Pequeno v. Lowe's Home Centers

• Court: New Mexico Court of Appeals
• Decided: September 19, 2016
• Docket: 35,395
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOAQUEN PEQUENO,

3 Worker-Appellant,

4 v. NO. 35,395

5 LOWE’S HOME CENTERS, INC. and 6 SEDGWICK CLAIMS MANAGEMENT 7 SERVICES,

8 Employer/Insurer-Appellees.

9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 Leonard J. Padilla, Workers’ Compensation Judge

11 Eaton & Eaton Law, P.C. 12 Kathryn L. Eaton 13 Los Ranchos de Albuquerque, NM

14 for Appellant

15 Allen, Shepherd, Lewis & Syra, P.A. 16 Kimberly A. Syra 17 Albuquerque, NM

18 for Appellees

19 MEMORANDUM OPINION 1 WECHSLER, Judge.

2 {1} Joaquen Pequeno (Worker) appeals from a compensation order, entered and

3 mailed on January 27, 2016. We issued a notice of proposed summary disposition in

4 which we proposed to dismiss. Employer/Insurer-Appellees filed a timely

5 memorandum in support of our proposed dismissal, and Worker filed a timely

6 memorandum in opposition. After due consideration, we remain unpersuaded that this

7 matter is properly before us. We therefore dismiss.

8 {2} In our calendar notice, we proposed to dismiss based on an untimely notice of

9 appeal. [See generally CN] See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12,

10 112 N.M. 226, 814 P.2d 94 (explaining that time and place of filing notice of appeal

11 is a mandatory precondition to appellate jurisdiction); Rice v. Gonzales,

12 1968-NMSC-125, ¶ 4, 79 N.M. 377, 444 P.2d 288 (stating that “an appellate court has

13 the duty to determine whether it has jurisdiction of an appeal”). We stated that while

14 we may exercise our discretion to consider an untimely appeal in the event of unusual

15 circumstances beyond the control of a party, see Trujillo v. Serrano, 1994-NMSC-

16 024, ¶ 15, 117 N.M. 273, 871 P.2d 369, no such circumstances appear to be present

17 in this case. [CN 3] We explained that, to be timely, the notice of appeal should have

18 been filed with this Court on or before February 26, 2016; however, the notice was

19 untimely filed on February 29, 2016. [CN 2] See NMSA 1978, § 52-5-8(A) (1989)

2 1 (“Any party in interest may, within thirty days of mailing of the final order of the

2 workers’ compensation judge, file a notice of appeal with the [C]ourt of [A]ppeals.”);

3 Rule 12-601(B) NMRA (requiring a notice of appeal from orders of administrative

4 agencies to be filed in this Court “within thirty (30) days from the date of the

5 order . . . appealed from”).

6 {3} In response, Worker argues that the statute and rule are inconsistent because

7 “[t]he date on which a final order of the workers’ compensation judge is mailed, or

8 received by the parties in the mail, may differ from the date of filing of the order

9 appealed from.” [MIO 2] He claims that “[b]ecause of the uncertainty and confusion

10 created by the discrepancy between the statute and the court rule, [he] filed his notice

11 of appeal within thirty (30) days from the date that the Compensation Order was

12 received in the mail, i.e., within thirty (30) days of mailing of the Compensation

13 Order.” [MIO 2]

14 {4} In Maples v. State, 1990-NMSC-042, ¶¶ 8-10, 110 N.M. 34, 791 P.2d 788, our

15 Supreme Court noted a possible conflict between Section 52-5-8(A) and Rule 12-601,

16 and held that the Rule takes precedence over the statute. See Massengill v. Fisher

17 Sand & Gravel Co., 2013-NMCA-103, ¶ 10, 311 P.3d 1231 (discussing the same); see

18 also Tzortzis v. Cty. of Los Alamos, 1989-NMCA-031, ¶ 2, 108 N.M. 418, 773 P.2d

19 363 (holding that “[w]hen a statute governing the time for appeal conflicts with a

3 1 supreme court rule, the rule governs”). Therefore, Worker was required to file a notice

2 of appeal in this Court “within thirty (30) days from the date of the order . . . appealed

3 from.” Rule 12-601(B). The order was entered on January 27, 2016, such that a timely

4 notice of appeal was due on or before Friday, February 26, 2016. While we note that

5 Worker’s notice of appeal, filed Monday, February 29, 2016, was only one business

6 day late, “[o]nly the most unusual circumstances beyond the control of the

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

8 defects.” Trujillo, 1994-NMSC-024, ¶ 19. We are not persuaded that such

9 circumstances appear to be present in this case.

10 {5} Accordingly, for the reasons stated above and in the notice of proposed

11 summary disposition, we dismiss.

12 {6} IT IS SO ORDERED.

13 ________________________________ 14 JAMES J. WECHSLER, Judge

15 WE CONCUR:

16 ________________________________ 17 LINDA M. VANZI, Judge

18 ________________________________ 19 M. MONICA ZAMORA, Judge