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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 B.T.U. BLOCK & CONCRETE, INC., 3 a New Mexico corporation,
4 Plaintiff-Appellee,
5 v. NO. 32,092
6 TONY C. ORTEGA,
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 9 Eugenio S. Mathis, District Judge
10 Nicholas T. Leger 11 Las Vegas, NM
12 L. Helen Bennett 13 Albuquerque, NM
14 for Appellee
15 Walcott & Henry, P.C. 16 Donald A. Walcott 17 Santa Fe, NM
18 for Appellant
19 MEMORANDUM OPINION 1 VIGIL, Judge.
2 {1} Defendant Tony Ortega (Ortega) appeals the district court’s judgment after a
3 bench trial quieting title to two tracts of land in favor of B.T.U. Block & Concrete,
4 Inc. (BTU). Concluding that BTU satisfied the elements of adverse possession of
5 Tract 1, we affirm BTU’s ownership as to Tract 1. However, because BTU failed to
6 prove the elements of adverse possession of Tract 2, we reverse as to Tract 2. We
7 remand to the district court to resolve BTU’s claim for a private prescriptive easement
8 over Tract 2.
9 BACKGROUND
10 {2} BTU initiated this suit to quiet title to two adjacent tracts of land in Las Vegas,
11 New Mexico (Tract 1 and Tract 2) . Tract 1, consisting of 19.077 acres, is situated
12 between some railroad tracks on the west and Tract 2 on the east. Tract 2, a strip of
13 land measuring approximately 80 feet from east to west and 1500 feet from north to
14 south, shares its western border with Tract 1 and eastern border with the Interstate 25
15 right-of-way. BTU conceded that Ortega has record title to Tract 2. No fences have
16 ever separated Tract 1 from Tract 2. However, there is a gravel road on Tract 2, along
17 its border to Tract 1, that extends from a public paved road. BTU uses this road as its
18 primary access to Tract 1. BTU has used the area east of the road on Tract 2 for
19 employee parking and to store concrete block since it purchased the property in 1983
2 1 from T. Brown Constructors, Inc. (Brown), which had also utilized Tract 2.
2 {3} In its complaint, BTU sought to quiet title to Tract 1 to prevent Ortega from
3 making any adverse claims to it, while it claimed title to Tract 2 by adverse
4 possession. In the alternative, BTU sought a private prescriptive easement over Tract
5 2. The district court ruled that BTU’s record title to Tract 1 was not contested and that
6 BTU owns Tract 1 in fee simple absolute. The district court quieted title to Tract 2
7 in favor of BTU by adverse possession. Ortega appeals. Further pertinent facts are
8 discussed in the relevant sections below.
9 DISCUSSION
10 A. Tract 1
11 {4} Ortega challenges BTU’s title to Tract 1, arguing that the district court erred in
12 concluding that BTU’s record title to Tract 1 was uncontested. He contends that while
13 he did not contest BTU’s ownership of Tract 1 in his answer, the court later granted
14 him permission to amend his answer during trial to dispute BTU’s title to Tract 1.
15 Although he claims no ownership of Tract 1 on appeal, Ortega maintains that the
16 evidence shows that BTU lacks record title to Tract 1 and that BTU did not present
17 clear and convincing evidence to prove title by adverse possession over Tract 1.
18 {5} We agree that Ortega did contest BTU’s record title to Tract 1 because the
19 district court granted Ortega’s motion to amend his answer. During Ortega’s trial
3 1 testimony, using an exhibit containing a surveyor’s map of Tract 1 and Tract 2, Ortega
2 pointed to areas of Tract 1 that overlapped with land south and west of Tract 2 that he
3 claimed to own by virtue of deeds he acquired in 2003 and 2004. BTU objected,
4 arguing that Ortega should not be permitted to challenge BTU’s ownership of Tract
5 1 in his testimony because he conceded that BTU owned Tract 1 in his answer to
6 BTU’s complaint. At this point, Ortega moved to amend his answer so that he could
7 challenge BTU’s ownership of Tract 1, and the district court granted this motion.
8 {6} It is unnecessary for this Court to clarify the district court’s ambiguous findings
9 and conclusions regarding whether Ortega contested BTU’s ownership of Tract 1.
10 The district court also ruled that BTU “is the owner . . . in fee simple absolute” of
11 Tract 1. We will affirm the district court’s decision regarding Tract 1 if it is right for
12 any reason, so long as it is not unfair to Ortega that we do so. See Cordova v. World
13 Fin. Corp. of N.M., 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901 (“[I]t is
14 established law that our appellate courts will affirm a district court’s decision if it is
15 right for any reason, so long as the circumstances do not make it unfair to the
16 appellant to affirm.”). In his briefing to this Court, Ortega argued that BTU failed to
17 establish record title or title by adverse possession over Tract 1. Thus, it is not unfair
18 to Ortega for us to address the issue of BTU’s ownership of Tract 1 under either of
19 these theories.
4 1 1. Record Title
2 {7} BTU recorded a warranty deed from Brown in 1983 that did not contain a legal
3 description of the property or any description such that it could be located by a
4 surveyor. In 1992, the deed was re-recorded with the legal description of Tract 1
5 attached to it as Exhibit A. The re-recorded deed notes, “THIS DEED IS BEING RE-
6 RECORDED IN ORDER TO INCLUDE THE EXHIBIT ‘A’ WHICH WAS
7 OMITTED FROM THE ORIGINAL RECORDING.” Jay Moore, a witness for
8 Ortega who owns a title company, testified that occasionally in the title industry, it is
9 discovered that an exhibit is accidentally omitted from a recording and when it is
10 discovered, the title company will re-record the deed with the exhibit attached. Brown
11 acquired title to Tract 1 in January 1981 from Harold Saueresigg. The warranty deed
12 from Saueressig to Brown contains the same legal description to Tract 1 as is the
13 description attached as Exhibit A of BTU’s 1992 re-recorded deed.
14 {8} Referring to NMSA 1978, Section 14-8-4 (1981, amended 2011 and 2013),
15 Ortega contends that the 1983 deed cannot give BTU record title of Tract 1 because
16 it contained no legal description of Tract 1 and because the 1992 deed did not contain
17 a contemporaneous signature by Brown as grantor, it should not have been accepted
18 for recording. Section 14-8-4, at the pertinent time, provided that “[a]ny instrument
19 of writing, not duly acknowledged and certified, may not be filed and recorded, nor
5 1 considered of record, though so entered.” (Emphasis added.) However, we decline
2 to consider the legal significance, if any, of the 1983 acknowledgment on the 1992 re-
3 recorded deed. We need not decide whether BTU has record title to Tract 1, because,
4 as we next explain, BTU proved that it satisfied the elements of adverse possession
5 of Tract 1 by clear and convincing evidence.
6 2. Adverse Possession
7 {9} “[A] party claiming ownership of land by adverse possession must prove by
8 clear and convincing evidence continuous adverse possession for ten years under color
9 of title, in good faith, and payment of taxes on the property during these years.” In re
10 Estate of Duran, 2003-NMSC-008, ¶ 8, 133 N.M. 553, 66 P.3d 326 (internal quotation
11 marks and citation omitted); see NMSA 1978, § 37-1-22 (1973) (adverse possession
12 statute).
13 {10} Ortega does not challenge that BTU possessed Tract 1 for at least ten years nor
14 that it paid taxes on Tract 1 for these years. Indeed, evidence in the record shows that
15 BTU possessed and paid taxes on Tract 1 for more than thirty years. Ortega solely
16 challenges BTU’s good faith color of title.
17 {11} In order to achieve color of title, the adverse possessor “must have a writing or
18 a conveyance of some kind that purports to convey the land title to which is claimed.”
19 City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, ¶ 22, 150 N.M. 428, 260
6 1 P.3d 414 (internal quotation marks and citation omitted); see § 37-1-22 (stating that
2 an adverse possessor who has met the other requirements for adverse possession “shall
3 be entitled to keep . . . such quantity of lands as shall be specified and described in
4 some writing purporting to give color of title to such adverse occupant”). “What will
5 suffice as color of title is a question of law, which we review de novo.” In re Estate
6 of Duran, 2003-NMSC-008, ¶ 20 (citation omitted). On its face, the 1992 deed
7 contains the elements a document is required to have in order to achieve color of title
8 for BTU. The deed purports to convey the land described in Exhibit A, which
9 contains the legal description of Tract 1, from Brown to BTU.
10 {12} Ortega challenges the good faith element of color of title. “Good faith in this
11 context is freedom from a design to defraud the person having the better title.” Id.
12 ¶ 21 (internal quotation marks and citation omitted). “We will typically apply a
13 presumption that this element has been satisfied by the person claiming title by
14 adverse possession.” Id. “[B]ad faith will be found not in the relative appearance of
15 validity of the instrument chosen for color of title, but in the methods used in the
16 acquisition of such instrument.” Id. (internal quotation marks and citation omitted).
17 Ortega argues that there is no evidence that Brown or any other third party provided
18 the legal description of Tract 1 that was eventually attached as Exhibit A in the re-
19 recorded deed. Ortega insinuates that because there is no evidence of the legal
7 1 description’s origin, BTU could have obtained a copy and attached the description
2 itself. Quoting In re Estate of Duran, 2003-NMSC-008, ¶ 23, he asserts, “[A] deed
3 made by a man to himself could not well be supposed to have the characteristics of
4 color of title.” However, there is no evidence in the record to support Ortega’s
5 assertions.
6 {13} The evidence in the record supports our presumption that BTU acquired the
7 1992 deed in good faith. The 1992 deed itself notes that it is being re-recorded to
8 include Exhibit A because it was omitted from the original deed. The BTU principal
9 testified that he had no knowledge of the circumstances of the re-recording, and a title
10 company owner testified that it is standard in the industry to simply re-record deeds
11 with attachments that were initially erroneously omitted. The 1983 deed, although no
12 description was attached, does demonstrate that Brown sold BTU some property.
13 There was also testimony that BTU had worked with Brown on a highway bypass
14 construction project and that BTU bought property from Brown when the project was
15 complete and Brown put Tract 1 up for sale and moved off of it. BTU moved on it
16 and immediately set up its cement business. There was no evidence presented at trial
17 to suggest that the re-recordation of the 1992 deed was made in bad faith by BTU to
18 attempt to gain ownership of land that it did not own. Therefore, we conclude that the
19 evidence unquestionably provides BTU good faith color of title to Tract 1. Therefore,
8 1 BTU has satisfied all of the elements of adverse possession of Tract 1.
2 B. Tract 2
3 {14} Ortega also challenges the district court’s decision to quiet title to Tract 2 in
4 favor of BTU by adverse possession. The district court found that BTU had openly
5 and continuously occupied a portion of Tract 2 since 1983, that BTU paid all real
6 estate taxes on Tract 2, and that BTU had “proven all of the elements of adverse
7 possession over Tract 2 by clear and convincing evidence.” Ortega argues there is not
8 substantial evidence that BTU had color of title over Tract 2 nor that BTU paid taxes
9 on Tract 2. We agree.
10 1. Color of Title
11 {15} Here, BTU relies on its chain of title and deed to Tract 1 as color of title for
12 Tract 2. BTU asserts that the district court resolved the “conflicting evidence” of
13 color of title in its favor. However, there is no conflicting evidence in the record
14 regarding what parcel of land BTU’s deed purports to convey. The district court
15 found that the legal description in the deed is for Tract 1. Despite BTU’s insistence
16 at oral argument that its expert testified as to an area of “overlap” between the
17 description of Tract 1 in BTU’s deed and the land in Tract 2, BTU’s expert in fact
18 testified that the legal description in BTU’s deed solely describes Tract 1. He even
19 identified Tract 1 as the parcel of land described in BTU’s deed by drawing an outline
9 1 of Tract 1 on an exhibit containing a surveyor’s map of Tract 1 and Tract 2. There is
2 no overlap between Tract 1 and Tract 2 on the map. Any “overlap” referenced by the
3 expert was in reference to Ortega’s other property he acquired in deeds for the land
4 south and west of Tract 2.
5 {16} In its brief to this Court, BTU argued that it offered sufficient evidence that it
6 “relied” on its deed to Tract 1 “in claiming title to the land encompassed by both Tract
7 [1] and Tract [2].” BTU’s argument fails because the deed BTU used to establish
8 color of title to Tract 2 does not describe the land in Tract 2, so it cannot provide color
9 of title for Tract 2. The writing offered for color of title “must attempt to give title to
10 the adverse occupant, but for some reason fails to do so.” Slemmons v. Massie, 1984-
11 NMSC-108, ¶ 4, 102 N.M. 33, 690 P.2d 1027; accord Currier v. Gonzales, 1967-
12 NMSC-259, ¶ 5, 78 N.M. 541, 434 P.2d 66. Our Supreme Court has repeatedly
13 declined to find color of title when the document offered fails to attempt to convey the
14 property claimed. See, e.g., Fischer v. Mascarenas, 1979-NMSC-063, ¶ 8, 93 N.M.
15 199, 598 P.2d 1159 (ruling that “[s]ince the uncontradicted evidence of the survey
16 indicates that the [deeds offered for color of title] do not describe the land in question,
17 those deeds cannot be the basis of a valid claim and cannot provide color of title for
18 purposes of adverse possession”); Esquibel v. Hallmark, 1978-NMSC-080, ¶ 9, 92
19 N.M. 254, 586 P.2d 1083 (holding that the adverse possessors failed to show color of
10 1 title since the deed they used did not describe the portion of property they claimed by
2 adverse possession).
3 {17} BTU argues that because it believed in good faith that its deed described Tract
4 2 in addition to Tract 1, the deed provides color of title to Tract 2. The district court
5 found that BTU in good faith believed that the warranty deed from Brown transferred
6 all of the land encompassing Tract 1 and Tract 2. However, BTU offers no legal
7 support that an adverse possessor’s good faith belief that a document provides title to
8 property is sufficient to achieve color of title over that property. Where a party cites
9 no authority to support an argument, we may assume no such authority exists. In re
10 Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Without such
11 authority, we are left with the well-settled law that the document used to achieve color
12 of title over a piece of land must purport to convey that land, City of Rio Rancho,
13 2011-NMSC-037, ¶ 22, but for some reason fails to do so, Slemmons, 1984-NMSC-
14 108, ¶ 4. We therefore reject BTU’s reliance on its erroneous good faith belief that
15 its deed for Tract 1 included Tract 2 as color of title to Tract 2.
16 2. Payment of Taxes
17 {18} Ortega also challenges the district court’s finding that BTU paid all real estate
18 taxes assessed against Tract 2. Because BTU lacks color of title, it is not necessary
19 for us to answer this argument. Title by adverse possession cannot be proved unless
11 1 all of these elements are established. Slemmons, 1984-NMSC-108, ¶ 6. However, we
2 address this argument as an alternative disposition.
3 {19} BTU asserts that the district court properly resolved “the conflicting evidence
4 of payment of taxes” in favor of BTU. However, there is no conflicting evidence
5 regarding BTU’s payment of taxes in the record. In fact, there is no evidence in the
6 record whatsoever that BTU paid any taxes on Tract 2. The evidence of BTU’s tax
7 payments shows that BTU paid taxes from 1992 to 2007 on 19.08 acres. BTU’s deed
8 to Tract 1 covers 19.077 acres. While the San Miguel County treasurer testified that
9 BTU also paid all taxes it was assessed from 1983 to 1991, no records existed for this
10 period so there is no evidence that the acreage that was assessed for these years
11 covered Tract 2.
12 {20} BTU relies on testimony from San Miguel County Tax Assessor Elaine Estrada
13 that records “showed BTU to be the owner of the land in question for taxing
14 purposes.” Ms. Estrada testified that BTU’s property was formerly plotted on the tax
15 assessor’s map as encompassing both Tract 1 and Tract 2 for tax assessment purposes
16 and that Ortega’s property was plotted as the parcel north of BTU. She also testified,
17 however, that the tax assessor’s office made an error when plotting Ortega’s property
18 and did not plot it as indicated by the survey, which is more accurate. Ms. Estrada
19 advised that Ortega’s property was plotted correctly on the county assessor’s map in
12 1 2001 and that she was unsure as to how many years prior to that the map was wrong.
2 {21} Ms. Estrada’s testimony and the exhibit of the old assessment map showing
3 BTU being assessed for Tract 2 does not provide a conflict in the evidence regarding
4 what taxes BTU actually paid. There was no evidence in the record that BTU ever
5 even saw the map. Even if it had, the erroneous map is not evidence of what was
6 actually assessed nor is it a record of payment of taxes on Tract 2. Again, the actual
7 tax assessments to and payments made by BTU only covered 19.08 acres. Even
8 BTU’s principal conceded in his testimony that it appears BTU was only paying taxes
9 on 19.08 acres, but he had always (erroneously) assumed that 19.08 acres included all
10 of the land between the railroad tracks and the highway right-of-way to include Tract
11 2. The district court’s finding that BTU paid taxes on Tract 2 is therefore not
12 supported by substantial evidence.
13 {22} Despite its inability to show any actual payments of taxes on Tract 2, BTU
14 appears to rely on its good faith payment of all taxes assessed by the San Miguel
15 County tax assessor as satisfaction of the payment of taxes element of adverse
16 possession. BTU asserts that “[w]here BTU occupied and used the lands in question,
17 and paid the taxes as billed by the authorities, the presumption must arise that the
18 payment of taxes requirement [in the adverse possession statute] was met.” Whether
19 the erroneous belief that tax payments cover a disputed parcel of property is sufficient
13 1 to satisfy the payment of taxes element is a legal question, which we review de novo.
2 See In re Estate of Duran, 2003-NMSC-008, ¶ 21.
3 {23} BTU urges this Court to apply the same rationale regarding a good faith
4 payment of taxes utilized by our Supreme Court in Pratt v. Parker, 1953-NMSC-005,
5 57 N.M. 103, 255 P.2d 311. We decline to do so. Pratt involved plaintiffs who had
6 paid the taxes they were billed, believing that the payments covered the taxes for the
7 property they owned. Id. ¶ 8. However, the tax roll erroneously described their
8 property, thus they were actually paying the taxes on the described property, which
9 was not owned by them. Id. ¶¶ 4, 8. The Court agreed with the plaintiffs’ contention
10 that since they had paid taxes on what was assessed “in good faith” and “thinking and
11 intending” the payment to cover the property they owned, the payments constituted
12 a good defense against a tax sale. Id. ¶ 8. The tax assessor’s mistake in Pratt could
13 have potentially caused the plaintiffs to lose property they actually owned despite their
14 good faith tax payments. Whereas, here, BTU attempts to use its good faith tax
15 payments on property it owned as grounds to gain title to property it does not own and
16 for which it paid no taxes. The rationale utilized in Pratt is not applicable under such
17 circumstances. BTU’s failure to pay taxes on Tract 2 is fatal to its claim for adverse
18 possession over Tract 2. See Platt v. Martinez, 1977-NMSC-026, ¶ 4, 90 N.M. 323,
19 563 P.2d 586 (refusing to consider whether the defendant met any of the other
14 1 elements of adverse possession since there was no evidence that the defendant had
2 paid taxes on any more land than what was covered by his deed).
3 CONCLUSION
4 {24} We affirm the district court’s decision regarding Tract 1. We reverse the
5 district court’s decision regarding Tract 2 and remand to the district court to resolve
6 BTU’s remaining claim for a private easement by prescription over Tract 2.
7 {25} IT IS SO ORDERED.
8 _____________________________ 9 MICHAEL E. VIGIL, Judge
10 WE CONCUR:
11 ___________________________________ 12 RODERICK T. KENNEDY, Chief Judge
13 _________________________________ 14 JONATHAN B. SUTIN, Judge