 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.

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

 7 JOHN E. WHITE,

 8          Plaintiff-Appellant,

 9 v.                                                                   NO. 29,877

10 MONARCH PROPERTIES,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 Louis P. McDonald, District Judge

14 John E. White
15 Rio Rancho, NM

16 Pro Se Appellant

17 Moses, Dunn, Farmer & Tuthill P.C.
18 Ronald A. Tucker
19 Albuquerque, NM

20 for Appellee

21                                 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.
 1        Plaintiff appeals from the district court’s order granting partial summary

 2 judgment in favor of Defendant. The district court’s order granting partial summary

 3 judgment dismissed all of Plaintiff’s claims against Defendant with the exception of

 4 his claims for slander and defamation. [RP 123-24] We issued a calendar notice

 5 proposing summary dismissal on the basis that a final order has not been entered in

 6 this case. Plaintiff filed a timely memorandum in opposition which we have duly

 7 considered. Remaining unpersuaded, we dismiss this appeal for lack of a final order.

 8        In general, the right to appeal is restricted to final judgments and decisions. See

 9 NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 234-40,

10 824 P.2d 1033, 1036-42 (1992). In light of the procedural posture below, which

11 indicates that the litigation among the parties is ongoing, it appears that the order

12 granting partial summary judgment is not final. See Gates v. N.M. Taxation &

13 Revenue Dept., 2008-NMCA-023, ¶ 8, 143 N.M. 446, 176 P.3d 1178 (stating that,

14 generally, orders granting partial summary judgment are not final appealable orders

15 when other claims are left unresolved).

16        The only way the order presently under consideration could only be deemed

17 final is if it falls within the parameters of Rule 1-054(B)(1) NMRA. This rule

18 provides, “when more than one claim for relief is presented in an action, whether as

19 a claim, counterclaim, cross-claim or third-party claim, the court may enter a final

20 judgment as to one or more but fewer than all of the claims only upon an express

                                               2
 1 determination that there is no just reason for delay.         In the absence of such

 2 determination, any order or other form of decision, however designated, which

 3 adjudicates fewer than all the claims shall not terminate the action as to any of the

 4 claims and the order or other form of decision is subject to revision at any time before

 5 the entry of judgment adjudicating all the claims.” Id.

 6        In this case, the order granting partial summary judgment does not contain an

 7 express determination that there is no reason for delay or an express direction for entry

 8 of judgment. Accordingly, the order granting partial summary judgment cannot be

 9 classified as a final order within the parameters of Rule 1-054(B)(1). See Aetna Cas.

10 & Sur. Co. v. Miles, 80 N.M. 237, 453 P.2d 757 (1969). Under the circumstances,

11 interlocutory appeal may have provided the only means of obtaining prompt review

12 of the district court’s ruling. See, e.g., Martinez v. Reid, 2002-NMSC-015, ¶ 1, 132

13 N.M. 237, 46 P.3d 1237. However, Plaintiff has not petitioned for interlocutory

14 appeal in this case. Nor could he have done so, insofar as the district court’s order

15 lacks the requisite certifying language. See NMSA 1978, § 39-3-4(A) (1999); Rule

16 12-203(A) NMRA. For these reasons, the district court’s order does not appear to be

17 immediately reviewable.

18        We note that Plaintiff also purports to appeal from an order dismissing his claim

19 for breach of contract. [DS 1] Plaintiff asserts that the order was verbal in open court

20 on September 10, 2009. [DS 1] However, based on our review of the record, no such

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 1 order has been entered. It appears that a jury trial occurred on September 9, 2009.

 2 [RP 131] However, at this point, there is no indication that a final judgment has been

 3 entered.

 4        In his memorandum in opposition, Plaintiff does not dispute that the order from

 5 which he seeks to appeal is not a final order. Rather, he states that this Court has

 6 failed to consider that Judge McDonald improperly used a Conciliation Agreement

 7 between the parties and improperly allowed Defendants to use the agreement in their

 8 defense. [MIO 1] Plaintiff also states that he was not allowed to quote from the

 9 agreement to demonstrate its misuse. [MIO 1] However, this appears to go to the

10 merits of the appeal, which, until a final order is entered in this case, is not properly

11 before us. We therefore do not address these contentions.

12        For these reasons, we dismiss the appeal. We note that Plaintiff is free to refile

13 the appeal once a final order is entered in this case. See Rule 12-201 NMRA

14 (governing the time for filing an appeal).

15        IT IS SO ORDERED.

16
17                                          MICHAEL D. BUSTAMANTE, Judge

18 WE CONCUR:

19
20 JONATHAN B. SUTIN, Judge

21

                                                4
1 RODERICK T. KENNEDY, Judge




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