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                                                      New Mexico Compilation
                                                    Commission, Santa Fe, NM
                                                   '00'05- 14:43:02 2012.11.16
Certiorari Denied, December 21, 2011, No. 33,321

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-011

Filing Date: September 27, 2011

Docket No. 30,988

KIM AUDETTE and SOPHIA PERON,

       Petitioners-Appellants,

v.

CITY OF TRUTH OR CONSEQUENCES
COMMISSIONERS LORI MONTGOMERY,
FRED TORRES, EVELYN RENFRO, JERRY
STAGNER, STEVE GREEN; HOT SPRINGS
LAND DEVELOPMENT, LLC; and HOT
SPRINGS MOTORPLEX DEVELOPMENT, LLC,

       Respondents-Appellees.

APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
Edmund H. Kase, III, District Judge

Kim Audette
Truth or Consequences, NM

Pro Se Appellant

Sophia Peron
Truth or Consequences, NM

Pro Se Appellant

Jaime F. Rubin, LLC
Jaime F. Rubin
Truth or Consequences, NM

for Appellee City of Truth or
Consequences/Commissioners

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Modrall, Sperling, Roehl, Harris & Sisk, P.A.
John J. Kelly
Emil J. Kiehne
Albuquerque, NM

for Appellees Hot Springs Land
Development, LLC and Hot Springs
Motorplex Development, LLC

                                          OPINION

VANZI, Judge.

{1}      Kim Audette and Sophia Peron 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 Peron 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 Peron appealed to the district court in accordance with NMSA 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

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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 Peron filed a notice of appeal with the district
court clerk. Audette and Peron 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 Peron 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 Peron 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 non-conforming 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

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excused absent unusual circumstances). Here, however, Audette and Peron 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 non-conforming petitions such as the docketing
statement filed here. Therefore, because Audette and Peron 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.

{9}      We emphasize, however, that when a party mistakenly files a notice of appeal and,
after the time for filing a petition has passed, the party seeks an extension of time to file the
docketing statement, an order from this Court extending the time to file the docketing
statement will not automatically excuse the untimely filing of the non-conforming document
that is to be construed as a petition. Extensions of time to file the docketing statement in this
Court are routinely granted, as the timely filing of a docketing statement is not a mandatory
precondition to the exercise of this Court’s jurisdiction. Although the party may not realize
that they have employed the wrong procedures in bringing an appeal before this Court, a
party cannot rely on their own mistake in presenting their case as if it were an appeal as of
right and in obtaining a routine extension to file the docketing statement as a basis for
claiming that the non-conforming petition was timely. An extension that this Court would
not have granted if it were clear that what was actually being requested was that the Court
excuse the untimely filing of a non-conforming petition will not itself excuse the late filing.
Therefore, when the request for an extension of time to file the docketing statement is made
after the time for filing a petition for writ of certiorari has passed, and if we have granted the
motion for the extension, we will excuse the late filing only when the party’s motion or other
documents filed in this Court demonstrate the kind of unusual circumstances warranting the
acceptance of an untimely filing.

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{10} Although we conclude that Audette’s and Peron’s non-conforming petition was
timely as to the December order on sanctions, Hot Springs and the Commissioners argue that
the petition was not timely as to the May order on the merits of the zoning decision, such that
this Court should not consider any issues related to the zoning decision. Our Supreme Court
has held that when a district court issues a decision on the merits and then later issues a
decision on a collateral issue, such as whether to grant attorney fees, a party may choose to
wait until the collateral matter is resolved to file the notice of appeal as to all issues. Exec.
Sports Club, Inc. v. First Plaza Trust, 1998-NMSC-008, ¶ 14, 125 N.M. 78, 957 P.2d 63.
Under such circumstances, the appellant can file the notice of appeal within thirty days of
the order on the collateral matter, and the notice will be effective as to the judgment on the
merits. See id. An order granting attorney fees but not setting the amount, such as the order
in this case, constitutes a final, appealable order. See id. ¶ 13.

{11} However, in San Juan 1990-A, L.P. v. El Paso Production Co., 2002-NMCA-041,
¶ 21, 132 N.M. 73, 43 P.3d 1083, we held that an order sanctioning a party for discovery
violations and awarding attorney fees was not the sort of collateral post-judgment order that
would toll the time for filing a notice of appeal from the judgment on the merits, and when
the appellants failed to file a timely notice of appeal from the order on the merits and instead
waited for the entry of the sanctions order to file their notice of appeal, their appeal of the
merits was untimely. San Juan distinguishes cases like Executive Sports Club by stating that
the award of attorney fees in those cases was for the whole litigation and may have involved
a “substantive evaluation of legal and factual issues involved in the case[,]” whereas in San
Juan, the sanction was just for a discovery violation, and the parties stipulated to the order
on sanctions such that the district court did not have to make any substantive decisions. San
Juan, 2002-NMCA-041, ¶¶ 19, 21 (internal quotation marks and citation omitted).

{12} San Juan does not control this case. Here, unlike the circumstances in San Juan, the
parties did not enter into a stipulation regarding the sanctions, and the question decided by
the district court—whether Audette had taken a frivolous position in her motion to
reconsider—involved a substantive decision regarding the legal and factual issues in the
case. Therefore, in accordance with Executive Sports Club, Audette and Peron could wait
to file a notice of appeal from the sanctions order, and the notice was effective as to both the
sanctions order and the order on the merits.

The Petition Is Denied

{13} We have reviewed Audette’s and Peron’s non-conforming petition. Because this
case was erroneously presented to this Court as an appeal as of right, the entire record proper
has been filed in this Court. However, with respect to the underlying zoning decision, we
have only considered those documents in the record that should have been attached to a
petition for writ of certiorari. See Rule 12-505(D)(3) (stating that a petition shall have
attached the final order or judgment of the district court and any findings or decisions
leading to the order or judgment, a copy of the administrative decision, and a copy of the
statements of appellate issues filed in the district court). With respect to the order on

                                               5
sanctions, we have considered all of the documents in the record proper on that issue. After
reviewing the petition and the relevant material in the record, we deny the petition, as it does
not present a question meriting discretionary review pursuant to Rule 12-505(D)(2)(d).

CONCLUSION

{14} Audette and Peron were required to file a timely petition for writ of certiorari in order
to seek discretionary appellate review in this Court. Because their docketing statement is
sufficient to constitute a non-conforming petition for writ of certiorari, and because they
timely sought an extension of time to file the non-conforming petition, we have considered
the petition on the merits. The petition is denied.

{15}    IT IS SO ORDERED.

                                               ____________________________________
                                               LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Chief Judge

____________________________________
CYNTHIA A. FRY, Judge

Topic Index for Audette v. City of Truth or Consequences, No. 30,988

AE                     APPEAL AND ERROR
AE-AF                  Attorney Fees
AE-CF                  Certiorari
AE-DS                  Docketing Statements

GV                     GOVERNMENT
GV-MU                  Municipalities
GV-ZL                  Zoning Law

CP                      CIVIL PROCEDURE
CP-CO                   Collateral Order
CP-PS                   Pro Se or Self Represented Litigant
CP-TL                   Time Limitations




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