Mendoza v. Huber

• Court: New Mexico Court of Appeals
• Decided: May 27, 2015
• Docket: 33,913
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 GEORGE MENDOZA,

3 Plaintiff-Appellant,

4 v. NO. 33,913

5 LUCINDA HUBER,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Manuel I. Arrieta, District Judge

9 Lahann Law Firm, LLC 10 Christopher Cardenas 11 Las Cruces, NM

12 for Appellant

13 The Pickett Law Firm, LLC 14 Stephen T. Swaim 15 Lawrence M. Pickett 16 Las Cruces, NM

17 for Appellee

18 MEMORANDUM OPINION

19 VANZI, Judge. 1 {1} Plaintiff appeals from a district court judgment resolving Plaintiff’s quiet title

2 complaint in Defendant’s favor. We issued a calendar notice proposing to dismiss for

3 lack of a final order because the district court has not ruled on Plaintiff’s motion for

4 reconsideration. Plaintiff did not file a memorandum in opposition to that calendar

5 notice, and we issued a memorandum opinion affirming the district court. This Court

6 then granted Plaintiff’s motion for rehearing, in effect giving Plaintiff another

7 opportunity to respond to our calendar notice. In his post-rehearing order

8 memorandum, Plaintiff agrees that the appeal should be dismissed for the reasons

9 stated in the calendar notice. Defendant, on the other hand, has argued that the district

10 court order should be considered final because the motion for reconsideration has been

11 automatically denied. See NMSA 1978, § 39-1-1 (1917) (providing that the district

12 courts retain jurisdiction over their judgments for a period of thirty days; motions

13 directed against such judgments may be filed within this period of time, but if the

14 district court fails to act upon such motions within thirty days, they are deemed

15 denied). We disagree with Defendant’s argument. See Rosales v. N.M. Taxation &

16 Revenue Dep’t, 2012-NMCA-098, ¶ 11, 287 P.3d 353 (observing, based on the

17 committee commentary associated with Rule 1-054.1 NMRA, that “the automatic

18 denial provision in Section 39-1-1 no longer applies in any civil case”).

2 1 {2} For the reasons discussed above and in our calendar notice, we dismiss the

2 appeal.

3 {3} DISMISSED.

4 {4} IT IS SO ORDERED.

5 __________________________________ 6 LINDA M. VANZI, Judge

7 WE CONCUR:

8 _________________________________ 9 MICHAEL D. BUSTAMANTE, Judge

10 _________________________________ 11 JONATHAN B. SUTIN, Judge