1998 -NMSC- 16, Wilson v. Denver, 23667

Citation1998 NMSC 16,125 N.M. 308,961 P.2d 153
Decision Date29 May 1998
Docket NumberNo. 23667,23667
Parties, 1998 -NMSC- 16 Dr. John N. WILSON, Barbara Wilson, and Nat Wilson, Contestants/Counterclaim-Defendants/Appellees, v. Jeanne DENVER, Margaret Nes, Polly Fox, Sue Goldberg, and Tony Trujillo, Contestees/Counterclaim-Plaintiffs/Appellants.
CourtSupreme Court of New Mexico

Page 153

961 P.2d 153
125 N.M. 308, 1998 -NMSC- 16
Dr. John N. WILSON, Barbara Wilson, and Nat Wilson,
Contestants/Counterclaim-Defendants/Appellees,
v.
Jeanne DENVER, Margaret Nes, Polly Fox, Sue Goldberg, and
Tony Trujillo,
Contestees/Counterclaim-Plaintiffs/Appellants.
No. 23667.
Supreme Court of New Mexico.
May 29, 1998.

Page 155

Steven Sugarman, Santa Fe, for Appellants.

Miller, Stratvert & Torgerson, P.A., J. Scott Hall, Santa Fe, for Appellees.

Page 156

Tom Udall, Attorney General, Alletta D. Belin, Assistant Attorney General, Santa Fe, for Amicus Curiae State of New Mexico.

Ted Apodaca, Jeffrey T. Pender, Santa Fe, for Amicus Curiae New Mexico State Engineer.

OPINION

MINZNER, Justice.

¶1 Contestants-Appellees Doctor John Wilson, Nat Wilson, and Barbara Wilson pursued this consolidated action contesting two separate elections of several individuals to the seats of commissioner and mayordomo for the El Rito de la Lama Acequia Association (the Association). The district court granted summary judgment in favor of the Wilsons, and we granted Contestees-Appellants' application for interlocutory appeal. We reverse the grant of summary judgment and remand for further proceedings.

I.

¶2 The acequia at issue in this matter is located in the community of Lama in Taos County. Several neighboring families built the acequia around 1900 and, in 1902, formed a ditch association. Subsequently, in 1908, the families filed articles of incorporation for the Association with the Territorial Engineer and collectively filed for seven cubic feet per second water rights on La Acequia de la Lama for the purpose of irrigating a combined area of 640 acres. The water rights in the acequia were adjudicated in 1963 and 1980. In conjunction with the 1980 adjudication of water rights, the Association entered into a stipulation in 1979. The stipulation converted three of the domestic water rights of nine acre feet to domestic water rights of 0.27 acre feet each. These domestic water rights were transferred to a number of separate households having no other source of domestic water and no pre-existing water rights in the acequia.

¶3 Currently, the Association divides the water rights in the acequia into share/hours, with one share being the use of the full flow of the ditch for one hour per week. Of the 168 share/hours of water rights in the acequia, the Wilson family owns 102.5 share/hours. Thus, the Wilson family possesses 61% of the original water rights in the acequia.

¶4 In 1994, the Association held its annual meeting for the election of commissioners and a mayordomo. On the day before the meeting, John and Barbara Wilson sent a letter to the commissioners indicating an intent to vote in proportion to their share/hours of water rights. At the meeting, the Association refused to apportion 61% of the vote to the Wilson family. Instead, the Association decided to allow voting on a "one member, one vote" basis, and the election was conducted by a show of hands, including those members of the Association possessing only the domestic water rights appearing in the 1979 stipulation. The Association maintained that voting was in proportion to the common and equal interest of every member of the Association in the ditch.

¶5 At the annual election in 1995, the Wilsons asserted a statutory right to vote in proportion to their water rights and cast their 61% vote for Barbara Wilson and John Wilson to be commissioners and for Nat Wilson to be mayordomo. The Wilsons abstained from voting for the third commissioner seat. Once again, the Association decided to conduct the election based on the vote of a majority of the water users. As a result, the Wilsons separately contested both the 1994 and 1995 elections as violative of their statutory voting rights and contrary to the law of New Mexico.

¶6 In the district court, the Wilsons moved for summary judgment with respect to the 1994 election contest, contending that the election violated the acequia election procedure promulgated by the New Mexico Legislature. The district court granted the Wilsons' motion for summary judgment on the legal issue of whether the election violated applicable statutes. Recognizing a "substantial ground for difference of opinion," however, the district court, in certifying the matter for interlocutory appeal, asked "whether New Mexico statutes require acequia associations to elect their commissioners and mayordomos in elections where votes are distributed to eligible voters proportionately

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according to shares of water rights owned by the members." Subsequently, the district court consolidated the two election contests.

¶7 Following consolidation, the Court of Appeals denied as untimely an application for leave to file an interlocutory appeal by the Appellants, officers of the Association elected pursuant to the contested procedure (collectively, the Officers). The district court then granted a motion to issue a second interlocutory order, and this Court granted the Officers' application for interlocutory appeal. Although the Appellants originally filed their appeal with the Court of Appeals, their subsequent filing with this Court reflects the Legislature's direction that contests of ditch officer elections "shall be commenced and conducted as provided by law in the case of general elections for county officers," see NMSA 1978, § 73-3-3 (1903, as amended 1921), and the Legislature's provision of a direct appeal to this Court in the contest of a general election, see NMSA 1978, § 1-14-5 (1969).

II.

¶8 Prior to addressing the substantive issue certified for interlocutory appeal, we raise, sua sponte, the question whether the district court had subject matter jurisdiction over these election contests. See Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815, 907 P.2d 994, 996 (1995) (raising jurisdiction of appellate court sua sponte); Armijo v. Save 'N Gain, 108 N.M. 281, 282, 771 P.2d 989, 990 (Ct.App.1989) ("A jurisdictional defect may not be waived and may be raised at any stage of the proceedings, even sua sponte by the appellate court."); see also Rule 12-216(B) NMRA 1998 (requirement of preservation of error for purposes of appeal inapplicable to jurisdictional questions); cf. Rule 1-012(H)(3) NMRA 1998 (providing for sua sponte dismissal by the district court for lack of subject matter jurisdiction).

¶9 The question of whether the district court had subject matter jurisdiction arises from a statutory limitation on the right to file an election contest. The Legislature, in creating a statutory right to contest a ditch election, specifically provided a time limitation for the filing of an election contest: "[T]he notice of contest shall be filed within fifteen days after the result of the election is announced as herein required." Section 73-3-3 (emphasis added). While defenses based on statutes of limitation typically are waived if not raised in the pleadings, Chavez v. Kitsch, 70 N.M. 439, 442-43, 374 P.2d 497, 499 (1962); see Rule 1-008(C) NMRA 1998 (listing statute of limitations as an affirmative defense), our cases have indicated that time limitations contained in statutes which establish a "condition precedent to the right to maintain the action" are jurisdictional and not subject to waiver. See, e.g., Garza v. W.A. Jourdan, Inc., 91 N.M. 268, 270, 572 P.2d 1276, 1278 (Ct.App.1977). This case requires us to consider such a statutory provision.

¶10 "The right to contest an election is entirely statutory; such a proceeding was unknown at common law. The statutory provisions for an election contest must be strictly followed. One has the right to contest an election only in the manner and to the extent prescribed by statute." Dinwiddie v. Board of County Comm'rs, 103 N.M. 442, 445, 708 P.2d 1043, 1046 (1985) (citations omitted); see Forbes v. Bell, 816 S.W.2d 716, 718 (Tenn.1991) ("The proceedings in an election contest are said to be summary in nature, and the statutory prerequisites are considered jurisdictional."). Accordingly, we construe the fifteen-day filing limitation contained in Section 73-3-3 as a condition precedent to the exercise of jurisdiction by the district court. See Eturriaga v. Valdez, 109 N.M. 205, 209-10, 784 P.2d 24, 28-29 (1989) (concluding that a definite time period for commencement of an action, where created by the same statute creating a right to contest an election, "is a limitation on the substantive right the legislature has created"); Forbes, 816 S.W.2d at 718 ("[T]he court cannot review grounds for invalidating election results unless they have been filed within the statutory period, rules of practice in civil actions to the contrary notwithstanding.") (citation omitted); cf. Citizens for Los Alamos, Inc. v. Incorporated County of Los Alamos, 104 N.M. 571, 572-73, 725 P.2d 250, 251-52 (1986) (holding time limitation for appeals

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from zoning authority a jurisdictional requirement).

¶11 With respect to the first election challenged in this matter, the Wilsons failed to file a notice of election contest within the statutory mandate. From the face of the Wilsons' complaint, the Association held the election on April 24, 1994, and based the election on a show of hands from the attending members of the Association. Thus, the results of the election were announced on April 24. However, the Wilsons did not file their notice of contest in the district court until May 23, 1994, a total of twenty-nine days following the announcement of the election results, see NMSA 1978, § 12-2-2(G) (1973, repealed 1997) (directing that, "in computing time, the first day shall be excluded and the last included unless the last falls on Sunday"). Therefore, we conclude that the untimely filing of the notice of contest deprived the district court of jurisdiction to consider the matter. As a result, we must remand the 1994 election contest, No. 94-109 CV, to the district court for dismissal.

¶12 With respect to...

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