1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 CARMEN WOOD and ACTION

3 OIL COMPANY, INC., a New

4 Mexico corporation,

5 Plaintiffs-Appellants,

6 v. No. 28,582

7 MARY CUNNINGHAM, personal

8 representative of the Estate of John

9 Cunningham, JOHNNY CUNNINGHAM,

10 d/b/a R & J ENTERPRISES, MARY

11 CUNNINGHAM, RICHARD L.

12 BALDWIN, and DEBBIE D. BALDWIN, 

13 Defendants-Appellees.

14 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

15 John A. Dean Jr., District Judge

16 Atkinson & Kelsey, P.A.

17 Thomas C. Montoya

18 Albuquerque, NM

19 for Appellants

20 Montgomery & Andrews P.A.

21 J. Scott Hall

22 Santa Fe, NM

23 for Appellees Estate of John Cunningham,

24 Mary Cunningham, and Johnny Cunningham
2

1 Finch & Olson, P.A.

2 Kyle M. Finch

3 Farmington, NM

4 for Appellees Richard and Debbie Baldwin

5 MEMORANDUM OPINION

6 SUTIN, Chief Judge.

7 Plaintiffs appeal an order dismissing the complaint for rescission and awarding

8 summary judgment to Defendants. We issued a notice of proposed summary

9 disposition, proposing to uphold the district court’s decision. Plaintiffs have filed a

10 memorandum in opposition, which we have duly considered. Remaining

11 unpersuaded, we affirm.

12 On appeal, Plaintiffs contend that the absence of an indispensable party

13 deprived the district court of jurisdiction or authority to render its ultimate

14 determination. [DS 10; MIO 1-8] 

15 Plaintiffs’ indispensable party issue was briefly addressed in this Court’s

16 previous decision in Wood v. Cunningham, 2006-NMCA-139, ¶ 18, 140 N.M. 699,

17 147 P.3d 1132. To reiterate, the Court observed that the position Plaintiffs advocate

18 on appeal is directly at odds with the position that they took below. Id. This is

19 generally impermissible, unless a jurisdictional challenge is presented. See Zarges
2

1 v. Zarges, 79 N.M. 494, 497, 445 P.2d 97, 100 (1968) (“Under ordinary circumstances

2 a party is not permitted to take a position in the court below and, thereafter, to take a

3 contrary position on appeal. However, the rule is otherwise when jurisdiction is

4 involved.”). This Court further observed that even if we were to assume that an

5 indispensable party was absent, this state of affairs could not be said to have deprived

6 the district court of jurisdiction. Wood, 2006-NMCA-139, ¶ 18; see C.E. Alexander

7 & Sons, Inc. v. DEC Int’l, Inc., 112 N.M. 89, 91, 811 P.2d 899, 901 (1991) (overruling

8 prior cases holding that absence of indispensable party is jurisdictional defect). 

9 In their memorandum in opposition, Plaintiffs suggest that the Court’s brief

10 treatment of the indispensable party issue in the course of the previous appeal was not

11 conclusive. [MIO 2] Even if this is so, it remains an accurate reflection of our

12 assessment of the issue.

13 Plaintiffs also contend that the district court’s decision has placed them, as well

14 as the Navajo Nation, in an “untenable position.” [MIO 2] However, the Navajo

15 Nation remains at liberty to approve or reject the transfer. [Id.] And although the

16 ultimate disposition of the leases may remain unclear, we fail to see how this state of

17 affairs could be said to undermine the district court’s jurisdiction.
3

1 Finally, Plaintiffs suggest that they are not attempting to advance a different

2 position on appeal. Although they acknowledge their clear opposition to the

3 indispensable party argument below [MIO 3], Plaintiffs cite two pages in the record

4 where they questioned the court’s authority. [MIO 5; RP 213, 345] We find Plaintiffs’

5 argument in this regard to be unpersuasive for two reasons. 

6 First and foremost, the two pages cited by Plaintiffs contain such isolated and

7 cursory statements that they cannot be said to represent a genuine or meaningful

8 retreat from the Plaintiffs’ clearly and repeatedly stated opposition to the

9 indispensable party argument they are now attempting to advocate. 

10 Second, Plaintiffs’ attempt to reconcile their conflicting positions is

11 implausible. Specifically, Plaintiffs suggest that although the Navajo Nation would

12 not have been an indispensable party if the district court had awarded the relief that

13 they requested, the Navajo Nation became an indispensable party when the district

14 court entered judgment in Defendants’ favor. [MIO 4] In other words, Plaintiffs

15 suggest that the district court had authority over the matter if, and only if, Plaintiffs

16 prevailed. We find this result-oriented approach to be so contrived and so completely

17 unsupported by citation to authority [MIO 3-4] that we do not hesitate to reject it.
4

1 Accordingly, for the reasons previously stated, we reject Plaintiffs’ attempt to

2 shift their position on the underlying indispensable party issue in order to obtain relief

3 from the underlying judgment. As our Supreme Court has previously explained, we

4 are not inclined to entertain indispensable party arguments advanced on appeal as a

5 means of obtaining “a technical escape from an adverse judgment when [the appellant]

6 had ample opportunity to bring the issue before the district court.” C.E. Alexander &

7 Sons, Inc., 112 N.M. at 92, 811 P.2d at 902. Both the operative principles of law and

8 equity militate against such an outcome. The district court’s ruling is therefore

9 affirmed.

10 IT IS SO ORDERED.

11 __________________________________

12 JONATHAN B. SUTIN, Chief Judge

13 WE CONCUR:

14 _________________________________

15 MICHAEL D. BUSTAMANTE, Judge

16 _________________________________

17 CELIA FOY CASTILLO, Judge