The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for pub lication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: May 16, 2023 3

No. A

- 1

- CA

- 40171 4

ROOF & METAL CO., LLC, a foreign 5 corporation, 6

Plaintiff/Counterdefendant

- Appellee, 7

v. 8

BOARD OF REGENTS OF NEW 9 MEXICO STATE UNIVERSITY, 10
Defendant/Counterplaintiff/ 11 Cross

- Claimant

- Appellant, 12

and 13

JOHNS MANVILLE, INC., a foreign 14 corporation, 15

Defendant, 16

and 17

C. ORTIZ, CORP., a foreign corporation; 18 and PHILADELPHIA INDEMNITY 19 INSURANCE COMPANY, a foreign 20 corporation, 21

Cross

- Defendants. 22

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 23 Ellen R. Jessen, District Court Judge 24Jackson Loman Stanford Downey & Stevens

- Block, P.C. 1 Leah M. Stevens

- Block 2 Kara Shair

- Rosenfield 3 Albuquerque, NM 4
for Appellee 5

The Carrillo Law Firm, P.C. 6 Raúl A. Carrillo, Jr. 7 Fred K. Heinrich 8 Las Cruces , NM 9

f or Appellant 10OPINION 1

WRAY, Judge. 2

{1} This matter arises from a breach of contract action involving Appellant
, Board 3
of Regents of New Mexico State University (NMSU)
, and Appellee Roof & Metal 4

Co.
, LLC (Appellee). The district court denied NMSU’s claim for sovereign 5
immunity that was based on NMSA 1978, Section 37

- 1

- 23(A) (1976) 6
(“Governmental entities are granted immunity from actions based on contract, 7
except actions based on a valid written contract.”). We grante d NMSU’s petition for 8
writ of error (the Petition) to consider NMSU’s representation that the contract was 9

invalid
, because Appellee violated or failed to comply with certain statutory 10
requirements related to business formation, construction licensing, and public works 11

contracts. See Handmaker v. Henney
, 1999

- NMSC

- 043, ¶ 9 , 128 N.M. 328, 992 P.2d 12

879 ; see also Rule 12

- 503(B), (L) NMRA (addressing writs of erro r )

. With the 13

benefit of t he record and the parties’ briefing, we hold that the underlying order is 14

not appropriate for collateral review. We therefore quash the writ of error and 15

remand for trial. 16

BACKGROUND 17

{2 } The record for this matter comes to us in seventeen volumes totaling nearly 18
four thousand pages. We do not attempt to provide a full and comple te history of this 19
litigation and purposefully limit our presentation to those facts necessary to consider 202 the propriety and merits of the writ, which is an inherently narrow inquiry. See 1

Handmaker
, 1999

- NMSC

- 043, ¶ ¶ 8, 10 (referring to the collateral order doctrine as 2
a “limited exception” to the rules of finality); Carrillo v. Rostro , 1992

- NMSC

- 054, 3

¶ 14, 114 N.M. 607, 845 P.2d 130 (noting that appellate

- court jurisdiction is 4
generally limited to final orders with “ cert ain exceptions”). 5

{3 } The contract in the present case (the Contract) identifies NMSU as the 6

“Owner

- Regents” and “The Roof & Metal Co.” as the “Contractor.” The parties 7
dispute whether Appellee (Roof & Metal Co., LLC) and the Contractor (The Roof 8

& Metal C o.) are the same entity, and we therefore refer to the entity that signed the 9

Contract as “Contractor.” NMSU and Contractor entered into the Contract for the 10
reroofing of three campus buildings on June 8, 2018. The roofs for the first two 11
buildings were co mpleted without issue , but trouble arose regarding the parties’ 12
performance in relation to the roofing of the third building. 13

{4 } Appellee filed the complaint in the present case and asserted in relevant part 14
that NMSU breached the Contract by failing to p ay for the roofing work on the third 15
building . NMSU filed co unterclaims against Appellee for breach of the C ontract for 16
poor workmanship and successfully joined and asserted a cross

- claim for breach of 17
the Contract against C. Ortiz Corporation (Ortiz), whi ch at the time, NMSU 18
contended was an alter ego of Appellee and/or Contractor. In August 2021, a fter 193 more than eighteen months of litigation, the district court set trial for February 3, 1

2022. 2

{5 } On the stipulated dispositive motions deadline in December 2021, NMSU 3

filed a voluminous motion to dismiss and for summary judgment (NMSU MSJ) , with 4
hundreds of pages of exhibits. The NMSU MSJ, i n relevant part, argued that (1) 5
Appellee was not a proper party based on business registration filings; ( 2) ve nue was 6
improper, again based on t he entity status of Appellee and the relationships among 7
Appellee , Contractor, and other similarly

- named entities; and (3) NMSU wa s 8
justified in terminating the C ontract. In early January 2022, NMSU filed an 9

additional mot ion to dismiss, followed the next day by two addendum filings 10
including nearly two hundred additional pages of exhibits. The district court set the 11
hearing for these motion s

— and multiple other motions

— for January 26, 2022. 12

{6 } On January 25, 2022, the day before the motion hearing and just days before 13
the February 3, 2022 trial setting , NMSU filed a document titled
, “Defendant Board 14
of Regents Notice of Supplemental Authority Supporting Dismissal Pur suant to 15

[Section] 37

- 1

- 23 ” (the Notice). It was in the N otice that NMSU first raised 16
sovereign immunity, as well as a new argument addressing the validity of the 17

C ontractor’s license and the familiar contentions about the identity of entities, public 18
records, and real parties in interest. At the time the Notice was filed, Appellee and 19

Ortiz had already filed their separate responses to the NMSU MSJ. 204 {7 } NMSU’s explanation for the late filing was the discovery “during trial 1
preparation, [of] evidence of additional statutory and regulatory violations that 2

render t he contract the plaintiff party is suing on invalid.” We observe, however, that 3
more than a year before the Notice, NMSU indicated that it had reviewed corporate 4
documents filed with the Secretary of State’s O ffice in order to investigate the 5

various business rel ationships. 6

{8 } At the hearing, the district court found a valid written contract between 7
Appellee and NMSU and denied NMSU’s summary judgment motions. From this 8
ruling, NMSU petitioned this Court for a writ of error, which we granted. 9

DISCUSSION 10

{9 } To establish immunity from suit, NMSU relies on Section 37

- 1

- 23, which 11

grants “[g]overnmental entities .

. . immunity from actions based on contract, except 12

actions based on a valid written contract.” We agree with NMSU that “the issue of 13

go vernmental immunity is jurisdictional in nature a nd that it may be raised at any 14

time. ” S ee Spray v. City of Albuquerque , 1980

- NMSC

- 028, ¶ 13, 94 N.M. 199, 608 15

P.2d 511. Nevertheless, “ [i] t is of course firmly established that, subject to certain 16
exception s, [appellate courts have] no jurisdiction to review an order or decision that 17

is not final.” Carrillo
, 1992

- NMSC

- 054, ¶ 14 ; s ee also NMSA 1978, § 39

- 3

- 2 (1966) 18
(requiring a final order in civil appeals from district court). NMSU has invoked such 195 an exception to this rule of finality

— the collateral order doctrine. See Carrillo , 1992

- 1

NMSC

- 054, ¶ 17. 2

{1 0 } We apply the collateral order doctrine only in limited circumstances, to 3
“prevent the interruption of [district] court proce edings by any party claiming 4
hardship because of postponement of review.” Handmaker , 1999

- NMSC

- 043, ¶ 1 0 5
(internal quotation marks and citation omitted). Our Supreme Court has long 6
emphasized the importance of not permitting “unwarranted expansion of the ‘ small 7
class’ of cases in which the doctrine may be appropriately applied.” Carrillo , 1992

- 8

NMSC

- 054, ¶ ¶ 23

- 24. I f the collateral order doctrine is applied in too many contexts, 9

“the benefits of the final

- judgment rule will b e lost; and piecemeal appeals

— des pite 10

[our Supreme] Court’s and most other court s’ strong policy against them

— will 11
become the order of the day.” Id. ¶ 23 (citation omitted). 12

{1 1 } In this vein, Appellee contends that NMSU improperly utilized the collateral 13
order doctrine to delay trial an d asks this Court to quash the writ of error . In light of 14
the full record, we agree. We hold that the circumstances underlying NMSU’s 15
request for immunity in the district court resulted in an order that is not appropriate 16

for our review under the collatera l order doctrine. We begin by considering the 17
conditions that are appropriate for collateral review on appeal and the circumstances 18
under which NMSU sought immunity. 196 {1 2 } To fall within the collateral order doctrine exception, “an order must at a 1
minimum satisfy three conditions,” id. ¶ 16 (internal quotation marks and citation 2
omitted), including that “(1) the order must finally determine the disputed question; 3
(2) it must concern an issue that is entirely separate from the merits of the claim; an d 4
(3) there must be no effective remedy by appeal, ” Handmaker , 1999

- NMSC

- 043, 5

¶ 9; accord Rule 12

- 503(E)(2). While the Petition for a writ of error in the presented 6

case may have satisf ied these three minimum conditions, requests for collateral 7

review that arise from immunity under Section 37

- 1

- 23(A) involve additional 8
considerations. Our Supreme Court has explained that 9
even though determinati ons of sovereign immunity under Section 37

- 10 1

- 23(A) are generally subject to the collateral order doctrine, . . . th e 11 limite d nature of immunity granted in Section 37

- 1

- 23(A) requires .

. . 12 scrutiniz[ation of] the specific factual context surrounding such 13 determinations in order to determine whether issuance of a writ of error 14 would be appropriate. 15

Handmaker , 1999

- NMSC

- 043, ¶ 16. Considerations including “‘delay, comparative 16
expertise of trial and appellate courts, and wise use of appellate resources
, ’” 17
Salehpoor v. N.M. Inst. of Mining & Tech. , 2019

- NMCA

- 046, ¶ 24, 447 P.3d 1169 18
(quoting Handmaker , 1999

- NMSC

- 043, ¶ 16), support “limiting collateral review to 19
cases presenting abstract issues of law.” Id. In the present case, these considerations 20
undermine the suitability of collateral review to decide the issues raised in the 21

Petition. 227 {1 3 } NMSU brought the Petition only days before trial, following two years of 1
litigation

— including a counterclaim and a cross

- claim that NMSU brought on the 2

Contract. While Section 37

- 1

- 23(A) affords immunity from suit and the burdens of 3
trial on the merits, and not just liabil ity, see Handmaker , 1999

- NMSC

- 043, ¶ 14, 4
NMSU effectively surrendered many of the benefits of immunity from suit by 5
litigating the case for two years and raising the issue only days before trial. 6
Ultimately, NMSU’s asserted basis for immunity is a tangle o f statutory 7
requirements, corporate filings in two states, deposition testimony, and affidavits

— 8
all suggesting a fact

- intensive argument that is best suited for trial. Raising the 9
immunity issue at that late date delayed a looming trial at which the fact i ntensive 10

issues would have been decided. We are particularly mindful that the evidence 11
offered to support immunity was available from public sources long before NMSU 12
filed the Notice. Proceeding to trial would have significantly reduced delays, 13

decreased t he likelihood of piecemeal appeal s , and left to the district court matters 14
that are better within its expertise. 15

{1 4 } While a petition for a writ of error is generally an appropriate mechanism to 16
seek immediate review for denials of immunity under Section 37

- 1

- 23(A), a writ 17
petition must apprise th is Court of the complete and “specific factual context 18
surrounding” the district court’s denial of immunity. See Handmaker , 1999

- NMSC

19

043, ¶ 16; cf. Univ. of N.M. Police Officer’s Ass’n v. Univ. of N.M. , 2005

- NMS C

- 208 030, ¶¶ 18, 22, 138 N.M. 360, 120 P.3d 442 (holding that a public university was 1

not immune under Section 37

- 1

- 23(A)
, but confining the analysis “to the compelling 2
circumstances of [that] case”). This Court does not have the benefit of the record 3

proper at the time we grant or deny a petition for a writ of error. See Rule 12

- 503(L). 4
We rely on the parties to provide a full presentation of the information relevant to 5
the propriety of the writ so that we may “ensure that review under the [collateral 6

order] doctrine occurs only when justified.” See Handmaker , 1999

- NMSC

- 043, ¶ 10 7
(text only); see also Campos de Suenos, Ltd. v. Cnty. of Bernalillo , 2001

- NMCA

8

043, ¶ 17, 130 N.M. 563, 28 P.3d 1104 (observing that this Court’s “immediate 9
review of immunity claims by writ of error is usually reserved for discrete legal 10
issues that do not depend on extensive factual analysis for their resolution”). In that 11
regard, Appellee did not take the opportunity to file a response to the Petition and 12
apprise this Court of its v iew of the factual circumstances or legal arguments. See 13

Rule 12

- 503(J). 14

{1 5 } The Petition described circumstances that suggested compelling reasons to 15
grant collateral review of immunity. But the Petition did not reference the parties’ 16
seeming reliance on the Contract, the evolution of the immunity argument, the filing 17
of a “notice” rather than a motion to assert immunity, the extensive litigation before 18
the Notice, or the looming trial date. Without this information, this Court could not 19

effect ively evaluate the propriety of the collateral order exception in the context of 209 the circumstances of the entire case, including the needs of the parties and resources 1
of the appellate court. 2

CONCLUSION 3

{1 6 } With all of these considerations in mind, we ho ld that the factual context and 4
procedural posture of the present case supports denying collateral review. Cf. 5
Salehpoor , 2019

- NMCA

- 046, ¶ 25 (exercising discretion to decide the merits of an 6
issue not appropriate for collateral review in part because “dec lining to review the 7
issue at th[at] juncture would not advance the interests underlying the collateral order 8
doctrine”). We therefore quash the writ of error and remand for trial. 9

{1 7 } IT IS SO ORDERED. 10

_____________________ _____________ 11 KATHERINE A. WRAY, Judge 12

WE CONCUR: 13

_________________________________ 14 MEGAN P. DUFFY, Judge 15

_________________________________ 16 MICHAEL D. BUSTAMANTE, Judge, 17 retired, sitting by designation 18