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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 LORENZO ARREOLA,

3 Plaintiff-Appellee,

4 v. NO. 34,107

5 CARLOS ORTIZ,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

8 James T. Martin, District Judge

9 Law Office of Elliot Mohler

10 Elliott A. Mohler

11 Las Cruces, NM

12 for Appellee

13 Charles E. Hawthorne, Ltd.

14 Charles E. Hawthorne

15 Ruidoso, NM

16 for Appellant

17 MEMORANDUM OPINION

18 HANISEE, Judge.

19 {1} Defendant Carlos Ortiz appeals the district court’s summary judgment in
2

1 Plaintiff Lorenzo Arreola’s favor on his claims against Defendant to quiet title to

2 certain property in the City of Sunland Park, New Mexico and for ejectment and

3 breach of contract, and the district court’s later judgment awarding Plaintiff damages

4 for breach of contract after a bench trial. We affirm.

5 I. BACKGROUND

6 {2} In 1987 Plaintiff and Jesus Valles purchased 3.5 acres of land in Sunland Park

7 from Nora Green for $55,000. The sale deed was not recorded. Shortly after the sale,

8 Plaintiff and Valles executed a contract under which Plaintiff agreed to pay Green

9 $17,500 of the purchase price, with Valles paying the remainder. The agreement

10 provided that Plaintiff and Valles would split the land between them, with Plaintiff

11 receiving one and one-half acres and Valles receiving the remaining two acres. The

12 agreement did not specify which acreage would belong to Plaintiff and which to

13 Valles.

14 {3} Plaintiff constructed and operated an auto salvage business and leased portions

15 of his land to small businesses and other individuals on one part of the property. In

16 1996 Plaintiff constructed a boundary wall across the property. That same year, a

17 metes and bounds survey of the property Plaintiff possessed was conducted, and the

18 survey describes Plaintiff’s land as occupying 1.37 acres of the tract Plaintiff and

19 Valles had purchased from Green.
3

1 {4} In 2000 Plaintiff leased his salvage yard to Defendant. The lease permitted

2 Plaintiff to increase the rent owed by Defendant if property taxes increased. The lease

3 was for a ten-year term, expiring June 1, 2010. Under the terms of the lease,

4 Defendant was obliged to pay Plaintiff $1,250 in monthly rent for the first four years

5 of the lease term, and $1,450 per month for the remaining six years of the lease. In

6 2006 Plaintiff and Defendant agreed to modify the lease to increase Defendant’s

7 monthly rent payment to $1,700 because Defendant had constructed a building on

8 Plaintiff’s property (thereby increasing the amount of property tax owed by Plaintiff)

9 and because Plaintiff had rented an apartment on the property to Defendant. The

10 modification further provided that Defendant would leave the building on the land

11 after the lease expired and pay the water bill.

12 {5} Defendant claims that before the lease expired, he entered into an agreement to

13 purchase Valles’s portion of Green’s property from Valles’s heirs, and that the

14 purchase included land occupied by Plaintiff and leased to Defendant, which

15 Defendant refers to as the “Disputed Tract.” When the lease expired, Plaintiff alleges

16 that Defendant refused to vacate Plaintiff’s land and damaged the building he had

17 constructed on Plaintiff’s property. Plaintiff brought suit against Defendant for

18 ejectment, breach of contract, and violations of the Uniform Owner-Resident

19 Relations Act (UORRA), NMSA 1978, §§ 47-8-1 to -52 (1975, as amended through
4

1 2007). Plaintiff later amended the complaint to name Valles’s heirs as defendants to

2 an action to quiet title.

3 {6} Plaintiff moved for summary judgment, arguing that the signed agreement

4 dividing Green’s land between Plaintiff and Valles and Plaintiff’s subsequent

5 possession of the property at issue established that he had superior title to the portion

6 of the land that Defendant continued to occupy after the lease expired. In the

7 alternative, Plaintiff argued that the undisputed facts established that Plaintiff had

8 obtained title to the property in question from Valles and his heirs through adverse

9 possession. Plaintiff argued that he was also entitled to summary judgment on his

10 breach of contract claim based on Defendant’s failing to pay rent, utilities, and by

11 damaging the building Defendant had constructed and agreed to leave on Plaintiff’s

12 property after the lease expired. Plaintiff contended as well that he was entitled to

13 summary judgment on his claim for ejectment based on Defendant’s refusal to leave

14 Plaintiff’s property after the lease expired, and on his UORRA claim based on

15 Defendant’s damage to and failure to pay rent on the apartment he had leased from

16 Plaintiff.

17 {7} Neither Defendant nor Valles’s heirs (who were represented by the same

18 attorney before the district court) responded to Plaintiff’s motion for summary

19 judgment. The district court found that Defendant and Valles’s heirs’ failure to
5

1 respond to Plaintiff’s motion amounted to an admission of Plaintiff’s statement of

2 undisputed material facts. The district court granted Plaintiff’s motion with respect to

3 the quiet title and ejectment claims in whole, as well as the breach of contract claim

4 with respect to liability. However, the district court concluded that Plaintiff was not

5 entitled to summary judgment as to the amount of damages stemming from Plaintiff’s

6 breach of the lease agreement, and denied the motion with respect to Plaintiff’s

7 UORRA claim.

8 {8} The district court held a bench trial as to Defendant’s liability under UORRA

9 and to determine the amount of damages caused by Defendant’s breach of the lease

10 agreement. After the trial, the district court issued written findings of fact and

11 conclusions of law finding in Defendant’s favor on Plaintiff’s UORRA claim and

12 fixing Defendant’s liability for breaching the lease agreement at $35,700 in lost rent,

13 $706.27 in utility bill payments, and $6,000 for the value of the building Defendant

14 had damaged. Defendant appeals, raising several claims of error.

15 II. STANDARD OF REVIEW

16 {9} Summary judgment “shall be rendered forthwith if the pleadings, depositions,

17 answers to interrogatories and admissions on file, together with the affidavits, if any,

18 show that there is no genuine issue as to any material fact and that the moving party

19 is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA. “We review the
6

1 district court’s decision to grant summary judgment de novo.” Hydro Res. Corp. v.

2 Gray, 2007-NMSC-061, ¶ 14, 143 N.M. 142, 173 P.3d 749. Generally, New Mexico

3 courts view summary judgment with disfavor, preferring trials over summary

4 disposition. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242

5 P.3d 280. Accordingly, we review the facts and make all reasonable inferences from

6 the record in favor of the nonmoving party. T.H. McElvain Oil & Gas Ltd. P’ship v.

7 Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, ¶ 19, 340 P.3d 1277, cert.

8 granted, 2014-NMCERT-012, 344 P.3d 988.

9 {10} With respect to the district court’s findings of fact based on evidence submitted

10 at the trial on damages and Plaintiff’s UORRA claim, our standard of review requires

11 the district court’s findings to be supported by substantial evidence. Wisznia v. N.M.

12 Human Servs. Dep’t, 1998-NMSC-011, ¶ 10, 125 N.M. 140, 958 P.2d 98. We do not

13 reweigh the evidence presented at a bench trial and do not second guess the district

14 court’s assessments of witnesses’ credibility or its resolution of conflicting evidence

15 or testimony. Id. Basically, “[t]he reviewing court must affirm if there is any

16 reasonable ground that supports the [district] court’s decision, the question being

17 whether there is evidence to support the result reached, rather than whether the

18 evidence would have supported a different result.” Id. However, we do not defer to

19 any conclusions of law made by the district court based on its findings of fact. Id.
7

1 III. DISCUSSION

2 {11} Defendant raises five issues on appeal, which we consolidate into four: (1)

3 whether the district court correctly found that Plaintiff had obtained title to the

4 property in question from Valles and his heirs through adverse possession; (2) whether

5 the district court correctly held that Defendant was liable to Plaintiff for rent between

6 the date the lease term expired and when Defendant left Plaintiff’s land; (3) whether

7 the district court erred when it did not reduce its damage award by the amount of rent

8 Plaintiff received from other tenants after Defendant’s lease expired; and (4) whether

9 the district court should have reduced the amount of rent Defendant owed Plaintiff

10 after the lease expired based on Defendant’s continued occupation of only a portion

11 of the total property.

12 A. The District Court Did Not Err in Granting Plaintiff’s Motion for

13 Summary Judgment on His Claims for Quiet Title, Ejectment, and Breach

14 of Contract

15 {12} Defendant’s first issue on appeal challenges the district court’s decision to enter

16 summary judgment in Plaintiff’s favor on his quiet title, ejectment, and breach of

17 contract claims. Before we proceed to the merits of the district court’s ruling, we must

18 first address a procedural question arising from Defendant’s failure to respond to the

19 motion. In its order granting the motion, the district court noted that Defendant’s

20 failure to respond to Plaintiff’s motion amounted to an admission of Plaintiff’s
8

1 statement of material facts. In our calendar notice, we asked the parties to “address the

2 application of Atherton v. Gopin, 2015-NMCA-003, 340 P.3d 630, cert. granted,

3 [2014]-NMCERT-[012, 344 P.3d 988] to the district court’s ruling that Defendant’s

4 failure to timely respond to Plaintiff’s motion for summary judgment amounts to an

5 admission of the facts [set out in the motion] and the effect that this ruling had on the

6 district court’s ultimate findings and conclusions.”

7 {13} Defendant’s brief in chief does not squarely address this question, and instead

8 argues that the district court “granted [Plaintiff’s motion for] summary judgment

9 based upon the belief that [Defendant’s] failure to respond timely constituted consent

10 to grant the motion.” Defendant’s recharacterization of the issue in this manner is

11 understandable: In Atherton we held that a district court may not grant a motion for

12 summary judgment as unopposed based solely on a party’s failure to respond to the

13 motion. Id. ¶ 24. Instead, “ ‘the district court must assess despite the lack of a response

14 whether, on the merits, the moving party satisfied the burden under Rule 1-056(C)’

15 ” of establishing that there is no genuine dispute as to any fact material to the claim

16 on which summary judgment is sought. Atherton, 2015-NMCA-003, ¶ 24 (alteration

17 omitted) (quoting Lujan v. City of Albuquerque, 2003-NMCA-104, ¶ 18, 134 N.M.

18 207, 75 P.3d 423).

19 {14} Here, however, the district court did not conclude that Defendant’s failure to
9

1 respond to Plaintiff’s motion amounted to a consent to the granting of the motion.

2 Instead, the district court concluded that Defendant’s failure to respond amounted to

3 an admission of Plaintiff’s statement of undisputed material facts. This conclusion is

4 supported by Rule 1-056(D)(2), which provides that “[a]ll material facts set forth in

5 the statement of the moving party shall be deemed admitted unless specifically

6 controverted.” If a nonmoving party’s failure in his or her response to challenge a

7 statement of material fact in a motion for summary judgment amounts to an admission

8 of the fact, it stands to reason that a failure to file a response altogether should have

9 the same effect.

10 {15} This is not to say that a district court must take the facts set out in a motion for

11 summary judgment as admitted when no response is filed and ignore any tardy attempt

12 by the nonmoving party to put material facts into dispute. Here, however, unlike

13 Atherton and Lujan, Defendant never sought leave to file a response out of time, nor

14 did Defendant submit a motion to reconsider after the court granted Plaintiff’s motion.

15 See Atherton, 2015-NMCA-003, ¶ 8; Lujan, 2003-NMCA-104, ¶ 6. We will not find

16 an abuse of discretion where a party never asked for the district court to exercise its

17 discretion in the first place. See Rule 12-216(A) NMRA (“To preserve a question for

18 review it must appear that a ruling or decision by the district court was fairly

19 invoked[.]”). Accordingly, we limit our review of the district court’s order granting
10

1 Plaintiff’s motion for summary judgment to whether the motion and any evidence

2 Plaintiff submitted in support thereof “show that there is no genuine issue as to any

3 material fact and that the moving party is entitled to a judgment as a matter of law.”

4 Rule 1-056(C).

5 {16} Turning to this question, Defendant raises two arguments that Plaintiff’s motion

6 did not make out a prima facie case for summary judgment on Plaintiff’s quiet title,

7 ejectment, and breach of contract claims. First, Defendant contends that the agreement

8 between Plaintiff and Valles partitioning Green’s property “was a nullity for a lack of

9 a legal description of which part of the Green Tract each party was acquiring.”

10 Second, Defendant argues that the district court’s conclusion that Plaintiff had

11 acquired title to the property at issue through adverse possession was in error because

12 the evidence Plaintiff provided in support of his motion for summary judgment did not

13 establish that he held title to the land in question under color of title and had paid ad

14 valorem taxes on the property during the period of adverse possession. See NMSA

15 1978, § 37-1-22 (1973) (setting out elements of adverse possession including that the

16 adverse possession be “commenced and continued under a color of title and claim of

17 right inconsistent with and hostile to the claim of another” and requiring the person

18 claiming adverse possession to “have for the period mentioned in this section

19 continuously paid all the taxes, state, county and municipal, which during that period
11

1 have been assessed against the property”).

2 1. The Record Supports a Finding That Plaintiff Held the Land in Question

3 Under Color of Title

4 {17} Section 37-1-22 provides that a person may obtain title to property through

5 “adverse possession continuously and in good faith under color of title for ten years.”

6 The possession must be “ ‘actual, visible, exclusive, hostile[,] and continuous.’ ”

7 Polaco v. Prudencio, 2010-NMCA-073, ¶ 15, 148 N.M. 872, 242 P.3d 439 (quoting

8 Bd. of Trs. of Tecolote Land Grant v. Griego, 2005-NMCA-007, ¶ 9, 136 N.M. 688,

9 104 P.3d 554). Section 37-1-22 further provides that “in no case must adverse

10 possession be considered established within the meaning of the law, unless the party

11 claiming adverse possession, his predecessors or grantors, have for the period

12 mentioned in this section continuously paid all the taxes, state, county and municipal,

13 which during that period have been assessed against the property.” (Internal quotation

14 marks omitted.)

15 {18} Defendant first argues that the district court’s order granting Plaintiff’s motion

16 for summary judgment should be reversed because the district court failed to make a

17 finding that Plaintiff possessed the land in question under color of title. But we can

18 affirm if the evidence supports a finding that Plaintiff held the property in question

19 under color of title, so long as it is not unfair to the appellant to do so. See B.T.U.

20 Block & Concrete, Inc. v. Ortega, No. 32,092, mem. op. ¶ 6 (N.M. Ct. App. May 19,
12

1 2014) (non-precedential) (evaluating the merits of the district court’s ultimate finding

2 that a party had obtained title by adverse possession despite the district court’s failure

3 to make necessary findings of fact); see also Cordova v. World Fin. Corp. of N.M.,

4 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901 (“[I]t is established law that our

5 appellate courts will affirm a district court’s decision if it is right for any reason, so

6 long as the circumstances do not make it unfair to the appellant to affirm.”). Because

7 Defendant argues on appeal whether the deed was sufficient to give Plaintiff color of

8 title over the property in question, it would not be unfair to affirm on this basis. So we

9 address the issue on the merits instead of remanding for the district court to make a

10 finding of fact as to whether Plaintiff held the property in question under color of title.

11 {19} Relying on In re Estate of Duran, 2003-NMSC-008, 133 N.M. 553, 66 P.3d

12 326, Defendant argues that the deed conveying the property as a whole to Plaintiff and

13 Valles was insufficient to establish that Plaintiff possessed the property in question

14 under color of title against his cotenant because as Defendant states, In re Estate of

15 Duran requires a cotenant to establish adverse possession against another cotenant

16 [with] a heightened quantum of proof. But In re Estate of Duran is distinguishable on

17 its facts. There, the party sought to obtain title to an entire estate against cotenants.

18 2003-NMSC-008, ¶¶ 2-5. In such a circumstance, the Court noted the “color of title”

19 requirement of adverse possession “operates in a way that is even more restrictive for
13

1 a claimant who is a cotenant . . . because it is unlikely that one who already has legal

2 title to an interest in property as a cotenant would be able to acquire title to the

3 property as a whole from some outside source.” Id. ¶ 31. Here, Plaintiff did not seek

4 to obtain title through adverse possession to the entire tract of land that he and Valles

5 held as tenants in common; rather, he asserted that he had obtained through adverse

6 possession the property at issue through the agreement dividing the land between the

7 two cotenants. 

8 {20} To be sure, 

9 [w]here possession is consistent with the rights of owners of record title,

10 nothing but clear, unequivocal and notorious disclaimer and disavowal

11 will render it adverse. There must be something which amounts to an

12 ouster, either actual notice or acts and conduct that will clearly indicate

13 that the original permissive use has changed to one of an adverse

14 character.

15 Id. ¶ 10 (internal quotation marks and citation omitted). But Defendant does not

16 dispute the evidence showing that Plaintiff and Valles exercised exclusive control over

17 discrete portions of the tract they had purchased from Green after they agreed to

18 divide the property, which tends to show that Plaintiff exercised exclusive control

19 over the property at issue for at least ten years. So we are in no position to evaluate

20 whether an agreement between cotenants to divide the property which does not

21 describe the precise dimensions of the division standing alone is sufficient to work a

22 partition or satisfy the adversity requirement. See Hagopian v. Saad, 199 A. 433, 434
14

1 (Conn. 1938) (“[Adversity] is satisfied by the execution by [the cotenants] of the

2 original agreement and by their continued acquiescence in the resulting occupation.”);

3 see also In re Estate of Duran, 2003-NMSC-008, ¶ 12 (“We have said that property

4 may be partitioned by an agreement of the cotenants, orally or otherwise, so long as

5 all of the cotenants have the capacity to contract.”). The most that Defendant offers

6 on this point is an unsupported assertion that the agreement between Plaintiff and

7 Valles “was a nullity for a lack of a legal description of which part of the Green Tract

8 each party was acquiring.” We have no occasion to consider whether this assertion is

9 correct because Defendant cites no legal authority in support of the contention. See In

10 re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“[W]here

11 arguments in briefs are unsupported by cited authority, [we assume that] counsel[,]

12 after diligent search, was unable to find any supporting authority.”).

13 2. There Was Sufficient Evidence in the Record to Support the District

14 Court’s Finding That Plaintiff Had Paid Ad Valorem Taxes Throughout

15 the Ten-Year Statutory Period of Adverse Possession

16 {21} Defendant next argues that summary judgment was improper because Plaintiff

17 did not submit any evidence that would allow the district court to conclude that

18 Plaintiff had paid ad valorem taxes on the property he claimed title to through adverse

19 possession, as Section 37-1-22 requires. But Plaintiff’s affidavit in support of his

20 motion for summary judgment states that he paid his share of the property taxes on his
15

1 parcel throughout the period of adverse possession. Moreover, Plaintiff attached tax

2 receipts for the property in question covering the years 1991 through 2009 to his

3 affidavit. Defendant does not explain why Plaintiff’s affidavit or the tax receipts

4 submitted in support are insufficient to make a prima facie case for summary

5 judgment on that issue, thereby shifting the burden to Defendant to submit evidence

6 that Plaintiff had not in fact paid taxes on the property. See Roth v. Thompson, 1992-

7 NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241 (“Upon the movant making a prima

8 facie showing [that he is entitled to summary judgment], the burden shifts to the party

9 opposing the motion to demonstrate the existence of specific evidentiary facts which

10 would require trial on the merits.”). Accordingly, we reject this argument summarily.

11 {22} Having rejected both of Defendant’s arguments challenging the district court’s

12 grant of summary judgment to Plaintiff on the issue of his ownership of the property

13 in question, we affirm the district court on this issue.

14 B. Defendant Failed to Preserve His Argument That as a Good Faith

15 Purchaser He Was Not Liable to Plaintiff for Rent

16 {23} Defendant contends there is substantial evidence in the record that he purchased

17 Valles’s heirs’ interest in the land Valles and Plaintiff had purchased from Green, and

18 that he remained on Plaintiff’s property based on his reliance in good faith on Valles’s

19 heirs’ representation that they owned the property in question. Defendant contends

20 that under NMSA 1978, Section 14-9-3 (1990), he is not liable for rent on the property
16

1 as a “purchaser of real property . . . who has invested money in the property without

2 notice of a third party’s unrecorded interest in the property.” Initially, we note that

3 Defendant does not dispute that he agreed to lease the property in question from

4 Plaintiff, so even taking Defendant’s understanding of the law as correct we would

5 find it difficult to accept that Defendant did not have notice of Plaintiff’s interest. But

6 in any event, Defendant never raised this argument before the district court, and has

7 therefore forfeited the issue on appeal. See Rule 12-216(A). Defendant responds that

8 we should consider the issue preserved because the district court’s decision not to

9 allow closing arguments prevented Defendant from raising the issue. See Rule 12-

10 216(A) (stating that “if a party has no opportunity to object to a ruling or order at the

11 time it is made, the absence of an objection does not thereafter prejudice the party”).

12 But Defendant had ample opportunity to argue this issue: the parties both submitted

13 proposed findings of fact and conclusions of law prior to the bench trial, and

14 Defendant made no mention of the issue in his submissions there or elsewhere.

15 Accordingly, Defendant failed to preserve the issue for review on appeal. See

16 Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To

17 preserve an issue for review on appeal, it must appear that appellant fairly invoked a

18 ruling of the [district] court on the same grounds argued in the appellate court.”).

19 C. Defendant Failed to Preserve His Argument That the District Court

20 Should Reduce Any Rent Owed by Defendant to Plaintiff by the Amount
17

1 Plaintiff Received From Leasing the Property After the Lease Expired

2 {24} In his third issue on appeal, Defendant argues that the district court ought to

3 have reduced its award of damages by the amount of rent that Plaintiff received from

4 leasing the part of his property that Defendant did not continue to occupy beyond the

5 lease term to a different tenant. Defendant claims that he preserved this argument in

6 his answer to Plaintiff’s amended complaint, but we see no mention there or anywhere

7 else in the record that Defendant made this argument to the district court. Accordingly,

8 it was not preserved for review on appeal.

9 D. Defendant Failed to Preserve His Argument That the District Court

10 Should Reduce the Rent Owed by Defendant to Plaintiff by the Portion of

11 the Property Defendant Ceased Occupying When the Lease Expired

12 {25} Defendant raises a related argument that because he only continued to occupy

13 a small portion of Plaintiff’s property after the lease expired, the district court ought

14 to have reduced its award of damages correspondingly. Defendant maintains that we

15 should deem this issue preserved because the district court’s decision not to allow

16 closing arguments at the end of the bench trial precluded him from invoking the

17 district court’s ruling on this issue But like Defendant’s second issue on appeal,

18 Defendant had other opportunities to raise the issue, either before or during trial.

19 Accordingly, the issue was not preserved and we decline to review it on appeal.

20 IV. CONCLUSION
18

1 {26} The district court’s order granting Plaintiff’s motion for summary judgment in

2 part is affirmed. The district court’s award of damages after a bench trial is also

3 affirmed.

4 {27} IT IS SO ORDERED.

5 _________________________________

6 J. MILES HANISEE, Judge 

7 WE CONCUR:

8 _________________________________

9 RODERICK T. KENNEDY, Judge

10 _________________________________

11 LINDA M. VANZI, Judge