This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 DAN LOPER, d/b/a RIO LECHE 8 DAIRY CO., 9 Plaintiff/Appellant, 10

v. NO. 29,852 11 (consolidated with) 12 NO. 30,030 13 JMAR, a New Mexico General Partnership, 14 Defendant/Respondent. 15 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 16 David P. Reeb, Jr. District Judge 17 Law Offices of Felicia C. Weingartner, P.C. 18 Felicia C. Weingartner 19 Albuquerque, NM 20 for Appellant 21 Beall & Biehler 22 Gregory L. Biehler 23 Albuquerque, NM 24 25 for Appellee 26

MEMORANDUM OPINION 27 BUSTAMANTE, Judge. 282 In Court of Appeals Case No. 30,030, Plaintiff appealed the district court’s 1 order granting summary judgment to Defendant JMAR “as to the stray voltage claims 2 supported by the testimony of Mr. Stetson” (“10/05/09 Order”). [DS 7; RP Vol. 3 9/3410-3411] In Case No. 29,852, Plaintiff f iled an application for interlocutory 4 appeal from the district court’s order granting partial summary judgment to JMAR 5 based on the Doctrine of Circuity of Action (“9/09/09 Order”). [RP Vol. 8/3342- 6 3343] That order dismissed “any claims related to the electrical matters.” [Id.] 7 We consolidated the two appeals and in a notice of proposed summary 8 disposition, proposed to dismiss for lack of a sufficiently final order in the appeal in 9 Case No. 30,030, and proposed to quash the grant of Plaintiff’s application for 10 interlocutory appeal in Case No. 29,852. JMAR filed a timely memorandum in 11 opposition, and Plaintiff failed to respond to our proposed disposition. Cf. Frick v. 12 Veazey , 116 N.M. 246, 247, 861 P.2d 287, 288 (Ct. App. 1993) (“Failu re to file a 13 memorandum in opposition constitutes acceptance of the disposition proposed in the 14 calendar notice.”). Remaining unpersuaded by JMAR’s memorandum in opposition, 15 we dismiss Plaintiff’s appeal in Case No. 30,030 for lack of a sufficiently final order 16 and quash the grant of Plaintiff’s application for interlocutory appeal in Case No. 17 29,852. 183 As discussed more fully in our previous notice, the right to appeal is usually 1 restricted to final judgments and decisions. See NMSA 1978, § 39-3-2 (1966); Kelly 2 Inn No. 102 v. Kapnison , 113 N.M. 231, 234-40, 824 P.2d 1033, 1036-42 (1992). 3 Even though the litigation between the partie s is continuing in this case, [RP Vol. 4 9/3405-3406] the district court’s 10/05/09 Order appears to be final because the court 5 determined that there is “no just reason for delay.” [RP Vol. 9/3410] See Rule 1- 6 054(B)(1) NMRA. 7 The determination of whether there is “ no just reason for delay” is a matter for 8 the district court’s discretion. See Navajo Ref. Co. v. S. Union Ref. Co. , 105 N.M. 9 616, 617, 735 P.2d 533, 534 (1987). In deciding whether the district court abused its 10 discretion, we consider factors including but not limited to the interrelation of 11 adjudicated and un-adjudicated claims, and th e possibility that if the judgment is final 12 this Court might be obligated to consid er the same issues more than once. See id. If 13 the issues decided by the judgment are intertwi ned, legally or factually, with the issues 14 not yet resolved, or if resolution of the re maining issues may result in an alteration or 15 revision of the earlier judgment, we will hold that the district court abused its 16 discretion in entering a final order by determining that there is no just reason for 174 delay. See id. ; Sys. Tech., Inc. v. Hall , 2004-NMCA-130, ¶ 15, 136 N.M. 548, 102 1 P.3d 107. 2 Initially, we note that the two orders granting summary judgment, although 3 originally the subject of two appeals, were consolidated because they concern 4 interrelated matters. Reading the summary judgment orders together leads us to 5 conclude that the district court granted summary judgment to Defendant JMAR on all 6 claims related to electrical matters which would include cl aims related to stray voltage 7 and any other claims pertaining to th e alleged negligence of JMAR or its 8 subcontractor, Snider, in the installation or design of the electrical system. [RP 9 8/3342-3343, 9/3410-3411] 10 In our previous notice we proposed to dismiss/quash the appeals because the 11 appeals are interrelated and because the district court abused its discretion in 12 determining that there is no just reason for de lay. We noted that Plaintiff’s complaint 13 asserts claims based on negligence and breachof contract. [RP Vol. 1/1-14] The 14 breach of contract claim includes allegations that JMAR failed to build roads or a hay 15 barn, failed to provide a wast e management system or an adequate milking system, 16 and failed to construct a scale. [RP Vol. 1/4-5 ¶ 12, 11 ¶ ¶ 31-33] As to negligence, 17 in addition to contentions regarding the el ectrical system, Plaintiff alleges that JMAR 185 built a milking system with latent defect s including inadequate “pulsation line size,” 1 inadequate airflow and pressure, and other defects. [RP Vol. 1/8-9 ¶ 24, 12 ¶ 37] We 2 noted that the summary judgment orders onl y appear to resolve the negligence claims 3 that are related to stray voltage; the remain ing claims such as failure to construct a 4 proper and adequate milking system and failure to provide a waste management 5 system appear to be outstanding. Given that JMAR’s ultimate liability for breach of 6 contract and for negligence on matters other than claims related to stray voltage is 7 outstanding, we proposed to hold that the summary judgment orders are not 8 sufficiently final because they only dispos e of one issue, whether Plaintiff may 9 recover from JMAR based upon allegations that it was dama ged due to stray voltage. 10 See Graham v. Cocherell , 105 N.M. 401, 404-05, 733 P.2d 370, 373-74 (Ct. App. 11 1987). We concluded that the outstanding cl aims, coupled with “[t]he complexity of 12 this case make[] it possible that we may be obliged to consider some issues more than 13 once if we now review the partial su mmary judgment on its merits,” and thus 14 proposed to dismiss. Navajo Refining Co. , 105 N.M. at 617, 735 P.2d at 534. 15 In its memorandum in opposition, JMAR c ontends that dismissal is improper 16 because only “diminimus” claims remain and that claims arising from the installation 17 of the electrical wiring are discrete. [2 ndMIO 3] We are not persuaded. 186 Even though JMAR alleges “that there [i s] no evidence to support a claim of 1 negligence independent of that of Sniderand [that] the only damages alleged were 2 entirely derivative of Snider’s work,” [2 ndMIO 4] the district court’s orders neither 3 make nor incorporate any such findings. Nor did the district court make findings 4 adopting JMAR’s contention that “all of Plaintiff’s damages were attributed to 5 Snider’s negligence.” [2 ndMIO 7, 8, 9] If all of Plaintiff’s damages were attributed 6 to Snider’s work, the district court could have dismissed Plaintiff’s entire negligence 7 claim. It failed to do so and instead only dismissed the complaint as it concerns 8 electrical matters. [RP 8/3342-3343, 9/3410-3411] Therefore, there is nothing in the 9 orders precluding Plaintiff from attempting to prove at trial that it suffered damages 10 from JMAR’s negligence in matters not related to electrical wiring. However, if 11 JMAR is correct that all of Plaintiff’s dama ges are related to its contentions regarding 12 faulty wiring, any remaining litigation will c onsume very little of the district court’s 13 time because by granting summary judgment to JMAR as to all electrical matters, 14 Plaintiffs are precluded from litigating these claims at trial. [2 ndMIO 14] 15 In closing, we observe that review pur suant to Rule 1-054(B)(1) is an exception 16 to our policy which strongly disfavors piecemeal appeals and “[i]n a close case, the 17 trial court should decide against certifying a judgment for immediate appeal.” Sundial 18Press v. City of Albuquerque , 114 N.M. 236, 240, 836 P.2d 1257, 1261 (Ct. App. 1 1992). We believe that the issues presented on appeal in this case are too close to the 2 issues that remain such that the district court abused its discretion in certifying the 3 judgment for immediate appeal. In light of the outstanding claims for breach of 4 contract and negligence, Plaintiff’s appealof the 10/05/09 Order is dismissed and the 5 order granting interlocutory appeal of the 9/09/09 Order is quashed because the orders 6 are intertwined and because the district court abused its discretion in determining that 7 there is no just reason for delay. 8 Conclusion 9 For the reasons set forth herein and in our previous notice, we dismiss the 10 appeal in Case No. 30,030 and quash the gran t of interlocutory appeal in Case No. 11 29,852 on the basis that the matters are interre lated and that the district court abused 12 its discretion in certifying the order in Case No. 30,030 as final. 13 IT IS SO ORDERED

. 14 15 MICHAEL D. BUSTAMANTE, Judge 16 WE CONCUR: 17

18 CYNTHIA A. FRY, Chief Judge 192 1 LINDA M. VANZI, Judge 2