 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 JESUS A. MORALES,

 8          Plaintiff-Appellant,

 9 v.                                                                                    NO. 29,802

10 DAVID SANCHEZ, DEPARTMENT
11 OF CORRECTIONS AND ALL
12 WARDENS,

13          Defendants-Appellees.

14 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
15 Don Maddox, District Judge


16 Jesus A. Morales
17 Clayton, NM

18 Pro Se Appellant


19 Yenson Lynn Allen & Wosick PC
20 Patricia A. Padrino
21 Albuquerque, NM

22 for Appellees



23                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Plaintiff Jesus A. Morales appeals the district court’s grant of Defendants’

 3 motion for summary judgment. On July 12, 2010, this Court filed a notice of

 4 proposed summary disposition proposing to dismiss the appeal due to Plaintiff’s

 5 failure to timely file a notice of appeal in district court. Plaintiff filed a memorandum

 6 in opposition to summary disposition, which we have duly considered. We dismiss

 7 Plaintiff’s appeal.

 8        On August 20, 2009, the district court filed its written order granting summary

 9 judgment for Defendants. [RP 187] Neither the record proper nor the Court of

10 Appeals file indicates that a notice of appeal was filed in district court, as required by

11 Rule 12-202(A) NMRA.

12        Appellate requirements for time and place of filing should be termed

13 “mandatory” rather than “jurisdictional,” and an appellate court has discretion to hear

14 an appeal if a party has failed to comply with such mandatory preconditions. See

15 Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). However,

16 “[o]nly the most unusual circumstances beyond the control of the parties—such as

17 error on the part of the court—will warrant overlooking procedural defects.” Trujillo

18 v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994).

19        In his memorandum in opposition, Plaintiff states that he did not know he was

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1 supposed to file a notice of appeal in district court and discusses the difficulties

2 incarcerated persons may experience in pursuing legal matters. He does not persuade

3 us, however, that his circumstances warrant overlooking his failure to file a timely

4 notice of appeal in district court.

5        For the reasons stated above, we dismiss Plaintiff’s appeal.

6        IT IS SO ORDERED.



7                                        ___________________________________
8                                        CELIA FOY CASTILLO, Judge

9 WE CONCUR:




10 __________________________________
11 JONATHAN B. SUTIN, Judge




12 __________________________________
13 MICHAEL E. VIGIL, Judge




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