Sutin, Thayer & Browne v. Whitener ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 SUTIN, THAYER & BROWNE,
3 a professional corporation,
4 Petitioner-Appellee,
5 v. NO. 33,453
6 WHITENER LAW FIRM,
7 Respondent-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
9 Denise Barela Shepherd, District Judge
10 Sutin, Thayer & Browne
11 Andrew J. Simons
12 Albuquerque, NM
13 for Appellee
14 Santillanes & Neidhardt, P.C.
15 James T. Roach
16 Janet Santillanes
17 Albuquerque, NM
18 for Appellant.
19 MEMORANDUM OPINION
20 HANISEE, Judge.
1 {1} The Whitener Law Firm appeals from a judgment awarding Sutin, Thayer &
2 Browne 45% of an attorney fee. In our calendar notice, we proposed to dismiss the
3 appeal for lack of a final order. Sutin and Whitener filed timely memoranda in
4 opposition. We have considered the arguments in opposition to our proposed
5 dismissal, but we are not persuaded that the judgment in this case is final and
6 appealable at this time. We therefore dismiss the appeal.
7 {2} “In civil cases, this Court has jurisdiction over, among other things, ‘any final
8 order after entry of judgment which affects substantial rights[.]’ ” Khalsa v. Levinson,
9 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844 (quoting NMSA 1978, § 39-3-2
10 (1966)). “Whether an order is a ‘final order’ within the meaning of the statute is a
11 jurisdictional question that an appellate court is required to raise on its own motion.”
12 Id. Generally, an order or judgment is not considered final unless all issues of law and
13 fact have been determined and the case disposed of by the trial court to the fullest
14 extent possible. Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 14, 113 N.M.
15 231, 824 P.2d 1033.
16 {3} Following a bench trial, the district court entered its judgment. [RP
17 Vol.III/1123] Five days later, Whitener filed objections to the judgment—some of
18 which challenge the merits of the judgment. [RP Vol.III/1130-33] Nine days later,
19 Whitener filed a notice of appeal. [RP Vol.III/1138; see also RP Vol.III/1162] At the
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1 time the notice of appeal was filed, the district court had not addressed Whitener’s
2 objections.
3 {4} We acknowledge that Whitener’s objections were not filed as a “motion”
4 pursuant to Rule 1-007.1 NMRA. Nevertheless, as the parties acknowledge, the
5 objections challenged the judgment, and several of the issues raised by Whitener on
6 appeal are related to the objections. [Whitener MIO 2; Sutin MIO 4] Moreover,
7 Whitener claims that “[a]n objection was filed to make a record that Whitener
8 disagreed with the entry of the judgment, both procedurally and substantively.”
9 [Whitener MIO 2] Because Whitener filed its objections with the district court after
10 entry of the judgment, but prior to filing its notice of appeal, we construe the
11 objections as a motion to alter, amend, or reconsider the judgment. See Rule 1-059(E)
12 NMRA (providing that “[a] motion to alter, amend, or reconsider a final judgment
13 shall be filed not later than thirty (30) days after entry of the judgment”); Century
14 Bank v. Hymans, 1995-NMCA-095, ¶ 10, 120 N.M. 684, 905 P.2d 722 (“The movant
15 need not cite the provision authorizing the motion; the substance of the motion, not
16 its title, controls.”); Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, ¶ 18, 92 N.M.
17 47, 582 P.2d 819 (“[T]he nomenclature used is not significant.”).
18 {5} Whitener’s post-judgment objections attacked the district court’s judgment, and
19 a ruling by the district court on Whitener’s objections could alter, amend, or moot the
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1 judgment entered by the district court. See Dickens v. Laurel Healthcare, LLC, 2009-
2 NMCA-122, ¶ 6, 147 N.M. 303, 222 P.3d 675 (“[W]hen a Rule 1-059(E) motion, or
3 other motion that challenges the district court’s determination of the rights of the
4 parties, is pending in the district court, the judgment or order entered by the district
5 court remains non-final.”). Moreover, Whitener’s objections alerted the district court
6 of Whitener’s claims of error and the district court should be allowed to correct the
7 alleged errors in the first instance. See Kilgore v. Fuji Heavy Indus. Ltd., 2009-
8 NMCA-078,¶ 50, 146 N.M. 698, 213 P.3d 1127 (setting forth the primary purposes
9 for preserving an issue before the district court: “(1) to specifically alert the district
10 court to a claim of error so that any mistake can be corrected at that time, (2) to allow
11 the opposing party a fair opportunity to respond to the claim of error and to show why
12 the district court should rule against that claim, and (3) to create a record sufficient to
13 allow this Court to make an informed decision regarding the contested issue”), rev’d
14 on other grounds by, 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648. Because the
15 district court had no opportunity to address the objections, the judgment is not final
16 and Whitener’s appeal is premature. See id.
17 {6} Accordingly, for the reasons stated in this opinion and in our notice of proposed
18 summary disposition, we dismiss for lack of a final order.
19 {7} IT IS SO ORDERED.
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1 _____________________________
2 J. MILES HANISEE, Judge
3 WE CONCUR:
4 __________________________________
5 CYNTHIA A. FRY, Judge
6 __________________________________
7 LINDA M. VANZI, Judge
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