Birkley v. Northup

• Court: New Mexico Court of Appeals
• Decided: March 10, 2011
• Docket: 30,832
• Status: Unpublished

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 WILLIAM BIRKLEY,

8 Plaintiff-Appellant,

9 v. NO. 30,832

10 JEFFERY NORTHUP,

11 Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 13 Sam B. Sanchez, District Judge

14 William Birkley 15 Albuquerque, NM

16 Pro se Appellant

17 Baker Law Office, LLC 18 Adam S. Baker 19 Taos, NM

20 for Appellee

21 MEMORANDUM OPINION

22 VIGIL, Judge. 1 Plaintiff appeals pro se from the district court’s September 14, 2010 “order

2 denying motion to vacate and reinstate” (order). (Emphasis omitted.) [RP 64] Our

3 notice proposed to dismiss and Plaintiff filed a timely memorandum in opposition.

4 We are unpersuaded by Plaintiff’s arguments and therefore dismiss.

5 As set forth in our notice, subsequent to entry of the order and prior to the filing

6 of his notice of appeal, [RP 68] Plaintiff filed a September 23, 2010, “request for

7 specific findings of fact and conclusions of law” (request). (Emphasis omitted.) [RP

8 65] We view this request as tantamount to a motion for reconsideration. See

9 generally NMSA 1978, § 39-1-1 (1953). If the district court granted Plaintiff’s

10 requested conclusion that the case be reinstated, [RP 67] then it would be affording

11 Plaintiff relief from its order. Because the district court has not yet ruled on

12 Defendant’s post-judgment motion, we dismiss for lack of a final judgment. See

13 Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222 P.3d

14 675 (holding that because resolution of the post-judgment motion could alter, amend,

15 or moot the order that is challenged, the order is not final and the appeal is premature).

16 We note that upon our dismissal for lack of finality, the district court will have

17 jurisdiction to consider Plaintiff’s post-judgment request. While Plaintiff expresses

18 frustration that this Court does not address the merits of his appeal, [MIO 1-4]

2 1 Plaintiff’s act of filing the post-judgment motion precludes this Court from doing so.

2 Based on our notice and on the foregoing discussion, we dismiss for lack of

3 finality.

4 IT IS SO ORDERED.

5 _______________________________ 6 MICHAEL E. VIGIL, Judge

7 WE CONCUR:

8 _________________________________ 9 CELIA FOY CASTILLO, Chief Judge

10 11 _________________________________ 12 RODERICK T. KENNEDY, Judge