State ex rel. Stratton v. Alto Land & Cattle Co.

• Decision Date: 18 December 1991
• Docket Number: No. 11333,11333
• Citation: 824 P.2d 1078,113 N.M. 276,1991 NMCA 146
• Parties: STATE of New Mexico, ex rel. Hal STRATTON, Attorney General, Plaintiff-Appellee, v. ALTO LAND & CATTLE COMPANY, et al., Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1078

824 P.2d 1078

113 N.M. 276

STATE of New Mexico, ex rel. Hal STRATTON, Attorney General Plaintiff-Appellee, v. ALTO LAND & CATTLE COMPANY, et al., Defendants-Appellants.

No. 11333.

Court of Appeals of New Mexico.

Dec. 18, 1991.

[113 NM 276] Tom Udall, Atty. Gen. and Frank D. Weissbarth, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

S. Thomas Overstreet, S. Thomas Overstreet, P.C., Alamogordo, for defendants-appellants.

OPINION

MINZNER, Judge.

Defendants Alto Land and Cattle Company (Alto) and James Wimberly (Wimberly) appeal the trial court's orders allowing the attorney general to file a complaint in intervention and, on the basis of that complaint, requiring them to comply with the provisions of the New Mexico Subdivision Act (Act).¹ We conclude there was substantial evidence to support the court's determination that both defendants engaged in conduct in violation of the Act. We also conclude that the attorney general was authorized to seek injunctive relief to compel compliance. However, in addressing the issues raised by defendants, we have become convinced that the order entered requires revision. We think the order entered compels compliance that is not yet proper under the statutory scheme of enforcement.² Therefore, we affirm in part and reverse in part and we remand with instructions to enter a revised order in accordance with this opinion.

BACKGROUND.

The land that is the subject of this appeal, the Traylor Ranch, was purchased from Herbert Lee Traylor in 1971 by a group of local investors, including defendant Wimberly, organized into the Lincoln County Real Estate Trust (trust). In 1974, the trust sold the Traylor Ranch to Alto. Wimberly had no interest in Alto at this time, although he later became a shareholder and president.

In 1974, there was in existence a map showing the Traylor Ranch and other contiguous property marked into forty-acre parcels. The Traylor Ranch purchase included sixteen forty-acre parcels. In 1975, Wimberly transferred an additional forty-acre tract to Alto, which sold it on the same day to James L. Wimberly Enterprises, Inc., which transferred its interest on the same date to Wayne Townley. This parcel appears to have been contiguous to the parcels that were part of the Traylor Ranch. In 1978 and 1979, Alto sold eight forty-acre tracts to different purchasers.

According to testimony at trial, potential buyers chose parcels to purchase from the map, and some parcels had been offered for sale through newspaper advertisements. In 1978 and 1979, Alto also sold eight five-acre parcels from one forty-acre tract. The five-acre parcels were advertised for sale and were marketed by Great Western Realty, a real estate company owned by Wimberly. Wimberly testified that some of the land was sold to purchasers by way of real estate contracts. Alto sold the seven remaining forty-acre parcels to Land Barons of Ruidoso in 1982.

In 1985, the Lincoln County attorney filed a complaint for injunctive relief and mandamus against defendants on behalf of the board of county commissioners. The complaint alleged that defendants had violated both the Act and county subdivision regulations. In 1987, the trial court granted the attorney general's motion to intervene, and in 1988 the county's complaint was dismissed with prejudice.

The complaint in intervention alleged inter alia that in 1967, prior to Alto's acquisition of the property, a predecessor-in-interest had divided the property for the purpose of sale or lease into seventeen tracts of forty acres each, and that "[t]hese divisions were part of the creation by Ruidoso Land Sales, Inc. of a 1320-acre subdivision consisting of 33 tracts of 40 acres each." The complaint in intervention also alleged that when Alto acquired the property, Wimberly knew that the property had been illegally subdivided; from 1975 to 1982 Alto sold sixteen of the seventeen tracts; in 1978 and 1979 it sold the seventeenth tract in eight five-acre parcels; and in "resubdividing, offering for sale and selling" the seventeen tracts, Alto and Wimberly failed to comply with specific requirements of the Act, as well as the county subdivision regulations.

After a bench trial, the trial court concluded that defendants were in violation of both the Act and county subdivision regulations. The court entered an order in early 1989 requiring defendants to comply with the Act and the current county subdivision regulations with respect to all property previously sold or now held by them and to take certain specific steps in order to comply.

The order contains four paragraphs. The first paragraph directs defendants to comply "with each requirement" of the Act and current county subdivision regulations with respect to all property previously sold or now held by them and lists five specific requirements, including filing a plat approved by the board, filing a disclosure statement, "submitting, obtaining approval of, and constructing the subdivision in conformity with a terrain management plan, a surface drainage plan, a subsurface drainage plan, a water availability plan and a liquid waste management plan," and constructing roads on a schedule approved by the board. The second paragraph directs that the process be initiated within sixty days and provides that failure to comply will entitle the state to proceed under SCRA 1986, 1-070, to obtain a money judgment "and/or issuance of a writ of attachment against the property of [defendants] to cover the costs of performance by a person appointed by the court." The third paragraph provides that all current owners of property within the subdivision be given an opportunity to sign the proposed plat, but that their failure to do so shall not prevent the board from acting. The fourth paragraph provides as follows: "Until such compliance has taken place, ALTO and WIMBERLY be enjoined from offering for sale, selling, or otherwise transferring any further interest in property held by them within the aforementioned Sections."

On appeal, defendants contend that the trial court erred in granting the motion to intervene on four grounds: (1) lack of a hearing; (2) insufficient basis for intervention under SCRA 1986, 1-024; (3) expiration of the limitations period provided in NMSA 1978, Section 37-1-4 (Repl.Pamp.1990); and (4) after the dismissal of the county's first amended complaint with prejudice, that portion of the complaint in intervention addressing the alleged violation of county subdivision regulations should have been dismissed as previously decided. Defendants have also argued (5) that the current owners of the property are indispensable parties; (6) that the relevant county regulations are the regulations that were in force at the time of the sales; (7) that the court's order seeks to require the county commission to exercise its discretion, which is an inappropriate use of mandamus; (8) that the injunctive relief sought is moot, because defendants no longer own any of the land in question; (9) that no subdivision was created, and therefore the Act and the county regulations did not apply; (10) that the trial court failed to exercise independent judgment in adopting all of the findings and conclusions requested by the state; and (11) that the trial court erred in holding Wimberly accountable for Alto's acts.

We address the issues in two groups. The first group includes issues (9), (10), and (11). These issues are answered by determining that there is sufficient evidence to support the court's findings and conclusions that there had been a violation of the Act. The second group includes the remaining issues. These issues all concern the attorney general's authority to seek the relief granted. With one exception, we understand the parties to have agreed that the 1973 version of the Act applies, and therefore we have cited to the 1973 session laws throughout most of the opinion.

SUFFICIENCY OF THE EVIDENCE.

The parties agree that Judge (later Justice) Walters' opinion in State ex rel. Anaya v. Select Western Lands, Inc., 94 N.M. 555, 613 P.2d 425 (Ct.App.1979) contains the relevant test. Consequently, although the decision to adopt that test was not concurred in by two judges and thus was not a decision of this court, see Casias v. Zia Co., 94 N.M. 723, 725, 616 P.2d 436, 438 (Ct.App.1980) (quoting NMSA 1978, Sec. 34-5-11 (" 'Decisions of the court shall be in writing with the grounds stated, and the result shall be concurred in by at least two judges.' ")), we apply that test to the facts of this case. The threshold issue is whether a subdivision was created.

Based on the way the attorney general framed his complaint in intervention, we believe he may have intended to prove initially that a predecessor in interest created a type-four subdivision, see 1973 N.M. Laws, ch. 348, Sec. 2(N) (a "subdivision containing twenty-five or more parcels, each of which is ten acres or more in size"), and that Alto and Wimberly could be compelled to comply with the Act and the county subdivision regulations because they sold land within that subdivision. See id. Sec. 2(H) (" 'subdivider' means any person creating a subdivision, or any person engaged in the sale or lease of subdivided land" (emphasis added)); Sec. 2(I). The first count of the complaint, however, also alleged that in making sales, Alto and Wimberly failed to comply with requirements applicable to type-three subdivisions. See id. Sec. 2(M) (a "subdivision containing not less than five but not more than twenty-four parcels, any one of which is less than ten acres in size"). At trial, the attorney general appeared to rely solely on the evidence of sales by Alto between 1975 and 1982 and advised the court that a type-three subdivision was at issue. After the hearing, the trial court made no findings or conclusions as to the type of subdivision that had been created, when it was created, or by whom. The record indicates that none were requested. As a result,...