Palacios v. Palacios ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 REFUGIA PALACIOS,
3 Plaintiff-Appellee,
4 v. No. 34,967
5 JOSE LUIS PALACIOS,
6 Defendant-Appellant,
7 and
8 LINDAS INVERSIONES, INC., PEDRO
9 PALACIOS, WILLIAM MARTINEZ
10 d/b/a ROADRUNNER CONSTRUCTION,
11 and LSF8 MASTER PARTICIPATION TRUST,
12 Defendants.
13 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
14 Darren M. Kugler, District Judge
15 Samuel I. Kane
16 Las Cruces, NM
17 for Appellee
18 Luis Palacios
19 Council Bluffs, IA
1 Pro Se Appellant
2 MEMORANDUM OPINION
3 SUTIN, Judge.
4 {1} Appellant, Jose Luis Palacios, appeals from the district court’s order
5 (1) denying his motion for entry of special appearance pro se to contest jurisdiction,
6 which sought dismissal for lack of jurisdiction; and (2) requiring Appellant to file an
7 answer. This Court issued a calendar notice proposing to dismiss Appellant’s appeal
8 for lack of a final order. Specifically, we noted that the district court’s denial of
9 Appellant’s motion was equivalent to the denial of a motion to dismiss, and our case
10 law clearly establishes that the denial of a motion to dismiss is not a final, appealable
11 order. See King v. Allstate Ins. Co., 2007-NMCA-044, ¶ 8, 141 N.M. 612, 159 P.3d
12 261 (observing that the denial of a motion to dismiss is not a final, appealable order);
13 Baca v. Atchison, Topeka & Santa Fe Ry., 1996-NMCA-054, ¶ 7, 121 N.M. 734, 918
14 P.2d 13 (“[I]f a district court denies a motion to dismiss a complaint for lack of subject
15 matter jurisdiction or a motion to dismiss a party for lack of jurisdiction over the
16 person, we have not recognized a right to appeal the denial. The movant can challenge
17 the denial of the motion only on appeal after final judgment has been entered, unless
18 an appellate court exercises its discretion to review the matter on interlocutory appeal,
19 or in a writ proceeding[.]” (citation omitted)); Gutierrez v. Gutierrez, 1993-NMCA-
2
1 103, ¶ 3, 116 N.M. 86, 860 P.2d 216 (dismissing an appeal from an order denying a
2 motion to dismiss for lack of jurisdiction on grounds that such an order is not final and
3 appealable as a matter of right).
4 {2} In response, Appellant asserts that the district court’s order practically disposes
5 of the merits of the action as to Appellant and affects his substantial rights. [MIO
6 unpaginated 1] Appellant directs this Court to an allegedly related case decided by the
7 district court that Appellant claims affected his rights of ownership in a home.
8 Appellant asserts that by requiring him to answer the complaint, this Court will
9 require him to waive his challenge to personal jurisdiction and that we will be
10 acquiescing in the district court’s decision to deprive Appellant of his house. [MIO
11 unpaginated 2-3]
12 {3} While this Court understands Appellant’s desire to have this issue reviewed
13 immediately, this Court has no authority to act—even with respect to a ruling that
14 personal jurisdiction exists—where no final order has been entered and no
15 interlocutory appeal has been certified by the district court. See, e.g., Curry v. Great
16 N.W. Ins. Co., 2014-NMCA-031, ¶ 7, 320 P.3d 482 (appealing a district court’s denial
17 of a motion to dismiss for lack of personal jurisdiction to this Court via an application
18 for interlocutory appeal); Alto Eldorado P’ship v. Amrep Corp., 2005-NMCA-131,
19 ¶ 2, 138 N.M. 607, 124 P.3d 585.
3
1 {4} For these reasons, we must dismiss.
2 {5} IT IS SO ORDERED.
3 __________________________________
4 JONATHAN B. SUTIN, Judge
5 WE CONCUR:
6 _______________________________
7 MICHAEL E. VIGIL, Chief Judge
8 _______________________________
9 STEPHEN G. FRENCH, Judge
4