 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 MELVIN A. ELKINS, JR. and
 8 WANDA L. ELKINS,

 9          Plaintiffs-Appellants,

10 v.                                                                                   NO. 30,683

11 WATERFALL COMMUNITY WATER
12 USERS ASSOCIATION,

13          Defendant-Appellee.

14 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
15 James Waylon Counts, District Judge

16 David McNeill, Jr.
17 Las Cruces, NM

18 for Appellants

19 Jefferson R. Rhodes
20 Alamogordo, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 KENNEDY, Judge.

24          Plaintiffs appeal from an order denying their motion for summary judgment and
 1 granting Defendant’s motion for partial summary judgment. [RP 485] We proposed

 2 to dismiss in a notice of proposed summary disposition because Defendant’s

 3 counterclaims remained outstanding. Plaintiffs filed a memorandum in opposition

 4 which we have duly considered. We remain of the opinion that Plaintiffs’ appeal is

 5 not sufficiently final and thus dismiss the appeal.

 6        As discussed more fully in our previous notice, the right to appeal is usually

 7 restricted to final judgments and decisions. See NMSA 1978, § 39-3-2 (1966); Kelly

 8 Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d 1033, 1036-42 (1992).

 9 “For purposes of appeal, an order or judgment is not considered final unless all issues

10 of law and fact have been determined and the case disposed of by the trial court to the

11 fullest extent possible.” B.L. Goldberg & Assocs. v. Uptown, Inc., 103 N.M. 277, 278,

12 705 P.2d 683, 684 (1985).

13        In the order granting Defendant’s motion for partial summary judgment, the

14 district court found that Plaintiffs only own the water rights on the land that they also

15 own because ownership of the water has not, and can not, be severed from ownership

16 of the land. [RP 485] The court made no findings as to exactly who owns the

17 remainder of the water rights or the water distribution system. [RP 485-486] It also

18 made no determination on Defendant’s counterclaims that Plaintiffs have failed to pay

19 for their use of the water distribution system and other claims involving Plaintiffs’


                                               2
 1 allegedly wrongful actions in connection with the water rights and the water

 2 distribution system. [RP 117-119, 486] Instead, the order indicates that Defendant’s

 3 counterclaims will proceed to trial. [RP 486]

 4        Based upon the outstanding counterclaims, we proposed to dismiss Plaintiffs’

 5 appeal for lack of a sufficiently final order. See Govich v. North Am. Sys., Inc., 112

 6 N.M. 226, 229, 814 P.2d 94, 97 (1991) (stating that an order dismissing fewer than all

 7 of the claims generally is not “a final order from which appeal properly may be

 8 taken”); Watson v. Blakely, 106 N.M. 687, 691, 748 P.2d 984, 988 (Ct. App. 1987)

 9 (stating that “[a]n order disposing of the issues contained in the complaint but not the

10 counterclaim is not a final judgment”), overruled on other grounds by Kelly Inn No.

11 102, Inc., 113 N.M. at 239, 824 P.2d at 1041. We proposed to dismiss because

12 resolving the issues raised in Plaintiffs’ appeal before trial on the counterclaims would

13 be contrary to this Court’s policy against fragmenting issues and piecemeal appeals.

14 See Kelly Inn No. 102, 113 N.M. at 239, 824 P.2d at 1041.

15        In their memorandum in opposition, Plaintiffs claim that we should consider the

16 merits of their appeal because it pertains to the underlying issue in the case which is

17 whether Plaintiffs own the water rights or whether Defendant owns them in trust.

18 [MIO 3] They claim that the issue raised in their appeal, whether separate ownership

19 of water rights and the real estate to which those rights are beneficially applied


                                               3
 1 constitutes a “severance” under New Mexico law, underlies the entire case and is

 2 determinative of all other claims. [MIO 2] Thus, they contend that their appeal is

 3 sufficiently final if the substance of that judgment is considered. [MIO 3-7] We

 4 disagree.

 5        First, even though Plaintiffs may eventually prevail, the district court’s decision

 6 does not practically dispose of the merits of the action [MIO 4] because Defendant’s

 7 counterclaim for damages remains outstanding. See Board of Trustees of Village of

 8 Los Ranchos de Albuquerque v. Sanchez, 2004-NMCA-128, ¶ 6, 136 N.M. 528, 101

 9 P.3d 339 (noting that “[w]hen the issue of damages remains, the order or judgment has

10 not practically disposed of the merits of the case,” and “New Mexico courts adhere to

11 the rule that an order or judgment is not final for purposes of appeal if the issue of

12 damages is outstanding”). Therefore, contrary to Plaintiffs’ contentions, this case is

13 not practically final even though Plaintiffs’ ultimate success might negate the need for

14 trial on Defendant’s counterclaim because the determination of Defendant’s

15 counterclaim for damages is not “more or less ministerial.” [MIO 4] See id. ¶ 11

16 (rejecting the respondents’ argument urging this Court to “interpret the rule of finality

17 practically rather than technically” based on their contentions that “they have a strong

18 case on the merits and the issue of damages will not be examined if they are successful

19 in [the] appeal” because a judgment or order that fails to resolve damages is neither


                                               4
 1 final nor within the “twilight zone of finality”).

 2        Finally, to the extent Plaintiffs may be correct that resolution of the issues

 3 raised in their appeal may be dispositive on the entire case, their appeal may have been

 4 appropriate for interlocutory appeal. See NMSA 1978, § 39-3-4 (1999); Rule 12-203

 5 NMRA. However, Plaintiffs did not comply with the requirements set forth in Section

 6 39-3-4 and Rule 12-203. In any application for interlocutory appeal, the order

 7 appealed must contain the necessary certification language. See § 39-3-4(A) (stating

 8 that an order certifying a matter for interlocutory appeal must contain language that

 9 the matter “involves a controlling question of law as to which there is substantial

10 ground for difference of opinion and an immediate appeal from this order may

11 materially advance the ultimate termination of the litigation”). However, Plaintiffs

12 failed to obtain an order containing the requisite language, and therefore interlocutory

13 review would be improper. See generally State v. Lobato, 2006-NMCA-051, ¶ 38,

14 139 N.M. 431, 134 P.3d 122 (recognizing that incorporation of the mandated

15 certification language is required to permit interlocutory review). Moreover, the case

16 is not appropriate for interlocutory review because Plaintiffs failed to file an

17 application or their notice of appeal within fifteen days. See § 39-3-4(B); Rule 12-

18 203(A); Systems Technology, Inc. v. Hall, 2004-NMCA-130, ¶ 14, 136 N.M. 548, 102

19 P.3d 107 (holding that the plaintiff’s attempt to perfect an interlocutory appeal failed


                                              5
 1 because it failed to file its application until seventeen days after the filing of the

 2 district court’s order).

 3 CONCLUSION

 4        Based upon the foregoing, we remain of the opinion that resolution of the issues

 5 raised in Plaintiffs’ appeal would be premature. Therefore, for the reasons set forth

 6 above and in our notice of proposed summary disposition, we dismiss Plaintiffs’

 7 appeal because it is not sufficiently final for purposes of appeal.

 8        IT IS SO ORDERED.



 9                                         ___________________________________
10                                         RODERICK T. KENNEDY, Judge

11 WE CONCUR:



12 ___________________________
13 CYNTHIA A. FRY, Judge



14 ___________________________
15 MICHAEL E. VIGIL, Judge




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