Herbison v. Schwaner

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DANIEL J. HERBISON, 3 Plaintiff-Appellant, 4 v. NO. 34,585 5 MARIE SCHWANER, Personal 6 Representative of the Estate of 7 Robert Montgomery, 8 Defendant-Appellee. 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Nan G. Nash, District Judge 11 Daniel J. Herbison 12 Albuquerque, NM 13 Pro Se Appellant 14 Michael L. Danoff & Associates, PC 15 Michael L. Danoff 16 Albuquerque, NM 17 for Appellee 18 19 GARCIA, Judge. MEMORANDUM OPINION 1 {1} Plaintiff/Counterdefendant (Appellant) seeks to appeal from an order finding 2 a settlement memorandum to be binding and ordering the parties to take further action. 3 We previously issued a notice of proposed summary disposition in which we proposed 4 to dismiss on grounds that the district court’s order is not final. Appellant has filed a 5 memorandum in opposition, which we have duly considered. Because we remain 6 unpersuaded that this matter is properly before us, we dismiss the appeal. 7 {2} As we observed in the notice of proposed summary disposition, the right to 8 appeal is generally restricted to final judgments and decisions. See NMSA 1978, § 9 39-3-2 (1966). Generally, “an order or judgment is not considered final unless all 10 issues of law and fact have been determined and the case disposed of by the trial court 11 to the fullest extent possible.” Clinesmith v. Temmerman, 2013-NMCA-024, ¶ 35, 298 12 P.3d 458 (emphasis added) (internal quotation marks and citation omitted). 13 {3} The order entered below does not satisfy this standard. Although it appears to 14 resolve the central issue, it clearly contemplates further significant action, including 15 the preparation and execution of a settlement document, to be followed by a formal 16 order of dismissal. [RP 385] Clearly, such an order of dismissal would constitute a 17 final judgment, from which appeal could be taken. See generally State v. Montoya, 18 2008-NMSC-043, ¶ 11, 144 N.M. 458, 188 P.3d 1209 (“An order of dismissal is a 19 type of appealable final order.”). However, insofar as no order of dismissal has been 2 1 entered, we conclude that the appeal is premature. See generally Thornton v. Gamble, 2 1984-NMCA-093, ¶ 9, 101 N.M. 764, 688 P.2d 1268 (holding that a judgment did not 3 constitute a final, appealable order where it specifically contemplated the entry of a 4 further order). 5 {4} In his memorandum in opposition Appellant invokes the doctrine of practical 6 finality. [MIO 2, 5] Appellant contends that the matters which remain pending before 7 the district court merely pertain to enforcement. [MIO 5] See State v. Heinsen, 8 2005-NMSC-035, ¶ 15, 138 N.M. 441, 121 P.3d 1040 (“We will review a court’s 9 decision when an order effectively disposes of the issues in a case, even though 10 supplementary proceedings are necessary to enforce the order.”) To the extent that 11 subsequent matters “involve proceedings to carry out or give effect to a judgment” 12 such that the present procedural posture of the case falls within the “twilight zone” of 13 finality, Trujillo v. Hilton of Santa Fe, 1993-NMSC-017, ¶¶ 3, 5, 115 N.M. 397, 851 14 P.2d 1064, Appellant contends that the appeal is properly before us. [MIO 2] 15 {5} We remain unpersuaded. By its very nature, the entire dispute between the 16 parties pertains to enforcement. Moreover, while the district court’s order reflects that 17 critical determinations have been made relative to the enforceability of the putative 18 settlement agreement, and although the exhibits suggest that the settlement documents 19 are sufficiently comprehensive as to address the substantive issues between the 3 1 parties, the fact remains that a final version of this document remains to be formally 2 memorialized and signed. The district court’s order plainly reflects that it shall to 3 retain jurisdiction over the parties and the proceedings until that is accomplished. [RP 4 385] By expressly so providing, the district court remains in a position to address 5 additional substantive complications that may arise. Dismissal is explicitly 6 contemplated thereafter. [RP 385] Under the circumstances, we conclude that the 7 underlying proceedings have not been sufficiently concluded to permit the application 8 of the doctrine of practical finality. See generally Heinsen, 2005-NMSC-035, ¶15 9 (observing that “practical finality is the exception, rather than the rule” and the 10 doctrine is applied only “cautiously, in limited circumstances”); and see, e.g., State 11 v. Candy L., 2003-NMCA-109, ¶ 6, 134 N.M. 213, 75 P.3d 429 (holding that an order 12 requiring restitution and contemplating the preparation of a restitution plan to be filed 13 with the district court was not final for purposes of appeal where no such plan had yet 14 been filed; the preparation and filing of a specific plan was not a ministerial act, but 15 rather a substantive determination; and ultimately, although the finality issue was 16 debatable, the Court elected to err on the side of avoiding piecemeal appeals and 17 enhancing judicial efficiency). 18 {6} In closing, we acknowledge Appellant’s concern that he may be effectively 19 denied supersedeas relief if he is compelled to sign the settlement agreement and 4 1 fulfill his obligations thereunder before pursuing an appeal. [MIO 5] Although this is 2 anomalous, it does not alter our assessment of the threshold jurisdictional question. 3 We further note that insofar as the district court retains jurisdiction over the 4 proceedings it is at liberty to address the problem by amending its order or taking 5 other appropriate action. See generally Universal Constructors, Inc. v. Fielder, 6 1994-NMCA-112, ¶ 6, 118 N.M. 657, 884 P.2d 813 (observing that “an interlocutory 7 order, by definition, is open for revision, and the district court, upon further reflection 8 or examination, [i]s at liberty to change it” (internal quotation marks and citation 9 omitted)). 10 {7} Accordingly, for the reasons stated above and in the notice of proposed summary 11 disposition, we conclude that the district court’s order is not immediately reviewable. 12 The appeal is therefore summarily dismissed. 13 {8} IT IS SO ORDERED. 14 15 ________________________________ TIMOTHY L. GARCIA, Judge 16 WE CONCUR: 17 _______________________________ 18 M. MONICA ZAMORA, Judge 19 _______________________________ 5 1 J. MILES HANISEE, Judge 6

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