June 4, 2019- Parkview Community Ditch Association v. Douglas Peper, No. A-1-CA-36034

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico
Filed 6/4/2019 1:12 PM

IN THE COURT OF APPEALS OF THE STATE OF NEW ame

PARKVIEW COMMUNITY DITCH
ASSOCIATION, .

Plaintiff-A ppellee,
v. No. A-1-CA-36034

DOUGLAS PEPER and LANCE
PEPER,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Francis J. Mathew, District Judge

Daniel A. Sanchez
Daniel J. Sanchez
Albuquerque, NM

for Appellee

The Law Office of Scott M. Davidson, Ph.D., Esq.
Scott M. Davidson
Albuquerque, NM

for Appellants

New Mexico Legal Aid
David A. Benavides
Santa Fe, NM

Holland & Hart LLP
Larry J. Montano
Charlie S. Baser
Santa Fe, NM

Hark Rey 5

1 Natural Resources and Environmental Law Clinic
2 University of New Mexico School of Law
3 Gabriel Pacyniak
4 Jeanette Wolfley
5 Bryan Gonzalez, Clinical Law Student
6 Alison Goodwin, Clinical Law Student
7 Peter Kelton, Clinical Law Student
8 Lauren Wilber, Clinic.al Law Student
9 Deshawnda Chaparro, Clinical Law Student
10 Mary Alexis Volner, Clinical Law Student
11 	Ruben Guajardo, Clinical Law Student
12 Alan Barton, Clinical Law Student
13 	Reyes DeLaCruz, Clinical Law Student
14 for Amici Curiae The New Mexico Acequia Association, The New Mexico Land
15 	Grant Council, The Acequia Larga De Las Cruces, The Merced Del Pueblo De .
16 Chilil, The Merced Del Pueblo De San Joaquin Del Rio De Chama, and The
17 Acequia Madre Del Llano
18 	MEMORANDUM OPINION
19 IVES, Judge.
20 	{l} 	Douglas Peper and Lance Peper (the Pepers) appeal the district court's
21 	judgment dismissing their claim against Parkview Community Ditch Association
22 (the Association) pursuant to the Open Meetings Act (OMA), NMSA 1978, §§ 10-
23 	15-1 to 10-15-4 (1974, as amended through 2013). The Pepers argue that the district
24 court erred by (1) failing to consider their claim that the Association violated their
25 	rights under Article VII, Section 3 of the New Mexico Constitution by holding part
26 	of a meeting in the Spanish language; and (2) concluding that the Pepers' OMA
27 claim was invalid under Section 10-15-3(B) because they failed to provide written
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1 notice of the Association's alleged OMA violations at least fifteen days before
2 bringing their claim in district court. We affirm.
3 BACKGROUND
4 {2} 	This is the second time this case comes to us on appeal. See Parkview Cmty.
5 Ditch Ass 'n v. Peper (PCDA I), 2014-NMCA-049, 323 P.3d 939. The Pepers and
6 the Association, which manages an acequia system, became entangled in litigation
7 after the Pepers installed a diversion structure called a headgate on the acequia
8 system without the permission of the Association or its mayordomo. Id. 111, 4. The
9 Association sued the Pepers, petitioning the district court for injunctive relief in the
10 form of an order requiring the Pepers to remove the headgate. Id. 1 5. The Pepers
11 	answered and brought counterclaims alleging that the Association had violated the
12 OMA, but did not make any claims based on our state constitution. Id. 	After
13 	evidentiary hearings, the district court found that it had jurisdiction and ordered the
14 Pepers to remove the headgate. Id. 18.
15 	{3} 	The Pepers appealed, arguing that: (1) because of the Association's violations
16 	of the OMA, the commissioner and mayordomo were never properly elected as
17 officers in 2010 and lacked standing to bring a lawsuit; (2) the lawsuit was invalid
18 	because the Association did not properly meet and vote to initiate it; and (3) the
19 mayordomo lacked the authority in 2012 to make findings about the headgate or
20 compel compliance with those findings because he had not been properly elected to
3

I
1 serve in 2012 at the December 2011 meeting. 1 Id. 1 9. This Court rejected the Pepers'
2 first two arguments. Id. 1112-17.
3 	{4} 	We did not reach the merits of the Pepers' third argument because we
4 "conclude[ d] that the district court neither heard nor decided the question of whether
5 the Association's officers were properly elected in 2011." Id. 1 21. We explained
6 that the district court had refused to take evidence about whether the mayordomo
7 was properly reelected in December 2011, and that the district court had declined to
8 decide whether the mayordomo had been elected for the 2012 term. Id. Accordingly,
9 we "remand[ed] to the district court for findings on whether the election of officers
10 in 2011 was properly conducted under the OMA." Id.
11 	{5} 	On remand, the Pepers sought leave to amend their pleadings to add new
12 claims based on what they alleged were "[more] recent violations of the [Inspection
13 	of Public Records Act] and OMA."2 The district court denied the Pepers' request
14 because it concluded that our opinion and mandate in PCDA I limited its jurisdiction
15 	on remand to the issue of the propriety of the Association's 2011 officer elections
16 under the OMA. Consistent with its order denying the Pepers' motion to amend, the
1 Our opinion in the first appeal includes a more detailed summary of the
proceedings that occurred before that appeal. We discuss those proceedings only as
needed to explain our decision in this appeal.
2 At this juncture, the Pepers' proposed new claims did not include the state
constitutional claim they raise in this appeal.
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1 district court's pretrial order also limited the scope of the bench trial to the same
2 OMA compliance issue. After trial the Pepers submitted proposed findings and
3 conclusions, raising, for the first time, allegations that the Association had violated
4 the state constitution.
5 {6} 	In its judgment against the Pepers and its supporting findings of fact and
6 conclusions of law, the district court did not adopt any of the Pepets' proposed
7 findings or conclusions regarding their state constitutional claim. Instead, the court
8 rejected the Pepers' OMA challenges to the Association's December 2011 meeting.
9 The district court concluded that "the Association substantially complied with [the
10 OMA,]" in part because "[t]he OMA does not require that all government meetings
11 	be conducted in English or that Government entities provide translators for all in
12 attendance who do not speak the language common to the community being used in
13 	the meeting, whether such language is English, Spanish or some other language
14 common to the community." The district court also found that "[p]ersons in
15 	attendance at the meeting of December 4, 2011, offered to translate the proceedings
16 from Spanish to English for the Defendants Peper, but Defendants Peper chose not
17 to accept such offers." Finally, the district court denied the Pepers' OMA claim. 	. 	.
18 because they "failed to comply with a condition precedent for an individual to apply
19 for enforcement through the district courts under [Section 10-15-3(B) of] the OMA"
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1 by invoking the jurisdiction of the district court less than fifteen days after notifying
2 the Association of the alleged OMA violations.
3 {7} 	Shortly after trial, the Pepers moved for a new trial or, in the alternative, to
4 amend the district court's findings of fact and conclusions of law to address the state
-S 	constitutional claim at issue in this appeal. The Pepers argued that the Association
6 violated their rights under Article VII, Section 3 by conducting part of the December
7 2011 meeting in Spanish and that the Pepers had complied with Section 10-15-3(B).
8 The district court denied their motion. The Pepers appealed.
9 DISCUSSION
10 I.
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The 	District 	Court 	Lacked 	Jurisdiction 	Over 	the 	Pepers' 	State
Constitutional Claim on Remand
The Pepers argue that the district court should have concluded that the
13 	Association violated their state constitutional rights to vote and hold public office
14 when it conducted the election of the Association's officers in Spanish during the
15 	December 2011 meeting. They rely on Article VII, Section 3 of the New Mexico
16 Constitution, which states, in pertinent part:
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The right of any citizen of the state to vote, hold office or sit upon juries,
shall never be restricted, abridged or impaired on account of religion,
race, language or color, or inability to speak, read or write the English
or Spanish languages except as may be otherwise provided in this
constitution.
22 In response, the Association argues that the district court lacked jurisdiction to
23 	address the Pepers' 	state constitutional claim. 	Whether the 	district court had
6

1 jurisdiction is an issue of law we review de novo. City of Roswell v. Smith, 2006-
2 NMCA-040, 1 	10, 139 N.M. 381, 	133 	P.3d 271. Because we agree with the
3 Association on the jurisdictional question, we do not reach the merits of the Pepers'
4 	state constitutional claim.
5 	{9} 	The district court correctly declined to address that claim, which was beyond
6 its jurisdiction after we remanded the case at the conclusion of the Pepers' first
7 appeal. When an appellate court remands a case to the district court, as we did in
8 PCDA1, the appellate court's "opinion and mandate set forth the full extent of the
9 jurisdiction of the district court." 3 State ex rel. King v. UU Bar Ranch Ltd. P 'ship,
10 2009-NMSC-010, 122, 145 N.M. 769, 205 P.3d 816. A district court is "not free to
11 	enlarge or alter the issues presented in the mandate." Id. In other words, "the duty of
12 a lower court on remand is to comply_with the mandate of the appellate court, and
13 	to 	obey 	the 	directions 	therein 	without 	variation[.]" 	Vinton 	Eppsco 	Inc. 	of
14 Albuquerque v. Showe Homes, Inc., 1981-NMSC-114, 14, 97 N.M. 225, 638 P.2d
15 	1070.
16 	{tO} 	The district court adhered to these principles when it declined to address the
17 Pepers' claim under Article VII, Section 3. In PCDA I, we specifically limited the
18 	scope of the district court's jurisdiction by "remand[ing] for proceedings on the issue
3 "If there is any doubt or ambiguity regarding the mandate, the meaning of
the Court of Appeals opinion governs." UU Bar Ranch Ltd. P 'ship, 2009.:.NMSC-
010, 122.
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1 of whether the Association's elections for 2012 officers complied with the OMA."4
2 2014-NMCA-049, 128; see id. 121 ("[W]e remand .. ." for findings on whether the
3 election of officers in 2011 was properly conducted under the OMA."). After our
4 remand, the district court correctly confined the litigation to that issue. Had it
5 addressed the issue of whether the Association violated the Pepers' rights under
6 Article VII, Section 3 by conducting part of the December 2011 meeting in Spanish,
7 the court would have exceeded its jurisdiction by "enlarg[ing] or alter[ing] the
8 issue[]" set forth in our opinion in PCDA I. UU Bar Ranch Ltd. P 'ship, 2009-NMSC-
9 010, ,-r 22. The district court recognized that it had limited jurisdiction on remand
·10 and lacked jurisdiction to consider any issues not identified in this Court's mandate.
11 	The district court followed New Mexico law.
12 	{11} 	The Pepers do not address New Mexico precedent governing the scope of a
13 	district court's jurisdiction on remand from an appellate court. Instead, they rely
14 exclusively on Trujillo v. State, 1968-NMSC-179, 79 N.M. 618,447 P.2d 279, and
15 Sanchez v. 	Attorney General, 	1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170,
16 neither of which is on point. Trujillo and Sanchez do not address the scope of a
17 district court's jurisdiction on remand after an appeal. They stand for the basic
18 proposition that our district courts are courts of general jurisdiction. See Trujillo,
4 A copy of our opinion was attached to our mandate, which remanded the
case to the district court for any further proceedings consistent with our opinion.
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1 .1968-NMSC-179, 1 3; Sanchez, 1979-NMCA-081, 1 21. As such, they have "the
2 authority 	to 	consider 	all 	matters 	not 	exclusive 	to 	other 	courts, 	including
3 constitutional claims in the first instance." El Castillo Ret. Residences v. Martinez,
4 2017-NMSC-026, 1 22, 401 P .3 d 751. General jurisdiction, however, does not allow
5 district courts to address whatever issues the litigants choose to present on remand.
6 On remand, as we have explained, an appellate court's mandate and opinion strictly
7 circumscribe the district court's jurisdiction. In this case, the court's jurisdiction did
8 not extend to newly-asserted claims, such as the Pepers' state constitutional claim.
9 	UU Bar Ranch Ltd. P'ship, 2009-NMSC-010, 122.
10 {12} 	In this litigation, the Pepers enjoyed the same right to make claims, including .
11 	state copstitutional claims, enjoyed by other parties engaged in civil litigation in our
12 district 	courts. 	See 	Rule 	1-013 	NMRA 	( stating 	requirements 	for 	bringing
13 	counterclaims); 1-015 NMRA (stating requirements for amending·pleadings). After
14 the Association sued the Pepers, the Pepers chose to bring a counterclaim alleging
15 	violations of the OMA during the December 2011 meeting, but chose not to b~ing a
16 claim alleging violations of the state constitution during that same meeting. Had they
17 raised 	a 	state 	constitutional 	claim, 	the 	district . court-as 	a 	court 	of general
18 jurisdiction-would have had authority to consider it. The Pepers' choices defined
19 the scope of this litigation, including the Pepers' first appeal. That appeal narrowed
20 the remainder of the litigation, leaving for the district court only the OMA claim
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1 regarding the December 2011 meeting. See PCDA I, 2014-NMCA-049, 1121-22,
2 28. On remand, the court disposed of that claim and correctly declined to consider
3 the state constitutional claim.
4 II.
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7 {13}
The Pepers Have Not Demonstrated Reversible Error in the District
Court's Disposition of Their OMA Claim Regarding the December 2011
Association Meeting
The Pepers argue that the district court erred by concluding that the Pepers
8 failed 	to 	comply with 	NMSA 	1978, 	Section 	10-15-3(B), which, 	as 	relevant,
9 provides:
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[N]othing in [the OMA] shall prevent an individual from independently
applying for enforcement through tl?.e district courts, provided that the
individual first provides written notice of the claimed violation to the
public body and that the public body has denied or not acted on the
claim within fifteen days of receiving it.
15 The Pepers do not argue that they complied with Section 10-15-3(B). Instead, they
16 ask us to carve a futility exception out of the OMA's private enforcement notice
17 requirements, and they claim they fall within that exception because of "the futility
18 	of further efforts to reform the intransigent officials of the Association." We review
19 issues of statutory interpretation de novo. State v. Trujillo, 2009-NMSC-012, 1 9,
20 	146 N.M. 14,206 P.3d 125. However, we find it unnecessary to determine whether
21 	the OMA includes. a futility exception for two reasons, each sufficient, standing
22 alone, to warrant affirming the district court's disposition of the OMA claim.
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1 {14} 	First, even if a futility exception exists and excuses noncompliance with
2 Section 10-15-3(B), as the Pepers contend, we have no way of knowing whether this
3 case falls within that exception. The Pepers' briefs include factual assertions about
4 events that they claim demonstrate that compliance would have been futile, but the
5 Pepers fail to support any of those assertions with citations to the record on appeal.
6 Without 	citing 	evidence 	in 	the 	record, 	the 	Pepers 	discuss 	a 	series 	of
7 communications-letters, a telephone call, and a face-to-face interaction-between
8 the Pepers and the Association. We "will not consider ... matters not of record." In
9 reAaronL., 2000-NMCA-024, ~27, 128 N.M. 641, 996P.2d43I. The only portions
10 of the record that the Pepers cite to substantiate their claim of futility are their
11 	proposed findings of fact and conclusions of law and their motion for new trial. But
12 these are arguments of counsel, "not evidence that we may consider." Beyale v. Ariz.
13 	Pub. Serv. Co., 1986-NMCA-071, ~ 16, 105 N.M. 112, 729 P.2d 1366. The Pepers
14 have provided no factual support for their contention that compliance would have
15 	been futile, and we will not scour the record to determine whether any such support
16 exists. See Muse v. Muse, 2009-NMCA-003, ~ 42, 145 N.M. 451,200 P.3d 104 ("We
17 are not obligated to search the record on a party's behalf to locate support for
18 propositions a party advances or representations of counsel as to what occurred in
- 19 the proceedings.").
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1 {15} 	Second, even if we were to accept the Pepers' argument regarding futility, we
2 would 	affirm 	based 	on the 	district 	court's 	unchallenged 	conclusion that 	the
3 Association substantially complied with the OMA. See PCDA I, 2014-NMCA-049,
4 1 13 	("Under the 	substantial compliance standard, 	when the OMA has been
5 sufficiently followed so as to carry out the intent for which it was adopted and serve
6 the purpose of the statute, no violation has occurred." (alterations, internal quotation
7 marks, and citation omitted)). The district court based its judgment against the
8 Pepers on two alternative conclusions: (1) that the Pepers' OMA enforcement action
9 was invalid because they failed to comply with a condition precedent in Section 10-
10 	l 5-3(B); 	and (2) 	that the Association substantially complied with the 	OMA.
11 	Although they must persuade us that both conclusions are wrong to prevail on
12 appeal, the Pepers do not challenge the district court's substantial compliance
13 	conclusion. Because we must accept that unchallenged conclusion, whether the
14 Pepers sought to enforce the OMA in accordance with Section 10-15-13(B) has no
15 	bearing on the outcome of this appeal. See Rust Tractor Co. v. Consol. Constructors,
16 Inc., 	1974-NMCA-096, 1 7, 	86 N.M. 	658, 526 P.2d 800. The district court's
17 substantial compliance conclusion adequately supports the district court's judgment.
18 	CONCLUSION
19 {16} 	We affirm.
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—"

eS)

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WE CONCUR:

JULIE J. VARGAS,

Mogan ?

MEGAN P. DUFFY,

a7; ITIS SO ORDERED.

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ZACHARW AS

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