In RE Cruz-Calderon

• Court: New Mexico Court of Appeals
• Decided: September 23, 2009
• Docket: 29,545
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 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