Century Bank v. Artyard ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CENTURY BANK, a New Mexico
3 banking corporation,
4 Plaintiff-Appellee,
5 v. No. 31,939
6 ARTYARD LIMITED PARTNERSHIP,
7 a New Mexico limited partnership,
8 DONALD H. WIVIOTT, MITCHEL M.
9 DAVENPORT, ANTHONY J. ALLEGRETTI,
10 DHW, LLC, a New Mexico limited liability
11 company, THE ARTYARD MASTER
12 CONDOMINIUM ASSOCIATION., INC., a
13 New Mexico corporation, and PARKSIDE
14 RESIDENTIAL CONDOMINIUM
15 ASSOCIATION, INC., a New Mexico
16 Corporation,
17 Defendants,
18 and
19 PRAXIS ARCHITECTS, INC., a New
20 Mexico corporation,
21 Defendant-Appellant.
22 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
23 Barbara Vigil, District Judge
1 Scheuer, Yost & Patterson, P.C.
2 Charlotte H. Heterington
3 Santa Fe, NM
4 for Appellee
5 Sommer, Sutin, Udall, Hardwick, & Hyatt, P.A.
6 Jack N. Hardwick
7 Santa Fe, NM
8 for Appellant
9 MEMORANDUM OPINION
10 VIGIL, Judge.
11 Defendant-Appellant Praxis Architects, Inc. (Praxis) has appealed from two
12 related orders: one awarding summary judgment to Plaintiff-Appellee Century Bank
13 (Century), and the other awarding attorney fees and costs to Century. We issued a
14 notice of proposed summary disposition, proposing to dismiss the appeal on grounds
15 that neither order is final. Century has filed a memorandum in opposition and Praxis
16 has filed a memorandum in support, which we have duly considered. Because we
17 remain unpersuaded that this matter is properly before us at this juncture, we dismiss
18 the appeal.
19 The right to appeal is generally restricted to final judgments and decisions. See
20 NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 234-40,
21 824 P.2d 1033, 1036-42 (1992). Under the circumstances presented in this case, the
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1 orders could only be final and appealable if they could be said to adjudicate all of the
2 issues as to any party. See generally Rule 1-054(B)(2) NMRA.
3 As we previously observed, neither of the district court’s orders fully resolves
4 all of the issues as to Century, because Century’s claims against other defendants
5 remain pending. The orders similarly fail to dispose of Praxis’ cross-claims against
6 other defendants. Accordingly, insofar as issues remain outstanding relative to both
7 Century and Praxis, the orders cannot be regarded as final and appealable pursuant to
8 Rule 1-054(B)(2). Cf. Healthsource, Inc. v. X-Ray Assoc. of N.M., 2005-NMCA-097,
9 ¶¶ 11-15, 138 N.M. 70, 116 P.3d 861 (observing that appeal may only be taken if all
10 issues have been resolved by the order under consideration; where counterclaims
11 remain, immediate appeal is generally unavailable); Tarin’s, Inc. v. Tinley, 2000-
12 NMCA-048, ¶ 2, 129 N.M. 185, 3 P.3d 680 (holding that a judgment containing no
13 mention of a counterclaim was not a final, appealable order).
14 In its memorandum in opposition Century argues that the orders should be
15 regarded as final, insofar as they resolve all claims “as between Century and Praxis.”
16 [MIO 1, 3, 4] However, the fact that the issues between these two parties may have
17 been resolved is insufficient. To satisfy Rule 1-054(B)(2), an order must resolve every
18 issue as to one or more of the parties. For the reasons previously stated, neither of the
19 district court’s orders meets this description.
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1 Century further suggests that the district court’s orders should be regarded as
2 final insofar as “Praxis’ remaining cross-claims are severable and could be tried as a
3 separate unit.” [MIO 3] In this regard, Century observes that the district court’s
4 orders resolve all of Praxis’ claims relative to the mortgaged premises, leaving only
5 Praxis’ contractual claims pending. [MIO 4-5] However, the fact that the claims
6 currently pending are different in nature from the claim previously resolved, such that
7 severance might be a theoretical possibility, does not render the orders final under any
8 rule or published authority of which we are aware. The authorities upon which
9 Century relies, addressing “difficult questions” within the “twilight zone of finality,”
10 [MIO 4] are applicable to “marginal cases” in which all substantive claims have been
11 resolved, leaving only collateral matters and/or ministerial acts outstanding. See
12 generally Executive Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, ¶ 12 n.3,
13 125 N.M. 78, 957 P.2d 63 (observing that “marginal cases” describes a limited class).
14 This is not such a case.
15 Finally, we understand Century to argue that the orders are final, insofar as the
16 district court “exercised its discretion” by “declaring the finality of its judgment”
17 pursuant to Rule 1-054(B)(2). [MIO 4-5] However, Rule 1-054(B)(2) does not provide
18 for discretionary declarations of finality. We acknowledge that Rule 1-054(B)(1)
19 provides that a judgment that is final as to one or more claims but fewer than all
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1 claims may become final, “upon an express determination that there is no just reason
2 for delay.” Id. However, neither of the orders at issue in this case incorporates such
3 language.
4 Accordingly, for the reasons stated above and in the notice of proposed
5 summary disposition, we conclude that neither of the district court’s orders is
6 immediately reviewable. The appeal is therefore summarily dismissed.
7 IT IS SO ORDERED.
8 _______________________________
9 MICHAEL E. VIGIL, Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 LINDA M. VANZI, Judge
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