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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 THOMAS GRIEGO
8 and DONALD GRIEGO,
9 Plaintiffs-Appellants,
10 v. NO. 30,621
11 GILBERT GRAVES
12 and DEBBIE GRAVES,
13 Defendants-Appellees.
14 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
15 Sheri A. Raphaelson, District Judge
16 Law Office of Ted J. Trujillo
17 Ted J. Trujillo
18 Adan E. Trujillo
19 Española, NM
20 for Appellants
21 O’Friel & Levy PC
22 Pierre Levy
23 Santa Fe, NM
24 for Appellees
1 MEMORANDUM OPINION
2 CASTILLO, Judge.
3 Plaintiffs appeal the denial of their motion brought under Rule 1-060(B)
4 NMRA. We proposed to dismiss Plaintiffs’ appeal, or alternatively, to affirm the
5 denial of Plaintiffs’ motion. In response, Plaintiffs have filed a memorandum in
6 opposition. We have considered the claims made by Plaintiffs, but we are not
7 persuaded by them. We therefore dismiss the appeal.
8 As discussed in our calendar notice, Plaintiffs failed to file a notice of appeal
9 with the district court. See Rules 12-201(A)(2) & 12-202(A) NMRA; Govich v. North
10 Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (holding that time and place
11 requirements for filing a notice of appeal are mandatory preconditions to appellate
12 review). When a party fails to comply with mandatory preconditions for filing the
13 notice of appeal, this Court looks to the circumstances. See Govich, 112 N.M. at 230,
14 814 P.2d at 98. “Only the most unusual circumstances beyond the control of the
15 parties—such as error on the part of the court—will warrant overlooking procedural
16 defects.” Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994).
17 Plaintiffs claim that they timely filed the notice of appeal with this Court, and the
18 omission of the district court from their service documents was corrected when the
19 docketing statement was filed. Plaintiffs’ explanations do not qualify as unusual
2
1 circumstances beyond their control. We decline to hear Plaintiffs’ appeal. We
2 therefore dismiss the appeal.
3 Moreover, even if we decided to hear the appeal, we would affirm the denial of
4 Plaintiffs’ motion. The motion was filed under Rule 1-060(B)(4) & (6) NMRA.
5 Plaintiffs claimed that the 2008 judgment was void because the district court did not
6 comply with Rule 1-063 NMRA, which provides that “[i]f a trial or hearing has been
7 commenced and the judge is unable to proceed, any other judge may proceed with it
8 upon certifying familiarity with the record and determining that the proceedings in the
9 case may be completed without prejudice to the parties.” Here, prior to entry of the
10 final judgment, the district judge entered an “Order Recognizing Authority of
11 Successor Judge to Enter Judgment Based on Trial Judge’s Decision.” [RP 2032] In
12 that order, the district judge pointed out that Plaintiffs did not dispute the district
13 judge’s authority to enter judgment. [Id.] Based on the fact that Plaintiffs did not
14 dispute the district court’s authority to complete the case and the fact that the district
15 court entered a detailed order explaining why it was entering its final judgment, we
16 would reject Plaintiffs’ argument under Rule 1-060(B)(4) that the judgment was void.
17 For purposes of Rule 1-060(B)(6), Plaintiffs claim exceptional circumstances
18 on several bases, including the long history of the case, the decision entered by the
19 first judge just prior to her retirement, non-compliance with Rule 1-063, the failure of
3
1 the third judge to set a second hearing, and the denial of a motion by the fourth judge
2 based on lack of jurisdiction. [RP 2371-72] “Exceptional circumstances” include
3 facts or circumstances that are out of the ordinary that are “around or about” a central
4 fact, and that “justifies relief in the mind of the court.” Dyer v. Pacheco, 98 N.M. 670,
5 673, 651 P.2d 1314, 1317 (Ct. App.1982) (internal quotation marks and citation
6 omitted), overruled on other grounds by Chase v. Contractors’ Equip. & Supply Co.,
7 100 N.M. 39, 43, 665 P.2d 301, 305 (Ct. App. 1983); see also Lopez v. Wal-Mart
8 Stores, Inc., 108 N.M. 259, 262, 771 P.2d 192, 195 (Ct. App. 1989). We do not agree
9 that Plaintiffs have demonstrated exceptional circumstances in this case.
10 For the reasons discussed in this opinion and those included in our calendar
11 notice, we dismiss Plaintiffs’ appeal.
12 IT IS SO ORDERED.
13 ___________________________________
14 CELIA FOY CASTILLO, Judge
15 WE CONCUR:
16 __________________________________
17 MICHAEL D. BUSTAMANTE, Judge
4
1 __________________________________
2 MICHAEL E. VIGIL, Judge
5