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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 GARY STRIPLING and LOUISE PARTEN, 8 f/k/a LOUISE STRIPLING, 9 10 v. 11 12 SHAUNA, INC., dba 13 SOLITAIRE HOMES, 14 Defendant-Appellant, Plaintiffs-Appellees, NO. 28,729, 28,942 & 28,988 (Consolidated)

15 Joined with 16 GARY STRIPLING and LOUISE PARTEN, 17 f/k/a LOUISE STRIPLING, 18 19 v. 20 21 22 23 24 25 SHAUNA, INC., GEORGE and SHARI SULIMA, SOLITAIRE HOLDINGS, LLC, DIAMOND HOME TRANSPORT, INC., and SOLITAIRE HOME TRANSPORT, L.P., Defendants-Appellants, Plaintiffs-Appellees,

1 and 2 SOLITAIRE HOLDINGS, LLC, 3 Garnishee-Appellant.

4 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 5 Thomas J. Hynes, District Judge 6 7 8 9 10 Feferman & Warren Charles Parnall Susan Warren Richard Feferman Albuquerque, NM

11 for Appellees 12 Vance, Chavez & Associates, LLC 13 James A. Chavez 14 Albuquerque, NM 15 for Appellants 16 17 18 19 20 Moses, Dunn, Farmer & Tuthill, P.C. Terry D. Farmer Mark A. Glenn Jason M. Wexler Albuquerque, NM

21 for Solitaire Holdings, LLC 22 23 GARCIA, Judge. 24 This case initially presented the issue of whether two separate cases were joined MEMORANDUM OPINION

1 and consolidated by the district court for purposes of enforcement and collection. In 2 the first lawsuit, a judgment was entered against Shauna, Inc., and in favor of the 3 Striplings. In the second lawsuit, the judgment contained unique language

4 specifically entitling the Striplings to collect their first judgment against additional 5 parties. The additional parties were the Sulimas, who owned Shauna, Inc. The 6 Sulimas were not parties in the first lawsuit involving fraud committed by Shauna, 7 Inc., but were parties in the second lawsuit dealing with fraudulent transfers from 8 Shauna, Inc., committed by the Sulimas. The first issue we must resolve deals with 9 the finality of the district court's orders entered in the two lawsuits. These orders 10 addressed a writ of garnishment in the first lawsuit and joinder of the two lawsuits. 11 The issue of standing also became ripe in this matter when George Sulima, the only 12 remaining judgment debtor in the second lawsuit, failed to file any briefs and 13 abandoned his appeal. We recognize the unique factual and procedural circumstances 14 presented in this case. We hold that the district court's orders dealing with

15 garnishment and joinder shall be recognized as final for the purposes of this appeal. 16 We further hold that, as garnishee, Solitaire does not have standing to attack the 17 consolidated judgment and writ of garnishment entered against George Sulima, the 18 judgment debtor. As a result, Solitaire did not have standing to appeal the district 19 court's rulings regarding the joinder of the two cases. We affirm. 2

1 BACKGROUND AND PROCEDURAL HISTORY 2 This case had a complicated procedural history. In 2003, Plaintiffs, the

3 Striplings, initiated an arbitration and a lawsuit (the 2003 Case) that involved fraud 4 claims regarding the sale of a mobile home by Shauna, Inc., (Shauna). Shauna was 5 a wholly-owned entity of George and Shari Sulima (the Sulimas). The Striplings 6 prevailed in the 2003 Case, and the district court entered judgment solely against 7 Shauna (the 2003 Judgment). Before the 2003 Judgment was entered, however, 8 Shauna transferred significant portions of its assets and other funds to the Sulimas and 9 to Solitare Holdings, LLC (Solitaire), a related business entity. As a result of these 10 transfers, the Striplings were unable to collect the full amount of the 2003 Judgment 11 against Shauna. In 2006, the Striplings initiated a separate fraudulent transfer lawsuit 12 (the 2006 Case) against Shauna and additional defendants, including the Sulimas and 13 Solitaire. Solitaire was dismissed by stipulation from the 2006 Case prior to trial. 14 Again, the Striplings prevailed in the 2006 Case and, on May 6, 2008, a judgment for 15 fraudulent conveyance was entered against Shauna and the Sulimas individually (the 16 2006 Judgment). The 2006 Judgment did not award a specific monetary damage 17 amount in favor of the Striplings. Instead, the district court awarded the Striplings the 18 right to collect the 2003 Judgment against the Sulimas as follows: 19 20 Plaintiffs are entitled to collect from George Sulima and Shari Sulima, jointly and severally, [the 2003 Judgment], in favor of Plaintiffs 3

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and against Shauna, Inc., in the action filed in this judicial district and entitled Stripling v. Shauna, D-1116-200300169, [the 2003 Case].

3 (emphasis added). The 2006 Judgment did not award any damages against the 4 remaining three defendants, one of the three being Solitaire. As part of the 2003 Case, 5 the district court entered an additional arbitration award of attorney fees in favor of 6 the Striplings on July 23, 2008 (the Judgment Awarding Attorney Fees). On August 7 20, 2008, the district court issued a sua sponte order of joinder (the Order of Joinder) 8 to formally join the 2003 Case with the 2006 Case (the Consolidated Cases). 9 On June 2, 2008, prior to the Order of Joinder and pursuant to the language

10 contained in the 2006 Judgment, the Striplings filed an application for a writ of 11 garnishment against George Sulima in the 2003 Case to collect the 2003 Judgment 12 against him personally (the Writ of Garnishment). The Writ of Garnishment was 13 issued and served on Solitaire, George Sulima's employer on June 6, 2008. Solitaire 14 and the Sulimas both filed motions to quash the Writ of Garnishment. The district 15 court denied the motions to quash the Writ of Garnishment on August 20, 2008, and 16 found that the Sulimas were jointly and severally liable for the 2003 Judgment (the 17 Denial to Quash Garnishment). On August 22, 2008, George Sulima appealed the 18 order of Denial to Quash Garnishment and the Judgment Awarding Attorney Fees. 19 On September 11, 2008, Solitaire also filed an appeal from the Denial to Quash 20 Garnishment. On September 19, 2008, Solitaire amended its appeal to include and 4

1 add the Order of Joinder. George Sulima did not file any briefs with this Court to 2 pursue his appeal. Because George Sulima was the only judgment debtor remaining 3 in the case and he chose not to pursue his appeal, we requested that the remaining 4 parties address the issue of standing. 5 ANALYSIS 6 I. 7 Finality The Striplings have raised the issue of whether the Denial to Quash

8 Garnishment and the Order of Joinder are final appealable orders that may be heard 9 by this Court. We address the garnishment issue first. "Ordinarily [an] order denying 10 [a] motion to quash a writ of garnishment is neither a final judgment nor an 11 interlocutory judgment, order or decision practically disposing of the merits of a case. 12 Hence, it is not appealable." Alfred v. Anderson, 86 N.M. 227, 230, 522 P.2d 79, 82 13 (1974). However, "an appeal does lie from an order refusing to quash a writ of 14 garnishment or to dismiss the garnishment proceedings if there is a [genuine] question 15 as to the jurisdiction of the issuing court over the indebtedness or [the] funds 16 impounded, or to be impounded, under the writ." Id. In Alfred, the Supreme Court 17 suggested that such an appeal was proper because the jurisdictional question could not 18 have been resolved in an appeal of the original judgment rendered in favor of the 19 creditors and against the debtor. Id. at 230-31, 522 P.2d at 82-3. 5

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Here, both Solitaire and George Sulima have challenged the jurisdiction of the

2 district court in the 2003 Case to issue the Writ of Garnishment. Because Solitare was 3 not a party in the original 2003 Case and was dismissed from the 2006 Case prior to 4 trial, we raised the issue of whether Solitaire had standing to attack the decisions and 5 orders entered by the district court against Sulima. If Solitaire lacks standing to 6 appeal, we do not need to address Solitaire's arguments regarding finality. As a result, 7 we will only address the issue of finality based upon George Sulima's appeal of the 8 Denial to Quash Garnishment entered by the district court. We recognize that George 9 Sulima did challenge the jurisdiction of the district court to issue the Writ of 10 Garnishment against him in the 2003 Case. 11 As this appeal raises a genuine question of jurisdiction, our finality

12 determination requires that we look at when the jurisdictional question could have 13 been resolved by George Sulima. See id. Prior to the Order of Joinder, we cannot see 14 how George Sulima could have addressed the jurisdictional issue arising from the 15 Writ of Garnishment issued in the 2003 Case by appealing the judgment entered 16 against him in the 2006 Case. At the time of George Sulima's appeal, therefore, the 17 Denial to Quash Garnishment was a final appealable order involving jurisdiction that 18 George Sulima was entitled to have heard by this Court. See id. (holding that an order 19 refusing to quash a writ of garnishment was appealable where the question of 6

1 jurisdiction could not have been resolved in an appeal by the petitioners from the 2 judgments rendered against them in the suits brought by their creditors). 3 We next address the finality of a consolidation that was effectuated by the

4 Order of Joinder. Although an order of consolidation does not dispose of the case or 5 address the merits and is not normally considered a final judgment, it can be 6 considered final where the merits of the case have already been resolved. See Roark 7 v. Farmers Grp., Inc., 2007-NMCA-074,

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