This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PATRICIA ROYBAL CABALLERO,
3 Petitioner-Appellant,
4 v. No. 31,793
5 NEW MEXICO DEPARTMENT OF 6 WORKFORCE SOLUTIONS,
7 Respondent-Appellee,
8 and
9 CATHOLIC CHARITIES OF 10 CENTRAL NEW MEXICO,
11 Employer/Respondent-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Alan M. Malott, District Judge
14 Patricia Roybal Caballero 15 Albuquerque, NM
16 Pro Se Appellant
17 Marshall Ray, DWS General Counsel 18 Elizabeth A. Garcia, General Counsel 19 Albuquerque, NM
20 for Appellees 1 MEMORANDUM OPINION
2 VIGIL, Judge.
3 Patricia Roybal Caballero (Petitioner) appeals from the district court’s order
4 denying her motion for reconsideration filed on September 21, 2011. [RP 51]
5 Petitioner filed a notice of appeal in district court on October 19, 2011. [RP 53] The
6 docketing statement was filed in this Court on January 30, 2012. [Ct. App. File]
7 Pursuant to Petitioner’s letter filed in this Court on December 12, 2011, this Court
8 accepted the docketing statement as timely filed on February 2, 2012. [Id.] Because
9 Petitioner did not timely file a petition for writ of certiorari as required by the
10 applicable rules and statute, the calendar notice proposed to deny the petition. [Ct.
11 App. File, CN1] Petitioner has filed a memorandum in opposition that we have duly
12 considered. [Ct. App. File, MIO] Unpersuaded, however, we deny the petition.
13 DISCUSSION
14 Recently, this Court explained Rule 12-505 NMRA, which governs appeals to
15 this Court from decisions of the district court from administrative appeals pursuant to
16 Rule 1-077 NMRA. Wakeland v. N.M. Dep’t of Workforce Solutions and Gilman
17 Law Offices, LLC, 2012-NMCA-021, __ N.M. __, 274 P.3d 766, cert. denied, __ U.S.
18 __, __ S. Ct. __ (No. 11,970, June 11, 2012). Rule 12-505 requires a party to seek
19 discretionary review in this Court of the district court’s decision in a Rule 1-077 case
2 1 by means of petition for writ of certiorari filed in this Court within thirty days of the
2 district court’s final action. Wakeland, 2012-NMCA-021, ¶ 4. Wakeland holds that
3 a non-conforming document will be accepted as a petition for writ of certiorari if the
4 non-conforming document provides sufficient information to assess its merits as a
5 petition. Id. ¶¶ 6-17. A docketing statement that satisfies Rule 12-208 NMRA, for
6 example, is a non-conforming document that satisfies the Rule 12-505 information
7 requirements, but a notice of appeal is not. Wakeland, 2012-NMCA-021, ¶¶ 6-17.
8 A non-conforming petition for writ of certiorari must still meet the time and
9 place requirements of Rule 12-505(C). “The petition for writ of certiorari shall be
10 filed with the clerk of the Court of Appeals within thirty (30) days after entry of the
11 final action by the district court.” Id.; see Wakeland, 2012-NMCA-021, ¶¶ 18-22.
12 An untimely filing will only be excused in unusual circumstances that are outside the
13 control of the parties, such as court error. Id. ¶¶ 23-26. The Wakeland rationale is
14 buttressed by the policy consideration that a petitioner has already had an appeal as
15 of right from the administrative action in district court, and the appeal to this Court is
16 subsequent certiorari review that is discretionary only. Id. ¶¶ 14-15, 22 (recognizing
17 that a notice of appeal will rarely demonstrate that discretionary appellate review is
18 warranted, and that the policy considerations that favor liberal construction of a notice
19 of appeal are not at issue when a party has already had an appeal of right in district
20 court and thereafter seeks discretionary appellate review in this Court).
3 1 As in Wakeland, in this case, Petitioner filed a notice of appeal in district court
2 and a docketing statement, rather than a petition for writ of certiorari. In order for
3 Petitioner to have perfected her appeal in this Court by way of a timely filed non-
4 conforming document, therefore, she had to file the docketing statement in this Court
5 within thirty days of the district court’s September 21, 2011 order—not a notice of
6 appeal in district court within thirty days from that order. Petitioner’s non-conforming
7 petition for writ of certiorari was not filed within thirty days of the district court’s
8 order and was therefore untimely.
9 In the memorandum, Petitioner argues that a case relied upon in Wakeland,
10 Roberson v. Board of Education of City of Santa Fe, 78 N.M. 297, 298-99, 430 P.2d
11 868, 869-70 (1967), would allow Petitioner’s notice of appeal, request for extension
12 to file a docketing statement, and docketing statement, together, to be construed as a
13 timely filed petition not barred by the doctrine of laches. [MIO 2] See Wakeland,
14 2012-NMCA-021, ¶ 8-9. In Roberson, however, the petition was not dismissed
15 because “at that time there was no statute or rule setting a time limit for the filing of
16 a petition for certiorari and because laches did not bar the filing of the petition that the
17 petitioner filed after she filed her improper notice of appeal.” Wakeland, 2012-
18 NMCA-021, ¶ 9 (citing Roberson, 78 N.M. at 300-03, 430 P.2d at 871-74). In this
19 case, a laches discussion is not applicable, because, unlike when Roberson was filed
20 in 1967, Rule 12-505(C) specifically sets forth a time limit for the filing of a petition
4 1 for certiorari: “The petition for writ of certiorari shall be filed with the clerk of the
2 Court of Appeals within thirty (30) days after entry of the final action by the district
3 court.”
4 Petitioner also argues that the circumstances of her appeal satisfy the “unusual
5 circumstances” that excuse a late filing. [MIO 3-7] She argues that she is appearing
6 pro se and the procedures for filing an appeal are unclear, and therefore she entitled
7 to leniency. [MIO 3-5] In addition, Petitioner points out she was extremely busy
8 caring for her elderly mother and carrying out her graduate studies during the appeal
9 process. [MIO 6-7] Petitioner further continues to argue the merits of her appeal with
10 regard to the admission of certain evidence. [MIO 8-14] We are not persuaded.
11 Even though Petitioner’s mother was ill and Petitioner was distracted and busy
12 caring for her and going to graduate school, she filed a notice of appeal, a request for
13 extension on the docketing statement, and a docketing statement. Petitioner was
14 simply unaware that the Rules of Appellate Procedure require her appeal to proceed
15 in accordance with Rule 12-505. Wakeland also involved a pro se petitioner who was
16 unaware that a Rule 1-077 appeal to this Court is governed by Rule 12-505. In
17 Wakeland, we held that “[s]imply being confused or uncertain about the appropriate
18 procedure for seeking review is not the sort of unusual circumstance beyond the
19 control of a party that will justify an untimely filing.” Id. ¶ 25; see also id. (“The fact
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This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PATRICIA ROYBAL CABALLERO,
3 Petitioner-Appellant,
4 v. No. 31,793
5 NEW MEXICO DEPARTMENT OF 6 WORKFORCE SOLUTIONS,
7 Respondent-Appellee,
8 and
9 CATHOLIC CHARITIES OF 10 CENTRAL NEW MEXICO,
11 Employer/Respondent-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Alan M. Malott, District Judge
14 Patricia Roybal Caballero 15 Albuquerque, NM
16 Pro Se Appellant
17 Marshall Ray, DWS General Counsel 18 Elizabeth A. Garcia, General Counsel 19 Albuquerque, NM
20 for Appellees 1 MEMORANDUM OPINION
2 VIGIL, Judge.
3 Patricia Roybal Caballero (Petitioner) appeals from the district court’s order
4 denying her motion for reconsideration filed on September 21, 2011. [RP 51]
5 Petitioner filed a notice of appeal in district court on October 19, 2011. [RP 53] The
6 docketing statement was filed in this Court on January 30, 2012. [Ct. App. File]
7 Pursuant to Petitioner’s letter filed in this Court on December 12, 2011, this Court
8 accepted the docketing statement as timely filed on February 2, 2012. [Id.] Because
9 Petitioner did not timely file a petition for writ of certiorari as required by the
10 applicable rules and statute, the calendar notice proposed to deny the petition. [Ct.
11 App. File, CN1] Petitioner has filed a memorandum in opposition that we have duly
12 considered. [Ct. App. File, MIO] Unpersuaded, however, we deny the petition.
13 DISCUSSION
14 Recently, this Court explained Rule 12-505 NMRA, which governs appeals to
15 this Court from decisions of the district court from administrative appeals pursuant to
16 Rule 1-077 NMRA. Wakeland v. N.M. Dep’t of Workforce Solutions and Gilman
17 Law Offices, LLC, 2012-NMCA-021, __ N.M. __, 274 P.3d 766, cert. denied, __ U.S.
18 __, __ S. Ct. __ (No. 11,970, June 11, 2012). Rule 12-505 requires a party to seek
19 discretionary review in this Court of the district court’s decision in a Rule 1-077 case
2 1 by means of petition for writ of certiorari filed in this Court within thirty days of the
2 district court’s final action. Wakeland, 2012-NMCA-021, ¶ 4. Wakeland holds that
3 a non-conforming document will be accepted as a petition for writ of certiorari if the
4 non-conforming document provides sufficient information to assess its merits as a
5 petition. Id. ¶¶ 6-17. A docketing statement that satisfies Rule 12-208 NMRA, for
6 example, is a non-conforming document that satisfies the Rule 12-505 information
7 requirements, but a notice of appeal is not. Wakeland, 2012-NMCA-021, ¶¶ 6-17.
8 A non-conforming petition for writ of certiorari must still meet the time and
9 place requirements of Rule 12-505(C). “The petition for writ of certiorari shall be
10 filed with the clerk of the Court of Appeals within thirty (30) days after entry of the
11 final action by the district court.” Id.; see Wakeland, 2012-NMCA-021, ¶¶ 18-22.
12 An untimely filing will only be excused in unusual circumstances that are outside the
13 control of the parties, such as court error. Id. ¶¶ 23-26. The Wakeland rationale is
14 buttressed by the policy consideration that a petitioner has already had an appeal as
15 of right from the administrative action in district court, and the appeal to this Court is
16 subsequent certiorari review that is discretionary only. Id. ¶¶ 14-15, 22 (recognizing
17 that a notice of appeal will rarely demonstrate that discretionary appellate review is
18 warranted, and that the policy considerations that favor liberal construction of a notice
19 of appeal are not at issue when a party has already had an appeal of right in district
20 court and thereafter seeks discretionary appellate review in this Court).
3 1 As in Wakeland, in this case, Petitioner filed a notice of appeal in district court
2 and a docketing statement, rather than a petition for writ of certiorari. In order for
3 Petitioner to have perfected her appeal in this Court by way of a timely filed non-
4 conforming document, therefore, she had to file the docketing statement in this Court
5 within thirty days of the district court’s September 21, 2011 order—not a notice of
6 appeal in district court within thirty days from that order. Petitioner’s non-conforming
7 petition for writ of certiorari was not filed within thirty days of the district court’s
8 order and was therefore untimely.
9 In the memorandum, Petitioner argues that a case relied upon in Wakeland,
10 Roberson v. Board of Education of City of Santa Fe, 78 N.M. 297, 298-99, 430 P.2d
11 868, 869-70 (1967), would allow Petitioner’s notice of appeal, request for extension
12 to file a docketing statement, and docketing statement, together, to be construed as a
13 timely filed petition not barred by the doctrine of laches. [MIO 2] See Wakeland,
14 2012-NMCA-021, ¶ 8-9. In Roberson, however, the petition was not dismissed
15 because “at that time there was no statute or rule setting a time limit for the filing of
16 a petition for certiorari and because laches did not bar the filing of the petition that the
17 petitioner filed after she filed her improper notice of appeal.” Wakeland, 2012-
18 NMCA-021, ¶ 9 (citing Roberson, 78 N.M. at 300-03, 430 P.2d at 871-74). In this
19 case, a laches discussion is not applicable, because, unlike when Roberson was filed
20 in 1967, Rule 12-505(C) specifically sets forth a time limit for the filing of a petition
4 1 for certiorari: “The petition for writ of certiorari shall be filed with the clerk of the
2 Court of Appeals within thirty (30) days after entry of the final action by the district
3 court.”
4 Petitioner also argues that the circumstances of her appeal satisfy the “unusual
5 circumstances” that excuse a late filing. [MIO 3-7] She argues that she is appearing
6 pro se and the procedures for filing an appeal are unclear, and therefore she entitled
7 to leniency. [MIO 3-5] In addition, Petitioner points out she was extremely busy
8 caring for her elderly mother and carrying out her graduate studies during the appeal
9 process. [MIO 6-7] Petitioner further continues to argue the merits of her appeal with
10 regard to the admission of certain evidence. [MIO 8-14] We are not persuaded.
11 Even though Petitioner’s mother was ill and Petitioner was distracted and busy
12 caring for her and going to graduate school, she filed a notice of appeal, a request for
13 extension on the docketing statement, and a docketing statement. Petitioner was
14 simply unaware that the Rules of Appellate Procedure require her appeal to proceed
15 in accordance with Rule 12-505. Wakeland also involved a pro se petitioner who was
16 unaware that a Rule 1-077 appeal to this Court is governed by Rule 12-505. In
17 Wakeland, we held that “[s]imply being confused or uncertain about the appropriate
18 procedure for seeking review is not the sort of unusual circumstance beyond the
19 control of a party that will justify an untimely filing.” Id. ¶ 25; see also id. (“The fact
5 1 that [the petitioner] did not know that any further appellate review would be governed
2 by Rule 12-505 does not excuse the late filing in this case.”).
3 Petitioner’s letter filed on December 12, 2011, which requested an extension
4 of time to file the docketing statement, was filed long after the due date for filing a
5 petition under Rule 12-505(C). Cf. Audette v. Montgomery, 2012-NMCA-011, ¶ 8,
6 __ N.M. __, 270 P.3d 1273 (holding that “because [the petitioners] sought an
7 extension of time to file their docketing statement before their petition was due under
8 Rule 12-505(C) and because this Court granted the extension, we conclude their
9 petition is timely” (Emphasis added.)), cert. denied, __ -NMCERT-__, __ N.M. __,
10 __ P.3d __ (No. 30, 988, Dec. 21, 2011). This Court’s action in granting a motion for
11 extension of time to file a docketing statement does not demonstrate this Court’s
12 determination to grant the petition. Id. ¶ 9 (“We emphasize, however, that when a
13 party mistakenly files a notice of appeal and, after the time for filing a petition has
14 passed, the party seeks an extension of time to file the docketing statement, an order
15 from this Court extending the time to file the docketing statement will not
16 automatically excuse the untimely filing of the non-conforming document that is to
17 be construed as a petition. Extensions of time to file the docketing statement in this
18 Court are routinely granted, as the timely filing of a docketing statement is not a
19 mandatory precondition to the exercise of this Court’s jurisdiction. . . ., a party cannot
20 rely on their own mistake in presenting their case as if it were an appeal as of right and
6 1 in obtaining a routine extension to file the docketing statement as a basis for claiming
2 that the non-conforming petition was timely.”).
3 CONCLUSION
4 We hold that Petitioner’s notice of appeal filed in district court does not satisfy
5 the place of filing or the content/information requirements for non-conforming
6 documents. Moreover, while Petitioner’s docketing statement may be construed as
7 a petition for certiorari, it does not satisfy the timeliness requirements for a petition
8 for certiorari. Finally, Petitioner’s uncertainty about the proper procedure for seeking
9 review is not an unusual circumstance that will excuse the late filing. We deny the
10 petition.
11 IT IS SO ORDERED.
12 _______________________________ 13 MICHAEL E. VIGIL, Judge
14 WE CONCUR:
15 _________________________________ 16 CELIA FOY CASTILLO, Chief Judge
17 _________________________________ 18 CYNTHIA A. FRY, Judge