May 24, 2019- Rod Forsythe v. Ford Motor Company, No. A-1-CA-37367

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Court of Appeals of New Mexico
Filed 5/24/2019 10:33 AM

Abe £2

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

ROD FORSYTHE, Individually and as the
Duly Appointed Personal Representative for

the Wrongful Death Estate of his Daughter,
ASHLEY FORSYTHE; CHRISTINE
FORSYTHE, Mother; and DANISHA

SDA ON Bi W bd

GOLDBERG, Sister,

Plaintiffs-Appellees,

Vv. NO. A-1-CA-37367

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FORD MOTOR COMPANY, a Delaware
corporation,

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Defendant-Appellant,

and

THE ESTATE OF ROBERT MARTINEZ;

DENISE DEAGUERO; WHITEFORD E
MCCRACKEN; JAY WALTON AUTOMOTIVE,
INC.; E. JAY WALTON, Individually and as

AUTOMOTIVE, INC.; RANDY LUCE,
Individually; TRW, INC., an Ohio corporation;

|Corporate Director of JAY WALTON SSS

IMORTON INTERNATIONAL, INC., as Successor
to AUTOLIV NORTH AMERICA, INC., a Delaware
corporation; BREED TECHNOLOGIES, INC., a

a
riorida corporation, SIEIVIINS CORPORA TIVUIN, a

Delaware corporation; and DOES 1-10,

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY

John F. Davis, District Judge

LiCaren J. Friedman

24 Santa Fe, NM

3 for Appellees

4i Snell & Wilmer, LLP

5i Todd E. Rinner

61 Albuquerque, NM

74 Miller, Canfield, Paddock & Stone, PLC

81 Paul D. Hudson

Si Kalamazoo, MI
[Ol for Appellant
inl MEMORANDUM OPINION
121 VANZI, Judge.
133; Defendant Ford Motor Company appeals from the district court’s order
14! granting Plaintiffs’ motion for an extension of time to file their notice of appeal, as
15] well as the denial of Defendant’s motion for reconsideration of same. [RP 809-10,
161/929-31] On appeal, Defendant contends that Plaintiffs had not met the standard of
17lexcusable neglect necessary to support the extension. This Court issued a notice of
18] proposed disposition, proposing to reverse the extension, and also issued an order
19] staying Plaintiffs’ appeal, Case No. A-1-CA-36702. Plaintiffs filed a memorandum
20/1in opposition and Defendant filed a memorandum in support, which we have duly
2ilconsidered. Unpersuaded by the memorandum in opposition, we reverse.

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12} In this Court’s calendar notice, we proposed to reverse the district court’s grant

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of an extension of time to file the notice of appeal, which was filed concurrently with

the two-day-late notice, stating that when a motion for an extension is filed in

between the thirty-day and sixty-day deadlines as Plaintiffs’ was, the motion “may be

granted on a showing of excusable neglect or circumstances beyond the control of the

appellant.” Rule 12-201(E)(3) NMRA. We proposed that no unusual circumstances

in this case rose to the level of excusable neglect required in filing a motion for

extension on appeal more than thirty days after the entry of judgment, as Plaintiffs

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only experienced a routine clerical error by counsel which, under our case law, is not

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considered unique or unable to be anticipated. See Guess v. Gulf Ins. Co., 1980-

NMSC-040, 4 17, 94 N.M. 139, 607 P.2d 1157.

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£3} We review the grant of an extension in this circumstance for an abuse of

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discretion. /d. | 9. Our Supreme Court has stated that the rule regarding requests for

an extension outside of the thirty-day deadline “should be strictly construed so as to

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prevent the progressive erosion of the rule to the point that attorneys will assume that

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they have sixty days within which to file notices of appeal ” Td. « 17. “Mere failure

to receive notice alone, work overload of attorneys, palpable error of counsel and

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other causes that do not rise to the level of ‘unique’ circumstances that cannot be

ipated or controlled by a party’s counsel are not sufficient.” Id

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4}. In their memorandum in opposition, Plaintiffs claim that they presented
additional facts and expanded their argument at hearings before the district court.
[MIO 1] However, they do not describe any additional facts beyond a claim that the
notice of appeal was already late when appellate counsel was contacted by trial
counsel, and an explanation that trial counsel was unused to receiving notification of
a filing from the court days after it was entered on the docket. [MIO 4, 9] See Muse
v. Muse, 2009-NMCA-003, 72, 145 N.M. 451, 200 P.3d 104 (“We will not search
the record for facts, arguments, and rulings in order to support generalized
arguments.”). Thus, to the extent additional facts were provided to this Court, we
conclude that the error leading to the late notice of appeal and request for an
extension still amounts to a clerical error in calendaring and complying with the
deadline for a notice of appeal.

{5} Plaintiffs argue in their memorandum in opposition that their request for an
extension was “de minimis” and cite to federal case law defining excusable neglect
as a presumption of carelessness or a mistake, among other out-of-jurisdiction
citations and federal treatises examining related policy concerns. [MIO 6-10] Such
authorities, however, do not govern our interpretation of New Mexico procedural
rules when we have relevant and applicable New Mexico case law available. See

Alexander v. Delgado, 1973-NMSC-030, § 9, 84 N.M. 717, 507 P.2d 778 (“[T]he

Court of Appeals is to be governed by the precedents of [the New Mexico Supreme

Court].”). In the present context, our Supreme Court has stated that the standard for

excusable neglect is higher than that argued by Plaintiffs. See Guess, 1980-NMSC-

040, 417; see also Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-O11,

4 30, 140 N.M. 920, 149 P.3d 1017 (holding that the failure to timely file a notice of

appeal due to claimed miscommunication between clients and counsel, with “plenty

of time and several opportunities to correct any miscommunication” did not rise to

the level of excusable neglect); Plaintiff has not demonstrated that their calendaring

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error rose to the level of New Mexico’s excusable neglect standard for a late notice

of appeal. To the extent appellate counsel describes the dates of her communications

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with Plaintiffs’ trial counsel, we note that “claims of excusable neglect that attempt

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to disaggregate an appellant’s conduct from that of its agent will generally fail.”

Capco Acquisub, Inc., 2007-NMCA-OL1, 4 28.

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{6} Based on the foregoing, we therefore reverse. In addition, this Court has issued

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a contemporaneous order dismissing the merits of this untimely appeal currently

pending with this Court as Case No. A-1-CA-36702

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m ITS SO ORDERED.

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1 |WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Judge
ZACHARY A. WES, Judge
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