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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 12:54:37 2011.08.05
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-078
Filing Date: June 13, 2011
Docket No. 29,412
HORACE L. BOUNDS, JR.,
Plaintiff-Appellant,
v.
RAY HAMLETT, NANCI KELLEHER,
NORM WHEELER, CINDY LEE, and
WILLIAM LEE,
Defendants-Appellees,
and
THE SAN LORENZO COMMUNITY
DITCH ASSOCIATION,
Nominal Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
J.C. Robinson, District Judge
Law Office of Beverly Singleman
Beverly J. Singleman
Mesilla Park, NM
for Appellant
Domenici Law Firm, P.C.
Charles N. Lakins
Albuquerque, NM
for Appellees
Gary K. King, Attorney General
DL Sanders, Special Assistant Attorney General
1
Santa Fe, NM
for Amicus Curiae Office of the State Engineer
New Mexico Legal Aid, Inc.
David Benavides
Santa Fe, NM
for Amicus Curiae New Mexico Acequia Association
OPINION
WECHSLER, Judge.
{1} This appeal involves an election contest between two competing boards of
commissioners of the San Lorenzo Community Ditch Association (the Association). As
relevant to the appeal, Plaintiff Horace L. Bounds, Jr., along with Wigwam Ranch, LLC
(Wigwam Ranch), and Boots & Spurs, LLC (Boots & Spurs), sought a declaratory judgment
that they were duly elected commissioners at a December 3, 2007 election of the Association
and that Defendants Ray Hamlett, Nanci Kelleher, and Norm Wheeler, elected at a January
4, 2008 meeting, were not commissioners entitled to act on behalf of the Association.
{2} The district court held that neither group of commissioners was duly elected. In doing
so, it concluded that a “hybrid” form of voting in an acequia election in which voting may
be based on either water rights or ditch rights was contrary to NMSA 1978, Section 73-2-14
(1921), and the New Mexico Supreme Court’s holding in Wilson v. Denver, 1998-NMSC-
016, 125 N.M. 308, 961 P.2d 153. It further concluded that a 1982 stipulated judgment
between Plaintiff and the Association was not lawful because the stipulated judgment
attempted to create a hybrid voting scheme and does not comply with the alternatives
allowed by statute. It ordered the Association to hold a new election, allowing members to
vote either by casting one vote per member, reflecting the tenancy in common in the ditch,
or by voting in proportion to the member’s water rights on the ditch. Plaintiff appeals.
{3} We hold that the district court correctly held that the 1982 stipulated judgment was
not lawful and that the bylaws controlling the December 2007 election were improperly
based on the 1982 stipulated judgment that created a hybrid form of voting rights that was
contrary to both Section 73-2-14 and Wilson. We do not address the district court’s actions
concerning the January 4, 2008 election and the special election because they are not before
us in this appeal. We affirm.
BACKGROUND
{4} The Association is a community acequia association organized under NMSA 1978,
Sections 73-2-1 to -68 (1874, as amended through 2006). It adopted its first official set of
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bylaws in 1981, which provided that “[e]ach member will have the same number of votes
as acres of land with water rights.” At that time, Plaintiff owned 203.8 acres of land with
water rights and had “ditch rights” totaling 141 hours and 20 minutes, which he acquired
from his predecessors in interest, his father, Horace L. Bounds, and Wigwam Ranch. Ditch
rights are the amount of time during a water cycle that an individual water user may take
water from the ditch.
{5} In 1982, Plaintiff filed a declaratory judgment action against the Association to
clarify voting practices. He did not name any of the individual members of the Association
as defendants. The case resulted in a stipulated judgment, confirming Plaintiff’s ditch rights
of 141 hours and 20 minutes, and stating his voting rights to be “in proportion to his interest
in [the] ditch or in proportion to the number or amount of his water rights (203.8 acres),
whichever is larger.”
{6} In 1989, the Association adopted a second set of bylaws that again provided that
voting rights would be based on water rights. There is no evidence in the record of any
objections to these bylaws. In 1999, Plaintiff transferred 46.17 of his 203.8 acres of water
rights from the San Lorenzo Community Ditch to another location and, as a result, thereafter
owned 157.63 acres of water rights on the ditch. After this transfer, the Association did not
readjust any of its member’s ditch rights, including those of Plaintiff.
{7} In 2001, the Association held an election in which voting was based on water rights
as required by the 1989 bylaws. At that time, Plaintiff, through his attorney, informed the
board of commissioners of the 1982 stipulated judgment. The board indicated that, based
on the 1982 stipulated judgment, it understood Plaintiff to “prefer ditch rights to water
rights[,]” and “that all future dealings of the . . . Association will be done by ditch rights.”
In February 2002, the board of commissioners adopted new bylaws that based voting rights
on ditch rights, a departure from all previously recorded bylaws. The change was prompted
by communications from Plaintiff and his attorneys leading commissioners to believe that
compliance with the 1982 stipulated judgment was required by law and to prevent litigation.
{8} On December 3, 2007, the Association held a meeting, called by Plaintiff, and
conducted an election based on the 2002 bylaws under which a member’s voting rights were
in proportion to the member’s ditch rights. Plaintiff, Wigwam Ranch, LLC (represented by
Jo Bounds), and Boots & Spurs, LLC (represented by Steve Bounds) were elected
commissioners. Plaintiff was also elected mayordomo.
{9} On January 4, 2008, the Association held another meeting called by members who
did not believe that the December 3, 2007 meeting was proper. Plaintiff did not attend. The
members present conducted an election based on a recalculation of each member’s ditch
rights or water rights, whichever provided the member the greater number of votes.
Defendants Hamlett, Wheeler, and Kelleher were elected commissioners, and Defendant
William Lee was elected mayordomo.
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{10} Plaintiff, Wigwam Ranch, and Boots & Spurs filed this action for declaratory
judgment in response to the January 4, 2008 election. After trial, the district court ruled that
neither set of commissioners was duly elected and entitled to act on behalf of the
Association. It held that both elections improperly employed hybrid voting systems contrary
to Section 73-2-14 and Wilson and were therefore invalid. The district court further held that
the 1982 stipulated judgment was not binding on the Association’s members. The district
court ordered the Association to conduct a special election with voting based either by each
member casting one vote reflecting the tenancy in common interest of the members of the
ditch or by each member voting in proportion to the member’s water rights in the ditch.
{11} In Plaintiff’s appeal of these rulings, he raises three issues: (1) whether the
Association’s voting rights may be based disproportionally upon hours of ditch time because
of the members’ agreement and the 1982 stipulated judgment; (2) whether the 1982
stipulated judgment is binding on the Association and its members; and (3) whether the
district court improperly subjected the 1982 stipulated judgment to collateral attack. Each
issue presents a question of law that we review de novo. See Jordan v. Allstate Ins. Co.,
2010-NMSC-051, ¶ 14, 149 N.M. 162, 245 P.3d 1214 (holding that statutory interpretation
is a question of law that is reviewed de novo); Roybal v. Lujan de la Fuente, 2009-NMCA-
114, ¶ 23, 147 N.M. 193, 218 P.3d 879 (holding that the district court’s determination as to
the preclusive effect of a judgment is reviewed de novo).
VOTING RIGHTS IN ASSOCIATION ELECTIONS
{12} Plaintiff’s first argument on appeal asks this Court to overturn the district court
because the district court did not properly recognize Plaintiff’s voting rights in the
Association’s December 3, 2007 and January 4, 2008 elections. Plaintiff argues that “ditch
rights” are an easement interest and are, therefore, a valid method of apportioning votes in
acequia elections under Section 73-2-14 and Wilson. According to Plaintiff, under the
second type of ditch interest recognized in Wilson, Association voting may be
disproportionate because an easement in a ditch measured by hours of ditch time “generally
results in disproportionate voting.” Further, Plaintiff contends that a February 2, 1962
document signed by the owners of water rights in the ditch and notarized created vested
rights in the stated ditch times such that, based on Holmberg v. Bradford, 56 N.M. 401, 244
P.2d 785 (1952), and Olson v. H & B Properties, Inc., 118 N.M. 495, 882 P.2d 536 (1994),
the district court could not reallocate Plaintiff’s ditch rights to be in direct proportion to
water rights to be more fair. The district court held that the Association’s voting methods
used at the December 3, 2007 and the January 4, 2008 elections were flawed because of the
1982 stipulated judgment and overturned the results of the elections. We address Plaintiff’s
arguments only as necessary to review the district court’s decision.
{13} Section 73-2-14 controls the conduct of election of acequia officers in Grant County,
New Mexico. It reads in its entirety as follows:
The election for acequia or community ditch officers under this article
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shall be held by the outgoing commissioners under rules and regulations to
be prescribed by them. Only those having water rights in the acequia or ditch
and who are not delinquent in the payment of their assessments, and fail to
[sic] proffer such delinquent assessment at the time they offer to vote, shall
be allowed to vote; but votes may be cast by written proxy and shall be in
proportion to the interest of the voter in the ditch or water, or in proportion
to the number or amount of his water rights.
Id. (alteration in original).
{14} Plaintiff’s concern about the district court’s decision overturning the elections
requires us to interpret Section 73-2-14. When interpreting a statute, we seek to fulfill the
legislative intent. Wilson, 1998-NMSC-016, ¶ 36. We look first to the plain language of the
statute in accordance with its ordinary meaning. Id. ¶ 16.
{15} The central issue in this case is the manner in which voting rights may be
apportioned. We thus specifically address the language that states that votes “shall be in
proportion to the interest of the voter in the ditch or water.” When we look to the plain
language of Section 73-2-14, it states that votes shall be cast “in proportion to the interest
of the voter in the ditch or water, or in proportion to the number or amount of his water
rights.” Section 73-2-14 (emphasis added). See Wilson, 1998-NMSC-016, ¶ 17 (stating that
the lack of a comma between “ditch” and “water” indicates a disjunctive meaning while the
comma following “water” separates an explanatory phrase). This language of the statute
indicates that these voting methods exist as alternatives. Id. (“As a rule of construction, the
word ‘or’ should be given its normal disjunctive meaning unless the context of a statute
demands otherwise.” (internal quotation marks and citation omitted)). Nothing in Section
73-2-14 suggests that an election may be conducted using a combination of methods. Cobb
v. State Canvassing Bd., 2006-NMSC-034, ¶ 34, 140 N.M. 77, 140 P.3d 498 (stating that we
will not read language into a statute that is not there when the statute makes sense as
written).
{16} Our reading of the relevant cases supports this analysis. In Holmberg, a new
landowner sought to compel a community ditch association to reallocate the shares of the
community ditch company “in proportion to the number of acres irrigated by each land
owner from the waters of [the] ditch.” Holmberg, 56 N.M. at 403, 244 P.2d at 787. An
existing ownership statute provided that acequias were the property of the persons who
constructed them, and others could not use the waters without the consent of the majority of
the owners and upon payment of a proportionate share of the cost of construction, or for the
quantity of water to be used. Id. at 404, 244 P.2d at 788. Our Supreme Court held that
requested relief was inappropriate because the relief requested asked the Court to strike
down the ownership statute and destroy vested property rights. Id. at 407, 244 P.2d at 790-
91. The Court discussed the history of the ownership statute as emanating from the
recognition of two methods of acquiring a property right in a community ditch: through
participation in construction or by consent and purchase from those who did. Id. at 405, 244
5
P.2d at 788. The Court distinguished the voting statute that has the same language as
Section 73-2-14, by stating that it “merely provides two alternative methods of voting[.]”
Holmberg, 56 N.M. at 405, 244 P.2d at 788.
{17} In Olson, the Court addressed the ditch rights of water users to a community ditch.
Olson, 118 N.M. at 497, 882 P.2d at 538. The owners of the ditch had executed a
declaration allocating usage time. Id. The final order in a water rights adjudication reduced
the defendant’s irrigable acres and water rights, and the plaintiff sought a declaratory
judgment that the defendant’s ditch rights should be correspondingly reduced. Id. The
Court acknowledged the long-recognized distinction between water rights and ditch rights,
stating that “ditch rights are derived from ownership of the ditch and an easement therein,”
whereas water rights stem from “appropriation for beneficial use.” Id. at 498, 882 P.2d at
539. It stated that ownership of the ditch is a real property interest in the physical structure
of the ditch, which is owned by those who constructed it and their successors in interest as
tenants in common. Id. According to the Court, the owners’ declaration created an
easement in the water flow through the ditch. Id. The Court held that the reallocation of the
defendant’s ditch rights to conform to the purpose of the ditch did not divest the defendant
of a property right in the ditch structure. Id. at 499, 882 P.2d at 540.
{18} In Wilson, the Court considered a protest to the way acequia elections were
conducted. Wilson, 1998-NMSC-016, ¶ 1. The controlling statute at issue in that case was
NMSA 1978, Section 73-3-3 (1921), but the Court found it “identical in relevant part to
[Section 73-2-14].” Wilson, 1998-NMSC-016, ¶ 24. The Court clarified its earlier ruling
in Olson, and discussed three types of “interests” in a ditch that, in addition to proportionate
voting based on water rights, may provide for proportionate voting rights under Section 73-
2-14—an ownership interest, an easement interest, and the interest in being a water user.
Wilson, 1998-NMSC-016, ¶¶ 33-34. As the Court explained, the first, an ownership interest
as a tenant in common or joint tenant, stems from the contribution made by the individual
or the individual’s successors in interest to the construction of the ditch. Id. ¶ 33. The
second relates to “holding an easement in the land of another” that is “measured by the
nature and purpose of the easement” and is “substantially dependent on water rights.” Id.
(internal quotation marks and citation omitted). The third is an interest as a water user that
is “held equally by all those with water rights in the ditch.” Id. ¶ 34. Ultimately, the Court
held that “[v]oting in ditch elections may be conducted based proportionately on water
rights, based proportionately on ditch ownership, or based on a majority of those using the
ditch for the distribution of water.” Id. ¶ 43.
{19} Historically, a community ditch has the flexibility to use the voting method for
election of its officers that it believes is best to fulfill its particular purposes. Id. ¶ 43.
Section 73-2-14 provides two alternatives, “in proportion to the interest of the voter in the
ditch or water, or in proportion to the number or amount of his water rights.” These
alternatives derive from the distinction between water rights and ditch rights that has long
been recognized in our case law. See Olson, 118 N.M. at 498, 882 P.2d at 539 (“New
Mexico cases have long recognized that ditch rights and water rights are distinct, are derived
6
from different sources, and are governed by different rules of law.”). Olson worked from
this distinction between water rights and ditch rights and included within ditch rights both
ownership and easement rights. Id. Wilson further defined the ditch interest to also include
the interest in being a water user, held equally by those with water rights in the ditch.
Wilson, 1998-NMSC-016, ¶ 34. But Wilson continues to make clear that voting rights derive
either through an interest in the ditch or from an interest in the water flowing through the
ditch. Id. ¶ 17. Moreover, Wilson recognizes that voting methods exist as alternatives,
stating that the statute “contains plain language and that its plain language, properly
construed, should be understood to provide alternative methods of voting for ditch
association officers.” Id. (emphasis added). See Holmberg, 56 N.M. at 405, 244 P.2d at 788
(stating that the predecessor statute to Section 73-2-14 “merely provides two alternative
methods of voting”).
{20} With the predicate that the plain meaning of Section 73-2-14 requires voting based
on one of the alternatives set forth in Wilson, we turn to the two elections at issue to consider
whether the voting methods satisfy these requirements. We address the December 3, 2007
election in its historical context.
{21} The Association’s initial bylaws adopted in 1981called for members to vote in
Association elections based on their water rights. In 1982, Plaintiff brought a declaratory
judgment action against the Association, alleging that by virtue of historical practice and the
1962 document of the Association’s members setting forth the ditch time of the members,
Association voting should be conducted on the basis of ditch rights rather than water rights.
No members of the Association besides Plaintiff were parties to the declaratory judgment
action. The action ended in a stipulated judgment providing as to voting that Plaintiff’s
“voting rights for the election of . . . Association officers is in proportion to his interest in
said ditch or in proportion to the number or amount of his water rights . . ., whichever is
larger.” The 1989 bylaws again stated that voting rights were to be based on water rights.
However, as a direct result of communications from Plaintiff and his attorney, the
Association changed its bylaws in 2002 in an attempt to comply with the 1982 stipulated
judgment and to prevent additional litigation.
{22} However, the 1982 stipulated judgment creates a hybrid voting scheme that is facially
invalid. The 1982 stipulated judgment allows Plaintiff to vote in Association elections either
in proportion to his interest in the ditch or in proportion to the number or amount of his water
rights, depending on which interest is larger. In addition, the 1982 stipulated judgment gave
Plaintiff the power to decide the manner in which he could vote regardless of the manner in
which other members were allowed to vote. For example, if the board of commissioners
decided to base voting on the number of acres in the ditch with water rights attached, the
1982 stipulated judgment would nevertheless permit Plaintiff to vote based on other
interests. While Wilson holds that Section 73-3-3, and thereby Section 73-2-14,
contemplates alternative methods of voting, nothing permits combining alternative methods
into another method in a single election. A hybrid voting method is one that does not follow
a single method of apportioning votes in an acequia election and, therefore, does not comport
7
with Section 73-2-14 and Wilson. The 1982 stipulated judgment was therefore contrary to
Section 73-2-14 and Wilson and therefore is invalid.
{23} We acknowledge that the Association’s 2002 bylaws did not provide for a hybrid
voting method and based voting solely on ditch rights. However, the district court concluded
that the December 3, 2007 election could not stand because of the hybrid voting method
established by the 1982 stipulated judgment. Specifically, the district court found that the
Association changed the voting method in the bylaws to one based on ditch rights contrary
to all previously existing bylaws because of communications from Plaintiff and his attorney
that led the Association to believe that the 1982 stipulated judgment required the change in
order to prevent litigation.
{24} Plaintiff does not contest the district court’s factual findings. With such facts, the
2002 bylaws were improperly based on the 1982 stipulated judgment. The district court’s
findings indicate that the changes to the bylaws occurred because Plaintiff and his attorneys
led the commissioners to believe compliance with the stipulated judgment was required by
law and in order to prevent litigation, which presumably would be initiated by Plaintiff. The
Association acquiesced and complied with the 1982 stipulated judgment by, presumably,
adopting the voting method that reflected Plaintiff’s greater interest as between water rights
and ditch rights, that of voting on the basis of ditch rights. Substantial evidence supported
the district court’s conclusion to overturn the December 3, 2007 election in this regard. See
Malissa C. v. Matthew Wayne H., 2008-NMCA-128, ¶ 20, 145 N.M. 22, 193 P.3d 569
(stating that “we will not disturb factual findings that are supported by substantial
evidence”).
{25} Although Plaintiff frames the issues before us in the context of disproportionate
voting, because we conclude that the December 3, 2007 election was not validly conducted
because of the hybrid method underlying the voting process, we need not specifically
address this argument. We pause briefly, however, to mention Plaintiff’s argument that the
1962 document provided him vested rights. The document lists water rights, work
performed, and assessments as of specified recorded dates. For “the present owners of water
rights” on the ditch as of February 2, 1962, it states “the time to which each is entitled to
receive water.” Nothing in the document discusses voting. Rather, it concludes with the
ditch time available to the owners of water rights on the ditch. To the extent that the
document can be understood to include voting rights, from its allocation of ditch time based
on water rights, voting would follow water rights as well. As a result, the 1981 and 1989
bylaws that base voting rights on water rights are consistent with the 1962 document. If
anything alters vested rights based on the 1962 document, it would be the 1982 stipulated
judgment that sought to create voting based on Plaintiff’s choice of voting rights based on
his greater rights regardless of the rights of the other members. Cf. Holmberg, 56 N.M. at
407, 244 P.2d at 790-91 (holding that reallocating interest in a community ditch to new
landowners would destroy vested property rights of others).
{26} At the January 4, 2008 meeting, the Association based voting on each member’s
8
ditch time or water rights, whichever gave the member the greater number of votes. The
district court also held that this manner of voting was an invalid hybrid method. It granted
declaratory judgment in Plaintiff’s favor declaring that the officers elected at the January 4,
2008 meeting were not duly elected and were not entitled to act on behalf of the Association.
Defendants do not appeal from the district court’s judgment, and, as a result, we do not
review the judgment in this regard. See State ex. rel. Children, Youth & Families Dep’t v.
John D., 1997-NMCA-019, ¶ 5, 123 N.M. 114, 934 P.2d 308 (stating that appellate review
is limited to orders that were appealed).
1982 STIPULATED JUDGMENT—RES JUDICATA AND COLLATERAL ATTACK
{27} In his second and third arguments on appeal, Plaintiff contends that the district court
should have followed the 1982 stipulated judgment because it was entitled to res judicata
effect and because it was not subject to collateral attack.
{28} “Res judicata bars relitigation of the same claim between the same parties or their
privies when the first litigation resulted in a final judgment on the merits.” Deflon v.
Sawyers, 2006-NMSC-025, ¶ 2, 139 N.M. 637, 137 P.3d 577 (internal quotation marks and
citation omitted). We consider whether the 1981 case and this case involved the same
parties or their privies. In particular, we consider whether the individual Defendants in this
case are in privity with the Association as the defendant in the 1981 case.
{29} In 1981, Plaintiff sued the Association only; he did not name or serve as a party any
individual members of the Association. The 1982 stipulated judgment was approved by the
attorneys on behalf of their clients, Plaintiff and the Association. In this case, Plaintiff
named the individual Defendants in their complaint as members of the Association. Plaintiff
also named the Association as a nominal Defendant. As we have discussed, the controversy
involves the voting rights of members of the Association to elect the Association’s board of
commissioners.
{30} The determination of whether parties are in privity “requires a case-by-case
analysis.” Id. ¶ 4. A court must determine whether a party is “so identified in interest with
another” that the party “represents the same legal right.” Lewis v. City of Santa Fe, 2005-
NMCA-032, ¶ 15, 137 N.M. 152, 108 P.3d 558 (internal quotation marks and citation
omitted). We perceive the legal rights of the Association as a party to differ from those of
its members with regard to voting in Association elections.
{31} The interest, and concomitant legal right, of the Association is that the election be
legally held and binding. See § 73-2-12 (requiring that officers of ditch corporations be
elected biannually); § 73-2-21 (defining powers and duties of ditch corporation officers).
The members, on the other hand, in addition to interests that may be common to the
Association, have the legal right to vote in the election. See § 73-2-15 (stating that when
commissioners neglect to call an election in reasonable time, those entitled to vote may call
an election in the same manner as the commissioners). The Association does not vote, and
9
although it has an interest in ensuring that the members’ votes are legally cast, that interest
is not the same as a member’s interest and right to participate in the Association’s
governance by voting to elect the Association’s governing board. As this case illustrates,
voting rights bear upon a member’s rights in the acequia because the Association’s board of
commissioners has the authority to determine the allocation of water from the acequia. See
generally § 73-2-21. Although the Association did not remove the right to vote of any
member by entering into the 1982 stipulated judgment, it altered the members’ voting rights,
which necessarily diluted the rights of some members. Thus, because the rights of the
Association and its members did not coincide, the Association could not have protected the
legal rights of all its members in the action. The Association and the members do not share
the required privity, and res judicata does not apply to the 1982 stipulated judgment.
{32} We next address Plaintiff’s collateral attack issue. Generally, district court
judgments are presumptively correct. Porter v. Mesilla Valley Cotton Prods. Co., 42 N.M.
217, 224, 76 P.2d 937, 941 (1937). This presumption is so strong that a final judgment is
not open to collateral attack if it is based on a mistake of law, Acequia Del Llano v. Acequia
De Las Joyas Del Llano Frio, 25 N.M. 134, 142-43, 179 P. 235, 237 (1919), or even if the
final decision is unconstitutional. See In re Philip M. Kleinsmith, 2005-NMCA-136, ¶ 11,
138 N.M. 601, 124 P.3d 579 (stating that with strictly limited exceptions, the collateral bar
rule applies even when the underlying order is unconstitutional).
{33} However, “judgments entered by the consent of the parties and upon stipulations
have only been regarded as immune from collateral attack by the parties themselves, or those
in privity with them.” Lewis, 2005-NMCA-032, ¶ 14. See Myers v. Olson, 100 N.M. 745,
748, 676 P.2d 822, 825 (1984) (“Properly authorized and acknowledged consent judgments
and judgments rendered on stipulations are conclusive of all claims determined therein and
may not be collaterally attacked by the parties thereto.” (emphasis added)); Johnson v. Aztec
Well Servicing Co., 117 N.M. 697, 700, 875 P.2d 1128, 1131 (Ct. App. 1994) (observing
that a judgment entered into by consent “is not subject to collateral attack by a party or a
person in privity” (emphasis added) (internal quotation marks and citation omitted)). As we
have discussed, the individual Association members who are Defendants in this case are not
in privity with the Association as the party defendant to the 1982 stipulated judgment. As
a result, the member Defendants in this case may properly challenge the 1982 stipulated
judgment in this case.
SPECIAL ELECTION
{34} After determining that the Association did not validly conduct the December 3, 2007
and the January 4, 2008 elections, the district court ordered the Association to conduct a
special election in a manner not previously stated in any of the Association’s bylaws. The
district court ordered the members to agree as to one of two alternative methods of voting:
by casting one vote per member representing the tenancy in common in the ditch, or by
voting in proportion to the members’ water rights in the ditch. Plaintiff’s appeal does not
challenge this action, and Defendants did not cross appeal. We therefore do not address this
10
aspect of the district court’s decision in this appeal. See John D., 1997-NMCA-019, ¶ 5.
CONCLUSION
{35} For the foregoing reasons, we affirm the district court’s ruling.
{36} In addition, the Court notes that, on its own initiative, it requested briefing from the
Office of the State Engineer and the New Mexico Acequia Association as amicus curiae in
this appeal. We thank amicus curiae for their presentations to the Court.
{37} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
RODERICK T. KENNEDY, Judge
____________________________________
MICHAEL E. VIGIL, Judge
Topic Index for Bounds v. Hamlett, Docket No. 29,412
CP CIVIL PROCEDURE
CP-CC Collateral Attack
CP-RJ Res Judicata
GV GOVERNMENT
GV-CD Conservancy Districts
GV-EL Elections
GV-WS Water and Waste Systems
NR NATURAL RESOURCES
NR-IR Irrigation
NR-WL Water Law
ST STATUTES
ST-IP Interpretation
ST-RC Rules of Construction
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