Gonzales v. Vigil ( 2017 )

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 TONY GONZALES,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-35815
5 ROBERTO MAXIMINIO VIGIL,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
8 Jeff McElroy, District Judge
9 Tony Gonzales
10 El Prado, NM
11 Pro Se Appellee
12 Roberto Maximinio Vigil
13 Questa, NM
14 Pro Se Appellant
15 MEMORANDUM OPINION
16 ZAMORA, Judge.
17 {1} Following a judgment in favor of Plaintiff below, Defendant moved for
18 reconsideration, which was denied. Defendant appeals the denial of his motion for
1 reconsideration as well as the underlying judgment. We issued a notice of proposed
2 summary disposition proposing to dismiss the appeal due to Defendant’s failure to file
3 a timely notice of appeal. Defendant has filed a memorandum opposing the proposed
4 dismissal, and we have given careful consideration to the arguments made in that
5 memorandum. However, we continue to believe that dismissal of the appeal is
6 warranted.
7 {2} In his memorandum in opposition Defendant admits that he did not file his
8 notice of appeal within thirty calendar days of the filing of the order denying his
9 motion for reconsideration. However, he points out that he did file the notice within
10 thirty business days, and contends that he was told by an unnamed “clerk or clerk
11 assistant” of an unnamed court that the notice of appeal could be filed within thirty
12 business days. [MIO 1] However, the applicable rule clearly states that the notice must
13 be filed “within thirty (30) days after the judgment or order appealed from is filed in
14 the district court clerk’s office.” Rule 12-201(A)(1)(b) NMRA. There is nothing in the
15 appellate rules stating that “thirty days” means “thirty business days.” In fact, the only
16 instance in which weekends or holidays are excluded from calculating a time deadline
17 is when the deadline is very short, ten days or less. Rule 12-308(A)(2) NMRA. This
18 same rule provides expressly that when the applicable time deadline is eleven days or
2
1 more, weekends and holidays are not excluded from the time calculation. Rule 12-
2 308(A)(1).
3 {3} Given the clear nature of the appellate rules in question, it was not reasonable
4 for Defendant to rely on an oral statement from a “clerk or clerk assistant” in
5 determining when to file his notice of appeal. Although Defendant is representing
6 himself, he is held to the same standards as a practicing attorney and must comply
7 with our appellate rules. See Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301,
8 980 P.2d 84. We would not allow an attorney to rely on erroneous oral advice given
9 by a clerk or clerk assistant, and the same holds true for Defendant.
10 {4} Based on the foregoing as well as the discussion contained in our notice of
11 proposed summary disposition, we determine that the notice of appeal was untimely
12 filed and we dismiss this appeal.
13 {5} IT IS SO ORDERED.
14
15 M. MONICA ZAMORA, Judge
16 WE CONCUR:
17
18 MICHAEL E. VIGIL, Judge
19
3
1 J. MILES HANISEE, Judge
4