Waisner v. Jones

• Decision Date: 14 January 1986
• Docket Number: No. 8064,8064
• Citation: 1986 NMCA 5,713 P.2d 565,103 N.M. 749
• Parties: Laura WAISNER, Plaintiff-Appellant, v. Larry JONES, Otero Federal Credit Union and Credit Union One, Defendants- Appellees.
• Court: Court of Appeals of New Mexico

Page 565

713 P.2d 565

103 N.M. 749

Laura WAISNER, Plaintiff-Appellant, v. Larry JONES, Otero Federal Credit Union and Credit Union

One, Defendants- Appellees.

No. 8064.

Court of Appeals of New Mexico.

Jan. 14, 1986.

[103 NM 749] S. Thomas Overstreet, P.C., Alamogordo, for plaintiff-appellant.

Francis M. Selph, Alamogordo, for defendants-appellees.

OPINION

BIVINS, Judge.

Plaintiff sued for unlawful repossession of her vehicle. Defendant Credit Union One counterclaimed based on default in payment of the promissory note given by plaintiff. Following a jury trial in which the hereinafter described verdict was returned, plaintiff appeals, raising eight issues. We dismiss the appeal as premature, however, because plaintiff fails to appeal from a final order.

After plaintiff filed her brief-in-chief, defendant Credit Union One moved to dismiss the appeal. Defendant claims that an order entered August 16, 1984, granting defendant's Rule 60(b) motion, NMSA 1978, Civ.P. Rule 60(b) (Repl.Pamp.1980), and ordering a judicial sale, was not a final, appealable order, thus making plaintiff's appeal premature under NMSA 1978, Civ.App. Rule 3(a) (Repl.Pamp.1984).

We first set out the relevant motions and orders following the jury verdict, and then analyze defendant's claim. Relevant to this appeal, the jury returned the following verdict on May 17, 1984: "We find for the Defendant CREDIT UNION ONE, in the sum of $ 0 , on the Counter Claim [sic] and against the Plaintiff on the Complaint."

The normal procedure in cases of inconsistent or ambiguous verdicts is for the court to direct the jury to return to the jury room to reach, upon further deliberation, an agreement on a correct form of verdict. Marr v. Nagel, 59 N.M. 21, 278 P.2d 561 (1954); Sanchez v. Martinez, 99 N.M. 66, 653 P.2d 897 (Ct.App.1982). If the jury fails to reach such an agreement, the appropriate remedy is to award a new trial. Casarez v. Garcia, 99 N.M. 508, 660 P.2d 598 (Ct.App.1983). This procedure, however, was not followed in this case. Instead, on May 18, 1984, Credit Union One moved for a judgment notwithstanding the verdict, NMSA 1978, Civ.P. Rule 50(b) (Repl.Pamp.1980), asking that the verdict awarding it zero damages be set aside and that judgment be entered for the amount of its indebtedness plus interest and costs. Defendant contended that reasonable minds could not differ as to plaintiff's default and the amount due. The motion stated that defendant moved for a directed verdict at the close of plaintiff's case and at the close of its case.

On June 1, 1984, plaintiff moved for a judgment on the verdict, asking that the judicial sale sought by defendant Credit Union One take place. Plaintiff requested that after crediting the defendant with zero amount, the balance should be paid over to plaintiff.

The trial court entered judgment, on June 26, 1984, dismissing plaintiff's complaint with prejudice. Defendant Credit Union One's counterclaim against plaintiff also was dismissed with prejudice.

On July 5, 1984, plaintiff moved for judgment n.o.v. or, in the alternative, for a new trial. Plaintiff also asked for delivery of the vehicle. The trial court entered an order, on July 25, 1984: (1) denying plaintiff's motions for judgment n.o.v. or new trial and for delivery of the vehicle; (2) denying defendant Credit Union One's motion for judgment n.o.v.

Defendant Credit Union One filed, on July 26, 1984, a motion for relief under Rule 60(b), and also for an extension of time to appeal. On August 16, 1984, the trial court entered an order granting defendant Credit Union One's Rule 60(b) motion and ordering the sale by a special master of the vehicle with the proceeds of sale deposited with the court "until a final determination can be made concerning the distribution of said proceeds."

It is the quoted language above that provides the basis for Credit Union One's motion to dismiss this appeal. It contends that because further action is contemplated, i.e., distribution of the proceeds of the sale, no final, appealable order has been entered. In making this argument, defendant relies on Jemez Properties, Inc. v. Lucero, 94 N.M. 181, 608 P.2d 157 (Ct.App.1979). Jemez held that the supreme court in Albuquerque Productions Credit Association v. Martinez, 91 N.M. 317, 573 P.2d 672 (1978), overruled by implication its earlier case of Hoover v. City of Albuquerque, 56 N.M. 525, 245 P.2d 1038 (1952). Hoover recognized that the order setting aside a judgment affected a substantial right and was thus appealable. See Civ.App.R. 3(a)(3). In Martinez, the supreme court quoted with approval from 7 Moore's Federal Practice p 60.30, at 431 (2d ed. 1975), as follows:

An order granting a motion for relief under 60(b) must be tested by the usual principles of finality; and when so tested will occasionally be final, although probably in most cases it will not be. Thus where the court, in addition to determining that there is a valid ground for relief under 60(b), at the same time makes a redetermination of the merits, its order is final since it leaves nothing more to be adjudged * * *.

On the other hand, and this is probably a common situation, where the order granting relief merely vacates the judgment and leaves the case pending for further determination, the order is akin to an order granting a new trial and is interlocutory and non-appealable.

91 N.M. at 318-19, 573 P.2d 673-74 (emphasis added).

The August 16, 1984, order provided, in part:

2. That the consequence of the granting of said Motion is that that portion of the jury verdict inconsistent with a finding that the Plaintiff was in default and allowing for foreclosure of the collateral is set aside and the Court finds that the Plaintiff, Laura Waisner was in default and that Defendant, Credit Union One is ordered to foreclose on the collateral.

The question before us, therefore, is whether the court's order was a redetermination on the merits. From the information before us, we cannot make such a determination. One conclusion, however, is clear: further action in this case was contemplated by the trial court, i.e., the foreclosure and sale of the vehicle and a determination of the method of distributing the proceeds of the sale.

In a similar situation, the supreme court held that a decree and order of sale of real estate to satisfy debts of an estate was a final, appealable order, as was the order confirming the sale. Cooper v. Brownfield, 33 N.M. 464, 269 P....