Cedrins v. City of Albuquerque

• Court: New Mexico Court of Appeals
• Decided: April 7, 2010
• Docket: 29,967
• Status: Unpublished

Opinion

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

8 Plaintiff-Appellant,

9 v. NO. 29,967

10 CITY OF ALBUQUERQUE 11 POLICE DEPARTMENT,

12 Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Geraldine E. Rivera, District Judge

15 Inara Cedrins 16 Cerrillos, NM

17 for Appellant

18 Robles, Rael & Anaya, P.C. 19 Erika Anderson 20 Albuquerque, NM

21 for Appellee

22 MEMORANDUM OPINION

23 FRY, Chief Judge.

24 Plaintiff appeals, pro se, from the district court’s order dismissing her complaint

25 with prejudice, because she refused to amend her complaint to more specifically

26 articulate a cause of action and did not appear at the hearing dismissing Plaintiff’s 1 complaint with prejudice. We issued a notice of proposed summary disposition,

2 proposing to dismiss for an untimely appeal. Plaintiff has responded to our notice

3 with an “objection,” but does not address our proposed analysis. Plaintiff requests an

4 extension to research her cause of action against the police department and for

5 appointment of counsel. [MIO 2] It is not clear to what extension she refers and on

6 what authority we may grant it on appeal, particularly where the appeal is untimely.

7 See Clayton v. Trotter, 110 N.M. 369, 373, 796 P.2d 262, 266 (Ct. App. 1990) (stating

8 that the appellate court will review pro se arguments to the best of its ability, but

9 cannot respond to unintelligible arguments). Also, Plaintiff is not entitled to the right

10 of counsel in civil cases. See State v. Upchurch, 2006-NMCA-076, ¶ 4, 139 N.M.

11 739, 137 P.3d 679 (observing that the constitutional right to the effective assistance

12 of counsel belongs to the accused in a criminal proceeding). Unpersuaded that we

13 may grant Plaintiff the relief she seeks, we dismiss.

14 Untimely Notice of Appeal

15 To properly invoke this Court’s jurisdiction, a party must comply with the

16 appellate rules governing the time and place in which to file the notice of appeal. See

17 Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991); see also

18 Trujillo v. Serrano, 117 N.M. 273, 276-78, 871 P.2d 369, 372-74 (1994) (establishing

19 that the timely filing of a notice of appeal is a mandatory precondition to our exercise

2 1 of jurisdiction to hear an appeal). Rule 12-201(A)(2) NMRA requires the appellant

2 to file a notice of appeal in the district court clerk’s office within thirty days of the

3 district court’s entry of its final judgment. Pro se litigants must comply with the rules

4 and orders of the court and will not be treated differently than litigants with counsel.

5 See Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84.

6 In the present case, the district court entered an order dismissing Plaintiff’s

7 complaint with prejudice on September 25, 2009. [RP 47] Plaintiff filed a notice of

8 appeal in district court on November 13, 2009, nineteen days after the time for doing

9 so had expired. [RP 51] Plaintiff has not filed any post-judgment motion that would

10 extend the time for filing the notice of appeal nor did she request an extension in

11 which to file the appeal.

12 Only in exceptional circumstances beyond the control of the parties will we

13 entertain an untimely appeal. See In re Estate of Newalla, 114 N.M. 290, 296, 837

14 P.2d 1373, 1379 (Ct. App. 1992) (stating that “[o]ne such exceptional circumstance

15 might be reasonable reliance on a precedent indicating that the order not timely

16 appealed was not a final, appealable order”); see also Trujillo, 117 N.M. at 278, 871

17 P.2d at 374 (holding that exceptional circumstances are those beyond the control of

18 the parties, such as delay caused by judicial error). “Because there is no indication that

3 1 unusual circumstances justify our discretion to entertain this untimely appeal, we do

2 not overlook this grave procedural defect.” Upchurch, 2006-NMCA-076, ¶ 5.

3 Accordingly, we dismiss Plaintiff’s untimely appeal.

4 IT IS SO ORDERED.

5 6 CYNTHIA A. FRY, Chief Judge

7 WE CONCUR:

8 9 CELIA FOY CASTILLO, Judge

10 11 RODERICK T. KENNEDY, Judge