Derringer v. Chapel

• Court: New Mexico Court of Appeals
• Decided: January 31, 2011
• Docket: 30,616
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 DAVID DERRINGER,

8 Plaintiff-Appellant,

9 v. NO. 30,616

10 JOHN CURTIS CHAPEL, MICKEY 11 CHAPEL, and JENNIFER CHAPEL,

12 Defendants-Appellees.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Theresa M. Baca, District Judge

15 David Derringer 16 Albuquerque, NM

17 Pro Se Appellant

18 Joseph Manges 19 Santa Fe, NM

20 for Appellees

21 MEMORANDUM OPINION

22 KENNEDY, Judge.

23 Plaintiff seeks to appeal an order dismissing his complaint. We proposed to

24 dismiss the appeal as premature. Plaintiff has timely responded. We have considered

25 his arguments and not being persuaded, we dismiss. 1 In our notice, we pointed out that prior to filing his notice of appeal, Plaintiff

2 had timely filed a motion for reconsideration of the district court’s order dismissing

3 his complaint. Citing to recent authority on the issue, we pointed out that the filing

4 of a motion for reconsideration makes the order being appealed from no longer final

5 for purposes of appeal. We stated that Plaintiff must wait for a ruling on his motion

6 for reconsideration before filing his notice of appeal.

7 Plaintiff suggests that this Court is attempting to catch him in a trap so that he

8 will never be able to appeal the district court’s ruling. Citing to a number of older

9 cases, Plaintiff argues that he is required to file his notice of appeal within thirty days

10 of the order even if he has filed a motion for reconsideration as such motions are

11 deemed denied if not ruled on within thirty days. The cases upon which Plaintiff

12 relies are no longer persuasive on this issue because the Rules of Civil Procedure have

13 been amended so that such motions are no longer deemed denied after thirty days. See

14 Rule 1-059 NMRA (amended in 2006 to eliminate provision regarding “deemed

15 denied”). The rules now provide that the district court must actually rule on the

16 motion. See Committee Commentary to Rule 1-054.1 NMRA.

17 Our calendar notice cited to the most recent authority regarding timely notices

18 of appeal and motions for reconsideration. The rules of procedure have changed since

19 the time that Plaintiff first came before the courts. Because of those changes in

2 1 procedure, Plaintiff’s notice of appeal is premature. Once Plaintiff gets a written order

2 ruling on his motion for reconsideration, he will have a final order from which to

3 appeal. Until that time, his appeal is premature and this Court declines to address the

4 merits of his complaints.

5 For the reasons stated herein and in the notice of proposed disposition, we

6 dismiss the appeal.

7 IT IS SO ORDERED.

8 9 RODERICK T. KENNEDY, Judge

10 WE CONCUR:

11 12 CELIA FOY CASTILLO, Chief Judge

13 14 TIMOTHY L. GARCIA, Judge