1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO JACK G. SPENGLER, 8 Petitioner-Appellant, v. NO. 28,927 CYNTHIA M. SPENGLER, 11 Respondent-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Jerry H. Ritter, Jr., District Judge Jack G. Spengler Lynchburg, VA Pro Se Appellant Roger E. Yarbro Cloudcroft, NM for Appellee 20 MEMORANDUM OPINION KENNEDY, Judge.

22 In this case, the final decree was entered on June 10, 2008. [RP 1365] On June 18, 2008, Petitioner filed a motion for a new trial pursuant to Rule 1-059 NMRA. [RP 1383] Petitioner’s motion for a new trial was filed within ten days of the judgment and it asked the court to reconsider various conclusions of a law. Such a motion is deemed a Rule 1-059(E) motion to alter or amend the judgment. See Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-051, ¶¶ 7-10, 142 N.M. 527, 168 5 P.3d 99 (stating that a motion challenging a judgment, filed within ten days of the judgment, should be considered a Rule 1-059(E) motion to alter or amend a judgment). On August 19, 2008, believing that the Rule 1-059(E) motion was deemed denied by operation of law after thirty days, Petitioner filed a Notice of Appeal. [DS 1] The district court has not yet ruled on Petitioner’s motion.

10 We issued a calendar notice proposing to dismiss the appeal based on the lack of a final order. See Dickens v. LaurelHealth Care LLC, No. 29,239, slip op. at ¶ 4, 7 (N.M. Ct. App. Jun. 18, 2009) (holding that the filing of a Rule 1-059(E) motion renders a judgment non-final for purposes of appeal and dismissing the appeal for lack of a final order). Petitioner has responded to our calendar notice and indicated that he does not oppose dismissal of the appeal so that the district court can enter a final order.

17 For these reasons, we dismiss the appeal.

18 IT IS SO ORDERED.

1 ___________________________________ 2 RODERICK T. KENNEDY, Judge

3 WE CONCUR:

4 ____________________________ CYNTHIA A. FRY, Chief Judge

6 ____________________________ CELIA FOY CASTILLO, Judge