Capco Acquisub, Inc. v. Greka Energy Corp.

• Decision Date: 04 December 2006
• Docket Number: No. 25,816.,25,816.
• Citation: 149 P.3d 1017,2007 NMCA 011
• Parties: CAPCO ACQUISUB, INC., Plaintiff-Appellee, v. GREKA ENERGY CORPORATION, Defendant-Appellant, and Michael Harton, Linda Harton, Joe Ann Duncan (a/k/a Joe Ann Missey and f/k/a Joe Ann Anderson), Robert Wraldo Duncan, Jr., Ivalee Thompson, Betty Baum Cooper, Deborah Thompson (f/k/a Debra Ann Campbell), Tom Ray Gainer (As His Sole And Separate Property), and Lela Renee Thomas (As Her Sole And Separate Property), Plaintiffs-Appellees, v. Greka Am, Inc., Saba Energy of Texas, Inc., Strata Various L.C., Tatum Energy, L.C., Capco Acquisub, Inc., Dr. Iftikhar Ahmad, Darsham S. Mundy, Dr. Hamid Ur Rahman, Muhammad Saeed, Kaleem Ahmad Sayed, Seher Enterprises, Inc., and Summer Enterprises, Inc., Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1017

149 P.3d 1017

2007 NMCA 011

CAPCO ACQUISUB, INC., Plaintiff-Appellee, v. GREKA ENERGY CORPORATION, Defendant-Appellant, and Michael Harton, Linda Harton, Joe Ann Duncan (a/k/a Joe Ann Missey and f/k/a Joe Ann Anderson), Robert Wraldo Duncan, Jr., Ivalee Thompson, Betty Baum Cooper, Deborah Thompson (f/k/a Debra Ann Campbell), Tom Ray Gainer (As His Sole And Separate Property), and Lela Renee Thomas (As Her Sole And Separate Property), Plaintiffs-Appellees, v. Greka Am, Inc., Saba Energy of Texas, Inc., Strata Various L.C., Tatum Energy, L.C., Capco Acquisub, Inc., Dr. Iftikhar Ahmad, Darsham S. Mundy, Dr. Hamid Ur Rahman, Muhammad Saeed, Kaleem Ahmad Sayed, Seher Enterprises, Inc., and Summer Enterprises, Inc., Defendants-Appellants.

No. 25,816.

Court of Appeals of New Mexico.

December 4, 2006.

COPYRIGHT MATERIAL OMITTED

Reagan & Sanchez, P.A., Mark Terrence Sanchez, Gary Don Reagan, Hobbs, NM, for Appellee Capco Acquisub, Inc.

Keleher & McLeod, P.A., Thomas C. Bird, David W. Peterson, Gary J. Van Luchene, Nikolai N. Frant, Albuquerque, NM, for Appellants Greka AM, Inc. and Saba Energy of Texas, Inc.

Short & Johnston, P.C., Jeffrey M. Johnston, Michael A. Short, of Counsel, Midland, TX, for Appellees.

OPINION

BUSTAMANTE, Chief Judge.

{1} This case requires us to determine whether the district court erred in denying Appellants' motion for extension of time in which to file a notice of appeal under Rule 12-201(E)(2) NMRA. We conclude that the district court did not abuse its discretion in denying the motion. Accordingly, we affirm.

BACKGROUND

{2} This appeal originates from a judgment entered in a case concerning claims related to oil and gas properties in Lea County, New Mexico. The judgment involved two separate lawsuits that were consolidated for trial: Capco Acquisub, Inc. v. Greka Energy Corporation, No. CV-2001-249 (Lea County, N.M., filed July 6, 2001) and Harton v. Greka AM, Inc., No. CV-2001-417 (Lea County, N.M., filed Oct. 29, 2001). Defendants Greka AM, Inc. and Saba Energy of Texas, Inc. (collectively, the Subsidiaries or Appellants), are subsidiaries of Defendant Greka Energy Corporation (GEC) and bring the present appeal.

{3} Throughout the course of the litigation below, GEC and the Subsidiaries experienced substantial difficulty in complying with the judicial process. For example, the district court sanctioned GEC and the Subsidiaries for failing to comply with discovery rules and for failing to appear at a discovery hearing. Furthermore, after the district court allowed their counsel to withdraw from the case, GEC and the Subsidiaries failed to retain new counsel and failed to appear for the final trial on the merits.

{4} The district court entered judgment against GEC and the Subsidiaries on January 18, 2005. GEC, having finally retained new counsel, filed a motion to vacate the judgment on February 16, 2005. The Subsidiaries neither joined in GEC's motion, nor did they participate in the hearing on the motion. The district court denied GEC's motion on February 18, 2005, and GEC filed a timely notice of appeal the same day. Once again, GEC filed the notice of appeal solely on its own behalf. The Subsidiaries assert that they believed they were to be included in GEC's notice of appeal and that they did not become aware of their omission from the notice until "early March" of 2005. The Subsidiaries' difficulties continued as they failed to file their own timely notice of appeal. In an attempt to preserve their chances of appellate review, the Subsidiaries filed a motion on April 19, 2005, for an extension of time to file a notice of appeal. The district court held a hearing on that motion on April 22, 2005.

{5} As grounds for their motion, the Subsidiaries asserted that their omission from GEC's post-trial motion and notice of appeal was a result of a miscommunication with their attorneys. More specifically, the Subsidiaries claimed that Susan Whalen, general counsel for GEC and the Subsidiaries, understood that the law firm of Modrall, Sperling, Roehl, Harris & Sisk, P.A. (the Modrall firm) would file the motion and notice of appeal on behalf of all three entities. Ms. Whalen submitted an affidavit in which she stated that she had several conversations with the Modrall firm that were "centered around those steps to be taken to protect the interests of [GEC and the Subsidiaries] with regard to the Amended Judgment and the perfection of an appeal ... on behalf of [GEC and the Subsidiaries]." Ms. Whalen further noted in her affidavit that she did not receive a copy of GEC's notice of appeal until "after the date it was filed[,]" and that the Subsidiaries did not become aware of their omission from the notice of appeal until "early March." Thus, the Subsidiaries argued, their failure to file a timely notice of appeal was due to excusable neglect.

{6} Appellees opposed the motion, arguing that the district court no longer had jurisdiction to hear the motion and, alternatively, that the Subsidiaries' conduct in failing to file a timely notice of appeal did not amount to excusable neglect. In their reply to the Subsidiaries' motion to extend, some of the Appellees pointed out that Ms. Whalen was present at a hearing on February 18, 2005, at which trial counsel for GEC acknowledged that GEC had thirty days from the disposition of its postjudgment motions in which to file its notice of appeal. Thus, these Appellees argued, nothing prevented the Subsidiaries from filing a timely notice of appeal.

{7} The district judge denied the Subsidiaries' motion from the bench, stating that, while he was unsure about the jurisdictional question and was planning to research it, he would deny the motion in any event because of "the history of this case," referring to the Subsidiaries' "complete indifference" to the judicial process throughout the litigation. The district court entered its written order denying the motion to extend on April 25, 2005. The written order did not indicate whether the denial was based on the district court's lack of jurisdiction to extend the time for filing a notice of appeal, or whether the denial was based on the court's finding that the Subsidiaries' conduct did not amount to excusable neglect.

DISCUSSION

{8} The Subsidiaries bring the present appeal challenging several of the district court's rulings, including: (1) the denial of the Subsidiaries' motion for an extension of time to file a notice of appeal; (2) the award of punitive damages against the Subsidiaries; (3) the imposition of discovery sanctions against the Subsidiaries; and (4) the district court's jurisdiction to hear the Capco Plaintiffs' claims against the Subsidiaries. Because we conclude that the district court did not err in denying the Subsidiaries' motion to extend time to file a notice of appeal, we address that issue exclusively and do not reach the remaining issues raised by the Subsidiaries.

The Subsidiaries' Motion to Extend Time to File Notice of Appeal

{9} The Subsidiaries argue that the trial court abused its discretion in denying their motion for an extension of time to file their notice of appeal based on three rationales: (1) under the present circumstances, procedural formalities should not outweigh the Subsidiaries' right to an appeal under art. VI, § 2 of the New Mexico Constitution; (2) the disposition of GEC's post-trial motion pursuant to NMSA 1978, Section 39-1-1 (1917), tolled the district court's jurisdiction to grant the extension to the Subsidiaries under Rule 12-201(E); and (3) the Subsidiaries were entitled to an extension of time in which to file their notice of appeal based on their excusable neglect. Conversely, Appellees urge us to affirm, arguing that: (1) the district court did not have jurisdiction to extend the time period for the Subsidiaries to file a notice of appeal under Rule 12-201(E); and (2) even if the district court did have jurisdiction, the Subsidiaries' actions in failing to file a timely notice of appeal did not constitute excusable neglect. We begin by addressing the question of whether the district court had jurisdiction to extend the time period for the Subsidiaries to file a notice of appeal because, if the district court did not have jurisdiction, the question regarding excusable neglect is moot. In resolving the question of the district court's jurisdiction, we simultaneously consider the Subsidiaries' first point regarding their constitutional right to an appeal as it relates to our construction of the New Mexico Rules of Appellate Procedure.

1. The District Court Had Jurisdiction to Extend the Time Period in Which Appellants Could File a Notice of Appeal

{10} Whether a trial court has jurisdiction to extend the time period in which a party may file a notice of appeal is a question of law that we review de novo. Chavez v. U-Haul Co., 1997-NMSC-051, ¶ 13, 124 N.M. 165, 947 P.2d 122. Rule 12-201 of the New Mexico Rules of Appellate Procedure governs extensions of time to file a notice of appeal. See Rule 12-201(E). Generally, an appellant must file a notice of appeal "within thirty (30) days after the judgment or order appealed from is filed in the district court clerk's office." Rule 12-201(A)(2). However, the filing of certain post-trial motions shifts the commencement of the thirty-day time limit in which an appellant may file a notice of appeal to "the entry of an order expressly disposing of the motion or the date of any automatic denial of the motion whichever occurs first." Rule 12-201(D). Post-trial motions filed pursuant to Section 39-1-1 are among those enumerated in Rule 12-201(D) that toll the deadline for filing a timely notice of appeal. Rule 12-201(D).

{11} Furthermore, before the time for filing the notice of appeal has expired, the district court may extend the time for filing a notice of appeal "upon a showing of good cause ... for a period not to exceed thirty (30) days from the expiration of the time...