Herrera v. Zanios Foods

• Court: New Mexico Court of Appeals
• Decided: December 6, 2012
• Docket: 32,387
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 DANIEL HERRERA,

3 Worker-Appellee,

4 v. No. 32,387

5 ZANIOS FOODS AND FOOD 6 INDUSTRIES SELF INSURANCE 7 FUND OF NEW MEXICO,

8 Employer/Insurer-Appellant.

9 APPEAL FROM THE WORKERS COMPENSATION ADMINISTRATION 10 David L. Skinner, Workers’ Compensation Judge

11 Daniel Herrera 12 Albuquerque, NM

13 Pro Se Appellee

14 H. Jesse Jacobus III 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 SUTIN, Judge. 1 Employer/Insurer appeals from a compensation order awarding Worker

2 benefits. This Court issued a notice of proposed summary disposition proposing to

3 dismiss the appeal for lack of a final order. Specifically, we noted that the

4 compensation order was entered on July 12, 2012, and a motion for reconsideration

5 was filed on August 7, 2012. [CN 2] We further noted that the record before this

6 Court did not indicate that Employer/Insurer’s motion for reconsideration was ruled

7 on. [Id.] We therefore proposed to dismiss for lack of a final order. See Bianco v.

8 Horror One Productions, 2009-NMSC-006, ¶ 12, 145 N.M. 551, 202 P.2d 810

9 (holding that the time for filing the worker’s notice of appeal did not begin to run until

10 an express denial of the post-judgment motion was entered).

11 Employer/Insurer has filed a response to this Court’s notice of proposed

12 summary disposition, stating that it concurs with this Court’s notice provided that the

13 Court is concluding Employer/Insurer timely filed its motion for reconsideration under

14 NMSA 1978, Section 39-1-1 (1917). Given that Employer/Insurer’s motion does not

15 reference a specific rule of procedure, it may be properly considered as a motion

16 falling within the purview of Section 39-1-1. See, e.g., Albuquerque Redi-Mix, Inc.

17 v. Scottsdale Ins. Co., 2007-NMSC-051, ¶¶ 7-10, 142 N.M. 527, 168 P.3d 99

18 (recognizing that, when considering how a post-judgment motion should be

19 characterized, nomenclature is not controlling and instead the determinative factor is

2 1 the time frame in which the motion was filed). Because Employer/Insurer filed a

2 timely motion for reconsideration that the workers’ compensation judge has not yet

3 ruled on, we dismiss for lack of a final order.

4 Furthermore, we note that Worker filed a motion requesting that this Court

5 dismiss Employer/Insurer’s appeal. This Court denied Worker’s motion in our notice

6 of proposed disposition on the ground that Worker had failed to state a valid basis for

7 dismissal. Worker has filed a motion asking this Court to reconsider its denial of his

8 motion for reconsideration, asserting the same grounds as in his original motion to

9 dismiss. Worker’s motion for reconsideration is denied. Employer/Insurer’s appeal

10 is dismissed for lack of a final order.

11 IT IS SO ORDERED.

12 __________________________________ 13 JONATHAN B. SUTIN, Judge

14 WE CONCUR:

15 _______________________________ 16 JAMES J. WECHSLER, Judge

17 _______________________________ 18 LINDA M. VANZI, Judge