Jones v. Heidel, Samberson

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 EARL JONES, 8 Plaintiff-Appellant, 9 v. No. 30,333 10 HEIDEL, SAMBERSON, NEWELL, 11 COX & MCMAHON, 12 Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 14 Thomas A. Rutledge, District Judge 15 Earl Jones, 16 Hobbs, NM 17 Pro Se Appellant 18 Butt, Thornton & Baehr 19 Alfred L. Green, Jr. 20 Albuquerque, NM 21 for Appellee 22 MEMORANDUM OPINION 23 SUTIN, Judge. 1 In this legal malpractice case, Plaintiff Earl Jones appeals from the order of 2 dismissal with prejudice, granting Defendant Heidel Law Firm summary judgment 3 and dismissing the case with prejudice. [RP 120] Summary judgment was granted 4 on the basis that Plaintiff’s claim for legal malpractice was filed outside the statute of 5 limitations. 6 The calendar notice proposed to dismiss the appeal for lack of a final order. [Ct. 7 App. File] Plaintiff has filed a memorandum in opposition that we have duly 8 considered. [MIO] Unpersuaded, however, we dismiss. 9 DISCUSSION 10 “Whether an order is a ‘final order’ within the meaning of the statute is a 11 jurisdictional question that an appellate court is required to raise on its own motion.” 12 Khalsa v. Levinson, 1998-NMCA-110, ¶ 12 , 125 N.M. 680 , 964 P.2d 844 . 13 “Determining whether [an] appeal was timely involves the interpretation of court 14 rules, which we review de novo.” Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 7 , 145 15 N.M. 650 , 203 P.3d 865 . 16 The order of dismissal was filed on January 19, 2010. [RP 120] Plaintiff’s 17 notice of appeal was filed on March 2, 2010. [RP 153] While Plaintiff filed the notice 18 of appeal more than thirty days after the order of dismissal (see Rule 12-201(A)(2) 19 NMRA), on January 19, 2010, Plaintiff filed a timely post-judgment motion entitled [2] 1 “motion for reversal to court’s orders of dismissal with prejudice on Defendant’s 2 motion for summary judgment and Defendant’s memorandum in support of summary 3 judgment” (Plaintiff’s motion). [RP 115-19] Pursuant to Rule 12-201(D), Plaintiff’s 4 motion extends the time for filing the notice of appeal until thirty days after the post- 5 judgment motion has been ruled upon. 6 Although the order of dismissal was filed on the same day as Plaintiff’s motion 7 and approximately one half hour thereafter, the order of dismissal cannot be 8 considered to be a ruling on Plaintiff’s motion. The order of dismissal refers only to 9 the hearing held on January 7, 2010, on Defendant’s motion for summary judgment, 10 and it only grants Defendant’s motion for summary judgment. [RP 120] Moreover, 11 on February 3, 2010, Defendant filed a response in opposition to Plaintiff’s motion. 12 [RP 125] Thus, there is no indication in the record proper that the district court has 13 ruled on Plaintiff’s motion. 14 The district court was required to rule on the post-judgment motion, and it was 15 not deemed denied by the passage of time. See Albuquerque Redi-Mix, Inc. v. 16 Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15 , 142 N.M. 527 , 168 P.3d 99 (holding that 17 changes to the Rules of Civil Procedure eliminated the automatic denial of post- 18 judgment motions). The fact that the district court has not yet ruled on Plaintiff’s 19 motion renders the order of dismissal non-final and Plaintiff’s appeal premature. See [3] 1 Grygorwicz, 2009-NMSC-009, ¶ 8 (recognizing in the context of a foreclosure 2 judgment that when a party makes a motion challenging the judgment, the judgment 3 is not final until the district court rules on the motion); see also Rule 12-201(D) 4 (providing that if a party files a timely post-judgment motion as set forth therein, the 5 time for filing a notice of appeal begins to run from entry of an order disposing of the 6 motion). 7 Thus, this Court’s calendar notice proposed to dismiss the appeal. Plaintiff’s 8 memorandum does not indicate that the district court has ruled on the motion for 9 reconsideration, but urges this Court to consider the merits of his appeal any way. 10 [MIO 2-3] This Court does not have jurisdiction to do so. See, e.g., Collier v. 11 Pennington, 2003-NMCA-064, ¶ 7 , 133 N.M. 728 , 69 P.3d 238 (discussing that this 12 Court lacks jurisdiction to review a non-final order). 13 CONCLUSION 14 Accordingly, we dismiss Plaintiff’s appeal. 15 IT IS SO ORDERED. 16 __________________________________ 17 JONATHAN B. SUTIN, Judge 18 WE CONCUR: 19 _______________________________ [4] 1 CELIA FOY CASTILLO, Judge 2 _______________________________ 3 RODERICK T. KENNEDY, Judge