Pequeno v. Lowe's Home Centers ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOAQUEN PEQUENO,
3 Worker-Appellant,
4 v. NO. 35,395
5 LOWE’S HOME CENTERS, INC. and
6 SEDGWICK CLAIMS MANAGEMENT
7 SERVICES,
8 Employer/Insurer-Appellees.
9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 Leonard J. Padilla, Workers’ Compensation Judge
11 Eaton & Eaton Law, P.C.
12 Kathryn L. Eaton
13 Los Ranchos de Albuquerque, NM
14 for Appellant
15 Allen, Shepherd, Lewis & Syra, P.A.
16 Kimberly A. Syra
17 Albuquerque, NM
18 for Appellees
19 MEMORANDUM OPINION
1 WECHSLER, Judge.
2 {1} Joaquen Pequeno (Worker) appeals from a compensation order, entered and
3 mailed on January 27, 2016. We issued a notice of proposed summary disposition in
4 which we proposed to dismiss. Employer/Insurer-Appellees filed a timely
5 memorandum in support of our proposed dismissal, and Worker filed a timely
6 memorandum in opposition. After due consideration, we remain unpersuaded that this
7 matter is properly before us. We therefore dismiss.
8 {2} In our calendar notice, we proposed to dismiss based on an untimely notice of
9 appeal. [See generally CN] See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12,
10 112 N.M. 226, 814 P.2d 94 (explaining that time and place of filing notice of appeal
11 is a mandatory precondition to appellate jurisdiction); Rice v. Gonzales,
12 1968-NMSC-125, ¶ 4, 79 N.M. 377, 444 P.2d 288 (stating that “an appellate court has
13 the duty to determine whether it has jurisdiction of an appeal”). We stated that while
14 we may exercise our discretion to consider an untimely appeal in the event of unusual
15 circumstances beyond the control of a party, see Trujillo v. Serrano, 1994-NMSC-
16 024, ¶ 15, 117 N.M. 273, 871 P.2d 369, no such circumstances appear to be present
17 in this case. [CN 3] We explained that, to be timely, the notice of appeal should have
18 been filed with this Court on or before February 26, 2016; however, the notice was
19 untimely filed on February 29, 2016. [CN 2] See NMSA 1978, § 52-5-8(A) (1989)
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1 (“Any party in interest may, within thirty days of mailing of the final order of the
2 workers’ compensation judge, file a notice of appeal with the [C]ourt of [A]ppeals.”);
3 Rule 12-601(B) NMRA (requiring a notice of appeal from orders of administrative
4 agencies to be filed in this Court “within thirty (30) days from the date of the
5 order . . . appealed from”).
6 {3} In response, Worker argues that the statute and rule are inconsistent because
7 “[t]he date on which a final order of the workers’ compensation judge is mailed, or
8 received by the parties in the mail, may differ from the date of filing of the order
9 appealed from.” [MIO 2] He claims that “[b]ecause of the uncertainty and confusion
10 created by the discrepancy between the statute and the court rule, [he] filed his notice
11 of appeal within thirty (30) days from the date that the Compensation Order was
12 received in the mail, i.e., within thirty (30) days of mailing of the Compensation
13 Order.” [MIO 2]
14 {4} In Maples v. State, 1990-NMSC-042, ¶¶ 8-10, 110 N.M. 34, 791 P.2d 788, our
15 Supreme Court noted a possible conflict between Section 52-5-8(A) and Rule 12-601,
16 and held that the Rule takes precedence over the statute. See Massengill v. Fisher
17 Sand & Gravel Co., 2013-NMCA-103, ¶ 10, 311 P.3d 1231 (discussing the same); see
18 also Tzortzis v. Cty. of Los Alamos, 1989-NMCA-031, ¶ 2, 108 N.M. 418, 773 P.2d
19 363 (holding that “[w]hen a statute governing the time for appeal conflicts with a
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1 supreme court rule, the rule governs”). Therefore, Worker was required to file a notice
2 of appeal in this Court “within thirty (30) days from the date of the order . . . appealed
3 from.” Rule 12-601(B). The order was entered on January 27, 2016, such that a timely
4 notice of appeal was due on or before Friday, February 26, 2016. While we note that
5 Worker’s notice of appeal, filed Monday, February 29, 2016, was only one business
6 day late, “[o]nly the most unusual circumstances beyond the control of the
7 parties—such as error on the part of the court—will warrant overlooking procedural
8 defects.” Trujillo, 1994-NMSC-024, ¶ 19. We are not persuaded that such
9 circumstances appear to be present in this case.
10 {5} Accordingly, for the reasons stated above and in the notice of proposed
11 summary disposition, we dismiss.
12 {6} IT IS SO ORDERED.
13 ________________________________
14 JAMES J. WECHSLER, Judge
15 WE CONCUR:
16 ________________________________
17 LINDA M. VANZI, Judge
18 ________________________________
19 M. MONICA ZAMORA, Judge
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