U.S. Bank v. Kesler

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 US BANK NATIONAL ASSOCIATION, 3 Plaintiff/Counterdefendant-Appellee, 4 v. NO. 34,587 5 PERRY A. KESLER, 6 Defendant/Counterclaimant-Appellant, 7 and 8 9 10 11 12 13 14 and if married, JANE DOE KESLER (true name unknown), his spouse, TAXATION AND REVENUE DEPARTMENT OF THE STATE OF NEW MEXICO; and UNITED STATES OF AMERICA (IRS), Defendants. 15 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 16 Abigail Aragon, District Judge 17 Little, Bradley & Nesbitt, P.A. 18 Sandra A. Brown 19 Albuquerque, NM 20 for Appellee 21 Perry A. Kesler 1 Rowe, NM 2 Pro Se Appellant 3 MEMORANDUM OPINION 4 VIGIL, Chief Judge. 5 {1} Defendant Perry Kesler (Defendant) filed a docketing statement, appealing from 6 the district court’s order granting Plaintiff’s motion for summary judgment and 7 dismissing Defendant’s counterclaims with prejudice, entered on March 3, 2015. [RP 8 Vol. 5/484; DS 2] In this Court’s notice of proposed disposition, we proposed to 9 dismiss the appeal for lack of a final order. [CN 1, 4] Defendant filed a memorandum 10 in opposition and motion to amend his docketing statement. Defendant also filed a 11 notice of entry of the district court’s order along with a copy of the order denying 12 Defendant’s motion to reconsider, which we have duly considered. Remaining 13 unpersuaded, we dismiss the appeal for lack of a final order. 14 {2} As we stated in our notice of proposed disposition, Defendant filed a timely 15 motion to reconsider and, accordingly, the district court was not divested of its 16 jurisdiction. [CN 3–4] See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6, 17 147 N.M. 303, 222 P.3d 675 (explaining that, when a “motion that challenges the 18 district court’s determination of the rights of the parties[ ] is pending in the district 19 court, the judgment or order entered by the district court remains non-final. . . . and 2 1 [the] appeal is premature” (citation omitted)); Grygorwicz v. Trujillo, 2009-NMSC2 009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that “if a party makes a 3 post-judgment motion directed at the final judgment pursuant to Section 39-1-1, the 4 time for filing an appeal does not begin to run until the district court enters an express 5 disposition on that motion”); State v. Romero, 2014-NMCA-063, ¶ 5, 327 P.3d 525 6 (“[T]he finality of a judgment may be suspended by the timely filing of a motion for 7 reconsideration.”). A district court retains jurisdiction to enter a final judgment on a 8 motion to reconsider. See Rule 12-201(D)(4) NMRA. We will dismiss an appeal 9 where no final order has been entered. State v. Griego, 2004-NMCA-107, ¶ 22, 136 10 N.M. 272, 96 P.3d 1192 (dismissing for lack of jurisdiction when no final judgment 11 had been entered); see also Rule 12-201(D) (addressing the effect of post-trial or post12 judgment motions as extending the time for appeal until entry of a final order 13 expressly disposing of the motions when there is no provision of automatic denial of 14 motion under applicable statute or rule). 15 {3} The district court did not deny Plaintiff’s motion to reconsider on its merits; 16 rather, the district court denied the motion on the court’s mistaken belief that it was 17 divested of jurisdiction, stating it “finds that a good cause for this motion does not 18 exist as the matter is currently stayed pending decision by the Court of Appeals[.]” 19 Thus, because the district court has not yet ruled on the merits of Defendant’s motion, 3 1 the underlying proceedings are deemed non-final, and Defendant’s appeal is 2 premature. See Romero, 2014-NMCA-063, ¶ 5 (“[T]he finality of a judgment may be 3 suspended by the timely filing of a motion for reconsideration.”); Rule 12-201(D)(4) 4 (stating that, until a motion for reconsideration is disposed of, the district court is not 5 divested of its jurisdiction). 6 {4} We note that Defendant is free to appeal from the final order of the district 7 court, once such order on the merits is entered. See Rule 12-201. 8 {5} Therefore, for the reasons stated in our notice of proposed disposition and 9 herein, the appeal is dismissed for lack of a final order. 10 {6} IT IS SO ORDERED. 11 12 __________________________________ MICHAEL E. VIGIL, Chief Judge 13 WE CONCUR: 14 ___________________________ 15 JAMES J. WECHSLER, Judge 16 ___________________________ 17 M. MONICA ZAMORA, Judge 4

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