Lowe v. Bloom , 110 N.M. 555 ( 1990 )

OPINION

RANSOM, Justice.

Appeal purportedly was taken to the court of appeals from a summary judgment entered on October 3, 1989. The case subsequently was transferred to this Court pursuant to NMSA 1978, Section 34-5-10 (Repl.Pamp.1981), which provides for the transfer of misfiled appeals from the court of appeals. Appellees moved to dismiss for jurisdictional defect because appellant failed to properly file notice of appeal with the clerk of the district court within thirty days as provided by SCRA 1986, 12-201, -202(A). Appellant instead had filed the original and one copy of the notice of appeal with the clerk of the court of appeals on or about October 5, 1989. At the same time, pursuant to Rule 12-202(D)(3), appellant mailed copies of this notice to appellees’ counsel and the trial judge in Carlsbad. Notice was not filed with the district court clerk until March 12, 1990. Nonetheless, appellant contends that he has substantially complied with the requirements of the appellate rules, that appellees’ substantive rights have not been prejudiced, and that his mistake constituted a technical violation of Rule 12-202 which, under Rule 12-312, should not result in dismissal of his appeal. We disagree.

Our appellate courts liberally construe the appellate rules in order to reach the merits of appeals in which their jurisdiction properly has been invoked. See, e.g., James v. Brumlop, 94 N.M. 291, 293, 609 P.2d 1247, 1249 (Ct.App.), cert. denied, 94 N.M. 674, 615 P.2d 991 (1980). In James the court of appeals held it had no jurisdiction over an appeal from summary judgment when notice was filed more than thirty days following entry of judgment. Nevertheless, the trial court’s refusal to reopen the proceedings under SCRA 1986, 1-060(B) was a final, appealable order and the court of appeals regarded the notice of appeal designated as an appeal from the summary judgment as an appeal from the denial of appellant’s Rule 60(B) motion, when notice was filed within thirty days of denial of the motion.

We, however, cannot exercise such discretion concerning rules that govern the proper invocation of our jurisdiction. Id. Previous New Mexico cases have held failure to file notice of appeal within the time allotted under the appellate rules creates jurisdictional error. See Public Serv. Co. v. Wolf, 78 N.M. 221, 223, 430 P.2d 379, 381 (1967); State v. Brinkley, 78 N.M. 39, 40, 428 P.2d 13, 14 (1967). While our cases have not addressed whether failure to file with the appropriate court also creates jurisdictional error, appellees cited numerous cases from other jurisdictions that so hold. See Scribner v. State, 372 So.2d 1311, 1312 (Ala.Civ.App.1979); Collins v. Boulder Urban Renewal Authority, 684 P.2d 952 (Colo.Ct.App.1984); Lampkin-Asam v. District Court of Appeal, 364 So.2d 469 (Fla.1978); Loter v. Metropolitan Life Ins. Co., 229 Iowa 1127, 1133, 296 N.W. 227, 230 (1941); City of Bonner Springs v. Clark, 3 Kan.App.2d 8, 588 P.2d 477 (1978); Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317 (1940); In re Homing’s Will, 42 N.E.2d 554 (Ohio App.1942). Contra Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974); Weeks v. Chief of Washington State Patrol, 96 Wash.2d 893, 639 P.2d 732 (1982) (en banc).

We follow the majority rule. Appellant is correct that Rule 12-202 includes both place-of-filing and content requirements for notices of appeal. Further, Rule 12-312 provides that, so long as the filing took place in a timely fashion under Rule 12-201, technical noncompliance with the provisions of Rule 12-202 that do not affect the substantive rights of the parties should not be grounds for dismissal of an appeal. However, we are persuaded that the very concept of a timely filing (Rule 12-201) includes the concept that the party has substantially complied with applicable place-of-filing requirements (Rule 12-202(A)).

Here, appellant’s filing of notice of appeal with the clerk of the court of appeals did not substantially comply with the requirement of Rule 12-202(A) that notice of appeal be filed with the clerk of the district court. We conclude no bona fide attempt to “file” a notice of appeal as that term is used in Rule 12-201 took place during the thirty-day time limit set out in that Rule. Appellant claims that his act of mailing a copy of the notice of appeal to the district court judge brought his actions into substantial compliance with Rule 12-202(A); however, the mere mailing of the notice to the judge as required by Rule 12-202(D)(3) did not transform a jurisdictional defect into a technical one.

Appellant understandably places reliance on the recent court of appeals case of Martinez v. Wooten Construction Co., 109 N.M. 16, 780 P.2d 1163 (Ct.App.1989), wherein it was held that improper filing of notice of appeal from a final order of the Worker’s Compensation Division with the Division rather than with the court of appeals was merely a technical deficiency when the notice was timely filed. See SCRA 1986,12-601 (appeals from statutory proceedings). We note that certiorari never was sought in the Martinez ease and that the court of appeals summarily ruled against the appellant on the merits. In any event, to the extent the court of appeals’ opinion may be read to suggest that failure to substantially comply with the requirements of Rule 12-202(A) results merely in a technical deficiency rather than a jurisdictional one, that case is overruled.

The present appeal is dismissed.

IT IS SO ORDERED.

SOSA, C.J., and BACA and WILSON, JJ., concur. MONTGOMERY, J., dissents.