U.S. Bank v. Kesler

• Court: New Mexico Court of Appeals
• Decided: July 16, 2015
• Docket: 34,587
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 US BANK NATIONAL ASSOCIATION,

3 Plaintiff/Counterdefendant-Appellee,

4 v. NO. 34,587

5 PERRY A. KESLER,

6 Defendant/Counterclaimant-Appellant,

7 and

8 and if married, JANE DOE KESLER 9 (true name unknown), his spouse, 10 TAXATION AND REVENUE 11 DEPARTMENT OF THE STATE OF 12 NEW MEXICO; and UNITED STATES 13 OF AMERICA (IRS),

14 Defendants.

15 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 16 Abigail Aragon, District Judge

17 Little, Bradley & Nesbitt, P.A. 18 Sandra A. Brown 19 Albuquerque, NM

20 for Appellee

21 Perry A. Kesler 1 Rowe, NM

2 Pro Se Appellant

3 MEMORANDUM OPINION

4 VIGIL, Chief Judge.

5 {1} Defendant Perry Kesler (Defendant) filed a docketing statement, appealing from

6 the district court’s order granting Plaintiff’s motion for summary judgment and

7 dismissing Defendant’s counterclaims with prejudice, entered on March 3, 2015. [RP

8 Vol. 5/484; DS 2] In this Court’s notice of proposed disposition, we proposed to

9 dismiss the appeal for lack of a final order. [CN 1, 4] Defendant filed a memorandum

10 in opposition and motion to amend his docketing statement. Defendant also filed a

11 notice of entry of the district court’s order along with a copy of the order denying

12 Defendant’s motion to reconsider, which we have duly considered. Remaining

13 unpersuaded, we dismiss the appeal for lack of a final order.

14 {2} As we stated in our notice of proposed disposition, Defendant filed a timely

15 motion to reconsider and, accordingly, the district court was not divested of its

16 jurisdiction. [CN 3–4] See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6,

17 147 N.M. 303, 222 P.3d 675 (explaining that, when a “motion that challenges the

18 district court’s determination of the rights of the parties[ ] is pending in the district

19 court, the judgment or order entered by the district court remains non-final. . . . and

2 1 [the] appeal is premature” (citation omitted)); Grygorwicz v. Trujillo, 2009-NMSC-

2 009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that “if a party makes a

3 post-judgment motion directed at the final judgment pursuant to Section 39-1-1, the

4 time for filing an appeal does not begin to run until the district court enters an express

5 disposition on that motion”); State v. Romero, 2014-NMCA-063, ¶ 5, 327 P.3d 525

6 (“[T]he finality of a judgment may be suspended by the timely filing of a motion for

7 reconsideration.”). A district court retains jurisdiction to enter a final judgment on a

8 motion to reconsider. See Rule 12-201(D)(4) NMRA. We will dismiss an appeal

9 where no final order has been entered. State v. Griego, 2004-NMCA-107, ¶ 22, 136

10 N.M. 272, 96 P.3d 1192 (dismissing for lack of jurisdiction when no final judgment

11 had been entered); see also Rule 12-201(D) (addressing the effect of post-trial or post-

12 judgment motions as extending the time for appeal until entry of a final order

13 expressly disposing of the motions when there is no provision of automatic denial of

14 motion under applicable statute or rule).

15 {3} The district court did not deny Plaintiff’s motion to reconsider on its merits;

16 rather, the district court denied the motion on the court’s mistaken belief that it was

17 divested of jurisdiction, stating it “finds that a good cause for this motion does not

18 exist as the matter is currently stayed pending decision by the Court of Appeals[.]”

19 Thus, because the district court has not yet ruled on the merits of Defendant’s motion,

3 1 the underlying proceedings are deemed non-final, and Defendant’s appeal is

2 premature. See Romero, 2014-NMCA-063, ¶ 5 (“[T]he finality of a judgment may be

3 suspended by the timely filing of a motion for reconsideration.”); Rule 12-201(D)(4)

4 (stating that, until a motion for reconsideration is disposed of, the district court is not

5 divested of its jurisdiction).

6 {4} We note that Defendant is free to appeal from the final order of the district

7 court, once such order on the merits is entered. See Rule 12-201.

8 {5} Therefore, for the reasons stated in our notice of proposed disposition and

9 herein, the appeal is dismissed for lack of a final order.

10 {6} IT IS SO ORDERED.

11 __________________________________ 12 MICHAEL E. VIGIL, Chief Judge

13 WE CONCUR:

14 ___________________________ 15 JAMES J. WECHSLER, Judge

16 ___________________________ 17 M. MONICA ZAMORA, Judge