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Pope v. Gap Inc.6/18/1998
ed litigation. See American Mut. Liab. Ins. Co., 235 N.W.2d at 777.
III. CONCLUSION
{33} In sum, we conclude that (1) The Gap is contractually bound to the form of Rule 1-068 judgment proposed by Pope, which contains no express disclaimer of liability; (2) a Rule 1-068 judgment that is silent on the issue of liability is not a judicial determination or admission of liability that can be used in other litigation; and (3) a Rule 1-068 judgment may not constitute a determination or admission of liability unless intended by the parties, and such an intention is reflected in the terms of the judgment. Accordingly, we reverse the trial court's judgment and remand with instructions to enter the form of judgment proposed by Pope.
{34} IT IS SO ORDERED.
BENNY E. FLORES, Judge
I CONCUR: HARRIS L HARTZ, Chief Judge
RUDY S. APODACA, Judge (concurring in part, Dissenting in part)
APODACA, Judge, (concurring in part and Dissenting in part)
{35} I concur in the majority's determination under subsection II(A) of the opinion reversing the trial court's entry of the form of judgment proposed by The Gap. I respectfully Dissent, however, from the majority's Conclusion under subsection II(B) that a Rule 1-068 judgment does not constitute a determination or admission of liability.
{36} My Dissent is premised on the fact that a determination of this issue is unnecessary to the precise issue that is now before this Court in this appeal. See , ___ N.M. ___, ___ P.2d ___ (holding that courts will not decide unnecessary issues). For that reason, I conclude that the majority's Discussion under subsection II(B) is dicta, even though the parties requested the Court to decide the issue.
{37} In his brief in chief, Pope argues that the form of judgment should not contain language limiting The Gap's liability. Pope's brief in chief also alludes to a Rule 1-068 judgment as an admission of liability. The parties sought our determination of this issue at oral argument. The question, however, is not properly before us. The parties' premature request of this Court is tantamount to a request that we issue an advisory opinion, which we should not do in the absence of a justiciable issue. See
{38} The trial court entered The Gap's form of judgment that contained language expressly disclaiming liability. Our opinion reverses that judgment and requires entry of Pope's proposed form of judgment that is silent on The Gap's liability. Before entry of Pope's form of judgment, I do not believe that we can determine its effect on liability. The parties have not had the opportunity to implement the judgment without the limiting language. Pope has not yet attempted to use the judgment in another proceeding as an adjudication or admission of liability. Such an event may or may not occur in the future. Until it does, however, and a proper ruling is before us in another appeal, it would be premature to consider, much less determine, the issue. In addressing the effect of Pope's form of judgment, the majority considers an issue that is not real, present, or imminent. See id. Because the reasoning is unnecessary to a determination of the only issue before the Court, I Dissent from the dicta expressed in subsection II(B). See .
RUDY S. APODACA, Judge
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