March 4, 2020- Joel M. Young v. H. Adam ‘Skip’ Fisher, No. A-1-CA-36694

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
JOEL M. YOUNG, Filed 3/4/2020 8:39 AM
Plaintiff-Appellant, Md. ~£e
Mark Reynolds
V. No. A-1-CA-36694
H. ADAM ‘SKIP’ FISHER,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge

Joel M. Young
Bernalillo, NM

Pro Se Appellant
Felker, Ish, Ritchie, Geer & Winter, P.A.
Randoph B. Felker
Santa Fe, NM
for Appellee
MEMORANDUM OPINION
HANISEE, Chief Judge.
(43 Plaintiff Joel M. Young seeks reversal of the district court’s order partially
granting Defendant H. Adam ‘Skip’ Fisher’s motion to compel arbitration between

himself and Plaintiff. Plaintiff's complaint sought a declaratory judgment as to the

enforceability of a shared water well contract as a whole and alleged claims for

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breach of the covenant of fair dealing and conversion. We dismiss Plaintiff’s appeal	1
as premature because the district court’s order was not final.	2
DISCUSSION	3
{2} 	This Court must, prior to addressing the merits of an appeal, ascertain whether	4
a given case is properly before us. See Thornton v. Gamble, 1984-NMCA-093, ¶ 16,	5
101 N.M. 764, 688 P.2d 1268 (“It is within the province of this [C]ourt to determine	6
whether we have jurisdiction.”). Thus, “it is incumbent upon the appellate court to	7
raise jurisdiction questions sua sponte when the Court notices them.” Smith v. City	8
of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. “[O]rders made	9
under the Uniform Arbitration Act of 1971 [are] no more or less appealable than any	10
other orders in civil actions.” Collier v. Pennington, 2003-NMCA-064, ¶ 12, 133	11
N.M. 728, 69 P.3d 238.	12
{3} 	Defendant filed his motion to compel arbitration pursuant to the water well	13
agreement (Agreement) at issue, approximately three months after Plaintiff filed his	14
complaint. The motion relied upon the Agreement entered into by the parties	15
governing rights to the residential water well they shared. The district court partially	16
granted Defendant’s motion to compel arbitration, but also stated in its order that	17
“the [c]ourt reserves ruling on any remaining pending issues and will rule on those	18
issues once the arbitration ruling is made available to the [c]ourt and a party requests	19
a ruling from the [c]ourt.”	20

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{4} 	NMSA 1978, Section 44-7A-29 (2001) lists the types of arbitration orders and	1
judgments from which a party may appeal. But an order granting a motion to compel	2
is not one of those enumerated under Section 44-7A-29. “[W]hen an order	3
concerning arbitration is not one of the orders listed in Section 44-7-19(A) 1 and does	4
not fully resolve all the claims as to any one party, the question of whether it is	5
immediately appealable as of right depends on whether the order is final.” Collier,	6
2003-NMCA-064, ¶ 15. “An order referring issues to arbitration is a final,	7
appealable order if it is the last deliberative action of the court with respect to the	8
controversy before it.” Edward Family Ltd. P’ship v. Brown, 2006-NMCA-083, ¶ 8,	9
140 N.M. 104, 140 P.3d 525 (internal quotation marks and citation omitted). In	10
contrast,	11
an order that sends some of the claims to arbitration and retains other	12
claims for resolution by the district court without finally resolving any	13
of the claims between the parties is not final unless the district court	14
certifies it under Rule 1-054(B)(1) [NMRA] by determining that there	15
is no just reason for delay and directing that judgment be entered.	16
Collier, 2003-NMCA-064, ¶ 15.	17
{5} 	Here, the record indicates that the district court explicitly retained portions of	18
this case for decision. The district court was unequivocal, orally and in writing, that	19
this was a partial referral to arbitration, and granted Defendant’s motion only in part.	20
1 NMSA 1978, Sections 44-7-1 to -22 was repealed by Chapter 227, Section
33 of New Mexico Laws of 2001, effective July 1, 2001. Appealable arbitration
orders are now listed in Section 44-7A-29.

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To this end, the district court’s order is clear that it intended to retain jurisdiction	1
over “any remaining pending issues.” Thus, the district court’s order does not	2
indicate that it is the “last deliberative action of the court with respect to the	3
controversy before it.” Britt v. Phoenix Indem. Ins. Co., 1995-NMSC-075, ¶ 7, 120	4
N.M. 813, 907 P.2d 994 (internal quotation marks and citation omitted).	5
{6} 	Once this case returns to the district court, that court may, but is not required	6
to, determine that there are no further pending issues or claims and enter a final order	7
that does not retain jurisdiction. In the alternative, the district court may enter an	8
order containing certification language pursuant to Rule 1-054(B). Either of those	9
courses of action would facilitate the possibility of an immediate appeal. The current	10
order does not.	11
CONCLUSION	12
{7} 	For the reasons stated above, Plaintiff’s appeal is dismissed. We note that if	13
Plaintiff secures a final, appealable order from the district court, Plaintiff may file a	14
motion with this Court, in lieu of a docketing statement, requesting that Plaintiff’s	15
appeal be returned to the general calendar and considered on the briefs that have	16
already been submitted.	17
{8} 	IT IS SO ORDERED.	18
_________________________________	19
J. MILES HANISEE, Chief Judge	20

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WE CONCUR:

mF

MEGAN P. DUFFY, Jucée

ZACHARY A. EYES, Judge