September 27, 2011 – Kim Audette and Sophia Peron v. City of Truth or Consequences Commissioners Lori Montgomery, Fred Torrres, Evelyn Renfro, Jerry Stagner, Steve Green, Hot Springs Land Development, LLC; and Hot Springs Motorplex Development, LLC, No. 30,988

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: September 27, 2011
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
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),

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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 Peron filed a notice of appeal with the
district court clerk. Audette and Peron then filed a docketing statement on February

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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, 2011-NMCA-___,
¶ 16, ___ N.M. ___, ___ P.3d ___ (No. 31,031, Sept. 27, 2011). Because Audette’s
and Peron’s docketing statement contains information sufficient to determine whether

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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 	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

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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

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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.
{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

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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

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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 sanctions, we have considered all of the
documents in the record proper on that issue. After reviewing the petition and the

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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