area, commencing October 1, 1984, with an Option to Purchase. It appears that James and Patsy Shiveley were the only members of the Association at the time. After conveying two lots to Southwest American Development, defendant Shiveley and the agent for Southwest American Development amended the Declarations. The Amended Declarations differ from the original Declarations in many respects. Some of the differences relevant to this lawsuit include a change in the designation of the original common area to "common easements" and "leased area," and a provision allowing the lessee (Shiveley) to exclude the other lot owners from using the common area.

In his deposition, Shiveley stated he never sold any interest in the common area, that he only conveyed one-quarter-acre lots. He also never presented the sales contracts or deeds to the Mayor for review before selling the lots.

The Village alleges the approval of the subdivision was conditioned on the Declarations and the Plat that, among other things, declared Lot 8 to be a common area that would be undivided and remain in common ownership to be used by all residents of the subdivision. The Village also alleges that the Amended Declarations were not enacted according to the procedures set forth in the original, approved Declarations The Village asked the court to hold the Amended Declarations null and void and to grant an injunction to stop any future lease or sale of the common area. The trial court found the Village conditioned zoning approval of the subdivision upon the inclusion of covenants and restrictions as set forth in the Plat and the Declarations. It found that the suit was essentially an attempt to enforce private restrictive covenants and, under Singleterry v. City of Albuquerque, 96 N.M. 468, 632 P.2d 345 (1981), the Village had no standing. The case was dismissed without prejudice.

[110 NM 17] and that the Association and the Shiveleys violated the zoning ordinance regulating density and lot size when they entered into a ninety-nine-year lease of Lot 8 with an option to purchase.

We first address defendants' contention regarding the finality of the orders.

JURISDICTION

Defendants contend that this court is without jurisdiction to hear the appeal because (1) the case was dismissed without prejudice and hence is not final, and (2) the order denying the motion for rehearing was not filed until after the notice of appeal. Their arguments are without merit.

On December 4, 1987, a hearing was held on the Association's motion for summary judgment and Shiveley's motion for dismissal. The court orally granted the motions and, on December 7, entered a non-final order retaining jurisdiction over the case. On December 14, the Village filed a "Motion for Rehearing and to Allow a Second Amended Complaint." The court held a hearing and denied the motion on January 14, 1988. On the same date, orders were entered granting summary judgment and dismissal. The Village filed a timely notice of appeal on February 11. The order denying the motion to reconsider and amend was entered on March 8, 1988.

In determining whether an order is final, this court looks to the substance rather than to the form of the order. Maitlen v. Getty Oil Co., 105 N.M. 370, 733 P.2d 1 (Ct.App.1987). The order is given a practical rather than a technical construction. Bralley v. City of Albuquerque, 102 N.M. 715, 699 P.2d 646 (Ct.App.1985). The dismissal of an action "without prejudice" is in the nature of a judgment. Id. The test of whether a judgment is final so as to permit the taking of an immediate appeal lies in the effect the judgment has upon the rights of some or all of the parties. Id. A final determination of the rights of the parties with reference to the subject matter of the litigation is not essential. It is the termination of the particular action which makes the judgment final. A decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is a final judgment. Id.

The trial court found the Village had no standing to bring the action. Although there was no determination on the merits, this order terminated the suit and the proceeding was completely disposed of so far as the court had power to dispose of it. See Johnson v. C & H Constr. Co., 78 N.M. 423, 432 P.2d 267 (Ct.App.1967). Therefore, the judgment of the court was final and appealable.

As to defendant's second argument, SCRA 1986, 12-201(A) provides that a notice of appeal filed after the announcement of a decision, but before the filing of the order, shall be treated as filed on the day the final judgment or order is filed. Thus, Bouldin v. Bruce M. Bernard, Inc., 78 N.M. 188, 429 P.2d 647 (1967), which held that appeals lie only from formal written orders or judgments, is superseded by this rule. Moreover, a motion for rehearing or for reconsideration is, procedurally, the equivalent of a motion for a new trial. SCRA 1986, 1-059; State v. Ragin, 78 N.M. 542, 434 P.2d 67 (1967). A court has thirty days from the date the motion is filed to grant the motion; otherwise, it is deemed denied. R. 1-059(D). The court heard the motion and entered final judgments dismissing the case without leave to amend on January 14, 1988, thirty-one days after the motion was filed. Thus, the motion was deemed denied. Similarly, an order dismissing a party's entire complaint without authorizing or specifying a definite time for leave to file an amended complaint To the extent defendants intend to suggest that the denial of a motion for reconsideration is a separate, appealable event, we disagree. See Labansky v. Labansky, 107 N.M. 425, 759 P.2d 1007 (Ct.App.1988). A motion for reconsideration asks the trial court to reconsider issues already presented. Id. Where an appeal may properly be taken from a judgment, but has not been taken, a subsequent order refusing to amend or modify the judgment is not appealable, since the denial order confirms the finality of the judgment. State ex rel. Human Servs. Dep't v. Jasso, 107 N.M. 75, 752 P.2d 790 (Ct.App.1987).

[110 NM 18] is a final order for purposes of appeal. Bralley v. City of Albuquerque.

VILLAGE HAS STANDING TO ENFORCE CONDITIONS OF APPROVAL

The approval of a subdivision plat is done pursuant to a municipality's planning authority. See NMSA 1978, Secs. 3-19-1 to -12 (Repl.1985); NMSA 1978, Sec. 3-20-7 (Repl.1985). Zoning and planning constitute two different methods of control by local public bodies to assure that land use will not adversely affect...