Grano v. RKI Exploration & Production LLC ( 2019 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MARC GRANO, as Personal
3 Representative of the ESTATE OF
4 ROBERTO MAGDALENO, and
5 LAURA CEJA, Individually and as
6 Parent and Guardian of
7 CHRISTIAN ANDRADE CEJA AND
8 BRANDON ANDRADE CEJA,
9 Plaintiffs-Appellants,
10 v. No. A-1-CA-37329
11 RKI EXPLORATION AND
12 PRODUCTION, LLC,
13 Defendant-Appellee.
14 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
15 Sarah C. Backus, District Judge
16 Wray & Girard, PC
17 Katherine Wray
18 Albuquerque, NM
19 for Appellant
20 Chapman and Priest, P.C.
21 Ada B. Priest
22 Mitchell J. Freedman
23 Albuquerque, NM
1 Holland & Hart LLP
2 Larry J. Montaño
3 Julia Broggi
4 Santa Fe, NM
5 for Appellee
6 MEMORANDUM OPINION
7 VANZI, Judge.
8 {1} Plaintiffs are appealing from a judgment, entered after a jury verdict, dismissing
9 Plaintiffs’ claims against Defendant RKI Exploration and Production, LLC. [RP 3678,
10 4046] We issued a calendar notice proposing to dismiss for lack of a final order.
11 Plaintiffs have filed a memorandum in opposition, which we find unpersuasive.
12 Accordingly, we dismiss.
13 {2} “[O]ur appellate jurisdiction is limited to review of ‘any final judgment or
14 decision, any interlocutory order or decision which practically disposes of the merits
15 of the action, or any final order after entry of judgment which affects substantial
16 rights.’ ” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140
17 N.M. 920, 149 P.3d 1017 (alteration, internal quotation marks, and citation omitted).
18 An appellate court does not have jurisdiction when a final judgment has not been
19 entered. See, e.g., State v. Griego, 2004-NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d
20 1192 (dismissing for lack of jurisdiction when no final judgment had been entered);
2
1 State v. Garcia, 1983-NMCA-017, ¶¶ 29-30, 99 N.M. 466, 659 P.2d 918 (same).
2 When an appellate court does not have jurisdiction, it must dismiss. See Thornton v.
3 Gamble, 1984-NMCA-093, ¶ 15, 101 N.M. 764, 688 P.2d 1268.
4 {3} As indicated, Plaintiffs filed a notice of appeal from a July 31, 2017, judgment,
5 entered after a jury verdict, dismissing Plaintiffs’ claims against Defendant RKI
6 Exploration and Production, LLC. [RP 3678, 4046] However, as the district court
7 noted in its order denying a motion for summary judgment brought by other
8 Defendants, there are pending cross-claims in this case. [RP 4153] Accordingly, our
9 calendar notice proposed to hold that the July 31, 2017 judgment and subsequent order
10 denying a new trial are not considered final pursuant to Rule 1-054(B) NMRA. {4}
11 Plaintiffs argue that the cross-claims are indemnification claims for
12 reimbursement of attorney fees, and therefore should not affect finality. [MIO 12]
13 However, our Supreme Court has held that attorney fees in an indemnification action
14 are equivalent to damages and that a pending fees claim in such cases deem any
15 appeal to be premature. See Principal Mut. Life Ins. Co. v. Straus, 1993-NMSC-058,
16 ¶¶ 10-11, 116 N.M. 412, 863 P.2d 447. We also are not persuaded by Plaintiffs’ claim
17 that the district court implicitly certified finality, because it chose to hold off
18 addressing the cross-claims until this appeal was resolved. [MIO 12] There is no
3
1 indication that the district court actually addressed the Rule 1-054(B) issue on the
2 merits. In light of our analysis, we do not deem it necessary to address arguments
3 made with respect to independent grounds for rendering this matter non-final. [MIO
4 13]
5 {5} For the reasons set forth above, we dismiss the appeal.
6 {6} IT IS SO ORDERED.
7
8 LINDA M. VANZI, Judge
9 WE CONCUR:
10
11 M. MONICA ZAMORA, Judge
12
13 J. MILES HANISEE, Judge
4