Whatley v. Corizon Medicare D.O.C.

New Mexico Court of Appeals

Whatley v. Corizon Medicare D.O.C.

New Mexico Court of Appeals·Decided June 17, 2015·No. 34,403·Unpublished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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ROYLENE WHATLEY, 3 Plaintiff-Appellant, 4 v. NO. 34,403

5 CORIZON MEDICARE D.O.C, 6 DR. SHANNON, AND DR. ALBERT,

7 Defendants-Appellees.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Alan M. Malott, District Judge

10 Roylene Whatley 11 Las Cruces, NM

12 Pro Se Appellant

13 Simone, Roberts & Weiss, P.A. 14 Norman F. Weiss 15 Albuquerque, NM

16 for Appellees 17 MEMORANDUM OPINION 18 VIGIL, Judge.

1 {1} Plaintiff Roylene Whatley filed a docketing statement, appealing from the 2 district court’s order granting Defendants’ motion for summary judgment and 3 dismissing Plaintiff’s complaint with prejudice, entered on November 12, 2014. [RP 4 317; DS 1] In this Court’s notice of proposed disposition, we proposed to dismiss the 5 appeal for lack of a final order. [CN 1, 4] Plaintiff filed a memorandum in opposition, 6 which we have duly considered. Remaining unpersuaded, we dismiss the appeal for 7 lack of a final order. 8 {2} In his memorandum in opposition, Plaintiff contends that the summary 9 judgment entered by the district court was a final order and that his notice of appeal 10 gave full jurisdiction over to this Court. [MIO 1] However, as we stated in our notice 11 of proposed disposition, Plaintiff filed a timely motion to alter or amend and a timely 12 motion for relief from judgment and, accordingly, the district court was not divested 13 of its jurisdiction. [CN 3] See Rule 12-201(D)(4) NMRA (stating that the district court 14 retains jurisdiction to dispose of one of the types of motions for reconsideration listed 15 in Rule 12-201(D)(1)-(2), upon the filing of such a motion); State v. Griego, 2004- 16 NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d 1192 (dismissing for lack of jurisdiction 17 when no final judgment had been entered); see also Rule 12-201(D) (addressing the 18 effect of post-trial or post-judgment motions as extending the time for appeal until

1 entry of a final order expressly disposing of the motions when there is no provision 2 of automatic denial of motion under applicable statute or rule); Grygorwicz v. Trujillo, 3 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that “if a party makes 4 a post-judgment motion directed at the final judgment pursuant to Section 39-1-1, the 5 time for filing an appeal does not begin to run until the district court enters an express 6 disposition on that motion”); Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, 7 ¶ 6, 147 N.M. 303, 222 P.3d 675 (explaining that when a “motion that challenges the 8 district court’s determination of the rights of the parties[] is pending in the district 9 court, the judgment or order entered by the district court remains non-final. . . . and 10 [the] appeal is premature”). 11 {3} As we noted in our notice of proposed disposition, the district court did not 12 deny Plaintiff’s motions on the merits of such motions; rather, the district court denied 13 the motions on the court’s mistaken belief that it was divested of jurisdiction. [See RP 14 326 (¶¶ 5–6)] Thus, because the district court has not yet ruled on the merits of 15 Plaintiff’s motions, the underlying proceedings are deemed non-final, and Plaintiff’s 16 appeal is premature. See State v. Romero, 2014-NMCA-063, ¶ 5, 327 P.3d 525 (“[T]he 17 finality of a judgment may be suspended by the timely filing of a motion for

1 reconsideration.”); Rule 12-201(D)(4) (stating that, until a motion for reconsideration 2 is disposed of, the district court is not divested of its jurisdiction). 3 {4} We additionally note that, with regard to Plaintiff’s implication that he will be 4 denied his constitutional right to appeal if the present appeal is dismissed, as we 5 indicated in our notice of proposed disposition [CN 4], Plaintiff is free to appeal from 6 the final order of the district court, once such order is entered. See Rule 12-201. 7 {5} Therefore, for the reasons stated in our notice of proposed disposition and 8 herein, the appeal is dismissed for lack of a final order. 9 {6} IT IS SO ORDERED.

10 __________________________________ 11 MICHAEL E. VIGIL, Chief Judge

12 WE CONCUR:

13 ___________________________________ 14 MICHAEL D. BUSTAMANTE, Judge

15 ___________________________________ 16 J. MILES HANISEE, Judge

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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 ROYLENE WHATLEY, 3 Plaintiff-Appellant, 4 v. NO. 34,403

5 CORIZON MEDICARE D.O.C, 6 DR. SHANNON, AND DR. ALBERT,

7 Defendants-Appellees.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Alan M. Malott, District Judge

10 Roylene Whatley 11 Las Cruces, NM

12 Pro Se Appellant

13 Simone, Roberts & Weiss, P.A. 14 Norman F. Weiss 15 Albuquerque, NM

16 for Appellees 17 MEMORANDUM OPINION 18 VIGIL, Judge.

1 {1} Plaintiff Roylene Whatley filed a docketing statement, appealing from the 2 district court’s order granting Defendants’ motion for summary judgment and 3 dismissing Plaintiff’s complaint with prejudice, entered on November 12, 2014. [RP 4 317; DS 1] In this Court’s notice of proposed disposition, we proposed to dismiss the 5 appeal for lack of a final order. [CN 1, 4] Plaintiff filed a memorandum in opposition, 6 which we have duly considered. Remaining unpersuaded, we dismiss the appeal for 7 lack of a final order. 8 {2} In his memorandum in opposition, Plaintiff contends that the summary 9 judgment entered by the district court was a final order and that his notice of appeal 10 gave full jurisdiction over to this Court. [MIO 1] However, as we stated in our notice 11 of proposed disposition, Plaintiff filed a timely motion to alter or amend and a timely 12 motion for relief from judgment and, accordingly, the district court was not divested 13 of its jurisdiction. [CN 3] See Rule 12-201(D)(4) NMRA (stating that the district court 14 retains jurisdiction to dispose of one of the types of motions for reconsideration listed 15 in Rule 12-201(D)(1)-(2), upon the filing of such a motion); State v. Griego, 2004- 16 NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d 1192 (dismissing for lack of jurisdiction 17 when no final judgment had been entered); see also Rule 12-201(D) (addressing the 18 effect of post-trial or post-judgment motions as extending the time for appeal until

1 entry of a final order expressly disposing of the motions when there is no provision 2 of automatic denial of motion under applicable statute or rule); Grygorwicz v. Trujillo, 3 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that “if a party makes 4 a post-judgment motion directed at the final judgment pursuant to Section 39-1-1, the 5 time for filing an appeal does not begin to run until the district court enters an express 6 disposition on that motion”); Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, 7 ¶ 6, 147 N.M. 303, 222 P.3d 675 (explaining that when a “motion that challenges the 8 district court’s determination of the rights of the parties[] is pending in the district 9 court, the judgment or order entered by the district court remains non-final. . . . and 10 [the] appeal is premature”). 11 {3} As we noted in our notice of proposed disposition, the district court did not 12 deny Plaintiff’s motions on the merits of such motions; rather, the district court denied 13 the motions on the court’s mistaken belief that it was divested of jurisdiction. [See RP 14 326 (¶¶ 5–6)] Thus, because the district court has not yet ruled on the merits of 15 Plaintiff’s motions, the underlying proceedings are deemed non-final, and Plaintiff’s 16 appeal is premature. See State v. Romero, 2014-NMCA-063, ¶ 5, 327 P.3d 525 (“[T]he 17 finality of a judgment may be suspended by the timely filing of a motion for

1 reconsideration.”); Rule 12-201(D)(4) (stating that, until a motion for reconsideration 2 is disposed of, the district court is not divested of its jurisdiction). 3 {4} We additionally note that, with regard to Plaintiff’s implication that he will be 4 denied his constitutional right to appeal if the present appeal is dismissed, as we 5 indicated in our notice of proposed disposition [CN 4], Plaintiff is free to appeal from 6 the final order of the district court, once such order is entered. See Rule 12-201. 7 {5} Therefore, for the reasons stated in our notice of proposed disposition and 8 herein, the appeal is dismissed for lack of a final order. 9 {6} IT IS SO ORDERED.

10 __________________________________ 11 MICHAEL E. VIGIL, Chief Judge

12 WE CONCUR:

13 ___________________________________ 14 MICHAEL D. BUSTAMANTE, Judge

15 ___________________________________ 16 J. MILES HANISEE, Judge

Whatley v. Corizon Medicare D.O.C., (N.M. Ct. App. 2015).

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