LAW.coLAW.co

KINCAID v. LUCERO ORTEGA (2023)

Supreme Court of New Mexico.2023-07-13No. No. S-1-SC-39399

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

DISPOSITIONAL ORDER OF AFFIRMANCE

{1} WHEREAS, this matter came on for consideration by the Court upon Appellants appeal of the district courts April 12, 2022, order denying Appellants second motion to reconsider the amended order granting Appellees amended petition for writ of habeas corpus;

{2} WHEREAS, this Courts September 23, 2022, order requesting a response acknowledged Appellees motion for expedited review, and Appellants September 28, 2022, response was “not opposed to an expedited review”;

{3} WHEREAS, the district court filed its original order granting Appellees amended petition for writ of habeas corpus on February 19, 2021, upon which Appellant filed a motion to reconsider on March 8, 2021;

{4} WHEREAS, the district court granted Appellants motion to reconsider in part and issued an amended order granting Appellees amended petition on August 20, 2021;

{5} WHEREAS, the district court failed to serve the parties with the amended order entered on August 20, 2021;

{6} WHEREAS, notwithstanding the district courts failure to serve the parties, both parties acknowledged that Appellees counsel became aware of the amended order on September 17, 2021, and that counsel for Appellee provided the order to Appellants counsel on that same day;

{7} WHEREAS, Appellant filed its second motion to reconsider on December 14, 2021, eighty-eight days after it became aware of the amended order and over one-hundred days after the district court entered the amended order;

{8} WHEREAS, this Court agrees with the district courts ruling that the applicable timeline is the thirty-day period in which to file an appeal under Rule 5-802 NMRA, see Rule 5-803(I) NMRA and comm. comment., and that the district court was not required to consider Appellants untimely appeal under Trujillo v. Serrano, 1994-NMSC-024, ¶ 9, 117 N.M. 273, 871 P.2d 369, because the district courts failure to serve the parties did not confuse the administration of justice or perpetrate injustice, see id., and does not excuse Appellants extreme untimeliness given Appellants awareness on September 17, 2022, that the August 20, 2022, order had been filed;

{9} WHEREAS, the rules of the Court and this Courts precedent have decided the issues of law presented in this case;

{10} WHEREAS, this Court may exercise discretion under Rule 12-405(B) NMRA to dispose of a case by nonprecedential order rather than by formal opinion;

{11} WHEREAS, this Court having considered the foregoing and being sufficiently advised, Chief Justice C. Shannon Bacon, Justice Michael E. Vigil, Justice David K. Thomson, Justice Julie J. Vargas, and Justice Briana H. Zamora, concurring;

{12} NOW, THEREFORE, IT IS ORDERED that the district courts dismissal of this matter is AFFIRMED.

{13} IT IS SO ORDERED.

PER CURIAM.