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Certiorari Denied, January 27, 2017, No. S-1-SC-36236

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-025

Filing Date: November 29, 2016

Docket No. 34,465

CECILIA TAFOYA and

CHARLES TAFOYA,

Plaintiffs-Appellants,

v.

PAMELA MORRISON and

LEON MORRISON,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Raymond Z. Ortiz, District Judge

Law Office of Jane B. Yohalem

Jane B. Yohalem

Santa Fe, NM

for Appellants

Moses, Dunn, Farmer & Tuthill, P.C.

Joseph L. Werntz

Albuquerque, NM

for Appellees

OPINION

SUTIN, Judge.

{1} Cecilia Tafoya and Charles Tafoya (the Tafoyas) appeal the district court’s grant of

summary judgment against their claims to an easement along a driveway established by

Cecilia’s father, Alex J. Armijo (the father), for access to the father’s lot when the father split
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The Morrisons also succeeded to ownership of two tracts of land, A and B, that

adjoin Lot 1. For ease and clarity, we refer to all of the Morrisons’ land as “Lot 1.”

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his property into two lots, kept the rear lot, and transferred the lot abutting the public street

to Cecilia. The district court’s rulings favored Pamela and Leon Morrison (the Morrisons),

who had succeeded to ownership of the rear lot.1

{2} A less than pleasant history of family battles in connection with the easement and the

properties in general, up to at least January 2004, is contained in Redman-Tafoya v. Armijo,

2006-NMCA-011, 138 N.M. 836, 126 P.3d 1200. The battle continued after Armijo. Before

us now is the rest of the story.

{3} The district court’s grant of summary judgment against the Tafoyas’ claims stems

largely from its conclusion that most of the Tafoyas’ easement claims had previously been

and were finally litigated as part of an inheritance revocation case (the revocation

proceeding), which will be discussed later, and thus those claims were barred. Additionally,

the district court granted summary judgment in favor of the Morrisons on the Tafoyas’ claim

to a prescriptive easement as being without merit. Specifically on appeal, the Tafoyas argue

that (1) res judicata does not bar them from claiming a driveway easement over the

Morrisons’ land, (2) collateral estoppel does not bar their claim for a driveway easement

over the Morrisons’ land, (3) they did not have a full and fair opportunity to litigate their

claim to an easement in the revocation proceeding, and (4) there is no basis in the law of

either res judicata or collateral estoppel to bar the Tafoyas’ prescriptive easement and

easement by necessity claims against the Morrisons.

{4} We hold that the Tafoyas’ claims for an express easement, implied easement, and

easement by necessity were properly precluded under the doctrine of res judicata. We also

hold that the district court properly granted summary judgment on the Tafoyas’ prescriptive

easement claim.

BACKGROUND

{5} The father owned property south of a public road, Camino de Las Animas, in Santa

Fe, New Mexico. On August 13, 1993, the father recorded a Family Transfer Lot Split plat

(the plat) showing a split of his property into Lot 1, which he retained, and Lot 2, which he

specifically designated as being for “Cecilia Armijo-Redman.” Lot 2 is situated north of Lot

1 and south of Camino de Las Animas. The plat shows Lot 1 situated south of Lot 2,

including a 15-foot driveway that ran west of Lot 2, connecting Lot 1 to Camino de Las

Animas. In the plat, Lot 2 is shown subject to a 5-foot strip of land just east of the driveway

running from Camino de Las Animas to Lot 1, making the driveway functionally 20 feet

wide. In fact, the plat actually indicates the father’s reservation of these two land strips as

a “20' private ingress/egress and utility easement” running in part across Lot 2, all to serve

his Lot 1. In connection with the plat, on August 18, 1993, the father recorded a family
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transfer affidavit (the affidavit), affirming his desire to “convey or have conveyed” Lot 2 to

Cecilia. In 1994, after the plat and affidavit were recorded, Cecilia built her house on Lot 2.

Id. ¶ 4. It appears that the father was highly involved in the construction of Cecilia’s house,

and the contractor who built the house followed the father’s instructions as to where the

house was to be placed. See id.

{6} In 1995 the father executed a will. The father’s will provided that “the [p]ersonal

[r]epresentative shall immediately take such action as may be necessary to sell my personal

residence and the land . . . and proceeds received after payment of all expenses of sale be

divided equally amongst my children.” The will also provided that

[i]t is my express desire that the equal distribution of my proceeds of my

Estate shall be done without conflict amongst my children and to [e]nsure

that this occurs I decree that the land upon which [Cecilia] has built her home

is her sole and separate property and shall not be considered for purposes of

determining her equal share of the proceeds of my estate.

Id. ¶ 5.

{7} The father passed away in 1997, upon which Cecilia’s brother, Anthony I. Armijo,

was appointed personal representative of the father’s estate (the estate) in a Santa Fe County

District Court probate proceeding titled In the Matter of the Estate of Alex J. Armijo, D-101-

PB-97-00152. Redman-Tafoya, 2006-NMCA-011, ¶¶ 4, 6. In this Opinion, we refer to

Anthony, in his capacity as personal representative of and acting for the estate, as “Armijo.”

Armijo began attempts to sell Lot 1, and it was discovered that Cecilia’s house and a stucco

wall encroached into Lot 1’s 5-foot easement some 8 inches. Id. ¶¶ 4, 8. The encroachments

were not noted on the plat, and a variance was not obtained by either Cecilia or the father

at the time the encroachments were constructed. As pointed out in Redman-Tafoya, the house

and wall encroachments and a chain link fence that had been constructed at the division

between the 5-foot strip and the 15-foot strip became bones of contention between Cecilia

and Armijo. Id. ¶¶ 4, 8-16.

{8} In November 1998, through Armijo, the estate as grantor formally deeded Lot 2 to

Cecilia as grantee by a recorded personal representative’s deed that reserved the 20-foot

easement for ingress and egress for the benefit of Lot 1. The deed, however, expressly stated

that the estate does “not approve of, or acquiesce in, the encroachments by [g]rantee and her

improvements onto the above-described easement, and requests that the encroachments be

removed.”

{9} In January and July 1999, prospective purchasers made offers to purchase Lot 1 but

faced requirements by the City of Santa Fe (the City) of a 20-foot-wide driveway to Lot 1,

the removal of part or all of the chain link fence for fire equipment access, and possible

removal of a portion of the house and wall encroachments before issuance of any building

permit for development of Lot 1. Id. ¶¶ 10-11. In August 1999, Armijo tendered another
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personal representative’s deed for Lot 2 to Cecilia. Id. ¶ 12. This deed stated that if Cecilia

did not remove the chain link fence, her property would revert to the estate. Id. In November

1999, Cecilia “took the position . . . that for safety reasons she would not remove the chain

link fence.” Id.

{10} After failing to resolve the encroachment and access issues, in November 1999,

Armijo filed a quiet title complaint (Armijo’s quiet title action) against Cecilia in regard to

the easement and, in part, attempting to force the removal of Cecilia’s chain link fence and

the encroaching part of Cecilia’s residence. Id. ¶ 14. Cecilia responded with claims seeking,

among other relief, to disinherit her brother, Anthony, and a sister.

{11} In June 2000, a purchase contract involving the residence on Lot 1 was terminated

because of an impasse between the City and Cecilia based on the chain link fence and other

encroachment issues. Id. ¶ 15. In September 2000, the City began to relent, admitting that

the fire department had discretion to permit an easement of less than 20 feet and further

indicating that this could be implemented provided, among other things, that “the access

through Lot 2 [was] improved to make the width wider, suggesting removal of [40] feet of

the chain link fence[.]” Id. ¶ 16 (internal quotation marks omitted). Cecilia again declined

to alter the encroachments. Id. After months of informal discussions, in mid to late 2001, the

City eventually modified its position further and indicated that it would allow a 15-foot

driveway easement. Id. ¶¶ 17-18. Armijo proceeded to seek a variance from the City that

would allow the driveway to be only 15 feet and that would allow Cecilia to retain her

residence, stucco wall, and the chain link fence as they existed. Id. ¶ 18. Cecilia concurred

in Armijo’s application for a variance, and a new offer was made to purchase the residence

on Lot 1, the offer was accepted, and due diligence began. Id. ¶¶ 18-19. The City approved

the variance in December 2001, and when Cecilia refused to sign off on the variance even

though it reflected the elimination of the 5-foot easement across her property, the City

nevertheless proceeded to record the variance with Armijo’s signature and without Cecilia’s

signature. Id. ¶ 20. According to Cecilia, she did not sign the variance plat because “[s]he

wanted the [variance] to show the easement for ingress and egress she claimed was implied

from [the plat] documents and the City’s imposition of a requirement for a second off-street

parking space at the rear of the Tafoya lot.”

{12} Afterwards, in November 2002, while Armijo’s quiet title action was in its final

stages of trial, “Armijo executed a quitclaim deed . . . to [Cecilia] for all of Lot 2 without any

reservations or restrictions with respect to the encroachments or the [e]asement[,]” which

included the 5-foot easement through Lot 2. Id. ¶¶ 3, 22. Armijo’s quiet title action resulted

in a judgment filed in January 2003 determining that issues regarding the 5-foot easement

across Cecilia’s property were moot by the recording of the variance plat that abandoned that

easement and by Armijo’s quitclaim deed to Cecilia of Lot 2. Id. ¶ 22. Of note is that in the

midst of Armijo’s quiet title action, in December 2001, Armijo sold Lot 1 and the residence

on Lot 1 to the Morrisons. See id. ¶ 20.

{13} To exacerbate instead of calm the conflict between Cecilia and Armijo, on November
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21, 2002, days before he executed the quitclaim deed as to Lot 2 to Cecilia that contained

no restrictions, Armijo filed a motion in the probate proceeding to revoke Cecilia’s

inheritance (the revocation proceeding), grounding the motion in actions and conduct of

Cecilia alleged by Armijo to be in violation of the no-contest clause in the father’s will. Id.

¶ 23. In response, Cecilia filed a motion for summary judgment on the motion to revoke

inheritance. Her motion set out undisputed facts based on her own affidavit and the affidavits

of Lidia Garza Morales, a former assistant City attorney, and David Pike, the contractor who

built Cecilia’s home. The Pike affidavit explained in detail the circumstances surrounding

the construction of Cecilia’s residence, and the Morales affidavit explained in detail the

circumstances surrounding the variance proceedings. Cecilia’s motion concentrated on

showing, in opposition to the revocation motion, that her actions were taken with probable

cause and that Armijo’s allegations did not show that she contested or attacked the will.

{14} A substantial part of the revocation proceeding involved Cecilia’s defense against

allegations that her conduct violated the no-contest provision, part of which consisted of the

history of Cecilia’s claimed easement need and entitlement to reach the rear of her property

for access to her house and for parking. She concluded her motion and memorandum stating

that she had “demonstrated on undisputed facts that she acted with probable cause

throughout the dispute initiated by her brother[.]” And she added that “she had the testator’s

permission for any encroachment; . . . [Armijo] made absolutely no pre-filing investigation;

and . . . she prevailed.”

{15} Among her arguments, Cecilia stated:

All of [Armijo’s] allegations boil down to one thing: Cecilia’s defense of her

property rights in opposition to litigation initiated by [Armijo], seeking to

quiet title to five feet of a driveway easement created when the testator gave

her a lot on which she built her home, which structure was sited at the

testator’s request and direction within the driveway easement created by the

lot split plat. The apparent reason: If the testator’s explicit desire that his

transfer of the lot to his daughter without further dispute could be overridden

by intimidation, then the testator’s remaining adjacent property could be

intensively developed, and thus generate more money for the other heirs.

(Emphasis omitted.) She further stated that “[Armijo’s] contentions boil down to a complaint

that he was unable to market the property for a more dense development because his sister

insisted that the driveway not be widened at the expense of taking down part of her

house—an unlikely judicial result in any event[.]”

{16} In an affidavit in support of her motion, Cecilia set out the history of the lot split and

the construction of her residence on Lot 2, including a plethora of facts about the variance

process, as well as the attempts by Armijo and his real estate agent, Roman Maes, to get her

to sign documents regarding the 20-foot easement and the encroachments or her lot would

revert to the estate. As to the quiet title action, Cecilia believed that she was defending her
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property rights and not attacking provisions of the will. In Cecilia’s affidavit, she also

discussed her ability to access the rear of her lot up until that point, her need for a second

off-street parking space, and her desire for a driveway easement.

{17} At a hearing during the revocation proceeding, Armijo’s counsel indicated that

Armijo wanted the easement issues addressed by the court. He stated:

Finally, Judge, there is a separate issue, and I would like to raise this

issue with you because I think that it is the opening wedge for the next series

of lawsuits and objections, and I would like to just deal with it right now.

This lady is saying that she has an easement along this driveway to enter into

her property right over here at the southwest corner of her property. And she

now says that that’s . . . one of her statements.

Now, the problem is, the Morrisons own this property. The estate has

already sold this property. There was—the Planning Commission agreed to

the 15 feet. . . . 

She says that she has an easement. The truth is—and, frankly, Judge,

what I’m asking you is this: Let’s just bite this off and decide it today,

because what’s going to happen is she’s going to sue the Morrisons. The

Morrisons are going to bring us in. We’re going to have to incur additional

attorney[] fees from the estate, and they have an absolutely meritless claim

for this easement, and I think it ought to get decided right now. 

Following these comments, counsel for Armijo explained why Cecilia had no express or

implied easement. He concluded with the hope that the district court would find the facts

relating to Cecilia’s conduct, including her conduct relating to the easement questions “to

be true and that you will, once and for all, rein in this lady who has run amuck through this

[e]state.”

{18} In his opening remarks, Cecilia’s counsel congratulated Armijo’s counsel “on what

is, quite possibly, the most egregiously[]overstated version of this case or any case that I’ve

heard in recent memory” and proceeded to explain the facts related to the easement issue

differently. In regard to an easement right under Hughes v. Lippincott, 1952-NMSC-060, 56

N.M. 473, 245 P.2d 390, Cecilia’s counsel stated, “It is crystal clear, as a matter of law, that

[Cecilia] has that easement.” And counsel then stated, “I concur with [Armijo’s counsel’s]

suggestion that we determine that issue here [and] now. I think we should.”

{19} Later, however, during the trial, Cecilia’s counsel stated:

Your honor, both [Armijo’s counsel] and myself, in our opening argument,

stated our desire to have her access to that second off-street parking decided

in this [c]ourt. I have to change my position on that, I don’t believe this
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[c]ourt can decide that issue without the Morrisons here. They’re necessary

parties now because it affects their property now. Anything the [c]ourt

decided is not going to be binding on [them].

To which Armijo’s counsel replied,

I’m going to object to that. He just elicited testimony from his witness on this

very issue. And now that the testimony has come in that there clearly has

been no grant of easement, he now wants to change his mind and have this

tried in another forum. Our intent here is to get this issue decided, because

we’re afraid that this lady is going to go after the Morrisons on that issue.

To which Cecilia’s counsel responded,

I don’t mind being bound by my original agreement, Your Honor, but the fact

of the matter is the Morrisons cannot be. If the Morrisons cannot be bound,

it serves no purpose. They’re necessary parties. The purpose of this

testimony is to illustrate [Cecilia’s] reasons for refusing to sign the plat.

She’s been accused of hampering the sale of the property in every way that

[Armijo] can imagine and testify to. This is the explanation for that.

{20} The district court weighed in:

Well, I will attempt to resolve this issue. If I resolve it in a way that’s

going to affect the Morrisons[,] then that will be subject to their coming into

court and challenging the [c]ourt’s ruling. If I find they’re entitled to it,

they’re going to then have a claim against the estate, also, because they’re

going to say the estate sold them that piece, but if I find that she’s not entitled

to it, then it doesn’t affect the Morrisons at all. If I’m going to rule in your

favor, I think you’re correct, the Morrisons have a right to be heard on it, and

it will result in the Morrisons probably having some kind of a claim against

the estate. Maybe everybody gets disinherited because we use up all the

money in litigation in that event.

The matter closed with Cecilia’s counsel stating, “On that point, Your Honor, I’ll be happy

to address that in our respective closing trial briefs.”

{21} In Cecilia’s post-trial brief, her counsel argued that Cecilia had an access easement

to her second off-street parking space. Among other arguments was this statement:

[T]he evidence established both an existing use at the time of the severance

of ownership by the family lot split plat, and a necessity for the second off[-

]street parking space. The conveyance also overlapped the lot line into a 20'

driveway easement as shown on that plat. The driveway, in effect, was the
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boundary, and the land was “bounded upon a way.”

{22} In the revocation proceeding, the district court granted Armijo’s motion to revoke

Cecilia’s inheritance. Redman-Tafoya, 2006-NMCA-011, ¶ 28. The district court filed a

decision in January 2004 containing findings of fact and conclusions of law that reached into

the historical feud regarding Cecilia’s asserted easement rights. The court’s decision detailed

the historical facts relating to the property issues and prior legal proceedings and concluded

that the plat and affidavit “did not convey any interest in any off[-]street parking space or

an easement thereto in [Cecilia]” and that the 20-foot easement “was solely for ingress,

egress[,] and utility to benefit . . . Lot 1 . . . and was not for the benefit of . . . Lot 2.” The

district court entered a final judgment in March 2004 granting Armijo’s motion to revoke

Cecilia’ inheritance pursuant to the no-contest clause of the father’s will and denying

Cecilia’s motion for summary judgment. The judgment stated that “[Cecilia] does not have

any interest in any off[-]street parking space or an easement over [Lot 1.]”

{23} Cecilia appealed the district court’s revocation judgment, basing her arguments on

court error in revoking her inheritance. Id. ¶¶ 1, 45-69. This Court reversed that judgment.

Id. ¶ 70. Employing a standard of strict, narrow construction to the “relatively general nocontest clause” in the will, it was determined in Redman-Tafoya that none of Cecilia’s

conduct or actions could constitute a contest or attach under the will. Id. ¶¶ 64, 69. Cecilia

did not appeal the district court’s findings of fact or conclusions of law regarding the second

off-street parking space or the denial of her claim to a driveway easement.

{24} Within a month after Redman-Tafoya reversed the district court’s revocation of

Cecilia’s inheritance, in January 2006, Armijo, individually and as personal representative

of the estate, Cecilia, and one of their sisters entered into a comprehensive settlement

agreement and mutual release of all claims that were previously brought or that could be

brought against each other. At the same time, these parties filed a stipulation of dismissal

with prejudice of all claims that were brought or could have been brought in the 1999 quiet

title action filed by Armijo (Cause No. D-0101-CV-99-02774), the revocation proceeding

(Cause No. D-0101-PB-97-00152), and the appeal decided in Redman-Tafoya, 2006-NMCA011, relating to the father’s will and estate. The Morrisons, who were the grantees of Lot 1

in 2001, were not parties to any of the legal proceedings between Cecilia and Armijo, to the

settlement agreement and mutual release, or to the stipulation of dismissal.

{25} In May 2011, the Tafoyas filed the lawsuit now in this Court against the Morrisons

to quiet title and for injunctive and declaratory relief against the Morrisons’ efforts to block

the Tafoyas’ access over the 15-foot driveway to reach the rear of the Tafoyas’ property. The

Tafoyas claimed “either an express or implied easement of access along the driveway” as

evidenced by the plat and/or a notarized document from the father granting Cecilia an
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 This notarized document was not offered into evidence during the revocation

proceeding, despite its existence at that time. The Tafoyas argue that the notarized document

was not offered into evidence because the grant was not recorded and Cecilia did not have

the original, and thus she was instructed by counsel to testify that she had no writing

regarding her use of the roadway.

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easement.2

 They also claimed an easement by reasonable necessity or, in the alternative, an

easement by prescription. The Morrisons moved for summary judgment in February 2012

based on the doctrines of res judicata, collateral estoppel, and settlement and release. In

response to the Morrisons’ motion, the Tafoyas argued that neither res judicata nor collateral

estoppel should apply and insisted that the settlement agreement was signed under duress.

In seeking to refute the Morrisons’ res judicata argument, the Tafoyas pointed out that

during the revocation proceeding no “serious effort [was] made before or after the trial to

brief the court on express, implied[,] or prescriptive easements and how the specific facts of

the Tafoya[s’] usage applied to each theory.”

{26} In an order and judgment entered in July 2012, the district court granted the

Morrisons’ summary judgment motion and dismissed with prejudice the Tafoyas’ claims of

express and implied easements, as well as their claim to an off-street parking space at the

rear of Lot 2. The district court dismissed the Tafoyas’ prescriptive easement claim without

prejudice. The judgment recited that the claims of express and implied easements with

respect to the off-street parking space, and all further attempts to again assert such claims,

were “forever barred under the doctrine of res judicata.” The court explained that these

claims “were tried, adjudicated to a final decision on the merits, and denied” in the earlier

revocation proceeding. With respect to the Tafoyas’ claim of prescriptive easement, the court

explained that “no [10-]year period has yet lapsed since the date on which final judgment

in the [revocation proceeding] was entered.”

{27} Soon after, in August 2012, the Tafoyas moved for reconsideration, asking the

district court to reconsider its grant of summary judgment in the Morrisons’ favor with

respect to the implied and prescriptive easement claims. The court denied the motion for

reconsideration in a February 2013 order that stated (1) “[the Tafoyas’] claims of implied

easement and entitlement to a second off[-]street parking space at the rear of their lot were

raised, tried[,] and denied in [the revocation proceeding,]” and (2) that “[b]ecause the

predicate finding for an easement by necessity is that [the Tafoyas] are entitled to a second

off[-]street parking space at the rear of their lot, [the Tafoyas’] claim for an easement by

necessity in this action is also barred because the claim to a second off[-]street parking space

was tried and denied in the [revocation proceeding].” In addition, the court amended its July

2012 summary judgment, stating that “[the Tafoyas’ m]otion for [r]econsideration is denied,

except that the [s]ummary [j]udgment entered July 26, 2012[,] is hereby amended to include

this [c]ourt’s ruling on the [m]otion for [r]econsideration that [the Tafoyas’] claim of an

easement by necessity is also dismissed with prejudice.”
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{28} In December 2014, again basing its rulings on the revocation proceeding

determinations relating to the Tafoyas’ claimed easement rights, the district court granted

summary judgment favoring the Morrisons on a motion for summary judgment on a

counterclaim the Morrisons had filed in the action seeking a quiet title decree. During the

hearing on the Morrisons’ motion for summary judgment on their counterclaim, the district

court considered, for the first time, the merits of the Tafoyas’ prescriptive easement claim.

The court held that no clear and convincing evidence was established to support the claim

and that there had not been and could not be adverse use against a claim of right for 10 years.

The court determined that adverse use began to run after the district court issued its decision

in the revocation proceeding in March 2004 and was cut off when the Morrisons installed

a fence preventing access in September 2013. In this summary judgment on the Morrisons’

quiet title counterclaim, the court stated:

2. The Tafoyas have no easement of any kind or nature,

including, but not limited to, an easement by express grant, an easement by

necessity, an implied easement or a prescriptive easement, over or across the

real property owned by the Morrisons in the City and County of Santa Fe,

New Mexico known as Lot 1[.] . . .

3. The Tafoyas have no right, title[,] or interest of any kind in or

to the Morrison Property, and the Tafoyas, and each of them, and their

successors and assigns, are forever barred and forever estopped from having

or claiming any right, title[,] or interest in or to or any claim to or upon the

Morrison Property, or any part thereof, adverse to the Morrisons, including,

but not limited to, any claims to an easement of any kind over or across the

Morrison Property.

4. The Tafoyas do not have an off-street parking space at the rear

of the real property owned by the Tafoyas known as Lot 2[.] . . .

5. The Tafoyas shall not, directly or indirectly, enter upon, or

cross, or attempt to enter upon or cross, the Morrison Property, and the

Tafoyas shall not deposit, place, locate or affix any substance, material,

object[,] or thing of any kind upon the Morrison Property.

6. The Tafoyas shall not assert, claim, argue[,] or allege in any

legal or administrative proceeding of any kind, including but not limited to,

any lawsuit, administrative proceeding[,] or administrative appeal, that they

have or claim an easement over the Morrison Property or that they claim or

are entitled to enter upon or cross the Morrison Property in order to get to an

alleged second off-street parking space at the rear of the Tafoya Property. .

. .

The court’s summary judgment was preceded by a considerable amount of argument in
3

 The Tafoyas and the Morrisons address collateral estoppel in their appellate briefs,

although the district court based its July 2012 order and judgment solely on res judicata.

None of the orders and judgments from which the Tafoyas appeal expressly indicates that

the dismissals or grants of summary judgment were based on the doctrine of collateral

estoppel. Although the district court’s December 2014 grant of summary judgment quieting

title in the Morrisons stated that the Tafoyas were “forever estopped[,]” nowhere in any of

the court’s dispositive orders and judgments did the court enter findings of undisputed facts,

conclusions, or any other type of determination showing that the elements of collateral

estoppel were established. Because we affirm on res judicata grounds and because collateral

estoppel was not relied upon by the court, we do not evaluate the collateral estoppel

arguments. 

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opposition to and in support of summary judgment.

{29} The Tafoyas appeal the district court’s July 2012 order and judgment, the February

2013 order, and the December 2014 order and judgment.

DISCUSSION

{30} The Tafoyas’ points on appeal are that neither res judicata nor collateral estoppel3

bars their express and implied easement claims and that no basis exists to bar their

prescriptive easement and easement by necessity claims. The Tafoyas ask this Court to

reverse the district court’s summary judgments barring those claims, to vacate the district

court’s grant of summary judgment quieting title in favor of the Morrisons, and to remand

for trial on the merits of the claims. Because we affirm the dismissal of the Tafoyas’ express

and implied easement claims, as well as the easement by reasonable necessity claim, based

on the doctrine of res judicata, we need not address the propriety or merits of the Tafoyas’

collateral estoppel or easement by necessity arguments. Additionally, because we affirm on

res judicata grounds, we need not fully address the Morrisons’ assertions that the Tafoyas

are barred from claiming an easement based on the doctrine of law of the case or on the

settlement agreement and mutual release.

I. Standards of Review

{31} “Summary judgment is appropriate in the absence of any genuine issues of material

fact and where the movant is entitled to judgment as a matter of law.” Zamora v. St. Vincent

Hosp., 2014-NMSC-035, ¶ 9, 335 P.3d 1243; see Rule 1-056(C) NMRA. We review orders

granting summary judgment de novo. See Potter v. Pierce, 2015-NMSC-002, ¶ 8, 342 P.3d

54. Similarly, the standard of review for res judicata, also known as claim preclusion, is de

novo. Kirby v. Guardian Life Ins. Co. of Am., 2010-NMSC-014, ¶¶ 59, 61, 148 N.M. 106,

231 P.3d 87.

II. Res Judicata
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{32} “Res judicata [or claim preclusion] is a judicially created doctrine designed to

promote efficiency and finality by giving a litigant only one full and fair opportunity to

litigate a claim and by precluding any later claim that could have, and should have, been

brought as part of the earlier proceeding.” Potter, 2015-NMSC-002, ¶ 1. “A party’s full and

fair opportunity to litigate is the essence of res judicata.” Id. ¶ 15 (alteration, internal

quotation marks, and citation omitted). “ ‘The party asserting [res judicata] must satisfy the

following four requirements: (1) the parties must be the same [or in privity], (2) the cause

of action must be the same, (3) there must have been a final decision in the first suit, and (4)

the first decision must have been on the merits.’ ” Tunis v. Country Club Estates

Homeowners Ass’n, 2014-NMCA-025, ¶ 20, 318 P.3d 713 (quoting Kirby, 2010-NMSC-014,

¶ 61); see Deflon v. Sawyers, 2006-NMSC-025, ¶ 3, 139 N.M. 637, 137 P.3d 577 (stating as

the first element of res judicata that “the parties must be the same or in privity” (internal

quotation marks and citation omitted)). “The purpose of our application of res judicata is to

protect individuals from multiple lawsuits, to promote judicial economy, and to minimize

the possibility of inconsistent judgments.” Moffat v. Branch, 2002-NMCA-067, ¶ 14, 132

N.M. 412, 49 P.3d 673. “[N]either the type of proceeding nor the damages sought are

determinative” when evaluating the fundamental question of the fairness of preclusion under

the totality of circumstances in each case. Potter, 2015-NMSC-002, ¶ 16.

{33} The Tafoyas contend that res judicata does not bar their right of access over the

Morrisons’ land in the present action. Their first argument under the contention is that the

Morrisons were not in privity with the estate at the time the revocation proceeding was

commenced. Their second argument is that the causes of action in the present case are not

the same as the causes of action in the revocation proceeding. We address each argument in

turn.

A. Privity

{34} In arguing that the Morrisons failed to prove privity of the parties, the Tafoyas

acknowledge that the general principle is that parties are in privity when they have a

successive relationship to the same rights of property. However, the Tafoyas also argue that

this principle applies only when the claim alleged to be subject to res judicata is commenced

while the predecessor in interest, here the estate, owns the property. The Tafoyas argue that

the identity of interests under that general principle is not applicable when, as here, the

property is transferred to a new owner, i.e., the Morrisons, before the proceeding is

commenced by the grantor, i.e., the estate. Thus, the Tafoyas conclude that once the transfer

of interest in the land to the Morrisons occurred and the estate no longer held an interest in

the land, the estate could not be considered to be in privity with the new owner and would

not be a proper party to litigate the issues affecting the land.

{35} The Morrisons acknowledge that the Tafoyas “correctly note[] that privity of estate

ends once title to the land is transferred[,]” but contend that “privity of contract remains

between the grantor and grantee based on the present covenants contained in the warranty

deed” transferring Lot 1 to the Morrisons. The Morrisons continue, arguing that “[t]he
13

Morrisons and the [e]state had the same interest in seeing that those claims were

defeated—the Morrisons because they bargained for a conveyance free of encumbrances and

the [e]state because it warranted that Lot 1 was free of encumbrances.”

{36} The Tafoyas spurn the Morrisons’ privity argument made in the district court that

was based on a theory that the estate was in privity because it had transferred the easement

by warranty deed. According to the Tafoyas, the warranty deed created nothing more than

an indemnity obligation of the estate, and an indemnitor cannot substitute itself for the later

property owner. For this proposition, the Tafoyas rely on Lopez v. Townsend, 1933-NMSC045, ¶¶ 31-32, 46, 37 N.M. 574, 25 P.2d 809 (Watson, C.J., on rehearing), as distinguishing

between an insurance company’s liability to pay a judgment, and its “liability to be sued.”

In the same regard, the Tafoyas argue that an indemnitor, the estate, is entitled to defend a

lawsuit only “as the designated representative of the landowner[, the Morrisons], and it can

attain that status only with notice to the landowner of the lawsuit and the landowner’s

express consent”—that is, “[w]ithout the consent of the [the Morrisons], [the estate] has no

authority to assume the conduct of the defense.”

{37} In support of their privity argument, the Tafoyas call upon a footnote in Bloom v.

Hendricks, 1991-NMSC-005, ¶ 9 n.2, 111 N.M. 250, 804 P.2d 1069, as indicating that a

predecessor in title is not in privity with the current landowner in the defense of a

prescriptive easement claim. Bloom involved an indemnitee’s right to sue and pursue a claim

against an indemnitor for attorney fees and costs in defending claims relating to a boundary

dispute which, tangentially, also involved a prescriptive easement. Id. ¶¶ 9-10, 20, 23-24.

In the footnote relied upon by the Tafoyas, the Court in Bloom stated:

See Silva v. State, 106 N.M. 472, 745 P.2d 380 (1987) (res judicata, or

“claim preclusion,” depends upon identity of parties or privies, id. at 474,

745 P.2d at 382, and offensive collateral estoppel, or “issue preclusion,”

requires that the defendant against whom estoppel is asserted has previously

litigated an issue unsuccessfully, id. at 476, 745 P.2d at 384). The

[defendants], as predecessors in title, were not in privity with the [plaintiffs]

in the latter’s defense of the prescriptive easement claim in Lane v. Bloom.

1 A.C. Freeman, A Treatise on the Law of Judgments § 442 (1925).

Bloom, 1991-NMSC-005, ¶ 9 n.2.

{38} In further discussion of lack of consent by the Morrisons, the Tafoyas state that the

record contains no evidence establishing that the estate’s resolution of the easement claims

was on the Morrisons’ behalf and that the estate’s counsel even indicated that “the [e]state

was pursuing the claims solely on its own behalf in order to avoid a subsequent indemnity

claim.” Further, the Tafoyas argue that the interests of the estate as indemnitor and those of

the Morrisons were in conflict, in that “[i]t was in the [e]state’s interest that any easement

be prescriptive and therefore outside the warranty covenants.” In addition, the Tafoyas argue

that the estate and the Morrisons “have sued or been sued in two different legal capacities:
14

that of owner of the property and that of indemnitor of the owner on some of the easement

issues and not on others.” This, according to the Tafoyas, indicates that the “capacities and

the interests . . . each represent conflict in significant ways[,]” making res judicata

inappropriate.

{39} The Morrisons respond that (1) the intent of the privity requirement is satisfied

because Cecilia was a party to the revocation proceeding, and (2) privity was established

under a theory that pursuant to the warranty deed from the estate to the Morrisons, the estate

had a duty to defend easement claims against the land conveyed because “[a] grantor and its

immediate grantee have privity in contract[.]” They argue that privity of contract remains

between the grantor and grantee based on the present covenants contained in the warranty

deed.

{40} In the Morrisons’ view, “it was the identity of interests between the [e]state and [the]

Morrison[s] that caused the [e]state to proceed with the adjudication of [Cecilia’s] easement

claims in the [revocation proceeding].” They argue that there was no conflict in the position

between the Morrisons and the estate. Further, the Morrisons assert that Bloom is not

applicable authority since Bloom involved a prescriptive easement, and no prescriptive

easement claim was litigated in the revocation proceeding. In addition, according to the

Morrisons, the grantee in Bloom successfully defended the easement claim and then sought

reimbursement from remote grantors, the defendants, for litigation costs, and the defendants

were not parties to the lawsuit in which the easement claim was defeated.

{41} Still on Bloom, the Morrisons reason that unlike the defendants in Bloom, Cecilia was

a party in the revocation proceeding in which her easement claims were adjudicated, and

therefore, the Tafoyas are unable to escape the effect of the outcome, simply because Lot 1

had been transferred to the Morrisons at the time the decision was rendered. The Morrisons

further assert that Bloom is distinct from this case because summary judgment was granted

against the prescriptive easement claim pursuant to the Morrisons’ second motion for

summary judgment to quiet title because the Tafoyas failed to raise an issue of material fact

as to whether the claim could satisfy all elements of a prescriptive easement.

{42} In regard to the express and implied easement claims, the Morrisons argue that the

basis for the claims arose before the transfer to the Morrisons, and if the estate failed in its

defense of the claims, it stood in breach of the warranty covenant against the encumbrances.

With no citation to the record, the Morrisons represent that they “deferred to the [e]state and

[its] capable trial counsel to defend the easement claims.” They also assert that “[p]rivity in

res judicata exists if a non[-]party agrees to be bound by the determination of issues in an

action between others or is adequately represented by someone with the same interests who

was a party in the earlier suit[,]” citing N.M. Consolidated Construction LLC v. City Council

of the City of Santa Fe, 97 F. Supp. 3d 1287 (D.N.M. 2015). The Morrisons emphasize that

the United States Supreme Court recognizes six exceptions to the general rule against nonparty preclusion, including “when the non-party agrees to be bound by the determination of

issues in an action between others” or “was adequately represented by someone with the
15

same interests[.]” Id. at 1307 (internal quotation marks and citations omitted).

{43} Finally, on privity, the Morrisons argue that the Tafoyas’ argument based on Bloom

that a predecessor in title is not in privity with a successor in title, as well as the Tafoyas’

argument based on Lopez relating to a grantor under a warranty deed being an indemnitor,

were not raised in the district court or docketing statement and therefore were not preserved.

{44} The Tafoyas’ argument that the estate and the Morrisons lacked privity for the sake

of res judicata is not compelling. As indicated by the Morrisons, “[d]etermining whether

parties are in privity for purposes of res judicata requires a case-by-case analysis.” Deflon,

2006-NMSC-025, ¶ 4. Our Supreme Court has looked favorably on the Tenth Circuit’s

definition of privity in St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1174 (10th

Cir. 1979), which held that “[p]rivity requires, at a minimum, a substantial identity between

the issues in controversy and showing that the parties in the two actions are really and

substantially in interest the same.” Deflon, 2006-NMSC-025, ¶ 4 (internal quotation marks

and citation omitted). Although admittedly parties are more clearly in privity when a

landowner obtains a judgment regarding a piece of property and then the property is sold to

a subsequent purchaser, i.e., when the parties have a “successive relationship to the same

rights of property[,]” id. (internal quotation marks and citation omitted), the definition of

“privity” does not necessarily need to be so rigid.

{45} Here, the Morrisons and the estate are substantially the same in interest. As indicated

in the Morrisons’ answer brief, the Morrisons and the estate had the same interest in seeing

that Cecilia’s easement claims were defeated—the Morrisons, because they bargained for

a conveyance free of encumbrances as evidenced by the warranty deed, and the estate,

because it warranted that Lot 1 was free of encumbrances. As indicated by the estate during

the revocation proceeding, there was real concern about Cecilia suing the Morrisons and the

Morrisons looking to the estate for recovery or for a defense. Thus, it was in both the estate’s

and the Morrisons’ interest to seek a ruling from the district court in the revocation

proceeding that Cecilia had no express or implied easement claims.

{46} Although the record does not show an express agreement between the Morrisons and

the estate regarding the estate’s request to the district court to resolve Cecilia’s easement

claims during the revocation proceeding, the case law cited by the Tafoyas stops short of

supporting their proposition that, in New Mexico, a grantor/indemnitor “can attain [the]

status [as designated representative of the landowner] only with notice to the landowner of

the lawsuit and the landowner’s express consent.” See Bloom, 1991-NMSC-005, ¶¶ 14, 18

(holding that, in the context of recovering costs from a grantor under a warranty covenant

for defending a title from an adverse claim, “[s]ome jurisdictions require more than mere

notice of the suit and require that the grantee make a specific request upon the grantor to

appear and defend” and citing Morgan v. Haley, 58 S.E. 564 (Va. 1907), for the proposition

that “without the assent of the grantee, the grantor has no authority to assume the conduct

of the defense”). The aforementioned authorities relied upon by the Tafoyas neither support

the Tafoyas’ broad proposition that notice and express consent are required for privity under
16

the doctrine of res judicata nor do they apply in this case where the parties are substantially

the same in interest. Where a party does not cite authority that supports an argument, we may

assume no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M.

764, 676 P.2d 1329. We will not consider propositions that are unsupported by citation to

authority. ITT Educ. Servs., Inc. v. N.M. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10,

125 N.M. 244, 959 P.2d 969.

{47} In short, because the test for determining privity is not as strict as the Tafoyas suggest

and because we are convinced that the interests of the estate and the Morrisons in resolving

the express and implied easement claims were substantially the same, we conclude that the

parties were in privity for res judicata purposes.

B. Same Cause of Action

{48} The Tafoyas’ second point against the application of res judicata is that res judicata

does not bar their claims against the Morrisons because the cause of action in the present

case is different from that in the revocation proceeding. The Tafoyas argue that the

requirements of the single-transaction rule that was adopted in the Restatement (Second) of

Judgments §§ 24-25 (Am. Law Inst. 1982), were not met. According to the Tafoyas, “[o]ur

courts look to whether the facts are closely entwined and whether the claims would

reasonably be brought in a single action.” In this regard, the Tafoyas argue that the district

court in the revocation proceeding recognized that it could not resolve the easement claims

without the Morrisons in court as a party and that the sole cause of action before the court

was whether Cecilia’s inheritance should be revoked. Thus, the Tafoyas contend that

“[Cecilia’s] claim that an express . . . or an implied easement from the City justified her

refusal to sign the [c]onsolidated [p]lat was a minor sub-issue at trial[,]” and further, “[t]he

bulk of the evidence concerned the [5]-foot encroachment of the Tafoyas’ house and fence

onto the Morrison’s driveway easement over the Tafoya[s’] land.” In the Tafoyas’ view,

“[t]he easement by necessity claim was not relevant in any way and no prescriptive easement

claim was even raised[,]” and “[i]t cannot be said that the motion to revoke an inheritance

and the claims to an easement over land owned by someone not a party to the action is part

of a single cause of action.”

{49} In response, the Morrisons assert that the causes of action were the same for the

purposes of res judicata because the easement claims raised during the revocation proceeding

and the easement claims raised in the present case arose “out of a common nucleus of

operative facts[.]” See Potter, 2015-NMSC-002, ¶ 11 (stating that “[t]he transactional

approach considers all issues arising out of a common nucleus of operative facts as a single

cause of action” (internal quotation marks and citation omitted)); Anaya v. City of

Albuquerque, 1996-NMCA-092, ¶ 8, 122 N.M. 326, 924 P.2d 735 (stating that “[t]he

transactional test requires us to go beyond any similarity in desired outcome and to examine

the operative facts underlying the claims made in the two lawsuits”). The Morrisons support

this approach based on the following circumstances set out in their answer brief that

evidence the overlap between the claims in the revocation proceeding and those in the
17

present case.

[During the revocation proceeding, Cecilia] provided discovery on her

easement claim. She filed a summary judgment motion that addressed the

easement issue. She consented through counsel to have the court decide the

issue. She submitted requested findings of fact, conclusions of law[,] and

closing argument on the easement issue. She elicited testimony from

witnesses at trial on the issue.

{50} We hold that, under the transactional approach, the easement claims in the revocation

proceeding and the easement claims presented in this case constitute “a single cause of

action for res judicata purposes.” Potter, 2015-NMSC-002, ¶ 11. As indicated in Potter,

“[t]he facts comprising the common nucleus should be identified pragmatically, considering

(1) how they are related in time, space, or origin[;] (2) whether, taken together, they form

a convenient trial unit[;] and (3) whether their treatment as a single unit conforms to the

parties’ expectations or business understanding or usage.” Id. (internal quotation marks and

citation omitted).

{51} The Tafoyas’ easement claims in the present case and Cecilia’s previous easement

claims, which she agreed to litigate in the revocation proceeding, are “rooted in a common

nucleus of operative facts.” Id. ¶ 14. First, the facts asserted in the revocation proceeding are

related to the facts regarding the easement claims in the present case. In the revocation

proceeding, Cecilia consistently asserted her claim to a second off-street parking space and

to an easement over the Morrisons’ driveway. Although her easement claims in the

revocation proceeding were vague, and we do not have the entire record from the revocation

proceeding, Cecilia did assert an easement right during the course of discovery, in her posttrial brief, and in her proposed findings of fact and conclusions of law. During the revocation

proceeding, she also asserted a “need” to use the driveway and argued that her father

provided her with an easement as evidenced by the plat. Cecilia’s arguments and the

evidence she used to support her claim to an easement in the revocation proceeding were

revived and expanded in the present case. In this case, the Tafoyas again asserted an

easement based on the plat and affidavit, which were available and presented in the

revocation proceeding. Although the Tafoyas provide additional evidence to support their

easement claim, i.e., a notarized document from the father expressly granting an easement,

that evidence was in Cecilia’s possession during the revocation proceeding, and she decided

not to present it.

{52} As in the revocation proceeding, the Tafoyas again assert the notion of necessity and

reference Cecilia’s claim to a second off-street parking space. Although we do not agree that

an easement by necessity claim was well developed in the revocation proceeding because

Cecilia simply asserted her need for the easement, as opposed to arguing the elements

required to prove an easement by necessity, the Tafoyas’ claim that they need the easement

to access the rear of their property in times of infirmity, for deliveries, for guests, etc. is

related to Cecilia’s prior assertion that she needed the easement to access the rear of her
18

property with her car. Moreover, given that the parties agreed to litigate the easement issues

in the revocation proceeding and given that there have been no apparent changes regarding

the claimed necessity since, Cecilia could have and should have clearly asserted her implied

easement by reasonable necessity claim in the revocation proceeding. According to Brooks

Trucking Co. v. Bull Rogers, Inc., 2006-NMCA-025, ¶ 20, 139 N.M. 99, 128 P.3d 1076,

“[i]n [New Mexico] cases that apply res judicata, when later-raised claims could have been

asserted in an earlier lawsuit, the operative facts underlying the newly asserted claims

existed at the time the claims in the first action were brought.” See Moffat v. Branch, 2005-

NMCA-103, ¶¶ 12-13, 138 N.M. 224, 118 P.3d 732; Apodaca v. AAA Gas Co., 2003-

NMCA-085, ¶ 82, 134 N.M. 77, 73 P.3d 215.

{53} That Cecilia changed her implied easement claim from implied by law or implied by

necessity, due to the City’s requirement for a second off-street parking spot, to implied by

necessity due to the Tafoyas’ need to access their home without having to climb stairs does

not alter our analysis because the facts upon which the Tafoyas rely have not changed. See

Anaya, 1996-NMCA-092, ¶ 8 (requiring consideration of “the operative facts underlying the

claims”). The Tafoyas offer no explanation as to why they were able to assert certain

easement claims in the revocation proceeding but were unable to assert the implied easement

by necessity claim they now make. In short, because the facts underlying Cecilia’s easement

claims in the revocation proceeding and the Tafoyas’ easement claims here were related, the

first prong under Potter is met. See 2015-NMSC-002, ¶ 11.

{54} We also hold that the second and third Potter prongs are met because the validity of

the easement claims were evaluated as part of the estate’s claim that Cecilia’s inheritance

should be revoked, and thus it was convenient for the court to consider the merits of the

easement claims during the revocation proceeding. See id. And it would have been

convenient for the court in the revocation proceeding to consider the modified claims that

were made by the Tafoyas in the present action. Further, Cecilia initially agreed on the

record that the court should consider the easement claims during the revocation proceeding,

thus making it nearly impossible for the Tafoyas to argue that the fact the court issued a

decision on the easement claims during the revocation proceeding did not conform to the

parties’ expectations. See id.

{55} The Tafoyas’ argument that Cecilia’s claim for an express or implied easement in the

revocation proceeding was a “minor sub-issue” and thus their current claims are different

from the prior claims is unavailing because, as previously stated, the parties agreed to

address the easement claims in the revocation proceeding head on. The parties litigated

Cecilia’s easement claims during the revocation proceeding. We hold that, under the

transactional test, the causes of action were the same, and it was proper for the district court

to apply res judicata. See id.

III. Full and Fair Opportunity

{56} Although related to res judicata , the Tafoyas separately argue that they did not have
19

a full and fair opportunity to litigate their claim to an easement in the revocation proceeding.

Whether the parties had a full and fair opportunity to litigate their issues is an overarching

concern in evaluating res judicata. See Armijo v. City of Española, 2016-NMCA-086, ¶ 13,

__ P.3d __ (“The essence of claim preclusion is the parties’ full and fair opportunity to

litigate the issues.”). Although the Tafoyas argue that their alleged lack of a full and fair

opportunity to litigate their claim implicates both res judicata and collateral estoppel,

because we affirm on the grounds of res judicata, we focus on the Tafoyas’ arguments

specific to res judicata.

{57} In support of their argument, the Tafoyas point to the district court’s musing as to its

authority to grant Cecilia an easement in the revocation proceeding when the Morrisons were

not parties to that action and further highlight the court’s position that it could only decide

the easement issues if it ruled against Cecilia. The Tafoyas argue that they did not have a full

and fair opportunity to litigate their easement claims because the estate raised those claims

at the commencement of the evidentiary hearing without prior notice that it intended to

litigate those issues. They also argue that “the interest in providing an opportunity for a

considered determination . . . outweighs the interest in avoiding the burden of relitigation[,]”

quoting the Restatement (Second) of Judgments § 27 cmt. h (Am. Law Inst. 1982).

{58} We disagree with the Tafoyas that they did not have a full and fair opportunity to

litigate their easement claims. During the revocation proceeding, the parties engaged in

discovery as to the easement claim, and Cecilia presented evidence and argument regarding

her claim to an easement. Cecilia’s counsel agreed that evaluating and ruling on those claims

would be beneficial. Her counsel’s attempt to back pedal occurred only after evidence had

been offered. That Cecilia was ultimately unsuccessful in her easement claims does not mean

that the Tafoyas did not have a full and fair opportunity to present their claims. See, e.g.,

Armijo, 2016-NMCA-086, ¶¶ 9, 13-15 (highlighting the requirement that the parties have

a full and fair opportunity to litigate the issues and holding that the plaintiff did have an

opportunity to assert his contract claims in the first action and was thus precluded from

subsequently asserting those claims). Because Cecilia was afforded an opportunity for a

considered determination in the revocation proceeding, the application of res judicata is

appropriate here.

IV. Prescriptive Easement

{59} The Tafoyas contend that, even if this Court were to conclude that res judicata

applies to some claims, there exists no basis for precluding the Tafoyas from litigating their

prescriptive easement and easement by necessity claims against the Morrisons. Because we

have already addressed the Tafoyas’ easement by necessity claim, we focus on their

prescriptive easement claim. As to the prescriptive easement claim, the Tafoyas argue that

res judicata does not apply because warranty covenants do not run as to an open and obvious

prescriptive easement, and thus, any claim of privity between the estate and the Morrisons

by way of the warranty deed does not apply to a prescriptive easement.
20

{60} “[A]n easement by prescription is created by adverse use of land, that is open or

notorious, and continued without effective interruption for the prescriptive period []of ten

years[].” Algermissen v. Sutin, 2003-NMSC-001, ¶ 10, 133 N.M. 50, 61 P.3d 176. “An

adverse use is a use made without the consent of the landowner[,]” id. ¶ 11, and when “a use

has its inception in permission, express or implied, it is stamped with such permissive

character and will continue as such until a distinct and positive assertion of a right hostile

to the owner is brought home to him by words or acts.” Id. ¶ 12 (emphasis, internal quotation

marks, and citation omitted).

{61} According to the Tafoyas, the district court erroneously granted summary judgment

on their prescriptive easement claim on the basis that the prescriptive period started against

the Morrisons when the judgment in the revocation proceeding was entered. As previously

indicated, the court determined that the prescriptive period began to run after the district

court issued its decision in the revocation proceeding in March 2004 and ended when the

Morrisons installed a fence preventing access in September 2013. The Tafoyas state that the

basis for the district court’s ruling as to when the 10-year statute of limitations was restarted

was that the Morrisons were in privity with the estate in the revocation proceeding and

therefore the revocation proceeding served as a quiet title action against the Morrisons. The

Tafoyas assert, of course, that the Morrisons were not in privity with the estate, they were

not a party to the settlement that followed, and the Morrisons’ title could not be quieted in

the revocation proceeding. Thus, according to the Tafoyas, the date of the judgment in the

revocation proceeding was irrelevant to the running of the prescriptive period. And, further,

the prescriptive easement claim was properly brought in the present case and the proper date

for the start of the prescriptive period must await trial, on remand, as to when the use became

adverse.

{62} The Morrisons agree that the revocation proceeding has no preclusive effect on the

Tafoyas’ prescriptive easement claim, which was not asserted or evaluated in the revocation

proceeding. However, the Morrisons argue that the Tafoyas’ claim fails because (1) it is

barred by the terms of the settlement agreement, or (2) the Tafoyas rightfully lost on that

claim before the district court. We begin by addressing the Morrisons’ argument that even

if preclusion did not apply, the prescriptive easement claim is barred by the settlement

agreement.

{63} The Morrisons contend that the Tafoyas’ claim for a prescriptive driveway easement

is barred because Cecilia settled and released her easement claims in the parties’ settlement

agreement and mutual release that followed the Redman-Tafoya remand. The Morrisons

point particularly to a paragraph in the release providing that the settlement agreement and

release was binding upon successors and assigns of the parties, and they assert that they were

successors to the estate by virtue of the estate’s warranty deed to Lot 1. The Morrisons

therefore argue that they are entitled to the benefit of the release because it “not only

encompassed the express and implied easement claims, but also ‘all . . . future claims . . .

which may later develop . . . .[,]’ ” including the Tafoyas’ prescriptive easement claim. The

Morrisons provide no authority in support of this contention and argument that they are
21

successors or assigns under the contract. They fail to explain how their succession in

ownership through the estate’s warranty deed and the language of the settlement agreement

and release between Cecilia and the estate entitled them, a non-party to the settlement

agreement, to invoke the settlement agreement and release to bar the Tafoyas’ claims in the

present case.

{64} The Tafoyas answer the Morrisons’ points with two arguments: (1) that the

Morrisons were not parties or successors to the settlement agreement and mutual release, and

(2) that the Tafoyas’ claims to a prescriptive easement were neither actually litigated nor

could have been litigated in the revocation proceeding. They assert that had the estate

intended the Morrisons to benefit from the settlement agreement and mutual release, the

estate would have brought them in as a party to the agreement or at least mentioned them by

name. The Tafoyas, like the Morrisons, provide no authority in this particular section of their

reply brief that responds to the Morrisons’ arguments.

{65} Because the Morrisons fail to develop their arguments regarding the applicability of

the settlement agreement and mutual release with relevant case law, authority, or citations

to the record, we reject the Morrisons’ argument that the Tafoyas are barred from asserting

their prescriptive easement claim based on the settlement agreement and mutual release.

Although the Morrisons may have been able to persuasively argue that they were

“successors” or “assigns” as contemplated by the settlement agreement and mutual release,

the Morrisons offer no legal support or citation to the record that would support their

assertion. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (“It is

not our practice to rely on assertions of counsel unaccompanied by support in the record. The

mere assertions and arguments of counsel are not evidence.” (internal quotation marks and

citation omitted)); ITT Educ. Servs., Inc., 1998-NMCA-078, ¶ 10 (stating that this Court will

not consider propositions that are unsupported by citation to authority.). Additionally, as

indicated by the Tafoyas, the parties were aware that the Morrisons could get involved, and

yet the estate chose not to specifically name them in the settlement agreement and mutual

release.

{66} We next address the Morrisons’ argument that the Tafoyas’ prescriptive easement

claim was without merit. When initially considering the Tafoyas’ prescriptive easement

claim in 2012, the district court held that the claim was not ripe for review and dismissed the

claim without prejudice. However, in December 2014, when considering the Morrisons’

summary judgment motion on their quiet title counterclaim, the district court held that the

Tafoyas had no prescriptive easement and that the Tafoyas had no right, title, or interest of

any kind in or to the Morrisons’ property or adverse to the Morrisons, including “any claims

to an easement of any kind over or across the Morrison[s’ p]roperty.” Although the factual

basis for the district court’s judgment against the Tafoyas’ prescriptive easement claim is not

stated in the court’s order, the court stated during the hearing that no clear and convincing

evidence was established to support a prescriptive easement claim and that there had not

been and could not be adverse use against a claim of right for 10 years, which began to run

after the district court issued its decision in the revocation proceeding in March 2004 and
22

which was cut off when the Morrisons installed a fence preventing access in September

2013.

{67} In this case, we agree with the district court that the Tafoyas failed to establish a

prescriptive easement claim because they did not show adverse use of the driveway for the

required 10-year period. Throughout the course of the revocation proceeding, Cecilia

asserted that she had permission to use the driveway. And in fact even in the present

proceeding, the Tafoyas continued to assert permissive use, and Charles Tafoya asserted that

they had permission to use the driveway and that permission was not contested until 2005,

which was well after the ruling in the revocation proceeding. Although the Tafoyas now

claim that there are genuine issues of material fact regarding the date wherein use of the

easement became adverse, they do not adequately support that assertion. Conversely, the

Morrisons cite specifically to statements by the Tafoyas that their use was permissive at least

until the district court, in the revocation proceeding, entered judgment against Cecilia in

2004. See Dow v. Chilili Coop. Ass’n, 1986-NMSC-084, ¶ 13, 105 N.M. 52, 728 P.2d 462

(holding that a party opposing summary judgment “may not simply argue that [evidentiary]

facts [requiring a trial on the merits] might exist, nor may [the party] rest upon the

allegations of the complaint”); see also Cates v. Regents of N.M. Inst. of Mining & Tech.,

1998-NMSC-002, ¶ 9, 124 N.M. 633, 954 P.2d 65 (“If there is no evidence that creates a

reasonable doubt as to the existence of a genuine issue, summary judgment is appropriate.”).

Because the district court issued its decision in the revocation proceeding wherein Cecilia

argued permissive use up to and as late as 2004, adverse use, if any, and at the earliest, began

in 2004. As noted earlier, the Morrisons erected a fence in September 2013, such that, even

if there had been uninterrupted adverse use, the 10-year period required by law for a

prescriptive easement had not passed as of the date that the Morrisons installed their fence.

Because the Tafoyas failed to offer any genuine issues of material fact as to continued

adverse use of land without effective interruption for the prescriptive period, we hold that

the district court was correct in granting summary judgment against the Tafoyas on their

prescriptive easement claim.

CONCLUSION

{68} We affirm the district court’s grant of summary judgment against the Tafoyas as to

the express, implied, and by-necessity easement claims on the basis of res judicata. We also

affirm the district court’s grant of summary judgment as to the Tafoyas’ prescriptive

easement claim.

{69} IT IS SO ORDERED.

____________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:
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____________________________________

RODERICK T. KENNEDY, Judge

____________________________________

STEPHEN G. FRENCH, Judge