This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om 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

SOUTHWESTERN PUBLIC SERVICE 2 COMPANY, 3 Plaintiff/Counterdefendant-Appellee, 4

v. NO. 35,659 5 RLR INVESTMENTS, LLC, 6 Defendant/Counterclaimant-Appellant. 7

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Lisa B. Riley, District Judge 9
Stockard, Johnston & Brown 10 Dusty J. Stockard 11 Amarillo, TX 12 for Appellee 13 Keleher & McLeod, P.A. 14 Kurt Wihl 15 Michael G. Smith 16 Albuquerque, NM 17 Thompson Hine LLP 18 William W. Jacobs 192 Cleveland, OH 1 for Appellant 2

MEMORANDUM OPINION 3 WECHSLER, Judge. 4
{1} In this condemnation action, Defendant/Counterclaimant RLR Investments, 5 LLC (RLR) app eals from the district court’s order of dismissal without prejudice, 6 entered April 22, 2016, and raises issues pertaining to its counterclai ms against 7 Southwestern Public Service Company (SPS). [DS 6; II RP 203A, 217] In our first 8 notice of proposed disposition, we proposed to dismiss for lack of a final order 9 because RLR had filed a timely motion to clar ify the order of dismissal in the district 10 court, which was still pending below. [ See 1 CN 1-5] RLR filed a timely response to 11 our first notice of proposed disposition and informed this Court that it had withdrawn 12 its motion for clarification. [1 Respons e 2] In our second notice of proposed 13 disposition, we proposed to reverse the dist rict court’s sua sponte dismissal of RLR’s 14 counterclaims, and we proposed to conclude that RLR’s second issue—that the district 15 court’s failure to grant RLR’s motion fo r a default judgment—is premature. [ See 2 CN 16 1-5] RLR filed a timely response to our second notice of proposed disposition, in 17 which RLR agreed with our proposed dispos ition but asked this Court to include more 183 specific language in our opinion. [2 Respons e 1-2] SPS did not file a response to our 1 second notice of proposed disposition. 2
{2} Issue 1: In its docketing statement, RLR argue d that the district court erred in 3 sua sponte dismissing its counterclaims, to which SPS neve r responded, without 4 addressing the counterclaims in its order. [DS 6] In our second notice of proposed 5 disposition, we noted that it was unclear whet her the district court intended to dismiss 6 the counterclaims, but based on the broad di smissal language in the order, it appeared 7 that the district court dismissed the entir e case, including RLR’s counterclaims. [2 CN 8 4] Based on the facts before this Court, we proposed to conclude that the district court 9 abused its discretion in sua sponte dismissing RLR’s counterclaims. [2 CN 4-5] 10
{3} In response, RLR agrees with this Cour t’s proposed reversal on this issue, but 11 asks this Court to (1) specify that the April 22, 2016 order is reversed only as to the 12 dismissal of RLR’s counterclaims and (2) confirm that the dismissal of SPS’s 13 condemnation petition reflected in the Ap ril 22, 2016 order remains in place. [2 14 Response 2] RLR asserts that SPS did not tim ely appeal the dismissal of its petition 15 and RLR did not challenge that aspect of the district court’s disposition of the case. 16 [Id.] 17
{4} As we discussed in our second notice of proposed disposition, the district court 18 erred in sua sponte dismissing RLR’s countercl aims. [2 CN 4-5] The district court’s 194 dismissal of SPS’s condemnation petition was not an issue raised on appeal; therefore, 1 we decline to address it in this opinion. 2
{5} Issue 2: In its docketing statement, RLR assert ed that the district court erred in 3 failing to grant its applica tion for default judgment on its counterclaims against SPS. 4 [DS 6] Given this Court’s proposed dispositi on as to Issue 1, we proposed to conclude 5 that this issue is premature and we declin ed to address it further in our second notice 6 of proposed disposition. [2 CN 5] 7
{6} In response, RLR agrees with this Court’s proposed disposition as to Issue 2, 8 but asks this Court to instruct the district court to proceed with ruling on the pending 9 application for default judgment. [2 Respons e 2] Because this issue is premature, we 10 decline to address this issue further. 11
{7} Accordingly, for the reasons stated he rein and in our second notice of proposed 12 summary disposition, we reve rse and remand for further pr oceedings consistent with 13 this opinion. 14
{8} IT IS SO ORDERED. 15

__________________ ______________ 16 JAMES J. WECHSLER, Judge 175 WE CONCUR: 1

________________________________ 2 JONATHAN B. SUTIN, Judge 3

________________________________ 4 M. MONICA ZAMORA, Judge 5