Romero v. Hone ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MICHAEL P. ROMERO, dba
3 SANGRE DE CRISTO MOUNTAIN;
4 STONE & EXCAVATION,
5 Petitioner-Appellee,
6 v. NO. 32,975
7 LINDA HONE, and
8 CHACHALACA, LLC,
9 Respondent-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
11 Jeff Foster McElroy, District Judge
12 Lee Booth
13 Taos, NM
14 for Appellee
15 Richard S. Mackenzie
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 GARCIA, Judge.
1 {1} Ms. Linda Hone has filed a pro se notice of appeal, seeking to appeal from
2 district court orders in a foreclosure action against her limited liability company
3 (LLC), Chachalaca, LLC. We issued a notice of proposed summary disposition,
4 proposing to dismiss for an ineffective notice of appeal. A memorandum in opposition
5 to our notice was filed by counsel on behalf of Appellant, which appears to be
6 Chachalaca, LLC. Plaintiff also filed a response to our notice proposing dismissal. We
7 have considered the parties’ responses and remain unpersuaded to accept the notice
8 of appeal as properly triggering an appeal on behalf of Chachalaca, LLC. We,
9 therefore, dismiss.
10 {2} Our calendar notice made several observations about the pro se notices of
11 appeal that Ms. Hone filed in this appeal. First, we observed that she attempted to
12 appeal from two separate district court actions in this single appeal. Second, we
13 observed that the district court cases were not consolidated and are not properly
14 appealed together. Third, we observed that the notice of appeal filed in D-820-CV-
15 2009-186 was not timely filed from any order in that district court case. Fourth, we
16 observed that the notices of appeal list two orders that it wishes to challenge on
17 appeal, and both of them were entered in D-820-CV-2012-118, the foreclosure case.
18 Thus, our notice proposed to address only the foreclosure case. Fifth and lastly, we
19 observed that Ms. Hone was not a named party in the foreclosure case and was
2
1 seeking to appeal on behalf of Chachalaca, her LLC. We proposed to dismiss the
2 appeal on the grounds that Ms. Hone’s notice of appeal constituted the unauthorized
3 practice of law and was ineffective to trigger an appeal on behalf of the LLC. See
4 Martinez v. Roscoe, 2001-NMCA-083, ¶¶ 7-15, 131 N.M. 137, 33 P.3d 887.
5 {3} In response to our notice, Chachalaca, LLC, offers reasons why Ms. Hone was
6 confused about the existence of two separate cases and argues that the district court
7 treated her unfairly and wrongfully denied Chachalaca, LLC relief under Rule 1-
8 060(B) NMRA. [MIO unpaginated 2-4] With respect to our proposed dismissal,
9 Chachalaca, LLC, argues that Ms. Hone is the “real party in interest” as the sole owner
10 and member of the LLC. [MIO unpaginated 3] This does not change the result that by
11 filing the appeal on behalf of Chachalaca, LLC, Ms. Hone was engaged in the
12 unauthorized practice of law because she was not a named party or a licensed attorney,
13 and our case law requires artificial legal entities, including limited liability companies,
14 to be represented by a licensed attorney. See Martinez, 2001-NMCA-083, ¶¶ 8-15.
15 Ms. Hone’s attempt to appeal on behalf of an LLC does not properly trigger
16 Chachalaca, LLC’s right to appeal, nor does it properly invoke our jurisdiction to
17 consider the appeal. See id.
18 {4} Chachalaca, LLC, asks this Court to exercise its jurisdiction and remand the
19 foreclosure case to the district court with instructions to set aside default judgment and
3
1 to consider the Rule 1-060(B) motion. [MIO unpaginated 4] Chachalaca, LLC, further
2 requests, in the event we determine that we do not have jurisdiction to do so, that we
3 dismiss the appeal without prejudice and grant it the opportunity to appeal within ten
4 days. [MIO unpaginated 4-5] We cannot fulfill this request. We lack authority and
5 jurisdiction to grant an extension to file the notice of appeal, and any notice of appeal
6 that may be filed would be untimely. See Rule 12-201(A)(2) NMRA (requiring the
7 notice of appeal to be filed within thirty days of the final order from which the
8 appellant seeks to appeal); Rule 12-201(E)(1) (“Before the time for filing a notice of
9 appeal has expired, upon a showing of good cause, the district court may extend the
10 time for filing the notice of appeal by any party for a period not to exceed thirty (30)
11 days from the expiration of the time otherwise prescribed by this rule.” (emphasis
12 added)). Chachalaca, LLC, must seek some other form of post-judgment relief.
13 {5} For the reasons stated in this opinion and in our notice, we dismiss the appeal.
14 {6} IT IS SO ORDERED.
15
16 TIMOTHY L. GARCIA, Judge
4
1 WE CONCUR:
2
3 RODERICK T. KENNEDY, Chief Judge
4
5 J. MILES HANISEE, Judge
5