Kim v. Deshone ( 2010 )

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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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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
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