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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 IRMA LOPEZ,

 3          Plaintiff-Appellant,

 4 v.                                                           NO. 31,426

 5 MARGARITO ALVARADO, and
 6 CHAPZ RESTAURANT, LTD.,
 7 d/b/a CHAPZ BAR & GRILL,

 8          Defendants-Appellees.

 9 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
10 J. Richard Brown, District Judge

11 Hanratty Law Firm
12 Kevin J. Hanratty
13 Artesia, NM

14 for Appellant

15 Atwood, Malone, Turner & Sabin
16 Lee M. Rogers, Jr.
17 Roswell, NM

18 for Appellees

19                                 MEMORANDUM OPINION

20 FRY, Judge.
 1        Plaintiff appeals the district court’s order granting summary judgment in favor

 2 of Defendants on Plaintiff’s claim for personal injury. [RP 318] We proposed to

 3 dismiss based on Plaintiff’s failure to file a timely notice of appeal, and pursuant to

 4 an extension, Plaintiff filed a timely memorandum in opposition.              Remaining

 5 unpersuaded by Plaintiff’s arguments, we dismiss.

 6        It is well-established that the timely filing of a notice of appeal is a mandatory

 7 precondition to this Court’s exercise of jurisdiction. See Govich v. N. Am. Sys., Inc.,

 8 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). On May 7, 2010, the district court

 9 entered an order granting summary judgment to Defendants. [RP 318] Plaintiff filed

10 a notice of appeal over a year later on June 28, 2011. [RP 352] In our notice of

11 proposed summary disposition, we proposed to dismiss the appeal because the notice

12 of appeal was untimely. See Rule 12-201(A)(2) NMRA (requiring the appellant to file

13 a notice of appeal in the district court clerk’s office within thirty days of the district

14 court’s entry of its final judgment).

15        As discussed in our notice of proposed summary disposition, we will only

16 entertain an untimely appeal upon the showing of exceptional circumstances that are

17 beyond the control of the parties. See Trujillo v. Serrano, 117 N.M. 273, 278, 871

18 P.2d 369, 374 (1994) (holding that exceptional circumstances are those beyond the

19 control of the parties, such as delay caused by judicial error); see also Chavez v.


                                               2
 1 U-Haul of N.M., Inc., 1997-NMSC-051, ¶ 26, 124 N.M. 165, 947 P.2d 122 (stating

 2 that in the absence of court-caused delay or unusual circumstances, an appellate court

 3 should not exercise its discretion to consider an untimely appeal because to do so

 4 would severely undermine and weaken the efficacy of Rule 12-201). Plaintiff

 5 contends that she has established circumstances beyond her control because neither

 6 she nor her counsel were provided with a signed copy of the final order granting

 7 summary judgment. [MIO 11-17] She claims that her counsel was “misled” by this

 8 failure because the district court had a common practice of sending file-stamped

 9 copies of final orders and because the rules require that Plaintiff be provided with a

10 copy of any such orders. [MIO 12-17] We disagree.

11        First, we note that Plaintiff cites to the committee commentary to Rule 1-007.1

12 NMRA and to Rule 1-058(C) NMRA in support of her contentions. [MIO 12, 15]

13 Turning first to the commentary to Rule 1-007.1, it applies when a party fails to

14 respond to a motion and allows the moving party to submit a proposed order to the

15 court if “a copy of the proposed order [is] served on all other parties.” In this case,

16 Plaintiff did respond to Defendants’ motion and thus the committee commentary is

17 inapplicable.

18        Furthermore, to the extent Defendants were required to submit a proposed order

19 to Plaintiff, they did so. [MIO 12-13] See Rule 1-058(C) (stating that “before the


                                              3
 1 court signs any order or judgment, counsel shall be afforded a reasonable opportunity

 2 to examine the same and make suggestions or objections”). Plaintiff claims that the

 3 summary judgment order was entered ex parte and that opposing counsel failed to

 4 identify the objections Plaintiff’s counsel made to the summary judgment order.

 5 [MIO 13-15] However, the record indicates that Defendants mailed a copy of their

 6 requested findings of fact and conclusions of law and emailed a copy of the proposed

 7 summary judgment order to Plaintiff on April 21, 2010. [RP 312-314, 333] Plaintiff

 8 responded indicating that she wanted to amend the order to include language stating

 9 that the findings and conclusions made by the district court during the hearing are

10 incorporated by reference. [RP 333] On May 7, 2010, in addition to entering the

11 order granting summary judgment, the district court specifically entered an order

12 adopting Defendants’ findings of fact and conclusions of law. [RP 315- 317]

13 Therefore, the record indicates that Defendants complied with the requirements of

14 Rule 1-058(C).

15        Even though Plaintiff and her counsel knew that the district court had decided

16 to grant Defendants’ motion for summary judgment at the hearing on April 5, 2010,

17 and ordered submission of proposed findings of fact and conclusions of law at the

18 same time [RP 311], and even though Plaintiff and her counsel had received copies

19 of Defendants’ requested findings and conclusions and their proposed summary


                                             4
 1 judgment order, Plaintiff’s counsel waited over a year before checking the district

 2 court’s website to determine whether the order had been filed. [RP 320, 329] Plaintiff

 3 claims she did not wish to rely on the court website because the website might not

 4 accurately convey the status of her case. [MIO 16] However, this is the very website

 5 consulted by her counsel when he finally discovered on June 7, 2011, that the

 6 summary judgment order had been entered. [RP 320-321] Thus, we are of the

 7 opinion that Plaintiff has failed to establish the requisite exceptional circumstances

 8 excusing her failure to file a timely notice of appeal because she has failed to show

 9 that the failure was due to circumstances outside her control.

10        Finally, we note that in her memorandum in opposition, Plaintiff urges us to

11 reconsider our proposed dismissal because Defendants would not be prejudiced if this

12 Court allowed Plaintiff’s untimely appeal to go forward. [MIO 11] We need not

13 address this contention because exceptional circumstances, not lack of prejudice to the

14 opposing party, is the applicable requirement.

15        In closing, we reiterate the observation contained in our notice of proposed

16 summary disposition, that even if the district court and Defendants failed to provide

17 Plaintiff with a copy of the final order granting summary judgment, these failures do

18 not excuse Plaintiff’s failure to take any action whatsoever for over year. Cf. Chavez,

19 1997-NMSC-051, ¶ 23 (holding that a thirty-day delay in filing the notice of appeal


                                              5
 1 would not be excused);           Capco Acquisub, Inc. v. Greka Energy Corp.,

 2 2007-NMCA-011, ¶¶ 26-35, 140 N.M. 920, 149 P.3d 1017 (affirming the district

 3 court’s denial of the appellants’ request for an extension of time in which to file their

 4 notice of appeal when the failure was due to alleged “miscommunication” with

 5 counsel and due to the appellants’ failure to monitor their appeal).

 6 CONCLUSION

 7        For the foregoing reasons as well as those set forth in our notice of proposed

 8 disposition, we dismiss Plaintiff’s appeal based upon her failure to file a timely notice

 9 of appeal from the order granting summary judgment to Defendants.

10        IT IS SO ORDERED.



11
12                                          CYNTHIA A. FRY, Judge

13 WE CONCUR:



14
15 JAMES J. WECHSLER, Judge



16
17 RODERICK T. KENNEDY, Judge



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