This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 JEFFERSON-PILOT INVESTMENTS, INC., 2 Plaintiff-Appellee, 3

v. No. 34,933 4 COTTONWOOD PHASE V, LLC, 5 Defendant-Appellant, 6 and 7 COTTONWOOD PHASE V, LLC, 8 Third-Party Plaintiff, 9

v. 10 THE LINCOLN NATIONAL LIFE 11 INSURANCE COMPANY, 12 Third-Party Defendant. 13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Clay Campbell, District Judge 15 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 16 Emil J. Kiehne 17 Albuquerque, NM 18 Quarles & Brady, LLP 19 Faye B. Feinstein 202 Chicago, IL 1 for Appellee 2 Hatch Law Firm, LLC 3 Stanley N. Hatch 4 Jesse C. Hatch 5 Brook Gotberg 6 Albuquerque, NM 7 for Appellant 8 MEMORANDUM OPINION 9 ZAMORA, Judge. 10
{1} Cottonwood Phase V, LLC (CPV) appeals fro m the district court’s decision to 11 distribute certain funds to Jefferson-Pilot I nvestments, Inc. (JPI), and from the denial 12 of CPV’s motion for reconsideration of the decision. The funds distributed to JPI were 13 generated in a bankruptcy proceeding involvi ng Circuit City. We affirm the decision 14 of the district court. 15 I. BACKGROUND 16
{2} In 2004 CPV leased land (the Property) to Circuit City. Circuit City built a 17 34,000-square-foot store on the Property. Purs uant to the lease, CPV had a two-year 18 option to purchase building improvements made by Circuit City and to re-lease the 19 building to Circuit City. If CPV did not exercise the option, Circuit City had the right 20 to purchase the Property as well as the infrastructure, building, and improvements on 211 Jefferson-Pilot Life Insurance Company merged with The Lincoln National 18 Life Insurance Company (Lincoln) after the loan was closed, and Lincoln assigned the 19 loan to JPI on May 25, 2010. 20 3 the Property. In 2006 CPV exercised its option under the lease to purchase the 1 building improvements constructed by Circuit City on the Property and to re-lease the 2 Property and building to Circuit City. 3
{3} In order to purchase the building and improvements made by Circuit City, CPV 4 obtained a $3,500,000 loan from Lincoln Jefferson-Pilot Life Insurance Company, 5 predecessor-in-interest to JPI. 1 CPV executed a Promissory Note (Note) and a 6 Mortgage, Security Agreement and Fixture Filing (Mortgage). CPV also executed an 7 Absolute Assignment of Rents and Prof its and Collateral Assignment of Leases 8 (Assignment). The Note, Mortgage, and Assi gnment together are referred to by the 9 parties as the Loan Documents. 10
{4} CPV used the loan from JPI to pay close to $2,600,000 for the building 11 improvements plus commissions and costs for the transaction, leaving a balance of 12 approximately $600,000 in reserv e to make monthly payments on the loan in the event 13 that Circuit City stopped paying rent. CPV knew, at the time the loan was negotiated, 14 that a reserve might be need ed to make payments on the loan based on Circuit City’s 15 credit, references, and financial situation. Circuit C ity filed for bankruptcy in 16 November 2008, vacated the Property and bu ilding in March 2009, and rejected the 174 lease. CPV continued to make monthly payments on the loan, using monies from its 1 reserve fund until April 2010 when CPV defau lted on the loan. At the time of default, 2 CPV had close to $400,000 in its reserve fund, which could have been used to pay 3 monthly payments on the loan, but was instead distributed to it members. 4
{5} CPV filed a proof of claim in Circuit City’s bankruptcy case, claiming lease5 rejection damages described as unpaid pre-petition rents, re nts owed for the remainder 6 of the lease, and taxes. In the bankruptcy case involving Circuit City, a settlement was 7 reached that resulted in an award to CPV of approximately $1,350,000, for breach of 8 the lease. JPI sent a written demand to the Liquidating Trustee appointed in the 9 bankruptcy case claiming that it should be substituted as the claim holder for the 10 Circuit City funds. A receiver appointed by the district court took custody of the 11 Circuit City funds, and the funds were even tually placed into the court registry. CPV 12 and JPI filed motions with the district c ourt asking that the funds be distributed to 13 them. 14
{6} On June 3, 2010, after CP V’s default on the loan, J PI notified CPV that it was 15 accelerating the loan. On July 16, 2010, JPI f iled a complaint for debt and foreclosure 16 in the district court. CPV filed its own bankruptcy petition, but the case was dismissed 17 in May 2012 after the bankruptcy court’s c onsideration of CPV’s motion to dismiss 18 and JPI’s motion to convert. 195 {7} Once back in district court, the partie s entered into a settlement agreement. A 1 stipulated judgment, order of sale, appointment of a special master, and decree of 2 foreclosure (Stipulated Judgment) was entered against CPV and in favor of JPI for 3 $6,037,000.24, with in terest to continue until satisf action of the judgment. The lien 4 created by the Mortgage was foreclosed, th e Property that secured the Mortgage was 5 to be sold, and the proceeds applied to th e amount of the stipulated judgment. The 6 Property included the real property, improve ments, personal property, and collateral. 7 “Collateral” is described as including, “without limitati on (a) all revenues, income, 8 rents, cash or security deposits, advance re ntal deposits, and other benefits thereof or 9 arising from the use or enjoyment of all orany portion of the real property subject to 10 the Mortgage.” The district court found, “[ e]ach of the Mortgage and the Assignment 11 secures all obligations owed by CPV under the Note.” 12
{8} The Stipulated Judgment provided that, inthe event that CPV failed to timely 13 pay $4,500,000 to JPI on or before April 30, 2014, JPI would be authorized to proceed 14 with the foreclosure sale. If, however , CPV timely paid the amount owed, the 15 foreclosure would not occur, and JPI w ould release the Circuit City funds. The 16 Stipulated Judgment also contained an agreement that if CPV did not pay the 17 settlement amount, the court would schedul e a hearing on the parties’ respective 18 claims to the Circuit City funds. CPV did not timely pay the amount owed under the 196 settlement agreement and Stipulated Judgment, and the Property was sold. JPI bid 1 $4,500,000 for the Property, leaving a balance on the Judgment of $1,881,659.95. 2 Subsequently the parties f iled competing motions claiming entitlement to the Circuit 3 City funds. CPV filed a request for evidentiary hearing on the issue of how the Circuit 4 City funds should be distributed. The districtcourt did not hold an evidentiary hearing 5 on that issue. Instead, the district court issued a memorandum opinion based on “the 6 plain language of the Loan Documents,” gran ting the Circuit City funds to JPI. CPV 7 filed a motion for reconsideration, which was denied. 8 II. DISCUSSION 9 Assignment—Distribution of Circuit City Funds 10
{9} CPV claims that it was error for the district court: (1) to award the Circuit City 11 funds to JPI, and (2) to make a decision in this case without holding an evidentiary 12 hearing. JPI disputes those claims and counters that it is entitled to the Circuit City 13 funds. 14
{10} According to CPV, the district court’s memorandum opinion explicitly limited 15 its ruling to its analysis of the Assignment. CPV claims that J PI’s reference to the 16 Mortgage and Note falls outside the scope of this appeal becausethe Loan Documents 17 were collapsed into the Stipulated Judgment. The district court cite s and refers to all 18 three documents in its memorandum opi nion, although it relies mainly on the 197 Assignment. The district court explained that the entire lawsuit concerned CPV’s 1 default under the Note and Mortgage, the Note and Mortgagewere collapsed into the 2 Stipulated Judgment and resulted in a dollar figure representing every obligation 3 under the Note and Mortgage, and the Stipul ated Judgment extinguished all of CPV’s 4 liabilities, with the exception of the disputed Circuit C ity funds. As a result, the 5 distribution of the Circuit City funds remained a viable issue. 6
{11} The district court found the Assignment to be unambiguous. In making a 7 preliminary determination on the question of ambiguity, a court may consider 8 extrinsic evidence. See Mark V, Inc. v. Mellekas , 1993-NMSC-001, ¶ 12, 114 N.M. 9 778, 845 P.2d 1232. The court may consider collateral evidence of the circumstances 10 surrounding the making of the agreement “and of any relevant usage of trade, course 11 of dealing, and course of performance” in order to determine wh ether the agreement 12 language is clear. C.R. Anthony Co. v. Loretto Mall Partners , 1991-NMSC-070, ¶ 15, 13 112 N.M. 504, 817 P.2d 238. There is ambiguity in an agreement when “the parties’ 14 expressions of mutual assent” lack clarity. Id. ¶ 15 n.2. On the other hand, if the court 15 determines that the evidence is “so clear that no reasonable person [would hold] in any 16 way but one[,]” the court may decide thatthe agreement is unambiguous as a matter 17 of law. Id. ¶ 17. 188 {12} The Assignment, under the heading “Absolute Assignment of Rents and 1 Profits,” provides that JPI was entitled to: 2 [a]ll of the rents, income, profits, revenue, sums payable by lease 3 guarantors, judgments . . . and any other fees or sums payable to 4 Assignor or any other person as landlord and other benefits and rights of 5 the Property arising from the use, occupancy, operati on or management 6 of all or any portion thereof or from all the Leases and any proceeds, 7 deposits or security deposits . . . relating thereto, including, without 8 limitation, any award to Assignor made hereafter in any court involving 9 any of the tenants under the Leases in any bankruptcy , insolvency, or 10 reorganization proceeding in any state or federal court, and Assignor’s 11 right to appear in any action [and] tocollect any such award or payment, 12 and all payments by any tenant in lieu of rent (collectively, “Rents and 13 Profits”). 14 (Emphases added.) The distri ct court concluded that the Circuit City funds were 15 included in “any benefit, proceeds, award, [and] judgment involving a tenant in a 16 bankruptcy proceeding.” The district court determined that the funds were awarded 17 in the bankruptcy court case that involved Ci rcuit City as the te nant under the lease 18 with CPV, and the funds “fit within the defin ition of ‘Rents or Profits.’ ” The district 19 court also concluded that th ere was no support for the idea that Circuit City’s lease 20 rejection “transmuted” CPV’s proceeds fromthe lease-rejection claim to such an 21 extent that CPV’s obligations under the Loan Documents were voided. We agree. 22
{13} CPV argues that the Circuit City funds are lease-rejection damages and cannot 23 be considered rents and profits, as argued by JPI, because they did not arise from “the 24 use, occupancy, operation or management of” all or any portion of the lease. However, 259 the “lease-rejection damages” were described in CPV’s proof of claim as past rent and 1 future rent owed under the lease with Circ uit City. Furthermore, in addition to all 2 rents, income, profits, revenue, and sums payable by lease guarantors, the Assignment 3 specifically includes “any other fees or sums payable to Assignor” and “other benefits 4 and rights” arising from “the use, occ upancy, operation or management of” the 5 Property “or from all the Leases” as well as any proceeds “relating thereto [to the 6 Leases], including, without limitation, any award to Assignor made hereafter in any 7 court involving any of the tenants under the Leases in any bankruptcy.” 8
{14} Even if we agree that the Circuit Cityfunds would not fall within a commonly 9 accepted definition for rent or profit, the funds qualify as monies that CPV assigned 10 rights to because they fit within the language of the paragraph labeled “Absolute 11 Assignment of Rents and Profits.” The A ssignment specifically covers rents and 12 profits, but also covers other fees and sums payable to CPV and any proceeds and 13 bankruptcy awards related to the leases. Thus, the clear language of the Assignment 14 covers the Circuit City funds, regardless of how they are categorized. 15
{15} CPV makes a number of other arguments . CPV claims that the Circuit City 16 funds do not qualify as arising from “the use, occupancy, operation or management 17 of” all or any portion of the Property. Atthe time the funds were awarded by the 18 bankruptcy court, CPV was the sole entity operating or managing the Property. The 1910 funds were derived from CPV’ s operation or management of the Property and no other 1 source. The Circuit City funds were awarde d in its bankruptcy proceeding as a result 2 of Circuit City’s actions with respect to the lease agreement betw een Circuit City and 3 CPV. We conclude that the only reasonable in terpretation of the language is that fees 4 or sums that were awarded to CPV in the bankruptcy proceeding fit within the terms 5 of the Assignment, and were properly awarded to JPI. 6
{16} CPV also argues that JPI was required to f ile a proof of claim in the Circuit City 7 bankruptcy case in order to recover from th e Circuit City estate. CPV states that 8 recovery by JPI is barred becauseof the failure to file sucha proof of claim. Circuit 9 City was not a party to the Assignment and there was no privity between Circuit City 10 and JPI. JPI’s claim was against CPV, not Ci rcuit City, and JPI had no claim to assert 11 against Circuit City, the bankruptcy debtor . CPV cites no authority in support of its 12 argument that a non-party to a bankruptcy must file a proof of claim in order to assert 13 its rights to certain funds, simply becau se those funds weregenerated by the 14 bankruptcy. We therefore do not consider this argument any further. See ITT Educ. 15 Servs., Inc. v. N.M. Taxation & Revenue Dep’t , 1998-NMCA-078, ¶ 10, 125 N.M. 16 244, 959 P.2d 969 (stating that this Court w ill not consider propositions that are 17 unsupported by citation to authority). 1811 {17} CPV further argues, in very general term s, that if an evidentiary hearing had 1 been held, it would have presented evid ence to show the parties’ intentions, 2 understandings, and interpretations of the Assignment language. 3
{18} In its reply brief, CPV states that it would have presented testimony and 4 evidence that the Circuit City funds were not rents or profits, but were lease-rejection 5 damages. As we have explai ned, whether the funds are considered rents and profits 6 or lease-rejection damages, they fall within the Assignment language. CPV claims that 7 it would have presented evidence that the parties understood that the Property would 8 be “the only source of recourse for the lo an.” CPV does not provide a citation to the 9 record, but it appears that CPV, in making th is argument, is referring to the portion of 10 the Note titled, “Limitation on Recourse.” As argued by CPV, the Note and Mortgage 11 were collapsed into the Stipulated Judgmen t, and it is the Assignment that governs the 12 issues in this case. 13
{19} The pertinent issue before us is whether the district court erred in finding the 14 Assignment to be unambiguous. CPV makes very general arguments that it was 15 prepared to present evidence that the l ease with Circuit City had ended when the 16 bankruptcy court awarded leas e-rejection damages, the c ontract language could only 17 have applied to a then-existing lease, and th at the parties had agreed that any recourse 18 for payment of the Note was limited toproperty rights. Ho wever, CPV does not 1912 provide this Court with specifics about ev idence that it might have presented to show 1 that an ambiguity existed in the Assignment. CPV does not explain how any evidence 2 it wished to present would alter the pl ain meaning of the Assignment language. 3 Consequently, CPV provided insufficient justification to the district court for holding 4 an evidentiary hearing in this case. 5 Request for Attorney Fees, Costs, and Damages 6
{20} JPI requests attorney fees, pursuan t to Rule 12-403(B)(3) NMRA (1993, 7 amended 2016). Rule 12-403(B)(3) allows for “reasonable attorney fees for services 8 rendered on appeal in causes where the award of attorney fees is permitted by law.” 9 Generally, each party to a laws uit pays its own attorney f ees unless fees are authorized 10 by statute or agreement. See, e.g. , Golden Cone Concepts, Inc. v. Villa Linda Mall, 11 Ltd. , 1991-NMSC-097, ¶ 21, 113 N.M. 9, 820 P.2d 1323. JPI argues that the 12 Assignment provides that Assignee will be indemnified for and held harmless from 13 any and all costs and expenses, including reasonable attorney fees. 14 Assignor shall and does hereby agree to indemnify Assignee for and to 15 defend and hold Assignee harmless from any and all obligations, 16 liabilities, losses, costs, expenses, . . . or damages (including reasonable 17 attorneys[ ] fees) which Assignee may incur under the Leases, . . . or 18 under or by reason of this Assignment[.] 19
{21} CPV claims that the provision in the Assignment is designed to indemnify JPI 20 for claims brought by or against third parties, such as lessees. However, Black ’ s Law 2113 Dictionarydefines “indemnify” as, “[t]o reimburse . . . for a loss suffered because of 1 a third party’s or one’s own act or default ; hold harmless.” Black ’ s Law Dictionary 2 886 (10th ed. 2014) (emphasis added). The language of the Assignment “under or by 3 reason of this Assignment” indicates that JPI is to be reimbur sed for attorney fees 4 expended in enforcing the Assignment agai nst CPV. As a result, JPI’s request for 5 attorney fees is granted. On remand, the di strict court shall determine the attorney fees 6 amount to be awarded to JPI for this appeal. 7
{22} JPI requests costs, pursuant to Rule12-403(A). Rule 12-403(A) provides that 8 “[i]n all proceedings in the appellate c ourt the party prevailing shall recover the 9 party’s costs unless otherwise provided by law, by these rules, or unless the court shall 10 otherwise determine.” As the prevailing party, JPI is entitled to costs incurred in 11 responding to CPV’s appeal. On remand, the district court shall determine the costs 12 to be awarded to JPI for this appeal. 13
{23} JPI also requests that this Court aw ard damages under Rule12-403(B)(4). JPI 14 argues that, by filing this appeal, CPV want s to “correct a strategic decision that it 15 now regrets.” In particular, JPI claims th at CPV could have offered evidence to the 16 district court both before and after the hearing in which the court stated that it may 17 decide the case as a matter of law. JPI also argues that, given the clear and 18 unambiguous language of the Assignment, CPV’s arguments with respect to 1914 interpretation of the language are frivolous . Rule 12-403(B)(4) allows for the award 1 of damages under NMSA 1978, Section 39-3-27 (1966), if this Court determines that 2 CPV’s appeal is “frivolous, not in good faith, or merely for purposes of delay.” JPI 3 has not shown CPV’s appeal was frivolous, not in good faith, or merely for purposes 4 of delay; therefore its request for damages is denied. CPV’s appellate arguments 5 required our consideration, but even though we were not persuade d, it does not reduce 6 its appeal to frivolous, not in good faith , or merely for purposes of delay. See Genuine 7 Parts Co. v. Garcia , 1978-NMSC-059, ¶ 30, 92 N.M. 57, 582 P.2d 1270 (“[A] court 8 should be reluctant to penalize litigants who take advantage of their right to appeal.”); 9 Durrett v. Petritsis , 1970-NMSC-119, ¶ 15, 82 N.M. 1, 474 P.2d 487 (holding that 10 “[a]lthough we have found the appeal to lack merit, it does not follow that it was not 11 in good faith” (internal quotati on marks and citation omitted)); Clark v. Sims , 2009- 12 NMCA-118, ¶ 28, 147 N.M. 252, 219 P.3d 20 ( holding that without evidence before 13 the appeals court to support a claim that th e appeal was pursued for purposes of delay, 14 damages will not be awarded). 15 III. CONCLUSION 16
{24} For the foregoing reasons, we affirm th e district court’s decision and remand 17 for determination of appellateattorney fees and costs. 1815 {25} IT IS SO ORDERED. 1

2 M. MONICA ZAMORA, Judge 3 WE CONCUR: 4

5 JAMES J. WECHSLER, Judge 6

7 JONATHAN B. SUTIN, Judge 8