In RE Cruz-Calderon

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 IN THE MATTER OF THE GUARDIANSHIP 8 and CONSERVATORSHIP of LILLIAN 9 CRUZ-CALDERON, an (alleged) 10 Incapacitated Person, 11 Petitioner-Appellant, 12 SHARON N. OCASIO, 13 Counter/Petitioner-Appellant. 14 v. NO. 29,545 15 MIGUEL PIRELA-CRUZ, 16 Petitioner-Appellee. 17 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 18 Fernando R. Macias, District Judge 19 Martin, Lutz, Roggow, Hosford & Eubanks, P.C. 20 James A. Roggow 21 Las Cruces, NM 22 Guardian Ad Litem 23 Sharon N. Ocasio 1 Las Cruces, NM 2 Pro Se Appellant 3 Sandenaw & Anderson, P.C. 4 Caralyn Banks, 5 Las Cruces, NM 6 for Appellee 7 MEMORANDUM OPINION 8 WECHSLER, Judge. 9 Appellant appeals from the district court order appointing permanent co- 10 guardians and a conservator for Lillian Cruz-Calderon. We issued a Calendar Notice 11 proposing to dismiss the appeal for lack of a final order. Appellant has filed a timely 12 memorandum in opposition, which we have considered. We remain unpersuaded and 13 dismiss this appeal. 14 This Court’s jurisdiction arises from final, appealable orders. See NMSA 1978, 15 § 39-3-2 (1966); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40 , 824 P.2d 16 1033, 1036-42 (1992). Whether an order is final, such that appeal is statutorily 17 authorized, is a jurisdictional question that this Court is required to raise on its own 18 motion. See Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815 , 907 P.2d 994 , 996 19 (1995); Khalsa v. Levinson, 1998-NMCA-110, ¶ 12 , 125 N.M. 680 , 964 P.2d 844 (Ct. [2] 1 App. 1998 ). 2 In this case, the district court entered its amended order appointing permanent 3 co-guardians and a conservator for Lillian Cruz-Calderon on March 30, 2009. [RP 4 203-206] On April 9, 2009, Appellant filed a motion for reconsideration and 5 requested a hearing on the motion. [RP 207-217, 226] On April 29, 2009, Appellant 6 filed a Notice of Appeal. [RP 228] The district court has not yet ruled on Appellant’s 7 motion for reconsideration. 8 Appellant’s motion for reconsideration was filed within ten days of the 9 judgment. Such a motion is deemed a Rule 1-059(E) NMRA motion to alter or amend 10 the judgment. See Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., [11] 2007-NMSC-051, ¶¶ 7-10 , 142 N.M. 527 , 168 P.3d 99 (stating that “a motion 12 challenging a judgment, filed within ten days of the judgment, should be considered 13 a Rule 1-059(E) motion to alter or amend a judgment”). Because Appellant’s motion 14 for reconsideration remained outstanding when she filed her notice of appeal, the 15 notice of appeal was filed before there was a final order in the case. See Dickens v. 16 Laurel Health Care, LLC, No. 29,239, slip op. at ¶¶ 4, 7 (N.M. Ct. App. Jun. 18, 17 2009) (holding that the filing of a Rule 1-059(E) motion renders a judgment non-final 18 for purposes of appeal and dismissing the appeal for lack of a final order). [3] 1 Accordingly, the notice of appeal was premature. 2 Until the district court rules on the motion for reconsideration, there is no final 3 order in the case from which to appeal, and this appeal must be dismissed for lack of 4 jurisdiction. In her memorandum in opposition, Appellant states that she has 5 requested a hearing from the district court on the motion to reconsider. [MIO 1] We 6 note that once the district court has issued a written ruling on the motion for 7 reconsideration, Appellant is free to file a notice of appeal. See Albuquerque Redi- 8 Mix, 2007-NMSC-051, ¶¶ 3-5 (determining that the notice of appeal was timely filed 9 from the district court’s denial of the Rule 1-059(E) motion to alter or amend the 10 judgment). 11 For these reasons, we dismiss the appeal. 12 IT IS SO ORDERED. 13 _______________________________ 14 JAMES J. WECHSLER, Judge 15 WE CONCUR: 16 _________________________________ 17 CYNTHIA A. FRY, Chief Judge [4] 1 _________________________________ 2 MICHAEL D. BUSTAMANTE, Judge