Whatley v. Corizon Medicare D.O.C.
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 18 VIGIL, Judge. MEMORANDUM OPINION 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, 200416 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 4
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