{
  "id": 715102,
  "name": "Peggy MITCHELL, Petitioner, v. DONA ANA SAVINGS AND LOAN ASSOCIATION, F.A., a Federally Chartered Savings and Loan Association, Respondent",
  "name_abbreviation": "Mitchell v. Dona Ana Savings & Loan Ass'n",
  "decision_date": "1991-01-24",
  "docket_number": "No. 19484",
  "first_page": "257",
  "last_page": "259",
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      "cite": "111 N.M. 257"
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      "cite": "804 P.2d 1076"
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  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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  "last_updated": "2023-07-14T16:56:01.816679+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "RANSOM and MONTGOMERY, JJ., concur."
    ],
    "parties": [
      "Peggy MITCHELL, Petitioner, v. DONA ANA SAVINGS AND LOAN ASSOCIATION, F.A., a Federally Chartered Savings and Loan Association, Respondent."
    ],
    "opinions": [
      {
        "text": "OPINION\nSOSA, Chief Justice.\nWe granted attorney Anthony F. Avallone\u2019s petition for certiorari to review the dismissal of his appeal of a sanction imposed by the trial court under SCRA 1986, 1-011. After reviewing the court of appeals\u2019 opinion, the record before the court of appeals, the petition, and Avallone\u2019s brief, we reverse the court of appeals. We remand the case to the court of appeals with instructions to consider Avallone\u2019s appeal. We express no opinion on the merits of that appeal.\nWe agree with the court of appeals' reading of the applicable case law as set forth in Judge Bivins\u2019 well-crafted opinion. However, we hesitate to reach the sweeping conclusion that Judge Bivins reached. We disagree with the court of appeals that Avallone\u2019s failure to prosecute the appeal in his own name deprived the court of jurisdiction. We think that to promulgate such an all-inclusive rule in New Mexico would establish a precedent that could work an injustice against future appellant litigants, particularly against those who might be proceeding pro se.\nWhile we admire the court of appeals\u2019 determination to proscribe \u201csloppy practice,\u201d we feel that it might be better to tolerate a little sloppiness in the service of the few appellants whose appeals might otherwise fall through the cracks for their lack of adherence to technicalities.\nHowever, we do not wish to err in the other direction. We thus limit our holding to the facts of this case. Here Avallone did all that could have been expected of him. He appealed the trial court\u2019s \u201cOrder Imposing Sanctions,\u201d an order that bore the same caption as the case had borne all along, and which carried the pleadings into the court of appeals. We think it would have been worse than \u201csloppy practice\u201d for Avallone to have written himself in as an appellant in the caption of the case when the pleadings from day one to appeal bore a caption that did not include him.\nHis principal error was to file a Notice of Appeal in which he stated that \u201cThe defendant appeals to the Court of Appeals of the State of New Mexico from the Order Imposing Sanctions * * Technically, it was Avallone and not the defendant who appealed the court\u2019s order. Yet, the order itself and Avallone\u2019s docketing statement made it clear to all concerned that it was Avallone and not his client who was prosecuting the appeal. Except for writing the word \u201cdefendant\u201d instead of \u201cdefendant\u2019s attorney\u201d or the like, Avallone did everything that could have been expected of him under our rules of civil procedure as presently constituted.\nWe do not think the holding in Torres v. Oakland Scavenger Company, 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) mandates the decision reached by the court of appeals. There the non-designated appellant was simply missing from the appeal; here the non-designated appellant made his presence and his arguments on appeal very much known and in his own name. Where an appellant is not named in the appeal, the court may not grant him relief. As to such an appellant, it is as if he doesn\u2019t exist. For that reason the appellate court obviously cannot take jurisdiction over such an appeal.\nBut where an appellant is obviously present before the court and vigorously pursuing his case \u2014 although his name is missing from the caption of the case and he has erroneously designated someone else as the appellant \u2014 the court and all those concerned may yet have sufficient knowledge of the parties and their positions to hear the merits of the case. Such was the fact here. There is no question that the court of appeals knew who Avallone was and that it was he rather than his client who was prosecuting the appeal. To decline jurisdiction over Avallone\u2019s appeal in this situation appears to us an exaltation of form over substance. As the Court noted in Torres:\nThe purpose of the specificity requirement [of the federal rule similar to SCRA 1986, 12-202(B), considered by the court] is to provide notice both to the opposition and to the court of the identity of the appellant or appellants * * *. The specificity requirement of [the rule under consideration] is met only by some designation that gives fair notice of the specific individual or entity seeking to appeal.\n487 U.S. at 318, 108 S.Ct. at 2409.\nHere the court of appeals and the district court and anyone else who was interested in the case obviously had notice of the appellant\u2019s identity. Further, Avallone, however inartfully, gave the court \u201csome designation * * * of the specific individual or entity seeking to appeal,\u201d namely, Avallone himself. This is not like the factual situation in Torres where the appellant hoped to be considered as an appellant because the phrase \u201cet. al.\u201d had been attached to the name of a party. The appellate court in Torres would have had to guess if \u201cet. al.\u201d meant that Torres, a non-designated party, was to have been included as a party. That is a far different situation than the one before us, where Avallone was known to have been the actual appellant.\nWe decline to follow the holding of De-Luca v. Long Island Lighting Co., 862 F.2d 427 (2d Cir.1988), where the court stated, \"The Supreme Court has held [in Torres] that Fed.R.App.P. 3(c)\u2019s requirement that a notice of appeal \u2018specify the party or parties taking the appeal\u2019 is a jurisdictional requirement.\u201d 862 F.2d at 429. We think the Second Circuit Court of Appeals gave Torres too narrow a reading.\nFor the reasons stated above, the judgment of the court of appeals is reversed and the case is remanded to the court of appeals with instructions for that court to consider Avallone\u2019s appeal as if he had filed it in his own name.\nIT IS SO ORDERED.\nRANSOM and MONTGOMERY, JJ., concur.",
        "type": "majority",
        "author": "SOSA, Chief Justice."
      }
    ],
    "attorneys": [
      "Law Systems of Las Cruces, Thomas R. Figart, Anthony F. Avallone, Las Cruces, for petitioner.",
      "Mick I. Gutierrez, Las Cruces, for respondent."
    ],
    "corrections": "",
    "head_matter": "804 P.2d 1076\nPeggy MITCHELL, Petitioner, v. DONA ANA SAVINGS AND LOAN ASSOCIATION, F.A., a Federally Chartered Savings and Loan Association, Respondent.\nNo. 19484.\nSupreme Court of New Mexico..\nJan. 24, 1991.\nLaw Systems of Las Cruces, Thomas R. Figart, Anthony F. Avallone, Las Cruces, for petitioner.\nMick I. Gutierrez, Las Cruces, for respondent."
  },
  "file_name": "0257-01",
  "first_page_order": 289,
  "last_page_order": 291
}