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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 

2 JOE TUNIS, SHIRLEY WHEELER, 

3 JOHN EWERT, and PATTY SALESSES,

4 Plaintiffs-Appellants, 

5 v. No. A-1-CA-35931 

6 COUNTRY CLUB ESTATES 

7 HOMEOWNERS ASSOCIATIONS, INC.,

8 Defendant-Appellee. 

9 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 

10 Daniel Viramontes, District Judge 

11 Scott Hulse P.C. 

12 R. Glenn Davis 

13 Las Cruces, NM 

14 Henry J. Paoli 

15 El Paso, TX 

16 for Appellants 

17 Cervantes Scherr Legate 

18 K. Joseph Cervantes 

19 Las Cruces, NM 

20 L. Helen Bennett, P.C. 

21 L. Helen Bennett 
 

2 

1 Albuquerque, NM 

2 for Appellee 

3 MEMORANDUM OPINION 

4 ZAMORA, Chief Judge. 

5 {1} This is the second time that this case has been appealed to this Court. See 

6 Tunis v. Country Club Estates Homeowners Ass’n Inc., 2014-NMCA-025, 318 

7 P.3d 713 (Tunis I). In this second appeal, we address whether the district court 

8 erred in denying Plaintiffs’ attorney fees incurred in pursuing their indemnification 

9 claim, sometimes called “fees on fees,” and whether Plaintiffs are entitled to 

10 attorney fees on appeal. We reverse the district court’s order precluding Plaintiffs’ 

11 claim for attorney fees incurred in prosecuting their claim for indemnity and 

12 remand this issue to the district court for its consideration and determination of 

13 such attorney fees. In light of our holding, we also remand to the district court for 

14 its consideration and determination of Plaintiffs’ attorney fees on appeal. Last, 

15 Plaintiffs’ request for exemption for any potential future assessment of attorney 

16 fees imposed by Defendant is not ripe and we therefore decline to address it. 

17 BACKGROUND 

18 {2} Because of the complex procedural background, we first set forth that 

19 background as those previous proceedings lay the rippling foundation that has 

20 given rise to the appellate issues at hand. 
 

3 

1 Declaratory Judgment Action

2 {3} In December 2007 the Defendant Country Club Estates Homeowners 

3 Association (the Association) by its then-President, John Ewert, filed a complaint 

4 for declaratory judgment to determine which of the two competing boards was the 

5 duly elected board. The Association, a non-profit corporation, by its then president, 

6 Ewert, sought a declaration that the Association’s governing board was the board 

7 headed by Ewert (the Ewert Board), rather than a purportedly newly elected board 

8 headed by Pamela Fletcher (the Fletcher Board). Id. ¶¶ 2, 6. The Ewert Board was 

9 unsuccessful and the Fletcher Board was determined to be the governing board. In 

10 the same action, the Fletcher Board requested attorney fees against the individual 

11 members of the Ewert Board. Id. ¶¶ 2, 7. Although the district court initially 

12 entered an order imposing personal liability on the Ewert Board, it subsequently 

13 entered an order relieving the individual members of the Ewert Board of personal 

14 liability and ordered the Association to pay the Fletcher Board’s attorney fees. Id. ¶ 

15 8. Neither party appealed this order. Id. We refer to this as the “declaratory 

16 judgment action.” 

17 Tunis I

18 {4} Following the conclusion of the declaratory judgment action, Plaintiffs, who 

19 are some of the former members of the Ewert Board, filed an action against the 

20 Association for money damages to compensate them for attorney fees they 
 

4 

1 incurred in the declaratory judgment action. Tunis I, 2014-NMCA-025, ¶ 2. 

2 Specifically, pursuant to the indemnification clause contained in the Association’s 

3 bylaws, Plaintiffs sought $28,724.72 in attorney fees incurred to defend themselves 

4 against the Fletcher Board’s pursuit of fees against them. Id. ¶ 9. The Association 

5 moved to dismiss Plaintiffs’ complaint claiming it was barred by the doctrine of res 

6 judicata. Id. ¶ 1. The district court agreed and dismissed Plaintiffs’ complaint. Id.

7 ¶¶ 1, 14. Plaintiffs appealed. 

8 {5} This Court in Tunis I limited its review to the interpretation and application 

9 of the indemnification provision of the bylaws, concluding there were issues of fact 

10 that defeated the Fletcher Board’s motion for summary judgment. Id. ¶¶ 29, 30. 

11 This Court remanded the matter to the district court for further proceedings. 

12 District Court Proceeding Following Tunis I Remand 

13 {6} On remand, Plaintiffs filed an amended complaint alleging breach of 

14 contract and promissory estoppel, and seeking indemnification for the attorney fees 

15 they incurred in defending against the attorney fees claim made by the Fletcher 

16 Board in the declaratory judgment action. Plaintiffs contended that, pursuant to the

17 provision in the Association’s bylaws, the Association must pay Plaintiffs’ attorney 

18 fees incurred not only in the declaratory judgment action but also for the appeal in 

19 Tunis I and subsequent trial on remand. Following a bench trial, the district court 

20 found Plaintiffs were entitled to attorney fees incurred only in the declaratory 
 

5 

1 judgment action totaling $28,724.72. The district court found that as of June 18, 

2 2008 and on remand, it had entered an order confirming the declaration that the 

3 Fletcher Board members were the duly elected and governing board members of 

4 the Association and Plaintiffs were no longer board members performing as 

5 directors or officers of the Association. The district court also found that because 

6 Plaintiffs did not appeal this 2008 determination, they were no longer performing 

7 in their capacities as directors or officers of the Association; therefore, they could 

8 not be indemnified for any actions after June 18, 2008. We refer to this stage of the 

9 case as the “remand proceeding.” 

10 Appeal 

11 {7} In this appeal, Plaintiffs argue that the Association is obligated under the 

12 indemnity provision of its bylaws to indemnify them for attorney fees incurred in 

13 the declaratory judgment action, Tunis I, and the remand proceeding based on their 

14 roles as former members of the Association’s Board of Directors. We agree. 

15 {8} Plaintiffs also contend that the district court erred in failing to exempt them 

16 from any potential assessments by the Association to pay for the attorney fees 

17 owed by the Association to Plaintiffs. We conclude that the Plaintiffs’ potential 

18 assessment exemption is premature. As a result, this issue is not ripe and we 

19 decline to address it. 

20 DISCUSSION 
 

6 

1 I. Plaintiffs Can Recover Attorney Fees for Bringing Their 

2 Indemnification Claim in Tunis I and the Remand Proceeding 

3 A. Standard of Review 

4 {9} Our review in this case is a matter of contract interpretation. In the absence 

5 of ambiguity, which the parties here do not assert, “the interpretation of language 

6 in a contract is an issue of law which we review de novo.” Krieger v. Wilson 

7 Corp., 2006-NMCA-034, ¶ 12, 139 N.M. 274, 131 P.3d 661. We review the award 

8 or denial of attorney fees for an abuse of discretion. N.M. Right to Choose/NARAL 

9 v. Johnson, 1999-NMSC-028, ¶ 6, 127 N.M. 654, 986 P.2d 450. 

10 B. Indemnity for Attorney Fees Under New Mexico Law 

11 {10} “New Mexico adheres to the so-called American rule that, absent statutory 

12 or other authority, litigants are responsible for their own attorney[] fees.” Montoya 

13 v. Villa Linda Mall, Ltd, 1990-NMSC-053, ¶ 6, 110 N.M. 128, 793 P.2d 258. 

14 Likewise, in the insurance context, New Mexico adheres to the general rule that 

15 attorney fees for prosecuting indemnification claims are not recoverable. Jackson 

16 Nat’l Life Ins. Co. v. Receconi, 1992-NMSC-019, ¶¶ 51, 53, 113 N.M. 403, 827 

17 P.2d 118. However, freedom of contract allows exceptions to these general rules if 

18 the parties so contract. See Montoya, 1990-NMSC-053, ¶ 6 (“Authority [to depart 

19 from the American rule] can be provided by agreement of the parties to a 

20 contract.”); United Wholesale Liquor Co. v. Brown-Forman Distillers Corp, 1989-

21 NMSC-030, ¶ 14, 108 N.M. 467, 775 P.2d 233 (“New Mexico also has a strong 
 

7 

1 public policy of freedom to contract[.]”). NMSA 1978, Section 53-8-26 (1987) of 

2 the Nonprofit Corporation Act gives nonprofit corporations, such as the 

3 Association, the power to indemnify its officers and directors. And bylaws, such as 

4 those at issue in this case, can be used to provide such indemnification, as they are 

5 binding contracts on the association and its members. See Yedidag v. Roswell 

6 Clinic Corp., 2015-NMSC-012, ¶ 46, 346 P.3d 1136 (noting medical staff bylaws 

7 are enforceable contracts). 

8 {11} Plaintiffs contend that the district court erred by precluding their claim for 

9 attorney fees incurred in prosecuting the claim for indemnity in Tunis I and the 

10 remand proceeding. In response, the Association argues that New Mexico law bars 

11 recovery of attorney fees for pursuing enforcement of indemnification. Defendant 

12 relies on Jackson National Life Insurance Co., and numerous out of state cases to 

13 support its assertion.

14 {12} Jackson National Life Insurance Co., however, is not helpful to Defendant. 

15 In that case, the indemnity clause in the agency agreement between the parties 

16 provided that “the agent shall indemnify the company for any expenses, costs, 

17 causes of action, and damages resulting from or growing out of any unauthorized 

18 act or transaction by him or his employees.” 1992-NMSC-019, ¶ 52. Our Supreme 

19 Court stated “as a general rule, an indemnitee is entitled to recover its reasonable 

20 attorney[] fees incurred in defense of the claim indemnified (but not those incurred 
 

8 

1 in establishing the right of indemnity) as part of its damages.” Id. ¶ 51. Applying 

2 that rule, the court held that under the agency agreement, Jackson National Life 

3 Insurance Co., was entitled to recover from its agent reasonable costs in bringing 

4 the declaratory action, but not the costs incurred in seeking indemnification from 

5 the agent. Id. ¶ 53. The court remanded the case so the district court could 

6 “estimate as best it can the expenses for which [the agent] must indemnify Jackson 

7 [National Life Insurance Co.].” Id. 

8 {13} Plaintiffs distinguish Jackson National Life Insurance Co. from the present 

9 case by differentiating the indemnification provisions at issue. Here, unlike the 

10 indemnification provision at issue in Jackson National Life Insurance Co., the 

11 Association’s indemnification provision provides that the Association will 

12 indemnify a director of the Association “against expenses (including attorney[]

13 fees) actually and reasonably incurred by him or her in connection” therewith. 

14 (Emphasis added.) Plaintiffs contend and we agree that under freedom to contract 

15 principles, the indemnity provision in the present case providing for 

16 indemnification of expenses, including attorney fees, alters the general rule that 

17 parties pay their own attorney fees. See United Wholesale Liquor Co., 1989-

18 NMSC-030, ¶ 14 (recognizing “a strong public policy of freedom to contract”). 

19 Reading “every word or phrase . . . to be given meaning and significance . . . in the 

20 whole of the contract[,]” we conclude that unlike the parties in Jackson National 
 

9 

1 Life Insurance Co., the Association’s bylaws contemplate indemnification for an 

2 officer’s or director’s attorney fees. See Bank of N.M. v. Sholer, 1984-NMSC-118, 

3 ¶ 6, 102 N.M. 78, 691 P.2d 465 (“A contract must be construed as a harmonious 

4 whole, and every word or phrase must be given meaning and significance 

5 according to its importance in the context of the whole contract.”). We next turn to 

6 whether the Association’s bylaws provide for attorney fees to the Plaintiffs for 

7 Tunis I and the remand proceeding.

8 C. The Scope of the Indemnity Under the Bylaws

9 {14} “The scope of [an attorney fees provision] is defined by the parties in the 

10 contract, and a determination of what fees are authorized is a matter of contract 

11 interpretation.” Montoya, 1990-NMSC-053, ¶ 6. The Association’s bylaws state in 

12 relevant part: 

13 Article IX [Section 1]. Third Party Action The [Association] shall 

14 indemnify any person who was or is a party . . . to any . . . pending or 

15 completed action [or] suit . . . by reason of the fact that he or she is or was a 

16 director, trustee, officer, employee[,] or agent of [the Association] . . . 

17 against expenses (including attorney[] fees) . . . actually and reasonably 

18 incurred by him or her in connection with such suit, action[,] or proceeding 

19 if he or she acted in good faith and in a manner he or she reasonably 

20 believed to be in or not opposed to the best interests of the [Association.]. . . 

21 . . . . 

22 Extent of Indemnification. To the extent that a director, officer, employee 

23 or agent of the [Association] has been successful on the merits or otherwise 

24 in defense of any action, suit or proceeding referred to in sections 1 and 2 of 

25 this Article or in defense of any claim, issue or matter therein, he or she shall 
 

10 

1 be indemnified against expenses (including attorney[] fees) actually and 

2 reasonably incurred by him or her in connection therewith. 

3 (Emphasis added.) 

4 {15} Here, by virtue of their positions as directors, Plaintiffs incurred fees 

5 associated with their defense of the succeeding Board’s claims against them. The 

6 scope of the indemnification provision was delineated by the Association in 

7 expansive terms and provides for indemnification against expenses incurred in 

8 connection with suits or proceedings by reason of the fact that one was a director. 

9 This broad language supports a policy of ensuring that volunteer homeowner 

10 association board members would not be deterred from volunteering for fear of an 

11 impending lawsuit and personal liability. See, e.g., Restatement (Third) of Agency, 

12 § 8.14 cmt. c (Am. Law Inst., Tentative Draft No. 6, 2005) (“The better view is 

13 that, absent an explicit statutory directive to the contrary, awarding ‘fees on fees’ is 

14 consistent with the statutory policy reflected in indemnification statutes of securing 

15 the service of personnel whose loyal focus on serving the corporation’s interests 

16 will not be clouded by the fear of litigation expenses.”)); see also § 53-8-26 (not 

17 precluding “fees on fees”). All of the expenses, including attorney fees, referenced 

18 in the indemnification provision are connected to that intent. See Rivera v. Am. 

19 Gen. Fin. Servs., Inc., 2011-NMSC-033, ¶ 27, 150 N.M. 398, 259 P.3d 803 (“The 

20 purpose, meaning[,] and intent of the parties to a contract is to be deduced from the 

21 language employed by them; and where such language is not ambiguous, it is 
 

11 

1 conclusive.” (internal quotation marks and citation omitted)). We construe the 

2 indemnification provision in the bylaws broadly, to adhere to the drafters’ 

3 inclusive intent and conclude that the indemnification provision includes Plaintiffs’ 

4 claims for “fees on fees.” See Warner v. Calvert, 2011-NMCA-028, ¶ 26, 150 

5 N.M. 333, 258 P.3d 1125 (stating that this Court’s goal in interpreting a contract is 

6 “to give effect to the intent of the parties” (internal quotation marks and citation 

7 omitted)). 

8 {16} As previously noted, the district court found that any actions of Plaintiffs 

9 after June 18, 2008, were not performed in their capacities as directors or officers 

10 of the Association rendering the indemnification provision inapplicable to them.

11 Plaintiffs assert that because the indemnity provision here includes a person who 

12 “is” or “was” a director of the Association, the phrase “was” in the Association’s 

13 bylaws includes former directors of the Association like Plaintiffs. They also 

14 contend that the bylaws apply to Plaintiffs because the attorney fees stemmed from 

15 their defense of the claims raised against them in the declaratory judgment action.

16 Since Plaintiffs were successful on the merits in pursuing a claim for indemnity 

17 under the bylaws and since they are former directors of the Association, they argue 

18 they are entitled pursuant to the bylaws to indemnification “against expenses 

19 (including attorney[] fees)” for Tunis I and the remand proceeding. The 

20 Association responds that the indemnification provision relied upon by Plaintiffs 
 

12 

1 does not apply here because it references attorney fees in prosecution or defense of 

2 third-party claims brought by or against a director of the Association, not claims 

3 brought by former directors for indemnification. It asserts that Plaintiffs were not 

4 “compelled to bring or defend a third party claim” in the present case and thus 

5 Section 1, “Third Party Action[,]” does not apply to them. 

6 {17} Initially, we note that, with respect to the declaratory judgment action, the 

7 district court found that Section I was applicable to Plaintiffs and further held that 

8 Plaintiffs’ actions were “taken in good faith and based on what they reasonably 

9 believed to be in or not opposed to the best interests of [the Association].” The 

10 Association does not challenge these determinations by the district court on appeal. 

11 See Seipert v. Johnson, 2003-NMCA-119, ¶ 26, 134 N.M. 394, 77 P.3d 298 (“An 

12 unchallenged finding of the [lower] court is binding on appeal.”).

13 {18} Turning to the application of the indemnification provision to Tunis I and the 

14 remand proceedings, we recognize that New Mexico “courts strive to give effect to 

15 a contract[, like the bylaws,] according to its terms.” See Centex/Worthgroup, LLC 

16 v. Worthgroup Architects, L.P., 2016-NMCA-013, ¶ 18, 365 P.3d 37. “We view 

17 the contract as a harmonious whole, give meaning to every provision, and accord 

18 each part of the contract its significance in light of other provisions.” Benz v. Town 

19 Ctr. Land, LLC, 2013-NMCA-111, ¶ 31, 314 P.3d 688 (alteration, internal 

20 quotation marks, and citation omitted). 
 

13 

1 {19} For the reasons that follow, we conclude that the bylaws indemnification 

2 provision encompasses Plaintiffs’ pursuit of Tunis I and the remand proceeding. 

3 First, the bylaws cover the indemnification of former directors. The bylaws allow 

4 for indemnification in Section 1 of “any person who was or is a party or is 

5 threatened to be made a party” to any action “by reason of the fact that he or she is 

6 or was a director” of the Association “against expenses (including attorney fees) 

7 . . . actually and reasonably incurred by him or her in connection with such suit.” 

8 Plaintiffs became involved in Tunis I and the remand proceeding as a result of 

9 fulfilling their responsibilities as challenged directors, and they remained involved 

10 as former directors. Their involvement, in other words, came about because they 

11 were directors and parties to the declaratory judgment action, and thus they fall 

12 within the terms of Section 1. This interpretation and application is consistent with 

13 Section 53-8-26, which gives non-profit corporations the power to indemnify any 

14 director “in which he is made a party by reason of being or having been a 

15 director[.]” (Emphasis added.) 

16 {20} Second, as already discussed, the bylaws are broad enough to cover not just 

17 attorney fees incurred in the defense of a claim that is indemnified but also 

18 attorney fees in establishing the right of indemnity. Plaintiffs were successful in 

19 defense of a claim for personal liability in the remand proceeding, they prevailed in 

20 their appeal when this Court reversed the district court’s order dismissing their 
 

14 

1 complaint, and they prevailed in recovering their attorney fees in the declaratory 

2 action on remand satisfying the first part of the “Extent of Indemnification” 

3 provision. Additionally, Tunis I and the remand proceeding are covered by the “in 

4 connection therewith” because Plaintiffs’ attorney fees were reasonably incurred 

5 by the Plaintiffs in connection with seeking indemnification in all three of the 

6 defensive and successful legal proceedings. 

7 {21} The district court improperly interpreted the bylaws to exclude Plaintiffs. 

8 Even though Plaintiffs were no longer directors of the Board, they brought this 

9 action in Tunis I and the remand proceeding for damages in connection with their 

10 service as members of the Board. Plaintiffs successfully defended themselves 

11 against the personal liability imposed in the declaratory judgment action and the 

12 bylaws clearly provide for indemnification for such actions. We conclude that the 

13 bylaws allow for Plaintiffs’ attorney fees in Tunis I and the remand proceeding. 

14 See, e.g., Dennison v. Marlowe, 1989-NMSC-041, ¶ 9, 108 N.M. 524, 775 P.2d 

15 726 (holding that the plain and unambiguous contract provision that the “prevailing 

16 party shall be entitled to . . . reasonable attorney[] fees connected therewith” 

17 included attorney fees on appeal). 

18 {22} As already noted, the district court determined that the declaratory judgment 

19 action fell within Article IX of the bylaws, and the Association has not challenged 

20 this determination. Further, although the title to Article IX Section 1 of the 
 

15 

1 indemnification provision is “Third Party Action,” the bylaws are broadly written 

2 to apply to any “action, suit or proceeding, whether civil, criminal, administrative 

3 or investigative,” which covers the declaratory judgment action, and subsequent 

4 Tunis I actions. 

5 {23} Based on the facts in this case, we reverse the district court’s order that 

6 Plaintiffs were not entitled to indemnification of the attorney fees they incurred in 

7 Tunis I and the remand proceeding under the Association’s bylaws. 

8 D. Determination of Plaintiffs’ Attorney Fees 

9 {24} Plaintiffs ask this Court for an award of attorney fees incurred in Tunis I and 

10 the remand proceeding, as well as for this appeal. “Appellate courts have authority 

11 to either make an allowance of attorney fees on appeal or to remand to the lower 

12 court for that purpose.” Vinton Eppsco, Inc. of Albuquerque v. Showe Homes, Inc., 

13 1981-NMSC-114, ¶ 6, 97 N.M. 225, 638 P.2d 1070; see Dennison, 1989-NMSC14 041, ¶ 9 (concluding that the contract included attorney fees incurred on appeal and 

15 remanding for the district court to determine reasonable attorney fees incurred on 

16 appeal). Concluding that the district court is in the best position for this factual 

17 determination, we remand for the district court’s determination of reasonable 

18 attorney fees incurred in Tunis I and the remand proceeding. 

19 {25} With respect to Plaintiff’s request for attorney fees on appeal, the 

20 Association did not respond to this request for relief. Plaintiffs argue this is 
 

16 

1 tantamount to a concession. Regardless, we hold that Plaintiffs are entitled to 

2 reasonable attorney fees incurred in this appeal. The central issue in this opinion 

3 was whether Plaintiffs were entitled to recover attorney fees incurred in 

4 establishing a claim of indemnity, which we have answered in the affirmative. 

5 Based on this holding, we remand for the district court’s determination of 

6 reasonable attorney fees incurred in this appeal. 

7 E. Plaintiffs’ Request for Exemption of Potential Assessment of Attorney 

8 Fees Award Is Not Ripe 

9 {26} Plaintiffs below in their proposed findings of fact and conclusions of law 

10 asked the district court to exclude Plaintiffs from any potential assessments 

11 resulting from the Association paying Plaintiffs’ attorney fees awarded by the 

12 district court. Plaintiffs maintain the argument on appeal and contend that the 

13 district court erred in failing to exempt Plaintiffs from any potential assessments.

14 Plaintiffs assert that the district court failed “to do equity” and provide “full relief” 

15 to Plaintiffs by denying their exemption request. In support of this argument, 

16 Plaintiffs cite to cases generally discussing equitable principles. 

17 {27} The parties do not identify where in the record the district court considered 

18 this request, nor were we able to find anything. See Rule 12-318(A)(3) NMRA 

19 (stating that a summary or proceedings shall “contain citations to the record proper, 

20 transcript of proceedings, or exhibits supporting each factual representation”); 

21 Benz, 2013-NMCA-111, ¶ 24 (“To preserve an issue for review on appeal, it must 
 

17 

1 appear that [the] appellant fairly invoked a ruling of the [district] court on the same 

2 grounds argued in the appellate court.” (internal quotation marks and citation 

3 omitted)). 

4 {28} Nonetheless, Plaintiffs’ argument fails for lack of ripeness. “The basic 

5 purpose of ripeness law is and always has been to conserve judicial machinery for 

6 problems which are real and present or imminent, not to squander it on abstract or 

7 hypothetical or remote problems.” Titus v. City of Albuquerque, 2011-NMCA-038, 

8 ¶ 44, 149 N.M. 556, 252 P.3d 780 (internal quotation marks and citation omitted). 

9 “The ripeness doctrine exists to prevent the courts, through avoidance of premature 

10 adjudication, from entangling themselves in abstract disagreements.” City of 

11 Sunland Park v. Macias, 2003-NMCA-098, ¶ 23, 134 N.M. 216, 75 P.3d 816 

12 (internal quotation marks and citation omitted). “[A]n issue may be ripe where the 

13 threat of harm must be sufficiently direct and immediate as to render the issue 

14 appropriate for judicial review at this state.” Id. (internal quotation marks and 

15 citation omitted). 

16 {29} The ripeness analysis involves a two-pronged inquiry. We “evaluate both the 

17 fitness of the issues for judicial decision and the hardship to the parties of 

18 withholding court consideration.” N.M. Indus. Energy Consumers v. N.M. Pub. 

19 Serv. Comm’n, 1991-NMSC-018, ¶ 25, 111 N.M. 622, 808 P.2d 592 (internal 

20 quotation marks and citation omitted). We have previously observed that the “mere 
 

18 

1 possibility or even probability that a person may be adversely affected in the future 

2 by official acts” is insufficient to establish ripeness. New Energy Econ., Inc. v. 

3 Shoobrige, 2010-NMSC-049, ¶ 18, 149 N.M. 42, 243 P.3d 746 (internal quotation 

4 marks and citation omitted). The second step in the ripeness analysis is whether, 

5 and to what extent, the parties will endure hardship if a decision is withheld. See 

6 N.M. Indus. Energy Consumers, 1991-NMSC-018, ¶ 25. In this case, we are not 

7 convinced that the mere possibility of a future action—assessment of attorney 

8 fees—by the Association constitutes a hardship. 

9 {30} Based on the foregoing, we conclude that the “potential assessment” of 

10 attorney fees by the Association is speculative at this point and we decline to 

11 address it on appeal. 

12 CONCLUSION 

13 {31} We reverse the district court’s order precluding Plaintiffs’ claim for attorney 

14 fees incurred in establishing their claim for indemnity in Tunis I and the remand 

15 proceeding, and remand this issue to the district court for its consideration and 

16 determination of reasonable attorney fees. In light of our holding, we also remand 

17 to the district for its consideration and determination of Plaintiffs’ reasonable 

18 attorney fees incurred in this appeal. We decline to address Plaintiffs’ request for 

19 exemption from any potential assessment of the attorney fees for lack of ripeness. 

20 {32} IT IS SO ORDERED.
 

19 

1 ____________________________________ 

2 M. MONICA ZAMORA, Chief Judge

3 WE CONCUR: 

4 ______________________________ 

5 JULIE J. VARGAS, Judge 

______________________________ 

6 JENNIFER L. ATTREP, Judge