This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 B.T.U. BLOCK & CONCRETE, INC., 2 a New Mexico corporation, 3 Plaintiff-Appellee, 4

v. NO. 32,092 5 TONY C. ORTEGA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 8 Eugenio S. Mathis, District Judge 9 Nicholas T. Leger 10 Las Vegas, NM 11 L. Helen Bennett 12 Albuquerque, NM 13 for Appellee 14 Walcott & Henry, P.C. 15 Donald A. Walcott 16 Santa Fe, NM 17 for Appellant 18 MEMORANDUM OPINION 192 VIGIL, Judge. 1 {1} Defendant Tony Ortega (Ortega) appeals the districtcourt’s judgment after a 2 bench trial quieting title to two tracts of land in favor of B.T .U. Block & Concrete, 3 Inc. (BTU). Concluding that BTU satisfi ed the elements of adverse possession of 4 Tract 1, we affirm BTU’s ownership as toTract 1. However, because BTU failed to 5 prove the elements of adverse possession of Tract 2, we reverse as to Tract 2. We 6 remand to the district court to resolve BT U’s claim for a privat e prescriptive easement 7 over Tract 2. 8 BACKGROUND 9 {2} BTU initiated this suit to quiet title to two adjacent tracts of land in Las Vegas, 10 New Mexico (Tract 1 and Tract 2) . Tract 1, consisting of 19.077 acres, is situated 11 between some railroad tracks on the west and Tract 2 on the east. Tract 2, a strip of 12 land measuring approximately 80 feet from east to west and 1500 feet from north to 13 south, shares its western border with Tract 1 and eastern border w ith the Interstate 25 14 right-of-way. BTU conceded that Ortega has record title to Tract 2. No fences have 15 ever separated Tract 1 from Tract 2. However, there is a gravel road on Tract 2, along 16 its border to Tract 1, that extends from a pub lic paved road. BTU uses this road as its 17 primary access to Tract 1. BTU has used the area east of the road on Tract 2 for 18 employee parking and to store concrete block since it purchased the property in 1983 193 from T. Brown Constructors, Inc. (Brown ), which had also utilized Tract 2. 1 {3} In its complaint, BTU sought to quiet title to Tract 1 to prevent Ortega from 2 making any adverse claims to it, whileit claimed title to Tract 2 by adverse 3 possession. In the alternative, BTU sought a private pr escriptive easement over Tract 4 2. The district court ruled that BTU’s reco rd title to Tract 1 was not contested and that 5 BTU owns Tract 1 in fee simple absolute. The district court quieted title to Tract 2 6 in favor of BTU by adverse possession. Orte ga appeals. Further pertinent facts are 7 discussed in the relevant sections below. 8 DISCUSSION 9 A. Tract 1 10 {4} Ortega challenges BTU’s title to Tract 1, arguing that the district court erred in 11 concluding that BTU’s record title to Tract 1 was uncontested. Hecontends that while 12 he did not contest BTU’s ownership of Tract 1 in his answer, th e court later granted 13 him permission to amend his answer during trial to dispute BTU’s title to Tract 1. 14 Although he claims no ownership of Tract 1 on appeal, Ortega maintains that the 15 evidence shows that BTU lacks record title to Tract 1 and that BTU did not present 16 clear and convincing evidence to provetitle by adverse possession over Tract 1. 17 {5} We agree that Ortega did contest BTU’ s record title to Tract 1 because the 18 district court granted Ortega’s motion to amend his answer. Du ring Ortega’s trial 194 testimony, using an exhibit containing a surv eyor’s map of Tract 1 and Tract 2, Ortega 1 pointed to areas of Tract 1 that overlapped with land south and west of Tract 2 that he 2 claimed to own by virtue of deeds heacquired in 2003 and 2004. BTU objected, 3 arguing that Ortega should not be permitte d to challenge BTU’s ownership of Tract 4 1 in his testimony because he conceded th at BTU owned Tract 1 in his answer to 5 BTU’s complaint. At this point, Ortega moved to amend his answer so that he could 6 challenge BTU’s ownership of Tract 1, and the district court granted this motion. 7 {6} It is unnecessary for this Court to clarify the district court’s ambiguous findings 8 and conclusions regarding whether Ortega contested BTU’s ownership of Tract 1. 9 The district court also ruled that BTU “is the owner . . . in fee simple absolute” of 10 Tract 1. We will affirm the district court’ s decision regarding Tract 1 if it is right for 11 any reason, so long as it is not unf air to Ortega that we do so. See Cordova v. World 12 Fin. Corp. of N.M. , 2009-NMSC-021, ¶ 18, 146 N.M . 256, 208 P.3d 901 (“[I]t is 13 established law that our appellate courts will affirm a district court’s decision if it is 14 right for any reason, so long as the ci rcumstances do not make it unfair to the 15 appellant to affirm.”). In his briefing to this Court, Ortega argued that BTU failed to 16 establish record title or title by adverse posse ssion over Tract 1. Thus, it is not unfair 17 to Ortega for us to addre ss the issue of BTU’s ownership of Tract 1 under either of 18 these theories. 195 1. Record Title 1 {7} BTU recorded a warranty deed from Brow n in 1983 that did not contain a legal 2 description of the property or any description such that it could be located by a 3 surveyor. In 1992, the deed was re-recorded with the legal description of Tract 1 4 attached to it as Exhibit A. The re-reco rded deed notes, “THIS DEED IS BEING RE5 RECORDED IN ORDER TO INCLUDE THE EXHIBIT ‘A’ WHICH WAS 6 OMITTED FROM THE ORIGINAL RECORDING.” Jay Moore, a witness for 7 Ortega who owns a title company, testified that occasionally in the title industry, it is 8 discovered that an exhibit is accidentally omitted from a recording and when it is 9 discovered, the title company will re-record th e deed with the exhibit attached. Brown 10 acquired title to Tract 1 in January 1981 fro m Harold Saueresigg. The warranty deed 11 from Saueressig to Brown contains the same legal description to Tract 1 as is the 12 description attached as Exhibit A of BTU’s 1992 re-recorded deed. 13 {8} Referring to NMSA 1978, Section 14-8-4 (1981, amended 2011 and 2013), 14 Ortega contends that the 1983 deed cannot give BTU record titleof Tract 1 because 15 it contained no legal description of Tract 1 and because the 1992 deed did not contain 16 a contemporaneous signature by Brown as grantor, it should not have been accepted 17 for recording. Section 14-8-4, at the pertinent time, provided that “[a]ny instrument 18 of writing, not duly acknowledged and certified, may not be filed and recorded, nor 196 considered of record, though so entered.” (Emphasis added.) Ho wever, we decline 1 to consider the legal significance, if any, of the 1983 acknow ledgment on the 1992 re2 recorded deed. We need not decide whether BTU has record title to Tract 1, because, 3 as we next explain, BTU proved that it satisfied the elements of adverse possession 4 of Tract 1 by clear and convincing evidence. 5 2. Adverse Possession 6 {9} “[A] party claiming ownership of land by adverse possession must prove by 7 clear and convincing evidence continuous a dverse possession for ten years under color 8 of title, in good faith, and payment of taxe s on the property during these years.” In re 9 Estate of Duran , 2003-NMSC-008, ¶ 8, 133 N.M. 553, 66 P.3d 326 (internal quotation 10 marks and citation omitted); see NMSA 1978, § 37-1-22 (1973) (adverse possession 11 statute). 12 {10} Ortega does not challenge that BTU posse ssed Tract 1 for at least ten years nor 13 that it paid taxes on Tract 1 for these years. Indeed, evidence in the record shows that 14 BTU possessed and paid taxes on Tract 1 for more than thirty years. Ortega solely 15 challenges BTU’s good faith color of title. 16 {11} In order to achieve color of title, the adverse possessor “must have a writing or 17 a conveyance of some kind that purports to convey the land title to which is claimed.” 18 City of Rio Rancho v. Amrep Sw. Inc. , 2011-NMSC-037, ¶ 22, 150 N.M. 428, 260 197 P.3d 414 (internal quotation marks and citation omitted); see § 37-1-22 (stating that 1 an adverse possessor who has met the other requirements for adverse possession “shall 2 be entitled to keep . . . such quantity of lands as shall be specified and described in 3 some writing purporting to give color of title to such adverse occupant”). “What will 4 suffice as color of title is a question of law, which we review de novo.” In re Estate 5 of Duran , 2003-NMSC-008, ¶ 20 (citation omitted). On its face, the 1992 deed 6 contains the elements a document is required to have in order to achieve color of title 7 for BTU. The deed purports to convey the land described in Exhibit A, which 8 contains the legal description of Tract 1, from Brown to BTU. 9 {12} Ortega challenges the good faith element of color of title. “Good faith in this 10 context is freedom from a design to de fraud the person having the better title.” Id. 11 ¶ 21 (internal quotation marks and citati on omitted). “We will typically apply a 12 presumption that this element has beensatisfied by the person claiming title by 13 adverse possession.” Id. “[B]ad faith will be found not in the relative appearance of 14 validity of the instrument chosen for color of title, but in the methods used in the 15 acquisition of such instrument.” Id. (internal quotation mark s and citation omitted). 16 Ortega argues that there is no evidence that Brown or any other third party provided 17 the legal description of Tract 1 that was ev entually attached as Exhibit A in the re18 recorded deed. Ortega insinuates that because there is no evidence of the legal 198 description’s origin, BTU could have obtai ned a copy and attached the description 1 itself. Quoting In re Estate of Duran , 2003-NMSC-008, ¶ 23, heasserts, “[A] deed 2 made by a man to himself could not well be supposed to have the characteristics of 3 color of title.” However, there is no evidence in the record to support Ortega’s 4 assertions. 5 {13} The evidence in the record supports ourpresumption that BTU acquired the 6 1992 deed in good faith. The 1992 deed itself notes that it is being re-recorded to 7 include Exhibit A because it was omitted from the original deed. The BTU principal 8 testified that he had no knowledge of the ci rcumstances of the re-recording, and a title 9 company owner testified that it is standard in the industry to simply re-record deeds 10 with attachments that were initially erroneously omitted. The 1983 deed, although no 11 description was attached, do es demonstrate that Brow n sold BTU some property. 12 There was also testimony that BTU had worked with Brown on a highway bypass 13 construction project and that BTU bought property from Brown when the project was 14 complete and Brown put Tract 1 up for sale and moved off of it. BTU moved on it 15 and immediately set up its cement business. There was no evidence presented at trial 16 to suggest that the re-recordation of th e 1992 deed was made in bad faith by BTU to 17 attempt to gain ownership of land that it did not own. Therefore, we conclude that the 18 evidence unquestionably provides BTU good faith color of title to Tract 1. Therefore, 199 BTU has satisfied all of the elements of adverse possession of Tract 1. 1 B. Tract 2 2 {14} Ortega also challenges the district court’s decision to quiet title to Tract 2 in 3 favor of BTU by adverse possession. The district court found that BTU had openly 4 and continuously occupied a portion of Tr act 2 since 1983, that BTU paid all real 5 estate taxes on Tract 2, and that BTU had “proven all of the elements of adverse 6 possession over Tract 2 by clear and convincing evidence.” Ortega argues there is not 7 substantial evidence that BTU had color of title over Tract 2 nor that BTU paid taxes 8 on Tract 2. We agree. 9 1. Color of Title 10 {15} Here, BTU relies on its chain of title and deed to Tract 1 as color of title for 11 Tract 2. BTU asserts that the districtcourt resolved the “conflicting evidence” of 12 color of title in its favor. However, th ere is no conflicting evidence in the record 13 regarding what parcel of land BTU’s deed purports to convey. The district court 14 found that the legal description in the deed is for Tract 1. Despite BTU’s insistence 15 at oral argument that its expert testifie d as to an area of “overlap” between the 16 description of Tract 1 in BTU’s deed and the land in Tract 2, BTU’s expert in fact 17 testified that the legal description in BTU’ s deed solely describes Tract 1. He even 18 identified Tract 1 as the parcel of land de scribed in BTU’s deed by drawing an outline 1910 of Tract 1 on an exhibit containing a surveyo r’s map of Tract 1 and Tract 2. There is 1 no overlap between Tract 1 and Tract 2 on th e map. Any “overlap” referenced by the 2 expert was in reference to Ortega’s other property he acquired in deeds for the land 3 south and west of Tract 2. 4 {16} In its brief to this Court, BTU argued that it offered sufficient evidence that it 5 “relied” on its deed to Tract 1 “in clai ming title to the land encompassed by both Tract 6 [1] and Tract [2].” BTU’s argument fails because the deed BTU used to establish 7 color of title to Tract 2 does not describe the land in Tract 2, so it cannot provide color 8 of title for Tract 2. The writing offered for color of title “must attempt to give title to 9 the adverse occupant, but for some reason fails to do so.” Slemmons v. Massie , 1984- 10 NMSC-108, ¶ 4, 102 N.M. 33, 690 P.2d 1027; accord Currier v. Gonzales , 1967- 11 NMSC-259, ¶ 5, 78 N.M. 541, 434 P.2d 66. Our Supreme Court has repeatedly 12 declined to find color of title when the document offered fails to attempt to convey the 13 property claimed. See, e.g. , Fischer v. Mascarenas , 1979-NMSC-063, ¶ 8, 93 N.M. 14 199, 598 P.2d 1159 (ruling that “[s]ince the uncontradicted evidence of the survey 15 indicates that the [deeds offered for color of title] do not describethe land in question, 16 those deeds cannot be the basis of a valid claim and cannot provide color of title for 17 purposes of adverse possession”); Esquibel v. Hallmark , 1978-NMSC-080, ¶ 9, 92 18 N.M. 254, 586 P.2d 1083 (holding that the adverse possessors failed to show color of 1911 title since the deed they used did not desc ribe the portion of property they claimed by 1 adverse possession). 2 {17} BTU argues that because it believed in good faith that its deed described Tract 3 2 in addition to Tract 1, the deed provides color of title to Tract 2. The district court 4 found that BTU in good faith be lieved that the warranty deed from Brown transferred 5 all of the land encompassing Tract 1 and Tr act 2. However, BTU offers no legal 6 support that an adverse possessor’s good faithbelief that a document provides title to 7 property is sufficient to achieve color of titleover that property. Where a party cites 8 no authority to support an argument, we may assume no such authority exists. In re 9 Adoption of Doe , 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Without such 10 authority, we are left with the well-settled law that the document used to achieve color 11 of title over a piece of land must purport to conveythat land, City of Rio Rancho , 12 2011-NMSC-037, ¶ 22, but for so me reason fails to do so, Slemmons , 1984-NMSC13 108, ¶ 4. We therefore reject BTU’s re liance on its erroneous good faith belief that 14 its deed for Tract 1 included Tract 2 as color of title to Tract 2. 15 2. Payment of Taxes 16 {18} Ortega also challenges the district court’s finding that BTU paid all real estate 17 taxes assessed against Tract 2. Because BTU lacks color of title, it is not necessary 18 for us to answer this argument. Titleby adverse possession cannot be proved unless 1912 all of these elements are established. Slemmons , 1984-NMSC-108, ¶ 6. However, we 1 address this argument as an alternative disposition. 2 {19} BTU asserts that the district court properly resolved “the conflicting evidence 3 of payment of taxes” in favor of BTU. However, there is no conflicting evidence 4 regarding BTU’s payment of taxes in the record. In fact , there is no ev idence in the 5 record whatsoever that BTU paid any taxe s on Tract 2. The evidence of BTU’s tax 6 payments shows that BTU paid taxes from 1992 to 2007 on 19.08 acres. BTU’s deed 7 to Tract 1 covers 19.077 acres. While the San Miguel County treasurer testified that 8 BTU also paid all taxes it was assessed from 1983 to 1991, no records existed for this 9 period so there is no evidence that the acreage that was assessed for these years 10 covered Tract 2. 11 {20} BTU relies on testimony from San Miguel County Tax Assessor Elaine Estrada 12 that records “showed BTU to be the owner of the land in question for taxing 13 purposes.” Ms. Estrada testified that BTU’ s property was formerly plotted on the tax 14 assessor’s map as encompassing both Tract 1 and Tract 2 for tax assessment purposes 15 and that Ortega’s property was plotted as th e parcel north of BTU. She also testified, 16 however, that the tax assessor’s office made an error when plotting Ortega’s property 17 and did not plot it as indicated by the surv ey, which is more accurate. Ms. Estrada 18 advised that Ortega’s property was plo tted correctly on the county assessor’s map in 1913 2001 and that she was unsure as to how many years prior to that the map was wrong. 1 {21} Ms. Estrada’s testimony and the exhibit of the old assessment map showing 2 BTU being assessed for Tract 2 does not provi de a conflict in the evidence regarding 3 what taxes BTU actually paid. There was no evidence in the record that BTU ever 4 even saw the map. Even if it had, the erroneous map is not evidence of what was 5 actually assessed nor is it a record of paymen t of taxes on Tract 2. Again, the actual 6 tax assessments to and payments madeby BTU only covered 19.08 acres. Even 7 BTU’s principal conceded in his testimony that it appears BTU was only paying taxes 8 on 19.08 acres, but he had always (erroneously) assumed that 19.08 acres included all 9 of the land between the railroad tracks and the highway right-of-way to include Tract 10 2. The district court’s finding that BT U paid taxes on Tract 2 is therefore not 11 supported by substantial evidence. 12 {22} Despite its inability to show any actual payments of taxes on Tract 2, BTU 13 appears to rely on its good faith payment of all taxes assessed by the San Miguel 14 County tax assessor as satisfaction of th e payment of taxes element of adverse 15 possession. BTU asserts that “[w]here BTU occupied and used the lands in question, 16 and paid the taxes as billed by the authoritie s, the presumption must arise that the 17 payment of taxes requirement [in the adverse possession statute] was met.” Whether 18 the erroneous belief that tax payments cover a disputed parcel of property is sufficient 1914 to satisfy the payment of taxes element is a legal question, wh ich we review de novo. 1 See In re Estate of Duran , 2003-NMSC-008, ¶ 21. 2 {23} BTU urges this Court to apply the same rationale regarding a good faith 3 payment of taxes utilized by our Supreme Court in Pratt v. Parker , 1953-NMSC-005, 4 57 N.M. 103, 255 P.2d 311. Wedecline to do so. Pratt involved plaintiffs who had 5 paid the taxes they were b illed, believing that the paymen ts covered the taxes for the 6 property they owned. Id. ¶ 8. However, the tax ro ll erroneously described their 7 property, thus they were actually paying the taxes on the descri bed property, which 8 was not owned by them. Id. ¶¶ 4, 8. The Court agreed with the plaintiffs’ contention 9 that since they had paid taxes on what was assessed “in good faith” and “thinking and 10 intending” the payment to cover the property they owned, the payments constituted 11 a good defense against a tax sale. Id. ¶ 8. The tax assessor’s mistake in Pratt could 12 have potentially caused the plaintiffs to loseproperty they actually owned despite their 13 good faith tax payments. Whereas, here, BTU attempts to use its good faith tax 14 payments on property it owned as grounds to gain title to property it does not own and 15 for which it paid no taxes. The rationale utilized in Pratt is not applicable under such 16 circumstances. BTU’s failure to pay taxes on Tract 2 is fatal to its claim for adverse 17 possession over Tract 2. See Platt v. Martinez , 1977-NMSC-026, ¶ 4, 90 N.M. 323, 18 563 P.2d 586 (refusing to consider whether the defendant met any of the other 1915 elements of adverse possession since ther e was no evidence that the defendant had 1 paid taxes on any more land than what was covered by his deed). 2 CONCLUSION 3 {24} We affirm the district court’s decisi on regarding Tract 1. We reverse the 4 district court’s decision regarding Tract 2 and remand to the district court to resolve 5 BTU’s remaining claim for a private easement by prescription over Tract 2. 6 {25} IT IS SO ORDERED

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_____________________________ 8 MICHAEL E. VIGIL, Judge 9 WE CONCUR: 10

___________________________________ 11 RODERICK T. KENNEDY, Chief Judge 12

_________________________________ 13 JONATHAN B. SUTIN, Judge 14