Morales v. Sanchez

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 JESUS A. MORALES, 8 Plaintiff-Appellant, 9 v. NO. 29,802 10 DAVID SANCHEZ, DEPARTMENT 11 OF CORRECTIONS AND ALL 12 WARDENS, 13 Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 15 Don Maddox, District Judge 16 Jesus A. Morales 17 Clayton, NM 18 Pro Se Appellant 19 Yenson Lynn Allen & Wosick PC 20 Patricia A. Padrino 21 Albuquerque, NM 22 for Appellees 23 MEMORANDUM OPINION 1 CASTILLO, Judge. 2 Plaintiff Jesus A. Morales appeals the district court’s grant of Defendants’ 3 motion for summary judgment. On July 12, 2010, this Court filed a notice of 4 proposed summary disposition proposing to dismiss the appeal due to Plaintiff’s 5 failure to timely file a notice of appeal in district court. Plaintiff filed a memorandum 6 in opposition to summary disposition, which we have duly considered. We dismiss 7 Plaintiff’s appeal. 8 On August 20, 2009, the district court filed its written order granting summary 9 judgment for Defendants. [RP 187] Neither the record proper nor the Court of 10 Appeals file indicates that a notice of appeal was filed in district court, as required by 11 Rule 12-202(A) NMRA. 12 Appellate requirements for time and place of filing should be termed 13 “mandatory” rather than “jurisdictional,” and an appellate court has discretion to hear 14 an appeal if a party has failed to comply with such mandatory preconditions. See 15 Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). However, 16 “[o]nly the most unusual circumstances beyond the control of the parties—such as 17 error on the part of the court—will warrant overlooking procedural defects.” Trujillo 18 v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994). 19 In his memorandum in opposition, Plaintiff states that he did not know he was 2 1 supposed to file a notice of appeal in district court and discusses the difficulties 2 incarcerated persons may experience in pursuing legal matters. He does not persuade 3 us, however, that his circumstances warrant overlooking his failure to file a timely 4 notice of appeal in district court. 5 For the reasons stated above, we dismiss Plaintiff’s appeal. 6 IT IS SO ORDERED. 7 ___________________________________ 8 CELIA FOY CASTILLO, Judge 9 WE CONCUR: 10 __________________________________ 11 JONATHAN B. SUTIN, Judge 12 __________________________________ 13 MICHAEL E. VIGIL, Judge 3