{ "id": 4190957, "name": "ASSOCIATED HOME AND RV SALES, INC., a New Mexico corporation, d/b/a ENCHANTMENT RV and ENCHANTMENT RV SERVICE, a New Mexico corporation; TEAM EVENTS, INC., a New Mexico corporation; and MDM COMPANY, INC., a New Mexico corporation, Plaintiffs-Appellants, v. BANK OF BELEN, Defendant-Appellee", "name_abbreviation": "Associated Home & RV Sales, Inc. v. Bank of Belen", "decision_date": "2012-10-30", "docket_number": "Docket No. 30,829", "first_page": "321", "last_page": "332", "citations": [ { "type": "official", "cite": "2013-NMCA-018" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1998-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834182 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0170-01" ] }, { "cite": "110 N.M. 15", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716990 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "17", "parenthetical": "\"A decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is a final judgment.\"" }, { "page": "468", "parenthetical": "\"A decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is a final judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0015-01" ] }, { "cite": "102 N.M. 715", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580107 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "718", "parenthetical": "stating that a dismissal without prejudice \"ordinarily imports further proceedings\" (internal quotation marks and citation omitted)" }, { "page": "649", "parenthetical": "stating that a dismissal without prejudice \"ordinarily imports further proceedings\" (internal quotation marks and citation omitted)" }, { "page": "719" }, { "page": "650" }, { "page": "718" }, { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0715-01" ] }, { "cite": "2007-NMCA-019", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669042 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0127-01" ] }, { "cite": "2009-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4245910 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 7", "parenthetical": "\"A decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is a final judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0374-01" ] }, { "cite": "477 U.S. 317", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207800 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/477/0317-01" ] }, { "cite": "477 U.S. 242", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206897 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/477/0242-01" ] }, { "cite": "2000-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106559 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 35-38" }, { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0830-01" ] }, { "cite": "2007-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3691625 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0583-01" ] }, { "cite": "2008-NMCA-072", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003742 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0178-01" ] }, { "cite": "27 P. 497", "category": "reporters:state_regional", "reporter": "P.", "year": 1891, "pin_cites": [ { "page": "504", "parenthetical": "\"Negligence is a mixed question of law and fact, but in case the material facts are undisputed it may become a question of law, and in such case the court may properly direct the verdict as the law requires.\"" } ], "opinion_index": 0 }, { "cite": "6 N.M. 266", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4650441 ], "year": 1891, "pin_cites": [ { "page": "286-87", "parenthetical": "\"Negligence is a mixed question of law and fact, but in case the material facts are undisputed it may become a question of law, and in such case the court may properly direct the verdict as the law requires.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/6/0266-01" ] }, { "cite": "2003-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77160 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0043-01" ] }, { "cite": "655 A.2d 1382", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 287364 ], "year": 1995, "pin_cites": [ { "page": "1387", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nj/139/0536-01" ] }, { "cite": "482 F. Supp. 501", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5767048 ], "year": 1979, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/f-supp/482/0501-01" ] }, { "cite": "99 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584534 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "441" }, { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0436-01" ] }, { "cite": "127 Cal. Rptr. 441", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1976, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "995 F.2d 1224", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518908 ], "year": 1993, "pin_cites": [ { "page": "1235" } ], "opinion_index": 0, "case_paths": [ "/f2d/995/1224-01" ] }, { "cite": "531 N.W.2d 768", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1995, "pin_cites": [ { "page": "770", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246569 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6\u00b6 8-9" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0713-01" ] }, { "cite": "2009-NMCA-022", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243048 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0658-01" ] }, { "cite": "2006-NMCA-077", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543410 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0750-01" ] }, { "cite": "2009-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243813 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0372-01" ] }, { "cite": "2009-NMCA-015", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241957 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0533-01" ] }, { "cite": "111 N.M. 301", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715129 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "305" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0301-01" ] }, { "cite": "2008-NMCA-121", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4004249 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 2" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0867-01" ] }, { "cite": "2008-NMSC-057", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242057 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0004-01" ] }, { "cite": "735 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 1188962 ], "year": 2000, "pin_cites": [ { "page": "882-83", "parenthetical": "reaching the same conclusion though relying on the language of the New York statute that differs slightly from New Mexico's" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/95/0204-01" ] }, { "cite": "582 P.2d 920", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "pin_cites": [ { "page": "935" } ], "opinion_index": 0 }, { "cite": "999 S.W.2d 314", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11583665 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/sw2d/999/0314-01" ] }, { "cite": "335 N.E.2d 395", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "149 S.W.3d 104", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9142378 ], "year": 2004, "pin_cites": [ { "page": "109", "parenthetical": "\"Unlike tort law, the [Code] has the objective of promoting certainty and predictability in commercial transactions.\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/sw3d/149/0104-01" ] }, { "cite": "546 N.E.2d 904", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "908", "parenthetical": "\"By prospectively establishing rules of liability . . . , the [Code] not only guides commercial behavior but also increases certainty in the marketplace and efficiency in dispute resolution.\"" }, { "page": "906" } ], "opinion_index": 0 }, { "cite": "2002-NMCA-079", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260691 ], "weight": 5, "pin_cites": [ { "page": "\u00b6\u00b6 1, 14" }, { "page": "\u00b6 14" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0453-01" ] }, { "cite": "2010-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4248272 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 57" }, { "page": "\u00b6 72" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0627-01" ] }, { "cite": "99 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584638 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "224-25", "parenthetical": "NMSA 1978, \u00a7 55-9-311 (1961) (repealed, revised, reenacted 2001)" }, { "page": "887-88", "parenthetical": "NMSA 1978, \u00a7 55-9-311 (1961) (repealed, revised, reenacted 2001)" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0221-01" ] }, { "cite": "741 F. Supp. 2d 705", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 4156538 ], "year": 2010, "pin_cites": [ { "page": "714", "parenthetical": "holding that Pennsylvania's UCC \"provides a comprehensive remedy for the parties to the transaction - a delicate balance that would be disrupted by the allowance of common law negligence claims\" and rejecting a common law negligence action" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/741/0705-01" ] }, { "cite": "909 F. Supp. 948", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7826455 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "956-57", "parenthetical": "stating that the Code \"provides a comprehensive framework for allocating losses when a forged check enters the negotiation process\" and that allowing a negligence claim \"would circumvent the drawee's . . . 4-406 defenses\"" }, { "page": "956", "parenthetical": "\"Only in very rare instances should a court upset the legislative scheme of loss allocation and permit a common law cause of action.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/909/0948-01" ] }, { "cite": "601 N.W.2d 449", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11578855 ], "year": 1999, "pin_cites": [ { "page": "451", "parenthetical": "denying a common law conversion claim because \"parties in commercial transactions must be able to rely on the remedies provided by the Code\" and there is \"no reason to sacrifice the certainty and consistency of the [Code] remedies to preserve common law remedies\"" } ], "opinion_index": 0, "case_paths": [ "/nw2d/601/0449-01" ] }, { "cite": "632 F.3d 793", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4089098 ], "year": 2011, "pin_cites": [ { "page": "798", "parenthetical": "stating that \"Article 4 precludes common law claims that would impose liability inconsistent with the rights and liabilities expressly created by Article 4\" while allowing an exception for a common law breach of contract claim in that instance" } ], "opinion_index": 0, "case_paths": [ "/f3d/632/0793-01" ] }, { "cite": "862 So. 2d 1112", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9069107 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/so2d/862/1112-01" ] }, { "cite": "95 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575597 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "343", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "248", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "343" }, { "page": "248" }, { "page": "344" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0340-01" ] }, { "cite": "2004-NMCA-019", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428021 ], "weight": 3, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0091-01" ] }, { "cite": "265 P.3d 718", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "150 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2011-NMCERT-005", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2011-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249340 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0746-01" ] } ], "analysis": { "cardinality": 1596, "char_count": 37821, "ocr_confidence": 0.828, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.29286919816560736 }, "sha256": "632871aa6d98022a75a1726194dde71c8f32ef0c1423222eda8827623c57b45c", "simhash": "1:5fe52db32c4df2e5", "word_count": 6194 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CELIA FOY CASTILLO, Chief Judge", "MICHAEL D. BUSTAMANTE, Judge", "JONATHAN B. SUTIN, Judge" ], "parties": [ "ASSOCIATED HOME AND RV SALES, INC., a New Mexico corporation, d/b/a ENCHANTMENT RV and ENCHANTMENT RV SERVICE, a New Mexico corporation; TEAM EVENTS, INC., a New Mexico corporation; and MDM COMPANY, INC., a New Mexico corporation, Plaintiffs-Appellants, v. BANK OF BELEN, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nCASTILLO, Chief Judge.\n{1} In this appeal, we address three issues. W e consider for the first time whether NMSA 1978, Section 55-4-406 (1992) of New Mexico\u2019s Uniform Commercial Code (UCC) precludes common law claims for negligence and breach of contract in transactions involving forged checks. We also analyze the effects of Section 55-4-406\u2019s one-year statute of repose on its thirty-day limit for bringing actions involving the same serial forger. Lastly, we consider the district court\u2019s dismissal without prejudice of the count of fraud for lack of specificity. We conclude that the UCC does preclude the common law claim alleged in this case and affirm on that issue. We reverse the entry of summary judgment as to the statute of repose and consequently need not reach the issue regarding the dismissal of the fraud claim.\nBACKGROUND\n{2} Appellants are four corporations involved in the sales of recreational vehicles. The businesses are run by several family members and organized under the trade name Enchantment RV (Enchantment). In January 2003, Enchantment hired an employee (Employee) to assist with bookkeeping and to help balance the accounts of Enchantment\u2019s combined companies. In February 2003, Employee began forging checks on its accounts held at Bank of Belen (Bank) and, between February 2003 and October 2004, Employee forged 211 checks, mostly payable to herself or to \u201ccash,\u201d stealing $283,546.85 from Enchantment. About a year and a half into the scheme, in late October and early November 2004, Enchantment discovered the forgeries, notified Bank, and submitted affidavits to that effect. Bank refused to repay Enchantment for any of the losses. According to Bank, it had provided statements on a monthly basis, including photocopies of canceled checks, to Enchantment for its various accounts, thus relieving it of its obligation to pay under the UCC. Enchantment brought this action, alleging common law claims of negligence, fraud, misrepresentation, breach of contract, and a violation of the New Mexico Unfair Practices Act (UPA). In its second amended complaint, it also alleged negligence under the UCC.\n{3} Bank filed a number of pretrial motions. On a motion to dismiss the first amended complaint, the district court dismissed all of the claims except for fraud after ruling that the common law and UPA claims were displaced by the liability scheme of the UCC. After allowing for a second amended complaint to add the claim under the UCC, the district court dismissed without prejudice the fraud claim as improperly pleaded under Rules 1-009 and 1-012(B)(6) NMRA. Enchantment did not renew its fraud claim. After a period of discovery, the court granted B ank\u2019s motion for summary judgment, concluding that Enchantment failed to raise a genuine issue of material fact on its UCC claim. The case was dismissed and this appeal followed.\nDISCUSSION\nI. UCC Section 55-4-406 Precludes Common Law Claims in This Instance\n{4} This case presents an issue of first impression: whether Section 55-4-406 of the UCC precludes such common law claims as negligence and breach of contract under the set of circumstances presented here. We apply our de novo review to the question of \u201cwhether the district court applied the correct controlling legal principle to the facts and the court\u2019s application of that principle to the facts.\u201d Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop., Inc., 2011-NMCA-049, \u00b6 17, 149 N.M. 746, 255 P.3d 324, cert. granted, 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718.\n{5} Enchantment first contends that the district court erred in dismissing its common law claims, arguing that they are not preempted by Section 55-4-406 of the New Mexico UCC. Bank argues that the UCC provides a detailed and comprehensive scheme that allocates liability between a bank and its customers and provides banks with defenses to claims. Bank says that allowing common law claims to be brought in addition to actions under the UCC would frustrate the objectives of the Legislature in adopting the uniform law.\n{6} A motion to dismiss is properly granted \u201conly when it appears that the plaintiff cannot recover orbe entitled to relief under any state of facts provable under the claim.\u201d Valles v. Silverman, 2004-NMCA-019, 118, 135 N.M. 91, 84 P.3d 1056 (internal quotation marks and citation omitted). Whether the district court properly dismissed the claims is a question we review de novo. See id. \u00b6 6.\n{7} The UCC states that \u201c[ujnless displaced by the particular provisions of the [UCC], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy[,] and other validating or invalidating cause, supplement its provisions.\u201d NMSA 1978, \u00a7 55-1-103 (b) (2005). However, we have previously noted that \u201ccomprehensive legislation, prescribing minutely a course of conduct to be pursued and the parties and things affected, and specifically describing limitations and exceptions, is indicative of a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter.\u201d Rutherford v. Darwin, 95 N.M. 340, 343, 622 P.2d 245, 248 (Ct. App. 1980) (internal quotation marks and citation omitted), superseded by statute on other grounds as stated in Wisner Elevator Co. v. Richland State Bank, 862 So. 2d 1112 (La. Ct. App. 2003). Common law principles are not preserved \u201cin an area which is thoroughly covered by the UCC simply because they are not expressly excluded.\u201d Id.\n{8} Article 4 of the UCC sets up a liability scheme and set of defenses to guide the relationship between a payor bank and its customers. See generally NMSA 1978, \u00a7\u00a7 55-4-401 to -407 (1961, as amended through 2009). A forged or altered check is not properly payable, and a bank is strictly liable for the resulting loss to a customer. Cf. \u00a7 55-4-401(a) (\u201cA bank may charge against the account of a customer an item that is properly payable .... An item is properly payable if it is authorized by the customer . . . .\u201d).\n{9} Section 55-4-406(a), however, sets up a scale of liabilities that shift depending on the actions of the parties, and a bank may seek \u201csafe harbor\u201d from the above strict liability scheme of Section 55-4-401 if it makes statements of account available to the customer on a regular basis. Section 55-4-406 cmt. 1. If a bank regularly provides a statement of account with information sufficient for the customer to identify the forgery, the customer must be reasonably prompt in notifying the bank of any forgeries; if the customer does so within thirty days of receiving the statement, the bank remains strictly liable for the loss. See \u00a7 55-4-406(a), (c). After that thirty-day period, however, the bank is liable only if the customer proves that the bank failed to exercise ordinary care in passing the forged item and that the bank\u2019s failure substantially contributed to the loss; in such a case, the loss is apportioned between the customer and the bank based on comparative negligence. See \u00a7 55-4-406(d), (e). Regardless of any lack of ordinary care on the part of the bank, if a year or more has passed from the customer\u2019s receipt of the statement identifying the forgery, the customer is precluded from bringing any claim under the UCC and must bear the entire loss. See \u00a7 55-4-406(f). The basis for the system of shifting liabilities triggered by the delivery of regular statements is explained in the comments to the statute.\nOne of the most serious consequences of failure of the customer to comply with the requirements of [SJubsection (c) is the opportunity presented to the wrongdoer to repeat the misdeeds. Conversely, one of the best ways to keep down losses in this type of situation is for the customer to promptly examine the statement and notify the bank of an unauthorized signature or alteration so that the bank will be alerted to stop paying further items.\nSection 55-4-406 cmt. 2.\n{10} In all jurisdictions, the federal counterpart to our Section 55-4-406, U.C.C. \u00a7 4-406 [Rev.] (the Code), is intended to further the public policy of requiring customers to be vigilant in examining bank statements and to carry out the common law duty of reporting forgeries within a reasonable time. See 7 Lary Lawrence, Lawrence\u2019s Anderson on the Uniform Commercial Code \u00a7 4-406:5 (2007 revision). While no court in New Mexico has considered the specific issue of whether Section 55-4-406 precludes a common law claim, other jurisdictions that have dealt with the issue have come down on the side of preemption by the UCC. See, e.g., Fischer & Mandell LLP v. Citibank, N.A., 632 F.3d 793, 798 (2d Cir. 2011) (stating that \u201cArticle 4 precludes common law claims that would impose liability inconsistent with the rights and liabilities expressly created by Article 4\u201d while allowing an exception for a common law breach of contract claim in that instance); Halla v. Norwest Bank Minn., N.A., 601 N.W.2d 449, 451 (Minn. Ct. App. 1999) (denying a common law conversion claim because \u201cparties in commercial transactions must be able to rely on the remedies provided by the Code\u201d and there is \u201cno reason to sacrifice the certainty and consistency of the [Code] remedies to preserve common law remedies\u201d); Bank Polska Kasa Opieki, S.A. v. Pamrapo Sav. Bank, S.L.A., 909 F. Supp. 948, 956-57 (D.N.J. 1995) (stating that the Code \u201cprovides a comprehensive framework for allocating losses when a forged check enters the negotiation process\u201d and that allowing a negligence claim \u201cwould circumvent the drawee\u2019s . . . 4-406 defenses\u201d); Envtl. Equip. & Serv. Co. v. Wachovia Bank, N.A., 741 F. Supp. 2d 705, 714 (E.D. Pa. 2010) (holding that Pennsylvania\u2019s UCC \u201cprovides a comprehensive remedy for the parties to the transaction \u2014 a delicate balance that would be disrupted by the allowance of common law negligence claims\u201d and rejecting a common law negligence action); see also 5A Frederick M. Hart, Nathalie Martin & William F. Willier, Forms and Procedures Under the Uniform Commercial Code \u00a7 41.03 (LexisNexis 2012) (stating that the Code\u2019s \u201cspecificity preempts any common law negligence concepts regarding a bank\u2019s processing of checks\u201d).\n{11} Although New Mexico courts have not specifically addressed Section 55-4-406, they have found that other provisions of the UCC displace common law claims. See Brummund v. First Nat\u2019l Bank of Clovis, 99 N.M. 221, 224-25, 656 P.2d 884, 887-88 (1983) (NMSA 1978, \u00a7 55-9-311 (1961) (repealed, revised, reenacted 2001)); Wilde v. Westland Dev. Co., 2010-NMCA-085, \u00b6 57, 148 N.M. 627, 241 P.3d 628 (NMSA 1978, \u00a7 55-8-405 (1996)); White Sands Forest Prods., Inc. v. First Nat\u2019l Bank of Alamogordo, 2002-NMCA-079, \u00b6\u00b6 1, 14, 132 N.M. 453, 50 P.3d 202 (NMSA 1978, \u00a7 55-3-406 (1992)); Rutherford, 95 N.M. at 343, 622 P.2d at 248 (NMSA 1978, \u00a7 55-3-206 (1992)). White Sands Forest Prod., a similar case involving forged checks, took note of \u201cthe carefully crafted scheme of express statutory liabilities created by Article 3\u201d in determining that common law claims are precluded. 2002-NMCA-079, \u00b6 14.\n{12} In the case before us, we agree with the other jurisdictions that Section 55-4-406 sets out a comprehensive scheme of liability and defenses in commercial practices between banks and customers, thus supporting the legislative intent, as articulated in Rutherford of superseding common law causes of action. Section 55-4-406 provides a specific remedy for a plaintiff seeking redress from a bank after the passage of forged checks, and it sets out defenses available to a bank. See Wilde, 2010-NMCA-085, \u00b6 72. And like the analysis in White Sands Forest Prod., where a parallel section of the UCC dealt with forged endorsements of checks, we see in Section 55-4-406 a carefully crafted scheme of express statutory liabilities that would be disturbed by introducing alternative causes of actions or a different balancing of liabilities based on common law tort theories.\n{13} A look at the goals of the UCC\u2019s legislative scheme informs the question of whether confining causes of actions involving forged check transactions to the UCC scheme furthers those objectives. New Mexico\u2019s UCC is to be \u201cliberally construed\u201d to promote the following purposes and policies: \u201c(1) to simplify, clarify},] and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage},] and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.\u201d Section 55-1-103(a). \u201cFor the courts to interfere with the [UCC\u2019s] statutory scheme by superimposing tort rules, there must be sound policy reasons for finding the statutory scheme to be inadequate.\u201d White Sands Forest Prod., 2002-NMCA-079, \u00b6 14 (alteration in original) (internal quotation marks and citation omitted); see also Bank Polska Kasa Opieki, 909 F. Supp. at 956 (\u201cOnly in very rare instances should a court upset the legislative scheme of loss allocation and permit a common law cause of action.\u201d). The policy of the UCC is promoted when we confine claims involving forged checks against banks to the UCC\u2019s statutory scheme unless a reason exists for the common law to supplement that scheme. See Putnam Rolling Ladder Co. v. Mfrs. Hanover Trust Co., 546 N.E.2d 904, 908 (N.Y. 1989) (\u201cBy prospectively establishing rules of liability . . . , the [Code] not only guides commercial behavior but also increases certainty in the marketplace and efficiency in dispute resolution.\u201d); Sw. Bank v. Info. Support Concepts, Inc., 149 S.W.3d 104, 109 (Tex. 2004) (\u201cUnlike tort law, the [Code] has the objective of promoting certainty and predictability in commercial transactions.\u201d (internal quotation marks and citation omitted)). The liability scheme of New Mexico\u2019s Section 55-4-406 simplifies and clarifies the law of commercial dealings between banks and customers, and it promotes consistency and certainty in such transactions. In the case before us, we conclude that Section 55-4-406 adequately provides a scheme of liabilities and defenses and thus precludes common law claims brought by Enchantment.\n{14} As to the other claims disposed of on this motion to dismiss, Enchantment abandoned its argument for the claim of breach of contract and acknowledges that no evidence of a contract exists. Also, on appeal, Enchantment folded its UPA claim into its allegations of fraud, which is addressed in Section III below. First, we turn to the main issue of whether the district court erred in granting summary judgment for Bank.\nII. Summary Judgment Was Improperly Granted\n{15} Bank\u2019s motion for summary judgment argued that because it was undisputed that Enchantment did not report any forged checks until about eighteen months after it received the first account statement with forged checks, Enchantment is prohibited by Section 55-4-406 from making any claims against Bank. Enchantment responded that its claim was not time-barred by Section 55-4-406 because there were genuine issues of material fact as to whether Bank properly sent it a statement of account, whether Bank exercised ordinary care in paying the forged items, and whether Bank acted in bad faith. We analyze the parties\u2019 positions in light of the law regarding summary judgments.\nA. The Claim Is Not Fully Time-Barred\n{16} As a preliminary matter, the parties disagree over whether Section 55-4-406 places a time bar on Enchantment\u2019s action. The section states that a bank\u2019s customer is precluded from asserting a claim against a bank when a series of forgeries is committed by the same wrongdoer and the customer fails to notify the bank within thirty days of receiving the first statement that includes a record of the initial forgery in the series. See \u00a7 55-4-406(d)(2). Despite that restriction, a customer may still bring a claim after the initial thirty-day period if \u201cthe customer proves that the bank failed to exercise ordinary care in paying the item and that the failure substantially contributed to [the] loss[.]\u201d Section 55-4-406(e). However, if the customer waits one year or more after receiving a statement, the customer is absolutely precluded from bringing a claim, regardless of the bank\u2019s culpability. Section 55.4.406(f).\n{17} Bank contends that reading Section 55-4-406(d)(2) together with Subsection (f) leads to the conclusion that, because the forgeries at issue were the serial actions of the same wrongdoer, no action is allowed outside of S ection 5 5 -4-40 6 (d) (2)\u2019s thirty-day window following the first statement sent to Enchantment after the first instance of forgery in early 2003. Bank further argues that even if evidence exists of a lack of ordinary care on the part of Bank, extending the window to one year would still result in a bar to bringing a claim. Bank\u2019s position is that the first statement after the initial forgery was sent in April 2003, and Enchantment did not notify Bank of the forgeries until November 2004 and that, because the forgeries were the work of the same employee, the one-year window closed in April 2004. Enchantment counters by reading Section 55-4-406(f) separately from Subsection (d)(2) and arguing that the one-year window to bring a claim begins anew when each statement in a series is sent to the customer, regardless of whether the same wrongdoer is responsible for the forgeries.\n{18} We note that recognized authority sides with Enchantment. In Neo-Tech Sys., Inc. v. Provident Bank, 335 N.E.2d 395, 401 (Ohio Com. Pl. 1974), the court concluded that \u201cthe one[-]year limitation attaches to each separate check bearing an unauthorized signature and a new one[-]year period begins to run with each subsequent check when it is made available to the customer.\u201d See also 6A William D. Hawkland and Lary Lawrence, Uniform Commercial Code Series \u00a7 4-406:8 (Thomson Reuters/West 2012) (\u201cThe period is calculated separately as to each new statement.\u201d).\n{19} Other jurisdictions agree. Responding to an argument similar to the one brought here by Bank and under an identically worded statute, the Missouri Court of Appeals rejected the link between Subsections (d)(2) and (f), positing that such logic \u201cinterprets the statute as if it contains language that is not there.\u201d Johnson Dev. Co. v. First Nat\u2019l Bank of St. Louis, 999 S.W.2d 314, 317 (Mo. Ct. App. 1999). The court stated:\nIf the logic of First National\u2019s reading of the statute were followed, a victim of a series of forged checks happening over a term more than one year in duration would be without recourse for the checks forged after one year from \u201cany statement of account\u201d from which it could have been determined that it made one unauthorized payment. That is not what the statute says.\nId. The court concluded: \u201cImplicit in the language of Missouri case law is that a new one-year limitation in [SJection 400.4-406 begins to run on each separate check containing a forged signature or alteration, regardless of whether the same wrongdoer forged many checks over a term of years.\u201d Id. Similarly, the Supreme Court of California read California\u2019s versions of Subsections (d)(2) and (f) separately, distinguishing the latter because it \u201cdeclares only one rule using terms that suggest later items in a series are to be treated no differently from the first item or single items.\u201d Sun 'n Sand, Inc. v. United Cal. Bank, 582 P.2d 920, 935 (Cal. 1978). The court concluded that Subsection (f)\u2019s \u201cfailure to explicitly differentiate between one-time and repetitive forgeries and alterations . . . leads us ... to conclude that a new one-year period begins to run with each successive check.\u201d Id.; accord Monreal v. Fleet Bank, 735 N.E.2d 880, 882-83 (N.Y. 2000) (reaching the same conclusion though relying on the language of the New York statute that differs slightly from New Mexico\u2019s).\n{20} We agree with those analyses. While we see interplay between Subsections 55-4-406(d) and (e), we see no natural connection between Section 55-4-406(d)(2)\u2019s \u201csame wrongdoer\u201d rule and the more general wording in Section 55-4-406(f). We conclude that Enchantment was entitled to try to prove a lack of ordinary care by Bank for the forgeries that occurred within one year of Enchantment alerting Bank of the forgeries.\n{21} The question now becomes whether Enchantment brought forth evidence of a lack of ordinary care on the part of Bank that sufficiently raises a genuine issue of material fact to survive Bank\u2019s motion for summary judgment.\nB. There are Genuine Issues of Material Fact\n{22} \u201cSummary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Tafoya v. Rael, 2008-NMSC-057, \u00b6 11, 145 N.M. 4, 193 P.3d 551 (internal quotation marks and citation omitted). \u201cWe resolve all reasonable inferences in favor of the party opposing summary judgment, and we view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits.\u201d Weise v. Washington Tru Solutions, L.L.C., 2008-NMCA-121, \u00b6 2, 144 N.M. 867, 192 P.3d 1244. \u201cOnce the movant makes a prima facie case for summary judgment, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts [that] would require trial on the merits.\u201d Id. (internal quotation marks and citation omitted). \u201cWhere the evidence is susceptible to reasonable conflicting inferences bearing upon material facts, entry of summary judgment is improper.\u201d Ellingwood v. N.N. Investors Life Ins. Co., 111 N.M. 301, 305, 805 P.2d 70, 74 (1991). \u201cWe are mindful that summary judgment is a drastic remedial tool which demands the exercise of caution in its application}.]\u201d Woodhull v. Meinel, 2009-NMCA-015, \u00b6 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted). We review an order granting summary judgment de novo. See Beggs v. City of Portales, 2009-NMSC-023, \u00b6 10, 146 N.M. 372, 210 P.3d 798.\n{23} \u201cIn determining which issues of fact are material facts for purposes of Rule 1-056(C) [NMRA], we look to the substantive law governing the dispute.\u201d Farmington Police Officers Ass\u2019n v. City of Farmington, 2006-NMCA-077, \u00b6 17, 139 N.M. 750, 137 P.3d 1204.\nAn issue of fact is \u201cgenuine\u201d if the evidence before the court considering a motion for summary judgment would allow a hypothetical fair-minded factfinder to return a verdict favorable to the non-movant on that particular issue of fact. An issue of fact is \u201cmaterial\u201d if the existence (or non-existence) of the fact is of consequence under the substantive rules of law governing the parties\u2019 dispute.\nRomero v. Philip Morris, Inc. (Romero I), 2009-NMCA-022, \u00b6 12, 145 N.M. 658, 203 P.3d 873 (citation omitted), rev\u2019d on other grounds by Romero v. Philip Morris, Inc. (Romero II), 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280.\n{24} We now look to whether Enchantment raised a genuine issue of material fact regarding a lack of ordinary care on the part of Bank.\nC. Statements Were Made Available As a Matter of Law\n{25} Initially, Enchantment appears to conflate the issue of whether the account statements were made available to the customer as set forth in Section 55-4-406(a) and the issue of whether the manner in which the statements were provided demonstrated a lack of ordinary care by Bank. Accordingly, we will address each in turn.\n{26} Enchantment contends that rather than mail monthly statements to Enchantment at its place of business, Bank provided the statements directly to Employee who was committing the forgeries. Enchantment seems to be arguing that delivery to an employee is not sufficient under the statute. We disagree. Delivery of statements to the customer does not require the mailing of statements but merely that the bank make them available \u201cin a reasonable manner,\u201d such as allowing them to be picked up by an employee of the customer. Siecinski v. First State Bank of E. Detroit, 531 N.W.2d 768, 770 (Mich. Ct. App. 1995) (internal quotation marks and citation omitted). In the case before us, documents supporting Bank\u2019s motion for summary judgment show that Bank made the statements available to Enchantment, and Enchantment acknowledged receiving the statements each month. While the statements were often picked up at Bank by Employee, Bank\u2019s supporting documents further show that Enchantment\u2019s senior officers reviewed the statements after Employee did and thus had ample opportunity to detect the forgeries. When an employer entrusts the tasks of both handling checks and reconciling statements to the same employee, information contained in the statement is imputed to the employer. See 7 Lawrence, supra, \u00a7 4-406:14, at 493 (\u201cBecause the customer chose the agent to act on its behalf in examining the statement, the customer will be charged with whatever knowledge a reasonable examination by a loyal agent would have discovered.\u201d); see also Menichini v. Grant, 995 F.2d 1224, 1235 (3d Cir. 1993); Kiernan v. Union Bank, 127 Cal. Rptr. 441, 445 (Ct. App. 1976). Here, Bank made a prima facie case that it adequately provided monthly statements to Enchantment. Enchantment did not rebut the case.\n{27} Enchantment also relies on its position that statements of accounts were not properly provided as one basis for its argument that Bank failed to exercise ordinary care in paying the items. As we have explained, Enchantment has failed to rebut Bank\u2019s case that the statements were made available, so this argument can go no further.\nD. There is a Question of Fact About the Exercise of Ordinary Care\n{28} Enchantment\u2019s other evidence of negligence stems from an affidavit by its CEO alleging that (1) Bank promised not to accept checks made out to cash unless an officer presented the check; (2) signatures on the checks differed from those on signature cards kept on file by Bank; and (3) check amounts exceeded teller limits but were cashed without supervisor approval that had been promised by Bank.\n{29} To survive a motion for summary judgment, the non-moving party may not rely upon mere allegations, but rather \u201cmust set forth specific facts showing that there is a genuine issue for trial.\u201d Rule 1-056(E). \u201cWhen disputed facts do not support reasonable inferences, they cannot serve as a basis for denying summary judgment. Only when the inferences are reasonable is summary judgment inappropriate.\u201d Romero II, 2010-NMSC-035, \u00b6 10. \u201cA party opposing a motion for summary judgment must make an affirmative showing by affidavit or other admissible evidence that there is a genuine issue of material fact once a prima facie showing is made by the movant.\u201d Schwartzman v. Schwartzman Packing Co., 99 N.M. 436, 441, 659 P.2d 888, 893 (1983).\n{30} Enchantment\u2019s task in opposing the motion for summary judgment was to put forth a genuine issue of material fact as to any lack of ordinary care on the part of Bank. The term \u201cordinary care\u201d is defined in New Mexico\u2019s UCC. The term \u201cmeans observance of reasonable commercial standards, prevailing in the area in which the person is located, with respect to the business in which the person is engaged.\u201d NMSA 1978, \u00a7 55-3-103(a)(9) (2005) (amended 2009).\n{31} The customer bears the burden of showing that a bank failed to exercise ordinary care and that issue is generally one for the factfinder to decide. 6A Hawkland, supra, \u00a7 4-406:7. \u201cThe bank\u2019s lack of ordinary care may be demonstrated by proof that the bank\u2019s procedures were below the standard or that the bank\u2019s employees failed to exercise due care in processing the items.\u201d Hanover Ins. Cos. v. Brotherhood State Bank, 482 F. Supp. 501, 505 (D. Kan. 1979). \u201cA lack of ordinary care on the part of the bank paying items under this provision of the [Code] may be established by proof either that the bank\u2019s procedures were below standard or that the bank\u2019s employees failed to exercise care in processing the items.\u201d New Jersey Steel Corp.v. Warburton, 655 A.2d 1382, 1387 (N.J. 1995) (internal quotation marks and citation omitted). \u201cA bank must maintain reasonable supervision over its employees and procedures to guard against paying forged and altered checks.\u201d 6C Ronald A. Anderson & Lary Lawrence, Anderson on the Uniform Commercial Code \u00a7 4-406:75, at 475 (2000). \u201cIt would appear .. . that a customer could prove a bank lacked ordinary care by presenting any type of proof that the bank failed to act reasonably.\u201d Putnam Rolling Ladder Co., 546 N.E.2d at 906.\n{32} New Mexico courts have equated a bank\u2019s lack of ordinary care with a traditional negligence standard: \u201cIt is certainly not the intention of [Section] 55-4-406 to allow the bank to be insulated from the effect of its own negligence}.]\u201d Rutherford, 95 N.M. at 344, 622 P.2d at 249. Generally, negligence is a mixed question of law and fact. See Herrera v. Quality Pontiac, 2003-NMSC-018, \u00b6 6, 134 N.M. 43, 73 P.3d 181 (\u201cNegligence is generally a question of fact for the jury.\u201d (internal quotation marks and citation omitted)); Candelaria v. Atchison, T. & S. F. R. Co., 6 N.M. 266, 286-87, 27 P. 497, 504 (1891) (\u201cNegligence is a mixed question of law and fact, but in case the material facts are undisputed it may become a question of law, and in such case the court may properly direct the verdict as the law requires.\u201d); Bassett v. Sheehan, 2008-NMCA-072, \u00b6 9, 144 N.M. 178, 184 P.3d 1072 (\u201cBreach of duty is generally a question to be decided by the fact[]finder.\u201d); Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, \u00b6 27, 142 N.M. 583, 168 P.3d 155 (\u201cDetermining the existence of a duty is a question of law for the court, whereas breach of duty and proximate cause are questions of fact for the jury.\u201d (citation omitted)).\n{33} In the case before us, Enchantment alleges generally negligent acts on the part of Bank. As evidence it offers the affidavit of its CEO, who stated:\nInitially we were told that... [B]ank would not accept corporate checks made out to \u201ccash\u201d unless an officer of the corporation presented the check. . . . [Employee] presented] checks well over $1,000.00 made out to \u201ccash},]\u201d and it was well known that [Employee] was not a corporate officer. . . . The signatures were different between the signature cards and the checks and/or the endorsement. The checks were brought into . . . [B]anlc signed, even though they were made out to cash. The check amounts exceeded teller limits and were often cashed without supervisor approval. Idamay Romero\u2019s name is spelled out on the signature that is on the signature card, yet the signature on the forgery only shows a straight line for the name \u201cRomero.\u201d\n{34} New Mexico has not set a high threshold for a party to meet in order to survive a motion for summary judgment. See Bartlett v. Mirabal, 2000-NMCA-036, \u00b6\u00b6 35-38, 128 N.M. 830, 999 P.2d 1062 (rejecting the higher burden of proof created by the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and declaring that \u201cwe are at a loss in ascertaining what substantive benefits, if any, the case would have on the law of summary judgment in New Mexico\u201d); Romero II, 2010-NMSC-035, \u00b6\u00b6 8-9 (similarly rejecting the analysis in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and declaring the Court\u2019s \u201crefusal to align our state\u2019s approach with that of the federal courts\u201d). Thus, our Supreme Court has refused to follow the path of federal courts in liberalizing the standards of summary judgment, preferring instead to continue making summary judgement a rarity. \u201cNew Mexico courts, unlike federal courts, view summary judgment with disfavor, preferring a trial on the merits.\u201d Romero II, 2010-NMSC-035, \u00b6 8. \u201cWe continue to refuse to loosen the reins of summary judgment, as doing so would \u2018turn what is a summary proceeding into a full-blown paper trial on the merits.\u2019 \u201d Id. \u00b6 9 (quoting Bartlett, 2000-NMCA-036, \u00b6 32).\n{35} In the case before us, Enchantment, the party opposing summary judgment, brought forth some evidence of a lack of ordinary care on the part of Bank. The CEO\u2019s affidavit alleges that Bank broke its promise to not accept checks made out to cash unless an officer presented the check; that signatures on the forged checks differed from those on signature cards kept on file by Bank; and that check amounts exceeded teller limits but were cashed without supervisor approval. The statements in the affidavit suggest that B ank acted unreasonably and may have violated its own procedures and perhaps industry standards. The CEO\u2019s allegations sufficiently raise a genuine issue of material fact such that, if proved, the jury might find that Bank breached a duty of ordinary care. See Romero I, 2009-NMCA-022, \u00b6 12. And a fact is material to the extent that it is \u201cof consequence under the substantive rules of law governing the parties\u2019 dispute.\u201d Id. In sum, Enchantment did the bare minimum necessary to oppose the motion for summary judgment and raised genuine issues of material fact sufficient to survive B ank\u2019s motion, and it was error for the district court to grant the motion for summary judgment. We therefore do not need to reach the question of whether Bank acted in bad faith.\nIII. The Adequacy of the Court for Fraud Need Not Be Addressed\n{36} Finally, Enchantment contends that the district court improperly dismissed its fraud claim for failing to state a claim upon which relief could be granted. The fraud claim was dismissed without prejudice for lack of requisite specificity in July 2007, nearly three years before the motion for summary judgment was granted.\n{37} We have previously noted the limitations on the right to appeal from the dismissal of a claim without prejudice. \u201cGenerally, an order of dismissal without prejudice is not appealable because it typically requires further proceedings.\u201d Vescio v. Wolf, 2009-NMCA-129, \u00b6 7, 147 N.M. 374, 223 P.3d 371; see also Bankers Trust Co. of Cal., N.S. v. Baca, 2007-NMCA-019, \u00b6 11, 141 N.M. 127, 151 P.3d 88 (noting that \u201cdismissal without prejudice under Rule 1-041 (E)(2) [NMRA] simply left the action as though it was never filed\u201d); Bralley v. City of Albuquerque, 102 N.M. 715, 718, 699 P.2d 646, 649 (Ct. App. 1985) (stating that a dismissal without prejudice \u201cordinarily imports further proceedings\u201d (internal quotation marks and citation omitted)). \u201cThe words \u2018without prejudice\u2019 when used in an order or decree generally indicate that there has been no resolution of the controversy on its merits and leave the issues in litigation open to another suit as if no action had ever been brought.\u201d Bralley, 102 N.M. at 719, 699 P.2d at 650.\n{38} As we have noted, here the district court dismissed the claim of fraud without prejudice. Three years later, the entire complaint was dismissed with prejudice. We rely on law related to the dismissal of a complaint but apply this law to the facts before us. An order dismissing a complaint without prejudice \u201cshould be given a practical rather than a technical construction\u201d when considering the appropriateness of an appeal. Id. at 718, 699 P.2d at 649. \u201cDismissal of a complaint without prejudice is only final and appealable if the order disposes of the case to the fullest extent possible in the court in which it was filed.\u201d Vescio, 2009-NMCA-129, \u00b6 7; see Vill. of Los Ranchos de Albuquerque v. Shiveley, 110 N.M. 15, 17, 791 P.2d 466, 468 (Ct. App. 1989) (\u201cA decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is a final judgment.\u201d). In Sunwest Bank of Albuquerque v. Nelson, 1998-NMSC-012, \u00b6 9, 125 N.M. 170, 958 P.2d 740, our Supreme Court considered an appeal from a district court\u2019s dismissal without prejudice of a case for improper venue. The court reasoned:\nWhile the district court\u2019s order did not decide the merits of the claim or preclude filing in an alternate venue, it disposed of the matter to the fullest extent possible in the court in which the action was filed. Unlike the dismissal of a complaint with leave to file an amendment, this order did not provide a specified time or manner for refiling.\nId.\n{39} In the case before us, the district court\u2019s dismissal without prejudice of the claim for fraud in July 2007 did not dispose of the case to the fullest extent possible. In fact, discovery continued until the court\u2019s May 2010 order granting summary judgment in favor of Bank. Up until that time, Enchantment had been given leave to amend its complaint on the fraud count. Because we reverse entry of the summary judgment, the matter is remanded to the district court for further proceedings which would include any motions related to the fraud claim. Accordingly, we need not reach the merits of the appeal of the district court\u2019s dismissal of the fraud count for lack of specificity.\nCONCLUSION\n{40} For the foregoing reasons, we affirm the district court\u2019s granting of the motion to dismiss on common law preclusion, and we the reverse the motion for summary judgment in favor of Bank. We remand for further proceedings consistent with this Opinion.\n{41} IT IS SO ORDERED.\nCELIA FOY CASTILLO, Chief Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nJONATHAN B. SUTIN, Judge", "type": "majority", "author": "CASTILLO, Chief Judge." } ], "attorneys": [ "Crowley & Gribble, PC Clayton E. Crowley Albuquerque, NM for Appellants", "Parker & Hay, LLP Stanley R. Parker Topeka, KS", "Aldridge, Grammer & Hammar, P.A. David A. Grammer, III Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-018\nFiling Date: October 30, 2012\nDocket No. 30,829\nASSOCIATED HOME AND RV SALES, INC., a New Mexico corporation, d/b/a ENCHANTMENT RV and ENCHANTMENT RV SERVICE, a New Mexico corporation; TEAM EVENTS, INC., a New Mexico corporation; and MDM COMPANY, INC., a New Mexico corporation, Plaintiffs-Appellants, v. BANK OF BELEN, Defendant-Appellee.\nCrowley & Gribble, PC Clayton E. Crowley Albuquerque, NM for Appellants\nParker & Hay, LLP Stanley R. Parker Topeka, KS\nAldridge, Grammer & Hammar, P.A. David A. Grammer, III Albuquerque, NM for Appellee" }, "file_name": "0321-01", "first_page_order": 337, "last_page_order": 348 }