Sellner v. Soutar

• Court: New Mexico Court of Appeals
• Decided: February 26, 2010
• Docket: 29,862
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

8 NATALIE SELLNER,

9 Plaintiff-Appellee,

10 v. NO. 29,862

11 MICHAEL R. SOUTAR,

12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Valerie Mackie Huling, District Judge

15 Michael R. Soutar 16 Hobbs, NM

17 Pro Se Appellant

18 Corbin Hildebrandt, P.C. 19 Corbin Hildebrandt 20 Albuquerque, NM

21 for Appellee

22 MEMORANDUM OPINION

23 FRY, Chief Judge.

24 Defendant, pro se, appeals a district court order denying his motion to set aside

25 a default judgment. We issued a calendar notice proposing to dismiss the appeal as

26 Defendant’s notice of appeal was not filed within thirty days of the order being 1 appealed, as required by Rule 12-201(A)(2) NMRA. Defendant has timely filed a

2 memorandum in opposition to our proposed disposition. We remain unpersuaded by

3 Defendant’s arguments and dismiss the appeal.

4 Rule 12-201(A)(2) requires the notice of appeal be filed within thirty days after

5 the order being appealed has been entered. See Rule 12-202(A) NMRA (providing

6 that a notice of appeal shall be filed with the district court clerk). Failure to timely file

7 the notice of appeal results in dismissal. See San Juan 1990-A., L.P. v. El Paso Prod.

8 Co., 2002-NMCA-041, ¶¶ 23-29, 132 N.M. 73, 43 P.3d 1083.

9 The order denying Defendant’s motion to set aside default judgment was filed

10 on July 10, 2009. [RP 403] His notice of appeal was therefore required to be filed by

11 August 10, 2009, pursuant to Rule 12-201(A)(2). Defendant filed a notice of appeal

12 in our Court on August 6, 2009; however, he did not file his notice of appeal in district

13 court as required by Rule 12-202(A) until August 19, 2009. [RP 406] Defendant’s

14 notice of appeal was therefore filed nine days late.

15 The timely filing of a notice of appeal is a mandatory precondition to

16 jurisdiction. San Juan 1990-A., L.P., 2002-NMCA-041, ¶ 23. While we have

17 recognized some exceptions to the thirty-day rule, they are narrow. Late filing of a

18 notice of appeal is excused in cases of court-caused error or unusual circumstances

19 beyond the control of the parties or where deviation from the mandatory requirements

20 is truly minimal. Id.; see Chavez v. U-Haul Co. of N.M., Inc., 1997-NMSC-051,

21 ¶¶ 19-22, 124 N.M. 165, 947 P.2d 122 (hearing an appeal where notice was filed 58

22 minutes late). Only the most unusual circumstances beyond the control of the parties,

2 1 such as error on the part of the court, will warrant overlooking procedural defects.

2 Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994).

3 While we recognize Defendant is pro se, we reiterate that “[a]lthough pro se

4 pleadings are viewed with tolerance, a pro se litigant, having chosen to represent

5 himself, is held to the same standard of conduct and compliance with court rules,

6 procedures, and orders as are members of the bar.” Newsome v. Farer, 103 N.M. 415,

7 419, 708 P.2d 327, 331 (1985) (citation omitted); see Bruce v. Lester, 1999-NMCA-

8 051, ¶ 4, 127 N.M. 301, 980 P.2d 84 (stating that pro se litigants must comply with

9 the rules and orders of the court and will not be treated differently than litigants with

10 counsel). Here, Defendant alleges the district court might have refused his filing,

11 [MIO 3] but there is no evidence that was the case or that the late filing was caused

12 by any court error. We are also not inclined to consider being nine days late as

13 minimal. See Wilson v. Mass. Mut. Life Ins. Co., 2004-NMCA-051, ¶¶ 7-12, 135

14 N.M. 506, 90 P.3d 525 (holding that where the notice of appeal was filed one day late

15 the appeal would be dismissed). Finally, as to Defendant’s assertion that his filing

16 might have been lost in the mail, [MIO 3] we are of the opinion that, even if we

17 assume this to be true, Defendant could have taken into account his incarcerated status

18 by mailing his notice of appeal earlier or making alternative arrangements for filing.

19 We decline to hold that individuals using the U.S. mail are exempt from the thirty-day

20 time limit for filing a notice of appeal.

21 Accordingly, we dismiss the appeal.

3 1 IT IS SO ORDERED.

2 3 CYNTHIA A. FRY, Chief Judge

4 WE CONCUR:

5 6 JAMES B. WECHSLER, Judge

7 8 CELIA FOY CASTILLO, Judge