Ortega v. Johnson

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 PHILLIP ORTEGA,

3 Plaintiff-Appellant,

4 v. NO. 34,554

5 GERALDINE C. JOHNSON, FIELD CLAIMS 6 REPRESENTATIVE and FARMERS INSURANCE 7 COMPANY OF ARIZONA,

8 Defendants-Appellees,

9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 10 David K. Thomson, District Judge

11 Phillip Ortega 12 Santa Fe, NM

13 for Appellant

14 O’Brien & Ulibarri, P. C. 15 Daniel O’Brien 16 Justin D. Goodman 17 Albuquerque, NM

18 for Appellees

19 MEMORANDUM

20 ZAMORA, Judge. 1 {1} Plaintiff is appealing, pro se, from a district court order denying his motion for

2 entry of a default judgment, an order dismissing his complaint without prejudice, and

3 permitting him to amend his complaint. We issued a calendar notice proposing to

4 dismiss for lack of finality. Plaintiff has responded with a memorandum in opposition.

5 We dismiss the appeal.

6 {2} “[O]ur appellate jurisdiction is limited to review of any final judgment or

7 decision, any interlocutory order or decision which practically disposes of the merits

8 of the action, or any final order after entry of judgment which affects substantial

9 rights.” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140

10 N.M. 920, 149 P.3d 1017 (alteration, internal quotation marks, and citation omitted)).

11 An appellate court does not have jurisdiction when a final judgment has not been

12 entered. See, e.g., State v. Griego, 2004-NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d

13 1192 (dismissing for lack of jurisdiction when no final judgment had been entered);

14 State v. Garcia, 1983-NMCA-017, ¶¶ 29-30, 99 N.M. 466, 659 P.2d 918 (same).

15 When an appellate court does not have jurisdiction, it must dismiss. See Thornton v.

16 Gamble, 1984-NMCA-093, ¶ 15, 101 N.M. 764, 688 P.2d 1268.

17 {3} This Court has previously held that an order dismissing a civil complaint

18 without prejudice is not a final, appealable order. Montoya v. Anaconda Mining Co.,

19 1981-NMCA-113, ¶ 12, 97 N.M. 1, 635 P.2d 1323. In this case, Plaintiff had filed his

2 1 notice of appeal prior to the entry of the order of dismissal. [RP 34] Normally, a

2 prematurely filed notice of appeal would be considered to be timely filed on the date

3 of the entry of the final order. See Rule 12-201(A) NMRA. However, in this case, the

4 district court apparently believed that the filing of the premature notice of appeal

5 divested the district court from taking any additional action. But see Kelly Inn No. 102,

6 Inc. v. Kapnison, 1992-NMSC-005, ¶ 32, 113 N.M. 231, 824 P.2d 1033 (noting that

7 district courts retain jurisdiction to perfect appeal). As a result, the district court’s

8 order of dismissal without prejudice gave Plaintiff thirty days to amend his complaint,

9 with the period to commence upon remand from this Court. [RP 40] Because that

10 language renders the order of dismissal non-final (because the thirty day period has

11 yet to commence), we dismiss this appeal.

12 {4} IT IS SO ORDERED.

13 14 M. MONICA ZAMORA, Judge

15 WE CONCUR:

16 17 MICHAEL D. BUSTAMANTE, Judge

18 19 JONATHAN B. SUTIN, Judge