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

 2 FELICIA HALFORD,

 3          Worker-Appellee,

 4 v.                                                                            NO. 35,890

 5 STATE OF NEW MEXICO HUMAN
 6 RESOURCES DEPARTMENT and STATE
 7 OF NEW MEXICO RISK MANAGEMENT,

 8          Employer/Insurer-Appellant.

 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 Shanon Riley, Workers’ Compensation Judge

11 Peter D. White
12 Santa Fe, NM

13 for Appellee

14 Butt Thornton & Baehr PC
15 Carlos G. Martinez
16 Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 GARCIA, Judge.
 1   {1}   Employer/ Insurer appeals from the Workers’ Compensation Administration’s

 2 (WCA’s) order awarding supplemental compensation. [RP 162, 171] This Court

 3 issued a notice of proposed disposition proposing to dismiss Employer/Insurer’s

 4 appeal for lack of a timely notice of appeal. Employer/Insurer has responded with a

 5 memorandum in opposition to this Court’s notice of proposed disposition, which we

 6 have duly considered. Unpersuaded, we dismiss.

 7   {2}   As we noted in this Court’s notice of proposed disposition, the WCA filed its

 8 supplemental compensation order on August 19, 2016, but a notice of appeal was not

 9 filed with this Court until October 12, 2016. [CN 2] While we noted that

10 Employer/Insurer had filed a notice of appeal with the WCA on September 8, 2016,

11 we also pointed out that pursuant to Rule 12-601 NMRA and NMSA 1978, Section

12 52-5-8 (1989), a notice of appeal from a decision of the WCA must be timely filed in

13 the Court of Appeals. [CN 3]

14   {3}   Employer/Insurer has acknowledged in its memorandum in opposition that its

15 notice of appeal was mistakenly filed with the WCA. [MIO 1] Employer/Insurer,

16 however, asks this Court to exercise its discretion to consider the merits of its appeal

17 despite this discrepancy with the place of filing. Specifically, Employer/Insurer asserts

18 that “the error was inadvertent and resulted in no prejudice to the rights of Worker-

19 Appellee because the notice timely notified her of Appellant’s intention to appeal


                                               2
 1 within 30 days of the WCA decision at issue.” [MIO 1-2] Employer/Insurer relies on

 2 our Supreme Court’s stated preference for hearing appeals on their merits rather than

 3 dismissing them for technical deficiencies to support its request. [MIO 2]

 4   {4}   The policy to which Employer/Insurer refers is found in Govich v. North

 5 American Systems, Inc.,

 6                While we recently held that appellate rules for the time and place
 7         of filing a notice of appeal govern the proper invocation of our
 8         jurisdiction, we also have stated the policy of facilitating the right of
 9         appeal by liberally construing technical deficiencies in a notice of appeal
10         otherwise satisfying the time and place of filing requirements. The
11         constitutional mandate that “an aggrieved party shall have the absolute
12         right to one appeal” evinces the strong policy in this state that courts
13         should facilitate, rather than hinder, the right to one appeal. Justice
14         Montgomery explored this concept eloquently in his dissent to Lowe [v.
15         Bloom, 1990-NMSC-069, 110 N.M. 555, 798 P.2d 156]. As a matter of
16         terminology, we properly should refer hereafter to the mandatory
17         sections of our rules of appellate practice as “mandatory” and discard the
18         term “jurisdictional” that has been used over time by most federal and
19         state courts to describe a mandatory precondition to the exercise of
20         jurisdiction. We strictly adhere to jurisdictional subject matter limits on
21         this Court and we cannot exercise our discretion with respect to such
22         questions. Though we have stated in categorical terms that we cannot
23         entertain an appeal when the notice does not satisfy the requirements for
24         time and place of filing, what we in essence have held is simply that, with
25         respect to the mandates for time and place of filing the notice of appeal,
26         we decline to exercise discretion to excuse or justify any improper
27         attempt to invoke our jurisdiction. It is probably imprecise to say we
28         cannot exercise such discretion.

29 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94 (emphasis added) (internal

30 quotation marks and citations omitted)).


                                               3
 1   {5}   While it is true that our courts have a policy of exercising discretion to hear the

 2 merits of an appeal despite technical violations of our rules, we do not define failure

 3 to adhere to time and place of filing as “technical” violations. See id. (stating “the

 4 policy of facilitating the right of appeal by liberally construing technical deficiencies

 5 in a notice of appeal otherwise satisfying the time and place of filing requirements”

 6 (emphasis added)). Rather, when the deficiency with the nature of the appeal relates

 7 to the time or place of filing, these are considered a failure to properly invoke our

 8 jurisdiction—i.e., a failure to comply with the mandatory preconditions to the exercise

 9 of our jurisdiction. See, e.g., Lowe 1990-NMSC-069, ¶ 3 (holding that an appellant

10 who filed a notice of appeal with the clerk of the court of appeals rather than with the

11 clerk of the district court did not comply with the place-of-filing requirement of

12 Paragraph A of Rule 12-202 NMRA, and therefore, this Court was without

13 jurisdiction to consider the appeal); cf. Trujillo v. Serrano, 1994-NMSC-024, ¶ 14,

14 117 N.M. 273, 871 P.2d 369 (discussing that the filing of a timely notice of appeal is

15 better described as a mandatory precondition to the exercise of jurisdiction rather than

16 an absolute jurisdictional requirement). Where a party has failed to properly invoke

17 the jurisdiction of this Court, we have placed clear limitations on when this Court will

18 exercise its discretion to hear the merits of an otherwise improperly filed appeal.

19 Generally, we decline to hear such cases absent unusual circumstances. See Romero


                                                4
 1 v. Pueblo of Sandia, 2003-NMCA-137, ¶ 6, 134 N.M. 553, 80 P.3d 490 (recognizing

 2 that this Court will not ordinarily entertain an appeal in the absence of a timely notice,

 3 but that unusual circumstances create an exception that “warrants permitting an

 4 untimely appeal” (alteration, internal quotation marks, and citation omitted)).

 5 However, “[o]nly the most unusual circumstances beyond the control of the

 6 parties—such as error on the part of the court—will warrant overlooking procedural

 7 defects.” See Trujillo, 1994-NMSC-024, ¶ 19. Mistake or inadvertence of counsel

 8 does not meet this standard. See State v. Upchurch, 2006-NMCA-076, ¶ 5, 139 N.M.

 9 739, 137 P.3d 679 (refusing to consider the state’s argument that there was no

10 prejudice to the opposing party resulting from the untimely appeal and concluding that

11 the state’s inadvertence did not constitute an unusual circumstance to “justify our

12 discretion to entertain [an] untimely appeal”).

13   {6}   Accordingly, for the reasons discussed above and those contained in this

14 Court’s notice of proposed disposition, Employer/Insurer’s appeal is dismissed

15   {7}   IT IS SO ORDERED.

16                                                 ________________________________
17                                                 TIMOTHY L. GARCIA, Judge

18 WE CONCUR:


19 _______________________________
20 MICHAEL E. VIGIL, Chief Judge

                                               5
1 _______________________________
2 LINDA M. VANZI, Judge




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