{ "id": 723279, "name": "ELDORADO AT SANTA FE, INC., Intervenor-Appellant, v. William COOK, Elmer Ferneau, Marie Ferneau, Priscilla Hoback, Rod Hall, Ramona Sholder, and Donlad Woodman, who is also known as Donald Woodman, Petitioners-Appellees, S.E. Reynolds, State Engineer, Respondent-Appellee", "name_abbreviation": "Eldorado at Santa Fe, Inc. v. Cook", "decision_date": "1991-10-11", "docket_number": "No. 11218", "first_page": "33", "last_page": "38", "citations": [ { "type": "official", "cite": "113 N.M. 33" }, { "type": "parallel", "cite": "822 P.2d 672" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "817 P.2d 730", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "112 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720221 ], "opinion_index": 0, "case_paths": [ "/nm/112/0537-01" ] }, { "cite": "104 N.M. 793", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595006 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0793-01" ] }, { "cite": "65 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845907 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/65/0074-01" ] }, { "cite": "106 N.M. 321", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707559 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0321-01" ] }, { "cite": "78 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323819 ], "weight": 2, "year": 1967, "pin_cites": [ { "parenthetical": "substantial evidence standard of review" }, { "parenthetical": "substantial evidence standard of review" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0086-01" ] }, { "cite": "81 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363411 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0410-01" ] }, { "cite": "106 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0492-01" ] }, { "cite": "53 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580728 ], "weight": 4, "year": 1949, "pin_cites": [ { "page": "376" }, { "page": "1082" } ], "opinion_index": 0, "case_paths": [ "/nm/53/0367-01" ] }, { "cite": "87 N.M. 149", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831044 ], "weight": 2, "year": 1974, "pin_cites": [ { "parenthetical": "there are no limitations on power of district courts to find facts, make conclusions of law, and enter judgments and orders as are proper to dispose of the issues" }, { "parenthetical": "there are no limitations on power of district courts to find facts, make conclusions of law, and enter judgments and orders as are proper to dispose of the issues" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0149-01" ] }, { "cite": "456 U.S. 228", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185638 ], "weight": 3, "year": 1982, "pin_cites": [ { "parenthetical": "allegation of requisite personal stake in outcome was sufficient to confer standing" }, { "parenthetical": "allegation of requisite personal stake in outcome was sufficient to confer standing" }, { "parenthetical": "allegation of requisite personal stake in outcome was sufficient to confer standing" } ], "opinion_index": 0, "case_paths": [ "/us/456/0228-01" ] }, { "cite": "89 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2862720 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "same" }, { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0503-01" ] }, { "cite": "91 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571026 ], "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "in zoning action, due process requires notice where change in zoning restriction would amount to change in fundamental character of property, and failure to give notice renders void all subsequent acts of zoning authority" }, { "parenthetical": "in zoning action, due process requires notice where change in zoning restriction would amount to change in fundamental character of property, and failure to give notice renders void all subsequent acts of zoning authority" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0455-01" ] }, { "cite": "286 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717812 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0105-01" ] }, { "cite": "39 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573416 ], "weight": 2, "year": 1965, "pin_cites": [ { "parenthetical": "dicta" }, { "parenthetical": "dicta" } ], "opinion_index": 0, "case_paths": [ "/nm/39/0454-01" ] }, { "cite": "43 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568277 ], "weight": 3, "year": 1939, "opinion_index": 0, "case_paths": [ "/nm/43/0329-01" ] }, { "cite": "43 S.W.2d 375", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 0 }, { "cite": "163 Tenn. 388", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8532424 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/tenn/163/0388-01" ] }, { "cite": "103 N.M. 277", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711298 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "final judgment where trial court actually disposed of all issues of law and fact to the fullest extent possible" }, { "parenthetical": "final judgment where trial court actually disposed of all issues of law and fact to the fullest extent possible" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0277-01" ] }, { "cite": "74 N.M. 674", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802304 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "678", "parenthetical": "reviewing court looks to substance, not form, in determining whether decree final" }, { "page": "475", "parenthetical": "reviewing court looks to substance, not form, in determining whether decree final" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0674-01" ] }, { "cite": "33 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554396 ], "weight": 2, "year": 1927, "opinion_index": 0, "case_paths": [ "/nm/33/0006-01" ] }, { "cite": "96 N.M. 651", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577363 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0651-01" ] }, { "cite": "84 N.M. 768", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768949 ], "weight": 2, "year": 1973, "pin_cites": [ { "parenthetical": "appellate court may look to comments of lower court to clarify ambiguous finding" }, { "parenthetical": "appellate court may look to comments of lower court to clarify ambiguous finding" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0768-01" ] }, { "cite": "4 NW 1", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "4 SW 1", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 } ], "analysis": { "cardinality": 812, "char_count": 15811, "ocr_confidence": 0.759, "pagerank": { "raw": 1.1682944639597259e-07, "percentile": 0.5857032591475411 }, "sha256": "d600e1fc8c2c2ecb570aaabeecd4be0a9d3c9c8aaa065d11a9d4c03b8bf53372", "simhash": "1:9bd3e25659916e31", "word_count": 2568 }, "last_updated": "2023-07-14T16:27:24.348281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID, C.J., and CHAVEZ, J., concur." ], "parties": [ "ELDORADO AT SANTA FE, INC., Intervenor-Appellant, v. William COOK, Elmer Ferneau, Marie Ferneau, Priscilla Hoback, Rod Hall, Ramona Sholder, and Donlad Woodman, who is also known as Donald Woodman, Petitioners-Appellees, S.E. Reynolds, State Engineer, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nThe opinion filed September 20, 1991, is withdrawn and the following substituted therefor.\nIntervenor, Eldorado at Santa Fe, Inc. (Eldorado) appeals from a district court order which granted petitioners\u2019 request for a writ of certiorari and remanded Eldorado\u2019s well location change application to the state engineer for reprocessing. Eldorado challenges: (1) the propriety of a writ of certiorari; (2) the standing of petitioners to seek certiorari; (3) the district court\u2019s jurisdiction to remand this matter to the state engineer; (4) the district court\u2019s determination of error in a published notice based on a defect that was not set forth in the petition; and (5) whether defective publication of notice is a jurisdictional defect. In addition to the foregoing, we also address the question of whether the district court\u2019s order was a final judgment, having instructed the parties to brief that issue. We affirm.\nFacts\nEldorado owns water well no. RG-18556, which is located near Lamy within the Bishop John Lamy Grant. In 1983, after the well casing failed and could not be removed, Eldorado applied to the state engineer for a permit to drill a replacement well twenty feet away. The application described the initial and move to locations as being within the NW 1/4 SW 1/4 NW 1/4 of Section 4, T14N, R10E N.M.P.M. The state engineer prepared a notice of application for publication and sent it to Eldorado. Because of a word processing error by the state engineer, the notice included the words \u201cas projected within the Canada de Los Alamos Grant.\u201d\nEldorado published the notice as prepared by the state engineer. There were no objections, and, on July 21, 1983, the state engineer issued a permit to change the location of the well. Eldorado spent substantial sums on the well and related facilities.\nDuring construction various parties moved the state engineer to set aside the permit because the published notice included the incorrect land grant description. The state engineer denied the motion for lack of jurisdiction and no appeal was taken. Two years later some of the former movants petitioned for a writ of mandamus, seeking remand to the state engineer so that he could require re-advertisement and reconsider the issuance of the permit. Soon thereafter petitioners filed this action seeking a writ of certiorari against the state engineer. Eldorado subsequently intervened.\nThe district court attempted to remand both actions to the state engineer. Eldorado obtained an order from the supreme court that ordered the mandamus and certiorari cases to be consolidated and heard on the merits. The district court dismissed the mandamus petition. After a hearing on the merits, the district court granted the certiorari petition and remanded the case to the state engineer.\nFinality of the District Court\u2019s Order\nThe pertinent text of the order is as follows:\n[T]his matter is hereby remanded to the State Engineer for appropriate administrative action. Republication of notice will be the first action on which the State Engineer shall proceed. All findings & conclusions filed herein are adopted as part of this order.\nJurisdiction is retained by this court until a final administrative or judicial order is entered. RG-18556 may continue diverting water for functions now being served by the well until such time as a final order is entered in this case.\nThe bare language of the order suggests that it may not be final because it states that jurisdiction is being retained pending a final order. However, our analysis of the circumstances of this case convinces us that the district court neither contemplated nor was empowered to engage in further action regarding the issues raised in the petition.\nThe letter ruling of the district court stated that a primary purpose of retaining jurisdiction was to keep the well functioning. See State ex rel. Reynolds v. Lewis, 84 N.M. 768, 508 P.2d 577 (1973) (appellate court may look to comments of lower court to clarify ambiguous finding). We do not read the order as contemplating further proceedings in the district court after the administrative proceeding. Moreover, any attempt to retain jurisdiction to hear a subsequent appeal from the state engineer\u2019s reconsideration of Eldorado\u2019s application would exceed the district court\u2019s jurisdiction in view of the statutory requirements for appeal from the decision of the state engineer. See NMSA 1978, \u00a7\u00a7 72-7-1, 72-12-10 (Repl.Pamp.1985); In re Application of Angel Fire Corp., 96 N.M. 651, 634 P.2d 202 (1981). District courts are authorized to issue writs of certiorari where the order of an inferior tribunal was made in the absence of jurisdiction, not to review the judgment on the merits. State ex rel. Board of Comm\u2019rs of State Bar v. Kiker, 33 N.M. 6, 261 P. 816 (1927). Here, where no further judicial action on the part of the court was essential, we conclude that the decree entered by the district court was final. See Rio Arriba County Bd. of Educ. v. Martinez, 74 N.M. 674, 678, 397 P.2d 471, 475 (1964) (reviewing court looks to substance, not form, in determining whether decree final); B.L. Goldberg & Assocs. v. Uptown, Inc., 103 N.M. 277, 705 P.2d 683 (1985) (final judgment where trial court actually disposed of all issues of law and fact to the fullest extent possible); F. Ferris, The Law of Extraordinary Legal Remedies \u00a7 186 at 215 (1926) (judgment of reviewing court is final).\nPetitioners\u2019 Prima Facie Case for Issuance of the Writ\nPetitioners need only make a prima facie showing for issuance of the writ, including lack of an adequate remedy at law and substantial injury to petitioners if the writ does not issue. Rhea County v. White, 163 Tenn. 388, 43 S.W.2d 375 (1931); C. Antieau, The Practice of Extraordinary Remedies \u00a7 5.13 at 717 (1987).\nGenerally, a writ of certiorari will not issue where a plain, adequate, and speedy remedy at law exists. Macabees v. Chavez, 43 N.M. 329, 93 P.2d 990 (1939). A writ of certiorari is not designed to take the place of appeal or a writ of error. Id. However, a writ of certiorari will lie where the right to appeal has been denied or lost otherwise than by a party\u2019s own fault. See Lea County State Bank v. McCaskey Register Co., 39 N.M. 454, 49 P.2d 577 (1965) (dicta); Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); C. Antieau, supra, \u00a7 5.08 at 691; F. Ferris, supra, \u00a7 163 at 186. In this case, petitioners could have appealed the state engineer\u2019s issuance of Eldorado\u2019s permit. Due to the error in the publication notice, however, petitioners failed to receive notice of the application for the permit. Since petitioners lost their right of appeal without any fault or negligence on their part, a writ of certiorari will lie, assuming petitioners can make a prima facie showing of injury. See Lea County State Bank.\nOur decision is additionally mandated by constitutional due process requirements. Petitioners were entitled to notice and an opportunity to be heard. See Nesbit v. City of Albuquerque, 91 N.M. 455, 575 P.2d 1340 (1977) (in zoning action, due process requires notice where change in zoning restriction would amount to change in fundamental character of property, and failure to give notice renders void all subsequent acts of zoning authority); Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976) (same). Failure to follow statutory procedures violated petitioners\u2019 due process rights, and no subsequent act could correct the defect. See Miller v. City of Albuquerque; Nesbit v. City of Albuquerque. Consequently, Eldorado\u2019s arguments that petitioners were not a party to the state engineer\u2019s proceedings and that they can assert their alleged prior water rights in a separate action for damages and injunction lack merit.\nPetitioners have also made a prima facie showing of substantial injury. First they have established a violation of their constitutional due process rights. Second, they have alleged potential impairment of their water rights as a result of that violation.\nEldorado contends that petitioners were required to establish the validity of their water rights before the district court in order to have standing to seek a writ of certiorari and that they failed to do so. We recognize that an adjudication of the petitioners\u2019 water rights must be made in the first instance by the district court. See State ex rel. Reynolds v. Lewis (only courts are given the power and authority to adjudicate water rights). However, resolution of this question was not necessary to confer standing on petitioners. Since petitioners would not have been required to adjudicate their water rights before they could object to Eldorado\u2019s application, it would be illogical to require them to make that showing in order to petition for a writ in this case. We will not require that petitioners make a greater showing to obtain due process than they would have been required to show if they had been afforded that process initially. Cf. Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (allegation of requisite personal stake in outcome was sufficient to confer standing).\nIn short, petitioners\u2019 claim of impairment to their water rights established a prima facie case of substantial injury. If, after reprocessing of Eldorado\u2019s well location change application, the state engineer determines that petitioners have valid existing water rights that would be impaired by granting the application, Eldorado may contest the validity of petitioners\u2019 water rights on appeal to the district court. See \u00a7 72-7-1; State ex rel. Reynolds v. Lewis; In re Application of Carlsbad Irrigation District, 87 N.M. 149, 530 P.2d 943 (1974) (there are no limitations on power of district courts to find facts, make conclusions of law, and enter judgments and orders as are proper to dispose of the issues).\nPropriety of the Remand\nEldorado contends that since there is no statutory or constitutional authority for a district court to remand a matter to an administrative agency for taking additional evidence, the attempted remand was beyond the district court\u2019s jurisdiction. See State ex rel. Transcontinental Bus Serv., Inc. v. Carmody, 53 N.M. 367, 208 P.2d 1073 (1949). In Transcontinental Bus, the court held that remanding the cause to the corporation commission for a further evidentiary hearing on an issue in the case was inappropriate. The court noted that it was proper to remand proceedings to an agency to the end that valid and essential findings may be made in accordance with the applicable law. Id. at 376, 208 P.2d at 1082; see also F. Ferris, supra, \u00a7 185 at 214.\nIn the case before us, the district court effectively determined that the state engineer lacked jurisdiction to grant Eldorado\u2019s application and remanded the case for new rather than additional proceedings. We hold the remand proper; the judge\u2019s findings and conclusions do not suggest that he exceeded his authority. See State ex rel. Transcontinental Bus Serv., Inc. v. Carmody; State ex rel. Board of Comm\u2019rs of State Bar v. Kiker. Furthermore, if, after voiding the state engineer\u2019s decision, remand was inappropriate, Eldorado would have to reapply for permission to change the well location before the state engineer could proceed. Remand, therefore, works to Eldorado\u2019s benefit.\nThe Section Number Error\nThe petition for certiorari contended that the published legal description of the well location was erroneous because the notice stated that the well was projected onto the Canada de Los Alamos Grant, but that it was actually located on the Bishop John Lamy Grant. Petitioners asserted that the error was substantive and that substantive error in the published notice rendered the state engineer\u2019s approval of the application either void or voidable.\nOn the first day of trial, petitioners announced that they had discovered another error, that the actual location of the well was not on projected Section 4, but rather some six hundred feet further away from the town of Lamy, on Section 5. Both the land grant error and the section number mistake were reflected in the trial court\u2019s findings. Eldorado contends that since evidence of the section error was not within the issues framed by the pleadings and the pleadings were not amended to conform to the evidence, the district court erred in basing its conclusion on that defect in the published notice.\nEldorado failed to object to the district court\u2019s proposal of a continuance to assess the alleged error or to otherwise argue that a continuance would not cure any prejudice. Consequently, it failed to preserve its claim of prejudice by the late notification of the error. See Woolwine v. Furr\u2019s, Inc., 106 N.M. 492, 745 P.2d 717 (Ct.App.1987). Even if Eldorado had preserved error, we would still affirm this issue on the merits.\nWe hold that even if the finding that the published notice contained a section mistake was erroneous, or if the evidence upon which it was based should not have been admitted at trial, the evidence of an incorrect land grant description was sufficient to support the conclusion that the notice contained a substantive error. See Wright v. Brem, 81 N.M. 410, 467 P.2d 736 (Ct.App.1970) (appellate court will not correct errors that do not change the result); Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967) (substantial evidence standard of review); Downs v. Garay, 106 N.M. 321, 742 P.2d 533 (Ct.App.1987) (erroneous findings of fact unnecessary to support the judgment are not grounds for reversal).\nEffect of Notice Defect on Jurisdiction of State Engineer\nEldorado contends that the defect in notice of an application to the state engineer did not result in an absence of jurisdiction. As discussed, the failure to follow statutory procedures is a due process violation and renders void all subsequent acts of the state engineer. See Nesbit v. City of Albuquerque; Miller v. City of Albuquerque. Therefore, the state engineer was without jurisdiction to grant Eldorado\u2019s application for change of location.\nIn re Application of Brown, 65 N.M. 74, 332 P.2d 475 (1958), cited by Eldorado, is not to the contrary. In that case, the subsequent notice, hearing, and determination cured the original lack of procedure.\nTimeliness of the Petition for Certiorari\nSince this nonjurisdictional issue was not raised in the docketing statement, it may not be asserted for the first time in the brief-in-chief. See DeTevis v. Aragon, 104 N.M. 793, 727 P.2d 558 (Ct.App.1986). Cf. State v. Salgado, 112 N.M. 537, 817 P.2d 730 (App.1991) (holding that for appeals filed after July 1, 1990, and assigned to the general calendar, amendments to docketing statements are unnecessary). Since this appeal was filed before July 1, 1990, the rule set forth in DeTevis applies. Additionally, we note that Eldorado only mentioned timeliness of the petition for certiorari in the conclusion to its brief-in-chief and without any citation of authority. Issues which are unsupported by cited authority will not be reviewed on appeal. In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984).\nWe affirm.\nIT IS SO ORDERED.\nALARID, C.J., and CHAVEZ, J., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Peter B. Shoenfeld, P.A., Santa Fe, for intervenor-appellant.", "Grove T. Burnett, Steven Sugarman, Glorieta, for petitioners-appellees.", "Tom Udall, Atty. Gen., Charlotte Benson Crossland, Special Asst. Atty. Gen., Santa Fe, for respondent-appellee." ], "corrections": "", "head_matter": "822 P.2d 672\nELDORADO AT SANTA FE, INC., Intervenor-Appellant, v. William COOK, Elmer Ferneau, Marie Ferneau, Priscilla Hoback, Rod Hall, Ramona Sholder, and Donlad Woodman, who is also known as Donald Woodman, Petitioners-Appellees, S.E. Reynolds, State Engineer, Respondent-Appellee.\nNo. 11218.\nCourt of Appeals of New Mexico.\nOct. 11, 1991.\nCertiorari Denied Nov. 20, 1991.\nPeter B. Shoenfeld, P.A., Santa Fe, for intervenor-appellant.\nGrove T. Burnett, Steven Sugarman, Glorieta, for petitioners-appellees.\nTom Udall, Atty. Gen., Charlotte Benson Crossland, Special Asst. Atty. Gen., Santa Fe, for respondent-appellee." }, "file_name": "0033-01", "first_page_order": 71, "last_page_order": 76 }