Discover Bank v. McGee

• Court: New Mexico Court of Appeals
• Decided: February 6, 2013
• Docket: 32,257
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 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.

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

2 DISCOVER BANK,

3 Plaintiff-Appellant,

4 v. No. 32,257

5 JONATHAN N. McGEE,

6 Defendant-Appellee,

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Alan M. Malott, District Judge

9 Travis J. White 10 Albuquerque, NM

11 for Appellant

12 Jonathan N. McGee 13 Albuquerque, NM

14 Pro Se Appellee

15 MEMORANDUM OPINION

16 FRY, Judge.

17 Plaintiff is appealing from a district court order denying its motion for

18 reconsideration of a judgment dismissing its civil complaint with prejudice. We 1 issued a calendar notice proposing to dismiss. Plaintiff has responded with a timely

2 memorandum in opposition. Not persuaded, we dismiss the appeal.

3 As we observed in our calendar notice, Plaintiff is appealing from a district

4 court order denying its motion for reconsideration of a judgment dismissing its

5 complaint with prejudice. The order denying the motion for reconsideration was filed

6 on June 12, 2012. [RP 116] Pursuant to Rule 12-201(D) NMRA, Plaintiff had thirty

7 days from that date to file its notice of appeal. Our calendar notice proposed to

8 dismiss because Plaintiff filed its notice of appeal in the district court on July 13,

9 2012, one day late. [RP 118]

10 In its memorandum in opposition, Plaintiff asserts that it timely filed its notice

11 of appeal on July 12, 2012. However, that file date is taken from the copy served on

12 this Court. As noted, the district court’s file stamp reads July 13, 2012. [RP 118] See

13 Rule 12-202(A) NMRA (stating that the notice of appeal should be filed with the

14 district court clerk). As such, Plaintiff has not complied with a mandatory

15 precondition to the exercise of our appellate jurisdiction to consider the merits of the

16 appeal. See Govich v. North Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98

17 (1991) (compliance with notice of appeal time and place requirements are mandatory

18 preconditions to exercise of appellate jurisdiction). Accordingly, we dismiss the

19 appeal.

2 1 IT IS SO ORDERED.

2 3 CYNTHIA A. FRY, Judge 4 5 WE CONCUR:

6 7 MICHAEL D. BUSTAMANTE, Judge

8 9 J. MILES HANISEE, Judge