Grano v. RKI Exploration & Production LLC

Opinion

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2 MARC GRANO, as Personal 3 Representative of the ESTATE OF 4 ROBERTO MAGDALENO, and 5 LAURA CEJA, Individually and as 6 Parent and Guardian of

9 Plaintiffs-Appellants,

10 v. No. A-1-CA-37329

13 Defendant-Appellee.

15 Sarah C. Backus, District Judge

16 Wray & Girard, PC 17 Katherine Wray 18 Albuquerque, NM

19 for Appellant

20 Chapman and Priest, P.C. 21 Ada B. Priest 22 Mitchell J. Freedman 23 Albuquerque, NM 1 Holland & Hart LLP 2 Larry J. Montaño 3 Julia Broggi 4 Santa Fe, NM

5 for Appellee

7 VANZI, Judge.

8 {1} Plaintiffs are appealing from a judgment, entered after a jury verdict, dismissing

9 Plaintiffs’ claims against Defendant RKI Exploration and Production, LLC. [RP 3678,

10 4046] We issued a calendar notice proposing to dismiss for lack of a final order.

11 Plaintiffs have filed a memorandum in opposition, which we find unpersuasive.

12 Accordingly, we dismiss.

13 {2} “[O]ur appellate jurisdiction is limited to review of ‘any final judgment or

14 decision, any interlocutory order or decision which practically disposes of the merits

15 of the action, or any final order after entry of judgment which affects substantial

16 rights.’ ” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140

17 N.M. 920, 149 P.3d 1017 (alteration, internal quotation marks, and citation omitted).

18 An appellate court does not have jurisdiction when a final judgment has not been

19 entered. See, e.g., State v. Griego, 2004-NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d

20 1192 (dismissing for lack of jurisdiction when no final judgment had been entered);

2 1 State v. Garcia, 1983-NMCA-017, ¶¶ 29-30, 99 N.M. 466, 659 P.2d 918 (same).

2 When an appellate court does not have jurisdiction, it must dismiss. See Thornton v.

3 Gamble, 1984-NMCA-093, ¶ 15, 101 N.M. 764, 688 P.2d 1268.

4 {3} As indicated, Plaintiffs filed a notice of appeal from a July 31, 2017, judgment,

5 entered after a jury verdict, dismissing Plaintiffs’ claims against Defendant RKI

6 Exploration and Production, LLC. [RP 3678, 4046] However, as the district court

7 noted in its order denying a motion for summary judgment brought by other

8 Defendants, there are pending cross-claims in this case. [RP 4153] Accordingly, our

9 calendar notice proposed to hold that the July 31, 2017 judgment and subsequent order

10 denying a new trial are not considered final pursuant to Rule 1-054(B) NMRA. {4}

11 Plaintiffs argue that the cross-claims are indemnification claims for

12 reimbursement of attorney fees, and therefore should not affect finality. [MIO 12]

13 However, our Supreme Court has held that attorney fees in an indemnification action

14 are equivalent to damages and that a pending fees claim in such cases deem any

15 appeal to be premature. See Principal Mut. Life Ins. Co. v. Straus, 1993-NMSC-058,

16 ¶¶ 10-11, 116 N.M. 412, 863 P.2d 447. We also are not persuaded by Plaintiffs’ claim

17 that the district court implicitly certified finality, because it chose to hold off

18 addressing the cross-claims until this appeal was resolved. [MIO 12] There is no

3 1 indication that the district court actually addressed the Rule 1-054(B) issue on the

2 merits. In light of our analysis, we do not deem it necessary to address arguments

3 made with respect to independent grounds for rendering this matter non-final. [MIO

4 13]

5 {5} For the reasons set forth above, we dismiss the appeal.

6 {6} IT IS SO ORDERED.

7 8 LINDA M. VANZI, Judge

9 WE CONCUR:

10 11 M. MONICA ZAMORA, Judge

12 13 J. MILES HANISEE, Judge