Bank of America v. Khalsa ( 2013 )

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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
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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
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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
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