Socuno, Ltd. v. City of Farmington

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SOCUNO, LTD., a New Mexico limited 3 liability company, 4 Plaintiff-Appellant, 5 v. No. 32,318 6 CITY OF FARMINGTON, 7 Defendant-Appellee. 8 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 9 William C. Birdsall, District Judge 10 Lastrapes, Spangler & Pacheco, PA 11 Matthew M. Spangler 12 Rio Rancho, NM 13 for Appellant 14 City of Farmington 15 Jay Burnham, City Attorney 16 Farmington, NM 17 for Appellee 18 MEMORANDUM OPINION 19 SUTIN, Judge. 1 Socuno, Ltd., a New Mexico limited liability company (Appellant) appeals from 2 the district court’s order entered in an appeal from an administrative decision filed 3 June 11, 2012. [RP 91] A notice of appeal was filed July 11, 2012. [RP 93] A 4 docketing statement was filed August 10, 2012. [Ct. App. File] 5 The City of Farmington City Council reversed the Planning and Zoning 6 Commission’s recommendation that had been in Appellant’s favor. [RP 4, 8, 30] 7 NMSA 1978, Section 3-21-9 (1999) specifically provides that “[a] person aggrieved 8 by a decision of the zoning authority or any officer, department, board[,] or bureau of 9 the zoning authority may appeal the decision pursuant to the provisions of Section 10 39-3-1.1 NMSA 1978.” NMSA 1978, Section 39-3-1.1(E) (1999) specifically 11 provides that “[a] party to the appeal to district court may seek review of the district 12 court decision by filing a petition for writ of certiorari with the [C]ourt of [A]ppeals, 13 which may exercise its discretion whether to grant review.” Rule 12-505(C) NMRA 14 provides that “[t]he petition for writ of certiorari shall be filed with the clerk of the 15 Court of Appeals within thirty . . . days after entry of the final action by the district 16 court.” 17 Based on these statutes, Appellant was required to file a timely petition for writ 18 of certiorari in order to seek relief in this Court from the district court’s decision. In 19 the docketing statement, Appellant requests that this Court construe the notice of [2] 1 appeal and docketing statement together as a timely filed non-conforming document 2 that complies with Section 39-3-1.1(E) and Rule 12-505(C). [DS 2] Appellant relies 3 on Glynn v. State Taxation and Revenue Dep’t, 2011-NMCA-031 , 149 N.M. 518 , 252 4 P.3d 742 , overruled on other grounds by Schuster v. State Dep’t of Taxation and 5 Revenue, 2012-NMSC-025 , 283 P.3d 288 , and Dixon v. State Taxation and Revenue 6 Dep’t, 2004-NMCA-044 , 135 N.M. 431 , 89 P.3d 680 , to support its argument that it 7 filed a timely petition for writ of certiorari. [DS 2] In the memorandum in opposition 8 to our proposed summary disposition, Appellant also relies on West Gun Club 9 Neighborhood Association v. Extraterritorial Land Use Authority, 2001-NMCA-013 , [10] 130 N.M. 195 , 22 P.3d 220 . [MIO 4-5] Current case law does not support 11 Appellant’s contentions. 12 “This Court has recently addressed whether a timely notice of appeal and 13 docketing statement are an adequate substitute for a petition for writ of certiorari.” 14 Mascarenas v. City of Albuquerque, 2012-NMCA-031, ¶ 20 , 274 P.3d 781 (citing 15 Wakeland v. N.M. Dep’t of Workforce Solutions, 2012-NMCA-021, ¶ 13 , 274 P.3d 16 766). In Wakeland, we specifically clarified Glynn and Dixon, holding that a notice 17 of appeal alone is not an adequate substitution for a petition for writ of certiorari, 18 relying on controlling New Mexico Supreme Court case law. Wakeland, 2012-NMC- 19 021, ¶¶ 8-13; see Roberson v. Bd. of Educ. of the City of Santa Fe, 78 N.M. 297 , [3] 1 299-300, 430 P.2d 868, 870-71 (1967) (holding that a notice of appeal was an 2 insufficient substitute for a petition for writ of certiorari). We further clarified, in 3 Wakeland, that we may accept a docketing statement in lieu of a petition for writ of 4 certiorari, provided that the time requirement of Rule 12-505(C) is met. Wakeland, [5] 2012-NMSC-021, ¶¶ 16, 18 . We further noted that “parties seeking to substitute a 6 docketing statement for a petition for writ of certiorari will often not meet the 7 thirty-day time requirement due to the procedural differences governing appeal as of 8 right and the rules governing discretionary review.” Mascarenas, 2012-NMCA-031 , 9 ¶ 21; see also Rule 12-201(A)(2) NMRA (requiring the notice of appeal be filed 10 within thirty days of the judgment or order appealed from); Rule12-208(B) NMRA 11 (requiring that the docketing statement be filed within thirty days of the notice of 12 appeal). Because the time requirement for filing a petition for writ of certiorari is a 13 mandatory precondition to the exercise of an appellate court’s jurisdiction to review 14 a petition on its merits, a petitioner must file the docketing statement within thirty 15 days in order to be considered as a timely non-conforming petition for writ of 16 certiorari. Wakeland, 2012-NMCA-021 , ¶ 18. 17 In the memorandum, Appellant argues that Mascarenas and Wakeland “are not 18 the better law” [MIO 5] because the better law is expressed in West Gun Club, Dixon, 19 and Glynn. Appellant further argues that Roberson, the New Mexico Supreme Court [4] 1 case relied on in Wakeland, is distinguishable, because in Roberson, only a notice of 2 appeal was filed, while in this case both a notice of appeal and a docketing statement 3 were filed. [Id.] We are not persuaded. 4 In Wakeland, we specifically held that Roberson is controlling, not 5 distinguishable, and we relied on Roberson to “clarify” West Gun Club, Dixon, and 6 Glynn. 7 Neither West Gun Club, Dixon, nor Glynn cited to Roberson. Although 8 Roberson did not discuss the effect of the filing of a non-conforming 9 document that addresses the merits of the issues raised on appeal, we 10 conclude that Roberson is in fact controlling when the only document 11 filed is a notice of appeal. Further, we take this opportunity to clarify 12 West Gun Club, Dixon, and Glynn, and to explain that it is the docketing 13 statement, not the notice of appeal, that we may accept as a substitute for 14 a petition for writ of certiorari. 15 Wakeland, 2012-NMCA-021 , ¶ 13. Thus, it is the docketing statement, not the notice 16 of appeal, that this Court may accept as a substitute for a petition for writ of certiorari. 17 Id. Critical to the present case, however, is not that, unlike in Roberson, Appellant 18 filed both a notice of appeal and a docketing statement, but that Wakeland further 19 holds that the docketing statement as a non-conforming petition for writ of certiorari 20 must be timely filed within thirty days of the district court’s order. 2012-NMCA-021 , 21 ¶ 18. 22 In this case, although we construe the docketing statement as a non-conforming 23 petition for writ of certiorari, the district court order was filed June 11, 2012, and the [5] 1 docketing statement was filed August 10, 2012, approximately sixty days after the 2 order, rather than within thirty days of the order. Therefore, the docketing statement 3 is an untimely non-conforming petition for writ of certiorari under Rule 12-505(C). 4 See Wakeland, 2012-NMCA-021 , ¶ 27 (concluding that the claimant’s “non- 5 conforming petition for writ of certiorari was not filed within thirty days of the district 6 court’s order and was therefore untimely”). 7 As we discussed in the calendar notice, this Court will not excuse an untimely 8 filing “absent a showing of the kind of unusual circumstances that would justify an 9 untimely petition.” Id. ¶ 20. Unusual circumstances justifying the untimely filing of 10 a petition for writ of certiorari exist when, for example, (1) there is error on the part 11 of the court, or (2) when the filing is not very late, and there are other unusual 12 circumstances that were not caused by the court system but that were not within the 13 control of the party seeking appellate review. Id. In Wakeland, we further held that 14 “[s]imply being confused or uncertain about the appropriate procedure for seeking 15 review is not the sort of unusual circumstance beyond the control of a party that will 16 justify an untimely filing.” Id. ¶ 25. As discussed earlier, Appellant argues that “the 17 better law” is not the current law. [MIO 4-5] The current law is, however, controlling. 18 Appellant also points out that dismissal means the merits of its appeal will not be [6] 1 addressed. [MIO 6] Neither of these arguments provides the kind of unusual 2 circumstances that justify the filing of an untimely petition. 3 Because the appeal was untimely and unusual circumstances do not justify the 4 untimeliness, this Court lacks jurisdiction to address the merits of Appellant’s appeal. 5 We dismiss the appeal for failure to file a timely petition for writ of certiorari. 6 IT IS SO ORDERED. 7 __________________________________ 8 JONATHAN B. SUTIN, Judge 9 WE CONCUR: 10 _________________________________ 11 MICHAEL D. BUSTAMANTE, Judge 12 _________________________________ 13 LINDA M. VANZI, Judge