SAN JUAN 1990-A. v. El Paso Production Co.

• Decision Date: 19 February 2002
• Docket Number: No. 130, No. 131, No. 22, No. 132.
• Citation: 2002 NMCA 41,43 P.3d 1083,132 N.M. 73
• Parties: SAN JUAN 1990-A., L.P.; K & W Gas Partners, L.P., MAP 1992-A Partners and The Board of Trustees of Leland Stanford Junior University, a non-profit corporation, Plaintiffs-Appellants, v. EL PASO PRODUCTION COMPANY, Meridian Oil, Inc., Blackwood & Nichols Co., a Limited Partnership, Devon Energy Corporation, Amoco Production Company, and John Doe, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

43 P.3d 1083

132 N.M. 73

2002 NMCA 41

SAN JUAN 1990-A., L.P.; K & W Gas Partners, L.P., MAP 1992-A Partners and The Board of Trustees of Leland Stanford Junior University, a non-profit corporation, Plaintiffs-Appellants, v.EL PASO PRODUCTION COMPANY, Meridian Oil, Inc., Blackwood & Nichols Co., a Limited Partnership, Devon Energy Corporation, Amoco Production Company, and John Doe, Defendants-Appellees.

Nos. 22,130, 22,131, 22,132.

Court of Appeals of New Mexico.

February 19, 2002.

Certiorari Denied April 2, 2002.

Candace Callahan, Kim Hamann, Callahan & Hamann, P.C., Santa Fe, NM, G.R. Miller, McDaniel, Baty, Miller & Robbins, L.L.C., Durango, CO, Thomas D. Kitch, Gregory J. Stucky, David G. Seely, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Appellants.

Michael B. Campbell, Michael H. Feldewert, Holland & Hart, L.L.P. and Campbell, Carr & Berge, P.A., Santa Fe, NM, for AppelleesEl Paso Production Co. and Meridian Oil, Inc.

Sarah M. Singleton, Carolyn A. Wolf, Montgomery & Andrews, P.A., Santa Fe, NM, for AppelleesBlackwood & Nichols Co. and Devon Energy Corp.

John R. Cooney, Charles A. Armgardt, Timothy J. DeYoung, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for AppelleeAmoco Production Co.

Certiorari Denied, No. 27,415, April 2, 2002.

OPINION

BUSTAMANTE, Judge.

{1} This matter comes before the Court on the motion of the Defendants-Appellees, El Paso Production Company, Meridian Oil, Inc., and John Doe, to dismiss this appeal because the notice of appeal was filed late.We agree that the notice of appeal was filed late and hold that the reasons for the late filing do not support the exercise of this Court's limited discretion to consider the appeal.Accordingly, we grant the motion and dismiss the appeal.

{2}Plaintiffs-Appellants(Plaintiffs) are royalty owners of wells in the San Juan basin.They filed suit against El Paso Production Company, Meridian Oil, Inc., and John Doe, collectively referred to as El Paso/Meridian (Defendants), alleging that Defendants had improperly computed royalty payments to them by deducting expenses Defendants had incurred to produce and market conventional and coalseam gas since the late 1980s.There were originally six such cases filed in district court.The district court consolidated this case with two other cases for some purposes.However, the final judgment was filed in each of the three cases and the three cases were docketed in this Court as separate cases with separate docket numbers.Later, this Court consolidated the three cases.

{3}The district court entered a final judgment in favor of Defendants in all three cases on January 22, 2001.Thirty days from January 22 was February 21.Notices of appeal with various orders attached were filed in all three cases on February 22, 2001.On April 17, 2001, Defendants moved to dismiss the appeal because the notice of appeal was filed a day late.Ultimately, this Court remanded the matter to the district court with instructions that the district court hold a hearing and enter findings of fact concerning its entry of a January 29 order, and concerning the events surrounding the filing of the notices of appeal.

{4}The district court heard the matter on a stipulated evidentiary record, supplemented by arguments of the parties.Its findings of fact were filed on September 6, 2001.The parties have since filed timely supplemental memoranda.

The Facts as Found by the District Court.

{5}The parties do not challenge the findings of fact made by the district court, and they therefore constitute the facts of this case.Stueber v. Pickard,112 N.M. 489, 491, 816 P.2d 1111, 1113(1991).We summarize those facts.

Facts Concerning the Filing of the January 29 Order.

{6} The January 29 order resolved a discovery dispute between Plaintiffs and Defendants El Paso/Meridian.The matter had been heard in July 1999.At the close of the hearing, the district court granted Plaintiffs' motion to compel and for sanctions, and directed Plaintiffs' counsel to submit an affidavit for fees.In the course of exchanging drafts of a proposed order, an issue developed concerning the scope of the fee award.Alternative versions of the order were presented to the court and a presentment hearing was requested.However, no presentment hearing was scheduled and the litigation proceeded.

{7} On January 22, 2001, the court held a hearing on the entry of the final judgment in the case.Just before the hearing, primary counsel for Plaintiffs and counsel for Defendants reached an agreement concerning the amount of costs and attorney fees to be awarded pursuant to the court's ruling in July 1999.Counsel informed the court on the record that agreement had been reached as to the form of the order.By letter dated January 24, 2001, Defendants' counsel submitted a proposed order to the court which had been approved by counsel for Plaintiffs and by counsel for Defendants.Counsel for Amoco, Blackwood & Nichols, and Devon Energy Corporation were not required to— and did not—approve the order.The order was signed by the court without modification and filed on January 29, 2001.

Facts Concerning the Filing of the Notices of Appeal.

{8} The normal business hours of the district court clerk's office are 8:00 a.m. to 4:00 p.m., Monday through Friday.On February 21, 2001, the clerk's office was open during those hours.In addition to filing papers with the district court clerk's office, litigants may also file papers in open court with a district judge at any time.There were several judges present in the courthouse on February 21 that had the authority to accept filings in open court at any time.

{9} Effective February 19, 2001, the district court implemented a "multiple filing policy."The purpose of the multiple filing policy was to balance lawyers' tendencies to file multiple pleadings "at the last minute" with the personnel and budgetary restraints of the court clerk's office and with the need to docket pleadings on the same day they are filed, as directed by the judges of the district court.The district court adopted the 3:00 p.m. deadline for multiple filings because the clerk's office staff was incurring large amounts of overtime in order to see that all pleadings filed on a particular day were docketed into the computer system and filed in the physical file by the end of the same day.

{10} A week before the policy was put into effect, the clerk's office posted a notice concerning the new policy.The notice read as follows:

BEGINNING MONDAY, FEBRUARY 19, 2001

ALL RUNNERS, AGENCIES OR OTHERS WITH MULTIPLE FILINGS MUST BE AT THE CLERK'S WINDOW BEFORE 3:00 P.M.

This policy has been implemented to make possible the First Judicial District's Court mandate that all filings be docketed and filed in case files on the same day they are received.

WE APPRECIATE YOUR COOPERATION

The notice was not published in the Bar Bulletin or the newspaper.Thus, the notice posted in the clerk's office was the only notice to the public about the new multiple filings policy.The trial court found that before the policy was implemented the court clerks were instructed that the policy did not apply if the filing was necessary to meet a deadline and the clerks so informed the public.During the first week that the policy was implemented, the clerks were very flexible in accepting filings.{11}Plaintiffs in this case were represented by a number of attorneys.Their primary counsel was located in Wichita, Kansas.In addition, Plaintiffs had local counsel in Santa Fe, New Mexico.Local counsel used a courier service for filing papers in district court.On either Monday, February 19, or Tuesday, February 20, primary counsel called local counsel and instructed local counsel to file the notices of appeal on February 21.Primary counsel advised local counsel that notices of appeal would be sent to local counsel.However, in the course of events, primary counsel discovered that it did not have a date-stamped copy of one of the orders that it wanted to attach to the notices of appeal.Thus, local counsel was instructed to obtain a date-stamped copy of the order.

{12} On the morning of February 21, local counsel received the notice of appeal for this case, with all the appropriate orders attached except the order referred to above.At approximately 2:00 p.m., local counsel received by e-mail copies of the other two notices of appeal.Local counsel then called her courier service.The district court found that the content of the conversation could no longer be constructed.However, it determined that there was a misunderstanding between local counsel and the courier service.The district court found as fact that local counsel came away from the conversation believing that the clerk's office was closed on that day.

{13}The district court found that neither local counsel nor primary counsel made any attempt on February 21 to: (1) call the court clerk's office to confirm whether it was in fact closed, (2) go to the clerk's office to file the notices of appeal themselves, (3) contact a judge to file the notices in open court, (4) file the notices by fax, (5) call opposing counsel to seek agreement to extensions of time to file the notices of appeal, or (6) file motions with the district court pursuant to Rule 12-201(E)(1) NMRA 2002 seeking an extension of time for filing the notices of appeal.No one at the district court clerk's office refused to file the notices of appeal on February 21.On February 22, local counsel obtained a date-stamped copy of the order she needed from counsel for Defendants.The three notices of appeal were filed with the district court clerk's office during the afternoon of February 22, 2001.

A.The Final Order for Purposes of Appeal was the January 22 Final Judgment.

{14} At the outset, Defendants point out that the January 29 order was directed only to Defendants El Paso and Meridian.Thus, Defendants contend...