Olivas v. Pekarcik ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ROBERTA OLIVAS, f/k/a
3 ROBERTA PEKARCIK,
4 Petitioner-Appellee
5 v. NO. 31,851
6 PHILIP PEKARCIK,
7 Respondent-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
9 T. Glenn Ellington, District Judge
10 Roberta Olivas
11 Santa Fe, NM
12 Pro Se Appellee
13 Philip Pekarcik
14 Los Lunas, NM
15 Pro Se Appellant
16 MEMORANDUM OPINION
17 VIGIL, Judge.
1 Respondent, pro se, seeks to appeal from the district court’s order denying his
2 motion to change venue and awarding Petitioner attorney fees. We issued a notice of
3 proposed summary disposition, proposing to dismiss for lack of a final, appealable
4 order. Respondent has filed a response to our notice, which we have duly considered.
5 We remain unpersuaded that the order from which Respondent seeks to appeal is final
6 and appealable at this time. We dismiss.
7 In his docketing statement, Respondent asked this Court for an immediate stay
8 of the upcoming hearing, and asks us to reverse the order for attorney fees, to
9 “[r]emand jurisdiction to the Santa Clara Pueblo,” and to order Petitioner to pay him
10 the two fees she owes him. [DS 22] Respondent contended that jurisdiction was
11 proper in the tribal court of Santa Clara Pueblo, not the district court and that attorney
12 fees were wrongfully awarded for Petitioner to respond to the motion to change venue.
13 [DS 18]
14 Our notice explained why we believe that Respondent seeks to appeal from a
15 non-final order. We also observed that the district court’s order does not include the
16 certification language required under Rule 1-054(B)(1) NMRA to render the order
17 final and immediately appealable. [RP 374] See Rule 1-054(B)(1) (requiring the
18 district court to finalize one but fewer than all of the claims upon a certification that
19 “there is no just reason for delay”). In the absence of a final order and district court
2
1 certification, we explained that it appeared there was no sound basis upon which to
2 extend our jurisdiction to resolve Respondent’s issues now.
3 We specially observed that, under certain circumstances, an order for attorney
4 fees can be treated as a collateral, outstanding matter that may be separately appealed.
5 See, e.g., Trujillo v. Hilton of Santa Fe, 115 N.M. 398, 402, 851 P.2d 1065, 1069 (Ct.
6 Ohio App. 1993) (noting that “the critical issue is whether the subsequent proceedings
7 [regarding attorney fees] will alter the judgment or moot or revise the decision
8 embodied therein”). We explained that the order for attorney fees, however, must be
9 collateral to a final judgment to be separately appealable and then the appealing party
10 has the choice to appeal from the final judgment immediately or wait to appeal from
11 the order resolving the collateral, pending matter of attorney fees. See, e.g., Executive
12 Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, ¶¶ 6-14, 125 N.M. 78, 957
13 P.2d 63. Such principles of finality are born of practicality and “are intended to assist
14 the courts in promoting judicial efficiency and preventing piecemeal appeals,” not to
15 create an otherwise unappealable order from the collateral matter of attorney fees. Id.
16 ¶ 11. Because there is no final order underlying the award of attorney fees, we
17 proposed to conclude that this is not a situation in which the award of attorney fees
18 is separately appealable.
3
1 In response to our notice, Respondent pursues only his challenge to the district
2 court’s award of attorney fees. [MIO 1-2] Thus, he has abandoned all other issues.
3 See State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating
4 that when a case is decided on the summary calendar, an issue is deemed abandoned
5 where a party fails to respond to the proposed disposition of the issue). Also,
6 Respondent does not address our finality analysis. Rather, he simply asserts without
7 argument or citation to any authority, that the district court’s order regarding attorney
8 fees is a final decision. We disagree for the reasons stated in our notice.
9 Based on the foregoing, we dismiss Respondent’s appeal for lack of a final,
10 appealable order.
11 IT IS SO ORDERED.
12 _______________________________
13 MICHAEL E. VIGIL, Judge
14 WE CONCUR:
15 _________________________________
16 JAMES J. WECHSLER, Judge
17 _________________________________
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1 TIMOTHY L. GARCIA, Judge
5