 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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   WRONGFUL DEATH ESTATE
 8   OF ESTHER HORNER, DECEASED,
 9   BY JIM L. HORNER, PERSONAL
10   REPRESENTATIVE,

11          Plaintiff-Appellant,

12 v.                                                                                    NO. 30,520

13   SKILLED HEALTHCARE GROUP, INC.;
14   SKILLED HEALTHCARE, LLC;
15   BELEN MEADOWS HEALTHCARE AND
16   REHABILITATION CENTER, LLC; AND
17   ADMINISTRATOR L. DUANE WRIGHT

18          Defendants-Appellees.


19 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
20 Barbara J. Vigil, District Judge

21   Harvey Law Firm, LLC
22   Dusti D. Harvey
23   Jennifer J. Foote
24   Albuquerque, NM

25 for Appellant

26 Rodey, Dickason, Sloan, Akin & Robb, P.A.
 1 W. Robert Lasater, Jr.
 2 Sandra L. Beerle
 3 Albuquerque, NM

 4 for Appellees
 5                             MEMORANDUM OPINION

 6 CASTILLO, Judge.

 7        Appellant (Plaintiff) appeals from the district court’s “order granting

 8 Defendants’ motion to compel arbitration and Defendants’ motion for protective

 9 order” (order). [RP Vol.II/273] Our notice proposed to dismiss for lack of a timely

10 notice of appeal and Plaintiff filed a timely memorandum in opposition. We are not

11 persuaded by Plaintiff’s arguments, and therefore dismiss.

12        The order was filed on April 28, 2010. [RP Vol.II/273] To be timely,

13 Plaintiff’s appeal needed to be filed in the district court’s clerk’s office on or before

14 Friday, May 28, 2010. See Rule 12-201(A)(2) NMRA (providing that “[a] notice of

15 appeal shall be filed . . . within thirty days after the judgment or order appealed from

16 is filed in the district court clerk's office”). The copy of the notice of appeal in the

17 record provides that the notice of appeal was mailed to the district court on May 28th,

18 but not actually filed until June 2nd. [RP Vol.II/277-78] Because the notice of appeal

19 was not filed until June 2, 2010 [RP Vol.II/277], we dismiss. See Govich v. N. Am.

20 Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (holding that the appellate rule

21 for timely filing of notice of appeal is a mandatory precondition to exercise of

                                               2
 1 jurisdiction).

 2        We recognize that in some cases unusual circumstances may warrant excusing

 3 the late filing of a notice of appeal. [MIO 3-4] See, e.g., Schultz v. Pojoaque Tribal

 4 Police Dep’t & N.M. Mut. Cas. Co., 2010-NMSC-034, ¶ 21, ____ N.M. ____, ____

 5 P.3d ____ (excusing the untimely filing of the notice of appeal when the petitioner

 6 mailed the notice of appeal four days before the filing deadline, the delay in filing was

 7 only marginal, and the unexpected delay was caused by the postal service and thus

 8 constituted an unusual circumstance outside the petitioner’s control). Unlike Schultz,

 9 however, wherein the notice of appeal was mailed four days before the deadline, the

10 notice of appeal in the present case was mailed on the last day of the deadline.

11 Plaintiff’s counsel provides that she had instructed her paralegal to file the notice of

12 appeal via facsimile on May 28th, but that the paralegal had instead mailed the notice

13 of appeal on this date. [DS 2-3] We do not consider this to be the type of “unusual

14 circumstance” contemplated by Schultz that excuses a late filing. [DS 5] Cf. Trujillo

15 v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994) (recognizing that error on

16 the part of the court will warrant overlooking procedural defects such as an untimely

17 notice of appeal). We note lastly that the merits of the underlying case are not a factor

18 in determining whether a late notice of appeal is excusable. [MIO 6]

19        Based on the foregoing discussion, we dismiss based on an untimely notice of


                                               3
1 appeal.



2       IT IS SO ORDERED.



3                               ___________________________________
4                               CELIA FOY CASTILLO, Judge

5 WE CONCUR:




6 __________________________________
7 CYNTHIA A. FRY, Chief Judge




8 __________________________________
9 MICHAEL E. VIGIL, Judge
