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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 SOUTHWESTERN PUBLIC SERVICE

3 COMPANY,

4 Plaintiff/Counterdefendant-Appellee,

5 v. NO. 35,659

6 RLR INVESTMENTS, LLC,

7 Defendant/Counterclaimant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

9 Lisa B. Riley, District Judge

10 Stockard, Johnston & Brown

11 Dusty J. Stockard

12 Amarillo, TX

13 for Appellee

14 Keleher & McLeod, P.A.

15 Kurt Wihl

16 Michael G. Smith

17 Albuquerque, NM

18 Thompson Hine LLP

19 William W. Jacobs
2

1 Cleveland, OH

2 for Appellant

3 MEMORANDUM OPINION

4 WECHSLER, Judge.

5 {1} In this condemnation action, Defendant/Counterclaimant RLR Investments,

6 LLC (RLR) appeals from the district court’s order of dismissal without prejudice,

7 entered April 22, 2016, and raises issues pertaining to its counterclaims against

8 Southwestern Public Service Company (SPS). [DS 6; II RP 203A, 217] In our first

9 notice of proposed disposition, we proposed to dismiss for lack of a final order

10 because RLR had filed a timely motion to clarify the order of dismissal in the district

11 court, which was still pending below. [See 1 CN 1-5] RLR filed a timely response to

12 our first notice of proposed disposition and informed this Court that it had withdrawn

13 its motion for clarification. [1 Response 2] In our second notice of proposed

14 disposition, we proposed to reverse the district court’s sua sponte dismissal of RLR’s

15 counterclaims, and we proposed to conclude that RLR’s second issue—that the district

16 court’s failure to grant RLR’s motion for a default judgment—is premature. [See 2 CN

17 1-5] RLR filed a timely response to our second notice of proposed disposition, in

18 which RLR agreed with our proposed disposition but asked this Court to include more
3

1 specific language in our opinion. [2 Response 1-2] SPS did not file a response to our

2 second notice of proposed disposition.

3 {2} Issue 1: In its docketing statement, RLR argued that the district court erred in

4 sua sponte dismissing its counterclaims, to which SPS never responded, without

5 addressing the counterclaims in its order. [DS 6] In our second notice of proposed

6 disposition, we noted that it was unclear whether the district court intended to dismiss

7 the counterclaims, but based on the broad dismissal language in the order, it appeared

8 that the district court dismissed the entire case, including RLR’s counterclaims. [2 CN

9 4] Based on the facts before this Court, we proposed to conclude that the district court

10 abused its discretion in sua sponte dismissing RLR’s counterclaims. [2 CN 4-5]

11 {3} In response, RLR agrees with this Court’s proposed reversal on this issue, but

12 asks this Court to (1) specify that the April 22, 2016 order is reversed only as to the

13 dismissal of RLR’s counterclaims and (2) confirm that the dismissal of SPS’s

14 condemnation petition reflected in the April 22, 2016 order remains in place. [2

15 Response 2] RLR asserts that SPS did not timely appeal the dismissal of its petition

16 and RLR did not challenge that aspect of the district court’s disposition of the case.

17 [Id.]

18 {4} As we discussed in our second notice of proposed disposition, the district court

19 erred in sua sponte dismissing RLR’s counterclaims. [2 CN 4-5] The district court’s
4

1 dismissal of SPS’s condemnation petition was not an issue raised on appeal; therefore,

2 we decline to address it in this opinion.

3 {5} Issue 2: In its docketing statement, RLR asserted that the district court erred in

4 failing to grant its application for default judgment on its counterclaims against SPS.

5 [DS 6] Given this Court’s proposed disposition as to Issue 1, we proposed to conclude

6 that this issue is premature and we declined to address it further in our second notice

7 of proposed disposition. [2 CN 5]

8 {6} In response, RLR agrees with this Court’s proposed disposition as to Issue 2,

9 but asks this Court to instruct the district court to proceed with ruling on the pending

10 application for default judgment. [2 Response 2] Because this issue is premature, we

11 decline to address this issue further.

12 {7} Accordingly, for the reasons stated herein and in our second notice of proposed

13 summary disposition, we reverse and remand for further proceedings consistent with

14 this opinion.

15 {8} IT IS SO ORDERED.

16 ________________________________

17 JAMES J. WECHSLER, Judge
5

1 WE CONCUR:

2 ________________________________

3 JONATHAN B. SUTIN, Judge

4 ________________________________

5 M. MONICA ZAMORA, Judge