Court of Appeals of New Mexico

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US BANK NATIONAL ASSOCIATION,
Plaintiff/Counterdefendant-Appellee,
v.
PERRY A. KESLER,
Defendant/Counterclaimant-Appellant,
and
and if married, JANE DOE KESLER
(true name unknown), his spouse,
TAXATION AND REVENUE
DEPARTMENT OF THE STATE OF
NEW MEXICO; and UNITED STATES
OF AMERICA (IRS),
Defendants.

NO. 34,587

COURT OF APPEALS OF NEW MEXICO

July 16, 2015

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY, Abigail Aragon, District Judge

COUNSEL

Little, Bradley & Nesbitt, P.A., Sandra A. Brown, Albuquerque, NM, for Appellee

Perry A. Kesler, Rowe, NM, Pro Se Appellant

JUDGES

MICHAEL E. VIGIL, Chief Judge. WE CONCUR: JAMES J. WECHSLER, Judge, M. MONICA ZAMORA, Judge

AUTHOR: MICHAEL E. VIGIL

MEMORANDUM OPINION

VIGIL, Chief Judge.

{1}       Defendant Perry Kesler (Defendant) filed a docketing statement, appealing from the district court’s order granting Plaintiff’s motion for summary judgment and dismissing Defendant’s counterclaims with prejudice, entered on March 3, 2015. [RP Vol. 5/484; DS 2] In this Court’s notice of proposed disposition, we proposed to dismiss the appeal for lack of a final order. [CN 1, 4] Defendant filed a memorandum in opposition and motion to amend his docketing statement. Defendant also filed a notice of entry of the district court’s order along with a copy of the order denying Defendant’s motion to reconsider, which we have duly considered. Remaining unpersuaded, we dismiss the appeal for lack of a final order.

{2}       As we stated in our notice of proposed disposition, Defendant filed a timely motion to reconsider and, accordingly, the district court was not divested of its jurisdiction. [CN 3–4] See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222 P.3d 675 (explaining that, when a “motion that challenges the district court’s determination of the rights of the parties[ ] is pending in the district court, the judgment or order entered by the district court remains non-final. . . . and [the] appeal is premature” (citation omitted)); Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that “if a party makes a post-judgment motion directed at the final judgment pursuant to Section 39-1-1, the time for filing an appeal does not begin to run until the district court enters an express disposition on that motion”); State v. Romero, 2014-NMCA-063, ¶ 5, 327 P.3d 525 (“[T]he finality of a judgment may be suspended by the timely filing of a motion for reconsideration.”). A district court retains jurisdiction to enter a final judgment on a motion to reconsider. See Rule 12-201(D)(4) NMRA. We will dismiss an appeal where no final order has been entered. State v. Griego, 2004-NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d 1192 (dismissing for lack of jurisdiction when no final judgment had been entered); see also Rule 12-201(D) (addressing the effect of post-trial or post-judgment motions as extending the time for appeal until entry of a final order expressly disposing of the motions when there is no provision of automatic denial of motion under applicable statute or rule).

{3}       The district court did not deny Plaintiff’s motion to reconsider on its merits; rather, the district court denied the motion on the court’s mistaken belief that it was divested of jurisdiction, stating it “finds that a good cause for this motion does not exist as the matter is currently stayed pending decision by the Court of Appeals[.]” Thus, because the district court has not yet ruled on the merits of Defendant’s motion, the underlying proceedings are deemed non-final, and Defendant’s appeal is premature. See Romero, 2014-NMCA-063, ¶ 5 (“[T]he finality of a judgment may be suspended by the timely filing of a motion for reconsideration.”); Rule 12-201(D)(4) (stating that, until a motion for reconsideration is disposed of, the district court is not divested of its jurisdiction).

{4}       We note that Defendant is free to appeal from the final order of the district court, once such order on the merits is entered. See Rule 12-201.

{5}       Therefore, for the reasons stated in our notice of proposed disposition and herein, the appeal is dismissed for lack of a final order.

{6}       IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

M. MONICA ZAMORA, Judge