Cedrins v. Shapiro ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 INARA CEDRINS,
8 Plaintiff-Appellant,
9 v. NO. 30,130
10 RICHARD SHAPIRO,
11 Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 James A. Hall, District Judge
14 Inara Cedrins
15 Chicago, IL
16 Pro Se Appellant
17 Richard Shapiro
18 Santa Fe, NM
19 Pro Se Appellee
20 MEMORANDUM OPINION
21 FRY, Chief Judge.
22 In this legal malpractice case, the calendar notice proposed to dismiss the appeal
23 for lack of a final order. [CN1] Plaintiff has filed a response that does not attach a
1 final appealable order or otherwise demonstrate finality in the proceedings below.
2 [MIO] We dismiss the appeal for lack of a final order.
2
1 DISCUSSION
2 As we discussed in the calendar notice, Plaintiff appeals from an oral ruling
3 made at a January 5, 2010, hearing. [RP 50] The notice of appeal was filed on
4 January 6, 2010. [RP 50] The docketing statement was filed on January 7, 2010.
5 [DS] At the time this Court filed the first calendar notice, moreover, the case was
6 proceeding on Defendant’s counterclaims for abuse of process and intentional
7 infliction of emotional distress. [RP 18] In addition, the district court docket sheet
8 showed pending matters, including a hearing on an order to show cause that was set
9 for March 25, 2010, a pretrial conference scheduled for September 3, 2010, and a
10 docket call in October 2010. See Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125
11 N.M. 680, 964 P.2d 844 (“Whether an order is a ‘final order’ within the meaning of
12 the statute is a jurisdictional question that an appellate court is required to raise on its
13 own motion.”); see also Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824
14 P.2d 1033, 1038 (1992) (stating that generally, an order or judgment is not considered
15 final unless all issues of law and fact have been determined and the case disposed of
16 by the trial court to the fullest extent possible).
17 With regard to Plaintiff’s appeal from the January 5, 2010 oral ruling, this Court
18 provided Plaintiff with a chance in the memorandum in opposition to the calendar
19 notice to demonstrate to this Court that the district court had entered a written, final,
3
1 appealable judgment on all matters that were pending before it in this case, together
2 with a copy of any such judgment. Plaintiff did not do so, and therefore, this Court
3 lacks the jurisdiction to review the merits of Plaintiff’s appeal from the January 5,
4 2010 oral ruling as Plaintiff requests in her memorandum. [MIO] To the extent
5 that a final judgment adjudicating all pending counterclaims appears to have been
6 filed in the district court on April 21, 2010, the January 6, 2010, notice of appeal filed
7 from the January 5, 2010, oral ruling cannot be considered a timely, but premature,
8 notice of appeal from the April 21, 2010, final judgment. See Rule 12-201(A)(2)
9 NMRA (stating that, “[a] notice of appeal filed after the announcement of a decision,
10 or return of the verdict, but before the judgment or order is filed in the district court
11 clerk’s office shall be treated as filed after such filing and on the day thereof”). The
12 January 6, 2010, notice of appeal merely references the January 5, 2010 oral ruling,
13 and it does not indicate that the district court had “announced a decision” on the
14 pending counterclaims at that time.
15 CONCLUSION
16 We dismiss this appeal for lack of a final order.
17 IT IS SO ORDERED.
18
19 CYNTHIA A. FRY, Chief Judge
4
1 WE CONCUR:
2
3 JAMES J. WECHSLER, Judge
4
5 JONATHAN B. SUTIN, Judge
5