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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

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WRONGFUL DEATH ESTATE OF ESTHER HORNER, DECEASED, BY JIM L. HORNER, PERSONAL REPRESENTATIVE, Plaintiff-Appellant, NO. 30,520

12 v. 13 14 15 16 17 18 SKILLED HEALTHCARE GROUP, INC.; SKILLED HEALTHCARE, LLC; BELEN MEADOWS HEALTHCARE AND REHABILITATION CENTER, LLC; AND ADMINISTRATOR L. DUANE WRIGHT Defendants-Appellees.

19 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 20 Barbara J. Vigil, District Judge 21 22 23 24 Harvey Law Firm, LLC Dusti D. Harvey Jennifer J. Foote 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 6 CASTILLO, Judge. 7 Appellant (Plaintiff) appeals from the district court's "order granting

MEMORANDUM OPINION

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,

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