Bassett v. New Mexico Racing Commission
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOHN BASSETT, 3 Petitioner-Appellant, 4 v. No. 34,756 5 NEW MEXICO RACING 6 COMMISSION, 7 Respondent-Appellee. 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Denise Barela Shepherd, District Judge 10 J. Preston Paschall 11 Las Cruces, NM 12 for Appellant 13 Hector H. Balderas, Attorney General 14 Richard B. Word, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 18 KENNEDY, Judge. MEMORANDUM OPINION 1 {1} Appellant John H. Bassett (Petitioner) appeals form a district court order 2 affirming an administrative decision of the New Mexico Racing Commission. Our 3 calendar notice proposed to dismiss. Petitioner has responded with a memorandum in 4 opposition. We dismiss the appeal. 5 {2} In his memorandum in opposition, Defendant concedes that Rule 12-505 6 NMRA governs this Court’s review of the district court’s decision. See Rule 1-075(V) 7 (“An aggrieved party may seek further review of an order or judgment of the district 8 court in accordance with Rule 12-505 NMRA of the Rules of Appellate Procedure.”). 9 Rather than a direct appeal, Rule 12-505(B), (C) requires a party to seek discretionary 10 review in this Court by filing a petition for writ of certiorari in this Court within thirty 11 days after entry of the final action by the district court. 12 {3} In this case, Petitioner did not file a petition for writ of certiorari within thirty 13 days of entry of the final order. Instead, he filed a notice of appeal in district court [RP 14 487], and then a docketing statement in this Court. In Wakeland v. New Mexico 15 Department of Workforce Solutions, 2012-NMCA-021, ¶ 13, 274 P.3d 766, we held 16 that a notice of appeal alone is not an adequate substitution for a petition for writ of 17 certiorari. We did, however, hold that a non-conforming document, such as a 18 docketing statement, will be considered as a petition for writ of certiorari where the 2 1 document provides sufficient information to allow assessment of the merits of the 2 petition and was filed in this Court within the time limits for filing a petition for writ 3 of certiorari. Id. ¶¶ 7, 16, 18. In this case, the docketing statement was not filed within 4 the thirty days required for a petition for certiorari. See Rule 12-505(C) (stating that 5 a petition for writ of certiorari shall be filed within thirty days after entry of the final 6 action by the district court); see also See Gulf Oil Corp. v. Rota-Cone Field Operating 7 Co., 1973-NMSC-107, ¶ 2, 85 N.M. 636, 515 P.2d 640 (per curiam) (holding that, as 8 with the time requirement for a notice of appeal, the timely filing of a petition for writ 9 of certiorari is a mandatory precondition to the exercise of an appellate court’s 10 jurisdiction that will not be excused absent unusual circumstances). Accordingly, our 11 calendar notice proposed to dismiss the appeal. 12 {4} In his memorandum in opposition, Petitioner argues that we should overlook 13 the deficiencies in this case because counsel’s failure to file a timely petition was due 14 to excusable neglect. Petitioner refers us to Kinder Morgan CO2 Co., L.P. v. State 15 Taxation & Revenue Dep’t, 2009-NMCA-019, 145 N.M. 579, 203 P.3d 110, for the 16 proposition that the excusable neglect of a party’s counsel may be considered. 17 However, that case involved Rule 1-060(B)(1) NMRA, which expressly provides for 18 excusable neglect to be a basis for setting aside a judgment, and does not apply to 3 1 appeals. Kindermorgan, 2009-NMCA-019, ¶ 13. We may excuse the late filing if it 2 was due to unusual circumstances. Mascarenas v. City of Albuquerque, 2012-NMCA3 031, ¶ 23, 274 P.3d 781. Unusual circumstances that justify the untimely filing of a 4 petition for writ of certiorari exist when “(1) there is error on the part of the court, or 5 (2) when the filing is not very late, and there are other unusual circumstances that 6 were not caused by the court system but that were not within the control of the party 7 seeking appellate review.” Id. The first ground does not apply here, and Petitioner’s 8 excusable neglect argument by its very nature does not satisfy the second prong. 9 Finally, to the extent that Petitioner is referring us to recently filed case law in this 10 Court which is relevant to the underlying merits [MIO 6], we do not deem it necessary 11 to address this in light of our dismissal of the notice of appeal, and its implicit denial 12 of any attempt to file a Rule 12-505 petition. 13 {5} Based on the foregoing discussion, we dismiss. 14 {6} IT IS SO ORDERED. 15 16 17 WE CONCUR: _______________________________ RODERICK T. KENNEDY, Judge 18 ___________________________________ 19 JAMES J. WECHSLER, Judge 4 1 ___________________________________ 2 M. MONICA ZAMORA, Judge 5
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