This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

ELIZABETH FERNANDEZ, GERARDO LOPEZ, 2 LOREN LYNDOE, PHYLLIS LYNDOE, 3 MANUEL TOLEDO, ISABEL TOLEDO, 4 GLENDA COUNCIL, ROBERT COUNCIL, 5 RON ARMSTRONG, LAURA ARMSTRONG, 6 MICHAEL BROWN, CHRISTINE BROWN, 7 PATRICIA SANCHEZ, FRANCISCA CABRIALES, 8 JAKE LAMFERS, MARTA LAMFERS, 9 SAMUEL HAUGE, MISTY HAUGE, 10 CAL PALMER, VERONICA PALMER, 11 HEATHER JAMES, HAAMID HAKAM, 12 BAXTER BACKER, CAROLYN BACKER, 13 JAMES CORWELL, KERRI CORWELL, 14 JARED HUNTER, JACQUELINE HUNTER, 15 SILVINO SUAREZ, VERA BLUHM, 16 JOHANNA DUNCAN, LOUIS ACANFRIO, 17 RICHARD HOEHNE, ANABEL NAJERA, 18 JEANNETTE PAZ, ROBERT BRUHN, JAKE 19 NUTTALL, DIANE NUTTALL, RON STONE, 20 STELLA STONE, YVONNE BALDONADO, 21 ROBERT ROBLES, TINA ROBLES, JOSEPH 22 CRAIG, ALISA SHTROMBERG, JESSE MAGALLANEZ, 23 PAMELA TAFOYA, ROBERT BONILLA, ALICIA 24 BONILLA, RUBEN VALENZUELA, YVETTE 25 VALENZUELA, IGNACIO SANCHEZ, WENDY 26 SCHMIDT, MARCUS DECLOUETTE, DANIELLE 27 DECLOUTTE, MADELINE R. MANI, SANJAY 28 CHANDRAN, PATRICK YOKOYAMA, ROESEANNE 29 YOKOYAMA, JOHN BACA, JESSICA BACA, TREVOR 302 BRASEL, KIRSTI BRASEL, JOSE CARTER, EMILY 1 CARTER, CALVIN LUCERO, ERIN GARCIA, and 2 LAKANA SANGADEJ, 3 Plaintiffs-Appellees, 4

v. NO. 32,211 5 D.R. HORTON, INC., and 6 DRH SOUTHWEST CONSTRUCTION, INC., 7 Defendants-Appellants. 8

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 9 Richard J. Knowles, District Judge 10 Collins & Collins, P.C. 11 Alysan Boothe Collins 12 Albuquerque, NM 13 for Appellees Calvin Lucero & Erin Garcia 14 Crowley & Gribble, P.C. 15 Clayton E. Crowley 16 Albuquerque, NM 17 for Appellee Lakana Sangedej 18 Guebert Bruckner P.C. 19 Terry R. Guebert 20 Don Bruckner 21 Albuquerque, NM 22 for Appellees 233 Landry & Ludewig, LLP 1 Glenn R. Smith 2 Stephanie Landry 3 Albuquerque, NM 4 for Appellants 5 MEMORANDUM OPINION 6 CASTILLO, Chief Judge. 7 Defendants appeal from the district court’s order granting the motion of 8 Plaintiffs Fernandez, Lopez, and James and Kerri Corwell (the FLC Plaintiffs) to 9 amend the fifth amended complaint, granting the motion of all Plaintiffs for leave to 10 file a sixth amended complain t, and denying Defendants’ mo tion to stay the claims of 11 the FLC Plaintiffs pending arbitration (May 18 order). [SRP 2174-2178] In the 12 alternative, Defendants petiti oned this Court for a writ of error. We proposed to 13 dismiss for lack of a sufficiently final order and to deny the pe tition for writ of error 14 in a notice of proposed summary disposi tion. Defendants filed a memorandum in 15 opposition, and Plaintiffs filed a memorandum in support. After reviewing the 16 memoranda submitted by both parties, we are unconvinced that our proposed 17 disposition is in error, and thus we dismiss Defendants’ appeal for lack of a 18 sufficiently final order. 19 Generally speaking, the right to appeal is restricted to final judgments and 204 decisions. See NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison , 113 1 N.M. 231, 234-40, 824 P.2d 1033, 1036-42 (1992), limited on other grounds by 2 Trujillo v. Hilton of Santa Fe , 115 N.M. 397, 851 P.2d 1064 (1993). Whether an 3 order is final, such that appeal is statutorily authorized, is a jurisdictional question that 4 this Court is required to raise on its own motion. Khalsa v. Levinson , 5 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844. “[F]or purposes of appeal, an 6 order or judgment is not considered final unl ess all issues of law and fact have been 7 determined and the case disposed of by the trial court to the fullest extent possible.” 8 B.L. Goldberg & Assocs. v. Uptown, Inc. , 103 N.M. 277, 278, 705 P.2d 683, 684 9 (1985). 10 In our notice, we proposed to dismiss because the May 18 order did not end the 11 litigation. To the contrary, this order was entered by Judge Knowles who was acting 12 pro tem in an ongoing case that, at the time of our initial noti ce, appeared to be 13 awaiting appointment of a presiding judge. [SRP 2230, 2244, 2247, 2250, 2253, 14 2256, 2259] We proposed to hold that Defendants will have an opportunity to address 15 the issues presented in their appeal once a district court judge is appointed that is 16 acceptable to all parties. It appears that on August 1, 2012, Chief Justice Maes 17 appointed Judge Brickhouse to preside over these proceedings. [MIS 5] 185 In their memorandum in opposition, Defe ndants review the prior proceedings 1 in this matter and reiterate their arguments as to why Judge Knowles lacked the 2 authority to enter the May 18 order. [MIO 1-17, 21] At this juncture, we express no 3 opinion as to the propriety of Judge Knowles’ actions. Ho wever, Defendants’ 4 arguments in no way negate our proposed c onclusion that Defendants may raise their 5 concerns to Judge Brickhouse. 6 Defendants also contend that the harm they suffer from Judge Knowles’ May 7 18 order may only be cured if the order is decl ared void. [MIO 18] Again, we express 8 no opinion. However, we do not agree th at Defendants are harmed merely because 9 they must delay any appeal until after Judge Brickhouse considers their contentions 10 in light of the specific language set forth in Judge Knowles’ order that he was not 11 making a ruling on whether the non-arbitrable claims of the FLC Plaintiffs will 12 proceed [SRP 2177 ¶ 22] and in light of this Court’s opinion in Ct. App. No. 30,663, 13 filed on July 24, 2012. 14 Moreover, to the extent that Defendants c ontend that they have a right to appeal 15 the May 18 order because it constitutes a de nial of Defendants’ motion to compel 16 arbitration, we are unconvinced. [MIO 4-5, 17, 21-26] Defendants’ contentions that 17 they are being denied arbitration are dependent upon a finding by Judge Brickhouse 186 that the FLC Plaintiffs may proceed with any non-arbitrable claims. [MIO 21-26] As 1 discussed in our previous notice, in the May 18 order JudgeKnowles made no 2 decision on whether the FLC Plaintiffs’ non-arbitrable claims would go forward. 3 [SRP 2177 ¶ 22] Instead, the order contempl ates that Defendants can request a status 4 conference or a hearing before Judge Brickhouse to discuss how the case should 5 proceed. [SRP 2178] At that point, should the district court decide that the non6 arbitrable claims should go forward separately, Defendants may seek to appeal that 7 decision pursuant to NMSA 1978, Section 44- 7A-29 (2001), if they believe an appeal 8 is warranted. See § 44-7A-29(a)(1) (providing that an appeal may be taken from “an 9 order denying a motion to compel arbitration”). 10 Turning to Defendants’ cl aims that they are entitle d to a writ of error, we 11 remain unconvinced. [MIO 18-21] As discu ssed in our previous notice, the decision 12 to grant a petition for writ of error is discretionary with this Court. See Rule 12-503(I) 13 NMRA. We agree that Defendants have made a persuasive argument as to why Judge 14 Knowles acted beyond his authority in enteri ng the May 18 order given that the parties 15 were never notified of his appointment and given that the case was currently on appeal 16 before this Court. However, we are not convinced that the impact of this order, if any, 17 may be conclusively determined at this juncture becau se it is unclear what claims, if 187 any, will be allowed to proceedoutside of arbitration. See Rule 12-503(E)(2) (noting 1 the requirements for a writ of error which include a showing that the order appealed 2 from “(a) conclusively determines the dis puted question; (b) resolves an important 3 issue completely separate from the merits of the action; and (c) would be effectively 4 unreviewable on appeal from a final judgment because the remedy by way of appeal 5 would be inadequate”). It is also unclearhow Plaintiffs may elect to go forward in 6 light of this Court’s decision in Ct. App. No. 30,663 that allows Plaintiffs to pursue 7 consolidated arbitration. 8 In sum, given the lack of a final decisi on as to whether the FLC Plaintiffs may 9 go forward on their non-arbitrable claims, the number of issues outstanding between 10 the parties, the recent appointment of JudgeBrickhouse to preside over this case, and 11 this Court’s recent formal opinion in Case No. 30,666, we are not convinced that 12 Defendants’ appeal is sufficiently final fo r consideration at this time. Instead, 13 considerations of efficiency and our polic y of avoiding piecemeal litigation lead us to 14 dismiss Defendants’ appeal for lack of a sufficiently final order. See Kelly Inn No. 15 102, Inc. , 113 N.M. at 239, 824 P.2d at 1041. Defe ndants have also failed to convince 16 us that their claims warrant the exercise of our discretion to grant their petition for writ 17 of error. 188 CONCLUSION 1 Therefore, for the reasons set forth above and those discussed in our notice of 2 proposed summary disposition, we dismiss Defendants’ appeal because it is not 3 sufficiently final for purposes of appellate re view and, to the extent that Defendants 4 seek review pursuant to a petition for writ of error, we deny their petition. 5 IT IS SO ORDERED. 6

__________________________________ 7 CELIA FOY CASTILLO, Chief Judge 8 WE CONCUR: 9

__________________________________ 10 RODERICK T. KENNEDY, Judge 11

__________________________________ 12 LINDA M. VANZI, Judge 13