Kittell v. Kittell

• Court: New Mexico Court of Appeals
• Decided: November 19, 2009
• Docket: 29,693
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 FRANCES E. LOVETT, f/k/a 8 FRANCES E. KITTELL,

9 Petitioner-Appellee,

10 v. NO. 29,693

11 LEE C. KITTELL,

12 Respondent-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Angela J. Jewell, District Judge

15 Emma Whitley 16 Albuquerque, NM

17 for Appellee

18 Lee C. Kittell 19 Albuquerque, NM

20 Pro Se Appellant

21 MEMORANDUM OPINION

22 BUSTAMANTE, Judge. 1 Appellant attempts to appeal from the district court’s order on spousal support.

2 This Court filed a calendar notice proposing to dismiss the appeal for lack of a timely

3 notice of appeal. Appellant filed a memorandum in opposition to the proposed

4 disposition. We are not persuaded by Appellant’s arguments and dismiss the appeal.

5 Appellant argues that his notice of appeal should be accepted as timely because

6 his ankle was re-injured five days before the time for filing the notice of appeal

7 expired, and due to the effects of his medication, he was unable to timely file his

8 notice of appeal. This Court has previously addressed the issue of whether it should

9 invoke its inherent power to relieve against accidents and excusable mistakes, and its

10 authority to add parties to allow the appeal to proceed. Russell v. Univ. of N. M.

11 Hosp., 106 N.M. 190, 192, 740 P.2d 1174, 1177 (Ct. App. 1987). However, these

12 cases involved a late service of notice. Id. This is a case in which there was a

13 complete failure to serve the notice of appeal.

14 “[T]he timely filing of a notice of appeal is a mandatory precondition to

15 jurisdiction. Late filing of a notice of appeal is excused in cases of court-caused error

16 or unusual circumstances beyond the control of the parties.” San Juan 1990-A., L.P.

17 v. El Paso Prod. Co., 2002-NMCA-041, ¶ 23, 132 N.M. 73, 43 P.3d 1083 (citing

18 Chavez v. U-Haul Co., 1997-NMSC-051, ¶ 26, 124 N.M. 165, 947 P.2d 122; Trujillo

19 v. Serrano, 117 N.M. 273, 277, 871 P.2d 369, 373 (1994); Hyden v. N.M. Human

2 1 Servs. Dep’t, 2000-NMCA-002, ¶ 15, 128 N.M. 423, 993 P.2d 740)). We hold that

2 Appellant’s injury does not present the kind of unusual circumstances found in those

3 cases to justify the late filing of a notice of appeal. Appellant cites to no other

4 authority authorizing this Court to extend the time for filing a notice of appeal. Cf.

5 Rule 12-201(E)(1) & (2) NMRA (authorizing the district court to extend the time for

6 filing under certain circumstances).

7 For this reason, and those stated in the first notice, we dismiss the appeal.

8 IT IS SO ORDERED.

9 10 MICHAEL D. BUSTAMANTE, Judge

11 WE CONCUR:

12 13 CELIA FOY CASTILLO, Judge

14 15 TIMOTHY L. GARCIA, Judge