Kim v. Deshone

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 HYON KIM, 8 Plaintiff-Appellee, 9 v. NO. 30,150 10 CRAIG DESHONE, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 David P. Reeb, Jr., District Judge 14 Garrett Law Firm, P.A. 15 Michael T. Garrett 16 Clovis, NM 17 for Appellee 18 Marna N. Pyle-Trammell 19 Clovis, NM 20 for Appellant 21 MEMORANDUM OPINION 22 FRY, Chief Judge. 23 Appellant is appealing from a district court order appointing a permanent 24 guardian and conservator. We issued a calendar notice proposing to dismiss the 1 appeal. Appellant has responded with a memorandum in opposition. We dismiss the 2 appeal. 3 The order appealed from was filed on December 18, 2009. [RP 216] 4 Accordingly, the notice of appeal was due on January 19, 2010, after the Martin 5 Luther King holiday. See Rule 12-201(A)(2) NMRA. The notice of appeal was not 6 filed in the district court until February 17, 2010. [RP 220] Although a notice of 7 appeal had been filed with this Court on January 14, 2010, the notice should have 8 been filed with the district court clerk. See Rule 12-202(A) NMRA. Because 9 Appellant did not timely file a notice of appeal with the district court clerk, our 10 calendar notice proposed to dismiss the appeal. See Govich v. N. Am. Sys., Inc., 112 11 N.M. 226, 230, 814 P.2d 94, 98 (1991) (compliance with notice of appeal time and 12 place requirements are mandatory preconditions to exercise of appellate jurisdiction). 13 In her memorandum in opposition, Appellant makes the claim that she did in 14 fact timely file a notice of appeal with the district court on January 14, 2010, but they 15 mistakenly did not find it. Appellant correctly notes that this Court should overlook 16 an untimely appeal where a late filing is due to court error. See Trujillo v. Serrano, 17 117 N.M. 273, 278, 871 P.2d 369, 374 (1994). However, there are no facts in the 18 record to support Appellant’s claim. Because Appellant’s February 17 notice of 19 appeal was filed within the time for the district court to grant an extension, see Rule 2 1 12-201(E)(2) NMRA, we believe that the appropriate avenue of relief for Appellant 2 is to seek an extension of time from the district court. In the event that the district 3 court grants that request, Appellant may renew her appeal. Finally, we note that this 4 Court has received affidavits on this matter. Because this Court is not a fact finding 5 court, we do not consider such documents. The district court, however, may consider 6 these as part of its ruling on the extension request.’ 7 CONCLUSION 8 For the reasons set forth above, we dismiss the appeal. 9 IT IS SO ORDERED. 10 11 CYNTHIA A. FRY, Chief Judge 12 WE CONCUR: 13 14 MICHAEL D. BUSTAMANTE, Judge 15 16 MICHAEL E. VIGIL, Judge 3