Muse v. Muse ( 2009 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 LANA CAROL MUSE,
8 Petitioner-Appellee,
9 v. NO. 29,696
10 JACK LEROY MUSE,
11 Respondent-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
13 Steven L. Bell, District Judge
14 Lana Carol Muse
15 Clovis, NM
16 Pro Se Appellee
17 Jack Leroy Muse
18 Clovis, NM
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 WECHSLER, Judge.
22 Respondent seeks to appeal from an order granting in part and denying in part
1 his motion for an accounting. We issued a notice of proposed summary disposition,
2 proposing to dismiss the appeal for want of a final order. Respondent has filed a
3 supplemental response, which is in the nature of a memorandum in opposition. After
4 due consideration, we remain unpersuaded that this matter is properly before us. We
5 therefore dismiss.
6 As we noted in the notice of proposed summary disposition, the right to appeal
7 is generally restricted to final judgments and decisions. See NMSA 1978, § 39-3-2
8 (1966); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d 1033,
9 1036-42 (1992). Whether an order is final, such that appeal is statutorily authorized,
10 is a jurisdictional question that this Court is required to raise on its own motion.
11 Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844. “For
12 purposes of appeal, an order or judgment is not considered final unless all issues of
13 law and fact have been determined and the case disposed of by the trial court to the
14 fullest extent possible.” B.L. Goldberg & Assocs., Inc. v. Uptown, Inc., 103 N.M. 277,
15 278, 705 P.2d 683, 684 (1985).
16 As we previously indicated, the order from which Respondent has appealed
17 does not appear to resolve the underlying issues to the fullest extent possible. To the
18 contrary, the order specifically contemplates further proceedings. [RP 1639-1644]
2
1 Although dismissal of the action with prejudice is indicated as a potential outcome by
2 a specified deadline, [RP 1644] the order does not appear to be self-effectuating, and
3 we find nothing in the record to indicate that an order of dismissal has been entered.
4 In his supplemental response, Respondent asserts that he has had conversations
5 of an apparently informal (and ex parte) nature with the staff at the district court, in
6 an effort to obtain an order that fully and finally resolves the issues. [MIO 2] He
7 contends that he has been informed that the district court judge intended the order to
8 be final and, consequently, that nothing further shall be forthcoming. [MIO 2]
9 However, this Court is not at liberty to consider Respondent’s assertions, insofar as
10 they are based on communications outside the record. See, e.g., Chavez v. Lovelace
11 Sandia Health Sys., Inc., 2008-NMCA-104, ¶ 37, 144 N.M. 578, 189 P.3d 71112 (illustrating that communications off the record are not before us on appeal). See
13 generally S. Union Gas Co. v. Taylor, 82 N.M. 670, 672, 486 P.2d 606, 608 (1971)
14 (“Matters not disclosed by the record fall outside the scope of our appellate review
15 and will not be considered.”).
16 Moreover, even if we were inclined to credit Respondent’s assertions about the
17 district court’s position on the finality of the underlying order, Respondent’s timely
18 filing of a motion for reconsideration [RP 1648] conclusively establishes that the
3
1 appeal is not properly before us at this juncture. As the New Mexico Supreme Court
2 recently explained, when a party files a timely motion challenging a determination of
3 the rights of the parties, the determination is not final and the time for filing an appeal
4 does not begin to run until the district court enters an express disposition on the
5 motion. See Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203
6 P.3d 865. Therefore, the filing of Respondent’s post-judgment motion renders the
7 appeal premature. Only after the district court has entered a written order ruling on
8 the motion, as required by Rule 1-054.1 NMRA, may an appeal properly be pursued.
9 Accordingly, for the reasons stated above and in our notice of proposed
10 summary disposition, this appeal is dismissed.
11 IT IS SO ORDERED.
12 ______________________________
13 JAMES J. WECHSLER, Judge
14 WE CONCUR:
15 _____________________________
16 CELIA FOY CASTILLO, Judge
4
1 _____________________________
2 MICHAEL E. VIGIL, Judge
5