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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 VANGIE ARELLANO,

 3          Plaintiff-Petitioner/Appellant,

 4 v.                                                                    No. 35,274
 5                                                                       (Consolidated with
 6                                                                       No. 35,343)
 7 NEW MEXICO DEPARTMENT
 8 OF HEALTH,

 9          Defendant-Respondent/Appellee.

10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
11 Raymond Z. Ortiz, District Judge

12 The Herrera Firm, P.C.
13 Samuel M. Herrera
14 Taos, NM

15 for Appellant

16   Brennan & Sullivan, P.A.
17   Frank D. Weissbarth
18   James P. Sullivan
19   Santa Fe, NM

20 for Appellee


21                                 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.
 1   {1}   Plaintiff has appealed from an order denying her motion to set aside a decision

 2 by an administrative law judge (the ALJ). We previously issued a notice of proposed

 3 summary disposition in which we proposed to reverse. Defendant has filed a

 4 memorandum in opposition. After due consideration, we remain unpersuaded. We

 5 therefore reverse and remand for further proceedings.

 6   {2}   The district court’s denial of Plaintiff’s motion was premised on its

 7 determination that two preceding orders represented final determinations; and, to the

 8 extent that Plaintiff had failed to appeal from those orders, further consideration of the

 9 merits was foreclosed. [RP 1055-56]1Defendant contends that the district court

10 correctly so concluded, [MIO 8] arguing that “all issues in the case had been finally

11 decided long before.” [MIO 9] To the extent that Plaintiff’s motion was “in substance

12 an untimely motion for reconsideration” from final judgments from which appeal was

13 not taken,[MIO 8-9] Defendant argues that the motion was properly denied without

14 consideration of the merits. We disagree.

15   {3}   The first order, dismissing the State Personnel Board (SPB) as a party, was

16 entered by a different judge in the Fourth Judicial District prior to consolidation of the

17 underlying proceedings. It clearly and explicitly indicates that the dismissal was

18 premised on Montoya v. Dep’t of Fin. & Admin., 1982-NMCA-051, 98 N.M. 408, 649

         1
19         Except where otherwise specifically noted, RP citations are to the record
20 proper in D-101-CV-2011-03710.

                                               2
 1 P.2d 476. [RP for D-412-CV-2012-00238, p. 698] As such, the dismissal simply

 2 represented recognition that the SPB was not an indispensable party. Id. ¶¶ 18-28.

 3 Plaintiff was therefore under no obligation to appeal from that order to preserve her

 4 right to further pursue her claims. See id. ¶¶ 2-4, 28.

 5   {4}   Defendant contends that the first order should be given broader significance

 6 than the reference to Montoya would suggest. Defendant argues that insofar as

 7 Plaintiff subsequently acknowledged that Count II was “directed against” the SPB, the

 8 preceding order dismissing the SPB should be regarded as dispositive of that count in

 9 its entirety. [MIO 9-10] However, the fact that Count II, which has to do with the

10 SPB’s failure to conduct timely proceedings, is directed against the SPB does not alter

11 our analysis. As Montoya clearly reflects, in cases such as this where the SPB has

12 acted in its quasi-judicial capacity, the SPB is not an indispensable party to a

13 subsequent appeal from the SPB’s decision, and the SPB’s absence from such an

14 appeal does not diminish an aggrieved party’s ability to challenge the course or

15 outcome of the underlying administrative proceedings. Id. ¶¶ 18, 28. Accordingly, the

16 Fourth Judicial District Court’s dismissal of the SPB from this case, at the SPB’s

17 request and in reliance upon Montoya, [RP for D-412-CV-2012-00238, p. 672-73,

18 698] cannot be regarded as a disposition of the underlying claim. Insofar as Plaintiff

19 remained at liberty to pursue her arguments relative to Court II in the SPB’s absence,



                                              3
 1 the district court’s apparent refusal to consider the merits of those arguments was in

 2 error.

 3   {5}    The second order cannot be regarded as a final decision either. Although that

 4 order nominally affirmed the decision of the SPB, it was clearly interlocutory in

 5 nature, given that other claims remained pending. [RP 682-83, 686, 918-19] See

 6 generally B.L. Goldberg & Assocs., Inc. v. Uptown, Inc., 1985-NMSC-084, ¶ 4, 103,

 7 N.M. 277, 705 P.2d 683 (“Absent certification by the trial court, the multiple claims

 8 are treated as a single judicial unit, and an adjudication of any less than all of the

 9 claims is not a final order.”). As such, it was not a final determination to which res

10 judicata or collateral estoppel effect could be given. See State ex rel. Foy v. Austin

11 Capital Mgmt., Ltd., 2015-NMSC-025, ¶ 21, 355 P.3d 1 (observing that the rules of

12 res judicata are applicable only when a final judgment is rendered); Reeves v.

13 Wimberly, 1988-NMCA-038, ¶ 6, 107 N.M. 231, 755 P.2d 75 (“Collateral estoppel

14 works to bar the relitigation of ultimate facts or issues actually and necessarily decided

15 in the prior suit by a valid and final judgment.”); and see generally Alba v. Hayden,

16 2010-NMCA-037, ¶ 6, 148 N.M. 465, 237 P.3d 767 (observing that res judicata and

17 collateral estoppel “only apply to successive litigation and not to issues or claims

18 raised in the same proceeding”). Defendant’s assertion to the contrary, [MIO 10]

19 disregarding the pending claims, is unpersuasive.



                                               4
 1   {6}   In our notice of proposed summary disposition we noted that the district court’s

 2 reference to the law of the case might conceivably have supplied a basis for the denial

 3 of Plaintiff’s motion. See id. ¶ 7 (describing law of the case, as a doctrine that relates

 4 to litigation of the same issue within the same suit, and by which a decision on an

 5 issue of law that is made at one stage of a case becomes binding precedent in

 6 successive stages of the same litigation). However, we expressed our reluctance to

 7 apply it here, given that the second order expressly provides that the alleged

 8 procedural irregularities “do constitute a waiver or default[.]” [RP 683 (emphasis

 9 added)] Defendant asserts that the word “not” was “inadvertently omitted” from that

10 phrase. [MIO 5] To the extent that this is so, the error requires correction. We are

11 unwilling to give the order a meaning or significance which is so completely at odds

12 with the language actually employed. Cf. State ex rel. King v. UU Bar Ranch Ltd.

13 P’ship, 2009-NMSC-010, ¶ 40, 145 N.M. 769, 205 P.3d 816 (observing that although

14 we generally presume consistency, where the district court’s determinations are

15 plainly inconsistent, we are unable to arbitrarily choose among them).

16   {7}   Accordingly, for the reasons stated above and in the notice of proposed

17 summary disposition, we conclude that the denial of Plaintiff’s motion, on the grounds

18 stated, was improper. We therefore reverse and remand for further proceedings.

19   8}    IT IS SO ORDERED.



                                               5
1

2                           _______________________________________
3                           MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5
6 RODERICK T. KENNEDY, Judge


7
8 M. MONICA ZAMORA, Judge




                                 6
