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

 2   CARLOS L. DIAZ, Personal Capacity,
 3   and for the ESTATE OF THE LATE
 4   AND PERSONABLE EDMUNDO B.
 5   DIAZ,

 6          Plaintiff-Appellant,

 7 v.                                                                            No. A-1-CA-37001

 8   LAW OFFICES OF BARELA, ELIAS
 9   BARELA, NANCY E. BARELA, JOSE
10   A. DIAZ, All Liable Under Jointly,
11   Separately, Individual, Personal
12   Capacities,

13          Defendants-Appellees.

14 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
15 Louis E. De Pauli, Jr., District Judge

16 Carlos Diaz
17 Albuquerque, NM

18 Pro Se Appellant

19 Elias Barela
20 Los Lunas, NM

21 for Appellees

22                                 MEMORANDUM OPINION

23 HANISEE, Judge.
 1   {1}   Plaintiff, a self-represented litigant, has sought to appeal from the district

 2 court’s order dismissing his complaint with prejudice. We issued a notice of proposed

 3 summary disposition, proposing to dismiss for lack of a final, appealable order.

 4 Plaintiff has responded to our notice with a memorandum in support. We dismiss.

 5   {2}   As explained in our notice, Plaintiff sought to appeal from the district court’s

 6 order dismissing his complaint with prejudice, which was filed on December 29, 2017.

 7 [RP 444-46, 455-57] Plaintiff timely filed a motion to reconsider on January 24, 2018,

 8 under NMSA 1978, Section 39-1-1 (1917), and Rule 12-201(D)(1)(c) NMRA. [RP

 9 447-54] This motion challenges the substance of the district court order and requests

10 a hearing on the merits; and therefore constitutes a timely post-judgment motion that

11 suspends the finality of the district court’s order and extends the time for filing a

12 notice of appeal until after the district court has entered “an order expressly disposing

13 of the last such remaining motion.” Rule 12-201(D)(1); see also Grygorwicz v.

14 Trujillo, 2009-NMSC-009, ¶¶ 8-9, 145 N.M. 650, 203 P.3d 865 (construing the

15 defendant’s “claim of exemptions on execution as a motion challenging the

16 foreclosure decree[,] pursuant to Section 39-1-1” and holding that where a post-

17 judgment motion challenges the merits of the trial court’s determination of the rights

18 or liabilities of the parties in the final order, the order is no longer final). The district

19 court has not yet ruled on Defendants’ motion.



                                                 2
 1   {3}   We observe that Plaintiff also filed a notice of appeal on January 24, 2018,

 2 along with his motion to reconsider the district court’s order of dismissal. [RP 447-

 3 454; 455-57] Under these circumstances, the notice of appeal is deemed premature

 4 and does not divest the district court of its jurisdiction to rule on Plaintiff’s motion to

 5 reconsider, which it must do in an express manner before Plaintiff may appeal. See

 6 Rule 12-201(D)(4).

 7   {4}   Based on the foregoing, we dismiss for lack of a final, appealable order.

 8   {5}   IT IS SO ORDERED.


 9
10                                           J. MILES HANISEE, Judge

11 WE CONCUR:


12
13 HENRY M. BOHNHOFF, Judge


14
15 EMIL J. KIEHNE, Judge




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