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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 O’BRIEN & ASSOCIATES, INC.,

8 Plaintiff-Appellee,

9 v. NO. 30,875

10 CARL KELLEY CONSTRUCTION, LTD. CO.,

11 a New Mexico limited liability company, 

12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY

14 Edmund H. Kase III, District Judge

15 Atkinson, Thal & Baker, P.C.

16 Douglas A. Baker

17 Justin D. Rodriguez

18 Albuquerque, NM

19 for Appellee

20 J. Robert Beauvais, P.A.

21 J. Robert Beauvais

22 Ruidoso, NM

23 for Appellant
2

1 MEMORANDUM OPINION

2 KENNEDY, Judge.

3 This Court issued a calendar notice proposing to dismiss Defendant’s appeal for

4 failure to file a timely notice of appeal. [Ct. App. File, CN1] Defendant has filed a

5 memorandum in opposition that we have duly considered. [Ct. App. File, CN1]

6 Unpersuaded, however, we dismiss the appeal. 

7 I. DISCUSSION

8 In the first calendar notice, we proposed to dismiss the appeal for failure to file

9 a timely notice of appeal based on the following facts and legal analysis.

10 Defendant appeals from the final judgment entered on September 16, 2010.

11 [RP 6179] The notice of appeal was filed on November 3, 2010, more than thirty days

12 later. [RP 6298] On September 7, 2010, prior to the filing of the final judgment on

13 September 16, 2010, Defendant filed a motion for reconsideration). [RP 6173]

14 Because the motion was filed before the final judgment, it was necessarily denied by

15 the subsequent entry of the final judgment. See Stinson v. Berry, 1997-NMCA-076,

16 ¶ 8, 123 N.M. 482, 943 P.2d 129 (stating that “[w]here there has been no formal

17 expression concerning a motion, a ruling can be implied by entry of final judgment

18 or by entry of an order inconsistent with the granting of the relief sought”). 
3

1 Once the final judgment was entered on September 16, 2010, all matters were

2 resolved. Therefore, we conclude that Defendant’s filing of the November 3, 2010

3 notice of appeal more than thirty days after the September 16, 2010 final judgment is

4 untimely, and this Court lacks jurisdiction to review the merits of this appeal. 

5 Defendant’s memorandum objects to dismissal, arguing that this Court has

6 created an “irrebuttable presumption” that the trial court’s final judgment implicitly

7 denied Defendant’s Rule 1-059(E) NMRA motion to reconsider. [MIO 1] Defendant

8 points out that a Rule 1-059(B) motion is timely filed within ten days “after the entry

9 of judgment[,]” arguing that this rule sets the “outside time” for the motion to be filed,

10 not the earliest time the motion can be filed. [MIO 2] Defendant also points out that

11 the “decision of the court” was actually filed on May 13, 2010, including findings and

12 conclusions that would be incorporated into a final judgment. [MIO 3] Defendant

13 argues that there is no legal or procedural basis to treat motions to reconsider filed

14 after the decision is entered and before the final judgment is filed any differently than

15 a motion for a new trial filed after the judgment. [MIO 5] Finally, Defendant argues

16 that it is constitutionally entitled to one appeal as of right and that this Court’s

17 proposed ruling deprives it of this right. We are not persuaded.

18 Defendant acknowledges that the May 13, 2010 district court decision in this

19 case clearly contemplates the filing of a final judgment. [MIO 3] As such, until the
4

1 final, written judgment was filed on September 16, 2010, none of the time periods

2 applicable to a party’s filing of a post-judgment motion begin to run. Similarly, the

3 appellate rules allow that certain post-judgment motions toll the time for filing a

4 notice of appeal. See Rule 12-201(D) NMRA. Amendments in 2006 to the Rules of

5 Civil Procedure regarding post-judgment motions have done away with the prior

6 “deemed denied” provisions relating to post-judgment motions filed pursuant to Rules

7 1-054.1 NMRA, 1-052(D) NMRA, 1-059(D), and NMSA 1978, Section 39-1-1

8 (1953). See, e.g., Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co.,

9 2007-NMSC-051, ¶¶ 10-13, 142 N.M. 527, 168 P.3d 99 (discussing that the rules of

10 civil procedure, regarding post-judgment motions, were amended in 2006 and that

11 “[b]ecause there no longer is an automatic denial of post-judgment motions, the time

12 for filing notices of appeal will run ‘from the entry of an order expressly disposing of

13 the motion’”); see also Rule 12-201(D) (stating that the time for filing of notice of

14 appeal runs from date of “the entry of an order expressly disposing of the motion”

15 when there is no provision of automatic denial of a motion under applicable statute or

16 a rule of court). 

17 Albuquerque Redi-Mix clarifies that a Rule 1-059(E) motion, by its express

18 language, was never subject to the deemed denied provisions. Id. ¶¶ 11-13.

19 Albuquerque Redi-Mix also provides that a Rule 1-059(E) motion is a post-judgment
5

1 motion and that the timeliness deadlines regarding filing it and filing a notice of

2 appeal run from the filing of the final, appealable judgment. Id. ¶ 7 (stating that “a

3 motion for reconsideration filed within ten days of judgment is a motion to alter or

4 amend a judgment under Rule 1-059(E)”). Thus, to the extent Defendant considers

5 that the Rule 1-059(E) motion was deemed denied thirty days after its filing on

6 October 7, 2010 and, therefore, that the notice of appeal was timely filed within thirty

7 days of October 7, 2010, on November 3, 2010, we disagree. The concept of

8 “deemed denied” and the recent case law regarding it relates to post-judgment motions

9 not, as in this case, a pre-judgment motion that is filed prior to the final judgment and,

10 therefore, necessarily denied by it. See, e.g., Rule 12-201(D); cf. Grygorwicz v.

11 Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (holding that if a party

12 makes a post-judgment motion directed at the final judgment, the final judgment is

13 rendered non-final, and the time for filing an appeal does not begin to run until the

14 district court expressly disposes of the motion). 

15 In this case, Defendant filed a pre-judgment motion on September 7, 2010,

16 asking the district court to reconsider its May 13, 2010 decision. The final judgment

17 entered thereafter, on September 16, 2010, is inconsistent with the relief sought in

18 Defendant’s motion. As such, the final judgment denied the motion. Stinson,

19 1997-NMCA-076, ¶ 8. Defendant’s notice of appeal filed on November 3, 2010, more
6

1 than thirty days after September 16, 2010, is untimely, and this Court lacks

2 jurisdiction over the appeal. See, e.g., State v. Lucero, 2001-NMSC-024, ¶ 9, 130

3 N.M. 676, 30 P.3d 365 (stating that “there is no corresponding constitutional right to

4 a motion for new trial. Like a motion to modify a sentence, a motion for new trial is

5 governed exclusively by our procedural rules, and it is therefore distinguishable from

6 a notice of appeal. . . . It is incumbent upon the parties to strictly adhere to our clearly

7 articulated rules of procedure. Procedural rules do nothing if they do not establish

8 uniformity upon which all participants in the legal system can rely”) (alteration

9 omitted) (internal quotation marks omitted) (quoting Trujillo v. Serrano, 117 N.M.

10 273, 278, 871 P.2d 369, 374 (1994)). 

11 II. CONCLUSION 

12 We dismiss the appeal for failure to file a timely notice of appeal. 

13 IT IS SO ORDERED. 

14 _______________________________

15 RODERICK T. KENNEDY, Judge
7

1 WE CONCUR:

2 ___________________________

3 JAMES J. WECHSLER, Judge

4 ___________________________

5 LINDA M. VANZI, Judge