Nossaman v. Gilkey ( 2011 )

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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 MARY NOSSAMAN,
8 Plaintiff-Appellee,
9 v. NO. 30,787
10 KIM GILKEY,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge
14 Cosme D. Ripol
15 Farmington, NM
16 for Appellee
17 H. Steven Murphy
18 Farmington, NM
19 for Appellant
20 MEMORANDUM OPINION
21 KENNEDY, Judge.
22 Defendant Kim Gilkey seeks to appeal from an order granting judgment to
23 Plaintiff. We issued a notice of proposed summary disposition, proposing to dismiss
1 the appeal for want of a final order. Defendant has filed a memorandum in
2 opposition, and Plaintiff has also filed a responsive document. After due
3 consideration, we remain unpersuaded that this matter is properly before us. We
4 therefore dismiss.
5 As we explained in the notice of proposed summary disposition, the right to
6 appeal is generally restricted to final judgments and decisions. See NMSA 1978,
7 § 39-3-2 (1966); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234-40, 824 P.2d
8 1033, 1036-42 (1992). Whether an order is a final, such that appeal is statutorily
9 authorized, is a jurisdictional question that this Court is required to raise on its own
10 motion. Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.
11 Below, Plaintiff filed a motion for reconsideration thirteen days after the
12 judgment was entered. [RP 62, 64-65] The record contains nothing to indicate that the
13 motion has been considered on its merits or expressly ruled upon, as required. See
14 Rule 5-121 NMRA, Comm. Comment. to 2009 amendment (explaining that the 2009
15 amendment is “intended to make clear that the automatic denial provision in [NMSA
16 1978,] Section 39-1-1 [(1917)], has no application in cases subject to the Rules of
17 Criminal Procedure for the District Courts,” and observing that the courts are required
18 to promptly enter judgments or orders expressly disposing of such motions).
2
1 The Supreme Court has recently explained that, “when a party makes a motion
2 [pursuant to Section 39-1-1] challenging the district court’s determination of the rights
3 of the parties [the determination] is not final, and the time for filing an appeal does not
4 begin to run, until the district court disposes of the motion.” Grygorwicz v. Trujillo,
5 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865. Insofar as the district court has
6 yet to rule on Plaintiff’s motion for reconsideration, we conclude that the underlying
7 order is not final, and the time for filing an appeal has not begun to run. Id.8 In his memorandum in opposition, Defendant contends that Plaintiff’s motion
9 for reconsideration was untimely pursuant to Rule 1-059(E) NMRA, and as such, the
10 district court’s failure to act should have no impact on his right to an immediate
11 appeal. [MIO 1] However, Defendant’s argument is in conflict with settled
12 authority.
13 Because a motion for reconsideration filed within ten days of the final
14 judgment is deemed to be a Rule 1-059(E) motion, a motion filed outside
15 of the ten-day period should logically be deemed to have been filed
16 under Section 39-1-1, which only requires motions to be filed within
17 thirty days of the final judgment.
18 Chapel v. Nevitt, 2009-NMCA-017, ¶ 18, 145 N.M. 674, 203 P.3d 889. Accordingly,
19 insofar as Plaintiff’s motion for reconsideration was filed outside the ten-day period,
3
1 it should be deemed to have been filed pursuant to Section 39-1-1. Id. And because
2 the motion was filed well within the applicable thirty-day period, it was timely. Id.3 CONCLUSION
4 Accordingly, for the reasons stated above and in our notice of proposed
5 summary disposition, this appeal is dismissed.
6 IT IS SO ORDERED.
7
8 RODERICK T. KENNEDY, Judge
9 WE CONCUR:
10
11 MICHAEL D. BUSTAMANTE, Judge
12
13 MICHAEL E. VIGIL, Judge
4