J Perry v. GEO Group ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOSEPH C. PERRY,
3 Plaintiff-Appellant,
4 v. NO. 28,982
5 THE GEO GROUP, INC., LEA COUNTY
6 CORRECTIONAL FACILITY, STIU
7 COORDINATOR E. SANDOVAL, MAJOR
8 VINCENT HORTON, SANDRA MILLER,
9 and JOSIE ENRIQUEZ,
10 Defendants-Appellees.
11 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
12 Gary L. Clingman, District Judge
13 Joseph C. Perry
14 Santa Fe, NM
15 Pro Se Appellant
16 Yenson, Lynn, Allen & Wosick, P.C.
17 Matthew L. Connelly
18 Albuquerque, NM
19 for Appellees
20 MEMORANDUM OPINION
21 CASTILLO, Judge.
22 Plaintiff appeals an order granting Defendants’ motion to dismiss entered on
1 July 10, 2008, and a second order denying Defendants’ motion to dismiss entered on
2 July 22, 2008. [DS unnumbered page 1; RP 351, 362] We proposed to dismiss for
3 lack of a final order and, in the alternative, because Plaintiff failed to file a timely
4 notice of appeal. Plaintiff filed a “memorandum motion” contending that the order
5 denying his motion to dismiss is the controlling order. [Memorandum 1-2] We agree
6 with Plaintiff’s contention and therefore dismiss the appeal for lack of a final order.
7 As stated in our notice of proposed summary dismissal, the right to appeal is
8 restricted to final judgments and decisions. See NMSA 1978, § 39-3-2 (1966); Kelly
9 Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d 1033, 1036-42 (1992),
10 limited on other grounds by Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851
11 P.2d 1064, 1065(1993). Whether an order is final for purposes of appeal is a
12 jurisdictional question that this Court is required to raise on its own motion. Khalsa
13 v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.
14 A final order is commonly defined as an order that decides all issues of fact and
15 law necessary to be determined or which completely disposes of the case to the extent
16 that the court had the power to dispose of it. See B.L. Goldberg & Assocs., Inc. v.
17 Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985). In this case, the district
18 court’s most recent order denied Defendants’ motion to dismiss. [RP 362] This is the
19 order that controls. See Nichols v. Nichols, 98 N.M. 322, 326-27, 648 P.2d 780, 784-
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1 85 (1982) (recognizing the “rule that when there are two conflicting judgments
2 rendered by a court upon the same rights of the same parties that which is later in time
3 prevails”); cf. NMSA 1978, § 39-1-1 (1917) (stating that the district court retains
4 control over final judgments for a period of thirty days after entry of the order).
5 Generally, an order denying a “motion to dismiss is not an appealable, final
6 order.” King v. Allstate Ins. Co., 2007-NMCA-044, ¶ 8, 141 N.M. 612, 159 P.3d 261;
7 see Gutierrez v. Gutierrez, 116 N.M. 86, 86, 860 P.2d 216, 216 (Ct. App. 1993). In
8 light of the fact that the district court’s most recent order denies Defendants’ motion
9 to dismiss, Plaintiff is appealing from a non-final order and thus we dismiss Plaintiff’s
10 appeal because the order is not final for the purposes of appeal.
11 IT IS SO ORDERED.
12 ________________________________
13 CELIA FOY CASTILLO, Judge
14 WE CONCUR:
15 ________________________________
16 JAMES J. WECHSLER, Judge
17 ________________________________
18 LINDA M. VANZI, Judge
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