Whatley v. Corizon Medicare D.O.C.
This text of Whatley v. Corizon Medicare D.O.C. (Whatley v. Corizon Medicare D.O.C.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
2 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
3 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
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
Whatley v. Corizon Medicare D.O.C., Counsel Stack Legal Research, https://law.counselstack.com/opinion/whatley-v-corizon-medicare-doc-nmctapp-2015.