Mountain View Investment v. Smith ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 MOUNTAIN VIEW INVESTMENT 8 GROUP L.P., 9 Plaintiff-Appellant, 10 and 11 JUDITH HOWARD, JOHN 12 CLOUTHIER, JOHN LINDBLOM, 13 individually and derivatively on 14 behalf of CREE MEADOWS 15 COUNTRY CLUB, INC., 16 Plaintiffs, 17 v. No. 30,389 18 W. WAYNE SMITH in his capacity 19 as chairman of the board of directors 20 and president of CREE MEADOWS 21 COUNTRY CLUB, INC., and MICHAEL 22 SCHATTNER, NEIL GOODMAN, 23 EVAN LUCAS, JIM WALKER, 24 FRANK BUBSER and MIKE 25 MOHRHAUSER in their capacity 26 as members of the board of directors 27 of CREE MEADOWS COUNTRY 28 CLUB, INC., 1 Defendants-Appellees. 2 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 3 Karen L. Parsons, District Judge 4 Tax Estate & Business Law, Ltd. 5 Clinton W. Marrs 6 Albuquerque, NM 7 for Appellant 8 Charles E. Hawthorne 9 Ruidoso, NM 10 for Appellees Cree Meadows Country Club, Inc., W. Wayne Smith, Michael 11 Schattner, Jim Walker, Neil Goodman, and Evan Lucas 12 MEMORANDUM OPINION 13 SUTIN, Judge. 14 Plaintiff Mountain View Investment Group, L.P. appeals from the district 15 court’s order dismissing its claims with prejudice. We issued a first notice of 16 proposed summary disposition, proposing to affirm. Plaintiff filed a response to our 17 notice. Persuaded that the district court’s order of dismissal presents some concerns, 18 we issued a second notice proposing to summarily remand. We have not received a 19 response to our second notice. Therefore, we remand this case to the district court. 20 On appeal, Plaintiff has argued that the district court erred by dismissing its 21 claims with prejudice rather than without prejudice. In district court, Plaintiff agreed 22 that dismissal would be appropriate so long as it could raise a shareholder derivative 2 1 suit in a separate action. It is not clear to us on what grounds the district court 2 dismissed Plaintiff’s case or what result the district court intended by dismissing the 3 case with prejudice or even whether the dismissal with prejudice was a typographical 4 error. 5 On the reasoning set forth in our second notice and in this opinion, we remand 6 this case to the district court for the limited purpose of clarifying the basis for its order 7 dismissing Plaintiff’s case with prejudice. The district court shall enter a written order 8 clarifying the basis for dismissal with prejudice or an order dismissing the case 9 without prejudice, if appropriate, within sixty days of the date of this opinion. 10 Plaintiff shall file a copy of the district court’s order with the Clerk of the Court of 11 Appeals within five days of its entry. Within thirty days of filing the copy of the 12 district court’s order with this Court, Plaintiff shall file a statement regarding whether 13 it intends to proceed with this appeal and an amended docketing statement, if 14 applicable. 15 IT IS SO ORDERED. 16 __________________________________ 17 JONATHAN B. SUTIN, Judge 18 WE CONCUR: 19 _________________________________ 20 CELIA FOY CASTILLO, Judge 3 1 _________________________________ 2 ROBERT E. ROBLES, Judge 4