(dissenting).
{25} My pursuit of justice takes me in a different direction than the majority in this case. I am, therefore, compelled to dissent.
{26} I would affirm the decision of the district court dismissing Petitioner’s administrative appeal on the ground that it constituted an impermissible collateral attack on the stipulated order of dismissal in the previous case involving only the City and Wal-Mart. That previous case was dismissed in recognition of a settlement agreement reached between the City and Wal-Mart, which resolved and settled the issues in Wal-Mart’s appeal. The majority says that the stipulated judgment is just a private contractual agreement such that the appeal is not a collateral attack upon an adjudication. I disagree. Furthermore, the majority admits that if “the stipulated dismissal [had] meaningfully incorporated the settlement, Petitioner’s appeal might have constituted an indirect attack on the district court’s order.” The judgment or order of dismissal recited that the litigation was terminated “pursuant and subject to the terms and provisions of the [Settlement] Agreement.” The court waited three weeks after the City Council voted on February 24, 2002, to approve the settlement agreement. I am satisfied that there is little or no difference between the language in this judgment or order and those which “adopt” or “incorporate” a settlement agreement.
{27} The majority defines a collateral attack as “an attempt to avoid, defeat, or evade [a judgment], or deny its force and effect.” Lucus, 59 N.M. at 509, 287 P.2d at 72 (internal quotation marks and citation omitted). The majority then contends that Petitioner’s appeal from the development decision of the City Council does not in any way seek to “avoid, defeat, or evade” that dismissal. Id I say, of course it does. That is precisely what Petitioner seeks to do. Furthermore, Petitioner certainly seeks to deny the “force and effect” of this dismissal pursuant to the settlement agreement. Id That makes it an impermissible collateral attack.
{28} If Petitioner eared about this situation, he should have intervened in the previous ease when Wal-Mart appealed it to the district court in Santa Fe. He was aware of it, but did nothing until he filed a second case — an administrative appeal — rather than join in the Wal-Mart/City appeal in district court. Callaway v. Ryan, 67 N.M. 283, 287, 354 P.2d 999, 1002 (1960) (stating piecemeal litigation is not favored by the courts and is the function of the trial court to rule on such matters initially); see also M & G Engines v. Mroch, 631 P.2d 1177, 1178 (Colo.Ct.App. 1981) (stating that separate action by third party was impermissible challenge to the disposition of a prior action where the third party had an opportunity to intervene).
{29} Sanders v. Estate of Sanders, 1996-NMCA-102, 122 N.M. 468, 927 P.2d 23, explains that recourse to collateral attack through an independent action is considered “ ‘a last ditch remedy’ ” and is “reserved for ‘exceptional circumstances.’ ” Id ¶ 16.
{30} Petitioner filed his administrative appeal with knowledge of the previous case and before the previous case had been dismissed. Rather than seeking to intervene, he filed an entirely separate action in which he was objecting to the manner in which the prior action was eventually settled. I do not assert that he was required to intervene. I say that he could have intervened.
{31} While I realize that under Section 3-19-8 “[a]ny person in interest dissatisfied with an order or determination of the planning commission ... may commence an appeal,” that is only part of what happened here. Petitioner is not just filing an appeal of a planning commission or City Council ruling. He is attacking another judgment of another court in another case. That is what makes it a collateral attack and the court was correct in dismissing it as improper and impermissible.
{32} Once the matter was appealed in the previous lawsuit by Wal-Mart, the City, as a party to the lawsuit, had the right to reach a settlement. It should not be any different than any other lawsuit. Public policy favors enforcement of settlement agreements. Bd of Educ. v. N.M. State Dep’t of Pub. Educ., 1999-NMCA-156, ¶ 14, 128 N.M. 398, 993 P.2d 112; Gonzales v. Atnip, 102 N.M. 194, 195, 692 P.2d 1343, 1344 (Ct.App.1984).
{33} I reject Petitioner’s contention that Wal-Mart requested' rezoning. Article 14-3.5(A)(1) of the Santa Fe Land Development Code defines a “rezoning” as an “amendment to the zoning map.” Santa Fe, N.M., Land Development Code art. 14, § 3.5(A)(1). WalMart did not request an “amendment to the zoning map.” Id A gasoline station is a lawful use under the zoning that Wal-Mart already had.
{34} Nor does Article 14-3.5(D), § 3.5(A)(1) of the Santa Fe Land Development Code have any relevance as Petitioner suggests. That article deals with the possible rescission of a zoning map change (or “rezoning”) if the property owner has failed to take certain steps to develop the property, such as development plan approval, applying for building permits, etc., within two years of the rezoning. Id Wal-Mart requested an amendment to their existing development plan — not a zoning change — at their Sam’s Club location to allow gas pumps.
{35} Petitioner also assumes, without explanation or citation to legal authority, that this Court can or should scrutinize the City Council’s reasons for approving the settlement agreement. In particular, Petitioner argues that “the Councilor’s only concerns were the price of gasoline.”
{36} The City Council could reasonably have concluded that there is a community good to be achieved by breaking the monopoly on inflated gasoline prices in Santa Fe, which has kept Santa Fe gasoline prices considerably higher than those in Albuquerque and other cities for a long time.
{37} The majority seems overly impressed with the fact that only Wal-Mart’s Sam’s Club members will be able to take advantage of lower gas prices at Sam’s Club gas pumps. The reality is that there are lots of Sam’s Club members in Santa Fe. That is the reason some people claimed to be concerned with an increase in traffic at the site.
{38} At present, all those Sam’s Club members shop for gas at high-priced Santa Fe stations. It is unreasonable to believe that once Sam’s Club lowers gas prices, the other stations will keep their prices high and not reduce them to be competitive. I am convinced that the City Council already figured out that this is the way to end unreasonably high gas prices in Santa Fe.
{39} The majority states that “[w]e do not consider this case to have much to do with the price of gas in Santa Fe.” I think that is exactly what it is all about.
{40} The people of Santa Fe are entitled to the relief that the City Council proposes to give them.
{41} I respectfully dissent.