Spengler v. Spengler

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 JACK G. SPENGLER,

8 Petitioner-Appellant,

9 v. NO. 28,927

10 CYNTHIA M. SPENGLER,

11 Respondent-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 13 Jerry H. Ritter, Jr., District Judge

14 Jack G. Spengler 15 Lynchburg, VA

16 Pro Se Appellant

17 Roger E. Yarbro 18 Cloudcroft, NM

19 for Appellee

20 MEMORANDUM OPINION

21 KENNEDY, Judge.

22 In this case, the final decree was entered on June 10, 2008. [RP 1365] On June

23 18, 2008, Petitioner filed a motion for a new trial pursuant to Rule 1-059 NMRA. [RP 1 1383] Petitioner’s motion for a new trial was filed within ten days of the judgment

2 and it asked the court to reconsider various conclusions of a law. Such a motion is

3 deemed a Rule 1-059(E) motion to alter or amend the judgment. See Albuquerque

4 Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-051, ¶¶ 7-10, 142 N.M. 527, 168

5 P.3d 99 (stating that a motion challenging a judgment, filed within ten days of the

6 judgment, should be considered a Rule 1-059(E) motion to alter or amend a

7 judgment). On August 19, 2008, believing that the Rule 1-059(E) motion was deemed

8 denied by operation of law after thirty days, Petitioner filed a Notice of Appeal. [DS

9 1] The district court has not yet ruled on Petitioner’s motion.

10 We issued a calendar notice proposing to dismiss the appeal based on the lack

11 of a final order. See Dickens v. LaurelHealth Care LLC, No. 29,239, slip op. at ¶ 4,

12 7 (N.M. Ct. App. Jun. 18, 2009) (holding that the filing of a Rule 1-059(E) motion

13 renders a judgment non-final for purposes of appeal and dismissing the appeal for lack

14 of a final order). Petitioner has responded to our calendar notice and indicated that he

15 does not oppose dismissal of the appeal so that the district court can enter a final

16 order.

17 For these reasons, we dismiss the appeal.

18 IT IS SO ORDERED.

2 1 ___________________________________ 2 RODERICK T. KENNEDY, Judge

3 WE CONCUR:

4 ____________________________ 5 CYNTHIA A. FRY, Chief Judge

6 ____________________________ 7 CELIA FOY CASTILLO, Judge