This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 L.N. SAUL, 2 Petitioner, 3 v. No. 31,338 4 (consolidated with 31,461) 5 DIANE SAUL, 6 Respondent-Appellee, 7 and 8 BARBARA SAUL, 9 Intervenor-Appellant. 10
and 11 BARBARA SAUL, Successor in 12 Interest to WELLS FARGO 13 BANK, N.A., 14 Plaintiff-Appellant, 15 v. No. 31,739 16 LIGHTSEY N. SAUL, DIANE L. SAUL, 17 JIM KELLER, and LANETTE KELLER, 18 Defendants-Appellees. 192 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 1 Thomas A. Rutledge, J. Richard Brown, a nd Mark T. Sanchez, District Judges 2

L.N. Saul 3 Carslbad, NM 4 Pro Se Petitioner 5
Max Houston Proctor 6 Hobbs, NM 7 for Appellee 8 Martin, Dugan & Martin 9 W.T. Martin 10 Carlsbad, NM 11 for Appellant 12 MEMORANDUM OPINION 13 VIGIL, Judge. 14 In this opinion we decide three appeals which concern various efforts by 15 Barbara Saul to execute and foreclose on property awarded to Diane Saul in the 16 divorce case between Diane and L.N. Saul, the son of BarbaraSaul. The efforts are 17 anchored in a stipulated judgment made by Barbara Saul and her s on, L.N. Saul, in the 18 divorce case after Barbara Saul intervened in the divorce case, contending that Diane 19 and L.N Saul were indebted to her. Weinitially consolidated two appeals, and 203 subsequently consolidated the third appealwith the pending appeals. We therefore 1 refer to the appeals as the first appeal, and the second appeal. For the reasons set forth 2 herein, the orders and judgments entered by th e district courts inthese cases are all 3 affirmed. 4 FIRST APPEAL 5 Facts 6 On April 5, 2007, L.N. Saul (L.N.) filed a petition in the district court seeking 7 a dissolution of marriage from Diane Saul (Diane), allegi ng that during their marriage, 8 they had acquired community property and obligated themselves to community debts, 9 which should be equitably divided by the court. The case was assigned to Judge 10 Thomas A. Rutledge. 11 On January 14, 2008, L.N.’s mother, Barbara Saul (Barbara), moved to 12 intervene in the divorce action on grounds th at she was a creditor of L.N. and Diane, 13 and that as such, she was entitled to property they were seeking to divide in the 14 divorce action. In the complaint in interven tion, Barbara alleged that she was seeking 15 repayment for loans she madefor several years beginning in 1991 to L.N. and Diane, 16 which were ultimately used to purchase a home and ranch in Loving, New Mexico. 17 Barbara also sought an accounting and damages for conversion, fraud, and restitution 184 against both L.N. and Diane. Barbara’s moti on to intervene was granted in an order 1 filed on February 21, 2008. 2 Judge Rutledge entered a partial decree dissolving the marriage between L.N. 3 and Diane on June 27, 2008, and reservedjurisdiction over all other matters, 4 “including the division of community property and debts.” 5 Trial on Barbara’s complaint in interv ention and all remaining issues pending 6 in the divorce action was held on July 1, 2009. At the commencement of the hearing, 7 L.N.’s attorney tendered a stipulated judgment in which L.N. and Barbara stipulated 8 that Barbara had a judgment against L.N. in the amount of $490,380, earning interest 9 at the rate of 8.75% until fully paid. In the stipulated judgment L.N. and Barbara 10 agreed that beginning in approximate ly 1998 and continuing through 2003, Barbara 11 loaned L.N. and Diane a total of $490,380, wh ich was ultimately used to purchase the 12 Loving home and ranch. Afte r noting that L.N. could not stipulate whether Diane 13 owed Barbara any or all of that debt, Judge Rutledge approved the stipulated judgment 14 between L.N. and Barbara over Diane’s obj ection and reserved judgment on whether 15 any or all of the stipulated judgment was a separate debt of L.N. or a community debt. 16 At the conclusion of the evidentiary hearing, Judge Rutledge took all the pending 17 issues under advisement. 185 Barbara filed the stipulated judgment in the district court that very day on July 1 1, 2009, as well as a transcript of judgment with the Eddy County Clerk, naming 2 Diane as the judgment debtor. On July 8, 2009, Barbara recorded an amended and 3 corrected transcript of judgment with th e Eddy County Clerk, which correctly named 4 L.N. as the judgment debtor. The only pr operty which L.N. and Diane owned in Eddy 5 County was the Loving home and ranch. 6 On July 15, 2009, Judge Rutledge issu ed a letter setting forth his decision. 7 Addressing Barbara’s complaint in interven tion, Judge Rutledge determined that the 8 debt claimed by Barbara was barred by the statute of limitations, and it was disallowed 9 in its entirety. Also, in his letter, JudgeRutledge addressed the Wells Fargo suit. We 10 discuss this suit at length below in the sec ond appeal. It relates to a note payable to 11 Wells Fargo Bank secured by a mortgage and security agreement all signed by L.N. 12 and Diane regarding the cattle operation operated on the Loving property. Barbara 13 purchased the loan from Wells Fargo in J une 2008, for the amount due and then she 14 liquidated the cattle securing the obligation. Judge Rutledge determined that after 15 Barbara’s repossession and sale of the cattle, L.N. and Diane owed her a community 16 debt in the amount of $4,783.73, not includi ng interest, costs, and possible attorney 17 fees. The community assets were also divided. 186 The formal order dividing community property was filed on September 3, 2009. 1 Pertinent to this appeal, Diane was awar ded the Loving home and ranch as her sole 2 and separate property. Further, the order declares th at Barbara’s claim against Diane 3 is barred by the statute of limitations and that Barbara’s claim against L.N. “is 4 confirmed” as “Judgment has been entered against [L.N.] with the consent of [L.N.’s] 5 attorney and [Barbara’s] atto rney.” Finally, the order pr ovides that in connection with 6 the Wells Fargo suit, L.N. and Diane owed a community debt of $4,783.73, exclusive 7 of interest, costs, and possible attorney f ees. This debt, now owed to Barbara, was 8 ordered equitably divided between L.N. and Diane. 9 On the basis of the stipulated judgmen t against L.N., Barbara filed a separate 10 complaint to foreclose judgment lien on March 22, 2010, naming both Diane and L.N. 11 as defendants. Barbara alle ged that on July 1, 2009, she obtained a judgment against 12 L.N. in the amount of $490,380, that she reco rded a transcript of judgment against 13 L.N., and that as of the date the transc ript of judgment was filed, L.N. owned an 14 undivided community interest in the Loving home and ranch. Accordingly, she 15 alleged she was entitled to foreclose on the interest L.N. held in the Loving home and 16 ranch as of the date the transcript of judgment was filed. 177 In response to Barbara’s complaint to foreclose judgment lien, Diane filed a 1 motion for relief from judgment or order pur suant to Rule 1-060(B)(6) NMRA in the 2 divorce case before Judge Rutledge. The moti on recites the history of the divorce case 3 and alleges it was not Judge Rutledge’s intention to have the judgment lien taken 4 against L.N. by Barbara to attach to any property awarded to Diane. For relief, Diane 5 asked that the court order that she be re lieved from the stipulated judgment and that 6 it not attach to any and all property awarded to her, or in th e alternative, that the court 7 amend the order dividing community property to specifically state that the stipulated 8 judgment did not attach to any property awarded to Diane, including community 9 property awarded to her as her sole and separate property. 10 A hearing was held on Diane’s motion on February 8, 2011. At the hearing, 11 Judge Rutledge said his intent in approving the stipulated judgment against L.N. in 12 favor of Barbara was that the judgment only reach that property awarded to L.N. as 13 his separate property in the divorce case. Judge Rutledge further noted that “because 14 of the way pleadings were filed, the court’s intent was not met.” Judge Rutledge 15 therefore asked, “ Why shouldn’t I be enteri ng, at a minimum, a nunc pro tunc [order] 16 making my division of community property and community debts effective prior to 17 the filing of the judgment, stipulated judgment, confessed judgment?” 188 Following arguments, Judge Rutledge notedthat when the divorce action was 1 filed, a temporary domestic order was f iled, which prohibited either party from 2 incurring any debts or liabilities on the community property. The order was filed 3 pursuant to Rule 1-121 NMRA, which direct s that with certain exceptions, in all 4 domestic actions, the court shall issue a temporary domestic order substantially in the 5 form approved by the Supreme Court, and states in pertinent part: 6 Do not incur unreasonable or unnecessary debts. Any debt which does 7 not contribute to the benefit of both spouses or the minor children of the 8 parties which is incurred after you have separated, may be the separate 9 debt of the party who incurs the debt. 10
See Domestic Relations Form 4A-100(B) NMRA (approving mandatory forms to be 11 used by attorneys in domestic relations cases); Domestic Relations Form 4A-112 12 NMRA (approved temporary domestic order form). Thus , Judge Rutledge concluded 13 that because he ruled that the debt to Barbara was extinguished by the statute of 14 limitations, if Barbara’s arguments were legally correct that the stipulated judgment 15 against L.N. reached Diane’s property, th en L.N. violated the temporary domestic 16 order by stipulating to the judgment. Judge Rutledge succinctly explained: 17 The court’s position is very simple [.] If the debt is not legally 18 enforceable against the community, neither member of the community 19 can by their individual action without the acquiescence agreement, 20 whatever of the other party, other spouse, create a debt, resurrect that 219 debt against the community, because that debt is dead as to that 1 community. 2 On May 4, 2011, Judge Rutledge filed the order for relief from judgment and 3 order nunc pro tunc, the amended order di viding community property nunc pro tunc, 4 and the stipulated judgment nunc pro tunc (2011 Orders). Barbara appeals from these 5 orders in No. 31,338. 6 Following entry of the 2011 Orders, Dian e filed a motion to dismiss Barbara’s 7 judgment lien on the Loving house and ranch, and Judge Rutledge granted the motion 8 over Barbara’s objection. Barbara appeals from this order in No. 31,461. We 9 consolidated these appeals into No. 31,338. 10 Analysis 11 In this appeal, Barbara mounts several challenges to the le gal validity of the 12 2011 Orders. These arguments are grounded on the fact that she filed the stipulated 13 judgment on July 1, 2009, before the form al order dividing community property was 14 filed on September 3, 2009. She therefor e argues: (1) that Judge Rutledge had no 15 legal authority to limit her right as a credito r of L.N. to execute on his interest in the 16 community property; (2) that Judge Rutledgehad no legal authority to “usurp” her 17 statutory right to execute on the residen ce, which was owned as community property 18 because the stipulated judgment is a commun ity debt, and even if the debt is deemed 1910 L.N.’s separate debt, he had no authority to “usurp” her statutory right to execute on 1 L.N.’s community interest in the residenc e; (3) that Judge Rutledge lacked legal 2 authority to modify the judgment because Di ane waived her statutory right to assert 3 that the residence was not subject to the stipulated judgment; and (4) that Judge 4 Rutledge in effect changed the stipulation made by Barbara and L.N. in the stipulated 5 judgment, and he lacked legal authority to do so. 6 Thus, the first question we answer is whether Judge Rutledge committed 7 reversible error in modifying the stipulated judgment pursuant to Rule 1-060(B)(6) 8 NMRA. Rule 1-060(B) sets forth, in S ubsections (B)(1)-(5), gr ounds on which a court 9 may grant relief from a final judgment, order, or proceeding. Subsection (B)(6) then 10 states that the district court may grant su ch relief for “any other reason justifying relief 11 from the operation of the judgment.” Id. Relief is available under Subsection (B)(6) 12 only for reasons other than those enumerated in Subsections (B)(1)-(5). Resolution 13 Trust Corp. v. Ferri , 120 N.M. 320, 324, 901 P.2d 738, 742 (1995). Further, since 14 Subsection (B)(6) does not provi de a set of criteria for granting relief, our common 15 law precedent has concluded that it “provide s a reservoir of equitable power to do 16 justice in a given case, but it is limited to instances where there is a showing of 17 exceptional circumstances.” Meiboom v. Watson , 2000-NMSC-004, ¶ 31, 128 N.M. 1811 536, 994 P.2d 1154 (internal quotation marks and citation omitted). “Exceptional 1 circumstances means facts or things out of the ordinary bearing upon a central fact.” 2 Mendoza v. Mendoza , 103 N.M. 327, 332, 706 P.2d 869, 874 (Ct. App. 1985). In 3 Foundation Reserve Ins. Co. v. Martin , 79 N.M. 737, 740, 449 P.2d 339, 342 (Ct. 4 App. 1968), we quoted with approval the following language from 7 Moore, Federal 5 Practice, ¶60.27[1], at 295 (2d ed. 1968): 6 Like Rule 60(b) generally, Clause (6) should be liberally applied to 7 situations not covered by the precedi ng five clauses so that, giving due 8 regard to the sound in terest underlying the finality of judgments, the 9 district court, nevertheless, has power to gr ant relief from a judgment 10 whenever, under all the surrounding circumstances, such action is 11 appropriate in the furtherance of justice. 12 (Internal quotation marks omitted). 13 In answering whether Judge Rutledge co mmitted reversible error in modifying 14 the stipulated judgment under Rule 1-060(B)(6), our analysis is limited to determining 15 whether the ruling constitutes an abuse of discretion. Meiboom , 2000-NMSC-004, ¶ 16 29. We do not substitute our judgment fo r the judgment exercised by Judge Rutledge, 17 unless there has been a clear abuse of discre tion, and before reversal is warranted, “it 18 must be shown that the court’s ruling ex ceeds the bounds of all reason or that the 19 judicial action taken is arbitrary, fanciful, or unreasonable.” Id . (alteration, internal 2012 quotation marks, and citation omitted). Withthese standards in mind, we now turn 1 to our analysis. 2 As we have already noted, when the stipulated judgment was presented for 3 approval, the trial on Barbara’s claim was pending, as well as a determination of the 4 community assets and debts, and their equitable division. Judge Rutledge noted that 5 L.N. could not stipulate to any debt Dian e might owe to Barbara, and he reserved 6 judgment on whether the stipulated judgment was a separate debt of L.N. or a 7 community debt. These reservations notw ithstanding, Barbara filed the judgment that 8 same day, and she subsequen tly contended, and continues to assert on appeal, that by 9 doing so, she deprived Judge Rutledge of his ri ght to decide the very issues that were 10 before him: what were the community a ssets and debts, and how should they be 11 apportioned, which included determining whether Diane and L.N. owed Barbara a 12 debt, and if so, whether it was a community debt or a separate debt. 13 Further, when Judge Rutledge heard Diane’s Rule 1-060(B)(6) motion, he noted 14 that because of the way the pleadings were f iled, his intent was not met, and he asked 15 whether he should not, at a minimum, en ter an order nunc pro tunc making the 16 division of the community property and debts effective prior to the filing of the 17 stipulated judgment. After hearing arguments, Judge Rutledge filed the order for 1813 relief from judgment and order, nunc pro tunc. Therein, he finds that Diane is entitled 1 to relief from the stipulated judgment between L.N. and Barbara under Rule 1- 2 060(B)(6) because of exceptional circumstances which exist because: (1) Barbara filed 3 and transcribed the stipulated judgment against L.N. during the divorce proceedings, 4 and she now claims she has a lien and judgment against the property awarded to 5 Diane; (2) the court ruled that there wa s no community debt owed by Diane or L.N. 6 to Barbara because the statute of limitations had expired on any claim she had against 7 Diane and L.N.; (3) the court approved the stipulated judgment only for the specific 8 purpose of allowing Barbara to execute on property awarded to L.N. in the order 9 dividing community property; (4) the court had ordered that any judgment taken 10 against L.N. by Barbara was to attach only to any property awarded to L.N. in the 11 order dividing community property; and (5) Barbara subsequently filed a separate 12 complaint to foreclose the stipulated j udgment against property awarded to Diane in 13 the order dividing community property, anaction which was de signed to circumvent 14 that order. Because of these exceptional circumstances, JudgeRutledge concluded, 15 the stipulated judgment between Barbara and L.N. should be amended, nunc pro tunc, 16 setting forth that it is a personal judgment ag ainst L.N.; that only the property awarded 17 to L.N. in the order dividing community pr operty and separate property owned by him 1814 was subject to the judgment lien; and that none of the property awarded to Diane in 1 the order dividing community property was subject to the judgment lien. 2 The effect of the order modifying the stipulated judgment pursuant to Rule 1- 3 060(B)(6) nunc pro tunc was to makethe stipulated judgment operative after entry of 4 the order dividing community property. The stipulated judgment was amended 5 accordingly as was the order dividing commun ity property. Specifically, the amended 6 stipulated judgment directs: 7 No judgment shall be awarded against [Diane] as a result of this 8 Stipulated Judgment or Stipulated Judgment Nunc Pro Tunc, by and 9 between [Barbara and L.N.], and no property whether separate or 10 community awarded to [Diane] as set forth in the Order Dividing 11 Community Property Nunc Pro Tunc shall be subject to this judgment. 12 Consistent with the foregoing, the amended order dividing community property 13 orders: 14 The Stipulated Judgment and Amended Stipulated Judgment Nunc Pro 15 Tunc, taken by [Barbara] against [L.N.] shall attach only to the sole and 16 separate property of [L.N.] or the property awarded to him in the 17 Amended Order Dividing Community Property, Nunc Pro Tunc, only. 18 The Stipulated Judgment against [L.N.] taken in favor of [Barbara] shall 19 not attach to [Diane] personally or any property awarded to her in this 20 original or Amended Order Dividing Community Property, Nunc Pro 21 Tunc, or any separate property given to her as a gift or inherited by her, 22 or owned by her prior to marriage. 2315 We cannot conclude that Judge Rutledge abused his discretion in this matter. 1 The stipulated judgment was approved under certain conditions. However, when 2 Barbara filed and transcribed the stipulated judgment before J udge Rutledge ruled on 3 the matters pending before him, she eff ectively changed the conditions under which 4 the stipulated judgment was approved. This amounts to exceptional circumstances. 5 Further, the sequence in which the pleadings were filed would re sult in an unintended 6 foreclosure of the Loving home and ranch aw arded to Diane as her sole and separate 7 property. This is also an exceptional circ umstance justifying use of Rule 1-060(B)(6). 8 See Hopkins v. Hopkins , 109 N.M. 233, 241, 784 P.2d 420, 428 (Ct. App. 1989) 9 (concluding that foreclosure of a family home resulting from a former husband’s 10 failure to pay second and third mortgage s constituted exceptional circumstances to 11 justify modifying a final divorce decree). Amending the orders to accurately reflect 12 the conditions under which the stipulated judgment was approved cannot be 13 considered an abuse of discretion. 14 Having resolved the principle issue rais ed in the first appeal, we summarily 15 address Barbara’s remaining arguments. Barbara asserts that J udge Rutledge’s intent 16 was irrelevant and that when he relied on his intent to enter the orders appealed from, 17 he was required to recuse hi mself because he became a witn ess in the case. We reject 1816 these assertions. A judge is entitled to am end a judgment to more clearly reflect the 1 judge’s intent and to ensure that his purpose is fully implemented. See In re Estates 2 of Hayes , 1998-NMCA-136, ¶ 15, 125 N.M. 820, 965 P.2d 939 (discussing Rule 1- 3 060(A)). A judge may even initiate re lief from a judgment under Rule 1-060 on his 4 own motion. Desjardin v. Albuquerque Nat’l Bank , 93 N.M. 89, 91, 596 P.2d 858, 5 860 (1979). Finally, there is no indication in the record that any party wanted Judge 6 Rutledge to testify about a disputed evidentiary fact. 7 Barbara’s final argument in th is first appeal is that because she filed her notice 8 of appeal on May 24, 2011, Judge Rutledge had no jurisdiction to enter the order 9 releasing the judgment lien on July 1, 2011. We reject this assertion as well. See Kelly 10 Inn No. 102 v. Kapnison , 113 N.M. 231, 241, 824 P.2d 1033, 1043 (1992) (“It is clear, 11 though, that a pending appeal does not divestthe trial court of jurisdiction to take 12 further action when the action will not affect the judgment on appeal and when, 13 instead, the further action enab les the trial court to carry out or enforce the judgment.” 14 (emphasis omitted)). 15 SECOND APPEAL 16 Facts 1717 While the divorce action was still pending, a separate acti on was filed by Wells 1 Fargo Bank N.A. against L.N. and Diane on June 12, 2008, alleging that a promissory 2 note secured by a mortgage on their Lovi ng house and ranch and an agricultural 3 security agreement in all of th eir livestock was in default. Herein, we refer to this as 4 the Wells Fargo suit. Wells Fargo sought the amount owedunder the note, interest, 5 attorney fees, and to foreclose the mortga ge and exercise its rights as a secured 6 creditor in the livestock. Judge J. Rich ard Brown was assigned to preside over the 7 Wells Fargo suit. 8 Effective on July 25, 2008, Barbara purch ased the promissory note, mortgage, 9 and security agreement from Wells Fargo Bank, and Wells Fargo Bank assigned the 10 note, mortgage, and security agreement to Barbara. The purchase price was the total 11 amount owed under the promissory note as of that date in the amount of $400,202.36. 12 Barbara was substituted as Plaintiff in the We lls Fargo suit, and as the secured creditor 13 of L.N. and Diane, Barbara repossessed th eir cattle and sold them at auction on 14 August 13, 2008, for the total sum of $397,718. 44. This left a balance owed on the 15 promissory note in the amount of $4,763.73, with interest accruing at the rate of 16 11.75% per annum from August 13, 2008. 1718 On July 15, 2009, the same day that J udge Rutledge issued his letter decision 1 in the divorce case declaring that Barbara’s complaint in intervention was barred by 2 the statute of limitations and that the L oving house and ranch were awarded to Diane 3 as her sole and separate property, Barbara filed a motion in the Wells Fargo suit to 4 amend the complaint. She alleged thatas purchaser and assignee of the note, 5 mortgage, and security agreement, she “stands in the shoes” of Wells Fargo as Lender 6 under the loan documents. Accordingly, sh e asserted, the mortgage and agricultural 7 security agreement secured payment of the $490,380 stipulated judgment made by her 8 and L.N. in the divorce case, which she file d on July 1, 2009. This was based on a 9 “dragnet” clause in the mortgage and an id entical clause in the agricultural security 10 agreement signed by both Diane and L.N. which states: 11 In addition to the Note, this Mortgagesecures all obligations, debts, and 12 liabilities, plus interest thereon, of either Grantor or Borrower to Lender, 13 or any one or more of them, as we ll as all claims by Lender against 14 Borrower and Grantor or any one or more of them, whether now existing 15 or hereafter arising, whether related or unrelated to the purpose of the 16 Note, whether voluntary or otherwise, whether due or not due, direct or 17 indirect, determined or undetermined, absolute or contingent, liquidated 18 or unliquidated, whether Borrower or Grantor may be liable individually 19 or jointly with others, whether obligated as guarantor, surety, 20 accommodation party or otherwise, and whether recovery upon such 21 amounts may be or hereafter may become barred by any statute of 22 limitations, and whether the obligati on to repay such amounts may be or 23 hereafter may become otherwise unenforceable. 2419 Barbara contended Diane and L.N. were therefore jointly and severally obligated to 1 her for the balance on the original Wells Fargo Note in the amount of $4,763.73, plus 2 interest at the rate of 11. 75% per annum from August 13, 2008, plus the amount of the 3 stipulated judgment against L.N. in the am ount of $490,380, plus interest at the rate 4 of 8.75% from July 1, 2009. Barbara further contended that she had a judgment lien 5 against the Loving house and ranch by virtue of the stipulated judgment and transcript 6 of judgment she had filed. Over Diane’ s objection, Barbara’s motion to amend the 7 complaint was granted. 8 In her answer, Diane asserted that atthe time the Wells Fargo complaint was 9 filed, the only debt owed was to Wells Fargo in the principal amount of $367,613.84, 10 plus accrued interest in the amount of $20, 565.95 as of May 28, 2008, at the rate of 11 11.75% per annum, plus costs and attorney fees; that the stipulated judgment was 12 entered into by Barbara and L.N. for the purpose of ci rcumventing Judge Rutledge’s 13 ruling in the divorce action; that no debt was owed to Barbara by L.N. and Diane 1420 because her complaint was barred by the statute of limitations; that Barbara was 1 attempting to “bootstrap” the stipulatedjudgment amount onto the Wells Fargo debt 2 after the fact; and that Barbara’s claim was barred under the doctrines of waiver, 3 estoppel, unclean hands, the statute of limitations, and res judicata or collateral 4 estoppel. 5 On May 12, 2010, Diane filed a motion for summary judgment, in the Wells 6 Fargo suit. The motion was supported by her affidavit stating that: (1) at the time 7 Wells Fargo filed the suit, the principal amount owed was $367,613.84, plus accrued 8 interest in the amount of $20,565.95 as of May 28, 2008, at the rate of 11.75% per 9 annum, plus costs and attorney fees; (2) on July 25, 2008, Barbara was assigned any 10 and all of the rights of Wells Fargo, and she foreclosed and sold the collateral; (3) in 11 a letter dated July 15, 2009, Barbara made a demand in th e amount of $4,763.73 as the 12 full and final amount owed on the original note, plus accrued interest; (4) on July 29, 13 2009, Diane paid Barbara’s attorney a check (dated July 28, 2009) in the amount of 14 $5,000 in full and final settlement of the fo reclosure, which was still being held and 15 not negotiated; (5) at the time of the forecl osure and sale of the collateral, there was 16 no other indebtedness owed to Wells Far go, nor did Wells Fargo have any other 1721 judgment against Diane and L.N.; (6) th e July 1, 2009 stipulated judgment of 1 $490,380 was taken against L.N. as his sole and separate debt, and Diane was held 2 harmless for the stipulated judgment debt; (7) there was no nexus or connection 3 between the Wells Fargo debt and the stipulated judgment; and (8) the stipulated 4 judgment was made for the purpose of ci rcumventing the judgment entered by Judge 5 Rutledge in the divorce case. 6 Barbara responded and filed a cross moti on for summary judgment. Pertinent 7 to our decision herein, Barbara admitted to receiving Diane’s check dated July 28, 8 2009, in the amount of $5,000; asserted th at the amount of interest earned on the 9 Wells Fargo note was $536.74; and that th e check was therefore insufficient by 10 $300.47. Diane paid Barbara the additi onal sum of $400 on D ecember 6, 2010, thus 11 satisfying the deficiency. (She therefore actually overpaid $55.22). 12 On November 22, 2010, Judge Brown issu ed a letter decision granting Diane’s 13 motion for summary judgment and denying Barbara’s motion for summary judgment. 14 Judge Brown reasoned that on the basis of Ruidoso State Bank v. Castle , 105 N.M. 15 158, 730 P.2d 461 (1986), the dragnet clause inthe Wells Fargo loan documents did 16 not capture the stipulated judgment betweenBarbara and L.N. Barbara filed a motion 17 to reconsider to which Diane responded. Judge Brown filed an order granting Diane’s 1822 motion for summary judgment on March 1, 2011, and recused himself from deciding 1 Barbara’s motion to reconsider. The We lls Fargo case was thereupon reassigned to 2 Judge Rutledge and, at Barbara’s request, Judge Rutledgerecused himself. The case 3 was finally assigned to J udge Mark T. Sanchez. 4 Ultimately Judge Sanchez entered a final judgment. Pertinent to this appeal, the 5 final judgment denied Barbara’s motion for reconsideration; determined that Diane 6 had overpaid Barbara $55.22, which she was entitled to recover; made no award of 7 attorney fees; and to the extent any motions or claims for relief remained outstanding, 8 they were denied except as set forth to the contrary in the judgment. Barbara appeals 9 from this final judgment as well. 10 Analysis 11 The primary issue we address in the second appeal is whether Judge Brown 12 properly granted Diane’s motion for summaryjudgment and denied Barbara’s motion 13 for summary judgment. The material fact s surrounding this issue are undisputed, and 14 our review is de novo. See Harris v. Vasquez , 2012-NMCA-110, ¶ 9, 288 P.3d 924. 15 Judge Brown reasoned that on the basis of Ruidoso State Bank , the dragnet 16 clause in the Wells Fargo loan documents do not capture the stipulated judgment 17 between Barbara and L.N. We therefore first explore its holding. 1823 Ruidoso State Bank considered how to interpret a dragnet clause which is 1 substantially similar to the one before us in this cas e. 105 N.M. at 159-60; 730 P.2d 2 at 462-63. Our Supreme Court first said, “dragnet clauses do not, as a matter of law, 3 secure all debts be tween parties[.]” Id. at 160, 730 P.2d at 463. Further, “[a]side 4 from the actual language of the provision, construction should focus on the intent of 5 the parties as evidenced by the circumst ances surrounding the mortgage and the nexus 6 between the mortgage and the notes involved.” Id. Thus, Ruidoso State Bank , requires 7 us to determine whether the parties to the loan documents (Wells Fargo on the one 8 hand, and L.N. and Diane, on the other) in tended the Wells Fargo loan documents to 9 capture this future debt—the stipulatedjudgment between L.N. and Barbara. To do 10 so, we examine the circumstances surr ounding the mortgage and the nexus between 11 the mortgage and the stipulated judgment. Finally, Ruidoso State Bank , instructs us 12 how to construe the dragnet clause: “Dra gnet clauses which purport to secure all 13 debts, past, present, and future, between parties to a security ag reement generally are 14 disfavored and thus strictly construed.” Id. at 160, 730 P.2d at 463. We therefore 15 reject Barbara’s assertion that Clovis National Bank v. Harmon , 102 N.M. 166, 692 161 We also decline Barbara’s invitation to follow In re Lewis , 212 B.R. 827 15 (Bankr. E.D. Va. 1997) and Vidalia Production Credit Ass’n. v. Durrence , 94 S.E.2d 16 609 (Ga. Ct. App. 1956), as these cases c onstrue dragnet clauses contrary to Ruidoso 17 State Bank. 18 24 P.2d 1315 (1984), only requires that we look to the language of the dragnet clause. 1 1
As Ruidoso State Bank notes, the issue in Clovis National Bank was whether 2 substantial evidence supported the decision of the district court in that case that 3 dragnet clauses in mortgage s signed before and after the note at issue captured that 4

note. See Ruidoso State Bank , 105 N.M. at 160, 730 P.2d at 463. The issue before us 5
in this case is whether, given the undisputed facts, summary judgment was properly 6 granted to Diane and not to Barbara. To answer this question we now turn to the 7 analysis mandated by Ruidoso State Bank

. 8 The Wells Fargo loan documents contai ning the dragnet clau se were signed on 9 December 1, 2006. The promissory note was in the amount of $450,000, which was 10 secured by a mortgage and agricultural security agreement. The agricultural security 11 agreement secured payment of the promissory note ($450,000), and the mortgage 12 which contains the dragnet clause at issue created a lien not to exceed $900,000. 13 Other than the loan documents themselv es, the record does not set forth the 14 circumstances surrounding the note, mortgage, and security interest or their purpose. 1525 We also have before us the followi ng undisputed facts: (1) on June 27, 2008, 1 L.N. and Diane were divorced; (2) effectiv e on July 25, 2008, Barbara purchased the 2 note, mortgage, and security agreement from Wells Fargo Bank, and Barbara was 3 substituted as the plaintiff in the Wells Fargo suit; (3) as the secured creditor of L.N. 4 and Diane, Barbara repossessed their cattleand sold them at auction on August 13, 5 2008, leaving a balance owed on the promi ssory note in the amount of $4,763.73, with 6 interest accruing at the rate of 11.75% per annum from August 13, 2008; (4) Barbara 7 intervened in the divorce case between L .N. and Diane, asserting they owed her a 8 community debt; (5) following a trial on the merits on Barbara’s complaint in 9 intervention, Judge Rutledge determined ina letter dated July 15, 2009, which was 10 formalized in the order dividing communityproperty filed on September 3, 2009, that 11 the debt claimed by Barbara was barred by the statute of limitations and it was 12 disallowed in its entirety; (6) nevertheless, L.N. and Barbara stipulated that L.N. owed 13 Barbara $490,380, and they stipulated that Barbara have judgment against L.N. in this 14 amount, earning interest at the rate of 8.75% until fully paid. The stipulated judgment 15 was approved subject to conditions by JudgeRutledge on July 1, 2009; (7) on July 15, 16 2009, Barbara made a demand in the amountof $4,763.73 as the full and final amount 1726 owed on the original note, plus accrued interest; and (8) there was no nexus or 1 connection between the Wells Fargo debt and the stipulated judgment. 2 On the basis of the foregoing undisputed facts, we agree with Judge Brown that 3 properly interpreted under the mandate of Ruidoso State Bank , the parties to the loan 4 documents did not intend the dragnet clausein the Wells Fargo loan documents to 5 capture a future debt such as the sti pulated judgment between L.N. and Barbara. 6 Barbara was not a party to the original loan documents and there is simply no nexus 7 or connection between the debts evidencedby the Wells Fargo loan documents and 8 the stipulated judgment between Barbara and L.N. There is nothing in this record 9 indicating that the parties to the loan documents could have even foreseen the scenario 10 which is now before us, let alone that they would anticipate capturing a stipulated 11 judgment obtained in these circumstances. We therefore affirm Judge Brown’s order 12 that granted Diane’s motion for summary judgment and denied Barbara’s motion for 13 summary judgment as well as Judge Sanch ez’s final order denying Barbara’s motion 14 for reconsideration. 15 Having resolved the major issue raised in this appeal, we return to the 16 remaining questions. First, Barbara assert s that Judge Sanchez erred in refusing to 17 award her attorney fees incurred in coll ecting under the mortgage and collecting the 1827 deficiency under the note. We agree with Bar bara that this decision is reviewed for 1 an abuse of discretion. See Dean v. Brizuela , 2010-NMCA-076, ¶ 11, 148 N.M. 548, 2 238 P.3d 917. In this regard, the district court made findings that while Barbara may 3 have been entitled attorney fees from August 29, 2008 to December 6, 2010, “[t]he 4 court does not wish to speculate about the amount of attorn ey fees to which [Barbara] 5 is entitled, and the proof seems to be fraught with difficulty.” Moreover, Barbara’s 6 counsel confirmed that the legal expens es and fees incurred by Barbara “cannot 7 properly be segregated by causenumber, or even category b ecause all of the fees are 8 inextricably intertwined.” The burden was on Barbara to segregate the fees charged 9 to which she was entitled or to demonstrate that work performed on claims that she 10 was not entitled to receive attorney fees fo r was “inextricably intertwined” with the 11 work that she was entitled to be compensated for. Id. ¶ 14. We also note that Judge 12 Sanchez also ruled: 13 The Holder [Barbara] and the Maker [Diane] may by November 8, 2011, 14 submit revised affidavits in support of awards of attorney fees; affidavits 15 and argument in opposition to awards of attorney fees shall be due by 16 November 15, 2011. The parties should however bear in mind the 17 rulings made by the court. 18 However, Barbara did not takeadvantage of this additi onal opportunity to segregate 19 the recoverable fees. The record supports the findings of Judge Sanchez, and we 2028 perceive no abuse of discre tion on his part in refusing to award Barbara’s attorney 1 fees. 2 Finally, Barbara asserts that she was en titled to a judgment against Diane in the 3 amount of $5,300.47, plus interest and thatJudge Sanchez committe d reversible error 4 in awarding Diane judgment against Barbara in the amount of $55.22. Barbara asserts 5 that when Diane tendered her check in the amount of $5,000 it was not “unqualified,” 6 and since more than $5,000 was owed at th at time, she properl y refused the tender. 7 Furthermore, she asserts, the subseque nt $400 check, purportedly representing the 8 balance paid in full, was returned to Diane’s counsel. Barbara asserts that since the 9 undisputed evidence proved that as of Ju ly 28, 2009, the amount owed under the note 10 was $5,300.47, the purported tenders were properly refused, resulting in the balance 11 not being paid, she is entitled to judgment under the note in the amount of $5,300.47, 12 plus interest. Largely for the same reas ons, Barbara argues that it was improper for 13 Judge Sanchez to conclude that Barbaraoverpaid the amount owed under the note in 14 the amount of $55.22 and erred in granting Diane a judgment for this amount. 15 We reject these arguments. On July 15, 2009, Barbara demanded payment in 16 the amount of $4,763, plus interest as the full amount owed, and Diane tendered a 17 check on July 28, 2009, in the amount of $5, 000. Barbara now says she rejected the 1829 tender because it was insufficient by $300.47. However, she never told Diane that the 1 payment was rejected for this reason. Furthermore, Barbara moved to amend the 2 Wells Fargo suit on July 15, 2009, asserting that as the assignee of the Wells Fargo 3 loan documents, she was entitled to foreclos e on the stipulated judgment with L.N. in 4 the amount of $490,380. Thus, a tender of $5,300.47 by Diane was not necessary, as 5 such a tender would have been futile under the circumstances. See Carmichael v. 6
Rice , 49 N.M. 114, 118-119, 158 P.2d 290, 293 (1945) (stating that where it is clear 7 that a tender need not be made where it is clearthat if it is offere d, it will be rejected). 8 Judge Sanchez found that as of July 27, 2009, the balan ce owed on the note 9 (including interest) was $5, 297.40 and that after the payment of $5,000 on July 28, 10 2009, Barbara was owed $297.47, plus interest, for a total of $344.78. Further, after 11 the $400 payment on December 6, 2010, J udge Sanchez concluded that Diane 12 overpaid the amount due by $55.22. Th ese factual findings are supported by 13 substantial evidence, and they are not disputed. Judge Sanchez also ordered, “[t]o the 14 extent that any checks issued by or on behalf of [Diane] have become stale or 15 otherwise incapable of negotiation, [Diane ] may issue checks anew or make payment 16 in any lawful manner on [Barbara’s] return of stale or non-negotiable checks to 17 [Diane] or her attorney.” We ther efore affirm this order as well. 1830 CONCLUSION 1 For the reasons expressed herein, all of the orders, judgments, and decrees 2 entered by the district court in the re spective cases on appeal are affirmed. 3 IT IS SO ORDERED. 4

________________ ________________ 5 MICHAEL E. VIGIL, Judge 6 WE CONCUR: 7

_________________________________ 8 CELIA FOY CASTILLO, Chief Judge 9

_________________________________ 10 JAMES J. WECHSLER, Judge 11