Timm v. Gazzara

• Court: New Mexico Court of Appeals
• Decided: May 25, 2010
• Docket: 30,186
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 COLIN TIMM,

8 Petitioner-Appellee,

9 vs. No. 30,186

10 ANGELA GAZZARA,

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Angela J. Jewell, District Judge

14 Lisa A. Torraco 15 Albuquerque, NM

16 for Appellee

17 Angela Gazzara 18 Albuquerque, NM

19 Pro Se Appellant

20 MEMORANDUM OPINION

21 SUTIN, Judge.

22 Respondent is appealing from a November 30, 2009, district court order of

23 protection. [RP 39-41, 46] On December 18, 2009, Respondent filed in district court

24 a motion to reconsider the order. [RP 42] Because Respondent’s motion for 1 reconsideration was filed outside the time limit to file under Rule 1-059(E) NMRA,

2 our calendar notice construed it as a motion filed pursuant to NMSA 1978, Section

3 39-1-1 (1917) and Rule 1-054.1 NMRA. Our calendar notice observed that there is

4 no indication in the record proper that the district court ruled on Respondent’s motion

5 to reconsider. Respondent has filed a memorandum in response, relying on an

6 attached form that she claims is a denial of her motion for reconsideration. It is

7 unclear from the face of this form what it was intended to address. Regardless, the

8 form is not file-stamped and has not been made part of the record. See State v.

9 Reynolds, 111 N.M. 263, 267, 804 P.2d 1082, 1086 (Ct. App. 1990) (“Matters outside

10 the record present no issue for review.”). Case Lookup, which provides internet

11 access to the district court records, also indicates that the district court has not ruled

12 on the motion for reconsideration.

13 Despite the language in Section 39-1-1, the district court was required to rule

14 on the post-judgment motion, and it was not deemed denied by the passage of time.

15 See Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15, 142

16 N.M. 527, 168 P.3d 99 (holding that changes to the Rules of Civil Procedure

17 superseded Section 39-1-1 and eliminated the automatic denial of post-judgment

18 motions). Thus, we conclude that Respondent’s appeal is premature without an order

19 denying her motion. See Rule 12-201(D) NMRA (providing that if a party timely files

2 1 a motion pursuant to Section 39-1-1, the time for filing a notice of appeal begins to

2 run from entry of an order disposing of the motion); see also Grygorwicz v. Trujillo,

3 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (recognizing in the context of a

4 foreclosure judgment that when a party makes a motion challenging the judgment, the

5 judgment is not final until the district court rules on that motion).

6 For these reasons, we Respondent’s appeal as premature.

7 IT IS SO ORDERED.

8 __________________________________ 9 JONATHAN B. SUTIN, Judge

10 WE CONCUR:

11 _________________________________ 12 MICHAEL D. BUSTAMANTE, Judge

13 _________________________________ 14 RODERICK T. KENNEDY, Judge