1 N.M. Ct. App. 195
N.M. Ct. App.2011Background
- Audette and Perón appeal a city zoning decision to the district court under NMSA 1978 §§ 3-21-9, 39-3-1.1(C).
- The district court issued a merits decision and later a final sanctions order; the sanctions decision followed the motion for reconsideration of the merits decision.
- Audette and Perón filed a notice of appeal and a docketing statement; they sought an extension of time to file the docketing statement.
- The petition filed in this Court was non-conforming (no writ of certiorari), but the docketing statement was treated as a petition.
- The court held the petition timely because the extension was sought before the deadline and granted; the petition was considered on the merits, including both the zoning merits and sanctions order.
- The petition was denied for lack of a discretionary-review showing for the zoning decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the non-conforming docketing statement can be treated as a petition for certiorari. | Audette/Perón contend timeliness via docketing statement. | Hot Springs/Commissioners argue no petition for certiorari filed. | Yes; docketing statement treated as petition. |
| Whether the extension of time to file the docketing statement makes the petition timely. | Audette/Perón timely due to pre-deadline extension. | Extension does not redeem untimely filings. | Timely due to pre-deadline extension and grant. |
| Whether the sanctions-order timing tolls review of the merits order. | Appellants may wait to challenge both orders. | Sanctions order not tolling for the merits appeal. | Appeal timely as to sanctions and merits under Executive Sports Club. |
| Whether discretionary review was warranted for the zoning-merits decision. | Petition raises meritorious issues of error. | No discretionary-review showing. | Petition denied for lack of discretionary-review merit. |
Key Cases Cited
- Wakeland v. N.M. Dep’t of Workforce Solutions, 2012-NMCA-021 (N.M. Ct. App. 2011) (docketing statement can substitute for petition if substantially compliant)
- Executive Sports Club, Inc. v. First Plaza Trust, 125 N.M. 78 (N.M. 1998) (collateral orders may toll appeal timing)
- San Juan 1990-A, L.P. v. El Paso Production Co., 132 N.M. 73 (N.M. Ct. App. 2002) (distinguishes sanctions as non-collateral tolling)
- Cassidy-Baca v. Bd. of Cnty. Comm’rs of Sandoval Cnty, 136 N.M. 307 (N.M. Ct. App. 2004) (requires unusual circumstances for extensions when filing post-deadline)
- Hyden v. N.M. Human Servs. Dep’t, 128 N.M. 423 (N.M. Ct. App. 2000) (extension requires unusual circumstances)
- Gulf Oil Corp. v. Rota-Cone Field Operating Co., 85 N.M. 636 (N.M. 1973) (unusual circumstances required for late filing)