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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 JOE TUNIS, SHIRLEY WHEELER, 2 JOHN EWERT, and PATTY SALESSES, 3 Plaintiffs-Appellants, 4

v. No. A-1-CA-35931 5 COUNTRY CLUB ESTATES 6 HOMEOWNERS ASSOCIATIONS, INC., 7 Defendant-Appellee. 8 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 9 Daniel Viramontes, District Judge 10 Scott Hulse P.C. 11 R. Glenn Davis 12 Las Cruces, NM 13 Henry J. Paoli 14 El Paso, TX 15 for Appellants 16 Cervantes Scherr Legate 17 K. Joseph Cervantes 18 Las Cruces, NM 19 L. Helen Bennett, P.C. 20 L. Helen Bennett 212 Albuquerque, NM 1 for Appellee 2 MEMORANDUM OPINION 3 ZAMORA, Chief Judge. 4
{1} This is the second time that this case has been appealed to this Court. See 5 Tunis v. Country Club Estates Homeowners Ass’n Inc. , 2014-NMCA-025, 318 6 P.3d 713 ( Tunis I ). In this second appeal, we a ddress whether the district court 7 erred in denying Plaintiffs’ attorney fees incurred in pursuing their indemnification 8 claim, sometimes called “fees on fees,” and whether Plaintiffs are entitled to 9 attorney fees on appeal. We reverse the di strict court’s order precluding Plaintiffs’ 10 claim for attorney fees incurred in pr osecuting their claim for indemnity and 11 remand this issue to the district court fo r its consideration a nd determination of 12 such attorney fees. In light of our holding , we also remand to the district court for 13 its consideration and determ ination of Plaintiffs’ atto rney fees on appeal. Last, 14 Plaintiffs’ request for exemption for any potential future assessment of attorney 15 fees imposed by Defendant is not ripe a nd we therefore decline to address it. 16 BACKGROUND 17
{2} Because of the complex procedural b ackground, we first set forth that 18 background as those previous proceedings lay the rippling foundation that has 19 given rise to the appellate issues at hand. 203 Declaratory Judgment Action 1
{3} In December 2007 the Defendant C ountry Club Estates Homeowners 2 Association (the Association) by its th en-President, John Ewert, filed a complaint 3 for declaratory judgment to determine wh ich of the two competing boards was the 4 duly elected board. The Association, a non-profit corporation, by its then president, 5 Ewert, sought a declaration that the Asso ciation’s governing board was the board 6 headed by Ewert (the Ewert Board), rather than a purportedly newly elected board 7 headed by Pamela Fletcher (the Fletcher Board). Id . ¶¶ 2, 6. The Ewert Board was 8 unsuccessful and the Fletcher Board was de termined to be the governing board. In 9 the same action, the Fletcher Board request ed attorney fees against the individual 10 members of the Ewert Board. Id . ¶¶ 2, 7. Although the district court initially 11 entered an order imposing personal liability on the Ewer t Board, it subsequently 12 entered an order relieving the individual members of the Ewert Board of personal 13 liability and ordered the Association to pa y the Fletcher Board’s attorney fees. Id . ¶ 14 8. Neither party appealed this order. Id . We refer to this as the “declaratory 15 judgment action.” 16 Tunis I 17
{4} Following the conclusion of the declarat ory judgment action, Plaintiffs, who 18 are some of the former me mbers of the Ewert Board, filed an action against the 19 Association for money damages to compen sate them for attorney fees they 204 incurred in the declaratory judgment action. Tunis I, 2014-NMCA-025, ¶ 2. 1 Specifically, pursuant to the indemnificati on clause contained in the Association’s 2 bylaws, Plaintiffs sought $28,724.72 in atto rney fees incurred to defend themselves 3 against the Fletcher Board’s pur suit of fees against them. Id . ¶ 9. The Association 4 moved to dismiss Plaintiffs’ complaint cl aiming it was barred by th e doctrine of res 5 judicata. Id. ¶ 1. The district court agreed and dismissed Plaintiffs’ complaint. Id. 6 ¶¶ 1, 14. Plaintiffs appealed. 7
{5} This Court in Tunis I limited its review to the interpretation and application 8 of the indemnification provision of the byla ws, concluding there were issues of fact 9 that defeated the Fletcher Boar d’s motion for summary judgment. Id . ¶¶ 29, 30. 10 This Court remanded the matter to the di strict court for further proceedings. 11 District Court Proceeding Following Tunis I Remand 12
{6} On remand, Plaintiffs filed an amended complaint alleging breach of 13 contract and promissory estoppel, and seeking indemnification for the attorney fees 14 they incurred in defending against the atto rney fees claim made by the Fletcher 15 Board in the declaratory judgment action. Plaintiffs contended that, pursuant to the 16 provision in the Association’s bylaws, the Association must pay Plaintiffs’ attorney 17 fees incurred not only in the declaratory j udgment action but also for the appeal in 18
Tunis I and subsequent trial on remand. Following a bench trial, the district court 19 found Plaintiffs were entitled to attorney fees incurred only in the declaratory 205 judgment action totaling $28,724.72. The district court found that as of June 18, 1 2008 and on remand, it had ente red an order confirming the declaration that the 2 Fletcher Board members were the duly elected and governing board members of 3 the Association and Plaintiffs were no longer board members performing as 4 directors or officers of the Association. Th e district court also found that because 5 Plaintiffs did not appeal this 2008 dete rmination, they were no longer performing 6 in their capacities as directors or officers of the Association; therefore, they could 7 not be indemnified for any actions after June 18, 2008. We refer to this stage of the 8 case as the “remand proceeding.” 9 Appeal 10
{7} In this appeal, Plaintiffs argue that the Association is obligated under the 11 indemnity provision of its bylaws to indemn ify them for attorney fees incurred in 12 the declaratory judgment action, Tunis I , and the remand proceeding based on their 13 roles as former members of the Associat ion’s Board of Directors. We agree. 14
{8} Plaintiffs also contend that the district court erred in failing to exempt them 15 from any potential assessments by the Associ ation to pay for the attorney fees 16 owed by the Association to Plaintiffs. We conclude that the Plaintiffs’ potential 17 assessment exemption is premature. As a result, this issue is not ripe and we 18 decline to address it. 19 DISCUSSION 206 I. Plaintiffs Can Recover Attorn ey Fees for Bringing Their 1 Indemnification Claim in Tunis I and the Remand Proceeding 2 A. Standard of Review 3
{9} Our review in this case is a matter of contract interpretation. In the absence 4 of ambiguity, which the parties here do not assert, “the interp retation of language 5 in a contract is an issue of law which we review de novo.” Krieger v. Wilson 6 Corp. , 2006-NMCA-034, ¶ 12, 139 N.M. 274, 13 1 P.3d 661. We review the award 7 or denial of attorney fees for an abuse of discretion. N.M. Right to Choose/NARAL 8 v. Johnson , 1999-NMSC-028, ¶ 6, 127 N.M. 654, 986 P.2d 450. 9 B. Indemnity for Attorney Fees Under New Mexico Law 10
{10} “New Mexico adheres to the so-called American rule that, absent statutory 11 or other authority, litigants are respons ible for their own attorney[] fees.” Montoya 12 v. Villa Linda Mall, Ltd , 1990-NMSC-053, ¶ 6, 110 N.M. 128, 793 P.2d 258. 13 Likewise, in the insurance c ontext, New Mexico adheres to the general rule that 14 attorney fees for prosecuting indemnif ication claims are not recoverable. Jackson 15 Nat’l Life Ins. Co. v. Receconi , 1992-NMSC-019, ¶¶ 51, 53, 113 N.M. 403, 827 16 P.2d 118. However, freedom of contract allows exceptions to these general rules if 17 the parties so contract. See Montoya , 1990-NMSC-053, ¶ 6 (“ Authority [to depart 18 from the American rule] can be provide d by agreement of the parties to a 19 contract.”); United Wholesale Liquor Co. v. Brown-Forman Distillers Corp, 1989- 20 NMSC-030, ¶ 14, 108 N.M. 467, 775 P.2d 23 3 (“New Mexico also has a strong 217 public policy of freedom to contract[.]” ). NMSA 1978, Section 53-8-26 (1987) of 1 the Nonprofit Corporation Act gives nonprofit corporations, such as the 2 Association, the power to indemnify its o fficers and directors. And bylaws, such as 3 those at issue in this case, can be used to provide such indemnification, as they are 4 binding contracts on the association and its members. See Yedidag v. Roswell 5 Clinic Corp. , 2015-NMSC-012, ¶ 46, 346 P.3d 113 6 (noting medical staff bylaws 6 are enforceable contracts). 7
{11} Plaintiffs contend that the district court erred by precluding their claim for 8 attorney fees incurred in prosecu ting the claim for indemnity in Tunis I and the 9 remand proceeding. In response, the Associ ation argues that New Mexico law bars 10 recovery of attorney fees for pursu ing enforcement of indemnification. Defendant 11 relies on Jackson National Life Insurance Co. , and numerous out of state cases to 12 support its assertion. 13
{12} Jackson National Life Insurance Co. , however, is not he lpful to Defendant. 14 In that case, the indemnity clause in the agency agreement between the parties 15 provided that “the agent shall indemnif y the company for any expenses, costs, 16 causes of action, and damage s resulting from or growing out of any unauthorized 17 act or transaction by him or his employees.” 1992-NMSC-019, ¶ 52. Our Supreme 18 Court stated “as a general rule, an inde mnitee is entitled to recover its reasonable 19 attorney[] fees incurred in defense of th e claim indemnified (but not those incurred 208 in establishing the right of indemnity) as part of its damages.” Id. ¶ 51. Applying 1 that rule, the court held that under the agency agreement, Jackson National Life 2 Insurance Co. , was entitled to recover from its ag ent reasonable costs in bringing 3 the declaratory action, but not the costs incurred in seeking indemnification from 4 the agent. Id. ¶ 53. The court remanded the case so the district court could 5 “estimate as best it can the expenses for which [the agent] must indemnify Jackson 6 [ National Life Insurance Co. ].” Id. 7
{13} Plaintiffs distinguish Jackson National Life Insurance Co. from the present 8 case by differentiating the indemnification provisions at issue. Here, unlike the 9 indemnification provision at issue in Jackson National Life Insurance Co. , the 10 Association’s indemnification provisi on provides that the Association will 11 indemnify a director of the A ssociation “against expenses ( including attorney [] 12 fees ) actually and reasonably incurred by hi m or her in connection” therewith. 13 (Emphasis added.) Plaintiffs contend and we agree that under freedom to contract 14 principles, the indemnity provision in the present case providing for 15 indemnification of expenses, including attorn ey fees, alters the general rule that 16 parties pay their own attorney fees. See United Wholesale Liquor Co. , 1989- 17 NMSC-030, ¶ 14 (recognizing “a strong public polic y of freedom to contract”). 18 Reading “every word or phrase . . . to be given meaning and significance . . . in the 19 whole of the contract[,]” we conc lude that unlike the parties in Jackson National 209 Life Insurance Co. , the Association’s bylaws contem plate indemnification for an 1 officer’s or director’s attorney fees. See Bank of N.M. v. Sholer , 1984-NMSC-118, 2 ¶ 6, 102 N.M. 78, 691 P.2d 465 (“A contract must be construe d as a harmonious 3 whole, and every word or phrase mu st be given meaning and significance 4 according to its importance in the context of the whole contract.”). We next turn to 5 whether the Association’s bylaws provide fo r attorney fees to the Plaintiffs for 6
Tunis I and the remand proceeding. 7 C. The Scope of the Indemnity Under the Bylaws 8
{14} “The scope of [an attorney fees provi sion] is defined by the parties in the 9 contract, and a determination of what fees are authorized is a matter of contract 10 interpretation.” Montoya , 1990-NMSC-053, ¶ 6. The Asso ciation’s bylaws state in 11 relevant part: 12 Article IX [Section 1]. Third Party Action The [Association] shall 13 indemnify any person who was or is a party . . . to any . . . pending or 14 completed action [or] suit . . . by reason of the fact that he or she is or was a 15 director, trustee, officer, employee[,] or agent of [the Association] . . . 16 against expenses (including attorney [] fees) . . . actua lly and reasonably 17 incurred by him or her in connection with such suit, action[,] or proceeding 18 if he or she acted in good faith a nd in a manner he or she reasonably 19 believed to be in or not opposed to the be st interests of the [Association.]. . . 20

. . . . 21 Extent of Indemnification . To the extent that a director, officer, employee 22 or agent of the [Association] has been successful on the merits or otherwise 23 in defense of any action, suit or proceeding referred to in sections 1 and 2 of 24 this Article or in defense of any claim, issue or matter therein, he or she shall 2510 be indemnified against expenses (inc luding attorney[] fees) actually and 1 reasonably incurred by him or her in connection therewith. 2 (Emphasis added.) 3
{15} Here, by virtue of their positions as directors, Plaintiffs incurred fees 4 associated with their defense of the su cceeding Board’s claims against them. The 5 scope of the indemnification provision was delineated by the Association in 6 expansive terms and provides for indemnif ication against expenses incurred in 7 connection with suits or proceedings by reas on of the fact that one was a director. 8 This broad language supports a policy of ensuring that volunteer homeowner 9 association board members would not be de terred from volunteering for fear of an 10 impending lawsuit and personal liability. See , e.g. , Restatement (Third) of Agency, 11 § 8.14 cmt. c (Am. Law Inst., Tentative Draft No. 6, 2005) (“The better view is 12 that, absent an explicit statutory directive to the contrary, awarding ‘fees on fees’ is 13 consistent with the statutory policy reflecte d in indemnification statutes of securing 14 the service of personnel whose loyal focu s on serving the corporation’s interests 15 will not be clouded by the fear of litigation expenses.”)); see also § 53-8-26 (not 16 precluding “fees on fees”). All of the expenses, including attorney fees, referenced 17 in the indemnification provision are connected to that intent. See Rivera v. Am. 18 Gen. Fin. Servs., Inc. , 2011-NMSC-033, ¶ 27, 150 N. M. 398, 259 P.3d 803 (“The 19 purpose, meaning[,] and intent of the partie s to a contract is to be deduced from the 20 language employed by them; and where su ch language is not ambiguous, it is 2111 conclusive.” (internal quot ation marks and citation om itted)). We construe the 1 indemnification provision in the bylaws broadly, to adhere to the drafters’ 2 inclusive intent and conclude that the indemnification provision includes Plaintiffs’ 3 claims for “fees on fees.” See Warner v. Calvert , 2011-NMCA-028, ¶ 26, 150 4 N.M. 333, 258 P.3d 1125 (stating that this Cour t’s goal in interpreting a contract is 5 “to give effect to the intent of the pa rties” (internal quotation marks and citation 6 omitted)). 7
{16} As previously noted, the district court found that any actions of Plaintiffs 8 after June 18, 2008, were not performed in their capacities as directors or officers 9 of the Association rendering the indemnification provision inapplicable to them. 10 Plaintiffs assert that because the inde mnity provision here includes a person who 11 “is” or “was” a director of the Associa tion, the phrase “was” in the Association’s 12 bylaws includes former directors of the Association like Plaintiffs. They also 13 contend that the bylaws apply to Plaintiffs because the attorney fees stemmed from 14 their defense of the claims raised agains t them in the declaratory judgment action. 15 Since Plaintiffs were successful on the merits in pursuing a claim for indemnity 16 under the bylaws and since they are former di rectors of the Association, they argue 17 they are entitled pursuant to the bylaws to indemnification “against expenses 18 (including attorney[] fees)” for Tunis I and the remand proceeding. The 19 Association responds that the indemnific ation provision relied upon by Plaintiffs 2012 does not apply here because it references attorney fees in prosecution or defense of 1 third-party claims brought by or against a di rector of the Association, not claims 2 brought by former directors for indemnification. It asserts that Plaintiffs were not 3 “compelled to bring or defend a third part y claim” in the present case and thus 4 Section 1, “Third Party Action[ ,]” does not apply to them. 5
{17} Initially, we note that, with respect to the declaratory judgment action, the 6 district court found that Section I was appli cable to Plaintiffs and further held that 7 Plaintiffs’ actions were “taken in good faith and based on what they reasonably 8 believed to be in or not opposed to the best interests of [the Association].” The 9 Association does not challenge these determinations by the district court on appeal. 10 See Seipert v. Johnson , 2003-NMCA-119, ¶ 26, 134 N.M. 394, 77 P.3d 298 (“An 11 unchallenged finding of the [lower ] court is binding on appeal.”). 12
{18} Turning to the application of th e indemnification provision to Tunis I and the 13 remand proceedings, we recognize that New Mexi co “courts strive to give effect to 14 a contract[, like the bylaws, ] according to its terms.” See Centex/Worthgroup, LLC 15 v. Worthgroup Architects, L.P. , 2016-NMCA-013, ¶ 18, 365 P.3d 37. “We view 16 the contract as a harmonious whole, give meaning to every provision, and accord 17 each part of the contract its signifi cance in light of other provisions.” Benz v. Town 18 Ctr. Land, LLC , 2013-NMCA-111, ¶ 31, 314 P.3d 688 (alteration, internal 19 quotation marks, and citation omitted). 2013 {19} For the reasons that follow, we conclu de that the bylaws indemnification 1 provision encompasses Plaintiffs’ pursuit of Tunis I and the remand proceeding. 2 First, the bylaws cover the indemnification of former directors. The bylaws allow 3 for indemnification in Section 1 of “a ny person who was or is a party or is 4 threatened to be made a part y” to any action “by reason of the fact that he or she is 5 or was a director” of the Association “ag ainst expenses (including attorney fees) 6 . . . actually and reasonably incurred by him or her in connection with such suit.” 7 Plaintiffs became involved in Tunis I and the remand proceeding as a result of 8 fulfilling their responsibilities as challenged directors, and they remained involved 9 as former directors. Their involvement, in other words, came about because they 10 were directors and parties to the declarat ory judgment action, and thus they fall 11 within the terms of Section 1. This interp retation and application is consistent with 12 Section 53-8-26, which gives non-profit co rporations the power to indemnify any 13 director “in which he is made a party by reason of being or having been a 14 director[.]” (Emphasis added.) 15
{20} Second, as already discussed, the bylaw s are broad enough to cover not just 16 attorney fees incurred in the defense of a claim that is indemnified but also 17 attorney fees in establishing the right of indemnity. Plaintiffs were successful in 18 defense of a claim for personal liability in the remand proceeding, they prevailed in 19 their appeal when this Court reversed th e district court’s order dismissing their 2014 complaint, and they prevailed in recoveri ng their attorney fees in the declaratory 1 action on remand satisfying the first part of the “Extent of Indemnification” 2 provision. Additionally, Tunis I and the remand proceeding are covered by the “in 3 connection therewith” because Plaintiffs’ a ttorney fees were reasonably incurred 4 by the Plaintiffs in connection with seek ing indemnification in all three of the 5 defensive and successful legal proceedings. 6
{21} The district court improperly interpreted the bylaws to exclude Plaintiffs. 7 Even though Plaintiffs were no longer directors of the Board, they brought this 8 action in Tunis I and the remand proceeding for damages in connection with their 9 service as members of the Board. Plaintiffs successf ully defended themselves 10 against the personal liability imposed in the declaratory judgment action and the 11 bylaws clearly provide for indemnification for such actions. We conclude that the 12 bylaws allow for Plaintiffs’ attorney fees in Tunis I and the remand proceeding. 13 See , e.g. , Dennison v. Marlowe , 1989-NMSC-041, ¶ 9, 108 N.M. 524, 775 P.2d 14 726 (holding that the plain a nd unambiguous contract provision that the “prevailing 15 party shall be entitled to . . . reasonabl e attorney[] fees connected therewith” 16 included attorney fees on appeal). 17
{22} As already noted, the district court de termined that the declaratory judgment 18 action fell within Article IX of the bylaw s, and the Associati on has not challenged 19 this determination. Furthe r, although the title to Artic le IX Section 1 of the 2015 indemnification provision is “Third Pa rty Action,” the bylaws are broadly written 1 to apply to any “action, suit or proceedi ng, whether civil, criminal, administrative 2 or investigative,” which covers the decl aratory judgment action, and subsequent 3
Tunis I actions. 4
{23} Based on the facts in this case, we reverse the district court’s order that 5 Plaintiffs were not entitled to indemnificati on of the attorney fees they incurred in 6
Tunis I and the remand proceeding unde r the Association’s bylaws. 7 D. Determination of Pl aintiffs’ Attorney Fees 8
{24} Plaintiffs ask this Court for an award of attorney fees incurred in Tunis I and 9 the remand proceeding, as well as for this appeal. “Appellate courts have authority 10 to either make an allowanc e of attorney fees on appeal or to remand to the lower 11 court for that purpose.” Vinton Eppsco, Inc. of Albuquerque v. Showe Homes, Inc. , 12 1981-NMSC-114, ¶ 6, 97 N.M. 225, 638 P.2d 1070; see Dennison , 1989-NMSC13 041, ¶ 9 (concluding that the contract incl uded attorney fees incurred on appeal and 14 remanding for the district court to determ ine reasonable attorney fees incurred on 15 appeal). Concluding that the district cour t is in the best position for this factual 16 determination, we remand for the distri ct court’s determin ation of reasonable 17 attorney fees incurred in Tunis I and the remand proceeding. 18
{25} With respect to Plaintiff’s request for attorney fees on appeal, the 19 Association did not respond to this request for relief. Plaintiffs argue this is 2016 tantamount to a concession. Regardless, we hold that Plaintiffs are entitled to 1 reasonable attorney fees incurred in this appeal. The central issue in this opinion 2 was whether Plaintiffs were entitled to recover attorney fees incurred in 3 establishing a claim of indemnity, which we have answered in the affirmative. 4 Based on this holding, we remand for th e district court’s determination of 5 reasonable attorney fees incurred in this appeal. 6 E. Plaintiffs’ Request for Exemption of Potential Assessment of Attorney 7 Fees Award Is Not Ripe 8
{26} Plaintiffs below in their proposed findi ngs of fact and conclusions of law 9 asked the district court to exclude Plai ntiffs from any po tential assessments 10 resulting from the Association paying Plai ntiffs’ attorney f ees awarded by the 11 district court. Plaintiffs maintain the argument on appeal and contend that the 12 district court erred in failing to exempt Plaintiffs from any potential assessments. 13 Plaintiffs assert that the district court failed “to do equity” and provide “full relief” 14 to Plaintiffs by denying their exemption request. In support of this argument, 15 Plaintiffs cite to cases generally discussing equitable principles. 16
{27} The parties do not identify where in the record the district court considered 17 this request, nor were we able to find anything. See Rule 12-318(A)(3) NMRA 18 (stating that a summary or proceedings sha ll “contain citations to the record proper, 19 transcript of proceedings, or exhibits supporting each factual representation”); 20 Benz , 2013-NMCA-111, ¶ 24 (“To preserve an issue for review on appeal, it must 2117 appear that [the] appellant fa irly invoked a ruling of the [district] court on the same 1 grounds argued in the appellate court. ” (internal quotation marks and citation 2 omitted)). 3
{28} Nonetheless, Plaintiffs’ argument fails for lack of ripeness. “The basic 4 purpose of ripeness law is a nd always has been to conser ve judicial machinery for 5 problems which are real and present or immi nent, not to squander it on abstract or 6 hypothetical or remote problems.” Titus v. City of Albuquerque , 2011-NMCA-038, 7 ¶ 44, 149 N.M. 556, 252 P.3d 780 (internal quotation marks and citation omitted). 8 “The ripeness doctrine exists to prevent th e courts, through avoidance of premature 9 adjudication, from entangling themselves in abstract disagreements.” City of 10 Sunland Park v. Macias , 2003-NMCA-098, ¶ 23, 134 N.M. 216, 75 P.3d 816 11 (internal quotation marks and citation omitte d). “[A]n issue may be ripe where the 12 threat of harm must be sufficiently dir ect and immediate as to render the issue 13 appropriate for judicial review at this state.” Id. (internal quotation marks and 14 citation omitted). 15
{29} The ripeness analysis involves a two-pr onged inquiry. We “evaluate both the 16 fitness of the issues for judicial deci sion and the hardship to the parties of 17 withholding court consideration.” N.M. Indus. Energy Consumers v. N.M. Pub. 18 Serv. Comm’n , 1991-NMSC-018, ¶ 25, 111 N.M. 622, 808 P.2d 592 (internal 19 quotation marks and citation om itted). We have previously observed that the “mere 2018 possibility or even probability that a person may be adversely affected in the future 1 by official acts” is insuffic ient to establish ripeness. New Energy Econ., Inc. v. 2 Shoobrige , 2010-NMSC-049, ¶ 18, 149 N.M. 42, 243 P.3d 746 (internal quotation 3 marks and citation omitted). The second step in the ripeness analysis is whether, 4 and to what extent, the parties will endur e hardship if a decision is withheld. See 5 N.M. Indus. Energy Consumers , 1991-NMSC-018, ¶ 25. In this case, we are not 6 convinced that the mere possibility of a future action—assessment of attorney 7 fees—by the Association constitutes a hardship. 8
{30} Based on the foregoing, we conclude that the “potential assessment” of 9 attorney fees by the Association is specu lative at this point and we decline to 10 address it on appeal. 11 CONCLUSION 12
{31} We reverse the district court’s order precluding Plaintiffs’ claim for attorney 13 fees incurred in establishing their claim for indemnity in Tunis I and the remand 14 proceeding, and remand this issue to the district court for its consideration and 15 determination of reasonable attorney fees. In light of our holding, we also remand 16 to the district for its consideration a nd determination of Plaintiffs’ reasonable 17 attorney fees incurred in this appeal. We decline to address Plaintiffs’ request for 18 exemption from any potential assessment of th e attorney fees for lack of ripeness. 19
{32} IT IS SO ORDERED. 2019 ____________ ________________________ 1 M. MONICA ZAMORA, Chief Judge 2 WE CONCUR: 3

________________ ______________ 4 JULIE J. VARGAS, Judge 5

________________ ______________ JENNIFER L. ATTREP, Judge 6