dissenting.
I respectfully dissent from the majority opinion affirming the trial court’s judgment that the New Mexico Board of Medical Examiners (Board) decision to revoke Lopez’ medical license was void, and ordering restoration of his license with its attendant privileges. The majority affirm on the grounds that the Board lost subject matter jurisdiction over Lopez by failing to “render and sign” its decision within the ninety- ' day time period prescribed by NMSA 1978, Section 61-1-13(B). Before reaching this issue, the Court must first consider whether Lopez properly sought judicial review of the Board’s decision in compliance with NMSA 1978, Section 61-1-17.
The procedure for obtaining judicial review is set out as follows:
In order to obtain such review such person must within twenty days after the date of service of the decision * * * file with the court a petition for review, a copy of which shall be served on the Board’s secretary, stating all exceptions taken to the decision and indicating the court in which the appeal is to be heard. The court shall not consider any exceptions not stated in the petition. [Emphasis added.]
NMSA 1978, § 61-1-17.
It is undisputed that Lopez failed to comply with these requirements. As the majority points out, he did not file within twenty days, did not list any exceptions to the Board’s decision, and improperly headed his petition. Further, he did not serve the Board with a copy of his petition until June 24, 1986, over four months after he filed.
The statute clearly states the consequences of failure to comply with the requirements for obtaining judicial review as follows:
Failure to file such petition for review in the manner and within the time stated shall operate as a waiver of the right to judicial review and shall result in the decision of the board becoming final; except that for good cause shown, within the time stated, the judge of the district court may issue an order granting one extension of time not to exceed sixty days. [Emphasis added.]
NMSA 1978, § 61-1-17.
By failing to comply with these requirements, Lopez waived his right to judicial review and the Board’s decision to revoke his medical license became final. According to the statute, Lopez could have sought an extension of the time allotted to file his petition for review by showing good cause. However, there is no evidence that Lopez either sought or received such an extension. In light of these facts, this issue is dispositive and the district court should be reversed and the Board’s decision affirmed.
Since the majority did not dispose of the case on this first issue, and proceeded to consider the question of the Board’s compliance with NMSA 1978, Section 61-1-13(B), I wish to make the following observations. The majority take the position that the Board lost subject matter jurisdiction over Lopez, due to its failure to comply with NMSA 1978, Section 61-1-13(B). I disagree.
Under NMSA 1978, Section 61-1-13(B), Board decisions “must be rendered and signed within ninety days after the hearing.” The trial court held, and the majority agree, that this ninety-day time limit may be waived by a licensee.
Lopez waived his right to receive the Board’s decision within ninety days, shortly after the Board heard his case on June 22, 1984. After that hearing, Lopez’ attorney and an attorney representing the Board discussed holding a special meeting in order to meet the ninety-day time limit. During that discussion Lopez’ attorney, acting for Lopez, agreed to let the Board consider Lopez’ case at its regularly scheduled meeting on November 19, 1984. The ninety days was due to expire on or about September 22, 1984. It is undisputed that the actions of Lopez’ attorney constituted a waiver of the Board’s ninety-day time limit.
The general rule regarding a waiver is set out in 92 C.J.S, Waiver p. 1069 (1955), as follows:
It is generally recognized that, if a person in possession of any right waives that right, he will be precluded thereafter from asserting it or from claiming anything by reason of it. That is, once a right is waived it is gone forever, and it cannot be reclaimed or recaptured, and the waiver cannot be retracted, recalled, or expunged, even in the absence of any consideration therefor or of any change of position by the party in whose favor the waiver operates. [Emphasis added.]
This rule is similarly expressed in 28 Am. Jur.2d Estoppel and Waiver § 156 (1966), which reads:
One who intentionally relinquishes a known right cannot, without consent of his adversary, reclaim it, for it is well settled that a waiver once made is irrevocable, even in the absence of consideration, or of any change in position of the party in whose favor the waiver operates. * * * It is held that once a waiver of the provisions of a statute is made in a pending case, it is waived for the purposes of all further proceedings in the same action. [Emphasis added.]
See also Bordacs v. Kimmel, 139 So.2d 506, 507 (Fla.Dist.Ct.App.1962); Hader v. Eastman, 124 Ga.App. 548,184 S.E.2d 478, 479 (1971); State v. Independent School Dist. No. 810, Wabasha Co, 250 Minn. 237, 109 N.W.2d 596, 602 (1961); Rosengardt v. Muhlfelder Company, 12 Misc.2d 142, 177 N.Y.S.2d 215 (1958); Pash v. Wagner, 2 Misc.2d 822, 151 N.Y.S.2d 411 (1956); MacKnight & Hoffman, Inc. v. Programs for Achievement in Reading, Inc. 96 R.I. 345, 191 A.2d 354 (1963).
The court in Davidson v. State, 249 Ind. 419, 233 N.E.2d 173, 176 (1971), faced issues similar to those in the case at bar. There, Davidson executed a written waiver of his right to a jury trial and later sought to retrieve it. That court held that Davidson had no constitutional right to withdraw, whenever he saw fit, his written waiver of a jury trial where that waiver was made “voluntarily, intentionally and knowingly.” Davidson, 233 N.E.2d at 176.
Lopez, like Davidson, now seeks to arbitrarily withdraw his waiver of the Board’s ninety-day time limit. According to the general rule, Lopez’ waiver was permanent and irrevocable at the time of the discussion noted above. He lost his right to set time constraints on the Board’s decision at that time.
At that point, under the general rule, Lopez could have reclaimed any right he had waived to receive the Board’s decision within ninety days, by obtaining the Board’s consent. There is no evidence Lopez even attempted to do this. In fact, Lopez’ actions indicate indifference to the timing of the Board proceedings. Lopez did not file proposed findings of fact and conclusions of law in time for the November 1984 meeting; when notified of the Board’s intent to reconsider and delay his case, he did not object; and he did not object to the pending delay in May 1985. Further, Lopez’ attorney did not cooperate or communicate with the Board to hasten the proceedings.
Once Lopez irrevocably waived this time period, the Board was only required to render its decision “as soon as practicable” under the statute. NMSA 1978, § 61-1-13(A). There is no evidence the Board abused this limitation. After the waiver the Board was ready to consider Lopez’ case on November 19, 1984. Lopez failed to file requested findings of fact and conclusions of law at that time, so the Board delayed its decision to consider those findings. The trial court found that this delay was proper. Before the May 1985 meeting, the Board was unsuccessful in communicating with Lopez regarding this delay. Lopez did not object. At the May 1985 meeting the Board had three new members, required by statute to familiarize themselves with Lopez’ case before deciding. The trial court found that the Board’s inability to render a decision in May 1985 was unavoidable. The delay between May 1985 and November 1985 was due to the new Board members’ lack of familiarity with Lopez’ case, lack of money for Board travel, and failure of Lopez to object. Thus, the Board decided Lopez’ case “as soon as practicable,” after May 1985.
The majority opinion is based on the notion that Lopez did not “expressly or implicitly” waive the ninety-day period after May 1985. As noted above, once the court has decided that the ninety-day provision may be waived and that it has been waived, the waiver is permanent and the only question left is whether the Board acted “as soon as practicable.”
A waiver may be demonstrated “by acts or conduct indicating an intention not to raise such objections or exceptions.” 73A C.J.S. Public Administrative Law and Procedure § 142 (1983). Lopez’ inaction from May 1985 until February 1986 can be seen as a waiver under this definition. The majority rely on Foster for the proposition that the ninety-day time period must be met by the Board, or its decision voided. However, in Foster there was no waiver as in the present case.
For the foregoing reasons, I would reverse the trial court and reinstate the decision of the Board revoking Lopez’ medical license.