Jones v. Heidel, Samberson ( 2010 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 EARL JONES,
8 Plaintiff-Appellant,
9 v. No. 30,333
10 HEIDEL, SAMBERSON, NEWELL,
11 COX & MCMAHON,
12 Defendant-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
14 Thomas A. Rutledge, District Judge
15 Earl Jones,
16 Hobbs, NM
17 Pro Se Appellant
18 Butt, Thornton & Baehr
19 Alfred L. Green, Jr.
20 Albuquerque, NM
21 for Appellee
22 MEMORANDUM OPINION
23 SUTIN, Judge.
1 In this legal malpractice case, Plaintiff Earl Jones appeals from the order of
2 dismissal with prejudice, granting Defendant Heidel Law Firm summary judgment
3 and dismissing the case with prejudice. [RP 120] Summary judgment was granted
4 on the basis that Plaintiff’s claim for legal malpractice was filed outside the statute of
5 limitations.
6 The calendar notice proposed to dismiss the appeal for lack of a final order. [Ct.
7 App. File] Plaintiff has filed a memorandum in opposition that we have duly
8 considered. [MIO] Unpersuaded, however, we dismiss.
9 DISCUSSION
10 “Whether an order is a ‘final order’ within the meaning of the statute is a
11 jurisdictional question that an appellate court is required to raise on its own motion.”
12 Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.
13 “Determining whether [an] appeal was timely involves the interpretation of court
14 rules, which we review de novo.” Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 7, 145
15 N.M. 650, 203 P.3d 865.
16 The order of dismissal was filed on January 19, 2010. [RP 120] Plaintiff’s
17 notice of appeal was filed on March 2, 2010. [RP 153] While Plaintiff filed the notice
18 of appeal more than thirty days after the order of dismissal (see Rule 12-201(A)(2)
19 NMRA), on January 19, 2010, Plaintiff filed a timely post-judgment motion entitled
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1 “motion for reversal to court’s orders of dismissal with prejudice on Defendant’s
2 motion for summary judgment and Defendant’s memorandum in support of summary
3 judgment” (Plaintiff’s motion). [RP 115-19] Pursuant to Rule 12-201(D), Plaintiff’s
4 motion extends the time for filing the notice of appeal until thirty days after the post-
5 judgment motion has been ruled upon.
6 Although the order of dismissal was filed on the same day as Plaintiff’s motion
7 and approximately one half hour thereafter, the order of dismissal cannot be
8 considered to be a ruling on Plaintiff’s motion. The order of dismissal refers only to
9 the hearing held on January 7, 2010, on Defendant’s motion for summary judgment,
10 and it only grants Defendant’s motion for summary judgment. [RP 120] Moreover,
11 on February 3, 2010, Defendant filed a response in opposition to Plaintiff’s motion.
12 [RP 125] Thus, there is no indication in the record proper that the district court has
13 ruled on Plaintiff’s motion.
14 The district court was required to rule on the post-judgment motion, and it was
15 not deemed denied by the passage of time. See Albuquerque Redi-Mix, Inc. v.
16 Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15, 142 N.M. 527, 168 P.3d 99 (holding that
17 changes to the Rules of Civil Procedure eliminated the automatic denial of post-
18 judgment motions). The fact that the district court has not yet ruled on Plaintiff’s
19 motion renders the order of dismissal non-final and Plaintiff’s appeal premature. See
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1 Grygorwicz, 2009-NMSC-009, ¶ 8 (recognizing in the context of a foreclosure
2 judgment that when a party makes a motion challenging the judgment, the judgment
3 is not final until the district court rules on the motion); see also Rule 12-201(D)
4 (providing that if a party files a timely post-judgment motion as set forth therein, the
5 time for filing a notice of appeal begins to run from entry of an order disposing of the
6 motion).
7 Thus, this Court’s calendar notice proposed to dismiss the appeal. Plaintiff’s
8 memorandum does not indicate that the district court has ruled on the motion for
9 reconsideration, but urges this Court to consider the merits of his appeal any way.
10 [MIO 2-3] This Court does not have jurisdiction to do so. See, e.g., Collier v.
11 Pennington, 2003-NMCA-064, ¶ 7, 133 N.M. 728, 69 P.3d 238 (discussing that this
12 Court lacks jurisdiction to review a non-final order).
13 CONCLUSION
14 Accordingly, we dismiss Plaintiff’s appeal.
15 IT IS SO ORDERED.
16 __________________________________
17 JONATHAN B. SUTIN, Judge
18 WE CONCUR:
19 _______________________________
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1 CELIA FOY CASTILLO, Judge
2 _______________________________
3 RODERICK T. KENNEDY, Judge
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