American Express Federal Savings Bank v. Mittle
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 AMERICAN EXPRESS FEDERAL 3 SAVINGS BANK, FSB, 4 Plaintiff-Appellee, 5 vs. NO. 32,792 6 DAVID E. MITTLE, 7 Defendant-Appellant. 8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 9 Raymond Z. Ortiz, District Judge 10 Bryan W. Thomason 11 Albuquerque, NM 12 for Appellee 13 David E. Mittle 14 Santa Fe, NM 15 Pro se Appellant 16 17 GARCIA, Judge. MEMORANDUM OPINION 1 {1} Appellant David E. Mittle appeals from the following orders filed by the district 2 court: (1) Order Granting Plaintiff s Motion for Summary Judgment, filed February 3 6, 2013 [RP Vol. IV/596]; (2) Order Denying Defendant s Motion to Strike Plaintiff s 4 Reply in Support of Summary Judgment, filed February 6, 2013 [RP Vol. IV/598]; (3) 5 Order Denying Defendant s Oral Motions to Reconsider, filed February 22, 2013 [RP 6 Vol. IV/612]; and (4) Order Denying Defendant s Motion for Sanctions, filed 7 February 22, 2013 [RP Vol. IV/610]. [See also RP Vol. IV/627-37] Our notice 8 proposed to dismiss for lack of a final order, and Mittle filed a timely memorandum 9 in opposition. We are not persuaded by Mittle s arguments and therefore dismiss for 10 lack of a final order. 11 {2} In relevant part, the Order Granting Plaintiff s Motion for Summary Judgment 12 states the following: Plaintiff [American Express Bank, FSB] shall prepare a form 13 of final judgment in this matter and distribute it to all parties for approval within five 14 days of entry of this Order. [RP Vol. IV/596] Because the referenced passage 15 indicates that the district court will enter a subsequent judgment, the order is not final 16 for purposes of appeal. See generally Kelly Inn No. 102, Inc. v. Kapnison, 199217 NMSC-005, ¶ 14, 113 N.M. 231, 824 P.2d 1033 (providing that an order or judgment 18 is not considered final unless all issues of law and fact have been determined and the 19 case disposed of by the trial court to the fullest extent possible), limited on other 2 1 grounds by Trujillo v. Hilton of Santa Fe, 1993-NMSC-017, ¶ 1, 115 N.M. 397, 851 2 P.2d 1064. 3 {3} Mittle argues that the order granting summary judgment disposed of all issues 4 of law and fact to the fullest extent possible, with the exception of attorney fees and 5 costs. [MIO 2] Likewise, Mittle claims that entry of a final judgment in this case is 6 simply a ministerial act. [MIO 3] We disagree. The order granting summary 7 judgment is not a final disposition and the district court was free to modify its ruling 8 until it entered the final judgment. 9 {4} To the extent that Mittle relies upon Kelly Inn No. 102, Inc, 1992-NMSC-005, 10 in support of his argument, we note that there is a distinction between attorney fees 11 that are collateral to the judgment and attorney fees that are part of the compensatory 12 damages. See Exec. Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, ¶ 8, 125 13 N.M. 78, 957 P.2d 63. In this case, American Express claims that it is entitled to 14 attorney fees based upon an open account and pursuant to the terms of the Business 15 Charge Card Agreement. [RP Vol.IV/648] 16 {5} The district court must decide whether American Express is entitled to attorney 17 fees and costs under either or both of these principles [RP Vol.IV/648, 658, 670], and 18 if so, the amount of attorney fees and costs. Before making this decision, the district 19 court must decide whether this case was tried as an open account. [RP Vol.IV/648, 3 1 658, 670] Similarly, the district court must decide whether Mittle is entitled to a jury 2 trial on attorney fees. [RP Vol.IV/660-61, 671-72] Contrary to Mittle s assertions, 3 entry of a final judgment in this case will require more than just a ministerial act. 4 [MIO 3] 5 {6} Given that further action by the district court is contemplated, the order granting 6 summary judgment is not a final order. Accordingly, for the reasons stated in this 7 Opinion and in our notice of proposed summary disposition, we dismiss for lack of 8 a final order. 9 {7} IT IS SO ORDERED. 10 11 TIMOTHY L. GARCIA, Judge 12 WE CONCUR: 13 14 RODERICK T. KENNEDY, Chief Judge 15 16 M. MONICA ZAMORA, Judge 4
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