Ginko v. Albuquerque Health Partners

1 This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. 2 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum 3 opinions. Please also note that this electronic memorandum opinion may contain 4 computer-generated errors or other deviations from the official paper version filed by the Court of 5 Appeals and does not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 ROSEMARY GINKO, 8 Plaintiff-Appellant, 9 v. NO. 32,561 10 ALBUQUERQUE HEALTH PARTNERS, 11 LOVELACE HEALTH SYSTEM, INC., 12 Defendants, 13 and 14 BRAD CUCCHETTI, DO., 15 Defendant-Appellee. 16 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 17 Valerie Mackie Huling, District Judge 18 Trujillo Dodd, Torres, O’Brien, Sanchez, LLC 19 Donna S. Trujillo Dodd 20 Albuquerque, NM 21 for Appellant 22 Miller Stratvert, P.A. 23 Todd Schwarz 24 Albuquerque, NM 1 for Defendants/Appellee 2 MEMORANDUM OPINION 3 VANZI, Judge. 4 {1} Appellant Rosemary Ginko (Plaintiff) appeals from the district court’s 5 dismissal of all her claims with prejudice as a sanction for her discovery abuses, 6 including “the willful and intentional nature of Plaintiff’s conduct and deception.” 7 [RP Vol.III/1321] Our notice proposed to dismiss for lack of a final order, in light of 8 Plaintiff’s pro se “affidavit” [RP Vol.III/1328], which we view as tantamount to an 9 outstanding motion to reconsider. Our notice provided, however, that in the event 10 Plaintiff should secure a final order ruling on the outstanding motion and provide this 11 Court with a copy thereof in the time for filing a memorandum in opposition, we 12 would proceed to calendar this case on the merits. Plaintiff was unable to secure a 13 final order, and for this reason we dismiss her appeal for lack of a final order. See 14 Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6 , 147 N.M. 303 , 222 P.3d 15 675 (holding that because resolution of the post-judgment motion could alter, amend, 16 or moot the order that is challenged, the order is not final and the appeal is premature). 17 {2} While Plaintiff did not secure a final judgment from the district court, we note 18 that we are in receipt of the district court’s March 6, 2013, “order on motion to [2] 1 withdraw and motion for ruling on outstanding matters” (order). [Ct.App.File, pink 2 clip] In pertinent part, this order acknowledges the filing of Plaintiff’s pro se 3 affidavit, prohibits Plaintiff from filing any more pro se pleadings in district court 4 until further order of the district court, and indicates that a notice of hearing will be 5 sent to Plaintiff’s counsel, at which time the district court will address—among other 6 matters—the motion for ruling on outstanding matters. As relevant to our dismissal 7 for lack of finality, this order acknowledges that matters remain to be decided below, 8 thereby precluding finality. 9 {3} For reasons discussed herein and in our notice, we dismiss for lack of a final 10 order. 11 {4} IT IS SO ORDERED. 12 __________________________________ 13 LINDA M. VANZI, Judge 14 WE CONCUR: 15 _________________________________ 16 RODERICK T. KENNEDY, Chief Judge 17 _________________________________ 18 JONATHAN B. SUTIN, Judge