January 28, 2019- Arthur Arguedas v. Garrett Seawright, No. A-1-CA-35699

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ARTHUR ARGUEDAS, BARBARA
3 ARGUEDAS AND HELEN BRANSFORD,
4 	Plaintiffs-Appellants,
5 v. 	No. A-1-CA-35699
6 GARRETT SEAWRIGHT,
7 	Defendant-Appellee.
8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
9 Sarah M. Singleton, District Judge
10 Berardinelli Law Firm
11 	David J. Berardinelli
12 	Santa Fe, NM
13 	Fuqua Law & Policy, PC
14 	Scott Fuqua
15 	Santa Fe, NM
16 	for Appellants
17 Guebert Bruckner Gentile P.C.
18 	Terry R. Guebert
19 Albuquerque, NM
20 Miller Stratvert P.A.
21 	Todd A. Schwarz
22 Albuquerque, NM
23 	for Appellee
Court of Appeals of New Mexico
Filed 1/28/2019 1:14 PM
Mark Reynolds

1 Brownstein Hyatt Farber Schreck, LLP
2 Harold D. Stratton, Jr.
3 Veronica C. Gonzales-Zamora
4 Albuquerque, NM
5 for Amicus Curiae Washington Legal Foundation
6 Modrall, Sperling, Roehl, Harris
7 & Sisk, P.A.
8 Jennifer G. Anderson
9 Albuquerque, NM
10 King & Spalding LLP.
11 	Ashley C. Parrish
12 Justin A. Torres
13 	Washington, D.C.
14 for Amicus Curiae The Albuquerque Hispano Chamber
15 	of Commerce, Association of Commerce and Industry
16 	of New Mexfoo, Chamber of Commerce of the
17 United States of America
18 Allen Law Firm, LLC
19 Meena H. Allen
20 Albuquerque, NM
21 	for Amicus Curiae Independent Insurance Agents of
22 	New Mexico National Association of Mutual Insurance
23 	Companies Washington Legal Foundation
24 	MEMORANDUM OPINION
25 	ZAMORA, Chief Judge.
26 	{1} 	Arthur Arguedas, Barbara Arguedas, and Helen Bransford (Plaintiffs)iappeal
27 the district court's order granting Defendant Garrett Seawright's motion to dismiss
28 Plaintiffs' amended complaint (Amended Complaint) with prejudice. In this appeal,
2

1 we are asked to consider whether NMSA 1978, Section 57-12-lO(E) (2005) permits
2 recovery of statutory damages by class members who have suffered no actual
3 damages (non-injury class members). We hold that statutory damages are not
4 properly recoverable under Section 57-12-lO(E) for non-injury class members, and
5 therefore, affirm the district court's dismissal of the class claims. We further hold
6 that because Plaintiffs voluntarily dismissed their individual claims brought under
7 	Section 5 7-12-1 O(B ), this Court lacks jurisdiction to review those claims.
8 BACKGROUND
9 	{2} 	Plaintiffs brought this putative class action on behalf of themselves and
10 	similarly 	situated 	State 	Farin 	Mutual 	Automobile 	Company 	(State 	Farm)
11 	policyholders under the New Mexico Unfair Practices Act (UPA), NMSA 1978,
12 	Sections 57-12-1 to -26 (1967, as amended through 2009), seeking $100 in statutory
13 	damages for every individual insured by State Farm in New Mexico who carried less
14 than the liability coverage limits in uninsured motorist insurance between May 2004
15 	and June 2011. Plaintiffs also alleged individual claims against Defendant seeking
16 recovery of statutory damages pursuant to Section 57-12-1 O(B ).
17 {3} 	Plaintiffs contend that between May 20, 2004 and June 12, 2011, all 479
18 	licensed 	and 	appointed New Mexico 	State Farm 	insurance 	agents 	(Agents) 1
1While Plaintiffs treat this as a case against all 4 79 Agents, service of process
was only effectuated upon Defendant Seawright. In this posture, we will refer to
Defendant Seawright as the singular "defendant" for purposes of this opinion.
3

1 routinely conducted uninsured/underinsured motorist (UM) sales transactions using
2 deceptive or unconscionable sales practices. The temporal boundaries of Plaintiffs'
3 claims represent the time period between our Supreme Court's issuance of Montano
4 v. Allstate Indemnity Co., 2004-NMSC-020, ,r,r 16-20, 135 N.M. 681, 92 P.3d 1255
5 (prospectively requiring disclosure of premium prices as part of every New Mexico
6 UM sales transaction to enable insureds to make "knowing and intelligent" decisions
7 about UM coverage), and its issuance some seven years later of separate opinions in
8 two companion cases, Progressive Northwestern Insurance Co. v. 	Weed Warrior
9 Services, 2010-NMSC-050, ,r 15, 149 N.M. 	157, 245 P.3d 1209 (holding that
10 	insurers must offer UM coverage in an amount equal to the liability limits of the ·
11 	policy), and Jordan v. Allstate Insurance Co., 2010-NMSC-051, ,r,r 2, 19, 149 N.M.
12 	162,245 P.3d 1214 (applying Weed Warrior Services and holding that a rejection of
13 	UM coverage is valid only if obtained in writing and made part of the policy
14 delivered to the insured).
15 	{4} 	Plaintiffs alleged that Agents violated the UPA in the time frame between
16 Montano, Jordan, and Weed Warrior Services by failing to disclose the available
17 limits of UM coverage, pre-populating the UM Selection/Rejection Sales Forms, and
18 	advising consumers they did not need UM coverage, all claimed to be the result of
19 the Agent's "knowing" and "uniform" efforts to "exploit the gullibility": of the
20 	asserted class members. To support these contentions, Plaintiffs broadly alleged that
4

1 "every UM sales transaction conducted by [Defendant] between May 20, 2004 and
2 June 12, 2011, ... resulted in a total rejection of UM coverage or the purchase of
3 	less than equal limits UM coverage."
4 {5} 	Prior to class certification, Defendant moved to dismiss Plaintiffs' individual
5 and class claims, asserting under Rule 1-012(B)(6) NMRA that Plaintiffs failed to
6 state a claim upon which relief could be granted because (1) Plaintiffs~ individual
7 UP A statutory damages claims are "legally infirm" in that Plaintiffs received an
8 affirmative benefit from the coverage; and (2) Plaintiffs' UP A class claim is invalid
9 because the "UPA specifically prohibits a class from recovering statutory damages."
10 Plaintiffs responded that ( 1) they are not "better off' as a result of the coverage they
11 	received from State Farm, and (2) the UPA class remedy provided for in Section 57-
12 	12-lO(E) would "become a nullity" unless it is read to allow unnamed, non-injury
13 	class members to recover statutory damages.
14 	{6} 	At the hearing on Defendant's dismissal motion, while discussing the viability
15 	of Plaintiffs individual claims, defense counsel suggested that Plaintiffs' objective
16 was not to proceed on individual claims, but rather to occasion an appellate level
17 ruling on the class remedy issue. In announcing its ruling, the district court stated
18 that the 	"Amended Complaint states 	a 	cause 	of action for 	a 	deceptive trade
'
19 practice[,]" but that "there is not a right of class members, not-named class m~mbers,
20 to recover statutory damages under the UPA." 	Recognizing that it did not appear
5

1 that Plaintiffs' counsel wanted to try a case "for three people because nobody is
2 going to be bound by it," the district court said to Plaintiffs' counsel, "I honestly
3 	don't know what you want me to do." Plaintiffs' counsel responded: "Without
4 waiving anything that could be waived by asking you to do this, ... I think in the
5 interest of judicial economy, the [c]ourt should probably accept [defense counsel's]
6 suggestion and dismiss the case." The district court proposed an order finding that
7 "a claim has been stated that would show a deceptive trade practice. For practical
8 purposes, that finding is meaningless without a finding that the class members are
9 entitled to statutory damages. And [the district court] finds as a matter of law they
10 are not entitled to statutory damages and, therefore, [is] dismissing the case." Both
11 	parties agreed to this procedural course.
12 	{7} 	Within several days, Plaintiffs filed a motion for reconsideration and for leave
13 	to file a motion to amend the class complaint in which Plaintiffs, "upon reflection,
14 and in light of additional research on the issue done since the hearing," asked the
15 	district court to dismiss only the UP A class claims and to allow Plaintiffs to preserve
16 and prosecute their individual UPA claims. On May 9, 2016, the district court
17 entered an "Order Granting in Part Motion to Dismiss" (Original Order), stating as
18 here relevant:
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. 	Defendant Garrett Seawright's Motion to Dismiss Plaintiffs'
Amended complaint is GRANTED in part and DENIED in part, as
follows:
6

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The motion to dismiss Plaintiffs' individual claims against Defendant
Seawright under the New Mexico Unfair Practices Act ("UPA"),
NMSA (1978) 1 57-12-1, et seq., is DENIED, as the Court finds that
the facts alleged in Plaintiffs' Amended Complaint, taken as true for
purposes of the motion to dismiss state a cause of action for a deceptive
trade practice against Defendant Seawright.
The motion to dismiss Plaintiffs' class claims as stated in the current
complaintfsms/2 is GRANTED, as the Court finds as a matter of law that
there is no right of class members to recover statutory damages under
the UPA and the Amended Complaint specifically defines the class to
exclude any individual or entity that suffered actual damages. All class
claims asserted in Plaintiffs' Amended Complaint are accordingly
dismissed with prejudice.
As a result of the Court's rulings, Plaintiffs may proceed with their
individual UPA claims against Defendant Seawright only. Unless a
motion to amend to state other types of class claims is granted/ms/
There are no class claims and there are no claims against any other
named defendants.
All other pending motions are DENIED as moot.
On that same date, Plaintiffs filed a reply brief on their pending motions for
21 	reconsideration and leave to amend, requesting the district court, were it to deny
20 	{8}
_/
22 Plaintiffs' motion to amend, "to do as requested and dismiss all the claims asserted
23 	herein so that Plaintiffs may prosecute an immediate appeal on all the legal issues
24 presented here[.]"
25 	{9} 	On May 12, 2016, the district court withdrew the Original Order and filed an
26 amended order (Amended Order), stating in pertinent part:
2 This opinion cites verbatim the Original Order. "SMS" appears to be the
district judge's initials.
7

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On May 9, 2016, the Court entered an Order reflecting its March
28, 	2016 	rulings. 	At 	the 	parties' 	request, 	the 	Court 	hereby
WITHDRAWS its May 9, 016 Order and substitutes this Amended
Order in its place.
NOW THEREFORE, the motion to dismiss Plaintiffs' 	class
claims is GRANTED, as the Court finds as a matter of law that there is
no right of class members to recover statutory damages under the New
Mexico Unfair Practices Act ("UPA"), NMSA (1978), Section 57-12-
1, et. seq., and the Amended Complaint specifically defines the class to
exclude any individual or entity that suffered actual damages. All class
claims 	asserted 	in Plaintiffs 	Amended Complaint are 	accordingly
dismissed with prejudice.
In 	addition, 	while the Court finds 	that the 	facts 	alleged in
Plaintiffs' Amended Complaint, taken as true for purposes 	of the
motion to dismiss, state a cause of action for a deceptive trade practice
against Defendant Seawright, Plaintiffs' counsel has advised the Court
that it would be economically impractical to proceed only on Plaintiffs'
individual UP A claims. Therefore, this Court finds that final dismissal
of Plaintiffs' Amended Class Complaint with prejudice will best serve
the interests of judicial economy in this case.
IT 	IS 	THEREFORE 	ORDERED 	THAT 	Defendant 	Garrett
Seawright's Motion to Dismiss Plaintiffs' 	Amended Complaint is
GRANTED 	and 	Plaintiffs' 	Amended 	Class 	Complaint 	is 	hereby
dismissed with prejudice.
Any motion pending as of May 10, 2016 is DENIED as moot.
26 Plaintiffs now appeal.
27 DISCUSSION
28 	I. 	Standard of Review and Statutory Construction
'
29 	{to} 	We review rulings on Rule 1-012(B)(6) dismissal motions de novo. Am.: Fed 'n
30 	of State, Cty. & Mun. Emps. Council 18 v. State, 2013-NMCA-106, 16,314 P.3d
8

1 674. When the issue involves an interpretation of statutory provisions, the question
2 is also one of law, which we review de novo. Id.; see State ex rel. Collier v. NM
3 Livestock Bd., 2014-NMCA-010, 13, 316 P.3d 195 ("When our review of a motion
4 to dismiss requires statutory construction, our review is de novo."); 	Cooper v.
5 Chevron US.A., Inc., 2002-NMSC-020, 1 16, 132 N.M. 382, 49 P.3d 61 	("The
~
6 meaning oflanguage used in a statute is a question oflaw that we review de novo.").
7 "When interpreting statutes, our primary goal is to facilitate and promote the
8 legislature's ... purpose." United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-
9 NMSC-030, 117, 148 N.M. 426,237 P.3d 61 (internal quotation marks and citation
10 omitted)). In performing this task, "we presume that the Legislature intends the
11 	application of the words it uses." Progressive Nw. v. Weed Warrior Servs., 2010-
12 NMSC-050, 1 11. "The text of a statute or rule is the primary, essential source of its
13 	meaning[,]" NMSA 1978, § 12-2A-19 (1997), and the "most reliable indicator of
14 	legislative intent." Stennis v. City ofSanta Fe, 2010-NMCA-108, 110, 149 N.M. 92,
15 	244 P.3d 787; see DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, 129, 146 N.M.
16 	453, 212 P.3d 341 ("The first and most obvious guide to statutory interpretation is
17 the wording of the statutes themselves.").
18 	{11} 	Thus, "when a statute contains language which is clear and unambiguous, we
19 must give effect to that language and refrain from further statutory interpretation."
20 	United Rentals, 2010-NMSC-030, 1 9 (alteration, internal quotation marks, and
9

1 citation omitted)). We "will not read into a statute ... language which is not there,
2 particularly if it makes sense as written." Johnson 	v. 	N.M 	Oil Conservation
3 	Comm 'n, 1999-NMSC-021,, 27, 127 N.M. 120, 978 P.2d 327 (internal quotation
4 marks and citation omitted). And we do not depart from the plain meaning of the
5 statute's language unless it "would lead to absurdity." State v. 	Maestas, 2007-
6 NMSC-001,, 16, 140 N.M. 836, 149 P.3d 933.
7 	{12} 	Another tenet of statutory construction is relevant to our analysis here, 	1.e.,
8 that "[i]n interpreting a statute, we are guided by statutory sections which focus
9 specifically on a particular subject, and we look only secondarily to more general
10 references elsewhere within the same statute." Pueblo of Picuris v. N.M Energy,
11 	Minerals and Nat. Res. Dep 't, 2001-NMCA-084,, 14, 131 N.M. 166, 33 P.3d 916.
12 As this Court explained in Pueblo of Picuris,
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We indulge in the assumption that when the legislature has before it all
sections of a statute at the same time, it intends to give equal weight to
each section so as to produce a harmonious product free from internal
contradictions and inconsistencies. In the absence of contrary evidence,
we assume that the legislature used specific language for a reason, and
that it had a purpose in preferring a specific course of action with regard
to a certain issue or remedy. This legislative preference supplants a
more general, all-encompassing remedy found in the statute that is
designed for a general problem or issue.
22 Id. (Citations omitted and emphasis added.)
10

1 II. 	The Relevant UP A Provisions
2 	{13} 	The 	UPA 	makes 	unlawful 	"[u]nfair 	or 	deceptive 	trade 	practices 	and
3 unconscionable trade practices in the conduct of any trade or commerce[.]" NMSA
4 	1978, § 57-12-3 (1971). As remedial legislation, the UPA is to be "interpret[ed] ...
5 liberally to facilitate and accomplish its purposes and intent." Quynh Truong v.
6 Allstate Ins. 	Co., 2010-NMSC-009, , 	30, 147 N.M. 583, 227 P.3d 73 	(internal
7 quotation marks and citation omitted).
8 	{14} 	UPA Section 57-12-10 sets forth the private remedies available under the
9 statute. Section 57-12-lO(B) provides a cause of action for money damages, stating
10 	in pertinent part:
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Any person who suffers any loss of money or property, real or
personal, as a result of any employment by another person of a method;
act or practice declared unlawful by the [UP A] may bring an action to
recover actual damages or the sum of one hundred dollars ($100),
whichever is greater.
16 	Section 57-12-lO(E) governs the recovery of money damages in UPA class actions,
17 and reads as follows:
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In any class action filed under this section~ the court may award
damages to the named plaintiffs as provided in Subsection B of this
section and may award members of the class such actual damages as,
were suffered by each member of the class as a result of the unlawfui
method, act or practice. 	·
11

1 (Emphasis added.) Additionally, the UPA requires courts to "award attorney fees
2 and costs to the party complaining of an unfair or deceptive trade practice ... if the
3 party prevails."§ 57-12-lO(C).
4 III. 	The District Court Correctly Dismissed Plaintiffs' Class Claims
5 {15} 	In assigning error to the district court's dismissal of their UPA class claims,
6 Plaintiffs argue that they are entitled, as a matter of law, to statutory damages under
7 Subsection (E) of Section 57-12-10, whose terms, as indicated, govern class actions
8 filed under the UPA and limit class action plaintiffs to the recovery of "such actual
9 damages as were suffered by each member of the class as a result of the unlawful
10 method, act or practice." (emphasis added). Plaintiffs attempt to overcome their own
11 	designation of the putative class as excluding anyone who suffered actual damages
12 by urging us to read Section 57-12-lO(E) in tandem with Subsection (B): of the
13 	statute, made applicable to UPA actions generally, which authorizes the recovery of
14 the greater of actual or statutory damages. Specifically, Plaintiffs argue that "[i]n
15 	light of the longstanding New Mexico rule liberally interpreting Section 57-12-lO(B)
. 16 to allow a statutory damages award to any plaintiff even in the absence of any
17 evidence of actual damages, Section 57-12-lO(B) and (E) must be read together, and
18 	liberally interpreted, to resolve any conflict between them in favor of broaden~ng the
19 class remedy under Section 57-12-lO(E) to include the same right to an alard of
20 statutory damages to the absent class members regardless of any evidence of actual
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1 damages." Additionally, Plaintiffs go beyond their broad interpretation of Section
2 57-12-19(£) by maintaining that the district court's ruling giving effect to Section
3 57-12-lO(E)'s 	plain 	language 	constitutes 	a 	violation 	of 	equal 	protection-
4 apparently 	questioning 	the 	rational 	basis 	for 	dissimilar 	and 	"discriminatory"
5 treatment under Section 57-12-lO(E) based on party status. We disagree on both
6 counts.
7 A. 	Section 57-12-lO(E) Forecloses Plaintiffs' Class,Claims
8 {16} 	The text of Section 57-12-lO{E) expressly and unambiguously limits damages
9 in class actions to "such actual damages as were suffered by each member of the
10 class." The phrase "actual damages is synonymous with compensatory damages ...
11 	and both mean expenses which are the natural and reasonable result of an injury or
12 	loss." Behrmann v. Phototron Corp., 1990-NMSC-073, , 	24, 110 N.M. 323, 795
13 	P.2d 1015 (construing damages provision of New Mexico's Human Rights Act,
14 NMSA 1978, § 28-1-13 (internal citation omitted)). Plaintiffs have not alleged actual
15 	damages-on behalf of themselves or the putative class. To the contrary, they have
16 taken pains to define the class to exclude anyone who has suffered actual dainages.
17 While the text of Section 57-12-1 O(E) itself forecloses any entitlement to statutory
18 	damages on behalf of the putative class, we have previously acknowledg¢d this
19 construction in a decision addressing an order denying class certification on UPA
20 	claims. See Brooks v. Norwest Corp., 2004-NMCA-134, ,, 38, 45, 136 N.M. 599,
13

1 103 P.3d 39 (citing § 57-12-lO(B) and (E) as "limiting the award for unnamed
2 plaintiffs in a class action to actual damages, while allowing named plaintiffs to
3 collect statutory and treble damages"; citing§ 57-12-lO(E) as "limiting the recovery
4 of statutory and treble damages in class action to named plaintiffs"; and explaining
5 that "any relief realized by class members is limited to actual damages; they are
6 barred from collecting statutory or treble damages").
7 {17} 	Plaintiffs provide no sound justification for departing from the language the
8 legislature chose to use in Section 57-12-lO(E), which we assume they intended and
9 which makes sense as written. 	Weed Warrior, 2010-NMSC-050, ,-r 11; Johnson,
10 	1999-NMSC-021, ,-r 27. To the extent Plaintiffs contend that we must ignore the
11 	legislature's chosen language based on statements in Page & Wirtz Construction Co.
12 v. 	Solomon, 	1990-NMSC-063, 	110 N.M. 206, 794 P.2d 349, and ~ohman 	v.
13 	Daimler-Chrysler Corp., 2007-NMCA-100, 142 N.M. 437, 166 P.3d 1091, we· are
14 not persuaded. Of these two cases, only Lohman involved a putative class action,
15 	and the analysis in both Lohman and Page & Wirtz focused on interpreting Section
16 	57-12-lO(B), and not Section 57-12-lO(E).
17 	{18} 	Nor does Plaintiffs' reliance on the UPA's "remedial purpose" justify an
18 	interpretation of Section 57-12-1 O(E) that allows recovery of statutory damages by
19 class members, a construction contrary to both the express limitation stated in the
20 legislature's chosen words, see Kreutzer v. Aldo Leopold High Sch., 2018-NMCA-
14

1 005, ,r 51, 409 P.3d 930 (explaining that, even assuming a statute has a remedial
2 purpose, 	"judicial 	directives 	to 	read 	[statutory provisions] 	broadly 	cannot be
3 understood to authorize or require an interpretation that exceeds the boundaries of
4 legislative intent"), and the presumption that the Legislature chose the language and
5 formulated the structure of the statute carefully and for a reason, with "a purpose in
6 preferring a specific course of action with regard to a certain issue or remedy[,]" see
7 Pueblo of Picuris, 20.01-NMCA-084, ,r 14, here, requiring class members to show
8 actual harm as a precondition to recovering statutory damages. In short, we may not,
9 under the guise of judicial interpretation, rewrite Section 57-12-1 O(E) to excise the
10 clear and unambiguous damage limitation provision contained therein, for to do so
11 	would impermissibly usurp the Legislature's province. See MD.R. v. State ex rel.
12 Human Servs. Dep't, 1992-NMCA-082, ,r,r 12-13, 114 N.M. 187, 836 P.2d 106
13 	( stating that courts should "read the releva_nt statutes in a manner that facilitates their
14 operation and the achievement of their goals"; that "it is not the function of the court
15 	of appeals to legislate"; and that "[c]orrection of whatever inequity" may be caused
16 by a statute is best left to the Legislature (alterations, internal quotation marks, and
17 citation omitted)).
18 	{19} 	Contrary to Plaintiffs' contention, giving effect to the damage limitation as
19 written in Section 51-12-1 O(E) does not make it "literally impossible to bring 'a UPA
20 claim when it is most needed[.]" In Brooks, we rejected the plaintiffs' parallel
15

1 argument that "their claims are too small to justify the cost of individual actions so
2 there is no other practical alternative to litigate their claims" other than in a class
3 action." 2004-NMCA-134,, 45. We explained that "[t]heirs is the very type of claim
4 the legislature envisioned when it enacted the UPA[,]" emphasizing that "Plaintiffs'
5 argument concerning the prohibitive cost of bringing individual suits is belied by the
6 fact that the UPA awards attorney fees and costs to a successful litigant" and that
7 "[ w]here plaintiffs establish that the deceptive or unconscionable trade practice was
8 willful, they may collect treble actual or statutory damages, whichever is greater."
9 Id.
10 	{20} 	The district court properly dismissed Plaintiffs' class claims with prejudice on
11 	the ground that the Amended Complaint specifically defines the class to exclude any
12 	individual or entity that suffered actual damages and the UPA affords no right of
13 	class members to recover statutory damages.
14 B. 	Plaintiffs Did Not Preserve an Equal Protection Claim
15 	{21} 	Plaintiffs' equal protection argument, as we understand it, is that Sections 57-
16 	12-lO(B) and (E), "read literally and consistently together," provide no private
17 remedy for damages in favor of anyone, whether individuals or class members,
18 	unless the named plaintiff can show a 'loss of money or property[,]" but t~at as a
19 result of our Supreme Court's holding in Page & Wirtz, 1990-NMSC-063, "proof of
20 economic loss [is] no longer required under Section 57-12-1 O(B )" and "there [is] no
16

1 longer any rational basis for discriminatory treatment of class members under
2 Section 57-12-lO(E) based solely on their party status." We agree with Defendant
3 that Plaintiffs failed to preserve their constitutional argument for our review.
4 {22} 	"To preserve a question for review it must appear that a ruling or decision by
5 the district court was fairly invoked." Rule 12-321(A) NMRA (2016); see Sandoval
6 v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ,r 56, 146 N.M. 853,
7 215 P.3d 791 (discussing preservation requirement and reasons therefor). Absent
8 "citation to the record or any obvious preservation, we will not consider the issue."
9 	Crutchfieldv. N.M Dep 'ta/Taxation & Revenue, 2005-NMCA-022, ,r 14, 137 N.M.
10 26, 106 P.3d 1273. Plaintiffs would have us conclude that this requirement was
11 	satisfied by the "undisputed and self evident ... fact that the trial court's literal
12 	interpretation of Section 57-12-lO(E), as urged by Defendant[], created a class of
13 	similarly situated persons who are treated dissimilarly 	... ," and that neither
14 Defendant 	nor 	the 	district 	court 	"articulate[ d] 	any 	rational 	basis 	for 	this
15 	discriminatory interpretation." "Even a constitutional claim must be properly raised
16 	in order to preserve error for review upon appeal." State v. Muise, 1985-NMCA-090,
17 ,r 13, 103 N.M. 382, 707 P.2d 1192. Plaintiffs have cited no authority which could
18 be said to dispense with the preservation requirement in situations involving whatI 	.
19 they loosely describe as "self-evident" error. See generally In re Adoption 6/ Doe,
20 	1984-NMSC-024, ,r 2, 100 N.M. 764,676 P.2d 1329 (observing that if an appellant
17

1 fails to cite supporting authority, the appellate courts will assume there is none).
2 Even if the issue had been adequately preserved, statutes are presumed to be
3 constitutional, as Defendant notes, and Plaintiffs have not developed an argument
4 sufficient to satisfy their burden to overcome this presumption.
5 IV.
6
7 {23}
The 	District 	Court's 	Dismissal 	of 	the 	Individual 	Claims 	Is 	Not
Appealable
Our jurisdiction is "limited to appeals from final judgments, interlocutory
8 orders which practically dispose of the merits of an action, and final orders after
9 entry of judgment which affect substantial rights." 	Thornton v. 	Gamble, 	1984-
10 NMCA-093, 1 6, 	101 	N.M. 764, 688 P.2d 1268. "[T]he statutes limiting our
11 	jurisdiction to final judgments express a policy avoiding piece-meal appellate review
12 	of interlocutory decisions." Id. 1984-NMCA-093, 17; see Murphy v. Strata Prod.
13 	Co., 	2006-NMCA-008, 	1 	7, 	138 	N.M. 	809, 	126 	P.3d 	1173 	(observing 	that
14 "piecemeal appeals are disfavored" and that "fragmentation of issues is to be
15 	avoided"). "The general rule in New Mexico for determining the finality of a
16 judgment is that an order or judgment is not considered final unless all issues of law
17 and fact have been determined and the case disposed of by the trial court to the fullest
18 	extent possible." Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, 114, 113
19 N.M. 231,824 P.2d 1033. "The extent of a court's appellate jurisdiction is aqnestion
20 oflaw, which we review de novo." City ofLas Cruces v. Sanchez, 2007-NMSC-042,
21 	1 7, 142 N.M. 243, 164 P.3d 942. Whether an order is appealable also presents a
18

1 question of law that we review de novo. Kysar v. BP Am. Prod. Co., 2012-NMCA-
2 036, ,r 11, 273 P.3d 867.
3 {24} 	In dismissing Plaintiffs' 	Amended Class Complaint with prejudice, the
4 Amended Order addressed Plaintiffs' individual UPA claims as follows:
5 	In addition, while the Court finds that the facts alleged in Plaintiffs'
6 	Amended Complaint, taken as true for purposes of the motion to
7 	dismiss, state a cause of action for a deceptive trade practice against
8 	Defendant Seawright, Plaintiffs' counsel has advised the Court that it
9 	would be economically impractical to proceed only on Plaintiffs'
10 	individual UPA claims. Therefore, this Court finds that final dismissal
11 	of Plaintiffs' Amended Class Complaint with prejudice will best serve
12 	the interests of judicial economy in this case.
13 	{25} 	The 	Amended Order makes 	clear that the 	district court dismissed the
14 individual claims, not for failure to state a claim, but only because Plaintiffs' counsel
15 	"advised that it would be economically impractical to proceed only on Plaintiffs'
16 	individual UPA claims." The record shows that, although they did not voluntarily
17 consent to dismissal of the class claims, Plaintiffs did voluntarily consent to entry of
18 the Amended Order dismissing the individual claims, 	and this despite the district
19 	court's conclusion that Plaintiffs' 	allegations stated a cause 	of action on the
20 	individual UPA claims.
21 	{26} 	New Mexico adheres to the general rule that a judgment by consent. is not
22 	appealable. Kysar, 2012-NMCA-036, ,r 17; see Rancho de/ Villacito 	Conr]os. v.
23 	Weisfeld, 1995-NMSC-076, ,r 16, 121 N.M. 52, 908 P.2d 745 (holding that plaintiff
24 	could not appeal from his voluntary dismissal because "[t]o hold otherwise would
19

1 be to allow plaintiffs to bring piecemeal appeals and to test alternative theories in
2 the appellate courts at the expense of the defendant"); 	Gallup Trading Co. 	v.
3 Michaels, 1974-NMSC-048, ,, 4-5, 86 N.M. 304, 523 P.2d 548 (appellant "lost his
4 right to appeal" by acquiescing in summary judgment).
5 {27} 	In Kysar, this Court recognized an exception to the general rule prohibiting
6 an appeal from a consented-to judgment in a case in which plaintiffs entered into a
7 stipulated order granting a directed verdict in favor of the defendant, where the
8 parties expressly reserved the right to challenge the rulings on appeal. 2012-NMCA-
9 036, ,, 9, 11, 17. For the exception to apply, the following conditions must be met:
10
11
12
13
14
( 1) 	rulings are made by the district court, which the parties agree are
dispositive;
(2) 	a reservation of the right to challenge those rulings on appeal;
(3) 	a stipulation to entry of judgment; and
(4) 	approval of the stipulation by the district court.
15 	2012-NMCA-036,, 17.
16 	{28} 	The Amended Order does not contain a reservation of the right to challenge
17 the district court's ruling on the individual claims. Accordingly, there was no
18 "conditional" stipulation. And the district court's mere statement that it dismissed
I
19 the individual claims, not on the merits but rather to "serve the interests of judicial
20 economy[,]" does not, without more, suffice to create a final appealable judgment as
20

1 to the individual claims. Accordingly, this Court lacks appellate jurisdiction over
2 Plaintiffs' individual claims.
J 	CONCLUSION
4 	{29} 	We affirm the district court's order dismissing Plaintiffs' amended complaint
5 with prejudice.
6 {30} 	IT IS SO ORDERED.
7
8
9 WE CONCUR:
10 +-~L,4Ll,............=-::!.....-...L..>._."->...::~=-:....-H
11
ll.l Judge
'
21