Associated Home & RV Sales, Inc. v. Bank of Belen ( 2012 )


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    integrity of this document
    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'05- 15:30:36 2013.01.24
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 
    2013-NMCA-018
    Filing Date: October 30, 2012
    Docket No. 30,829
    ASSOCIATED HOME AND RV SALES, INC.,
    a New Mexico corporation, d/b/a ENCHANTMENT
    RV and ENCHANTMENT RV SERVICE, a New
    Mexico corporation; TEAM EVENTS, INC., a New
    Mexico corporation; and MDM COMPANY, INC.,
    a New Mexico corporation,
    Plaintiffs-Appellants,
    v.
    BANK OF BELEN,
    Defendant-Appellee.
    APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    Alan M. Malott, District Judge
    Crowley & Gribble, PC
    Clayton E. Crowley
    Albuquerque, NM
    for Appellants
    Parker & Hay, LLP
    Stanley R. Parker
    Topeka, KS
    Aldridge, Grammer & Hammar, P.A.
    David A. Grammer, III
    Albuquerque, NM
    for Appellee
    OPINION
    1
    CASTILLO, Chief Judge.
    {1}     In this appeal, we address three issues. We consider for the first time whether NMSA
    1978, Section 55-4-406 (1992) of New Mexico’s Uniform Commercial Code (UCC)
    precludes common law claims for negligence and breach of contract in transactions
    involving forged checks. We also analyze the effects of Section 55-4-406’s one-year statute
    of repose on its thirty-day limit for bringing actions involving the same serial forger. Lastly,
    we consider the district court’s dismissal without prejudice of the count of fraud for lack of
    specificity. We conclude that the UCC does preclude the common law claim alleged in this
    case and affirm on that issue. We reverse the entry of summary judgment as to the statute
    of repose and consequently need not reach the issue regarding the dismissal of the fraud
    claim.
    BACKGROUND
    {2}     Appellants are four corporations involved in the sales of recreational vehicles. The
    businesses are run by several family members and organized under the trade name
    Enchantment RV (Enchantment). In January 2003, Enchantment hired an employee
    (Employee) to assist with bookkeeping and to help balance the accounts of Enchantment’s
    combined companies. In February 2003, Employee began forging checks on its accounts
    held at Bank of Belen (Bank) and, between February 2003 and October 2004, Employee
    forged 211 checks, mostly payable to herself or to “cash,” stealing $283,546.85 from
    Enchantment. About a year and a half into the scheme, in late October and early November
    2004, Enchantment discovered the forgeries, notified Bank, and submitted affidavits to that
    effect. Bank refused to repay Enchantment for any of the losses. According to Bank, it had
    provided statements on a monthly basis, including photocopies of canceled checks, to
    Enchantment for its various accounts, thus relieving it of its obligation to pay under the
    UCC. Enchantment brought this action, alleging common law claims of negligence, fraud,
    misrepresentation, breach of contract, and a violation of the New Mexico Unfair Practices
    Act (UPA). In its second amended complaint, it also alleged negligence under the UCC.
    {3}    Bank filed a number of pretrial motions. On a motion to dismiss the first amended
    complaint, the district court dismissed all of the claims except for fraud after ruling that the
    common law and UPA claims were displaced by the liability scheme of the UCC. After
    allowing for a second amended complaint to add the claim under the UCC, the district court
    dismissed without prejudice the fraud claim as improperly pleaded under Rules 1-009 and
    1-012(B)(6) NMRA. Enchantment did not renew its fraud claim. After a period of
    discovery, the court granted Bank’s motion for summary judgment, concluding that
    Enchantment failed to raise a genuine issue of material fact on its UCC claim. The case was
    dismissed and this appeal followed.
    DISCUSSION
    I.     UCC Section 55-4-406 Precludes Common Law Claims in This Instance
    2
    {4}      This case presents an issue of first impression: whether Section 55-4-406 of the UCC
    precludes such common law claims as negligence and breach of contract under the set of
    circumstances presented here. We apply our de novo review to the question of “whether the
    district court applied the correct controlling legal principle to the facts and the court’s
    application of that principle to the facts.” Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop.,
    Inc., 
    2011-NMCA-049
    , ¶ 17, 
    149 N.M. 746
    , 
    255 P.3d 324
    , cert. granted, 2011-NMCERT-
    005, 
    150 N.M. 667
    , 
    265 P.3d 718
    .
    {5}      Enchantment first contends that the district court erred in dismissing its common law
    claims, arguing that they are not preempted by Section 55-4-406 of the New Mexico UCC.
    Bank argues that the UCC provides a detailed and comprehensive scheme that allocates
    liability between a bank and its customers and provides banks with defenses to claims. Bank
    says that allowing common law claims to be brought in addition to actions under the UCC
    would frustrate the objectives of the Legislature in adopting the uniform law.
    {6}     A motion to dismiss is properly granted “only when it appears that the plaintiff
    cannot recover or be entitled to relief under any state of facts provable under the claim.”
    Valles v. Silverman, 
    2004-NMCA-019
    , ¶ 18, 
    135 N.M. 91
    , 
    84 P.3d 1056
     (internal quotation
    marks and citation omitted). Whether the district court properly dismissed the claims is a
    question we review de novo. See id. ¶ 6.
    {7}     The UCC states that “[u]nless displaced by the particular provisions of the [UCC],
    the principles of law and equity, including the law merchant and the law relative to capacity
    to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake,
    bankruptcy[,] and other validating or invalidating cause, supplement its provisions.” NMSA
    1978, § 55-1-103(b) (2005). However, we have previously noted that “comprehensive
    legislation, prescribing minutely a course of conduct to be pursued and the parties and things
    affected, and specifically describing limitations and exceptions, is indicative of a legislative
    intent that the statute should totally supersede and replace the common law dealing with the
    subject matter.” Rutherford v. Darwin, 
    95 N.M. 340
    , 343, 
    622 P.2d 245
    , 248 (Ct. App.
    1980) (internal quotation marks and citation omitted), superseded by statute on other
    grounds as stated in Wisner Elevator Co. v. Richland State Bank, 
    862 So. 2d 1112
     (La. Ct.
    App. 2003). Common law principles are not preserved “in an area which is thoroughly
    covered by the UCC simply because they are not expressly excluded.” 
    Id.
    {8}      Article 4 of the UCC sets up a liability scheme and set of defenses to guide the
    relationship between a payor bank and its customers. See generally NMSA 1978, §§ 55-4-
    401 to -407 (1961, as amended through 2009). A forged or altered check is not properly
    payable, and a bank is strictly liable for the resulting loss to a customer. Cf. § 55-4-401(a)
    (“A bank may charge against the account of a customer an item that is properly payable . .
    . . An item is properly payable if it is authorized by the customer . . . .”).
    {9}    Section 55-4-406(a), however, sets up a scale of liabilities that shift depending on the
    actions of the parties, and a bank may seek “safe harbor” from the above strict liability
    3
    scheme of Section 55-4-401 if it makes statements of account available to the customer on
    a regular basis. Section 55-4-406 cmt. 1. If a bank regularly provides a statement of account
    with information sufficient for the customer to identify the forgery, the customer must be
    reasonably prompt in notifying the bank of any forgeries; if the customer does so within
    thirty days of receiving the statement, the bank remains strictly liable for the loss. See § 55-
    4-406(a), (c). After that thirty-day period, however, the bank is liable only if the customer
    proves that the bank failed to exercise ordinary care in passing the forged item and that the
    bank’s failure substantially contributed to the loss; in such a case, the loss is apportioned
    between the customer and the bank based on comparative negligence. See § 55-4-406(d),
    (e). Regardless of any lack of ordinary care on the part of the bank, if a year or more has
    passed from the customer’s receipt of the statement identifying the forgery, the customer is
    precluded from bringing any claim under the UCC and must bear the entire loss. See § 55-4-
    406(f). The basis for the system of shifting liabilities triggered by the delivery of regular
    statements is explained in the comments to the statute.
    One of the most serious consequences of failure of the customer to comply
    with the requirements of [S]ubsection (c) is the opportunity presented to the
    wrongdoer to repeat the misdeeds. Conversely, one of the best ways to keep
    down losses in this type of situation is for the customer to promptly examine
    the statement and notify the bank of an unauthorized signature or alteration
    so that the bank will be alerted to stop paying further items.
    Section 55-4-406 cmt. 2.
    {10} In all jurisdictions, the federal counterpart to our Section 55-4-406, U.C.C. § 4-406
    [Rev.] (the Code), is intended to further the public policy of requiring customers to be
    vigilant in examining bank statements and to carry out the common law duty of reporting
    forgeries within a reasonable time. See 7 Lary Lawrence, Lawrence’s Anderson on the
    Uniform Commercial Code § 4-406:5 (2007 revision). While no court in New Mexico has
    considered the specific issue of whether Section 55-4-406 precludes a common law claim,
    other jurisdictions that have dealt with the issue have come down on the side of preemption
    by the UCC. See, e.g., Fischer & Mandell LLP v. Citibank, N.A., 
    632 F.3d 793
    , 798 (2d Cir.
    2011) (stating that “Article 4 precludes common law claims that would impose liability
    inconsistent with the rights and liabilities expressly created by Article 4” while allowing an
    exception for a common law breach of contract claim in that instance); Halla v. Norwest
    Bank Minn., N.A., 
    601 N.W.2d 449
    , 451 (Minn. Ct. App. 1999) (denying a common law
    conversion claim because “parties in commercial transactions must be able to rely on the
    remedies provided by the Code” and there is “no reason to sacrifice the certainty and
    consistency of the [Code] remedies to preserve common law remedies”); Bank Polska Kasa
    Opieki, S.A. v. Pamrapo Sav. Bank, S.L.A., 
    909 F. Supp. 948
    , 956-57 (D.N.J. 1995) (stating
    that the Code “provides a comprehensive framework for allocating losses when a forged
    check enters the negotiation process” and that allowing a negligence claim “would
    circumvent the drawee’s . . . 4-406 defenses”); Envtl. Equip. & Serv. Co. v. Wachovia Bank,
    N.A., 
    741 F. Supp. 2d 705
    , 714 (E.D. Pa. 2010) (holding that Pennsylvania’s UCC “provides
    4
    a comprehensive remedy for the parties to the transaction—a delicate balance that would be
    disrupted by the allowance of common law negligence claims” and rejecting a common law
    negligence action); see also 5A Frederick M. Hart, Nathalie Martin & William F. Willier,
    Forms and Procedures Under the Uniform Commercial Code § 41.03 (LexisNexis 2012)
    (stating that the Code’s “specificity preempts any common law negligence concepts
    regarding a bank’s processing of checks”).
    {11} Although New Mexico courts have not specifically addressed Section 55-4-406, they
    have found that other provisions of the UCC displace common law claims. See Brummund
    v. First Nat’l Bank of Clovis, 
    99 N.M. 221
    , 224-25, 
    656 P.2d 884
    , 887-88 (1983) (NMSA
    1978, § 55-9-311 (1961) (repealed, revised, reenacted 2001)); Wilde v. Westland Dev. Co.,
    
    2010-NMCA-085
    , ¶ 57, 
    148 N.M. 627
    , 
    241 P.3d 628
     (NMSA 1978, § 55-8-405 (1996));
    White Sands Forest Prods., Inc. v. First Nat’l Bank of Alamogordo, 
    2002-NMCA-079
    , ¶¶
    1, 14, 
    132 N.M. 453
    , 
    50 P.3d 202
     (NMSA 1978, § 55-3-406 (1992)); Rutherford, 95 N.M.
    at 343, 622 P.2d at 248 (NMSA 1978, § 55-3-206 (1992)). White Sands Forest Prod., a
    similar case involving forged checks, took note of “the carefully crafted scheme of express
    statutory liabilities created by Article 3” in determining that common law claims are
    precluded. 
    2002-NMCA-079
    , ¶ 14.
    {12} In the case before us, we agree with the other jurisdictions that Section 55-4-406 sets
    out a comprehensive scheme of liability and defenses in commercial practices between banks
    and customers, thus supporting the legislative intent, as articulated in Rutherford of
    superseding common law causes of action. Section 55-4-406 provides a specific remedy for
    a plaintiff seeking redress from a bank after the passage of forged checks, and it sets out
    defenses available to a bank. See Wilde, 
    2010-NMCA-085
    , ¶ 72. And like the analysis in
    White Sands Forest Prod., where a parallel section of the UCC dealt with forged
    endorsements of checks, we see in Section 55-4-406 a carefully crafted scheme of express
    statutory liabilities that would be disturbed by introducing alternative causes of actions or
    a different balancing of liabilities based on common law tort theories.
    {13} A look at the goals of the UCC’s legislative scheme informs the question of whether
    confining causes of actions involving forged check transactions to the UCC scheme furthers
    those objectives. New Mexico’s UCC is to be “liberally construed” to promote the following
    purposes and policies: “(1) to simplify, clarify[,] and modernize the law governing
    commercial transactions; (2) to permit the continued expansion of commercial practices
    through custom, usage[,] and agreement of the parties; and (3) to make uniform the law
    among the various jurisdictions.” Section 55-1-103(a). “For the courts to interfere with the
    [UCC’s] statutory scheme by superimposing tort rules, there must be sound policy reasons
    for finding the statutory scheme to be inadequate.” White Sands Forest Prod.,
    
    2002-NMCA-079
    , ¶ 14 (alteration in original) (internal quotation marks and citation
    omitted); see also Bank Polska Kasa Opieki, 
    909 F. Supp. at 956
     (“Only in very rare
    instances should a court upset the legislative scheme of loss allocation and permit a common
    law cause of action.”). The policy of the UCC is promoted when we confine claims
    involving forged checks against banks to the UCC’s statutory scheme unless a reason exists
    5
    for the common law to supplement that scheme. See Putnam Rolling Ladder Co. v. Mfrs.
    Hanover Trust Co., 
    546 N.E.2d 904
    , 908 (N.Y. 1989) (“By prospectively establishing rules
    of liability . . . , the [Code] not only guides commercial behavior but also increases certainty
    in the marketplace and efficiency in dispute resolution.”); Sw. Bank v. Info. Support
    Concepts, Inc., 
    149 S.W.3d 104
    , 109 (Tex. 2004) (“Unlike tort law, the [Code] has the
    objective of promoting certainty and predictability in commercial transactions.” (internal
    quotation marks and citation omitted)). The liability scheme of New Mexico’s Section 55-4-
    406 simplifies and clarifies the law of commercial dealings between banks and customers,
    and it promotes consistency and certainty in such transactions. In the case before us, we
    conclude that Section 55-4-406 adequately provides a scheme of liabilities and defenses and
    thus precludes common law claims brought by Enchantment.
    {14} As to the other claims disposed of on this motion to dismiss, Enchantment abandoned
    its argument for the claim of breach of contract and acknowledges that no evidence of a
    contract exists. Also, on appeal, Enchantment folded its UPA claim into its allegations of
    fraud, which is addressed in Section III below. First, we turn to the main issue of whether
    the district court erred in granting summary judgment for Bank.
    II.    Summary Judgment Was Improperly Granted
    {15} Bank’s motion for summary judgment argued that because it was undisputed that
    Enchantment did not report any forged checks until about eighteen months after it received
    the first account statement with forged checks, Enchantment is prohibited by Section 55-4-
    406 from making any claims against Bank. Enchantment responded that its claim was not
    time-barred by Section 55-4-406 because there were genuine issues of material fact as to
    whether Bank properly sent it a statement of account, whether Bank exercised ordinary care
    in paying the forged items, and whether Bank acted in bad faith. We analyze the parties’
    positions in light of the law regarding summary judgments.
    A.      The Claim Is Not Fully Time-Barred
    {16} As a preliminary matter, the parties disagree over whether Section 55-4-406 places
    a time bar on Enchantment’s action. The section states that a bank’s customer is precluded
    from asserting a claim against a bank when a series of forgeries is committed by the same
    wrongdoer and the customer fails to notify the bank within thirty days of receiving the first
    statement that includes a record of the initial forgery in the series. See § 55-4-406(d)(2).
    Despite that restriction, a customer may still bring a claim after the initial thirty-day period
    if “the customer proves that the bank failed to exercise ordinary care in paying the item and
    that the failure substantially contributed to [the] loss[.]” Section 55-4-406(e). However, if
    the customer waits one year or more after receiving a statement, the customer is absolutely
    precluded from bringing a claim, regardless of the bank’s culpability. Section 55-4-406(f).
    {17} Bank contends that reading Section 55-4-406(d)(2) together with Subsection (f) leads
    to the conclusion that, because the forgeries at issue were the serial actions of the same
    6
    wrongdoer, no action is allowed outside of Section 55-4-406(d)(2)’s thirty-day window
    following the first statement sent to Enchantment after the first instance of forgery in early
    2003. Bank further argues that even if evidence exists of a lack of ordinary care on the part
    of Bank, extending the window to one year would still result in a bar to bringing a claim.
    Bank’s position is that the first statement after the initial forgery was sent in April 2003, and
    Enchantment did not notify Bank of the forgeries until November 2004 and that, because the
    forgeries were the work of the same employee, the one-year window closed in April 2004.
    Enchantment counters by reading Section 55-4-406(f) separately from Subsection (d)(2) and
    arguing that the one-year window to bring a claim begins anew when each statement in a
    series is sent to the customer, regardless of whether the same wrongdoer is responsible for
    the forgeries.
    {18} We note that recognized authority sides with Enchantment. In Neo-Tech Sys., Inc.
    v. Provident Bank, 
    335 N.E.2d 395
    , 401 (Ohio Com. Pl. 1974), the court concluded that “the
    one[-]year limitation attaches to each separate check bearing an unauthorized signature and
    a new one[-]year period begins to run with each subsequent check when it is made available
    to the customer.” See also 6A William D. Hawkland and Lary Lawrence, Uniform
    Commercial Code Series § 4-406:8 (Thomson Reuters/West 2012) (“The period is calculated
    separately as to each new statement.”).
    {19} Other jurisdictions agree. Responding to an argument similar to the one brought here
    by Bank and under an identically worded statute, the Missouri Court of Appeals rejected the
    link between Subsections (d)(2) and (f), positing that such logic “interprets the statute as if
    it contains language that is not there.” Johnson Dev. Co. v. First Nat’l Bank of St. Louis, 
    999 S.W.2d 314
    , 317 (Mo. Ct. App. 1999). The court stated:
    If the logic of First National’s reading of the statute were followed, a victim
    of a series of forged checks happening over a term more than one year in
    duration would be without recourse for the checks forged after one year from
    “any statement of account” from which it could have been determined that
    it made one unauthorized payment. That is not what the statute says.
    
    Id.
     The court concluded: “Implicit in the language of Missouri case law is that a new
    one-year limitation in [S]ection 400.4-406 begins to run on each separate check containing
    a forged signature or alteration, regardless of whether the same wrongdoer forged many
    checks over a term of years.” 
    Id.
     Similarly, the Supreme Court of California read
    California’s versions of Subsections (d)(2) and (f) separately, distinguishing the latter
    because it “declares only one rule using terms that suggest later items in a series are to be
    treated no differently from the first item or single items.” Sun ’n Sand, Inc. v. United Cal.
    Bank, 
    582 P.2d 920
    , 935 (Cal. 1978). The court concluded that Subsection (f)’s “failure to
    explicitly differentiate between one-time and repetitive forgeries and alterations . . . leads
    us . . . to conclude that a new one-year period begins to run with each successive check.”
    Id.; accord Monreal v. Fleet Bank, 
    735 N.E.2d 880
    , 882-83 (N.Y. 2000) (reaching the same
    conclusion though relying on the language of the New York statute that differs slightly from
    7
    New Mexico’s).
    {20} We agree with those analyses. While we see interplay between Subsections 55-4-
    406(d) and (e), we see no natural connection between Section 55-4-406(d)(2)’s “same
    wrongdoer” rule and the more general wording in Section 55-4-406(f). We conclude that
    Enchantment was entitled to try to prove a lack of ordinary care by Bank for the forgeries
    that occurred within one year of Enchantment alerting Bank of the forgeries.
    {21} The question now becomes whether Enchantment brought forth evidence of a lack
    of ordinary care on the part of Bank that sufficiently raises a genuine issue of material fact
    to survive Bank’s motion for summary judgment.
    B.     There are Genuine Issues of Material Fact
    {22} “Summary judgment is appropriate where there are no genuine issues of material fact
    and the movant is entitled to judgment as a matter of law.” Tafoya v. Rael, 2008-NMSC-
    057, ¶ 11, 
    145 N.M. 4
    , 
    193 P.3d 551
     (internal quotation marks and citation omitted). “We
    resolve all reasonable inferences in favor of the party opposing summary judgment, and we
    view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the
    light most favorable to a trial on the merits.” Weise v. Washington Tru Solutions, L.L.C.,
    
    2008-NMCA-121
    , ¶ 2, 
    144 N.M. 867
    , 
    192 P.3d 1244
    . “Once the movant makes a prima
    facie case for summary judgment, the burden shifts to the party opposing the motion to
    demonstrate the existence of specific evidentiary facts [that] would require trial on the
    merits.” 
    Id.
     (internal quotation marks and citation omitted). “Where the evidence is
    susceptible to reasonable conflicting inferences bearing upon material facts, entry of
    summary judgment is improper.” Ellingwood v. N.N. Investors Life Ins. Co., 
    111 N.M. 301
    ,
    305, 
    805 P.2d 70
    , 74 (1991). “We are mindful that summary judgment is a drastic remedial
    tool which demands the exercise of caution in its application[.]” Woodhull v. Meinel, 2009-
    NMCA-015, ¶ 7, 
    145 N.M. 533
    , 
    202 P.3d 126
     (internal quotation marks and citation
    omitted). We review an order granting summary judgment de novo. See Beggs v. City of
    Portales, 
    2009-NMSC-023
    , ¶ 10, 
    146 N.M. 372
    , 
    210 P.3d 798
    .
    {23} “In determining which issues of fact are material facts for purposes of Rule 1-056(C)
    [NMRA], we look to the substantive law governing the dispute.” Farmington Police
    Officers Ass’n v. City of Farmington, 
    2006-NMCA-077
    , ¶ 17, 
    139 N.M. 750
    , 
    137 P.3d 1204
    .
    An issue of fact is “genuine” if the evidence before the court considering a
    motion for summary judgment would allow a hypothetical fair-minded
    factfinder to return a verdict favorable to the non-movant on that particular
    issue of fact. An issue of fact is “material” if the existence (or non-existence)
    of the fact is of consequence under the substantive rules of law governing the
    parties’ dispute.
    Romero v. Philip Morris, Inc. (Romero I), 
    2009-NMCA-022
    , ¶ 12, 
    145 N.M. 658
    , 
    203 P.3d
                                              8
    873 (citation omitted), rev’d on other grounds by Romero v. Philip Morris, Inc. (Romero II),
    
    2010-NMSC-035
    , 
    148 N.M. 713
    , 
    242 P.3d 280
    .
    {24} We now look to whether Enchantment raised a genuine issue of material fact
    regarding a lack of ordinary care on the part of Bank.
    C.     Statements Were Made Available As a Matter of Law
    {25} Initially, Enchantment appears to conflate the issue of whether the account statements
    were made available to the customer as set forth in Section 55-4-406(a) and the issue of
    whether the manner in which the statements were provided demonstrated a lack of ordinary
    care by Bank. Accordingly, we will address each in turn.
    {26} Enchantment contends that rather than mail monthly statements to Enchantment at
    its place of business, Bank provided the statements directly to Employee who was
    committing the forgeries. Enchantment seems to be arguing that delivery to an employee
    is not sufficient under the statute. We disagree. Delivery of statements to the customer does
    not require the mailing of statements but merely that the bank make them available “in a
    reasonable manner,” such as allowing them to be picked up by an employee of the customer.
    Siecinski v. First State Bank of E. Detroit, 
    531 N.W.2d 768
    , 770 (Mich. Ct. App. 1995)
    (internal quotation marks and citation omitted). In the case before us, documents supporting
    Bank’s motion for summary judgment show that Bank made the statements available to
    Enchantment, and Enchantment acknowledged receiving the statements each month. While
    the statements were often picked up at Bank by Employee, Bank’s supporting documents
    further show that Enchantment’s senior officers reviewed the statements after Employee did
    and thus had ample opportunity to detect the forgeries. When an employer entrusts the tasks
    of both handling checks and reconciling statements to the same employee, information
    contained in the statement is imputed to the employer. See 7 Lawrence, supra, § 4-406:14,
    at 493 (“Because the customer chose the agent to act on its behalf in examining the
    statement, the customer will be charged with whatever knowledge a reasonable examination
    by a loyal agent would have discovered.”); see also Menichini v. Grant, 
    995 F.2d 1224
    , 1235
    (3d Cir. 1993); Kiernan v. Union Bank, 
    127 Cal. Rptr. 441
    , 445 (Ct. App. 1976). Here, Bank
    made a prima facie case that it adequately provided monthly statements to Enchantment.
    Enchantment did not rebut the case.
    {27} Enchantment also relies on its position that statements of accounts were not properly
    provided as one basis for its argument that Bank failed to exercise ordinary care in paying
    the items. As we have explained, Enchantment has failed to rebut Bank’s case that the
    statements were made available, so this argument can go no further.
    D.     There is a Question of Fact About the Exercise of Ordinary Care
    {28} Enchantment’s other evidence of negligence stems from an affidavit by its CEO
    alleging that (1) Bank promised not to accept checks made out to cash unless an officer
    9
    presented the check; (2) signatures on the checks differed from those on signature cards kept
    on file by Bank; and (3) check amounts exceeded teller limits but were cashed without
    supervisor approval that had been promised by Bank.
    {29} To survive a motion for summary judgment, the non-moving party may not rely upon
    mere allegations, but rather “must set forth specific facts showing that there is a genuine
    issue for trial.” Rule 1-056(E). “When disputed facts do not support reasonable inferences,
    they cannot serve as a basis for denying summary judgment. Only when the inferences are
    reasonable is summary judgment inappropriate.” Romero II, 
    2010-NMSC-035
    , ¶ 10. “A
    party opposing a motion for summary judgment must make an affirmative showing by
    affidavit or other admissible evidence that there is a genuine issue of material fact once a
    prima facie showing is made by the movant.” Schwartzman v. Schwartzman Packing Co.,
    
    99 N.M. 436
    , 441, 
    659 P.2d 888
    , 893 (1983).
    {30} Enchantment’s task in opposing the motion for summary judgment was to put forth
    a genuine issue of material fact as to any lack of ordinary care on the part of Bank. The term
    “ordinary care” is defined in New Mexico’s UCC. The term “means observance of
    reasonable commercial standards, prevailing in the area in which the person is located, with
    respect to the business in which the person is engaged.” NMSA 1978, § 55-3-103(a)(9)
    (2005) (amended 2009).
    {31} The customer bears the burden of showing that a bank failed to exercise ordinary care
    and that issue is generally one for the factfinder to decide. 6A Hawkland, supra, § 4-406:7.
    “The bank’s lack of ordinary care may be demonstrated by proof that the bank’s procedures
    were below the standard or that the bank’s employees failed to exercise due care in
    processing the items.” Hanover Ins. Cos. v. Brotherhood State Bank, 
    482 F. Supp. 501
    , 505
    (D. Kan. 1979). “A lack of ordinary care on the part of the bank paying items under this
    provision of the [Code] may be established by proof either that the bank’s procedures were
    below standard or that the bank’s employees failed to exercise care in processing the items.”
    New Jersey Steel Corp. v. Warburton, 
    655 A.2d 1382
    , 1387 (N.J. 1995) (internal quotation
    marks and citation omitted). “A bank must maintain reasonable supervision over its
    employees and procedures to guard against paying forged and altered checks.” 6C Ronald
    A. Anderson & Lary Lawrence, Anderson on the Uniform Commercial Code § 4-406:75, at
    475 (2000). “It would appear . . . that a customer could prove a bank lacked ordinary care
    by presenting any type of proof that the bank failed to act reasonably.” Putnam Rolling
    Ladder Co., 546 N.E.2d at 906.
    {32} New Mexico courts have equated a bank’s lack of ordinary care with a traditional
    negligence standard: “It is certainly not the intention of [Section] 55-4-406 to allow the
    bank to be insulated from the effect of its own negligence[.]” Rutherford, 95 N.M. at 344,
    622 P.2d at 249. Generally, negligence is a mixed question of law and fact. See Herrera v.
    Quality Pontiac, 
    2003-NMSC-018
    , ¶ 6, 
    134 N.M. 43
    , 
    73 P.3d 181
     (“Negligence is generally
    a question of fact for the jury.” (internal quotation marks and citation omitted)); Candelaria
    v. Atchison, T. & S. F. R. Co., 
    6 N.M. 266
    , 286-87, 
    27 P. 497
    , 504 (1891) (“Negligence is
    10
    a mixed question of law and fact, but in case the material facts are undisputed it may become
    a question of law, and in such case the court may properly direct the verdict as the law
    requires.”); Bassett v. Sheehan, 
    2008-NMCA-072
    , ¶ 9, 
    144 N.M. 178
    , 
    184 P.3d 1072
    (“Breach of duty is generally a question to be decided by the fact[]finder.”); Lessard v.
    Coronado Paint & Decorating Ctr., Inc., 
    2007-NMCA-122
    , ¶ 27, 
    142 N.M. 583
    , 
    168 P.3d 155
     (“Determining the existence of a duty is a question of law for the court, whereas breach
    of duty and proximate cause are questions of fact for the jury.” (citation omitted)).
    {33} In the case before us, Enchantment alleges generally negligent acts on the part of
    Bank. As evidence it offers the affidavit of its CEO, who stated:
    Initially we were told that . . . [B]ank would not accept corporate checks
    made out to “cash” unless an officer of the corporation presented the check.
    . . . [Employee] present[ed] checks well over $1,000.00 made out to “cash[,]”
    and it was well known that [Employee] was not a corporate officer. . . . The
    signatures were different between the signature cards and the checks and/or
    the endorsement. The checks were brought into . . . [B]ank signed, even
    though they were made out to cash. The check amounts exceeded teller
    limits and were often cashed without supervisor approval. Idamay Romero’s
    name is spelled out on the signature that is on the signature card, yet the
    signature on the forgery only shows a straight line for the name “Romero.”
    {34} New Mexico has not set a high threshold for a party to meet in order to survive a
    motion for summary judgment. See Bartlett v. Mirabal, 
    2000-NMCA-036
    , ¶¶ 35-38, 
    128 N.M. 830
    , 
    999 P.2d 1062
     (rejecting the higher burden of proof created by the United States
    Supreme Court in Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
     (1986), and declaring that
    “we are at a loss in ascertaining what substantive benefits, if any, the case would have on the
    law of summary judgment in New Mexico”); Romero II, 
    2010-NMSC-035
    , ¶¶ 8-9 (similarly
    rejecting the analysis in Celotex Corp. v. Catrett, 
    477 U.S. 317
     (1986), and declaring the
    Court’s “refusal to align our state’s approach with that of the federal courts”). Thus, our
    Supreme Court has refused to follow the path of federal courts in liberalizing the standards
    of summary judgment, preferring instead to continue making summary judgement a rarity.
    “New Mexico courts, unlike federal courts, view summary judgment with disfavor,
    preferring a trial on the merits.” Romero II, 
    2010-NMSC-035
    , ¶ 8. “We continue to refuse
    to loosen the reins of summary judgment, as doing so would ‘turn what is a summary
    proceeding into a full-blown paper trial on the merits.’ ” Id. ¶ 9 (quoting Bartlett, 2000-
    NMCA-036, ¶ 32).
    {35} In the case before us, Enchantment, the party opposing summary judgment, brought
    forth some evidence of a lack of ordinary care on the part of Bank. The CEO’s affidavit
    alleges that Bank broke its promise to not accept checks made out to cash unless an officer
    presented the check; that signatures on the forged checks differed from those on signature
    cards kept on file by Bank; and that check amounts exceeded teller limits but were cashed
    without supervisor approval. The statements in the affidavit suggest that Bank acted
    11
    unreasonably and may have violated its own procedures and perhaps industry standards. The
    CEO’s allegations sufficiently raise a genuine issue of material fact such that, if proved, the
    jury might find that Bank breached a duty of ordinary care. See Romero I,
    
    2009-NMCA-022
    , ¶ 12. And a fact is material to the extent that it is “of consequence under
    the substantive rules of law governing the parties’ dispute.” 
    Id.
     In sum, Enchantment did the
    bare minimum necessary to oppose the motion for summary judgment and raised genuine
    issues of material fact sufficient to survive Bank’s motion, and it was error for the district
    court to grant the motion for summary judgment. We therefore do not need to reach the
    question of whether Bank acted in bad faith.
    III.   The Adequacy of the Court for Fraud Need Not Be Addressed
    {36} Finally, Enchantment contends that the district court improperly dismissed its fraud
    claim for failing to state a claim upon which relief could be granted. The fraud claim was
    dismissed without prejudice for lack of requisite specificity in July 2007, nearly three years
    before the motion for summary judgment was granted.
    {37} We have previously noted the limitations on the right to appeal from the dismissal
    of a claim without prejudice. “Generally, an order of dismissal without prejudice is not
    appealable because it typically requires further proceedings.” Vescio v. Wolf,
    
    2009-NMCA-129
    , ¶ 7, 
    147 N.M. 374
    , 
    223 P.3d 371
    ; see also Bankers Trust Co. of Cal., N.S.
    v. Baca, 
    2007-NMCA-019
    , ¶ 11, 
    141 N.M. 127
    , 
    151 P.3d 88
     (noting that “dismissal without
    prejudice under Rule 1-041(E)(2) [NMRA] simply left the action as though it was never
    filed”); Bralley v. City of Albuquerque, 
    102 N.M. 715
    , 718, 
    699 P.2d 646
    , 649 (Ct. App.
    1985) (stating that a dismissal without prejudice “ordinarily imports further proceedings”
    (internal quotation marks and citation omitted)). “The words ‘without prejudice’ when used
    in an order or decree generally indicate that there has been no resolution of the controversy
    on its merits and leave the issues in litigation open to another suit as if no action had ever
    been brought.” Bralley, 102 N.M. at 719, 699 P.2d at 650.
    {38} As we have noted, here the district court dismissed the claim of fraud without
    prejudice. Three years later, the entire complaint was dismissed with prejudice. We rely on
    law related to the dismissal of a complaint but apply this law to the facts before us. An order
    dismissing a complaint without prejudice “should be given a practical rather than a technical
    construction” when considering the appropriateness of an appeal. Id. at 718, 699 P.2d at
    649. “Dismissal of a complaint without prejudice is only final and appealable if the order
    disposes of the case to the fullest extent possible in the court in which it was filed.” Vescio,
    
    2009-NMCA-129
    , ¶ 7; see Vill. of Los Ranchos de Albuquerque v. Shiveley, 
    110 N.M. 15
    ,
    17, 
    791 P.2d 466
    , 468 (Ct. App. 1989) (“A decision which terminates the suit, or puts the
    case out of court without an adjudication on the merits, is a final judgment.”). In Sunwest
    Bank of Albuquerque v. Nelson, 
    1998-NMSC-012
    , ¶ 9, 
    125 N.M. 170
    , 
    958 P.2d 740
    , our
    Supreme Court considered an appeal from a district court’s dismissal without prejudice of
    a case for improper venue. The court reasoned:
    12
    While the district court’s order did not decide the merits of the claim or
    preclude filing in an alternate venue, it disposed of the matter to the fullest
    extent possible in the court in which the action was filed. Unlike the
    dismissal of a complaint with leave to file an amendment, this order did not
    provide a specified time or manner for refiling.
    
    Id.
    {39} In the case before us, the district court’s dismissal without prejudice of the claim for
    fraud in July 2007 did not dispose of the case to the fullest extent possible. In fact, discovery
    continued until the court’s May 2010 order granting summary judgment in favor of Bank.
    Up until that time, Enchantment had been given leave to amend its complaint on the fraud
    count. Because we reverse entry of the summary judgment, the matter is remanded to the
    district court for further proceedings which would include any motions related to the fraud
    claim. Accordingly, we need not reach the merits of the appeal of the district court’s
    dismissal of the fraud count for lack of specificity.
    CONCLUSION
    {40} For the foregoing reasons, we affirm the district court’s granting of the motion to
    dismiss on common law preclusion, and we the reverse the motion for summary judgment
    in favor of Bank. We remand for further proceedings consistent with this Opinion.
    {41}    IT IS SO ORDERED.
    ____________________________________
    CELIA FOY CASTILLO, Chief Judge
    WE CONCUR:
    ____________________________________
    MICHAEL D. BUSTAMANTE, Judge
    ____________________________________
    JONATHAN B. SUTIN, Judge
    Topic Index for Assoc. Home & RV Sales, Inc. v. Bank of Belen, No. 30,829
    APPEAL AND ERROR
    Standard of Review
    CIVIL PROCEDURE
    Summary Judgment
    Time Limitations
    13
    COMMERCIAL LAW
    Financial Institutions
    Fraud
    Negotiable Instrument
    Uniform Commercial Code
    CONTRACTS
    Breach
    CRIMINAL LAW
    Forgery
    MISCELLANEOUS STATUTES
    Unfair Practices Act
    NEGLIGENCE
    Negligence, General
    Standard of Care
    14