 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 EARL JONES,

 8          Plaintiff-Appellant,

 9 v.                                                                                    No. 30,333

10 HEIDEL, SAMBERSON, NEWELL,
11 COX & MCMAHON,

12          Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
14 Thomas A. Rutledge, District Judge

15 Earl Jones,
16 Hobbs, NM

17 Pro Se Appellant

18 Butt, Thornton & Baehr
19 Alfred L. Green, Jr.
20 Albuquerque, NM

21 for Appellee


22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        In this legal malpractice case, Plaintiff Earl Jones appeals from the order of

 2 dismissal with prejudice, granting Defendant Heidel Law Firm summary judgment

 3 and dismissing the case with prejudice. [RP 120] Summary judgment was granted

 4 on the basis that Plaintiff’s claim for legal malpractice was filed outside the statute of

 5 limitations.

 6        The calendar notice proposed to dismiss the appeal for lack of a final order. [Ct.

 7 App. File] Plaintiff has filed a memorandum in opposition that we have duly

 8 considered. [MIO] Unpersuaded, however, we dismiss.

 9 DISCUSSION

10        “Whether an order is a ‘final order’ within the meaning of the statute is a

11 jurisdictional question that an appellate court is required to raise on its own motion.”

12 Khalsa v. Levinson, 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844.

13 “Determining whether [an] appeal was timely involves the interpretation of court

14 rules, which we review de novo.” Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 7, 145

15 N.M. 650, 203 P.3d 865.

16        The order of dismissal was filed on January 19, 2010. [RP 120] Plaintiff’s

17 notice of appeal was filed on March 2, 2010. [RP 153] While Plaintiff filed the notice

18 of appeal more than thirty days after the order of dismissal (see Rule 12-201(A)(2)

19 NMRA), on January 19, 2010, Plaintiff filed a timely post-judgment motion entitled


                                               2
 1 “motion for reversal to court’s orders of dismissal with prejudice on Defendant’s

 2 motion for summary judgment and Defendant’s memorandum in support of summary

 3 judgment” (Plaintiff’s motion). [RP 115-19] Pursuant to Rule 12-201(D), Plaintiff’s

 4 motion extends the time for filing the notice of appeal until thirty days after the post-

 5 judgment motion has been ruled upon.

 6        Although the order of dismissal was filed on the same day as Plaintiff’s motion

 7 and approximately one half hour thereafter, the order of dismissal cannot be

 8 considered to be a ruling on Plaintiff’s motion. The order of dismissal refers only to

 9 the hearing held on January 7, 2010, on Defendant’s motion for summary judgment,

10 and it only grants Defendant’s motion for summary judgment. [RP 120] Moreover,

11 on February 3, 2010, Defendant filed a response in opposition to Plaintiff’s motion.

12 [RP 125] Thus, there is no indication in the record proper that the district court has

13 ruled on Plaintiff’s motion.

14        The district court was required to rule on the post-judgment motion, and it was

15 not deemed denied by the passage of time. See Albuquerque Redi-Mix, Inc. v.

16 Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15, 142 N.M. 527, 168 P.3d 99 (holding that

17 changes to the Rules of Civil Procedure eliminated the automatic denial of post-

18 judgment motions). The fact that the district court has not yet ruled on Plaintiff’s

19 motion renders the order of dismissal non-final and Plaintiff’s appeal premature. See


                                               3
 1 Grygorwicz, 2009-NMSC-009, ¶ 8 (recognizing in the context of a foreclosure

 2 judgment that when a party makes a motion challenging the judgment, the judgment

 3 is not final until the district court rules on the motion); see also Rule 12-201(D)

 4 (providing that if a party files a timely post-judgment motion as set forth therein, the

 5 time for filing a notice of appeal begins to run from entry of an order disposing of the

 6 motion).

 7        Thus, this Court’s calendar notice proposed to dismiss the appeal. Plaintiff’s

 8 memorandum does not indicate that the district court has ruled on the motion for

 9 reconsideration, but urges this Court to consider the merits of his appeal any way.

10 [MIO 2-3] This Court does not have jurisdiction to do so.          See, e.g., Collier v.

11 Pennington, 2003-NMCA-064, ¶ 7, 133 N.M. 728, 69 P.3d 238 (discussing that this

12 Court lacks jurisdiction to review a non-final order).

13 CONCLUSION

14        Accordingly, we dismiss Plaintiff’s appeal.

15        IT IS SO ORDERED.


16                                         __________________________________
17                                         JONATHAN B. SUTIN, Judge

18 WE CONCUR:


19 _______________________________

                                              4
1 CELIA FOY CASTILLO, Judge


2 _______________________________
3 RODERICK T. KENNEDY, Judge




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