Whatley v. Corizon Medicare D.O.C.

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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