1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see

2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please

3 also note that this electronic memorandum opinion may contain computer-generated errors or other

4 deviations from the official paper version filed by the Court of Appeals and does not include the

5 filing date.

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

7 JOHNNIE JOHNSON, 

8 Plaintiff-Appellee,

9 v. NO. 30,025

10 SUN PRODUCTS, INC. and GUY

11 COURTNEY, 

12 Defendants-Appellants.

13 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY

14 Henry R. Quintero, District Judge

15 Frederick H. Sherman

16 Deming, NM

17 for Appellee

18 John D. Wheeler & Associates, P.C.

19 John A. Frase

20 Alamogordo, NM 

21 for Appellants

22 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.

24 Defendants appeal a final judgment entered in favor of Plaintiff and awarding
2

1 damages, costs, and interest. [RP 752] We proposed to dismiss in a notice of

2 proposed summary disposition because the district court had yet to rule on

3 Defendants’ motion to reconsider. Defendants filed an untimely memorandum in

4 opposition and a copy of a district court order filed February 1, 2010. We are not

5 persuaded that Defendants’ appeal is sufficiently final and thus dismiss the appeal.

6 In our notice, we observed that Defendants filed a notice of appeal from the

7 underlying September 28, 2009, judgment on October 28, 2009. [RP 781] However,

8 they also filed a motion to reconsider the final judgment on October 19, 2009, [RP

9 772] and Plaintiff filed a response to the motion to reconsider on October 29, 2009.

10 [RP 783]

11 Defendants filed their docketing statement on November 30, 2009, and at that

12 point, the district court had not yet ruled on Defendants’ motion to reconsider. The

13 district court is required to rule on Defendants’ motion and it is not deemed denied by

14 the passage of time. See Rule 1-059(E) NMRA; Albuquerque Redi-Mix, Inc. v.

15 Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15, 142 N.M. 527, 168 P.3d 99. In the

16 absence of an order denying their motion, we proposed to dismiss Defendants’ appeal

17 as premature. See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶¶ 4-6, 147

18 N.M. 303, 222 P.3d 675 (dismissing under similar circumstances).

19 Review of Defendants’ memorandum in opposition and the attachment thereto
3

1 indicates that Defendants filed an “emergency motion to say enforcement of judgment

2 pending resolution of motion to reconsider” which was denied by the district court on

3 February 1, 2010. In the order denying Defendants’ emergency motion, the district

4 court also denied Defendants’ motion to reconsider. However, given that Defendants’

5 appeal was pending at the time the order was entered, the district court was without

6 jurisdiction to deny the motion for reconsideration. See generally Murken v. Solv-Ex

7 Corp., 2006-NMCA-064, ¶¶ 9-11, 139 N.M. 625, 136 P.3d 1035 (stating the well8 recognized rule that once an appeal is pending in this Court, the district court is

9 divested of jurisdiction except to determine matters that are collateral to the issues

10 involved in the appeal).

11 Therefore, we dismiss Defendants’ appeal because it is not sufficiently final for

12 purposes of appeal and the order denying their motion for reconsideration is of no

13 effect because the district court did not have jurisdiction at the time it entered that

14 order.

15 IT IS SO ORDERED.

16 

17 MICHAEL D. BUSTAMANTE, Judge

18 WE CONCUR:

19 

20 MICHAEL E. VIGIL, Judge
4

1 

2 LINDA M. VANZI, Judge