Diaz v. Law Offices of Barela
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 2 3 4 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO CARLOS L. DIAZ, Personal Capacity, and for the ESTATE OF THE LATE AND PERSONABLE EDMUNDO B. DIAZ, 6 Plaintiff-Appellant, 7 v. 8 9 10 11 12 13 No. A-1-CA-37001 LAW OFFICES OF BARELA, ELIAS BARELA, NANCY E. BARELA, JOSE A. DIAZ, All Liable Under Jointly, Separately, Individual, Personal Capacities, Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 15 Louis E. De Pauli, Jr., District Judge 16 Carlos Diaz 17 Albuquerque, NM 18 Pro Se Appellant 19 Elias Barela 20 Los Lunas, NM 21 for Appellees 22 23 HANISEE, Judge. MEMORANDUM OPINION 1 {1} Plaintiff, a self-represented litigant, has sought to appeal from the district 2 court’s order dismissing his complaint with prejudice. We issued a notice of proposed 3 summary disposition, proposing to dismiss for lack of a final, appealable order. 4 Plaintiff has responded to our notice with a memorandum in support. We dismiss. 5 {2} As explained in our notice, Plaintiff sought to appeal from the district court’s 6 order dismissing his complaint with prejudice, which was filed on December 29, 2017. 7 [RP 444-46, 455-57] Plaintiff timely filed a motion to reconsider on January 24, 2018, 8 under NMSA 1978, Section 39-1-1 (1917), and Rule 12-201(D)(1)(c) NMRA. [RP 9 447-54] This motion challenges the substance of the district court order and requests 10 a hearing on the merits; and therefore constitutes a timely post-judgment motion that 11 suspends the finality of the district court’s order and extends the time for filing a 12 notice of appeal until after the district court has entered “an order expressly disposing 13 of the last such remaining motion.” Rule 12-201(D)(1); see also Grygorwicz v. 14 Trujillo, 2009-NMSC-009, ¶¶ 8-9, 145 N.M. 650, 203 P.3d 865 (construing the 15 defendant’s “claim of exemptions on execution as a motion challenging the 16 foreclosure decree[,] pursuant to Section 39-1-1” and holding that where a post17 judgment motion challenges the merits of the trial court’s determination of the rights 18 or liabilities of the parties in the final order, the order is no longer final). The district 19 court has not yet ruled on Defendants’ motion. 2 1 {3} We observe that Plaintiff also filed a notice of appeal on January 24, 2018, 2 along with his motion to reconsider the district court’s order of dismissal. [RP 4473 454; 455-57] Under these circumstances, the notice of appeal is deemed premature 4 and does not divest the district court of its jurisdiction to rule on Plaintiff’s motion to 5 reconsider, which it must do in an express manner before Plaintiff may appeal. See 6 Rule 12-201(D)(4). 7 {4} Based on the foregoing, we dismiss for lack of a final, appealable order. 8 {5} IT IS SO ORDERED. 9 10 J. MILES HANISEE, Judge 11 WE CONCUR: 12 13 HENRY M. BOHNHOFF, Judge 14 15 EMIL J. KIEHNE, Judge 3
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