This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 LORENZO ARREOLA, 2 Plaintiff-Appellee, 3

v. NO. 34,107 4 CARLOS ORTIZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 James T. Martin, District Judge 8 Law Office of Elliot Mohler 9 Elliott A. Mohler 10 Las Cruces, NM 11 for Appellee 12 Charles E. Hawthorne, Ltd. 13 Charles E. Hawthorne 14 Ruidoso, NM 15 for Appellant 16 MEMORANDUM OPINION 17 HANISEE, Judge. 18 {1} Defendant Carlos Ortiz appeals the di strict court’s summary judgment in 192 Plaintiff Lorenzo Arreola’s favor on his cl aims against Defendant to quiet title to 1 certain property in the City of Sunland Park, New Mexico and for ejectment and 2 breach of contract, and the district court’ s later judgment awarding Plaintiff damages 3 for breach of contract after a bench trial. We affirm. 4 I. BACKGROUND 5 {2} In 1987 Plaintiff and Jesus Valles purchas ed 3.5 acres of land in Sunland Park 6 from Nora Green for $55,000. The sale deed was not recorded. Shortly after the sale, 7 Plaintiff and Valles executed a contract under which Plaintiff agreed to pay Green 8 $17,500 of the purchase price, with Valles paying the remainder. The agreement 9 provided that Plaintiff and Valles would sp lit the land between them, with Plaintiff 10 receiving one and one-half acres and Valles receiving the remaining two acres. The 11 agreement did not specify which acreage would belong to Plaintiff and which to 12 Valles. 13 {3} Plaintiff constructed and operated an au to salvage business and leased portions 14 of his land to small businesses and other i ndividuals on one part of the property. In 15 1996 Plaintiff constructed a boundary wall across the property. That same year, a 16 metes and bounds survey of the property Pl aintiff possessed was conducted, and the 17 survey describes Plaintiff’s land as occupying 1.37 acres of the tract Plaintiff and 18 Valles had purchased from Green. 193 {4} In 2000 Plaintiff leased his salvage yard to Defendant. The lease permitted 1 Plaintiff to increase the rent owed by Defe ndant if property taxes increased. The lease 2 was for a ten-year term, expiring June 1, 2010. Under the terms of the lease, 3 Defendant was obliged to pay Plaintiff $1,250 in monthly rent for the first four years 4 of the lease term, and $1,450 per month for the remaining six years of the lease. In 5 2006 Plaintiff and Defendant agreed to modify the lease to increase Defendant’s 6 monthly rent payment to $1,700 because Defendant had constructed a building on 7 Plaintiff’s property (thereby increasing the amount of property tax owed by Plaintiff) 8 and because Plaintiff had rented an ap artment on the property to Defendant. The 9 modification further provided that Defendant would leave the building on the land 10 after the lease expired and pay the water bill. 11 {5} Defendant claims that before the lease e xpired, he entered into an agreement to 12 purchase Valles’s portion of Green’s property from Valles’s heirs, and that the 13 purchase included land occupied by Plaintiff and leased to Defendant, which 14 Defendant refers to as the “Disputed Tract.” When the lease expired, Plaintiff alleges 15 that Defendant refused to vacate Plainti ff’s land and damaged the building he had 16 constructed on Plaintiff’s property. Plaintiff brought suit against Defendant for 17 ejectment, breach of contract, and viol ations of the Uniform Owner-Resident 18 Relations Act (UORRA), NMSA 1978, §§ 47- 8-1 to -52 (1975, as amended through 194 2007). Plaintiff later amended the complaint to name Valles’s he irs as defendants to 1 an action to quiet title. 2 {6} Plaintiff moved for summary judgment, arguing that the signed agreement 3 dividing Green’s land between Plaintiff and Valles and Plai ntiff’s subsequent 4 possession of the property at issue establishe d that he had superior title to the portion 5 of the land that Defendant continued to occupy after the lease expired. In the 6 alternative, Plaintiff argued that the undisputed facts established that Plaintiff had 7 obtained title to the property in question from Valles and his heirs through adverse 8 possession. Plaintiff argued that he was also entitled to summary judgment on his 9 breach of contract claim based on Defendant’s failing to pay rent, utilities, and by 10 damaging the building Defendant had constructed and agreed to leave on Plaintiff’s 11 property after the lease expired. Plainti ff contended as well that he was entitled to 12 summary judgment on his claim for ejectment based on Defendant’s refusal to leave 13 Plaintiff’s property after the lease e xpired, and on his UORRA claim based on 14 Defendant’s damage to and failure to pay rent on the apartment he had leased from 15 Plaintiff. 16 {7} Neither Defendant nor Valles’s heir s (who were represented by the same 17 attorney before the district court) responded to Plaintiff’s motion for summary 18 judgment. The district court found that Defendant and Valles’ s heirs’ failure to 195 respond to Plaintiff’s motion amounted to an admission of Plaintiff’s statement of 1 undisputed material facts. The district court granted Plaintiff’s motion with respect to 2 the quiet title and ejectment claims in whole, as well as the breach of contract claim 3 with respect to liability. However, the district court concluded that Plaintiff was not 4 entitled to summary judgment as to the amount of damages stemming from Plaintiff’s 5 breach of the lease agreement, and deniedthe motion with respect to Plaintiff’s 6 UORRA claim. 7 {8} The district court held a bench trial as to Defendant’s liability under UORRA 8 and to determine the amount of damages cau sed by Defendant’s breach of the lease 9 agreement. After the trial, the district court issued written findings of fact and 10 conclusions of law finding in Defendant’s favor on Plaintiff’s UORRA claim and 11 fixing Defendant’s liability for breaching the lease agreement at $35,700 in lost rent, 12 $706.27 in utility bill payments, and $6,000 fo r the value of the building Defendant 13 had damaged. Defendant appeals, raising several claims of error. 14 II. STANDARD OF REVIEW 15 {9} Summary judgment “shall be rendered forthwith if the pleadings, depositions, 16 answers to interrogatories and admissions on f ile, together with the affidavits, if any, 17 show that there is no genuine issue as to any material fact and that the moving party 18 is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA. “We review the 196 district court’s decision to grant summary judgment de novo.” Hydro Res. Corp. v. 1 Gray , 2007-NMSC-061, ¶ 14, 143 N.M. 142, 173 P.3d 749. Generally, New Mexico 2 courts view summary judgment with disfavor, preferring trials over summary 3 disposition. Romero v. Philip Morris Inc. , 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242 4 P.3d 280. Accordingly, we review the fact s and make all reasona ble inferences from 5 the record in favor of the nonmoving party. T.H. McElvain Oil & Gas Ltd. P’ship v. 6 Benson-Montin-Greer Drilling Corp. , 2015-NMCA-004, ¶ 19, 340 P.3d 1277, cert. 7 granted , 2014-NMCERT-012, 344 P.3d 988. 8 {10} With respect to the district court’s fi ndings of fact based on evidence submitted 9 at the trial on damages and Plaintiff’s UORRAclaim, our standardof review requires 10 the district court’s findings to besupported by substantial evidence. Wisznia v. N.M. 11 Human Servs. Dep’t , 1998-NMSC-011, ¶ 10, 125 N.M . 140, 958 P.2d 98. We do not 12 reweigh the evidence presente d at a bench trial and do not second guess the district 13 court’s assessments of witnesses’ credibilityor its resolution of conflicting evidence 14 or testimony. Id. Basically, “[t]he reviewing court must affirm if there is any 15 reasonable ground that supports the [district] court’s decision, the question being 16 whether there is evidence to support the result reached, rather than whether the 17 evidence would have supported a different result.” Id. However, we do not defer to 18 any conclusions of law made by the district court based on its findings of fact. Id. 197 III. DISCUSSION 1 {11} Defendant raises five issues on appeal , which we consolidate into four: (1) 2 whether the district court correctly found that Plaintiff had obtained title to the 3 property in question from Valles and his he irs through adverse possession; (2) whether 4 the district court correctly held that Defe ndant was liable to Plaintiff for rent between 5 the date the lease term expired and when De fendant left Plaintiff’s land; (3) whether 6 the district court erred when it did not re duce its damage award by the amount of rent 7 Plaintiff received from other tenants after De fendant’s lease expired; and (4) whether 8 the district court should have reduced the amount of rent Defendant owed Plaintiff 9 after the lease expired based on Defendant ’s continued occupation of only a portion 10 of the total property. 11 A. The District Court Did Not Err in Granting Plaintiff’s Motion for 12 Summary Judgment on His Claims fo r Quiet Title, Ejectment, and Breach 13 of Contract 14 {12} Defendant’s first issue on appeal challenges the district court’s decision to enter 15 summary judgment in Plaintiff’s favor on his quiet title, ejectment, and breach of 16 contract claims. Before we pro ceed to the merits of the district court’s ruling, we must 17 first address a procedural question arising from Defendant’s failureto respond to the 18 motion. In its order granting the motion, the district court noted that Defendant’s 19 failure to respond to Plaintiff’s motion amounted to an admission of Plaintiff’s 208 statement of material facts. In our calendar notice, we asked the parties to “address the 1 application of Atherton v. Gopin , 2015-NMCA-003, 340 P.3d 630, cert. granted , 2 [2014]-NMCERT-[012, 344 P.3d 988] to the di strict court’s ruling that Defendant’s 3 failure to timely respond to Plaintiff’s motion for summary judgment amounts to an 4 admission of the facts [set out in the motion] and the effect that this ruling had on the 5 district court’s ultimate findings and conclusions.” 6 {13} Defendant’s brief in chief does not squarely address this question, and instead 7 argues that the district court “granted [Plaintiff’s motion for] summary judgment 8 based upon the belief that [Def endant’s] failure to res pond timely constituted consent 9 to grant the motion.” Defendant’s recharacterization of the issue in this manner is 10 understandable: In Athertonwe held that a district court may not grant a motion for 11 summary judgment as unopposed based solely on a party’s failure to respond to the 12 motion. Id. ¶ 24. Instead, “ ‘the district court must assess despite the lack of a response 13 whether, on the merits, the moving party satisfied the burden under Rule 1-056(C)’ 14 ” of establishing that there is no genuine dis pute as to any fact material to the claim 15 on which summary judgment is sought. Atherton , 2015-NMCA-003, ¶ 24 (alteration 16 omitted) (quoting Lujan v. City of Albuquerque , 2003-NMCA-104, ¶ 18, 134 N.M. 17 207, 75 P.3d 423). 18 {14} Here, however, the district court did notconclude that Defendant’s failure to 199 respond to Plaintiff’s motion amounted to a consent to the granting of the motion. 1 Instead, the district court concluded thatDefendant’s failure to respond amounted to 2 an admission of Plaintiff’s statement of undi sputed material facts. This conclusion is 3 supported by Rule 1-056(D)(2), which provides that “[a]ll material facts set forth in 4 the statement of the moving party shall be deemed admitted unless specifically 5 controverted.” If a nonmoving party’s failure in his or her res ponse to challenge a 6 statement of material fact in a motion for summary judgment amounts to an admission 7 of the fact, it stands to reas on that a failure to file a response altogether should have 8 the same effect. 9 {15} This is not to say that a district court must take the facts set out in a motion for 10 summary judgment as admitted when no respons e is filed and ignore any tardy attempt 11 by the nonmoving party to put material fact s into dispute. Here, however, unlike 12 Athertonand Lujan , Defendant never sought leave to file a response out of time, nor 13 did Defendant submit a motion to reconsider after the court granted Plaintiff’s motion. 14 See Atherton , 2015-NMCA-003, ¶ 8; Lujan , 2003-NMCA-104, ¶ 6. We will not find 15 an abuse of discretion where a party never as ked for the district court to exercise its 16 discretion in the first place. See Rule 12-216(A) NMRA (“To preserve a question for 17 review it must appear that a ruling or decision by the district court was fairly 18 invoked[.]”). Accordingly, we limit our review of the district court’s order granting 1910 Plaintiff’s motion for summary judgment to whether the motion and any evidence 1 Plaintiff submitted in support thereof “show that there is no genuine issue as to any 2 material fact and that the moving party is entitled to a judgment as a matter of law.” 3 Rule 1-056(C). 4 {16} Turning to this question, Defendant rais es two arguments that Plaintiff’s motion 5 did not make out a prima facie case for summary judgment on Plaintiff’s quiet title, 6 ejectment, and breach of contr act claims. First, Defendant contends that the agreement 7 between Plaintiff and Valles partitioning Green ’s property “was a nullity for a lack of 8 a legal description of which part of the Green Tract each party was acquiring.” 9 Second, Defendant argues thatthe district court’s conc lusion that Plaintiff had 10 acquired title to the property at issue through adverse possession was in error because 11 the evidence Plaintiff provided in support of his motion for summary judgment did not 12 establish that he held title to the land inquestion under color of title and had paid ad 13 valoremtaxes on the property during th e period of adverse possession. See NMSA 14 1978, § 37-1-22 (1973) (setting out elements of adverse possession including that the 15 adverse possession be “commenced and continued under a color of title and claim of 16 right inconsistent with and hostile to the claim of another” and requiring the person 17 claiming adverse possession to “have for the period mentioned in this section 18 continuously paid all the taxe s, state, county and municipal, which during that period 1911 have been assessed against the property”). 1 1. The Record Supports a Finding That Plaintiff Held the Land in Question 2 Under Color of Title 3 {17} Section 37-1-22 provides that a pers on may obtain title to property through 4 “adverse possession continuously and in good faith under color of title for ten years.” 5 The possession must be “ ‘actual, visible, exclusive, hostile[,] and continuous.’ ” 6 Polaco v. Prudencio , 2010-NMCA-073, ¶ 15, 148 N.M . 872, 242 P.3d 439 (quoting 7 Bd. of Trs. of Tecolote Land Grant v. Griego , 2005-NMCA-007, ¶ 9, 136 N.M. 688, 8 104 P.3d 554). Section 37-1-22 further provi des that “in no ca se must adverse 9 possession be considered established withinthe meaning of the law, unless the party 10 claiming adverse possession, his predecesso rs or grantors, have for the period 11 mentioned in this section continuously paid all the taxes, state, county and municipal, 12 which during that period havebeen assessed against the property.” (Internal quotation 13 marks omitted.) 14 {18} Defendant first argues that the district court’s order granting Plaintiff’s motion 15 for summary judgment should be reversed becau se the district court failed to make a 16 finding that Plaintiff possessed the land in question under color of title. But we can 17 affirm if the evidence supports a finding thatPlaintiff held the property in question 18 under color of title, so long as it is not unfair to the appellant to do so. See B.T.U. 19 Block & Concrete, Inc. v. Ortega , No. 32,092, mem. op. ¶ 6 (N.M. Ct. App. May 19, 2012 2014) (non-precedential) (evaluating the merits of the district court’s ultimate finding 1 that a party had obtained titleby adverse possession despite the district court’s failure 2 to make necessary findings of fact); see also Cordova v. World Fin. Corp. of N.M. , 3 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901 (“[I]t is established law that our 4 appellate courts will affirm a district court’s decision if it is right for any reason, so 5 long as the circumstances do not make it unf air to the appellant to affirm.”). Because 6 Defendant argues on appeal whether the deed was sufficient to give Plaintiff color of 7 title over the property in question, it would not be unfair to affirm on this basis. So we 8 address the issue on the merits instead of remanding for the district court to make a 9 finding of fact as to whether Plaintiff heldthe property in question under color of title. 10 {19} Relying on In re Estate of Duran , 2003-NMSC-008, 133 N.M. 553, 66 P.3d 11 326, Defendant argues that the deed conveying the property as a whole to Plaintiff and 12 Valles was insufficient to establish that Plaintiff possessed the property in question 13 under color of title against his cotenant because as Defendant states, In re Estate of 14 Duranrequires a cotenant to establish adverse possession against another cotenant 15 [with] a heightened quantum of proof. But In re Estate of Duranis distinguishable on 16 its facts. There, the party sought to obtain title to an entire estate against cotenants. 17 2003-NMSC-008, ¶¶ 2-5. In such a circumstan ce, the Court noted the “color of title” 18 requirement of adverse possessi on “operates in a way that is even more restrictive for 1913 a claimant who is a cotenant . . . because it is unlikely th at one who already has legal 1 title to an interest in property as a cotenant would be able to acquire title to the 2 property as a whole from some outside source.” Id. ¶ 31. Here, Plaintiff did not seek 3 to obtain title through adverse possession to th e entire tract of land that he and Valles 4 held as tenants in common; rather, he a sserted that he had obtained through adverse 5 possession the property at issue through the agreement dividing the land between the 6 two cotenants. 7 {20} To be sure, 8 [w]here possession is consistent with the rights of owners of record title, 9 nothing but clear, unequivocal and notorious disclaimer and disavowal 10 will render it adverse. There must be something which amounts to an 11 ouster, either actual notice or acts and conduct that will clearly indicate 12 that the original permissive use has changed to one of an adverse 13 character. 14 Id. ¶ 10 (internal quotation marks and c itation omitted). But Defendant does not 15 dispute the evidence showing th at Plaintiff and Valles exercised exclusive control over 16 discrete portions of the tr act they had purchased from Green after they agreed to 17 divide the property, which tends to show that Plaintiff exercised exclusive control 18 over the property at issue for at least ten years. So we are in no position to evaluate 19 whether an agreement between cotenant s to divide the property which does not 20 describe the precise dimensions of the divi sion standing alone is sufficient to work a 21 partition or satisfy the adversity requirement. See Hagopian v. Saad , 199 A. 433, 434 2214 (Conn. 1938) (“[Adversity] is satisfied by the execution by [the cotenants] of the 1 original agreement and by their continued acquiescence in the resulting occupation.”); 2 see also In re Estate of Duran , 2003-NMSC-008, ¶ 12 (“We have said that property 3 may be partitioned by an agreement of the co tenants, orally or otherwise, so long as 4 all of the cotenants have the capacity to co ntract.”). The most that Defendant offers 5 on this point is an unsupported assertion that the agreement between Plaintiff and 6 Valles “was a nullity for a lack of a legal description of which part of the Green Tract 7 each party was acquiring.” We have no occasion to consider whether this assertion is 8 correct because Defendant cites no legal authority in support of the contention. See In 9 re Adoption of Doe , 1984-NMSC-024, ¶ 2, 100 N.M . 764, 676 P.2d 1329 (“[W]here 10 arguments in briefs are unsupported by cited authority, [we assume that] counsel[,] 11 after diligent search, was unable to find any supporting authority.”). 12 2. There Was Sufficient Evidence in theRecord to Support the District 13 Court’s Finding That Plaintiff Had Paid Ad Valorem Taxes Throughout 14 the Ten-Year Statutory Period of Adverse Possession 15 {21} Defendant next argues that summary j udgment was improper because Plaintiff 16 did not submit any evidence that would allo w the district court to conclude that 17 Plaintiff had paid ad valoremtaxes on the property he cl aimed title to through adverse 18 possession, as Section 37-1-22 requires. But Plaintiff’s affidavit in support of his 19 motion for summary judgment states that he paid his share of the property taxes on his 2015 parcel throughout the period of adverse posse ssion. Moreover, Plaintiff attached tax 1 receipts for the property in question covering the years 1991 through 2009 to his 2 affidavit. Defendant does not explain why Plaintiff’s affidavit or the tax receipts 3 submitted in support are insufficient to make a prima facie case for summary 4 judgment on that issue, thereby shifting th e burden to Defendant to submit evidence 5 that Plaintiff had not in fact paid taxes on the property. See Roth v. Thompson , 1992- 6 NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241 (“Upon the movant making a prima 7 facie showing [that he is entitled to summary judgment], the burden shifts to the party 8 opposing the motion to demonstrate the existe nce of specific evid entiary facts which 9 would require trial on the merits.”). Accordingly, we reject this argument summarily. 10 {22} Having rejected both of Defendant’s arguments challenging the district court’s 11 grant of summary judgment to Plaintiff on th e issue of his ownership of the property 12 in question, we affirm the district court on this issue. 13 B. Defendant Failed to Preserve His Argument That as a Good Faith 14 Purchaser He Was Not Liable to Plaintiff for Rent 15 {23} Defendant contends there is substantial evidence in the recordthat he purchased 16 Valles’s heirs’ interest in the land Valles and Plaintiff had purchased from Green, and 17 that he remained on Plaintiff’s property based on his reliance ingood faith on Valles’s 18 heirs’ representation that they owned th e property in question. Defendant contends 19 that under NMSA 1978, Section 14-9-3 (1990), heis not liable for rent on the property 2016 as a “purchaser of real property . . . w ho has invested money in the property without 1 notice of a third party’s unrecorded interest in the property.” Initially, we note that 2 Defendant does not dispute that he agreedto lease the property in question from 3 Plaintiff, so even taking Defendant’s understanding of the law as correct we would 4 find it difficult to accept that Defendant did not have notice of Plaintiff’s interest. But 5 in any event, Defendant never raised this argument before the district court, and has 6 therefore forfeited the issue on appeal. See Rule 12-216(A). Defendant responds that 7 we should consider the issue preserved because the district court’s decision not to 8 allow closing arguments prevented Defendant from raising the issue. See Rule 12- 9 216(A) (stating that “if a party has no opportun ity to object to a ruling or order at the 10 time it is made, the absence of an objection does not thereafter prejudice the party”). 11 But Defendant had ample opportunity to arguethis issue: the parties both submitted 12 proposed findings of fact and conclusions of law prior to the bench trial, and 13 Defendant made no mention of the issue in his submissions there or elsewhere. 14 Accordingly, Defendant failed to pres erve the issue for review on appeal. See 15 Woolwine v. Furr’s, Inc. , 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To 16 preserve an issue for review on appeal, it mu st appear that appellant fairly invoked a 17 ruling of the [district] court on the samegrounds argued in the appellate court.”). 18 C. Defendant Failed to Preserve His Ar gument That the District Court 19 Should Reduce Any Rent Owed by Defendant to Plaintiff by the Amount 2017 Plaintiff Received From Leasing the Property After the Lease Expired 1 {24} In his third issue on appeal, Defendant argues that the district court ought to 2 have reduced its award of damages by the amount of rent that Plaintiff received from 3 leasing the part of his property that Defe ndant did not continueto occupy beyond the 4 lease term to a different te nant. Defendant claims that he preserved this argument in 5 his answer to Plaintiff’s amended complaint, but we see no mention there or anywhere 6 else in the record that Defendant made this argument to the district court. Accordingly, 7 it was not preserved for review on appeal. 8 D. Defendant Failed to Preserve His Argument That the District Court 9 Should Reduce the Rent Owed by Defe ndant to Plaintiff by the Portion of 10 the Property Defendant Ceased Occupying When the Lease Expired 11 {25} Defendant raises a related argument that because he only continued to occupy 12 a small portion of Plaintiff’s property after the lease expired, the district court ought 13 to have reduced its award of damages co rrespondingly. Defendant maintains that we 14 should deem this issue preserved because th e district court’s decision not to allow 15 closing arguments at the end of the bench trial precluded him from invoking the 16 district court’s ruling on this issue Bu t like Defendant’s second issue on appeal, 17 Defendant had other opportunities to raise th e issue, either before or during trial. 18 Accordingly, the issue was not preserved and we decline to review it on appeal. 19 IV. CONCLUSION 2018 {26} The district court’s order granting Plaintiff’s motion for summary judgment in 1 part is affirmed. The distri ct court’s award of damages after a bench trial is also 2 affirmed. 3 {27} IT IS SO ORDERED. 4

_____________________________ ____ 5 J. MILES HANISEE, Judge 6

WE CONCUR: 7

_________________________________ 8 RODERICK T. KENNEDY, Judge 9

_________________________________ 10 LINDA M. VANZI, Judge 11