June 25, 2019- JTC, Inc. v. New Mexico Taxation & Revenue Department, No. A-1-CA-37539

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LETTER ID NO. 11659639360

Court of Appeals of New Mexico
Filed 6/25/2019 11:11 AM

Hu J
; rk Reynolds

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

JTC, INC.,
Protestant-Appellant,
ve | No. A-1-CA-37539

NEW MEXICO TAXATION AND
REVENUE DEPARTMENT,

Respondent-Appellee.

IN THE MATTER OF THE PROTEST
TO ASSESSMENT ISSUE UNDER

APPEAL FROM THE ADMINISTRATIVE HEARINGS OFFICE
Chris Romero, Hearing Officer .

Ahr Law Offices, P.C.

Lewis J. Terr

Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General

Peter Breen, Special Assistant Attorney General
Santa Fe, NM

for Appellee .
MEMORANDUM OPINION |
M. ZAMORA, Chief Judge.
3} Protestant JTC, Inc. appeals from the decision by the Taxation & Revenue

Administrative Hearings Office on Protestant’s letter of protest. [6 RP 501-29] This

1 Court issued a notice ·ofproposed disposition, proposing to summarily dismiss for the
2 lack of a notice of appeal. Protestant filed a memorandum in opposition and an
3 unopposed motion for a retroactive extension of time to file the notice of appeal~
4 which we have duly considered. Unpersuaded, we deny Protestant's motion and
5 dismiss the appeal.
6 	{2} 	In this Court's calendar notice, we proposed to dismiss based on the lack of a
7 notice of appeal. Upon our review, it appeared that Protestant never filed a notice of
8 appeal with this Court, which is required to perfect an appeal to this Court from an
9 administrative ag~ncy. NMSA 1978, § 7-1-25 (2015); Rule 12-601(A), (B) NMRA.
10 	[CN 2] We suggested that, without the notice of appeal, the mandatory precondition
11 	for our jurisdiction had not been met, and we should not exercise jurisdiction over
12 this appeal. See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ,r 12, 112 N.M. 226,
13 	814 P .2d 94 (explaining that time and place of filing notice of appeal is a mandatory
14 precondition to appellate jurisdiction). [CN 3]
15 	{3} 	In the memorandum in opposition and the motion for a retroactive extension
16 of time, Protestant concedes that it did not file a notice of appeal in the Court of
17 Appeals, and states that it was an "inadvertent error" or a "clerical mistake" by
18 counsel, but asks this Court to ignore the defect and accept the appeal anyway. [MIO
19 	1; Motion] It is incumbent on this Court to ascertain whether it is appropriat~ to
2

1 exercise jurisdiction in a given case. Smith v. City of Santa Fe, 2007-NMSC-055,
· 2 1 10, 142 N.M. 786, 171 P .3d 300 ("[I]t is incumbent upon the appellate court to raise
3 jurisdiction questions sua sponte when the Court notices them.") "Determining
4 whether [an] appeal was timely involves the interpretation of court rules, which we
5 review de novo." Grygorwicz v. Trujillo, 2009-NMSC-009, 17, 145 N.M. 650,203
6 P.3d 865. Appellate requirements for·time and place of filing should be termed
7 "mandatory" rather than "jurisdictional," and an appellate court has discretion to hear
8 an appeal if a party has failed to comply with such mandatory preconditions. See
9 	Govich, 1991-NMSC-061, 112. However, "[o]nly the most unusual circumstances
10 beyond the control of the parties-such as error on the part of the court-will warrant
11 	overlooking procedural defects." Santa Fe Pac. Trust, Inc. v. City of Albuquerque,
12 20 l 2-NMSC-028, 123, 285 P .3d 595 (internal quotation marks and citation omitted).
13 	{4} 	In the memorandum in opposition and the motion for retroactive extension of
14 time, Protestant argues that, even though it failed to file the notice of appeal with this
15 	Court, the parties were not prejudiced. Protestant states that the parties and the
16 administrative hearing office all "acted as though this appeal was properly filed."
17 	[MIO 2] Therefore, Protestant claims that there was no prejudice, even though the
18 	appeal was technically defective. [MIO 2] Protestant cites Govich, 1991-NMSC-06 l,
19 11 12-14, arguing that the lack of substantive prejudice to the parties should be
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1 considered by this Court. [MIO 2] However, in Govich, the notice of appeal was
2 timely filed, properly invoking jurisdiction. Id. 1 11. The Supreme Court analyzed
3 the technical deficiencies in the contents of the notice of appeal in Govich after
4 confirming that the notice of appeal had been filed timely. Id. 1 13. Thus, Govich is
5 inapposite. As time and location of filing are mandatory preconditions to the exercise
6 	of our jurisdiction, we de~line to exercise jurisdiction in the present case as no
7 unusual circumstances exist.
8 	{5} 	In its memorandum in opposition, Protestant nonetheless argues that the
9 neglect of counsel was excusable because he did draft timely the notice of appeal, but
10 filed it with the wrong court. [MIO 4-5] In its motion, Protestant asks us to find
11 	"excusable neglect" by Protestant's counsel and exercise this Court's discretion to
12 allow Protestant to file the notice of appeal now, citing Chavez v. U-Haul Co. ofNew
13 	Mexico, Inc., 	1997-NMSC-051, 1 25, 124 N.M. 165, 947 P.2d 122. [Motion 2]
14 However, our Supreme Court has stated that the standard for excusable neglect is
15 	higher than that argued by Protestant. Generally, an appellate court will only exercise
16 discretion to hear an untimely appeal if a court has somehow misled the parties or if
17 deviation from mandatory requirements is truly minimal. See id. 11 19-22 (hearing an
18 	appeal when the notice of appeal was filed fifty-eight minutes late, but where the
19 "case [wa]s marginal and involve[d] unusual circumstances arguably beyond [the
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1 appellant's] 	control"); 	Capco 	Acquisub, 	Inc. 	v. 	Greka 	Energy 	Corp.,
2 2007-NMCA-Ol 1, ,-r 30, 140 N.M. 920, 149 P.3d ·1017 (holding that the failure to
3 timely file a notice of appeal due to claimed miscommunication between clients and
4 counsel, 	with 	"plenty 	of 	time 	and 	several 	opportunities 	to 	correct 	any
5 miscommunication," did not rise to the level of excusable neglect).
6 {6} 	Further, in the context of extensions of time for filing a notice of appeal, our
7 Supreme Court has said, "[ m]ere failure to receive notice alone, work overload of
8 attorneys, palpable error of counsel and other causes that do not rise to the level of
9 	'unique' circumstances that cannot be anticipated or controlled by a party's counsel
10 are not sufficient." Guess v. GulfIns. Co., 1980-NMSC-040, ,-r 17, 94 N.M 139, 607
11 	P .2d 1157. Protestant has not demonstrated that its filing error rose to the level of
12 New Mexico's standard for excusing a late notice of appeal. Thus, to the extent
13 	Protestant provided any additional facts tq this Court regarding his filing error, we
14 conclude that the errors leading to the .late notice of appeal and request for an
15 	extension still amount to mistakes by counsel in complying with the rules and
16 deadlines for filing a notice of appeal, which does not reach the threshold for
17 excusing the improperly filed notice of appeal.
18 	{7} 	Based on the foregoing, we therefore deny Protestant's motion and dismiss this
19 appeal for lack of a notice of appeal.
5

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{8} IT IS SO ORDERED

\ we

3 M. MONICA ZAMORK, Ch » Chief Judge

4] WE CONCUR: