Bank of America v. Khalsa

• Court: New Mexico Court of Appeals
• Decided: November 19, 2013
• Docket: 32,979
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BANK OF AMERICA, NATIONAL 3 ASSOCIATION AS SUCCESSOR 4 BY MERGER TO LASALLE BANK 5 NATIONAL ASSOCIATION, AS 6 TRUSTEE FOR THE C-BASS 7 MORTGAGE LOAN ASSET-BACKED 8 CERTIFICATES, SERIES 2007-SP1,

9 Plaintiff-Appellee,

10 v. NO. 32,979

11 MUKHTIAR S. KHALSA and 12 GURNAM K. KHALSA,

13 Defendants-Appellants.

14 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 15 Francis J. Mathew, District Judge

16 Rose Little Brand & Associates, P.C. 17 Karen Howden Weaver 18 Albuquerque, NM

19 for Appellee

20 SaucedoChavez, P.C. 21 Richard H. Cravens IV 22 Albuquerque, NM 1 for Appellants 2 MEMORANDUM OPINION

3 VIGIL, Judge.

4 {1} Defendants-Appellants Mukhtiar S. Khalsa and Gurnam K. Khalsa

5 (Defendants) seek to appeal from an order denying their motion for relief from a

6 previously-entered award of summary judgment in the underlying foreclosure action.

7 We issued a notice of proposed summary disposition, proposing to dismiss the appeal

8 for want of a final order. Defendants have filed a memorandum in opposition. After

9 due consideration, we remain unpersuaded that this matter is properly before us. We

10 therefore dismiss.

11 {2} The right to appeal is generally restricted to final judgments and decisions. See

12 NMSA 1978, § 39-3-2 (1966). Whether an order is final, such that appeal is statutorily

13 authorized, is a jurisdictional question that this Court is required to raise on its own

14 motion. Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.

15 {3} The pendency of a motion for presentment, by which Plaintiff-Appellee Bank

16 of America (Plaintiff) has sought to memorialize an oral award of sanctions against

17 Defendants, disrupts the finality of the judgment. As we observed in the notice of

18 proposed summary disposition, if the putative award was in the nature of a contempt

19 or discovery order, the motion for presentment would be of less concern. See, e.g.,

20 State v. Ngo, 2001-NMCA-041, ¶ 7, 130 N.M. 515, 27 P.3d 1002 (holding that an

2 1 order for sanctions, “which was in part a contempt order and in part similar to a

2 contempt order,” was final and appealable when entered); Krahling v. Exec. Life Ins.

3 Co., 1998-NMCA-071, ¶¶ 6-8, 125 N.M. 228, 959 P.2d 562 (holding that the filing

4 of notice of appeal did not deprive the district court of jurisdiction to reduce a prior

5 oral ruling on a discovery matter to writing). However, as we previously explained,

6 because the putative award appears instead to have been based on Rule 1-011 NMRA,

7 and because such an award would entail a substantive evaluation of legal and factual

8 issues involved in the case, we remain of the opinion that appellate review should

9 await the entry of a written order which, at a minimum, memorializes the imposition

10 of sanctions. See Exec. Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008,

11 ¶¶ 12-14, 125 N.M. 78, 957 P.2d 63 (observing that “matters involving the award and

12 valuation of attorney’s fees are of marginal finality,” and noting that where such an

13 award entails “a substantive evaluation of legal and factual issues involved in the

14 case,” not all significant issues have been determined to the fullest extent possible,

15 such that “the pending matter precludes finality”); and see, e.g., Landess v. Gardner

16 Turf Grass, Inc., 2008-NMCA-159, ¶ 5, 145 N.M. 372, 198 P.3d 871 (observing that

17 the underlying proceedings were “sufficiently final” to permit appellate review where

18 an order had been entered resolving the merits of the underlying litigation and

3 1 imposing sanctions pursuant to Rule 1-011, notwithstanding the fact that the specific

2 amount of the sanctions award remained undecided).

3 {4} The remainder of Defendants’ memorandum in opposition is addressed to the

4 merits of Defendants’ standing argument. [MIO 2-3] Because we conclude that the

5 pendency of the motion for presentment renders the instant appeal premature, we

6 decline to consider the merits at this juncture.

7 {5} Accordingly, for the reasons stated above and in our notice of proposed

8 summary disposition, this appeal is DISMISSED. We remand to the district court for

9 further proceedings.

10 {6} IT IS SO ORDERED.

11 __________________________________ 12 MICHAEL E. VIGIL, Judge

13 WE CONCUR:

14 ___________________________________ 15 MICHAEL D. BUSTAMANTE, Judge

16 ___________________________________ 17 TIMOTHY L. GARCIA, Judge