Meems Santa Fe LP v. Tony Martin Builders

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6
7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
8 MEEMS SANTA FE, LP,
9 a Texas Limited Partnership,
10 Plaintiff-Appellee,
11 v. NO. 29,820
12 TONY MARTIN BUILDERS, LTD.,
13 a Texas Limited Liability Company,
14 Defendant-Appellant,
15 and
16 TONY MARTIN BUILDERS, LTD.
17 a Texas Limited Liability Company,
18 Third-Party Plaintiff-Appellant,
19 v.
20 DOUBLE K-M, LLC, a Texas Limited Liability Company,
21 and KAREN H. MAYES,
22 Third-Party Defendants-Appellees.
23 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
24 James A. Hall, District Judge
1 Felker, Ish, Ritchie & Geer, P.A.
2 Randy Felker
3 Santa Fe, NM
4 for Appellees
5 Simons & Slattery LLP
6 Thomas A. Simons IV
7 Santa Fe, NM
8 for Third-Party Appellees
9 Jewell & Thompson, P.C.
10 Nathaniel V. Thompkins
11 Santa Fe, NM
12 for Appellants
13 MEMORANDUM OPINION
14 BUSTAMANTE, Judge.
15 Defendant-Appellant Tony Martin Builders, Ltd. (Defendant) appeals from the
16 district court’s order denying Defendant’s motion to reconsider the summary
17 judgment rulings that dismiss all of Defendant’s claims. The notice proposed to
18 dismiss, and Defendant filed a timely memorandum in opposition. [Ct.App.File,
19 green clip] We are not persuaded by Defendant’s arguments, and therefore dismiss
20 for lack of a final order.
21 This case began when Meems Santa Fe, LP (Plaintiff) filed a complaint against
22 Defendant arising from the alleged breach of a construction contract. [RP Vol.I/1;
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1 Vol.III/460, 688] In response, Defendant filed an amended counterclaim against
2 Plaintiff [RP Vol.I/18, 68, 71] as well as a second amended third-party complaint
3 against Third-Party Defendants Karen Mayes and Double K-M (DKM). [RP
4 Vol.I/49, 76, 83] Plaintiff Meems [RP Vol.I/23, 46] and Third-Party Defendants
5 Mayes and DKM [RP Vol.I/191, 195; Vol.II/228, 251] subsequently filed summary
6 judgment motions, premised on the central argument that Defendant is an unlicensed
7 contractor and as such is barred from recovery under its counterclaim and third-party
8 complaint. [RP Vol.I/28, 32] The district court granted summary judgment in favor
9 of Plaintiff [RP Vol..II/262] and Third-Party Defendants [RP Vol.II/264], and
10 thereby dismissed with prejudice all of Defendant’s claims against these parties. [RP
11 Vol.II/262-65] Defendant now appeals from the district court’s order denying its
12 motion to reconsider the summary judgment rulings. [RP Vol.III/684]
13 Because claims brought by Plaintiff against Defendant remain outstanding [RP
14 Vol.I/1; Vol.II/460; Vol.III/688], dismissal for lack of a final order is merited. See
15 generally Rule 1-054(B)(1) NMRA (indicating that “when more than one claim for
16 relief is presented in an action . . . the court may enter a final judgment as to one or
17 more but fewer than all of the claims only upon an express determination that there
18 is no just reason for delay.”); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236,
19 824 P.2d 1033, 1038 (1992) (providing that, generally, an order or judgment is not
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1 considered final unless all issues of law and fact have been determined and the case
2 disposed of by the trial court to the fullest extent possible), limited on other grounds
3 by Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065 (1993).
4 Although Defendant argues finality on the basis that “the case languishes” in the
5 district court [MIO 3], the remedy for any inaction is a matter to be addressed below,
6 and is independent of finality on appeal.
7 We recognize that the district court’s summary judgment ruling precludes any
8 further litigation between Defendant and Third-Party Defendants. [MIO 2; RP
9 Vol.II/264] We recognize further Rule 1-054(B)(2), which provides that a judgment
10 determining all issues as to one party is final unless the court otherwise provides.
11 While the summary judgment ruling may have ended all litigation against Third-Party
12 Defendants, it did not, however, end the litigation against Defendant. Given
13 Plaintiff’s remaining claims against Defendant, application of Rule 1-054(B)(2) is not
14 merited. See, e.g., Healthsource, Inc. v. X-Ray Assocs. of N.M., P.C.,
15 2005-NMCA-097, ¶¶ 14-15, 138 N.M. 70, 116 P.3d 861 (recognizing that while Rule
16 1-054(B)(2) may provide finality to one party, it does not extend finality to a second
17 party if issues remain pending against such party in a counterclaim by a third party).
18 Further, as provided in Defendant’s counterclaim against Plaintiff, Third-Party
19 Defendant DKM is the general partner to Plaintiff, and Third-Party Defendant Karen
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1 Mayes is the manager of DKM. [RP Vol.I/18] Plaintiff’s third-party complaint
2 further provides that Third-Party Defendant DKM is the predecessor-in-interest of
3 Plaintiff. [RP Vol.II/463] Given the relationship between Plaintiff and Third-Party
4 Defendants, it would be ill advised to address the dismissal of Defendant’s claims
5 against Third-Party Defendants. See, e.g., Khalsa v. Levinson, 1998-NMCA-110, ¶¶
6 20-21, 1998-NMCA-110, 125 N.M. 680, 964 P.2d 844 (holding that the district court
7 abused its discretion by certifying an order for immediate appeal when the issues
8 resolved by the order were intertwined with issues not yet resolved by the district
9 court).
10 Conclusion. Based on the foregoing discussion, we dismiss for lack of finality.
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12 IT IS SO ORDERED.
13
14 MICHAEL D. BUSTAMANTE, Judge
15 WE CONCUR:
16
17 RODERICK T. KENNEDY, Judge
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19 MICHAEL E. VIGIL, Judge
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