Audette v. City of Truth or Consequences Commissioners Lori Montgomery

2012 NMCA 011, 1 N.M. Ct. App. 195
CourtNew Mexico Court of Appeals
DecidedDecember 21, 2011
DocketNo. 33,321; Docket No. 30,988
StatusPublished
Cited by4 cases

This text of 2012 NMCA 011 (Audette v. City of Truth or Consequences Commissioners Lori Montgomery) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Audette v. City of Truth or Consequences Commissioners Lori Montgomery, 2012 NMCA 011, 1 N.M. Ct. App. 195 (N.M. Ct. App. 2011).

Opinion

OPINION

VANZI, Judge.

{1} Kim Audette and Sophia Perón seek appellate review of two district court orders in an administrative appeal from the decision of a city zoning commission. Rather than filing a petition for writ of certiorari in this Court as required by the relevant statutes and Rule 12-505 NMRA, Audette and Perón filed a notice of appeal and a docketing statement. Because the docketing statement substantially complies with the content requirements of Rule 12-505(D)(2), we accept their docketing statement as a non-conforming petition. Also, because they requested an extension of time to file their docketing statement within the thirty-day deadline of Rule 12-505(C), and this Court granted the extension, we conclude that their non-conforming petition was timely. However, as the non-conforming petition does not demonstrate that discretionary review is warranted, we deny the petition.

BACKGROUND

{2} The commissioners of the City of Truth or Consequences (Commissioners) passed an ordinance granting Hot Springs Land Development, LLC, a/k/a Hot Springs Motorplex Development, LLC, (Hot Springs) a zoning change for 8,200 acres near the municipal airport. Audette and Perón appealed to the district court in accordance withNMSA 1978, Section 3-21-9 (1999), and NMSA 1978, Section 39-3-1.1(C) (1999), which permit a person aggrieved by a decision of a municipal zoning agency to appeal as of right to the district court.

{3} The district court issued a non-final decision containing its findings of fact and conclusions of law and explaining its reasoning for concluding that the appeal was without merit. See Curbello v. Vaughn, 76 N.M. 687, 687, 417 P.2d 881, 882 (1966) (stating that where the district court had entered findings and conclusions but had not entered an order or judgment carrying out the findings and conclusions, no final order had been entered in the case for purposes of appeal); High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 37, 888 P.2d 475, 483 (Ct. App. 1994) (stating that a final order must contain decretal language). Audette filed a motion for reconsideration of the district court’s decision. On May 10, 2010, the district court filed a final order affirming the zoning decision, as well as an order denying Audette’s motion for reconsideration. Later that afternoon, the Commissioners and Hot Springs filed a motion to sanction Audette for the frivolous filing of her motion for reconsideration. The Commissioners and Hot Springs sought reasonable attorney fees for defending the motion. On December 10, 2010, the district court entered an order granting the motion for sanctions but postponed a decision on the amount of attorney fees to be awarded pending submission of a cost bill and any objections to the bill.

{4} On December 13, 2010, Audette and Perón filed a notice of appeal with the district court clerk. Audette and Perón then filed a docketing statement on February 18, 2011, raising claims of error directed at both the order affirming the underlying zoning decision and the order for sanctions. The Commissioners and Hot Springs moved to dismiss that portion of the appeal directed at the order affirming the zoning decision. The motion asserted that Audette and Perón were not entitled to an appeal as of right from the zoning decision since Section 39-3-1.1(E) only permits a party who has appealed as of right to the district court to seek discretionary review in this Court by way of a petition for writ of certiorari. We requested supplemental briefing on the question whether the notice of appeal and docketing statement should be accepted in lieu of a petition for writ of certiorari.

DISCUSSION

Audette’s and Peron’s Non-Conforming Document Will Be Accepted as a Petition for Writ of Certiorari

{5} Although Audette and Perón failed to file a petition for writ of certiorari, we have held that a docketing statement that substantially complies with the content requirements for a petition for writ of certiorari will be accepted as a petition despite the fact that its form and content do not precisely comply with the requirements of Rule 12-505. See Wakeland v. N.M. Dep’t of Workforce Solutions, 2012-NMCA-021, ¶ 16, 274 P.3d 766 (No. 31,031, Sept. 27, 2011). Because Audette’s and Peron’s docketing statement contains information sufficient to determine whether the issues they raise meet the requirements for granting a petition for writ of certiorari, we construe their docketing statement as a petition. See id.

Audette’s and Peron’s Non-Conforming Petition Was Timely Because They Sought an Extension of Time to File the Document Prior to the Expiration of the Thirty Days for Filing a Petition and the Extension Was Granted

{6} Audette’s and Peron’s nonconforming petition was not filed within thirty days of the district court’s order as required by Rule 12-505(C). In such circumstances, this Court would generally only excuse the late filing if it was due to unusual circumstances beyond Audette’s and Peron’s control. See Gulf Oil Corp. v. Rota-Cone Field Operating Co., 85 N.M. 636, 636, 515 P.2d 640, 640 (1973) (per curiam) (holding that, as with the time requirement for a notice of appeal, the timely filing of a petition for writ of certiorari is a mandatory precondition to the exercise of an appellate court’s jurisdiction that will not be excused absent unusual circumstances). Here, however, Audette and Perón requested an extension of time to file the docketing statement and, because they did so on January 7, 2011, prior to the thirty-day deadline imposed by Rule 12-505(C), we conclude that their non-conforming petition was timely.

{7} In previous cases, we have held that a showing of unusual circumstances is required in order to warrant an extension of time to file a petition for a writ of certiorari. See Cassidy-Baca v. Bd. of Cnty. Comm’rs of Cnty. of Sandoval, 2004-NMCA-108, ¶ 3, 136 N.M. 307, 98 P.3d 316 (declining to grant an extension of time to .file a petition for writ of certiorari where there was no showing of unusual circumstances); Hyden v. N.M. Human Servs. Dep’t, 2000-NMCA-002, ¶ 17, 128 N.M. 423, 993 P.2d 740 (requiring a showing of unusual circumstances in order to grant an extension). However, in those cases, the extension was sought after the mandatory time for filing such that, in essence, the parties were asking the Court to excuse their failure to file the petition by the mandatory date. We do not believe that the rule requiring unusual circumstances is intended to apply when a party seeks an extension of time to file a petition for writ of certiorari prior to the expiration of the deadline. In fact, this Court routinely grants such requests for extensions when the motion demonstrates good cause.

{8} Because this Court often grants extensions of time to file petitions for writ of certiorari when the request for the extension is made prior to the date that the petition is due, the same rule should be applicable to nonconforming petitions such as the docketing statement filed here. Therefore, because Audette and Perón sought an extension of time to file their docketing statement before their petition was due under Rule 12-505(C) and because this Court granted the extension, we conclude that their petition is timely.

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Bluebook (online)
2012 NMCA 011, 1 N.M. Ct. App. 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/audette-v-city-of-truth-or-consequences-commissioners-lori-montgomery-nmctapp-2011.