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Sam v. Estate of Sam12/12/2003
02, a hearing was held on the Estate's motion for summary judgment. On June 17, 2002, the district court entered its findings of fact and conclusions of law and granted the Estate's motion for summary judgment, concluding that the action was barred by the statute of limitations of both Arizona and New Mexico because Sam was a public employee, and " ny public employee in either state in the same situation would only be subject to a one or two-year statute [of limitations]." The district court stated that " here is no legal or logical reason to subject to a three-year statute simply because of the fortuitous event that the accident occurred in New Mexico, and . . . o allow this suit to go forward on that basis would undermine the policies and laws of both Arizona and New Mexico." On June 25, 2002, Plaintiffs filed a notice of appeal on the order granting summary judgment to the Estate, and on that same day, they also filed an amended notice of appeal which stated that Plaintiffs were appealing "against all parties Defendant including, . . . Trust."
DISCUSSION
The District Court's October 3, 2001, Order Dismissing the Trust Was a Final Order
The October 3 order was a final judgment as to the Trust. Rule 1-054(B)(2) NMRA 2003 governs judgments upon multiple parties, and it states that a "judgment may be entered adjudicating all issues as to one or more, but fewer than all parties." It further states that " uch judgment shall be a final one unless the court . . . expressly provides otherwise and a provision to that effect is contained in the judgment." Id. No such provision was provided in the October 3 order. "An order is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible." Estate of Griego v. Reliance Standard Life Ins. Co., 2000-NMCA-022, 13, 128 N.M. 676, 997 P.2d 150. The district court's order granting summary judgment as to the Trust dismissed all claims directed at the Trust by Plaintiffs, and was therefore a final order.
Plaintiffs Did Not Properly Appeal the District Court's Order Dismissing Plaintiffs' Claims Against the Trust
Plaintiffs did not immediately try to appeal the district court's October 3, 2001, order dismissing the Trust. Rule 12-201(A)(2) NMRA 2003 requires that a notice of appeal must be filed within thirty days after the judgment or order appealed from is filed in district court. See also Rule 12-202 NMRA 2003 (setting forth the time frame in which an appeal shall be taken and specifying the contents that must be included in a notice of appeal). In this case, Plaintiffs filed both a notice of appeal and an amended notice of appeal on June 25, 2002. Therefore, the notice was filed well beyond the thirty-day requirement.
Moreover, the appeal we are concerned with at this time is from the district court's findings of fact and conclusions of law on the Estate's motion for summary judgment and its order granting summary judgment to the Estate. Although the amended notice of appeal mentions that the appeal is taken against all Defendants, including the Trust, the Plaintiffs did not attach a copy of the order dismissing the Trust to the notice of appeal, nor was the October 3 order referenced in the notice, as required by Rule 12-202(B). " n appellant has a duty to specify each order in the notice of appeal from which an appeal is taken." Mabrey v. Mobil Oil Corp., 84 N.M. 272, 274, 502 P.2d 297, 299 (Ct. App. 1972). Although notices of appeal are to be liberally construed, the intent to appeal should be fairly inferred from the notice. Id. In this case, it is fa
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