Eker Bros., Inc. v. Rehders

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 EKER BROTHERS, INC.,

8 Plaintiff-Counterdefendant/ 9 Appellant,

10 v. NO. 30,245

11 JOHN G. REHDERS, 12 GENERAL CONTRACTOR, INC.,

13 Defendant-Counterclaimant/ 14 Appellee.

15 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 16 Daniel A. Sanchez, District Judge

17 Sommer, Udall, Sutin, Hardwick 18 & Hyatt, P.A. 19 William H. Lazar 20 Tesuque, NM

21 Sommer, Udall, Sutin, Hardwick 22 & Hyatt, P.A. 23 Kurt A. Sommer 24 Candice Lee 25 Santa Fe, NM

26 for Appellant

27 McClaugherty & Silver, P.C. 28 Joe L. McClaugherty 29 Santa Fe, NM 1 for Appellee

2 1 MEMORANDUM OPINION

2 FRY, Chief Judge.

3 Appellant appeals the denial of Appellant’s motion for extension to file a

4 notice of appeal. We issued a calendar notice proposing to affirm the decision of the

5 district court, and we have received responses to the calendar notice from both

6 parties. We have carefully considered Appellant’s arguments, but we are not

7 persuaded that affirmance is not the correct disposition. We therefore affirm.

8 Appellant sought an extension of time to file a notice of appeal from the district

9 court’s order awarding Appellee costs for the services of an expert. The award of

10 costs was filed on November 12, 2009, making the deadline for filing the notice of

11 appeal December 12, 2009. Appellant’s counsel did not calendar the date for filing

12 the notice of appeal, and realized on December 21, 2009, that a notice of appeal had

13 not been filed and the deadline for doing so had passed. Appellant asked the district

14 court for an extension under Rule 12-201(E)(2) NMRA, arguing that Appellee would

15 not be prejudiced by the delay, the delay would have no effect on the proceedings, and

16 there was no suggestion that Appellant acted in bad faith. Notably, Appellant’s

17 counsel did not argue that the notice was not timely filed due to circumstances beyond

18 Appellant’s control. Appellee did not file a response to the motion, but sent a letter

19 to the district judge informing him that it could rule on the motion without a response,

3 1 and attaching a proposed order denying the motion. Appellee stated that no objection

2 would be made if the judge wished to hold a hearing on the matter. The district judge

3 did not hold a hearing, but denied the motion and entered the order prepared by

4 Appellee.

5 Under Rule 12-201(E), if an extension of time is requested before the thirty-day

6 period for filing a notice of appeal, the appellant need only show good cause, but if

7 the thirty-day period has passed when the request is made, the appellant must

8 demonstrate “excusable neglect or circumstances beyond the control of the appellant.”

9 As discussed in Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 27,

10 140 N.M. 920, 149 P.3d 1017 (filed 2006), a party is generally bound by the actions

11 of its attorney and claims of excusable neglect by separating an appellant’s conduct

12 from that of the appellant’s attorney will fail. Id. ¶ 28. We review the district court’s

13 denial of Appellant’s motion for abuse of discretion. Id. ¶ 25.

14 Appellant relies heavily on the test described in Kinder Morgan C02 Co., L.P.

15 v. State Taxation and Revenue Department, 2009-NMCA-019, 145 N.M. 579, 203

16 P.3d 110. However, in Kinder-Morgan CO2 Co., this Court’s decision concerned

17 Rule 1-060(B)(1) NMRA. We adopted the “excusable neglect” test outlined by

18 Appellant in the memorandum in opposition “as the standard for relief under Rule 1-

19 060(B)(1).” Kinder Morgan CO2 Co., 2009-NMCA-019, ¶ 13. We held that “Rule

4 1 60(b)(1) does not condone careless or negligent attorney conduct by granting relief

2 because of or based on acts of carelessness. Instead, Rule 60(b)(1) serves as a narrow

3 exception empowering a court with the discretion to grant relief despite an attorney’s

4 carelessness.” Kinder Morgan CO2 Co., 2009-NMCA-019, ¶ 18. In Capco Acquisub,

5 Inc., we clarified that “excusable neglect” under Rule 12-201(E)(2), should be strictly

6 construed, but “excusable neglect” under Rule 1-060(B)(1), should be liberally

7 construed. 2007-NMCA-011, ¶ 27. We referred to the definition of “excusable

8 neglect” as “something more than good cause” and pointed out that work overload or

9 obvious errors by attorneys were not enough to establish “excusable neglect.” Id. ¶¶

10 25, 27.

11 In this case, Appellant’s attorney failed to calendar the deadline for filing the

12 notice of appeal. In other words, the notice was not timely filed due to attorney

13 carelessness. This case does not involve circumstances beyond Appellant’s control,

14 and the conduct of Appellant’s attorney does not amount to “excusable neglect.” We

15 hold that the district court did not abuse its discretion in denying the motion for

16 extension of time. Furthermore, given the circumstances of the case, the district court

17 did not err by failing to conduct a hearing on the motion.

5 1 CONCLUSION

2 For the reasons discussed above and in our calendar notice, we affirm the

3 district court’s ruling.

4 IT IS SO ORDERED.

5 6 CYNTHIA A. FRY, Chief Judge

7 WE CONCUR:

8 9 JAMES J. WECHSLER, Judge

10 11 LINDA M. VANZI, Judge