This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 JOHNNIE JOHNSON, 7 Plaintiff-Appellee, 8

v. NO. 30,025 9 SUN PRODUCTS, INC. and GUY 10 COURTNEY, 11 Defendants-Appellants. 12 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 13 Henry R. Quintero, District Judge 14 Frederick H. Sherman 15 Deming, NM 16 for Appellee 17 John D. Wheeler & Associates, P.C. 18 John A. Frase 19 Alamogordo, NM 20 for Appellants 21 MEMORANDUM OPINION 22 BUSTAMANTE, Judge. 23 Defendants appeal a final judgment entere d in favor of Plaintiff and awarding 242 damages, costs, and interest. [RP 752] We proposed to di smiss in a notice of 1 proposed summary disposition because the district court had yet to rule on 2 Defendants’ motion to reconsider. De fendants filed an untimely memorandum in 3 opposition and a copy of a district court or der filed February 1, 2010. We are not 4 persuaded that Defendants’ appeal is suffi ciently final and thus dismiss the appeal. 5 In our notice, we observed that Defendants filed a notice of appeal from the 6 underlying September 28, 2009, judgment on October 28, 2009. [RP 781] However, 7 they also filed a motion to reconsider the final judgment on October 19, 2009, [RP 8 772] and Plaintiff filed a response to th e motion to reconsider on October 29, 2009. 9 [RP 783] 10 Defendants filed their docketing statement on November 30, 2009, and at that 11 point, the district court had not yet ruled on Defe ndants’ motion to reconsider. The 12 district court is required to rule on Defendants’ motion and it is not deemed denied by 13 the passage of time. See Rule 1-059(E) NMRA; Albuquerque Redi-Mix, Inc. v. 14 Scottsdale Ins. Co. , 2007-NMSC-051, ¶ 15, 142 N.M. 527, 168 P.3d 99. In the 15 absence of an order denying their motion, we proposed to dismiss Defendants’ appeal 16 as premature. See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶¶ 4-6, 147 17 N.M. 303, 222 P.3d 675 (dismissing under similar circumstances). 18 Review of Defendants’ memorandum in opposition and the attachment thereto 193 indicates that Defendants filed an “emergen cy motion to say enforcement of judgment 1 pending resolution of motion to reconsider” which was denied by the district court on 2 February 1, 2010. In the order denying De fendants’ emergency motion, the district 3 court also denied Defendants’ motion to r econsider. However, given that Defendants’ 4 appeal was pending at the tim e the order was entered, th e district court was without 5 jurisdiction to deny the motion for reconsideration. See generally Murken v. Solv-Ex 6 Corp. , 2006-NMCA-064, ¶¶ 9-11, 139 N.M. 625, 136 P.3d 1035 (stating the well7 recognized rule that once an appeal is pe nding in this Court, the district court is 8 divested of jurisdiction except to determin e matters that are collateral to the issues 9 involved in the appeal). 10 Therefore, we dismiss Defe ndants’ appeal because it is not sufficiently final for 11 purposes of appeal and the order denying th eir motion for reconsideration is of no 12 effect because the district court did not have jurisdiction at the time it entered that 13 order. 14 IT IS SO ORDERED. 15

16 MICHAEL D. BUSTAMANTE, Judge 17 WE CONCUR: 18 19 MICHAEL E. VIGIL, Judge 204 1 LINDA M. VANZI, Judge 2