Does the failure of a cross-appellant to file a timely notice of cross-appeal, as required by SCRA 1986, 12-201(A) and (B), deprive this court of jurisdiction to entertain the cross-appeal? We hold that it does and dismiss the cross-appeal.
Plaintiff, Ron Olguin, the former county manager of Bernalillo County, sued the county and its commissioners after they passed a resolution requiring commission approval of any terminations or hirings of management level personnel. Olguin’s complaint sought a declaratory judgment determining that the resоlution was null and void and also sought issuance of a writ of mandamus requiring the commission to rescind any actions taken pursuant to the resolution. The district court entered the declaratory judgment and writ on November 7, 1988, granting Olguin the requested relief but denying his request for attorney fees. Defendants filed a notice of appeal on December 6, 1988, in the district court but failed to timely serve a copy on Olguin. Olguin filed a notice of cross-appeal on February 20, 1989, seventy-six days following the date of the filing of defendant’s appeal.
This court еntered an order directing the parties to appear for a hearing to determine whether this court possesses jurisdiction to entertain the merits of the cross-appeal, and whether defendants’ appeal should be dismissed as a sanction under SCRA 1986, 12-312, for their failure to timely serve Olguin with the notice of appeal. We dismiss the cross-appеal for lack of jurisdiction based on the untimely filing of the notice of cross-appeal and decline to dismiss defendants’ appeal. We assess, however, reasonable attorney fees and costs related to Olguin’s failed cross-appeal against defendants as a sanction under Rule 12-312.
The certificate of service on the notiсe of appeal filed by defendants fails to contain any indication of the date service was made. The certificate was filed in the court of appeals on January 17, 1989. Olguin’s trial attorney has filed an affidavit with this court indicating that she spoke with Olguin on December 6 and 8, 1988, and informed him that no notice of appeal had been filed. The affidavit оf Olguin’s trial attorney also states she did not move to formally withdraw from the ease prior to the date of defendants’ appeal because she had not received nоtice that an appeal had been filed. She was first notified of the fact that defendants had filed an appeal on or about January 4, 1989, when she received a cоpy of defendants’ motion to extend the time to file their docketing statement.
Olguin’s trial counsel obtained a copy of defendants’ notice of appeal on January 5, 1989, after she had contacted defendants’ counsel and requested that he send her a copy. That same day she mailed a copy of the notice of appeal with a letter to Olguin, informing him that she was filing a formal notice of withdrawal and that there are procedural deadlines in the appellate process which could affect his rights but which she had not reviewed. Olguin received but did not open this letter. At oral argument Olguin asserted he did not personally know of the notice of appeal until his new attorney informed him of the notice on February 12 or 13, 1989, in part because he neglected to open his mail from former counsel. His notice of cross-appeal was filed on Februаry 20, 1989.
Rule 12-201(A) provides in applicable part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten (10) days after the date on which the first notice of appeal was served or within the time otherwise prescribed by this rule, whichever period last expires.”
Under the above rule, Olguin had ten dаys from the date the notice of appeal
The issue of whether the failure to file a timely notice of cross-appeal is jurisdictional is an issuе of first impression in this jurisdiction, although several prior decisions have discussed the necessity for filing a separate or cross-appeal in order to obtain appellate review of issues sought to be raised by a cross-appellant. See, e.g., State ex rel. State Highway Dep’t v. Yurcic,
A review of analogous federal decisions indicates that federal courts adhere to the gеneral rule that untimely filings of notices of cross-appeal will result in a loss of jurisdiction to entertain the cross-appeal. See 9 J. Moore, B. Ward & J. Lucas, Moore’s Fedеral Practice ¶204.11[5] (2d ed. 1989). See, e.g., IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc.,
In this case, Olguin’s attorney of record received the notice of appeal on January 5, 1989, and sent a copy of the notice of appeal to Olguin the same day. The notice of cross-appeal was not filed until February 20, 1989, well after the time for filing had expired. R. 12-201(A); SCRA 1986, 12-308. Because the notice of сross-appeal was not filed within the time required, we determine this court is without jurisdiction to hear the merits of the cross-appeal. IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc.
Defendants admitted at oral argument that they failed to serve their notice of appeal in a timely fashion and that they had no explanation for their failure to serve opposing counsel оf record with a copy of the initial appeal until January 5, 1989. See SCRA 1986, 12-202(D)(3), 12-307(B). See also SCRA 1986, 1-005. Under these circumstances, defendants must therefore be deemed to bear some responsibility for the untimely filing of the notice of the cross-appeal. As a sanction for violating the appellate rules noted above, we assess against defendants a fine of $750 and Olguin’s costs and attorney fees of $750 incurred in relation to his
In order to address the merits of defendants’ appeal we will issue а calendar notice on the appeal pursuant to SCRA 1986, 12-210. See Schleft v. Board of Educ.,
The cross-appeal is dismissed for lack of jurisdiction, and costs and attorney fеes related to the cross-appeal are assessed against the defendants in accordance with this opinion.
IT IS SO ORDERED.
Notes
. We do not dismiss defendants’ appeal for laсk of jurisdiction based on late service of their notice of appeal, since that notice was timely filed. See Russell v. University of New Mexico Hasp.,