IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 CARMEN WOOD and ACTION 2 OIL COMPANY, INC., a New 3 Mexico corporation, 4 Plaintiffs-Appellants, 5 v. No. 28,582 6 MARY CUNNINGHAM, personal 7 representative of the Estate of John 8 Cunningham, JOHNNY CUNNINGHAM, 9 d/b/a R & J ENTERPRISES, MARY 10 CUNNINGHAM, RICHARD L. 11 BALDWIN, and DEBBIE D. BALDWIN, 12 Defendants-Appellees. 13 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 14 John A. Dean Jr., District Judge 15 Atkinson & Kelsey, P.A. 16 Thomas C. Montoya 17 Albuquerque, NM 18 for Appellants 19 Montgomery & Andrews P.A. 20 J. Scott Hall 21 Santa Fe, NM 22 for Appellees Estate of John Cunningham, 23 Mary Cunningham, and Johnny Cunningham 242 Finch & Olson, P.A. 1 Kyle M. Finch 2 Farmington, NM 3 for Appellees Richard and Debbie Baldwin 4 MEMORANDUM OPINION 5 SUTIN, Chief Judge. 6 Plaintiffs appeal an order dismissing the complaint for rescission and awarding 7 summary judgment to Defendants. Weissued a notice of proposed summary 8 disposition, proposing to uphold the district c ourt’s decision. Plaintiffs have filed a 9 memorandum in opposition, which we have duly considered. Remaining 10 unpersuaded, we affirm. 11 On appeal, Plaintiffs contend that th e absence of an indispensable party 12 deprived the district court of jurisdiction or authority to render its ultimate 13 determination. [DS 10; MIO 1-8] 14 Plaintiffs’ indispensable party issue wa s briefly addressed in this Court’s 15 previous decision in Wood v. Cunningham , 2006-NMCA-139, ¶ 18, 140 N.M. 699, 16 147 P.3d 1132. To reiterate, the Court observed that the position Plaintiffs advocate 17 on appeal is directly at odds with the position that they took below. Id. This is 18 generally impermissible, unless a jurisdictional challenge is presented. See Zarges 192 v. Zarges , 79 N.M. 494, 497, 445 P.2d 97, 100 (1968) (“Under ordinary circumstances 1 a party is not permitted to takea position in the court below and, thereafter, to take a 2 contrary position on appeal. However, the rule is otherwise when jurisdiction is 3 involved.”). This Court further observed th at even if we were to assume that an 4 indispensable party was absent, this state of affairs could not be said to have deprived 5 the district court of jurisdiction. Wood , 2006-NMCA-139, ¶ 18; see C.E. Alexander 6 & Sons, Inc. v. DEC Int’l, Inc. , 112 N.M. 89, 91, 811 P.2d 899, 901 (1991) (overruling 7 prior cases holding that absence of indisp ensable party is jurisdictional defect). 8 In their memorandum in opposition, Plaintiffs suggest that the Court’s brief 9 treatment of the indispensable party issue inthe course of the previous appeal was not 10 conclusive. [MIO 2] Even if this is so, it remains an accurate reflection of our 11 assessment of the issue. 12 Plaintiffs also contend that the districtcourt’s decision has placed them, as well 13 as the Navajo Nation, in an “untenable position.” [MIO 2] However, the Navajo 14 Nation remains at liberty to approve or re ject the transfer. [Id.] And although the 15 ultimate disposition of the leases may remainunclear, we fail to see how this state of 16 affairs could be said to undermine the district court’s jurisdiction. 173 Finally, Plaintiffs suggest that they are not attempting to advance a different 1 position on appeal. Although they acknow ledge their clear opposition to the 2 indispensable party argument below [MIO 3], Plaintiffs cite two pages in the record 3 where they questioned the court’s authority. [MIO 5; RP 213, 345] We find Plaintiffs’ 4 argument in this regard to be unpersuasive for two reasons. 5 First and foremost, the two pages cited by Plaintiffs contain such isolated and 6 cursory statements that they cannot be said to represent a genuine or meaningful 7 retreat from the Plaintiffs’ clearly and repeatedly stated opposition to the 8 indispensable party argument they are now attempting to advocate. 9 Second, Plaintiffs’ attempt to reconcile their conflicting positions is 10 implausible. Specifically, Plaintiffs s uggest that although the Navajo Nation would 11 not have been an indispensable party if th e district court had awarded the relief that 12 they requested, the Navajo Nation became anindispensable party when the district 13 court entered judgment in Defe ndants’ favor. [MIO 4] In other words, Plaintiffs 14 suggest that the district court had authority over the matter if, and only if, Plaintiffs 15 prevailed. We find this resu lt-oriented approach to be so contrived and so completely 16 unsupported by citation to authority [MIO 3-4] that we do not hesitate to reject it. 174 Accordingly, for the reasons previously stated, we reject Plaintiffs’ attempt to 1 shift their position on the underlying indispensable party issue in order to obtain relief 2 from the underlying judgment. As our Supreme Court has previously explained, we 3 are not inclined to entertain indispensabl e party arguments advanced on appeal as a 4 means of obtaining “a technical escape from an adverse judgment when [the appellant] 5 had ample opportunity to bring the i ssue before the district court.” C.E. Alexander & 6 Sons, Inc. , 112 N.M. at 92, 811 P.2d at 902. Both the operative principles of law and 7 equity militate against such an outcome. The district court’s ruling is therefore 8 affirmed. 9 IT IS SO ORDERED. 10

__________________________________ 11 JONATHAN B. SUTIN, Chief Judge 12
WE CONCUR: 13

_________________________________ 14 MICHAEL D. BUSTAMANTE, Judge 15

_________________________________ 16 CELIA FOY CASTILLO, Judge 17