March 4, 2019- Marc Grano v. RKI Exploration and Production, LLC, No. A-1-CA-37329

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
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
7 CHRISTIAN ANDRADE CEJA AND	.
8 BRANDON ANDRADE CEJA,
9 	Plaintiffs-Appellants,
10 v. 	No. A-1-CA-37329
11 	RKI EXPLORATION AND
12 PRODUCTION, LLC,
13 	Defendant-Appellee.
, 14 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
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
Court of Appeals of New Mexico
Filed 3/4/2019 11:35 AM
Mark Reynolds

1 Holland & Hart LLP
2 Larry J. Montano
3 Julia Broggi
4 Santa Fe, NM
5 for Appellee
6
7 V ANZI, Judge.
MEMORANDUM OPINION
8 	{t} 	Plaintiffs 	are 	appealing 	from 	a judgment, 	entered 	after a Jury 	verdict,
9 dismissing Plaintiffs' claims against Defendant RKI Exploration and Production,
10 LLC. [RP 3678, 4046] We issued a calendar notice proposing to dismiss for lack of
11 	a final order. Plaintiffs have filed a memorandum in· opposition, which we find
12 unpersuasive. 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, ,r 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 riot been
19 entered. See, e.g., State v. Griego, 2004-NMCA-107, ,r 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-Ol 7, 1129-30, 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, 115, 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
10 order denying a new trial are not considered final pursuant to Rule l-054(B) NMRA.
11 	{4} 	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 11 	10-11, 116 N.M. 412, 863 P.2d 447. We also are not persuaded by Plaintiffs'
17 claim 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
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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 	L
9 WE CONCUR:
10 --=-_____.:~~~~--=~~~===---11 	M. MONICA ZA ..,.,...., ... '-",,.,
12 	9--~
13 	J. MILES HANISEE, Judge
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