Vigil v. Espinosa
| Decision Date | 15 May 2014 |
| Docket Number | NO. 32,065,32,065 |
| Parties | CONNIE J. VIGIL, Petitioner-Appellant, v. ACEQUIA DE LOS ESPINOSA, LEROY ORTIZ, and RICHARD MARTINEZ, Respondents-Appellees, and RICHARD G. MARTINEZ and INDIA MARTINEZ, Real Parties in Interest. |
| 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 RIO ARRIBA COUNTY
New Mexico Firm, LLC
Nathaniel V. Thompkins
Santa Fe, NM
for Appellant
{1} In this case, we consider the failure of the district court to grant Petitioner a default judgment after Respondents had defaulted for failure to answer or otherwise appear in the action, and Respondents failed to move to set aside the default. We reverse the order of the district court in failing to grant Petitioner a writ of mandamus as requested, and remand with instructions and to set an evidentiary hearing to determine whether to award Petitioner her costs and damages pursuant to NMSA 1978, § 44-2-12 (1884), whether to impose a statutory fine against Respondents pursuant to NMSA 1978, § 44-2-13 (1884), and whether Petitioner is entitled to any other relief.
{2} Petitioner filed a verified petition for a writ of mandamus (Petition) in the district court alleging in material part: (1) that she is a member of the Acequia de los Espinosa (the Acequia); (2) that real parties in interest Richard G. Martinez and India Martinez refuse to keep their portion of the ditch or acequia in good repair, thereby negatively impacting her water rights; (3) that Lenny Ortiz, as President of the Acequia, and Richard Martinez, as Mayordomo (officers), failed and refused to comply with their duty under the By-Laws of the Acequia and applicable statutes to force the real parties in interest to maintain and keep their ditch free of trash and otherobstructions; (4) that Petitioner secured a judgment from the Espanola Magistrate Court (magistrate court) ordering the Acequia to "have full responsibility to maintain the ditch as necessary"; (5) that when real parties in interest failed to maintain their portion of the ditch, and the Acequia failed to require their compliance, the magistrate court issued an order at Petitioner's request for the Acequia to show cause why it was not complying with the judgment; (6) that upon appearing before the magistrate court, the Acequia, through officers, stated it would not enforce the By-Laws to require real parties in interest to comply; (7) that the magistrate judge thereupon stated there was nothing further that he could do; and (8) that this is a proper case for a writ of mandamus, and that Petitioner is entitled as a matter of right to a writ of mandamus.
{3} Petitioner requested a writ of mandamus be issued to Respondents, the Acequia, and officers, to: (1) enforce the By-Laws of the Acequia to require the real parties in interest to clean up and keep clean their portion of the ditch; (2) comply with the magistrate court judgment; and (3) pay an award of damages and costs. In addition, Petitioner asked that a statutory fine, not exceeding $250 be assessed against each officer pursuant to Section 44-2-13 for failing to comply with their duties.
{4} Each Respondent was served with a summons and a copy of the Petition, directing them to file an answer or motion within thirty days after service. Thesummons further stated in all capital letters "IF YOU DO NOT FILE AND SERVE AN ANSWER OR RESPONSIVE PLEADING A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU FOR THE MONEY OR OTHER RELIEF DEMANDED IN THE COMPLAINT." On October 3, 2011, Petitioner filed a motion for entry of a default judgment alleging that Respondents were served on August 4, 2011, and had not yet appeared in the case or filed a response to the Petition. The clerk's certificate as to the state of the record was filed on October 31, 2011, verifying that Respondents were served on August 4, 2011, and that they had not answered or otherwise appeared.
{5} The district court thereupon filed its order granting a default judgment against Respondents. The district court also scheduled an evidentiary hearing to be held "to determine if fines are to be imposed pursuant to NMSA 1978, § 44-2-13 and Petitioner's proof of damages, costs, disbursements[,] and attorney fees[.]"
{6} Respondents filed no pleadings, but appeared at the hearing without an attorney. Despite reiterating that Respondents were properly served, that they filed no responsive pleadings, and that Petitioner was entitled to a default judgment "on the issuance of the [w]rit of [m]andamus," the district court nevertheless refused to issue the writ or grant any other relief. The basis for the district court's action was its finding, based on a presentation and arguments made by Respondents, that while theyhad the authority to enforce rules to remove debris from lateral ditches as alleged in the Petition, that authority was permissive, not mandatory. Petitioner's motion to reconsider was denied without a hearing or response from Respondents, and Petitioner appeals. The case has been submitted on Petitioner's brief in chief because Respondents did not file an answer brief.
{7} This case requires us to interpret and apply various Rules of Civil Procedure. As such, our review is de novo because the interpretation of a procedural rule is a question of law. See State v. Miller, 2008-NMCA-048, ¶ 11, 143 N.M. 777, 182 P.3d 158 (); H-B-S P'ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 5, 143 N.M. 404, 176 P.3d 1136 ().
{8} We begin with Rule 1-055(A) NMRA. This rule provides: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." This rule was complied with when the clerk filed its certificate as to the state of the record thatRespondents had been served with service of process, that more than thirty days had passed since service, and that Respondents had not answered or otherwise appeared.
{9} Petitioner also separately moved the district court to enter its order granting a default judgment on grounds that Respondents had been served with service of process, that more than thirty days had passed since service, and that Respondents had not answered or otherwise appeared. The district court then granted Petitioner's motion for a default judgment pursuant to Rule 1-055(B). In pertinent part, this rule states that in all cases in which a party who is entitled to a judgment by default has applied for a default judgment, "[j]udgment by default may be entered." Id. The consequence of the default judgment in favor of Petitioner and against Respondents for their failure to appear, answer, or otherwise plead is clear: "[O]nce default judgment has been entered, liability is not an issue, and the allegations of the complaint become findings of fact." Passino v. Cascade Steel Fabricators, Inc., 1986-NMCA-078, ¶ 8, 105 N.M. 457, 734 P.2d 235 ( )), overruled on other grounds by Burge v. Mid-Continent Cas. Co., 1997-NMSC-009, ¶ 23, 123 N.M. 1, 933 P.2d 210.{10} Relief from the consequence of a default judgment lies under Rule 1-055(C): "For good cause shown, the court may set aside...
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