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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 VANGIE ARELLANO, 2 Plaintiff-Petitioner/Appellant, 3 v. No. 35,274 4 (Consolidated with 5 No. 35,343) 6 NEW MEXICO DEPARTMENT 7 OF HEALTH, 8 Defendant-Respondent/Appellee. 9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 10 Raymond Z. Ortiz, District Judge 11 The Herrera Firm, P.C. 12 Samuel M. Herrera 13 Taos, NM 14 for Appellant 15 Brennan & Sullivan, P.A. 16 Frank D. Weissbarth 17 James P. Sullivan 18 Santa Fe, NM 19 for Appellee 20

MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 221 Except where otherwise specifically noted, RP citations are to the record 19 proper in D-101-CV-2011-03710. 20 2 {1} Plaintiff has appealed from an order de nying her motion to set aside a decision 1 by an administrative law judge (the ALJ). We previously issued a notice of proposed 2 summary disposition in which we proposedto reverse. Defendant has filed a 3 memorandum in opposition. After due consid eration, we remainunpersuaded. We 4 therefore reverse and remand for further proceedings. 5
{2} The district court’s denial of Plaintiff’s motion was premised on its 6 determination that two precedi ng orders represented final determinations; and, to the 7 extent that Plaintiff had failed to appeal fro m those orders, further consideration of the 8 merits was foreclosed. [RP 1055-56] 1 Defendant contends that the district court 9 correctly so concluded, [MIO 8] arguing th at “all issues in th e case had been finally 10 decided long before.” [MIO 9] To the extent that Plaintiff’s motion was “in substance 11 an untimely motion for reconsideration” from final judgments from which appeal was 12 not taken,[MIO 8-9] Defendant argues that the motion was properly denied without 13 consideration of the merits. We disagree. 14
{3} The first order, dismissing the State Personnel Board (SPB) as a party, was 15 entered by a different judge in the Fourth Judi cial District prior to consolidation of the 16 underlying proceedings. It clearly and explicitly indicates that the dismissal was 17 premised on Montoya v. Dep’t of Fin. & Admin. , 1982-NMCA-051, 98 N.M. 408, 649 183 P.2d 476. [RP for D-412-CV-2012-00238, p. 698] As such, the dismissal simply 1 represented recognition that the SPB was not an indispensable party. Id. ¶¶ 18-28. 2 Plaintiff was therefore under no obligation to appeal from that order to preserve her 3 right to further pursue her claims. See id. ¶¶ 2-4, 28. 4
{4} Defendant contends that the first or der should be given broader significance 5 than the reference to Montoyawould suggest. Defendant argues that insofar as 6 Plaintiff subsequently acknowledged that C ount II was “directed against” the SPB, the 7 preceding order dismissing the SPB should be regarded as dispositive of that count in 8 its entirety. [MIO 9-10] However, the factthat Count II, which has to do with the 9 SPB’s failure to conduct timely proceedings, is directed against the SPB does not alter 10 our analysis. As Montoyaclearly reflects, in cases su ch as this where the SPB has 11 acted in its quasi-judicial capacity, the SPB is not an indispensable party to a 12 subsequent appeal from the SPB’s decisi on, and the SPB’s absence from such an 13 appeal does not diminish an aggrieved party’s ability to challenge the course or 14 outcome of the underlying administrative proceedings. Id. ¶¶ 18, 28. Accordingly, the 15 Fourth Judicial District Court’s dismissal of the SPB from this case, at the SPB’s 16 request and in reliance upon Montoya , [RP for D-412-CV-2012-00238, p. 672-73, 17 698] cannot be regarded as a disposition of the underlying claim. Insofar as Plaintiff 18 remained at liberty to pursu e her arguments relative to C ourt II in the SPB’s absence, 194 the district court’s apparent refusal to consider the merits of those arguments was in 1

error. 2
{5} The second order cannot be regarded as a final decision either. Although that 3 order nominally affirmed the decision of the SPB, it was clearly interlocutory in 4 nature, given that other claims re mained pending. [RP 682-83, 686, 918-19] See 5 generally B.L. Goldberg & A ssocs., Inc. v. Uptown, Inc. , 1985-NMSC-084, ¶ 4, 103, 6 N.M. 277, 705 P.2d 683 (“Absent certification by the trial court, the multiple claims 7 are treated as a single judicial unit, and an adjudication of any less than all of the 8 claims is not a final order.”). As such, it was not a final determination to which res 9 judicata or collateral estoppel effect could be given. See State ex rel. Foy v. Austin 10 Capital Mgmt., Ltd. , 2015-NMSC-025, ¶ 21, 355 P.3d 1 (observing that the rules of 11 res judicata are applicable only wh en a final judgment is rendered); Reeves v. 12 Wimberly , 1988-NMCA-038, ¶ 6, 107 N.M. 231, 755 P.2d 75 (“Collateral estoppel 13 works to bar the relitigation of ultimate facts or issues actually and necessarily decided 14 in the prior suit by a valid and final judgment.”); and see generally Alba v. Hayden , 15 2010-NMCA-037, ¶ 6, 148 N.M. 465, 237 P.3d 767 (observing that res judicata and 16 collateral estoppel “only apply to successivelitigation and not to issues or claims 17 raised in the same proceeding”). Defendant’s assertion to the contrary, [MIO 10] 18 disregarding the pending claims, is unpersuasive. 195 {6} In our notice of proposed summary disposition we noted that the district court’s 1 reference to the law of the case might conceivably have supplied a basis for the denial 2 of Plaintiff’s motion. See id. ¶ 7 (describing law of the case, as a doctrine that relates 3 to litigation of the same issue within th e same suit, and by which a decision on an 4 issue of law that is made at one st age of a case becomes binding precedent in 5 successive stages of the same litigation). However, we expresse d our reluctance to 6 apply it here, given that the second order expressly provides that the alleged 7 procedural irregularities “ doconstitute a waiver or de fault[.]” [RP 683 (emphasis 8 added)] Defendant asserts that the word “not” was “inadvertently omitted” from that 9 phrase. [MIO 5] To the extent that this is so, the error requires correction. We are 10 unwilling to give the order a meaning or si gnificance which is so completely at odds 11 with the language actually employed. Cf. State ex rel. King v. UU Bar Ranch Ltd. 12 P’ship , 2009-NMSC-010, ¶ 40, 145 N.M. 769, 205 P.3d 816 (observing that although 13 we generally presume consistency, where the district court’s determinations are 14 plainly inconsistent, we are unable to arbitrarily choose among them). 15
{7} Accordingly, for the reasons statedabove and in the notice of proposed 16 summary disposition, we conclude that the denial of Plaintiff’s motion, on the grounds 17 stated, was improper. We therefore reverse and remand for further proceedings. 18
8} IT IS SO ORDERED. 196 1

_______________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3 WE CONCUR: 4

5 RODERICK T. KENNEDY, Judge 6

7 M. MONICA ZAMORA, Judge 8