IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 WILLIAM DEMENT and 2 BARBARA DEMENT, husband 3 and wife, 4 Plaintiffs-Appellants, 5

v. NO. 29,287 6 RANDALL CAMP and ANDREA CAMP, 7 husband and wife, ANTHONY STEVENS 8 and JACQUELINE STEVENS, husband 9 and wife, and ALL UNKNOWN 10 CLAIMANTS OF INTEREST, 11 Defendants-Appellees. 12 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 13 Frank K. Wilson, District Judge 14 The Rose Law Firm, P.C. 15 Timothy L. Rose 16 Ruidoso, NM 17 for Appellants 18 Richard A. Hawthorne 19 Ruidoso, NM 20 for Appellees 212 MEMORANDUM OPINION 1 VIGIL, Judge. 2 Plaintiffs seek a declaratory judgment that they have an easement to use a 3 driveway that separates two lots that Pl aintiffs own, and compensatory and punitive 4 damages. [RP 41-46] (A third count was dismissed by stipulation, as was 5 Defendants’ counterclaim.) [RP 124] Plaintiffs appeal the district court’s grant of 6 summary judgment to Defendants, arguing that issues of material fact remain. This 7 Court filed a notice of assignment tothe summary calendar on May 7, 2009, 8 proposing to affirm. Plaintiffs filed a memorandum in opposition to proposed 9 summary affirmance on May 27, 2009, which we have duly consid ered. We affirm 10 the district court. 11 Plaintiffs’ two lots in Ranches of S onterra subdivision (Nos. 418 and 421) both 12 abut and have access to Santiago Drive, a pub lic road. [See plat RP 140] Defendants’ 13 two lots (Nos. 419 and 420) sit behind Plai ntiffs’ lots and would not have access to 14 Santiago Drive if not for a driveway locatedon two narrow, side-by-side strips of land 15 that connect the main portion of Defendants’ lots to the road. The strips, known as 16 “pipestems,” separate Plaintiffs’ two lots. [RP 68, 140] Plaintiffs would like to use 17 the driveway to provide additional access to th eir lots. They would also like to be able 183 to cross the driveway to get from one of th eir lots to the other without having to go on 1 the public road. [RP 36-37, ¶ 11] 2 Defendants’ motion for summary judgment asserts that they own the pipestem 3 portions of their lots in fee simple and th at the circumstances demonstrate that the 4 driveway was to serve only their lots. [RP 68, ¶ 7; 72-75] Plaintiffs’ amended 5 complaint and their response to the motion for summary judgment assert that the 6 original intent for the drivew ay easement was that it serve all four lots, not just the two 7 lots owned by Defendants. [RP 42, ¶ 9; 98-99] Plaintiffs contend that the question 8 of which lots the driveway easement was intended to serv e is an unresolved issue of 9 material fact, and that summary judgment was therefore improper. 10 “Summary judgment is a drastic reme dy to be used with great caution.” 11 Pharmaseal Labs., Inc. v. Goffe , 90 N.M. 753, 756, 568 P.2d 589, 592 (1977). 12 “Summary judgment is proper if there are no genuine issues of material fact and the 13 movant is entitled to judgment as a matter of law.” Maloof v. Prieskorn , 14 2004-NMCA-126, ¶ 6, 136 N.M. 516, 101 P.3d 32; Rule 1-056(C) NMRA. “We must 15 view the pleadings, affidavits, and depositi ons presented for and against a motion for 16 summary judgment in a light most favorable to the nonmoving party.” Estate of 17 Griego v. Reliance Standard. Life Ins. Co. , 2000-NMCA-022, ¶ 18, 128 N.M. 676, 18 997 P.2d 150. “A prima facie showing of summary judgment shifts the burden to 194 [the] party opposing the motion to come forward with specific material facts that 1 would make a trial necessary.” Maloof, 2004-NMCA-126, ¶ 6; Rule 1-056(E) 2 NMRA. “Where the movant has made a prima facie showing, the opponent cannot 3 rely on the allegations contained in its complaint or upon the argument or contention 4 of counsel to defeat it. Rather, the oppone nt must come forward and establish with 5 admissible evidence that a genuineissue of fact exists.” Ciup v. Chevron U.S.A. , 6 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P. 2d 263 (citation omitted). “In a case 7 where the facts are not in dispute, but only th e legal effect of the facts is presented for 8 determination, summary judgment may be properly granted.” Meeker v. Walker , 80 9 N.M. 280, 283-84, 454 P.2d 762, 765-66 (1969). 10 Whether an original landowner intended to convey or reserve an 11 easement in order to provide access to a given tract is a question of fact 12 to be determined from the terms of the conveyance and the surrounding 13 circumstances. Generally, the law doe s not favor claims of easement and 14 the burden is on the party asserting such . . . claim to prove it clearly. 15 Herrera v. Roman Catholic Church , 112 N.M. 717, 720, 819 P. 2d 264, 267 (Ct. App. 16 1991) (internal quotation marks and citati ons omitted). “Any words which clearly 17 show intention to grant an easement are sufficient, provided the language is certain 18 and definite in its term.” Martinez v. Martinez , 93 N.M. 673, 675, 604 P.2d 366, 368 19 (1979) (citations omitted). 205 We conclude that Defendants madea prima facie showing for summary 1 judgment, and that Plaintiffs did not comeforward with specific material facts that 2 would require a trial. Plaintiffs’ first amended complaint for declaratory judgment and 3 damages contains the following allegations, the truth or untruth of which appears to 4 be determinative of Plaintiffs’ claim: 5 9. The original intent for the driveway easement was that it was to 6 serve all four lots that are now owned by the parties. 7 10. There is a common easement on the [driveway] for the use of the 8 owners of lots 418, 421, 419, and 420. [RP 42] 9 Defendants’ memorandum in support of th eir motion for summary judgment contains 10 several factual assertions and supporting documents that tend to contradict Plaintiffs’ 11 allegations 9 and 10. They assert that th ey own the pipestems in fee simple, [RP 68, 12 ¶ 7] that only utility easements were reserved in the subdivision’s declaration of 13 covenants, conditions, and restrictions, [RP 69 ¶ 13] and that Plaintiffs were 14 informed at the time they purchased their first lot (No. 421) that the driveway was 15 private as to lot nos. 419 and 420. [RP 70, ¶ 24] Supporting documents include a 16 copy of the subdivision declarations [RP 77- 82] and an affidavit from the real estate 17 agent who sold lot no. 421 to Plaintiffs stati ng that she told Plaintiffs that they would 18 have no interest in the driveway, but thatshe would inquire about getting permission 19 from the owners of lot nos. 419 and 420 (o f which she was one at the time) for 206 Plaintiffs to use the driveway. [RP 88-89] When permission c ould not be secured, 1 the affidavit continues, Plaintiffs proceed ed to construct their own driveway off of 2 Santiago Drive. [Id.] Also attached to Defendants’ memorandum is a disclosure 3 statement containing the following language: “Because of their ‘pipestem’ or common 4 driveway configurations, lots . . . 419, 420 . . . may need to construct longer driveways 5 than usual to reach their homes, and in so me cases these driveways may be located on 6 shared easements and will require comm on maintenance among the affected lots.” 7 [RP 83-84] 8 In their argument for summary judgment, Defendants observe that if Plaintiffs 9 only owned one lot, there woul d be no need to use the driv eway, as the lot (either lot 10 no. 418 or 421) abutted and had access to Santiago Drive. [RP 72] Use of the 11 driveway only became an issue after Plaintiffs bought the second lot on the other side 12 of the pipestems and wanted to cross from one of their lots to the other. [Id.] 13 Defendants argue that it is illogical to assu me that the developer would have foreseen 14 this situation and would havereserved easements in the driveway for lot nos. 418 and 15 421 just in case the situation arose. [I d.] Defendants argue that the disclosure 16 statement’s reference to “s hared easements” and the need for “common maintenance 17 among the affected lots” logically refers only to Defendants’ two lots. [RP 72-73] 18 Plaintiffs’ response to Defendants’ motion for summary judgment includes an 197 affidavit of Plaintiff William Dement asserting that the conversation between him and 1 the real estate agent described above never took place. [RP 97] Plaintiffs do not 2 dispute that Defendants own the pipestems in fee simple. Plaintiffs note that the deeds 3 recite that title is “subject to all easements . . . of record.” [RP 93, ¶ 4, 102-03] They 4 assert that the declaration of covenants, conditions, and restrictions does not answer 5 the issue of whether the developers intended the easement to serve all four lots. [RP 6 93, ¶ 4] Referring to the di sclosure about the driveways quoted above, Plaintiffs argue 7 that if the developers meant the term “affected lots” to mean only the two pipestem 8 lots, they would have used specific language limiting the maintenance disclosure to 9 the pipestem lots. [RP 93-94, ¶¶ A - C] Further, they point out that the use of the 10 phrase “among the affected lots” rather than “between the affectedlots” indicates that 11 more than two lots are involved. [RP 94, ¶ D] Next, Plaintiffs assert that the surveyor 12 told them he intended that all four lots touching the driveway were to have access to 13 it. [RP 98] Finally, Plaintiffs argue that even if lots 418 and 421 had different 14 owners, it would not make sense to preven t the owners from crossing the driveway to 15 go to the other lot, and to prevent emergency vehicles from accessing lots 418 and 421 16 via the driveway. [RP 99, ¶ 18] 17 We first conclude that De fendants made a prima facie showing that there were 18 no genuine issues of material fact and th ey were entitled to judgment as a matter of 198 law. Among other things, Defe ndants showed that they owned the pipestems in fee 1 simple. To the extent that it was possible for them to prove a negative, they showed 2 that no easement of record existed aside fro m the reference in the disclosures to the 3 driveways for some lots in the subdivision being located on “shared easements.” 4 Defendants presented evidence of circumst ances suggesting that the easement was 5 “shared” only between themselves as the owners of the pipestem lots. That is, the 6 driveway straddled both pipestems and both Defendants were entitled by the shared 7 easement to use the entire width of the driveway, including the portion on the other 8 Defendant’s pipestem. The other two lots, 418 and 421, both had ready access to 9 Santiago Drive and thus had no pre-existing need to use the driveway. 10 We also conclude that Plaintiffs have not satisfied their burden “to come 11 forward with specific material facts th at would make a trial necessary.” Maloof, 12 2004-NMCA-126, ¶ 6; Rule 1-056(E). Plaintiffs needed to present something more 13 than the bare assertion in their first amended complaint that “[t]here is a common 14 easement on the [driveway] for the use of the owners of lots 418, 421, 419, and 420.” 15 [RP 42] They presented no documentation memorializing an easement serving lots 16 418 and 421 other than a strained interpretation of the reference to “shared easement” 17 and “affected lots” in the property disclosures. 189 In their memorandum in opposition to proposed summary affirmance, Plaintiffs 1 point out that the affidavit of William Deme nt attached to their response denies that 2 the conversation to which Charlotte Goodw in’s affidavit attested ever took place. 3 Plaintiffs argue that this Court, to the extent that it gives credence to Goodwin’s 4 affidavit over Dement’s, is ineffect weighing the evidence. We observe that the 5 affidavits are substantially in agreemen t. Dement’s affidavit states, “That 6 conversation never happened.” [RP 105, ¶ 4] His affidavit also states, however, 7 “Because I knew that the law provided me with access to the common driveway 8 easement, I purchased the lot in spite of Ms. Goodwin’s assertion to the contrary.” 9 [RP 106, ¶ 10] We can only c onclude that Dement’s statement that the conversation 10 never happened meant that no conversation occurred in which he waived his claim to 11 use of the driveway. We do not interpret Goodwin’s affidavit as an assertion that 12 Dement waived his claim; it only states that Goodwin advised him that the driveway 13 was private and he would have no interest init. [RP 88-89] As Dement’s affidavit 14 shows, he chose to disregard Goodwin’s advice. Regardless of the opposing views 15 of the affidavits, we note that whether ornot Goodwin warned Dement about his lack 16 of any interest in the driveway is not dispositive of the question of whether any such 17 interest existed. 1810 We conclude that this is a case where the dispositive facts are not in dispute, 1 only the legal effect of the facts, and summary judgment is therefore appropriate. 2 Meeker , 80 N.M. at 283-84, 454 P.2d at 765-66. The dispositive facts are that 3 Defendants own the pipestems in fee simp le, and there is no documentary record 4 establishing an easement other than th e ambiguous reference in the disclosure 5 documents to a “shared easement.” Given that language establishing an easement 6 must be “certain and de finite in its term,” Martinez , 93 N.M. at 675, 604 P.2d at 368, 7 we conclude that the district court properly ruled that the legal effect of this language 8 was insufficient as a matter of law. 9 For the reasons set forth above, we affirm the district court. 10 IT IS SO ORDERED. 11
12 MICHAEL E. VIGIL, Judge 1311 WE CONCUR: 1

2 CYNTHIA A. FRY, Chief Judge 3

4 ROBERT E. ROBLES, Judge 5 6