Warwick v. Warwick ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 JERALD WARWICK,
8 Plaintiff-Appellee,
9 v. NO. 31,378
10 BENARD WARWICK,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 James T. Martin, District Judge
14 Thomas R. Erickson
15 Mesilla Park, NM
16 for Appellee
17 Benard Warwick
18 Long Beach, NY
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 WECHSLER, Judge.
22 Defendant-Appellant Benard Warwick appeals the district court’s order
1 granting partial summary judgment in favor of Plaintiff-Appellee Jerald Warwick. On
2 August 16, 2011, this court issued a notice of proposed summary disposition
3 proposing to dismiss the appeal for lack of a final order. On October 11, 2011,
4 Appellant filed a memorandum in opposition to proposed summary disposition, which
5 we have given due consideration. We dismiss the appeal, and also deny Appellant’s
6 request for additional time to supply documentation to this Court.
7 “The general rule in New Mexico for determining the finality of a judgment is
8 whether all issues of law and fact have been determined and the case disposed of by
9 the trial court to the fullest extent possible.” State ex rel. Children, Youth & Families
10 Dep’t v. Frank G., 2005-NMCA-026, ¶ 40, 137 N.M. 137, 108 P.3d 543 (quoting
11 Kelly Inn No. 102 v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992)).
12 As noted in the notice of proposed summary disposition, the order Appellant
13 seeks to appeal expressly contemplates further action by the district court; specifically,
14 that because of the inability of the parties to agree to the sale of the parcel of real
15 estate at issue, the district court would appoint three commissioners to determine if the
16 parcel could be partitioned. [RP 52-53] The commissioners would report to the
17 district court, and if the parcel could not be partitioned, the district court would enter
18 further orders directing that the parcel be sold. [Id.]
19 In his memorandum in opposition, Appellant informs this Court that the Doña
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1 Ana Planning Department has indicated that the parcel is too small to be divided, and
2 he asks for additional time to forward documentation to this Court. We are not
3 informed whether this documentation has already been considered by the district
4 court, but in any event that court as fact finder is in a better position than this Court
5 to determine whether this documentation sufficiently supports Appellant’s assertion,
6 such that a determination by three commissioners would be unnecessary. “As a
7 reviewing court we do not sit as a trier of fact; the district court is in the best position
8 to resolve questions of fact[.]” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592,
9 52 P.3d 964.
10 We deny Appellant’s request for additional time to supply documentation to
11 this Court, and we dismiss the present appeal because the district court has not yet
12 entered a final order regarding the disposition of the real property in question.
13 IT IS SO ORDERED.
14 _______________________________
15 JAMES J. WECHSLER, Judge
16 WE CONCUR:
17 ______________________________
18 MICHAEL E. VIGIL, Judge
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1 ______________________________
2 J. MILES HANISEE, Judge
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