F Padilla v. Ulibarri

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 ARNOLD PADILLA, 8 Petitioner-Appellee, 9 v. NO. 29,994 10 LEE ULIBARRI, JERRY ULIBARRI, 11 ANTHONY ULIBARRI, and NIEVES 12 SCHEHL, 13 Respondents-Appellants. 14 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 15 John W. Pope, District Judge 16 Arnold Padilla 17 Albuquerque, NM 18 Pro Se Appellee 19 Lee Ulibarri 20 Las Cruces, NM 21 Nieves Schehl 22 Titusville, FL 23 Pro Se Appellants 24 MEMORANDUM OPINION 25 FRY, Chief Judge. 1 Appellants (Respondents) appeal from the district court’s order that denies their 2 request for review and modification of the attorney’s fee order. [RP Vol. II/685] The 3 notice proposed to dismiss for lack of a final order. Appellee filed a timely 4 memorandum in support. Respondents filed a timely response to proposed summary 5 disposition indicating that they do not oppose the proposed disposition, as well as an 6 “amendment to non-opposition to summary dismissal.” Because the order is non- 7 final, we dismiss. 8 On appeal, Respondents contest the district court’s ruling that the “partition of 9 the property proceed immediately as provided for by the statute.” [RP Vol. II/685; DS 10 5-7] See NMSA 1978, § 42-5-1 (1907) (stating that “[w]hen any lands . . . shall be 11 owned in joint tenancy, tenancy in common or coparcenary . . . it shall be lawful for 12 any one or more persons interested . . . to present to the district court their complaint 13 . . . for a division and partition of such premises, according to the respective rights of 14 the parties interested therein, and for a sale thereof, if it shall appear that partition 15 cannot be made without great prejudice to the owners”). As set forth in our notice and 16 as recognized by Respondents in their response [DS 1], the order from which they 17 appeal is interlocutory. See Sims v. Sims, 1996-NMSC-078 , ¶¶ 1, 58-59, 122 N.M. 18 618, 930 P.2d 153 (providing that the order recognizing the agreement among the 19 parties as to the percentages of ownership they each held in the two ranches is [2] 1 interlocutory in nature until there has been a final judgment partitioning the two 2 ranches); Prude v. Lewis, 78 N.M. 256, 262 , 430 P.2d 753, 759 (1967) (recognizing 3 that a judgment “declaring the rights of the parties, ordering partition, and appointing 4 commissioners is interlocutory” because “further judgment and decree to vest and 5 divest title to the respective portions upon partition, or, in the event of a sale, to 6 confirm the sale and distribute the proceeds is required”). Because the order from 7 which Respondents appeal is interlocutory in nature and was not certified pursuant to 8 Rule 12-203 NMRA, we dismiss for lack of a final order. See Rule 12-203 (setting 9 forth requirements for interlocutory appeals); Chapel v. Nevitt, 2009-NMCA-017 , ¶ 10 14, 145 N.M. 674 , 203 P.3d 889 (recognizing that generally an order is not final 11 unless all issues of law and fact have been determined and the case disposed of by the 12 district court to the fullest extent possible). Lastly, to the extent Respondents continue 13 to challenge the district court’s authority to partition the property in their “amendment 14 to non-opposition to summary dismissal,” we decline to consider the merits of their 15 argument given the lack of a final order. For the same reason, we similarly decline 16 to address the effect of our previous opinion, on the merits of the present dispute. In 17 re Estate of Antonio Roybal, 2008-NMCA-110 , 144 N.M. 679 , 191 P.3d 537 . [RP 18 Vol. I/339; MIS 1-2] 19 CONCLUSION [3] 1 For reasons set forth herein and in our notice, we dismiss for lack of a final 2 order. [4] 1 IT IS SO ORDERED. [2] 3 CYNTHIA A. FRY, Chief Judge 4 WE CONCUR: [5] 6 CELIA FOY CASTILLO, Judge [7] 8 TIMOTHY L. GARCIA, Judge