State v. Monteverde
| Decision Date | 14 December 2018 |
| Docket Number | NO. A-1-CA-35398,A-1-CA-35398 |
| Parties | STATE OF NEW MEXICO ex rel. STATE ENGINEER, Plaintiff-Appellee, v. RONALD P. MONTEVERDE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Gregory C. Ridgley, General Counsel
Paul D. Bossert, Special Assistant Attorney General
Leila J. Reilly, Special Assistant Attorney General
for Appellee
Joe Lennihan
Santa Fe, NM
for Appellant
New Mexico Legal Aid, Inc.
David Benavides
Santa Fe, NM for Amicus Curiae New Mexico Acequia Association, Inc.
{1} Ronald Monteverde appeals from an amended memorandum opinion and order sustaining the State's objections to the Special Master's report and determining that Monteverde has abandoned his water right. Specifically, Monteverde challenges the district court's conclusions that (1) the Special Master's sua sponte application of equitable tolling and laches deprived the State of notice and opportunity to defend against them, and (2) Monteverde failed to provide sufficient evidence to rebut the presumption that he intended to abandon his water right.
{2} Monteverde also asserts, for the first time on appeal, that the delay in prosecuting his case has deprived him of his constitutional right to due process. Because Monteverde has failed to show he was prejudiced by the alleged delay, we find no due process violation. We affirm the district court.
{3} Monteverde purchased property at the end of the Vigil Ditch, a community ditch fed by the Gallinas River, in 1979. The purchase included a surface water irrigation right appurtenant to 9.5 acres, as adjudicated to his predecessor in interest by United States v. Hope Community Ditch, et al., Cause No. 712 (Equity)(D.N.M. 1933). When Monteverde bought the property, the ditch Upstream property owners constructed roads and installed utilities across the ditch, further obstructing water flow from reaching Monteverde's point of diversion. Despite attempts to work with the upstream property owners and to create a culvert under the northern roads, water has not flowed to Monteverde's point of diversion since the early 1990s.
{4} A hydrographic survey published in 1991 found that Monteverde's property was not being irrigated. Monteverde began diverting water directly from the Gallinas River into an artificial pond on his property and irrigating parts of his property from this artificial pond as well as with water from an intermittent groundwater seepage-fed pond also on his property. This practice ended in 2008, and Monteverde has not attempted irrigation from any source since then.
{5} In 1991 the State served Monteverde with an offer of judgment stating that his property had no water right. Though not submitted for the record, the district court found that Monteverde rejected this offer of judgment. The State renewed its offer of judgment of no water right in 2009, which Monteverde again rejected. Between these two offers of judgment, Monteverde filed an application for permitto change point of diversion with the State, requesting authorization to change his point of diversion to the Gallinas River. The State informed Monteverde that he had used an outdated form and had tendered the incorrect application fee. Monteverde submitted evidence that he had paid the correct application fee but did not provide evidence that he submitted the correct application, nor did he testify to that effect. The State rejected the application, finding that the property had no water right and that Monteverde had not followed official procedure.
{6} The parties do not dispute that Monteverde has not irrigated his property with water from the Vigil Ditch since the early 1980s. Following a hearing, the Special Master recommended that the district court conclude that Monteverde's "obligation to make beneficial use of water was tolled when the State served the 1991 No-Right Offer or, in the alternative, that the State is bar[red] by laches from arguing that . . . Monteverde was obligated to make beneficial use of water while the State's abandonment litigation [was] pending." The Special Master, based upon his conclusion that any alleged nonuse after 1991 should not be considered in an abandonment analysis, also recommended that the district court conclude that the State "failed to prove by clear and convincing evidence that . . . Monteverde intended to abandon" his water right.
{7} The State objected to the Special Master's recommendations, raising three issues before the district court: (1) the legal theories of equitable tolling and lacheswere not raised by Monteverde and therefore the State was deprived notice and opportunity to defend; (2) the legal theories of equitable tolling and laches were inapplicable to the case; and (3) Monteverde abandoned his water right. The district court found that "[t]he State was never given notice that the affirmative defenses of equitable tolling and laches would be raised, and it did not have an opportunity to defend against them." The district court agreed with the State that the Special Master was without authority to sua sponte raise these defenses for Monteverde and therefore determined that the period of continued, unexcused nonuse was from 1991 until 2015. The district court next concluded that Monteverde "failed to put water to beneficial use on [his] property for a period of twenty-four years, triggering the presumption of intent to abandon the water right," and that Monteverde "offered no excuse cognizable under the law to rebut the presumption of abandonment." The district court ultimately sustained the State's objections and declared that Monteverde had abandoned his water right. This appeal followed.
{8} When an appeal involves proceedings before a special master and a district court's subsequent review of the special master's report, two standards of review apply: "the standard the district court applies to review of the special master'sreport and the standard that our Court applies to review of the district court's order." State ex rel. Office of State Eng'r v. United States, 2013-NMCA-023, ¶ 10, 296 P.3d 1217.
{9} Rule 1-053(E)(2) NMRA provides that in a non-jury action, "the [district] court shall accept the [special] master's findings of fact unless clearly erroneous." See Lopez v. Singh, 1949-NMSC-022, ¶ 6, 53 N.M. 245, 205 P.2d 492 (). In its memorandum opinion and order, the district court set forth only those findings of fact itemized by the Special Master that the district court determined were undisputed. Because neither party challenges the district court's findings of fact on appeal, they are conclusive and we need not examine them. See Rule 12-318(A)(4) NMRA (). A special master's conclusions of law are reviewed by the district court de novo. Office of State Eng'r, 2013-NMCA-023, ¶ 17.
{10} Our standard of review of a district court's order in cases involving Rule 1-053 is the same as the review conducted by the district court. See Office of State Eng'r, 2013-NMCA-023, ¶ 18 (); see also Creson v. Amoco Prod. Co., 2000-NMCA-081, ¶ 10, 129 N.M. 529, 10 P.3d 853 (). Accordingly, we review the district court's conclusions of law de novo. See Creson, 2000-NMCA-081, ¶ 10. Monteverde asserts that the district court did not consider the applicability of equitable tolling and laches to this case because it sustained the State's objection that they were improperly raised. Because we affirm the district court's order sustaining the State's objections to the sua sponte application of equitable tolling and laches, we similarly do not reach the merits of their applicability.
{11} Monteverde urges this Court to affirm the Special Master's application of equitable tolling and laches, arguing that the State "cannot reasonably claim to be unaware that delay might become an issue." In support of this request, Monteverde cites Rule 1-015 NMRA (), Rule 1-041 NMRA (dismissal of actions), and Rule 1-054 NMRA (judgments; costs). In response, the State contends that the Special Master's sua sponte application of the equitable doctrines deprived the State of notice and opportunity to defend againstthem because the defenses were raised for the first time in the Special Master's report.
{12} "Although pro se pleadings are viewed with tolerance, a pro se litigant is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar." Camino Real Envtl. Ctr., Inc....
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