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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 DEBRA SMITH,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 34,433

 5 MARK W. MOORE and
 6 SUSAN M. MOORE,
 7 Husband and Wife,

 8          Defendants-Appellees.

 9 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
10 Mark T. Sanchez, District Judge

11 Eric D. Dixon
12 Portales, NM

13 for Appellant

14 McCormick, Caraway, Tabor & Byers, LLP
15 Jay Francis
16 Carlsbad, NM

17 for Appellees

18                                 MEMORANDUM OPINION

19 VIGIL, Judge.
 1   {1}   Plaintiff Debra Smith filed a docketing statement, appealing from the district

 2 court’s final order, entered on December 10, 2014. [RP 295; DS 2] This Court issued

 3 a calendar notice, proposing to summarily dismiss the appeal for lack of a final order.

 4 [CN 1, 4] Plaintiff timely filed a memorandum in opposition (MIO). We have given

 5 due consideration to the memorandum in opposition, and, remaining unpersuaded, we

 6 dismiss the appeal for lack of a final order.

 7   {2}   In this Court’s notice of proposed disposition, we explained that, because there

 8 was a pending motion to reconsider, the underlying proceedings are deemed non-final,

 9 and Plaintiff’s appeal is premature. [CN 2–3] We therefore proposed to dismiss for

10 lack of a final order. [CN 4] We note that in our notice of proposed disposition, we

11 stated that the motion to reconsider was filed by Plaintiff when, in fact, it was filed by

12 Defendants. [See CN 2–3; RP 297] Nevertheless, the identity of the movant does not

13 change our conclusion.

14   {3}   In her memorandum in opposition, Plaintiff argues that the motion to reconsider

15 was, in fact, a motion for attorney fees, untimely filed (as a motion for attorney fees).

16 [MIO 1–2] As arguments regarding attorney fees can proceed simultaneously with an

17 appeal, see Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 41, 113 N.M.




                                               2
 1 231, 824 P.2d 1033 (holding that the filing of a notice of appeal does not deprive the

 2 district       court      of    “jurisdiction          to     rule     on     matters

 3 “collateral to” or “separate from” the judgment” (internal quotation marks and citation

 4 omitted)), Plaintiff argues that the motion does not render the final order non-final for

 5 purposes of appeal. [MIO 2]

 6   {4}   However, as indicated above, it was not Plaintiff who filed the motion to

 7 reconsider, so her proposed re-characterization of the motion as simply a motion for

 8 attorney fees, to suit Plaintiff’s needs on appeal, is not persuasive. Additionally, the

 9 actual title of the motion is “motion to reconsider,” and the motion requests that the

10 case be reopened to allow in new evidence that was discovered after the hearing, so

11 we are unpersuaded that the motion does not seek a reconsideration by the district

12 court of its final order. [RP 297-98] Further, although the motion does ask for attorney

13 fees, it requests such fees in light of the new evidence seemingly as part of an altered

14 damages request or as a sanction or punishment and, as such, could impact the final

15 order if greater damages are awarded in light of the purported malicious and

16 fraudulent prosecution of the case, in the form of attorney fees. [See id.] See Exec.

17 Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, ¶ 8, 125 N.M. 78, 957 P.2d




                                               3
 1 63 (stating that there is a distinction between “Kelly Inn-type” attorney fees and

 2 attorney “fees that are substantively part of compensatory damages necessary to

 3 remedy the plaintiff’s injury” and reiterating that cases involving attorney fees as an

 4 aspect of compensatory damages are appropriately dismissed as premature for lack of

 5 jurisdiction (internal quotation marks and citation omitted). As such, we conclude that

 6 the district court has retained jurisdiction to address such post-judgment motion,

 7 including determining whether the motion to reconsider does, in fact, impact the final

 8 judgment previously entered by the district court. See NMSA 1978, § 39-1-1 (1917)

 9 (stating that the district court retains jurisdiction to address post-judgment motions

10 directed at the final order or judgment); see also Grygorwicz v. Trujillo, 2009-NMSC-

11 009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that “if a party makes a

12 post-judgment motion directed at the final judgment pursuant to Section 39-1-1, the

13 time for filing an appeal does not begin to run until the district court enters an express

14 disposition on that motion”); Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122,

15 ¶ 6, 147 N.M. 303, 222 P.3d 675 (explaining that, when a “motion that challenges the

16 district court’s determination of the rights of the parties[] is pending in the district

17 court, the judgment or order entered by the district court remains non-final . . . and

18 [the] appeal is premature” (citation omitted)). Because the district court has not yet

19 ruled on Defendant’s motion to reconsider, the appeal is premature.


                                               4
1   {5}   Thus, for the reasons stated in this Opinion and set forth in this Court’s notice

2 of proposed disposition, we dismiss the appeal for lack of a final order.

3   {6}   IT IS SO ORDERED.


4                                          __________________________________
5                                          MICHAEL E. VIGIL, Judge

6 WE CONCUR:



7 ___________________________________
8 CYNTHIA A. FRY, Judge



 9 ___________________________________
10 TIMOTHY L. GARCIA, Judge




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