Socuno, Ltd. v. City of Farmington ( 2012 )

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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
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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,
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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
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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
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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
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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
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