Medina v. Hernandez

• Court: New Mexico Court of Appeals
• Decided: February 26, 2018
• Docket: A-1-CA-36636
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 RACHEAL RITA MEDINA,

3 Plaintiff-Appellee,

4 v. NO. A-1-CA-36636

5 SOFIA HERNANDEZ d/b/a 6 J. CONSTRUCTION,

7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 9 David P. Reeb, District Judge

10 Racheal Rita Medina 11 Clovis, NM

12 Pro Se Appellee

13 Sofia Hernandez 14 Clovis, NM

15 Pro Se Appellant

16 MEMORANDUM OPINION

17 VANZI, Chief Judge.

18 {1} Appellant, Sofia Hernandez, appeals from an order of the district court

19 dismissing her appeal from a magistrate court judgment on the basis that it was not 1 timely filed. We issued a notice of proposed summary disposition proposing to affirm

2 the district court, and a memorandum in opposition was filed. We remain unpersuaded

3 that our initial proposed disposition was incorrect, and we therefore affirm.

4 {2} Plaintiff sued Appellant in magistrate court, and the magistrate court entered

5 judgment against her in the amount of $6,491.25. [RP 4] The judgment was entered

6 on June 14, 2017. [RP 4] Pursuant to the rules of civil procedure for the magistrate

7 courts, Appellant had fifteen days in which to appeal the judgment by filing a notice

8 of appeal in the appropriate district court. See Rule 2-705(A) NMRA (stating that a

9 party who is aggrieved by a judgment in a civil action may appeal to the district court

10 of the county within which the magistrate court is located within fifteen (15) days

11 after the judgment appealed from is filed in the magistrate court); Rule 2-705(B)(1)

12 (stating that an appeal from the magistrate court is taken by filing a notice of appeal

13 with the district court). Appellant did not file her notice of appeal in the district court

14 until July 12, 2017, and the notice was therefore thirteen days late. [RP 1] Plaintiff

15 filed a motion to dismiss the appeal based on the late notice, and the district court

16 granted the motion. [RP 5-6]

17 {3} We affirm. Timely filing of the notice of appeal is a mandatory precondition to

18 the exercise of appellate jurisdiction. See Govich v. N. Am. Sys., Inc., 1991-NMSC-

19 061, ¶ 12, 112 N.M. 226, 814 P.2d 94. Since Appellant did not timely file the notice

20 of appeal as required by the rules of procedure, we hold that the district court did not

2 1 err in dismissing the appeal. See Trujillo v. Serrano, 1994-NMSC-024, ¶ 19, 117 N.M.

2 273, 871 P.2d 369 (“Only the most unusual circumstances beyond the control of the

3 parties—such as error on the part of the court—will warrant overlooking procedural

4 defects.”); see also Woodhull v. Meinel, 2009-NMCA-015, ¶ 30, 145 N.M. 533, 202

5 P.3d 126 (stating that pro se litigants must comply with the rules and orders of the

6 court and will not be treated differently than litigants with counsel).

7 {4} To the extent Appellant seeks to assert that she was told that she had thirty days

8 in which to file the notice of appeal as a justification for her failure to timely file the

9 notice of appeal, we note that on the record before us, there is nothing to support this

10 claim. [MIO 1] See Rangel v. Save Mart, Inc., 2006-NMCA-120, ¶ 36, 140 N.M. 395,

11 142 P.3d 983 (stating that this Court will not consider matters not of record on

12 appeal). We therefore presume the regularity of the proceedings in the lower courts.

13 See Lujan ex rel. Lujan v. Casados-Lujan, 2004-NMCA-036, ¶ 20, 135 N.M. 285, 87

14 P.3d 1067 (“Bedrock principles of appellate law dictate that matters not of record

15 present no issue for review, that there is a presumption of regularity in the proceedings

16 below, and that error must be clearly demonstrated.”).

17 {5} For these reasons, we affirm the district court’s order dismissing the appeal.

18 {6} IT IS SO ORDERED.

3 1 __________________________________ 2 LINDA M. VANZI, Chief Judge

3 WE CONCUR:

4 _________________________________ 5 STEPHEN G. FRENCH, Judge

6 _________________________________ 7 EMIL J. KIEHNE, Judge