Jones v. Heidel, Samberson

• Court: New Mexico Court of Appeals
• Decided: July 26, 2010
• Docket: 30,333
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 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