1997 -NMSC- 51, Chavez v. U-Haul Co. of New Mexico, Inc.

• Decision Date: 11 September 1997
• Docket Number: U-HAUL,No. 23548,23548
• Citation: 124 N.M. 165,1997 NMSC 51,947 P.2d 122
• Parties: , 1997 -NMSC- 51 Oscar M. CHAVEZ, Plaintiff-Appellant, v.COMPANY OF NEW MEXICO, INC., Defendant-Appellee. Earl JONES, Plaintiff-Appellant, v. JIM SPENCE OLDSMOBILE, CADILLAC, GMC, NISSAN, INC., Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 122

947 P.2d 122

124 N.M. 165, 1997 -NMSC- 51

Oscar M. CHAVEZ, Plaintiff-Appellant, v.U-HAUL COMPANY OF NEW MEXICO, INC., Defendant-Appellee.

Earl JONES, Plaintiff-Appellant, v.JIM SPENCE OLDSMOBILE, CADILLAC, GMC, NISSAN, INC.,

Defendant-Appellee.

No. 23548.

Supreme Court of New Mexico.

Sept. 11, 1997.

Rosanne Camunez, Las Cruces, Heidel, Samberson & Newell Lewis C. Cox, III, Lovington, for Plaintiffs-Appellants.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Mark W. Mowery, Santa Fe, Michael T. Garrett Law Office, Michael T. Garrett, Clovis, for Defendants-Appellees.

OPINION

McKINNON, Justice.

¶1 This consolidated case involves timeliness issues under appellate Rule 12-201 NMRA 1997(extension of time for filing a notice of appeal).In Oscar Chavez's case, the issue is whether the district court had the authority to grant a retroactive extension to file a notice of appeal sixty-four days from the entry of summary judgment.In Earl Jones's case, the question is whether the district court had the authority to grant an extension allowing the appellant to file a notice of appeal ninety days from the entry of the final order.

¶2We accepted certification from the Court of Appeals, seeNMSA 1978, § 34-5-14(C)(2)(1972), because of an ambiguity in Rule 12-201 and because these two cases present an opportunity to clarify the time limits for initiating an appeal.We hold that in cases where no post-trial motions are filed, a litigant has a maximum of sixty days from the entry of a final judgment or order within which to file a notice of appeal.If a post-trial motion is filed, the sixty-day period runs from the date of its disposition, either express or automatic.We dismiss Jones's appeal because it was untimely and presents no unusual circumstances warranting a hearing on the merits.Chavez's appeal also was untimely, but we remand his case to the Court of Appeals for a decision on the merits because of unusual circumstances and because justice requires that Chavez be granted the right to pursue his appeal.

I.FACTS

A. Chavezv. U-Haul

¶3 Chavez sued U-Haul for personal injuries he suffered at a U-Haul dealership in Deming, New Mexico.On December 7, 1995, the district court granted summary judgment in favor of U-Haul.No post-trial motions were filed.At 5:58 p.m., on Monday, January 8, 1996, thirty days ¹ after the final order was entered, Chavez, pro se, faxed his notice of appeal to the district court.However, because it reached the district court clerk's office after the close of business at 5:00 p.m., the clerk considered it filed on January 9, 1996, one day late.²

¶4 On February 6, 1996, sixty-one days after entry of summary judgment, Chavez, represented by counsel, filed a motion to extend the time for filing his notice of appeal.On February 9, 1996, the district court granted a retroactive extension to January 10, 1996.

B. Jonesv. Spence

¶5 Jones sued General Motors and Spence, alleging violations of the Motor Vehicle Quality Assurance Act, NMSA 1978, §§ 57-16A-1 to -9 (1985), and the Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -22 (1967, as amended through 1991).On September 29, 1995, the district court dismissed with prejudice all claims by Jones against Spence, but not against General Motors.On October 24, 1995, the district court granted an extension that allowed Jones to file the notice of appeal on the sixtieth day ³ from the date of the dismissal.On the sixtieth day, the district court granted a second extension that permitted Jones to file the notice of appeal on the ninetieth day from the final order.Jones filed his notice of appeal on the ninetieth day.

II.DISCUSSION

A.Extensions of time to file a notice of appeal

¶6 The relevant parts of Rule 12-201 NMRA 1997 provide as follows:

(A) Filing notice.The notice of appeal shall be filed within thirty (30) days after the judgment or order appealed from is filed in the district court clerk's office.

...

(D)Post-trial motions extending the time for appeal.If a party timely files a motion pursuant to Section 39-1-1 NMSA 1978, Rule 1-050(B), 1-052(B)(2), or 1-059, or a motion pursuant to Rule 5-614 ... the full time prescribed in this rule for the filing of the notice of appeal shall commence to run and be computed from either the entry of an order expressly disposing of the motion or the date of any automatic denial of the motion under that statute or any of those rules, whichever occurs first....

(E) Other extensions of time for appeal.

1) Before the time for filing a notice of appeal has expired, upon a showing of good cause, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed thirty (30) days from the expiration of the time otherwise prescribed by this rule.

2) After the time has expired for filing a notice of appeal, upon a showing of excusable neglect or circumstances beyond the control of the appellant, the district court may extend the time for filing a notice of appeal by any party for a period not to exceed thirty (30) days from the expiration of time otherwise provided by this rule, but it shall be made upon motion and notice to all parties.

3) The district court retains jurisdiction to rule on a motion for extension of time to file the notice of appeal regardless of whether the notice of appeal has been filed.

4) No motion for extension of time to file the notice of appeal may be granted after sixty (60) days from the time the appealable order is entered.If the motion is not granted within the sixty (60) days, the motion is automatically denied.

(Emphasis added.)

¶7 Rule 12-201(A) requires a notice of appeal to be filed within thirty days after an appealable order is entered.However, a litigant may request an extension.SeeRule 12-201(E).If the extension is sought prior to the expiration of the thirty-day period, only "good cause" is required, Rule 12-201(E)(1), whereas if the extension is sought after the thirty-day period, "excusable neglect or circumstances beyond the control of the appellant" must be shown, Rule 12-201(E)(2).

1) Where no post-trial motions are filed

¶8 For a period of sixty days from the entry of an appealable order, the district court may grant an extension.SeeRule 12-201(E)(3), (4).An extension may be retroactive, as in Chavez's case, or prospective, as in Jones's case.However, after sixty days, the district court lacks the authority to grant an extension.SeeRule 12-201(E)(4).In Chavez's case, the district court granted a retroactive extension sixty-four days from the entry of summary judgment, which (E)(4) clearly prohibits.

¶9 As noted above, the thirty-day period to file a notice of appeal may be extended to a maximum of sixty days.Thus, an appellant may file a notice of appeal sixty days from the entry of the appealable order.However, on the sixty-first day, if the appellant has not filed, he or she loses the right to appeal.It is not within the district court's authority to grant an extension allowing an appellant to file a notice of appeal more than sixty days from the entry of a final order, as it did in Jones's case.

2.Where post-trial motions are filed

¶10 In Irwin v. Irwin, NMSC 22,020, slip op.(Oct. 27, 1994), an unpublished opinion, ⁴we considered the effect of post-trial motions on the time to file a notice of appeal and the time within which the district court has the authority to grant an extension.In that case, the trial court issued a final order on May 8, 1992.The husband filed a post-trial motion on May 18, 1992.By June 17, 1992, the trial court had not expressly ruled on the motion; therefore, it was automatically denied.SeeRule 1-052(B)(2) NMRA 1997;cf.NMSA 1978 § 39-1-1(1917);Rules 1-050(D), 1-059(E), 5-614(C) NMRA 1997.On August 17, 1992, sixty days ⁵ from the denial, the husband received an extension from the district court and filed the notice of appeal on the same day.Under Rule 12-201(D), a notice of appeal is timely if filed within thirty days from the date of entry of a post-trial order or the date of automatic denial.The question we considered in Irwin was whether the district court's authority to grant an extension expired on July 7, 1992, sixty days from the final order, or August 17, 1992, sixty days from the automatic denial of the husband's post-trial motion.

¶11We concluded it was the latter and agreed with Judge Apodaca's dissenting opinion in the Court of Appeals that the ambiguity in (E)(4) was the result of an oversight.Irwin, at 4.We stated that (E)(4)"was never intended to limit the district court's authority to grant an extension of time for filing a notice of appeal when the initial thirty-day filing period was tolled by the filing of a post-trial motion."Irwin, at 4.We concluded that "the words 'appealable order' refer to the order that commences the running of the thirty-day filing period, whether that is the final order from which the appeal is taken, or the order disposing of any post-trial motion."Irwin, at 5.⁶

¶12 In its certification, the Court of Appeals observed that Irwin "called into question" the limiting language of (E)(4).We now hold that Irwin does not extend the period within which a district court may grant an extension in cases where no post-trial motions are filed.However, where post-trial motions are filed, the district court retains, for a sixty-day period from the disposition of a post-trial motion, the authority to grant an extension up to a maximum of thirty days.SeeRule 12-201(E)(2).A post-trial motion tolls the running of the time period for the filing of a notice of appeal, and the time period within which the district court may grant an extension.

3.Validity of these extensions

¶13 The question whether a district court has the authority to grant an extension under Rule 12-201 is a question of law which we review de novo.SeeState v. Rowell, 1995 NMSC 086, p 8, 121 N.M. 111, 114, 908 P.2d 1379,...