IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMSC-034
Filing Date: June 24, 2010
Docket No. 31,374
CHERYL SCHULTZ on behalf of
KEVIN SCHULTZ (deceased),
Worker-Petitioner,
v.
POJOAQUE TRIBAL POLICE DEPARTMENT,
and NEW MEXICO MUTUAL CASUALTY COMPANY,
Employer-Insurer-Respondents.
ORIGINAL PROCEEDING ON CERTIORARI
Helen L. Stirling, Workers’ Compensation Judge
George Wright Weeth
Albuquerque, NM
for Petitioner
Riley & Shane, P.A.
Richard J. Shane
Kristin J. Dalton
Albuquerque, NM
for Respondents
OPINION
MAES, Justice.
{1} Cheryl Schultz (Petitioner) filed a workers’ compensation complaint for medical
benefits and survivor benefits on behalf of her deceased husband, Kevin Schultz (Worker).
The Workers’ Compensation Judge (WCJ) denied Petitioner’s claims and Petitioner
appealed. Four days before the filing deadline, Petitioner mailed her notice of appeal from
Albuquerque to the Court of Appeals, but the notice of appeal was filed two days after the
filing deadline. The WCJ granted Petitioner’s unopposed motion for an extension of time
to file a notice of appeal. The Court of Appeals dismissed Petitioner’s appeal as untimely
because the WCJ did not have authority to grant an extension of time, and there was no
showing of excusable neglect or events beyond the control of Petitioner that would justify
extending the time to file the appeal. We conclude that the WCJ did not have authority to
grant an extension of time, but that Petitioner’s late filing was excusable in this case because
1
it was due to a delay in the mail that was outside Petitioner’s control. Accordingly, we
remand to the Court of Appeals to review the merits of Petitioner’s appeal.
I. FACTS AND PROCEDURAL HISTORY
{2} Worker was a police officer for the Pojoaque Tribal Police Department (Employer),
which is insured by the New Mexico Mutual Casualty Group (Insurer). He drowned while
rescuing a child who had fallen into the Rio Grande during an outing with a church group
near Pilar, New Mexico.
{3} Petitioner filed a workers’ compensation complaint for medical benefits and survivor
benefits against Employer and Insurer. The WCJ denied Petitioner’s claims on two grounds.
First, the WCJ found that Petitioner’s claims were barred, because “[t]he statute of
limitations [had] run without reasonable excuse or because of misleading conduct on the part
of Employer or Insurer.” Second, the WCJ found that “Worker’s accident did not arise out
of his employment with Employer; it was not within the course and scope of his
employment, and was not caused by a risk incident to his employment.” The WCJ entered
her final order denying Petitioner’s claim on March 14, 2008. Accordingly, the deadline for
filing a notice of appeal with the Court of Appeals was Monday, April 14, 2008. Rule 12-
601(B) NMRA (“Direct appeals from orders, decisions or actions of boards, commissions,
administrative agencies or officials shall be taken by filing a notice of appeal with the
appellate court clerk . . . within thirty (30) days from the date of the order, decision or action
appealed from.”); see also Rule 12-308(A) NMRA (“In computing any period of time
prescribed or allowed by these rules, by order of court or by any applicable statute, the day
of the act, event or default from which the designated period of time begins to run shall not
be included. The last day of the period so computed shall be included unless it is a Saturday,
Sunday or a legal holiday . . . in which event the period runs until the end of the next day
which is not one of the aforementioned days.”).
{4} Petitioner mailed her notice of appeal from Albuquerque to the Court of Appeals’s
post office box in Santa Fe on April 10, 2008, via certified mail with the United States Postal
Service (USPS). According to the USPS tracking report, on April 15, 2008, the Court of
Appeals received a USPS notification card in its post office box indicating that the Court had
received a package. The notice of appeal was delivered and filed in the clerk’s office on
April 16, 2008, two days after the filing deadline.
{5} On April 17, 2008, Petitioner filed an unopposed motion for an extension of time to
file her notice of appeal with the WCJ. The WCJ granted Petitioner an extension of time to
file the notice of appeal pursuant to Rule 12-201(E)(2) NMRA, which provides that the
district court may extend the time for filing “upon a showing of excusable neglect or
circumstances beyond the control of the appellant.” Petitioner then filed her Docketing
Statement with the Court of Appeals on May 14, 2008.
{6} The Court of Appeals assigned the appeal to the summary calendar pursuant to Rule
12-210(D) NMRA and proposed summary dismissal, because the appeal was not filed in the
Court of Appeals within the thirty-day time period and no enforceable extension was
granted. The Court of Appeals concluded in its proposed disposition that the WCJ’s
extension of time was not enforceable because “Rule 12-601(C) clearly states that ‘any
request for extension of time must be made to the appellate court.’” In response, Petitioner
argued that Rule 12-201(E)(2), which permits a district court to grant an extension of time
to file a notice of appeal, also gave the WCJ authority to grant an extension of time.
2
Alternatively, Petitioner argued that the Court of Appeals should exercise its discretion to
grant the appeal, because “the facts show [Petitioner’s] reasonable diligence to file the
appeal on time, and that the delay was caused by excusable neglect and factors beyond her
control.”
{7} In an unpublished memorandum opinion, the Court of Appeals concluded that it had
“no sound basis” on which to exercise jurisdiction over Petitioner’s appeal. Schultz v.
Pojoaque Tribal Police Dep’t, No. 28,508, slip op. at 9 (N.M. Ct. App. Sep. 23, 2008).
Addressing Petitioner’s arguments, the Court first held that the appeal was not timely filed
within thirty days as required by Rule 12-601(B). Id. at 3. Second, the Court held that the
WCJ lacked authority to grant an extension of time to file under Rule 12-601(C). Id. at 3-4.
Finally, the Court determined that “[n]othing in the record indicate[d] a showing of
excusable neglect or events beyond the control of [Petitioner] that would justify extending
the time to file the appeal.” Id. at 7-8. The Court noted that Petitioner “could have
personally filed the notice of appeal in the Albuquerque or Santa Fe offices and she could
have requested an extension from the proper tribunal.” Id. at 7. Therefore, the Court
“dismiss[ed] for an untimely appeal.” Id. at 9.
{8} We granted Petitioner’s writ of certiorari pursuant to NMSA 1978, Section 34-5-
14(B) (1972) and Rule 12-502 NMRA. Schultz v. Pojoaque Tribal Police Dep’t, 2008-
NMCERT-011, 145 N.M. 532, 202 P.3d 125.
II. DISCUSSION
A. Whether the WCJ Had Authority to Grant an Extension of Time to File a
Notice of Appeal
{9} We first address whether the WCJ had authority to grant Petitioner’s motion for an
extension of time to file her notice of appeal. Within the Rules of Appellate Procedure, there
are two sets of rules that address how appeals should be made to appellate courts. Rules 12-
201 to 12-216 NMRA govern appeals from the district court and Rules 12-601 to 12-608
NMRA govern appeals from special proceedings, including proceedings before
administrative agencies. Rule 12-601(C), which governs appeals taken from administrative
agencies, states:
Whenever in these rules a duty is to be performed by, service is to be made
upon, or reference is made to the district court or a judge or clerk of the
district court, the board, commission, administrative agency or official whose
action is appealed from shall be substituted for the district court or a judge
or clerk of the district court, except that any request for extension of time
must be made to the appellate court.
(Emphasis added.) In contrast, Rule 12-201(E)(2), which governs appeals taken from the
district court, states:
After the time has expired for filing a notice of appeal, upon a showing of
excusable neglect or circumstances beyond the control of the appellant, the
district court may extend the time for filing a notice of appeal by any party
for a period not to exceed thirty (30) days from the expiration of time
otherwise provided by this rule, but it shall be made upon motion and notice
to all parties.
3
(Emphasis added.) Thus, whereas Rule 12-201(E)(2) gives the district court, as the lower
tribunal, authority to extend the time for filing a notice of appeal, Rule 12-601(C) expressly
divests the administrative agency of that authority and gives the Court of Appeals that
authority.
{10} Petitioner argues that “[t]he supreme court should take this opportunity to eliminate
the confusion created by Rule 12-601 and declare that workers’ compensation benefits cases
(where the legislature has provided a direct appeal to the court of appeals) will be decided
under the same rules as appeals from district courts.” To address Petitioner’s claim, we must
determine whether the appellate rules for the district courts or for administrative agencies
apply to requests for extensions of time to file a notice of appeal challenging a decision made
by the Workers’ Compensation Administration (WCA). We review de novo the question of
whether a lower court has authority to grant an extension of time for filing a notice of appeal.
Chavez v. U-Haul Co. of N.M., 1997-NMSC-051, ¶ 13, 124 N.M. 165, 947 P.2d 122. If
authority exists, we uphold the extension absent an abuse of discretion. Id. ¶ 26.
{11} In support of her argument that the WCJ had authority pursuant to Rule 12-201(E)(2)
to grant her an extension of time to file a notice of appeal, Petitioner relies on NMSA 1978,
Section 52-5-8(B) (1989) of the Workers’ Compensation Act, which provides that a decision
by a WCJ is “reviewable by the court of appeals in the manner provided for other cases.”
Petitioner interprets this provision to mean that a WCJ decision should be governed by the
district court rules, and thus Rule 12-201(E)(2) provides a WCJ, as the lower tribunal,
authority to grant an extension of time to file a notice of appeal. Petitioner argues that
applying Rule 12-601(C) to a WCJ decision is inconsistent with Section 52-5-8(B), and has
been a recurring source of confusion for workers’ compensation practitioners. See Rule 12-
601 (providing that motions to extend must be made to the appellate court).
{12} We disagree. We have consistently applied the appellate rules contained in Rule 12-
601 to the WCA. See, e.g., Maples v. State, 110 N.M. 34, 36, 791 P.2d 788, 790 (1990)
(“Supreme Court Rule 12-601 is the controlling rule in appeals from Workers’
Compensation actions.”); Singer v. Furr’s, Inc., 111 N.M. 220, 221, 804 P.2d 411, 412 (Ct.
App. 1990) (determining that the claimant in a workers’ compensation case failed to comply
with Rule 12-601(B)). Consequently, Petitioner was on notice that 12-601(C), which clearly
states that “any request for extension of time must be made to the appellate court,” was the
controlling rule. Additionally, none of the cases upon which Petitioner relies addresses the
issue raised in this case regarding the proper entity in which to file an extension of time for
filing a notice of appeal. See, e.g., Mieras v. Dyncorp, 122 N.M. 401, 404, 925 P.2d 518,
521 (Ct. App. 1996) (holding that a notice of appeal filed in the correct tribunal but with the
wrong caption was properly filed); Brewster v. Cooley & Assocs., 116 N.M. 681, 684, 866
P.2d 409, 412 (Ct. App. 1993) (holding that Rule 12-601(B) only requires that an appellant
serve the WCA with a copy of his notice of appeal to the Court of Appeals); Tzortzis v.
County of Los Alamos, 108 N.M. 418, 773 P.2d 363 (Ct. App. 1989) (time limit for filing a
notice of appeal runs from the date of the order pursuant to Rule 12-601(A), not mailing of
that order as provided by statute).
{13} In her reply brief, Petitioner further argues that in Bianco v. Horror One Productions,
2009-NMSC-006, 145 N.M. 551, 202 P.3d 810, we decided that the procedure for taking
appeals from a decision by a WCJ is exactly the same as taking appeals from a district court
judgment, and therefore a WCJ has authority to grant extensions of time to file a notice of
appeal. Thus, Petitioner claims that Rule 12-201 applies to appeals from a WCJ decision and
4
that the words “workers’ compensation judge” should take the place of “district court”
throughout that rule.
{14} Petitioner construes Bianco too broadly, and ignores its underlying principle. In
Bianco the issue was whether NMSA 1978, Section 39-1-1 (1953), which provides for
retention of jurisdiction in the district court for a period of thirty days to rule on post-
judgment motions, and Rule 12-201(B), which provides that the time for filing a notice of
appeal does not begin to run until the express denial of such motions, apply to workers’
compensation cases. 2009-NMSC-006, ¶¶ 1,5. Because Rule 12-601 does not comment on
the time for filing an appeal subsequent to a post-judgment motion under Section 39-1-1, we
held that Rule 12-201(B) applies, and therefore the appellant’s notice of appeal was timely.
Bianco, 2009-NMSC-006, ¶ 12. This application of Rule 12-201 is consistent with other
workers’ compensation cases, holding that when rules governing appeals from the WCA
have no provision on point, it is proper to look to the rules governing district courts for
guidance. See Maples, 110 N.M. at 35-36, 791 P.2d at 789-90 (applying provisions from
both Rule 12-201 and Rule 12-601 to a workers’ compensation case); see also Rodriguez v.
McAnally Enters., 117 N.M. 250, 252, 871 P.2d 14, 16 (Ct. App. 1994) (deciding that Rule
12-201(A), which specifically governs cross-appeals, was controlling when Rule 12-601
provided no provision that was directly on point). In the present case, however, Rule 12-201
and Rule 12-601 cannot be read harmoniously; therefore, we apply Rule 12-601, since it was
specifically created to govern appeals from administrative agencies. See Thompson v.
Dehne, 2009-NMCA-120, ¶ 16, 147 N.M. 283, 220 P.3d 1132 (stating that where two
“provisions cannot be harmonized, the specific section governs over the general” (internal
quotation marks and citation omitted)).
{15} Accordingly, we hold that pursuant to Rule 12-601, a WCJ lacks authority to grant
extensions of time for notices of appeal.
B. Whether Petitioner’s Untimely Filing of Her Notice of Appeal Should Have
Been Excused
{16} Petitioner argues that the New Mexico appellate courts should adopt a rule of
substantial compliance, which would require the Court of Appeals to consider her notice of
appeal on the merits, because she made substantial efforts to comply with the filing
requirements. Petitioner mailed her notice of appeal four days prior to the deadline;
however, it was not received by the Court of Appeals until two days after the deadline. She
claims that receipt in Santa Fe from Albuquerque could reasonably be anticipated within
three days and that various New Mexico rules support her argument. See Rules 1-006(D),
2-104(D), 3-104(D), 12-308(B) NMRA (providing “[a]dditional time after service by mail”).
She therefore urges us to establish a rule of substantial compliance, under which a notice of
appeal mailed at least three days prior to the filing deadline will automatically be granted.
{17} The rules governing appeals from administrative agencies do not address whether a
three-day mailing rule applies to the filing of notices of appeal. Therefore, we look to the
rules governing appeals from district courts for guidance. See supra Part II.A. Rule
12-201(A)(2) explicitly provides that “[t]he three (3) day mailing period set forth in
Paragraph B of Rule 12-308 NMRA does not apply to the time limits” for filing notices of
appeal.
{18} We decline to adopt a rule of substantial compliance, because the appropriate inquiry
for determining if a court can exercise its “discretion and entertain an appeal even though
5
it is not timely filed” is whether “unusual circumstances beyond the control of the parties”
are present. Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994). See also
Chavez, 1997-NMSC-051, ¶ 22 (determining that though the district court’s extension of
time was invalid, there were “unusual circumstances” that warranted excusing the late
filing). In the present case, the Court of Appeals did not excuse Petitioner’s untimely filing
of her notice of appeal, because “[t]here [was] no evidence of judicial error under the facts
of [Petitioner’s] appeal, and the late filing of the appeal was entirely under her control.”
Schultz, No. 28,508, slip op. at 7.
{19} We review “[a] court’s decision not to excuse a party’s failure to file a timely appeal
. . . applying an abuse of discretion standard.” Trujillo, 117 N.M. at 276, 871 P.2d at 372.
In considering this issue, we also note that “it is this Court’s policy to construe both statutes
and court rules in favor of deciding an appeal on the merits whenever possible.” Lovelace
Med. Ctr. v. Mendez, 111 N.M. 336, 339, 805 P.2d 603, 606 (1991). In particular, notices
of appeal, even where technically defective, should be liberally construed to allow
consideration of the case on the merits. See In re Application No. 0436-A Into 3841 (Sleeper
v. Ensenada Land & Water Ass’n), 101 N.M. 579, 581, 686 P.2d 269, 271 (Ct. App. 1984)
(the reviewing court favors the interpretation which permits a review on the merits). This
principle is derived from the New Mexico Constitution, which provides that “an aggrieved
party shall have an absolute right to one appeal.” N.M. Const., art. VI, § 2. In Trujillo, we
reaffirmed our commitment to the principle that our rules should “expedite rather than hinder
this right,” while acknowledging that the right to an appeal must be balanced with “the need
for the efficient administration of justice.” 117 N.M. at 276, 871 P.2d at 372. We concluded
that
[p]rocedural formalities should not outweigh basic rights where the facts
present a marginal case which does not lend itself to a bright-line
interpretation. Where ... there are two possible interpretations relating to the
right to an appeal, that interpretation which permits a review on the merits
rather than rigidly restricting appellate review should be favored.
Id. (internal quotation marks and citations omitted). Thus, the decision to dismiss an appeal
is extreme and must be determined on a case-by-case basis. Olguin v. State, 90 N.M. 303,
305, 563 P.2d 97, 99 (1977).
{20} In the consolidated Chavez case we addressed whether there were any unusual
circumstances that warranted considering the appeals of two petitioners, Chavez and Jones,
neither of which was filed in a timely manner. 1997-NMSC-051, ¶¶ 1-2. In Chavez’s case,
we determined that although the district court’s extension of time was invalid, there were
“unusual circumstances” that warranted excusing the late filing. Id. ¶¶ 15, 22. Chavez,
representing himself pro se, faxed the notice of appeal fifty-eight minutes late. On these
facts, we determined that if the notice of appeal was untimely it was only marginally so, and
thus “the right to an appeal outweigh[ed] the need for the efficient administration of justice.”
Id. ¶¶ 21-22. On the other hand, in Jones’s case, we determined that his late filing of the
notice of appeal could not be excused because it was thirty days late, and Jones cited no
unusual circumstances that would excuse his untimely filing. Id. ¶¶ 23, 25.
{21} The present case is closer to Chavez’s case than to Jones’s. Petitioner’s notice of
appeal was mailed from Albuquerque to the Court of Appeals in Santa Fe via certified mail
four days before the filing deadline, yet it was not filed by the Court of Appeals until two
days after the filing deadline. Like the delay in Chavez’s case, this delay was only marginal.
6
Further, Petitioner reasonably anticipated that if she mailed her notice of appeal from
Albuquerque to Santa Fe via the USPS, that it would arrive within four days. The
unexpected delay that occurred in this case was caused by the USPS and thus constituted an
unusual circumstance outside Petitioner’s control. Under the circumstances, to deprive
Petitioner of her constitutional “absolute right to one appeal” because of a mailing delay
would frustrate the intent of our court rules and undermine our responsibility to “expedite
rather than hinder this right.” Trujillo, 117 N.M. at 276, 871 P.2d at 372.
{22} Other state courts have similarly found that a delay in the mail warrants excusing an
untimely filing of a notice of appeal. For instance, in Bosler v. Morad, the Supreme Court
of Wyoming excused the appellant’s late filing by one day, concluding that he acted as a
reasonably prudent person would in relying on his belief, based on prior experience, that the
mail from Laramie to Casper would take less than two days to arrive. 555 P.2d 567, 570
(Wyo. 1976). Additionally, federal courts have noted that the late filing of a notice of appeal
may be excused due to an unexpected mail delay. See Scarpa v. Murphy, 782 F.2d 300, 301
(1st Cir. 1986) (“There was no mistake by counsel, excusable or otherwise. Rather, there
was inexcusable neglect by the Post Office to take more than five days . . . to transmit an
adequately addressed letter three miles, and no basis for charging counsel for failing to think
that more might be needed.”); Md. Cas. Co. v. Conner, 382 F.2d 13, 16 (10th Cir. 1967)
(“[T]here are a number of other situations in which tardiness is excusable and in which it is
unfair to dismiss an appeal because of late filing of the notice. The most obvious example,
perhaps, is undue delay in the mails resulting from a severe snow storm, or perhaps even
from an unexpected swamping of the Post Office Department . . . .”). See also United States
v. Reyes, 759 F.2d 351, 354 (4th Cir. 1985) (holding that a mailing delay constituted
excusable neglect).
{23} Employer/Insurer argues that Wilson v. Massachusetts Mutual Life Insurance Co.,
2004-NMCA-051, 135 N.M. 506, 90 P.3d 525, a case in which certiorari was never sought,
is controlling, and thus, as occurred in that case, Petitioner’s untimely appeal should be
dismissed. In Wilson, the Court of Appeals held that the State of Texas’s notice of appeal,
sent by United Parcel Service second day air overnight package and arriving five days later
to the Court, missing the deadline by one day, was untimely because it did not involve
unusual circumstances outside of the party’s control:
Here, Texas’ counsel had options available to her that she did not pursue,
such as following up on the UPS delivery and/or filing the notice by fax. We
will not extend the exception to late filing to circumstances like this, where
the court played no part in the delay and where options available to the
appellant to ensure timely filing of the notice were not taken. Therefore, we
dismiss the Texas appeal as untimely.
Id. ¶ 12. Though the circumstances of the late filing in Wilson were similar to the present
case, we opine that the Court of Appeals struck the wrong balance between the right to an
appeal and the need for efficient administration of justice. The Court of Appeals failed to
excuse the petitioner’s late filing in part because “the court played no part in the delay.” Id.
We note, however, that “error on the part of the court” is merely cited as an example of
“unusual circumstances beyond the control of the parties,” but it is not the only ground upon
which a court can excuse a late notice of appeal. Chavez, 1997-NMSC-051, ¶ 19. In
Chavez, for example, we excused the petitioner’s marginal late filing even in the absence of
court error. Id. ¶¶ 21-22. In addition, the Court of Appeals in Wilson suggested that the
petitioner’s reliance on the timeliness of the courier was misplaced. 2004-NMCA-051, ¶ 11.
7
We conclude, however, that a petitioner reasonably may rely on his or her own knowledge
and experience, as well as the representations of the mail or courier service, regarding a
document’s expected date of arrival. Even though the mail is occasionally delayed, it would
be unreasonable for us to require petitioners to anticipate unreasonable or excessive delays
in delivery. Bosler, 555 P.2d at 570. Moreover, it would be unreasonable for us to expect,
as the Court of Appeals suggests, that appellants should file using all available delivery
options to prepare for the eventuality that one of those methods might not prove effective.
Therefore, we overrule Wilson.
{24} We generally favor a case-by-case analysis of the facts to determine whether a late
filing is attributable to excusable neglect. Capco Acquisub, Inc. v. Greka Energy Corp.,
2007-NMCA-011, ¶ 27, 140 N.M. 920, 149 P.3d 1017 (“Whether an appellant’s conduct
amounts to excusable neglect will depend on the facts and circumstances of each case.”); see
also Sunwest Bank v. Roderiguez, 108 N.M. 211, 214, 770 P.2d 533, 536 (1989) (holding
that courts should analyze claims of excusable neglect based on the circumstances of each
case). However, considering that mail delays, more often than not, are outside of a
petitioner’s control and, as we have stated, petitioners filing notices of appeal are not
required to anticipate unusually long delays in the mail, we conclude that to individually
determine whether each and every mailing delay constitutes excusable neglect would be an
inefficient use of the court’s time and resources. Thus, we refer this matter to the Appellate
Rules Committee to consider adopting a reasonable grace period for unexpected delays in
the mail.
III. CONCLUSION
{25} We conclude that pursuant to Rule 12-601(C) the WCJ did not have authority to
grant Petitioner’s request for an extension of time. However, we also conclude that the
Court of Appeals abused its discretion in failing to excuse Petitioner’s late filing since it was
due to an unanticipated mailing delay that was outside the control of Petitioner. Therefore,
we remand this case to the Court of Appeals to consider Petitioner’s appeal on the merits.
{26} IT IS SO ORDERED.
____________________________________
PETRA JIMENEZ MAES, Justice
WE CONCUR:
____________________________________
CHARLES W. DANIELS, Chief Justice
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice (concurring in part and dissenting in part)
CHÁVEZ, Justice (concurring in part and dissenting in part).
8
{26} I agree with the majority that the Worker’s Compensation Judge did not have
authority to grant an extension of time within which to file a notice of appeal with the Court
of Appeals. I also agree that we should not adopt a substantial compliance rule in this case.
However, because the relevant appellate rules are unambiguous and they clearly provide that
filing of the notice of appeal by mailing is not complete until it is actually received by the
appellate court, I would affirm the Court of Appeals and dismiss the appeal. I therefore
respectfully concur in part and dissent in part.
{27} Our system of justice will work better if we enforce unambiguous rules. When we
decline to enforce unambiguous rules, we signal that it is not important for the lower courts
to enforce such rules. When courts decline to enforce rules, litigants do not see the need to
follow the rules. We must be disciplined enough to write what we mean and mean what we
write.
{28} Although I recognize that unusual circumstances may excuse strict compliance with
certain rules, particularly when the rule is subject to more than one interpretation as in
Trujillo v. Serrano, 117 N.M. 273, 276, 871 P.2d 369, 372 (1994), the relevant rules in this
case are not ambiguous. Indeed, this Court went out of its way in writing its appellate rules
to make clear to lawyers that when it comes to filing the notice of appeal, they should not
rely on the mail. Rule 12-307(A) NMRA unequivocally states that “[f]iling by mail is not
complete until actual receipt.” This Court emphasized in Rule 12-201(A) NMRA, which
describes the procedure for filing a notice of appeal, that “[t]he three (3) day mailing period
set forth in Paragraph B of Rule 12-308 NMRA does not apply to the time limits” for filing
a notice of appeal. It could not be clearer: Do not rely on the mail for filing a notice of
appeal. Why? Because if it is not received by the due date, the fact that you put it in the
mail on time will not be an acceptable excuse.
{29} If the rules were not already clear enough, in 2004 the Court of Appeals issued its
opinion in Wilson v. Massachusetts Mutual Life Insurance Co., 2004-NMCA-051, ¶¶ 11-12,
135 N.M. 506, 90 P.3d 525, holding that delays in a UPS delivery would not be considered
an unusual circumstance to excuse the late filing of a notice of appeal. The Court of Appeals
had every right to believe that when we wrote specific language indicating that filing by mail
is not complete until it is actually received, we would not accept as an excuse the plea “the
notice was in the mail.” Rules 12-307 and 12-201 are not ambiguous and they are not new:
They were drafted in 1989.
{30} For at least two decades, New Mexico appellate courts have tried to make it clear that
the timely filing of a notice of appeal is more than a mere technicality. Following the Court
of Appeals decision in Martinez v. Wooten Construction Co., 109 N.M. 16, 780 P.2d 1163
(Ct. App. 1989) (a petition for writ of certiorari was not filed), this Court was quick to
reaffirm this State’s well-established case law in Lowe v. Bloom that failure to file within the
time frame allotted by rule and with the appropriate tribunal each independently create
jurisdictional error: “We follow the majority rule.” 110 N.M. 555, 556, 798 P.2d 156, 157
(1990) (“[W]e are persuaded that the very concept of a timely filing (Rule 12-201) includes
the concept that the party has substantially complied with applicable place-of-filing
requirements[.]” (citation omitted)). In Lowe, this Court determined that mailing a notice
of appeal to the wrong location–to the district judge instead of the clerk of the district
court–“did not transform a jurisdictional defect into a technical one.” Id. The Court of
Appeals subsequently applied the Lowe holding to Rule 12-601 NMRA as well, inferring
that Lowe’s express overruling of Martinez, which was a workers’ compensation case,
indicated this Court’s intent to apply the Lowe holding to Rule 12-601 as well as to Rule 12-
9
202 NMRA. Singer v. Furr’s, Inc., 111 N.M. 220, 220-21, 804 P.2d 411, 411-12 (Ct. App.
1990) (holding that a notice of appeal from WCA that was filed with WCA, not Court of
Appeals, was not timely filed). “[N]otices of appeal must be timely filed in the correct
tribunal.” Id. at 221, 804 P.2d at 412 (citing Lowe, 110 N.M. at 556, 798 P.2d at 157).
{31} Even in his eloquent and persuasive dissent, parts of which have now been
incorporated into this Court’s precedent on notice of appeal defects, Justice Montgomery
acknowledged, and even emphasized, the importance of timing. “[F]rom the many cases
holding that timely filing of the notice is jurisdictional one can glean that it is a very
important requirement. . . . [T]he appellate courts in this state, as in all or most other
jurisdictions, have treated this step as of very great–i.e., jurisdictional–consequence.” Lowe,
110 N.M. at 557, 798 P.2d at 158 (Montgomery, J., dissenting) (“[I]t gives notice to the
court, the opposing party and anyone else who needs it that the appellate process is
underway.”). As long as the notice of appeal was filed timely, Justice Montgomery argued
that “[n]o similar consequence would seem to attach to the filing of the notice with the”
wrong tribunal. Id. (because “when notice of the filing is given to the other people
mentioned in Rules 12-202(D) and (E), [requiring notice to be filed with the clerk of the
district court] does not seem to serve any great jurisdictional objective.”).
{32} Partly in response to Justice Montgomery’s dissent, this Court modified its stern
approach to hold that the timing issue is not so much jurisdictional as it is mandatory: “It
is probably imprecise to say we cannot exercise such discretion.” Govich v. North American
Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (appeal was timely and filed in the
proper tribunal and noting that “we properly should refer hereafter to the mandatory sections
of our rules of appellate practice as ‘mandatory’ and discard the term ‘jurisdictional’ that has
been used over time by most federal and state courts to describe a mandatory precondition
to the exercise of jurisdiction”); see also Executive Sports Club, Inc. v. First Plaza Trust,
1998-NMSC-008, ¶ 4, 125 N.M. 78, 957 P.2d 63 (“[T]he timely filing of a notice of appeal
is a mandatory precondition to the exercise of jurisdiction, rather than an absolute
jurisdictional requirement.” (internal quotation marks, alterations, and citation omitted)).
{33} In Govich, this Court held that “[t]he policies in this state, and the purpose of the
rule, are vindicated if the intent to appeal a specific judgment fairly can be inferred from the
notice of appeal and if the appellee is not prejudiced by any mistake.” Id., 112 N.M. at 230,
814 P.2d at 98. By inference, therefore, it is probably fair to say that untimely filing of
notices of appeal is prejudicial, given the mandatory, if not jurisdictional, nature of the
prerequisite. In this case, it could be prejudicial to Respondents to grant the extension
because of its untimeliness.
{34} Subsequently in Trujillo, 117 N.M. at 275, 871 P.2d at 371, this Court made a rare
exception to the mandatory rule for timely filing of a notice of appeal when the tardiness was
due entirely to court error. Id. (“We conclude that there is no jurisdictional bar to hear the
appeal if the notice was late because of court error.”). We stated that given the importance
of the constitutional right to one appeal, the proper inquiry is “whether there are unusual
circumstances under which a trial court should entertain an untimely notice of appeal.” Id.
at 276, 871 P.2d at 372 (“As we have previously stated, ‘[i]t is the policy of this court to
construe its rules liberally to the end that causes on appeal may be determined on the merits,
where it can be done without impeding or confusing administration or perpetrating
injustice.’” (citation omitted)). This Court held that “[p]rocedural formalities should not
outweigh basic rights [but only] where the facts present a marginal case which does not lend
itself to a bright-line interpretation.” Id. The Court reiterated the notion that “‘Where . . .
10
there are two possible interpretations relating to the right to an appeal, that interpretation
which permits a review on the merits rather than rigidly restricting appellate review should
be favored.’” Id. (quoting Maples v. State, 110 N.M. 34, 42, 791 P.2d 788, 796 (1990)
(Montgomery, J., dissenting)).
{35} These rules excusing untimeliness, however, have never been applied to grant
leniency in situations where a party allegedly simply misread a rule or never filed a request
for an extension to file a notice of appeal in the proper tribunal, as is the case before us.
Rather, it is only “under unusual circumstances” that a court may “use its discretion and
entertain an appeal even though it is not timely filed.” Trujillo, 117 N.M. at 278, 871 P.2d
at 374. This is because
[i]t is incumbent upon the parties to strictly adhere to our clearly articulated
rules of procedure. Procedural rules do nothing if they do not establish
uniformity upon which all participants in the legal system can rely. Only the
most unusual circumstances beyond the control of the parties–such as error
on the part of the court–will warrant overlooking procedural defects.
Id.
{36} The majority’s reliance on cases from Wyoming and the federal courts is misplaced.
Those jurisdictions do not have rules that make it clear that a filing by mail is not complete
until it is actually received. Our rules provide the very obstacle under discussion to finding
unusual circumstances in this case.
{37} The conflict between our rules and the majority opinion is best illustrated by the
following quotation from paragraph 23 of the majority opinion:
Further, Petitioner reasonably anticipated that if she mailed her notice of
appeal from Albuquerque to Santa Fe via the USPS that it would arrive
within four days. The unexpected delay that occurred in this case was caused
by the USPS and thus constituted an unusual circumstance outside
Petitioner’s control. Under the circumstances, to deprive Petitioner of her
constitutional “absolute right to one appeal” because of a mailing delay
would frustrate the intent of our court rules and undermine our responsibility
to “expedite rather than hinder this right.” Trujillo, 117 N.M. at 276, 871
P.2d at 372.
(Emphasis added.) In my opinion, the intent of our court rules providing that (1) filing by
mail is not complete until it is actually received, and (2) the three-day mailing period does
not apply to the filing of a notice of appeal, is that a mailing delay will not be accepted as
an unusual circumstance to excuse a late filing. Because I was not on the Court at the time
Rules 12-307(A), 12-201(A), and 12-201(E)(5) were adopted, I admit that I can only
speculate about the rationale for their adoption. Perhaps it was because “to individually
determine whether each and every mailing delay constitutes excusable neglect would be an
inefficient use of the court’s time and resources.” Majority opinion ¶ 26.
{38} For these reasons, I would affirm the Court of Appeals. The majority being of a
different opinion, I respectfully dissent from Section II.B.
____________________________________
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EDWARD L. CHÁVEZ, Justice
Topic Index for Schultz v. Pojoaque Tribal Police, Docket No. 31,374
AL ADMINISTRATIVE LAW AND PROCEDURE
AL-AA Administrative Appeal
AE APPEAL AND ERROR
AE-NA Notice of Appeal
AE-RT Right to Appeal
AE-TA Timeliness of Appeal
CP CIVIL PROCEDURE
CP-EN Excusable Neglect
JD JURISDICTION
JD-A Appellate Jurisdiction
WC WORKERS COMPENSATION
WC-NO Notice
WC-WG Workers' Compensation, General
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