270 P.3d 1273
N.M. Ct. App.2011Background
- Audette and Peron appeal district court orders arising from a city zoning decision granting a zoning change to Hot Springs.
- They filed a docketing statement and notice of appeal instead of a writ of certiorari, but the court accepted the docketing statement as a non-conforming petition.
- The district court issued a merits decision (affirming the zoning decision) and later a sanctions order; Audette and Peron moved for reconsideration, and the district court denied it; sanctions were awarded against them.
- Audette and Peron filed a notice of appeal within 30 days of the sanctions order and later raised issues on both the merits and sanctions in a docketing statement.
- Hot Springs and the Commissioners moved to dismiss the appeal as to the merits; the court addressed whether the non-conforming petition could be treated as a petition for writ of certiorari and whether timely extension excuses applied.
- The court denied the petition for discretionary review, concluding the petition did not present a question meriting review on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a docketing statement can be treated as a petition for writ of certiorari. | Audette/Peron relied on substantial compliance. | Defendants argue non-conforming petition should be dismissed. | Yes; docketing statement treated as petition for certiorari. |
| Whether the extension to file the non-conforming petition was timely. | Extension granted before due date; timely despite non-conformity. | Untimely filing would normally bar review. | Timely due to pre-deadline extension and court practice. |
| Whether the sanctions order tolls the time to appeal the merits. | Appeal from sanctions could extend to merits under Executive Sports Club. | Sanctions order is a collateral matter; timing differs per San Juan. | The notice of appeal was effective for both sanctions and merits under Executive Sports Club. |
| Whether the petition sufficiently presented issues on the merits for discretionary review. | Record on petition included issues; substantial compliance. | Record on petition insufficient for discretionary review. | Petition denied for failure to present meritorious discretionary questions. |
Key Cases Cited
- Curbello v. Vaughn, 76 N.M. 687, 417 P.2d 881 (N.M. 1966) (prior-appeal timing rule for final orders and judgments)
- High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 888 P.2d 475 (Ct. App. 1994) (final order must contain decretal language)
- Exec. Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, 125 N.M. 78, 957 P.2d 63 (N.M. 1998) (notice of appeal can be filed after collateral order even if merits decided earlier)
- San Juan 1990-A, L.P. v. El Paso Production Co., 2002-NMCA-041, 132 N.M. 73, 43 P.3d 1083 (N.M. Ct. App. 2002) (sanctions order not tolling appeal from merits unless substantive)
- Gulf Oil Corp. v. Rota-Cone Field Operating Co., 85 N.M. 636, 515 P.2d 640 (N.M. 1973) (unusual circumstances required to excuse late filing pre-1969 rule)
- Hyden v. N.M. Human Servs. Dep’t, 2000-NMCA-002 (N.M. Ct. App. 2000) (requirement of unusual circumstances to grant extension)
- Cassidy-Baca v. Bd. of Cnty. Comm’rs of Cnty. of Sandoval, 2004-NMCA-108, 136 N.M. 307 (N.M. Ct. App. 2004) (extension before deadline routinely granted for good cause)
- Wakeland v. N.M. Dep’t of Workforce Solutions, 2012-NMCA-021, 274 P.3d 766 (N.M. Ct. App. 2011) (docketing-statement substantial-compliance standard to treat as petition)