Ortega v. Johnson ( 2015 )

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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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 PHILLIP ORTEGA,
3 Plaintiff-Appellant,
4 v. NO. 34,554
5 GERALDINE C. JOHNSON, FIELD CLAIMS
6 REPRESENTATIVE and FARMERS INSURANCE
7 COMPANY OF ARIZONA,
8 Defendants-Appellees,
9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
10 David K. Thomson, District Judge
11 Phillip Ortega
12 Santa Fe, NM
13 for Appellant
14 O’Brien & Ulibarri, P. C.
15 Daniel O’Brien
16 Justin D. Goodman
17 Albuquerque, NM
18 for Appellees
19 MEMORANDUM
20 ZAMORA, Judge.
1 {1} Plaintiff is appealing, pro se, from a district court order denying his motion for
2 entry of a default judgment, an order dismissing his complaint without prejudice, and
3 permitting him to amend his complaint. We issued a calendar notice proposing to
4 dismiss for lack of finality. Plaintiff has responded with a memorandum in opposition.
5 We dismiss the appeal.
6 {2} “[O]ur appellate jurisdiction is limited to review of any final judgment or
7 decision, any interlocutory order or decision which practically disposes of the merits
8 of the action, or any final order after entry of judgment which affects substantial
9 rights.” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140
10 N.M. 920, 149 P.3d 1017 (alteration, internal quotation marks, and citation omitted)).
11 An appellate court does not have jurisdiction when a final judgment has not been
12 entered. See, e.g., State v. Griego, 2004-NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d
13 1192 (dismissing for lack of jurisdiction when no final judgment had been entered);
14 State v. Garcia, 1983-NMCA-017, ¶¶ 29-30, 99 N.M. 466, 659 P.2d 918 (same).
15 When an appellate court does not have jurisdiction, it must dismiss. See Thornton v.
16 Gamble, 1984-NMCA-093, ¶ 15, 101 N.M. 764, 688 P.2d 1268.
17 {3} This Court has previously held that an order dismissing a civil complaint
18 without prejudice is not a final, appealable order. Montoya v. Anaconda Mining Co.,
19 1981-NMCA-113, ¶ 12, 97 N.M. 1, 635 P.2d 1323. In this case, Plaintiff had filed his
2
1 notice of appeal prior to the entry of the order of dismissal. [RP 34] Normally, a
2 prematurely filed notice of appeal would be considered to be timely filed on the date
3 of the entry of the final order. See Rule 12-201(A) NMRA. However, in this case, the
4 district court apparently believed that the filing of the premature notice of appeal
5 divested the district court from taking any additional action. But see Kelly Inn No. 102,
6 Inc. v. Kapnison, 1992-NMSC-005, ¶ 32, 113 N.M. 231, 824 P.2d 1033 (noting that
7 district courts retain jurisdiction to perfect appeal). As a result, the district court’s
8 order of dismissal without prejudice gave Plaintiff thirty days to amend his complaint,
9 with the period to commence upon remand from this Court. [RP 40] Because that
10 language renders the order of dismissal non-final (because the thirty day period has
11 yet to commence), we dismiss this appeal.
12 {4} IT IS SO ORDERED.
13
14 M. MONICA ZAMORA, Judge
15 WE CONCUR:
16
17 MICHAEL D. BUSTAMANTE, Judge
18
19 JONATHAN B. SUTIN, Judge
3