CORRECTION PAGE: Cover Page, line 6, Ponderosa Pines Golf Course v. Ponderosa Pines Property, No. 31,489, HnKV, Filed 5/2/13: Changed “IT’S” to “ITS” 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 PONDEROSA PINES GOLF COURSE , LLC 2 Plaintiff-Appellant, 3

v. NO. 31,489 4 PONDEROSA PINES PROPERTY OWNER’S ASSOCIATION 5 and ITS INDIVIDUAL MEMBERS; and SKIP PRIDEMORE, 6 President & Director; DRAPER BRANTLEY, Vice President 7 and Director; GAIL CHAMPION, Vice President and Director; 8 ROBERT HOWELL, Secretary and Director; and 9 WALTER THAYER, Director

. 10 Defendants-Appellees. 11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 James Waylon Counts, District Judge 13 Hakanson & Associates 14 John R. Hakanson 15 Alamogordo, NM 16 and 17 L. Helen Bennett PC 18 L. Helen Bennett 19 Albuquerque, NM 20 for Appellant 212 Martin, Dugan & Martin 1 W.T. Martin, Jr. 2 Carlsbad, NM 3 for Appellee Ponderosa Pines Property Owners Association 4 MEMORANDUM OPINION 5 HANISEE, Judge. 6 {1} Ponderosa Pines Golf Course, LLC (Plaintiff) sought and was denied 7 declaratory judgment allowing it to convert the golf course it owns and operates 8 within the Ponderosa Pines subdivision into so me other use. Plaintiff now appeals the 9 district court’s final judgment that the P onderosa Pines property owners have the right 10 to require that the property at issue remain a golf course. Because of the 11 representations made to initial purchasers in the Ponderosa Pines development, we 12 affirm. 13 I. BACKGROUND 14 {2} Plaintiff owns a thirty-seven acre golf course located in the Ponderosa Pines 15 subdivision in Otero County. The subdivi sion was created and developed in 1973 by 16 El Dorado Land Corporation (El Dorado), and contains 125 building lots, on which 17 fifty homes have been built. Plaintiff purchased the golf coursein 2005. Despite its 18 efforts to advertise and promote the golf c ourse, Plaintiff has operated the golf course 19 at a loss over the last five years (losi ng in excess of $200,000 according to Plaintiff’s 20 complaint). 213 {3} Plaintiff sought declaratory judgment against the Ponderosa Pines Property 1 Owners Association (the Association) and owners of lots within the subdivision 2 (collectively, Defendants) to convert use of the property in question from a golf course 3 into something more profitable. In a motion for summary judgment, Defendants 4 argued that under Huning v. Potts , 90 N.M. 407, 564 P.2d 612 (1977); Ute Park 5 Summer Homes Ass’n v. Maxwell Land Grant Co. , 77 N.M. 730, 427 P.2d 249 (1967); 6 Cree Meadows, Inc. v. Palmer , 68 N.M. 479, 362 P.2d 1007 (1961); and Knight v. 7 City of Albuquerque , 110 N.M. 265, 794 P.2d 739 (Ct. App. 1990), an equitable 8 servitude in favor of the individual subdi vision property owners precluded Plaintiff 9 from changing the use of the golf course. Defendants contended that because El 10 Dorado induced purchasers to buy lots by representing that the golf course would be 11 part of the subdivision, an equitable serv itude in favor of the individual property 12 owners was created that required the golf c ourse property to remain a golf course or 13 open space in perpetuity. See Knight, 110 N.M. at 266, 794 P.2d at 740 (holding that 14 any property denominated on subdivision plats as part of a golf course must remain 15 either a golf course or open space). 16 {4} Plaintiff opposed the motion, arguing, among other things, the existence of 17 disputed material facts. The district court granted summary judgment in favor of 18 Defendants. Citing Plaintiff’s own brief, th e district court found that, “[s]ome of the 19CORRECTION PAGE: Pg. 4, line 3, Ponderosa Pines Golf Course v. Ponderosa Pines Property, 31489 HnKV, Filed 5/2/13: Changed “(I)” to “(i)”

4 people who ultimately bought lots in the P onderosa Pines devel opment were told by 1 [El Dorado] that the golf cour se would remain a golf course , some were told the golf 2 course would remain a golf course by realtors, and others assumed the golf course 3 would remain a golf course.” The districtcourt concluded that “by reason of rights 4 created by (i) implied grant, (ii) implied c ovenant, (iii) easement, and/or (iv) estoppel, 5 . . . Defendants and other Ponderosa Pines property owners have the right to have the 6 Ponderosa Pines Golf Course remain a golf c ourse in perpetuity and that the property 7 be maintained “in a condition of natural beauty and view at least equivalent to that of 8 a golf course.” Plaintiff now appeals. 9 II. DISCUSSION 10 {5} The central question in our review of the district court’s order granting 11 summary judgment to Defendants is whether the district court properly found that the 12 developer of the Ponderosa Pines subdivisi on, El Dorado, induced purchasers to buy 13 lots by representing that the golf course woul d be part of the subdivision. Plaintiff 14 also challenges the type of evidence produced at summary judgment, the district 15 court’s taking of judicial notice regarding th e general desirability of a golf course, and 16 Defendants’ effectuation of service of its motion for summary judgment. 17 {6} “Summary judgment is appropriate wh ere there are no genuine issues of 18 material fact and the movant is entitle d to judgment as a matter of law.” Self v. United 195 Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review 1 these legal questions de novo.” Id. “On appeal from the grant of summary judgment, 2 we ordinarily review the whole record inthe light most favorable to the party 3 opposing summary judgment to determine if there is any evidence that places a 4 genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects 5 & Eng’rs, Inc. , 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “The movant 6 need only make a prima facie showing that he is entitled to summary judgment. Upon 7 the movant making a prima facie showing, the burden shifts to the party opposing the 8 motion to demonstrate the existence of sp ecific evidentiary facts which would require 9 trial on the merits.” Roth v. Thompson , 113 N.M. 331, 334-35, 825 P.2d 1241, 1244- 10 45 (1992) (citation omitted). 11 {7} Judicial notice is an issue of law, which we review de novo. City of Aztec v. 12 Gurule , 2010-NMSC-006, ¶ 5, 147 N.M. 693, 228 P. 3d 477. This Court applies a de 13 novo standard of review when considering le gal questions concerning a district court’s 14 application of the law to the facts of this case. State v. Foster , 2003-NMCA-099, ¶ 6, 15 134 N.M. 224, 75 P.3d 824. 16 A. Disputed Material Facts Did Not Preclude Summary Judgment 17 {8} Defendants moved for summary judgment under the theory that a private right 18 rooted in equity precluded Plaintiff from converting the golf course into something 196 else. The New Mexico Supreme Court has es tablished that “whereland is sold with 1 reference to a map or plat showing a park or like open area, the purchaser acquires a 2 private right, generally referred to as an easement, that sucharea shall be used in the 3 manner designated.” Ute Park , 77 N.M. at 735, 427 P.2d at 253. Our Supreme Court 4 clarified that, “this is a private right, and it is not dependent on a proper making and 5 recording of a plat for purposes of dedication.” Id . Our Supreme Court explained that 6 [t]he rationale of the rule is thata grantor, who induces purchasers, 7 by use of a plat, to believe that street s, squares, courts , parks, or other 8 open areas shown on the plat will be kept open for their use and benefit, 9 and the purchasers have acted upon such inducement, is required by 10 common honesty to do that which he represented he would do. It is the 11 use made of the plat in inducing the purchasers, which gives rise to the 12 legally enforceable right in the i ndividual purchasers, and such is not 13 dependent upon a dedication to pub lic use, or upon the filing or 14 recording of the plat. 15 Id . In other words, “[a] de veloper may not induce buyers to purchase lots by pointing 16 to the present or planned existence of a park or golf course, while retaining the power 17 to alter the use of the park or golf course.” Knight , 110 N.M. at 266, 794 P.2d at 740. 18 {9} In Cree Meadows , our Supreme Court held that “[t]he fee of the golf course 19 area is owned by the plaintiff, but [the] plaintiff’s use thereof must be subordinated 20 to the extent of the easemen t in favor of the owners of any of the property in the 21 subdivision.” 68 N.M. at 485, 362 P.2d at 1011. In Ute Park , 77 N.M. at 737, 427 22 P.2d at 254, our Supreme Court further elaborated on the nature of its holding in Cree 237 Meadowsby stating: 1 [a] reference in the deed to a plat , whether recorded or unrecorded, is 2 unnecessary . . . where[] plats were prepared and used in making the 3 sales, where[] the cabinsites were actually staked or marked upon the 4 ground in accordance with the plats, and where[] representations were 5 made to the purchasers that the golf course area would be used as a golf 6 course, a playground, or a recreation area. 7 (Internal quotation marks and citation omitted.) 8 {10} We too have addressed this line of case law, stating that “[t]he private rights 9 created when buyers purchased their lots with reference to the plat are superior to the 10 developer’s attempt to reserv e the power to alter the use of the areas delineated on the 11 plat as golf course tracts.” Knight , 110 N.M. at 266, 794 P.2d at 740. As well, we 12 have noted that “it is immaterial whether the private right of action created in 13 circumstances such as [those described above] is termed an implied grant, an implied 14 covenant, an easement, or a right based on estoppel.” Knight , 110 N.M. at 266, 794 15 P.2d at 740. 16 {11} Thus, the dispositive issue on the moti on for summary judgment was whether 17 the developers represented to purchasers that the subdivision included a golf course 18 by reference to a map or pl at. As evidentiary support for their motion, Defendants 19 attached the deposition transcript of Gise la E. Melkus, who was a partner in El 20 Dorado. Melkus stated that she personally sold several lots w ithin Ponderosa Pines. 21 Melkus testified that she and her El Dorado partners showed maps of the subdivision 228 demonstrating the location of the golf courseto buyers, and that they represented to 1 buyers that the golf course was part of the subdivision. According to Melkus, the golf 2 course was the main selling point for the s ubdivision. An example of a map like that 3 which Melkus used to sell th e Ponderosa Pines subdivision lots was also attached to 4 the motion. It is important to note that this map was not the original used, but rather 5 one that Melkus identified to be like the one she used in selling lots. If undisputed, 6 these facts establish that as a result of the demonstration using the map, that Ponderosa 7 Pines purchasers acquired a private right th at the golf course property would be used 8 as a golf course. 9 {12} In response, Plaintiff argued that the existence of disputed material facts 10 precluded summary judgment. Plaintiff’s brief in response to the motion for summary 11 judgment largely argued that evidence existe d that indicated the untrustworthiness of 12 Melkus’s testimony, and also asserted that some conflicting evidence existed. Upon 13 examination of the attachments to Plaintiff’s response to Defendant’s motion for 14 summary judgment, we conclude such non- material peripheral evidence is neither 15 sufficient to impeach Melkus’s testimony or ch aracter for truthfulness, nor to establish 16 material factual disputes. 17 {13} First, Plaintiff argued Melkus lackedcredibility because she was never an 18 owner of Ponderosa Pines becau se her name was not on the deeds. As pointed out by 199 Defendants, Melkus’s name was not on the deed because she was a part owner of El 1 Dorado itself, the entity that owned and sold th e lots within Ponderosa Pines. Plaintiff 2 provided no evidence to contest Melkus’s participation in El Dorado or to challenge 3 her status as an owner or shareholder in that entity. 4 {14} Plaintiff also attempted to impeach Melkus’s tes timony by stating that the 5 subdivision had been conceived and platte d before Melkus’s association with El 6 Dorado, and therefore she did not know whatEl Dorado intended to do with the golf 7 course. Plaintiff added that Melkus coul d not have been present for every sales 8 presentation and therefore could not have known whether developers used maps 9 depicting the presence of the golf course in order to promote the sale of the lots to 10 perspective purchasers. These two arguments are non sequiturs: the dispositive issue 11 is whether, in connection with sales of lots, El Dorado induced purchasers by 12 representing that a golf coursewas part of the subdivision. Regardless of Melkus’s 13 involvement in the planning of Ponderosa Pi nes plats, she personally participated in 14 sales on behalf of El Dorado and confirmed that she and other developers used maps 15 with the golf course visuallydisplayed to encourage prospective buyers to purchase 16 the property. Melkus need not have partic ipated in every sales presentation in order 17 for the district court to conclude that the de velopers (or at least one of them) used the 18 golf course as a selling point for the subdivision. 1910 {15} Plaintiff next attacked the map used during Melkus’s deposition, saying that the 1 map was from 1979 and therefore could not have been used in making sales 2 presentations. However, as we have already pointed out, Melkus did not testify that 3 she used that particular map from her deposition in making sales presentations to 4 prospective Ponderosa Pines buyers. Rather, Melkus stated that she showed buyers 5 a map similar to the one used at her deposition. 6 {16} Plaintiff also argued below that Melkus could not accurately remember events 7 occurring at the time of her involvement with El Dorado. Plaintiff stated that evidence 8 of her faulty memory can be found by examining her depositions. Plaintiff asserted 9 that “prior to her deposition being taken[ by Defendants, Me lkus had three] or [four] 10 conversations with Defendants’ [c]ounsel , which may account for her comparatively 11 clear memory while being questioned by De fendants’ [c]ounsel, but not when being 12 question by Plaintiff’s [c]ounsel.” Yet, none of Melkus’s testimony in response to 13 questions from Plaintiff’s counsel contradi cts responses provided to defense counsel. 14 Based on our review of her deposition te stimony, it appears that Melkus recalled 15 sufficient facts regarding her involvement with Ponderosa Pines and the 16 representations regarding the golf course th at she and her fellow developers made to 17 buyers at the time. 18 {17} Plaintiff lastly contended that contradi ctory evidence existed to raise questions 1911 of fact regarding what developers actually told buyers about the golf course. Plaintiff 1 mainly pointed to the responses it received from interrogatories that it served on the 2 eighty-seven named Defendants in this case. Plaintiff stated: 3 Of those who did respond to discovery, thirty-three (33), or thirty[-]eight 4 percent (38%) said there had been no representations made to them that 5 the golf course would always remain a golf course. Eight of those are 6 currently represented by the moving attorney. Five claimed that they 7 were told by James Manatt [one of the developers] that the golf course 8 would remain. Ten claimed they were told by realtors not connected to 9 the developers. Four were told by Bill Gayso, who wa s also a realtor, 10 but one of these said Mr. Gayso sold the property, but made no 11 representations. At least three (3) said that they had dealt with James 12 Manatt and Irene Price, [developers and owners of El Dorado,] but no 13 representations were made. . . . Se veral said they “assumed” the golf 14 course would always bea golf course. Twenty-two (22) said they 15 received no promotional materials, which would have included any 16 “map” of the subdivision. 17 (Emphasis added.) Initially, Plaintiff failed to identify whether some Defendants 18 responding to the inquiries purchased the lots from the developers; it appears as 19 though many of them purchased their lots fro m an intermediate owner. Our case law 20 indicates that any private right to enforce an equitable servitude would arise during 21 the purchase of a lot from the developer, here El Dorado, the original common owner 22 of Ponderosa Pines lots and the golf course. This is because we look to whether the 23 developer’s (the grantor’s) representation to buyers created a benefit to the lot owner 24 and a burden on the property de signated for the golf course , which the developer also 25 owns and therefore has the right to burden. Knight , 110 N.M. at 266, 794 P.2d at 740; 2612 see generally Dunning v. Buending , 2011-NMCA-010, ¶¶ 10-11, 18, 149 N.M. 260, 1 247 P.3d 1145 (describing the requirements of equitable servitudes, also known as 2 covenants which run with the land). 3 {18} Furthermore, in the above excerpt from Plaintiff’s brief to the district court in 4 opposition to Defendants’ motion for summary judgment, Plaintiff stated that some 5 buyers reported that they were told direc tly by one of the developers that the golf 6 course would remain. This evidence not only corroborates Melkus’s deposition 7 testimony, but further supports Defendants’ motion for summary judgment, 8 particularly because Defendants seek to enforce a private ri ght pursuant to the 9 existence of an equitable servitude. To prove the origin and enforceability of this 10 private right, Defendants only need to show that the developer represented to some of 11 the buyers that the golf course would remain. See Rowe v. May , 44 N.M. 264, 267, 12 101 P.2d 391, 393 (1940) (noting that surrounding property owners may enforce a 13 covenant if it runs with the land for the benefit of all property owners within a 14 restricted area). Plaintiff’s remaining evidence that some Defendants did not have 15 representations made to them individually or that some of them assumed but were not 16 told that the golf course would remain fails to materially refute Defendants’ evidence. 17 Plaintiff does not show that these were th e original grantees of the lots. Because 18 Plaintiff concedes that somegrantees received assurances from El Dorado that the golf 1913 course would remain and there is no requirement for Defendants to demonstrate that 1 such an assurance was made to all grantees of the lots, Plaintiff’s argument is 2 insufficient to preclude the imposition of summary judgment in favor of Defendants. 3 {19} Accordingly, it appears that Plaintiff faile d to establish the existence of disputed 4 material facts regarding whether El Dorado represented to buyers that Ponderosa Pines 5 was to be a golf course community. The di strict court’s grant of summary judgment 6 was therefore appropriate. 7 B. Defendants Have Produced Evidence of Representations to Home Owners 8 Regarding the Existence of the Go lf Course Sufficient to Create an 9 Equitable Servitude 10 {20} Because Defendants have not produced the actual map used by El Dorado to 11 display the Ponderosa Pines lots and the golf course to buyers, Plaintiff argues that 12 there are only “alleged verbal representati ons” to prove that the developers induced 13 purchasers with the golf course. Plaintiff contends that verbal representations about 14 the golf course are insufficient to establish the propriety of summary judgment. 15 {21} During the proceedings in district court, Defendants produced Melkus’s 16 testimony which showed that developers made representations to prospective buyers 17 about the golf course using written maps. And, Plaintiff produced interrogatory 18 responses from purchasers stating that developers asserted to them that the golf course 19 would remain part of Pondero sa Pines. As well, an illu strative map was utilized for 2014 the purpose of showing the type of document on which the existence and location of 1 the golf course was depicted. 2 {22} Based upon New Mexico’s policy to protect “the right of the defendants and 3 their grantees, who purchased their property in reliance on the existence of the golf 4 course, to have the area preserved as a place of natural beauty and view,” we conclude 5 that this evidence is collectively sufficient to prove that representations about the 6 existence of a golf course were made to buyers and that representations were made in 7 the form of maps. Cree Meadows , 68 N.M. at 484, 362 P.2d at 1010. Defendants need 8 not have produced the actual map used inmaking the sales in order to succeed in 9 summary judgment. 10 C. The District Court Did Not Commit Reversible Error InTaking Judicial 11 Notice About the Presence of a Golf Course Constituting an Inducement 12 to Purchasers 13 {23} In its order of summary judgment, the district court took “judicial notice that 14 the existence of a golf courseis an inducement to purchas ers of lots abutting the golf 15 course.” Plaintiff argues that this is “a di sputed adjudicative fact in this case that was 16 improperly drawn in favor of the moving party Association on summary judgment.” 17 Plaintiff asserts that “a nearby golf coursecan be a disincentiv e to purchase to some 18 homebuyers, because of the physical danger and property damage associated with golf 19 balls being hit into private lands, and thatother commercially feasible uses would 2015 [constitute an] equal or greater attraction. ” Assuming without deciding that it was 1 improper for the district court to take judici al notice as it did, reversible error did not 2 result. 3 {24} In Ute Park , our Supreme Court explained that the purchaser’s equitable right 4 to preserve the open space comes into existe nce as a result of “the representations by 5 the [grantor]’s agents in accomplis hing the sales of the lots[.]” Id. at 733, 427 P.2d at 6 252. Later, in Huning , our Supreme Court described the “inducements” involved in 7 Cree Meadowsand Ute Park as “private rights to the use of land.” Huning , 90 N.M. 8 at 409, 564 P.2d at 614. Lastly, in Knight , this Court concluded that it was sufficient 9 that the buyers “relied on the continued ex istence of the golf course in purchasing 10 their properties from the developer” to prove that a private right in the form of an 11 easement or equitable servitude existed. 110 N.M. at 266, 744 P.2d at 740. 12 {25} Thus, the taking of judicialnotice by the district court in this regard does not 13 bear upon the equitable right of Defendants resulting from existing law applied to the 14 facts of this case. Accordingly, the distri ct court’s taking of judicial notice of the 15 existence of a golf course as an indu cement to purchase property was not error. 16 D. The Association’s Failure to Serve All Defendants With the Motion for 17 Summary Judgment Was Not Fatal to the Motion 18 {26} The Association served its motion on all counsel of record in the case, but not 19 on unrepresented Defendants. Plaintiff asserts that the A ssociation’s failure to serve 2016 its motion for summary judgment on all indi vidual Defendants was fatal to the motion. 1 {27} “The consequences of a failure to abide by Rule 1-005’s [NMRA] requirement 2 that motions be served on all parties to a lawsuit depend upon the nature of the paper 3 involved.” Western Bank v. Fluid Assets Dev. Corp ., 111 N.M. 458, 461, 806 P.2d 4 1048, 1051 (1991). To determine if the failure is fatal, we consid er “whether a failure 5 to serve a particular motion is material in affecting the unnoticed party’s rights.” Id

. 6 In Western Bank , the plaintiff’s failureto serve one of the parties “its motion for 7 default and foreclosure . . . caused [that party] to lose the opportunity to attend or 8 prepare for the foreclosure sale.” Id. As a result, the Supreme Court concluded that 9 the failure to serve the motion was fatal. Id

. 10 {28} Here, the motion for summary judgment against Plaintiff would not have 11 materially affected the other Defendant s, who largely did not respond to the 12 complaint. The motion benefitted all Defendants and did not interfere with their 13 ability to assert their rights in the lawsuit. Thus, the Association’s failure to serve 14 unrepresented co-defendants is not fatal to its motion. We affirm the district court on 15 this ground as well. 16 III. CONCLUSION 17 {29} For the reasons stated herein, we affirm the judgment of the district court. 18 {30} IT IS SO ORDERED. 1917 ________________________ 1 J. MILES HANISEE, Judge 2

WE CONCUR: 3

4 RODERICK T. KENNEDY, Chief Judge 5

6 MICHAEL E. VIGIL, Judge 7