PennyMac Mortgage Investment Trust Holdings I, LLC v. Salazar ( 2018 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PENNYMAC MORTGAGE INVESTMENT
3 TRUST HOLDINGS I, LLC,
4 Plaintiff-Appellee,
5 v. No. A-1-CA-36864
6 PETE D. SALAZAR,
7 Defendant-Appellant,
8 and
9 THE UNKNOWN SPOUSE OF PETE D.
10 SALAZAR, if any,
11 Defendant.
12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 John F. Davis, District Judge
14 Akerman LLP
15 Michael John McKleroy, Jr.
16 Dallas, TX
17 for Appellee
18 Pete D. Salazar
19 Placitas, NM
1 Pro Se Appellant
2 MEMORANDUM OPINION
3 HANISEE, Judge.
4 {1} Defendant Pete D. Salazar, a self-represented litigant, appeals from the district
5 court’s order denying his Rule 1-060(B)(6) NMRA motion to set aside judgment and
6 vacate sale. In this Court’s notice of proposed disposition, we proposed to summarily
7 dismiss the case for untimely notice of appeal. [CN 1-3] Defendant filed a
8 memorandum in opposition (MIO), and Plaintiff filed a memorandum in support
9 (MIS). Having duly considered the memoranda, we remain unpersuaded and dismiss
10 the appeal for untimely notice of appeal.
11 {2} In his MIO, Defendant essentially argues that his prior attorney withdrew
12 because his license was being suspended and that Defendant would be prejudiced if
13 this Court dismissed his untimely appeal in light of such circumstances. [See MIO 1-
14 3] However, in reviewing the record, it is apparent that Defendant’s attorney sought
15 to withdraw on March 7, 2017 [1 RP 193], prior to Defendant even filing his motion
16 to set aside the judgment on April 20, 2017 [1 RP 198]. In other words, Defendant’s
17 attorney’s withdrawal from the case did not impact the timing of Defendant’s
18 untimely notice of appeal because the withdrawal occurred before the district court
19 ever ruled on the motion at issue in this appeal. [See 2 RP 273] Indeed, Defendant had
2
1 not been represented by his prior counsel for at least six months prior to the date that
2 his notice of appeal would have been due and, as such, the onus for filing a timely
3 notice of appeal was on Defendant. [See MIO PDF 2-3] We reiterate that self-
4 represented litigants are held to the same standard as attorneys in appeals to this Court.
5 See In re Camino Real Envtl. Ctr., Inc. v. N.M. Dep’t of Env’t, 2010-NMCA-057,
6 ¶ 21, 148 N.M. 776, 242 P.3d 343 (“Although pro se pleadings are viewed with
7 tolerance, a pro se litigant is held to the same standard of conduct and compliance
8 with court rules, procedures, and orders as are members of the bar.” (alteration,
9 internal quotation marks, and citation omitted)); Woodhull v. Meinel, 2009-NMCA-
10 015, ¶ 30, 145 N.M. 533, 202 P.3d 126 (“Pro se litigants must comply with the rules
11 and orders of the court and will not be treated differently than litigants with
12 counsel.”).
13 {3} As there are no exceptional circumstances present in this case, we dismiss
14 Defendant’s untimely appeal. See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12,
15 112 N.M. 226, 814 P.2d 94 (explaining that time and place of filing notice of appeal
16 is a mandatory precondition to appellate jurisdiction); see also Wakeland v. N.M.
17 Dep’t of Workforce Sols., 2012-NMCA-021, ¶¶ 20, 25, 274 P.3d 766 (stating that
18 “only the most unusual circumstances beyond the control of the parties—such as error
19 on the part of the court[—]will warrant overlooking the requirement that a document
3
1 must be timely filed as a mandatory precondition to the exercise of a court’s
2 jurisdiction,” and that, although “[i]n very limited circumstances, this Court has held
3 that uncertainty in the law will excuse the late filing of a petition[,]” “[s]imply being
4 confused or uncertain about the appropriate procedure for seeking review is not the
5 sort of unusual circumstance beyond the control of a party that will justify an untimely
6 filing”). We additionally note that, because a party does not have the right to
7 appointed counsel in civil cases, his “ineffective counsel” argument is similarly
8 unpersuasive. See Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84
9 (reiterating that, “in civil proceedings where liberty interests are not involved,
10 appointment of counsel is considered a privilege, not a right”).
11 {4} Finally, we note that, even if Defendant’s appeal had been timely, this Court
12 still would not exercise its jurisdiction to hear the appeal based on the procedural
13 posture of the case. As Defendant is aware, this case has been given the benefit of
14 appellate review before. On July 16, 2015, the district court entered an order denying
15 Defendant’s motion to dismiss for lack of jurisdiction and entered summary judgment
16 against him. [1 RP 140, 142] Defendant appealed from that final judgment and, on
17 January 27, 2016, after considering the merits, this Court summarily affirmed the
18 judgment, entering a mandate on April 25, 2016. [1 RP 147, 168, 175, 176] A year
19 later, on April 20, 2017, Defendant filed his pro se motion to set aside the judgment.
4
1 [1 RP 198] Defendant’s motion to set aside the judgment, filed a year after the
2 mandate issued from this Court, fails to satisfy the requirement that post-judgment
3 motions to reconsider must be filed before the expiration of the time for appeal. See
4 Rule 12-202(A) NMRA (stating that “[a]n appeal permitted by law as of right from
5 the district court shall be taken by filing a notice of appeal with the district court clerk
6 within the time allowed by Rule 12-201 NMRA”); Rule 12-201(A)(1)(b) (stating that
7 a notice of appeal shall be filed “within thirty (30) days after the judgment or order
8 appealed from is filed in the district court clerk’s office”); Rule 12-201(A)(2) (stating
9 that the three-day mailing period does not apply); see also Resolution Trust Corp. v.
10 Ferri, 1995-NMSC-055, ¶ 9, 120 N.M. 320, 901 P.2d 738 (“[A] motion pursuant to
11 Rule 60(B)(1) to correct an error of law by the district court must be filed before the
12 expiration of the time for appeal.” (internal quotation marks and citation omitted)).
13 {5} Accordingly, for the reasons stated in our notice of proposed disposition and
14 herein, we dismiss this case as untimely. See State v. Mondragon, 1988-NMCA-027,
15 ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a “party responding to a summary
16 calendar notice must come forward and specifically point out errors of law and fact[,]”
17 and the repetition of earlier arguments does not fulfill this requirement), superseded
18 by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297
19 P.3d 374.
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1 {6} IT IS SO ORDERED.
2 _______________________________
3 J. MILES HANISEE, Judge
4 WE CONCUR:
5 _____________________________
6 M. MONICA ZAMORA, Judge
7 _____________________________
8 STEPHEN G. FRENCH, Judge
6