1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 DAVID M. GONZALES,
8 Plaintiff-Appellee,
9 v. NO. 31,452
10 PHILIP GONZALES,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY 13 Edmund H. Kase, III, District Judge
14 John R. Gerbracht 15 Socorro, NM
16 for Appellee
17 Roscoe A. Woods & Associates 18 Roscoe A. Woods 19 Socorro, NM
20 for Appellant
21 MEMORANDUM OPINION
22 WECHSLER, Judge.
23 Defendant appeals from the grant of summary judgment to Plaintiff in a quiet- 1 title action. This Court issued a calendar notice proposing to affirm. Defendant has
2 filed a memorandum in opposition, which this Court has duly considered.
3 Unpersuaded, we summarily affirm the district court’s grant of summary judgment.
4 Issue 1: Defendant argues on appeal, as he did below, that the documents
5 supporting Plaintiff’s motion for summary judgment describe the property
6 inconsistently, and therefore fail to identify the property adequately to entitle Plaintiff
7 to judgment in his favor. Defendant argues that in some documents, the property is
8 shown to occupy portions of both Section 16 and Section 17 of Township 5S, while
9 in others it is entirely within Section 17. [DS 3] Defendant also argues that in the
10 1942 tax deed, the land at issue is described only as a half-interest in Tract 30, while
11 in all subsequent documents it is described as Tract 30B. [DS 3]
12 Defendant argues that summary judgment was improper based on the reasoning
13 of Brylinski v. Cooper, 95 N.M. 580, 624 P.2d 522 (1981). [MIO 2] But that case
14 involved title derived from an initial property description that was indisputably in
15 error. Id. at 582, 624 P.2d at 524 (“The substitution of ‘NE’ for ‘NW’ resulted in the
16 identification of an entirely different parcel of property than that which was intended
17 to have been assessed.”). Here, while the description in the tax deed was ambiguous
18 as to which portion of Tract 30 was conveyed, and while its single-line description did
19 not mention any encroachment into Section 16, Defendant identifies no evidence that
2 1 the deed was otherwise substantially incorrect. Brylinski is authority as to cases where
2 title derives from a clearly erroneous prior property description. This is simply not
3 such a case; here, the boundaries of the property can be ascertained with reasonable
4 certainty from the descriptions in the record.
5 We hold that any factual issue that could have arisen from the discrepancy
6 between the half-interest described in the tax deed and the later documents’
7 description of a subdivided parcel was waived in this case by Defendant’s reliance on
8 a quitclaim deed pertaining to Tract 30-B. [RP 49] Defendant counterclaimed against
9 Plaintiff in the action below, claiming “right, title and interest in and to [District] Map
10 179, Tract 30-B.” [RP 17] Defendant cannot contest, on the one hand, the description
11 of a subdivided parcel, while relying, on the other hand, on a deed containing the same
12 description of the same subdivided parcel.
13 We noted at Page 3 of our calendar notice that Defendant had failed to address
14 in his docketing statement his reliance on a quitclaim deed containing the same
15 property description on which Plaintiff relies. In his memorandum in opposition to
16 our calendar notice, Defendant responds, apparently to this point, by stating “[t]his is
17 false. Plaintiff’s title is not based on [District] tracts.” [MIO 2] However, Defendant
18 does not go on to explain in what way it is “false” to state that the quitclaim deed on
19 which he bases his title, and which pertains on its face to Tract 30B on a District map
3 1 [RP 49], describes the same property to which Plaintiff sought to quiet title.
2 We acknowledge that the 1942 tax deed does not specify to which one-half
3 interest it pertains. But it is clear that every subsequent transfer of the property has
4 consistently conveyed a subdivided interest in the tract. Obviously, Tract 30 was
5 divided at some time between the issuance of the tax deed and the transfer of Tract
6 30B to the District. That no record of such division was introduced in the district
7 court does not, perforce, invalidate all subsequent transfers of the land, nor does it
8 create a genuine issue of disputed material fact for purposes of Rule 1-056. And
9 again, Defendant cannot contest the validity of the division when he himself relies on
10 a quitclaim deed pertaining to the same divided parcel. For the same reason, we hold
11 that there was no genuine issue of material fact presented by any discrepancy
12 concerning the property’s presence in Sections 16 and 17, or only in Section 17.
13 Whether the property lies in one or both Sections, both Plaintiff and Defendant claim
14 title pursuant to documents referring for their descriptions of the property to a District
15 map, which description does not refer to section numbers at all. [RP 54, 68]
16 A recurring theme of Defendant’s argument is that the boundaries of the
17 property cannot be ascertained by reference to the District map. [DS 9, MIO 3, RP
18 60] In his sur-response in support of his motion for summary judgment, Plaintiff
19 submitted a boundary survey plat dated August 19, 2010. [RP 83] Plaintiff’s
4 1 intention was to demonstrate that the boundaries of the property could be ascertained,
2 and had in fact been ascertained, by a licensed surveyor. [RP 81] Defendant does not
3 address this fact in his docketing statement or his memorandum in opposition to our
4 calendar notice. As to Defendant’s first issue, we hold that the district court properly
5 determined that Plaintiff made, and Defendant failed to overcome, a prima facie
6 showing of entitlement to judgment as a matter of law.
7 Issue 2: Defendant continues to argue that Plaintiff’s motion for summary
8 judgment was improper in that it did not comply with the requirement in Rule 1-056
9 NMRA of a statement of undisputed material facts. [MIO 3-4] We noted in our
10 calendar notice that the motion did, in fact, set forth a series of factual allegations
11 supported by references to the record. [PSD 3-4] Defendant continues to argue that
12 because the motion “failed to directly list undisputed material facts as required by the
13 rule, it is obvious the same did not substantial [sic] comply [with Rule 1-056].” [MIO
14 4] Now, however, Defendant argues that the failure of compliance related, not to the
15 form of the undisputed-fact section, but to Plaintiff’s failure to enumerate “specific
16 facts, e.g. how [P]laintiff got title to lands in Section 16.” [Id.] As Defendant now
17 characterizes the issue, it is resolved by our holding on Issue 1: Plaintiff presented
18 evidence of valid title to Tract 30B as shown on a specific District map (without
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1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 DAVID M. GONZALES,
8 Plaintiff-Appellee,
9 v. NO. 31,452
10 PHILIP GONZALES,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY 13 Edmund H. Kase, III, District Judge
14 John R. Gerbracht 15 Socorro, NM
16 for Appellee
17 Roscoe A. Woods & Associates 18 Roscoe A. Woods 19 Socorro, NM
20 for Appellant
21 MEMORANDUM OPINION
22 WECHSLER, Judge.
23 Defendant appeals from the grant of summary judgment to Plaintiff in a quiet- 1 title action. This Court issued a calendar notice proposing to affirm. Defendant has
2 filed a memorandum in opposition, which this Court has duly considered.
3 Unpersuaded, we summarily affirm the district court’s grant of summary judgment.
4 Issue 1: Defendant argues on appeal, as he did below, that the documents
5 supporting Plaintiff’s motion for summary judgment describe the property
6 inconsistently, and therefore fail to identify the property adequately to entitle Plaintiff
7 to judgment in his favor. Defendant argues that in some documents, the property is
8 shown to occupy portions of both Section 16 and Section 17 of Township 5S, while
9 in others it is entirely within Section 17. [DS 3] Defendant also argues that in the
10 1942 tax deed, the land at issue is described only as a half-interest in Tract 30, while
11 in all subsequent documents it is described as Tract 30B. [DS 3]
12 Defendant argues that summary judgment was improper based on the reasoning
13 of Brylinski v. Cooper, 95 N.M. 580, 624 P.2d 522 (1981). [MIO 2] But that case
14 involved title derived from an initial property description that was indisputably in
15 error. Id. at 582, 624 P.2d at 524 (“The substitution of ‘NE’ for ‘NW’ resulted in the
16 identification of an entirely different parcel of property than that which was intended
17 to have been assessed.”). Here, while the description in the tax deed was ambiguous
18 as to which portion of Tract 30 was conveyed, and while its single-line description did
19 not mention any encroachment into Section 16, Defendant identifies no evidence that
2 1 the deed was otherwise substantially incorrect. Brylinski is authority as to cases where
2 title derives from a clearly erroneous prior property description. This is simply not
3 such a case; here, the boundaries of the property can be ascertained with reasonable
4 certainty from the descriptions in the record.
5 We hold that any factual issue that could have arisen from the discrepancy
6 between the half-interest described in the tax deed and the later documents’
7 description of a subdivided parcel was waived in this case by Defendant’s reliance on
8 a quitclaim deed pertaining to Tract 30-B. [RP 49] Defendant counterclaimed against
9 Plaintiff in the action below, claiming “right, title and interest in and to [District] Map
10 179, Tract 30-B.” [RP 17] Defendant cannot contest, on the one hand, the description
11 of a subdivided parcel, while relying, on the other hand, on a deed containing the same
12 description of the same subdivided parcel.
13 We noted at Page 3 of our calendar notice that Defendant had failed to address
14 in his docketing statement his reliance on a quitclaim deed containing the same
15 property description on which Plaintiff relies. In his memorandum in opposition to
16 our calendar notice, Defendant responds, apparently to this point, by stating “[t]his is
17 false. Plaintiff’s title is not based on [District] tracts.” [MIO 2] However, Defendant
18 does not go on to explain in what way it is “false” to state that the quitclaim deed on
19 which he bases his title, and which pertains on its face to Tract 30B on a District map
3 1 [RP 49], describes the same property to which Plaintiff sought to quiet title.
2 We acknowledge that the 1942 tax deed does not specify to which one-half
3 interest it pertains. But it is clear that every subsequent transfer of the property has
4 consistently conveyed a subdivided interest in the tract. Obviously, Tract 30 was
5 divided at some time between the issuance of the tax deed and the transfer of Tract
6 30B to the District. That no record of such division was introduced in the district
7 court does not, perforce, invalidate all subsequent transfers of the land, nor does it
8 create a genuine issue of disputed material fact for purposes of Rule 1-056. And
9 again, Defendant cannot contest the validity of the division when he himself relies on
10 a quitclaim deed pertaining to the same divided parcel. For the same reason, we hold
11 that there was no genuine issue of material fact presented by any discrepancy
12 concerning the property’s presence in Sections 16 and 17, or only in Section 17.
13 Whether the property lies in one or both Sections, both Plaintiff and Defendant claim
14 title pursuant to documents referring for their descriptions of the property to a District
15 map, which description does not refer to section numbers at all. [RP 54, 68]
16 A recurring theme of Defendant’s argument is that the boundaries of the
17 property cannot be ascertained by reference to the District map. [DS 9, MIO 3, RP
18 60] In his sur-response in support of his motion for summary judgment, Plaintiff
19 submitted a boundary survey plat dated August 19, 2010. [RP 83] Plaintiff’s
4 1 intention was to demonstrate that the boundaries of the property could be ascertained,
2 and had in fact been ascertained, by a licensed surveyor. [RP 81] Defendant does not
3 address this fact in his docketing statement or his memorandum in opposition to our
4 calendar notice. As to Defendant’s first issue, we hold that the district court properly
5 determined that Plaintiff made, and Defendant failed to overcome, a prima facie
6 showing of entitlement to judgment as a matter of law.
7 Issue 2: Defendant continues to argue that Plaintiff’s motion for summary
8 judgment was improper in that it did not comply with the requirement in Rule 1-056
9 NMRA of a statement of undisputed material facts. [MIO 3-4] We noted in our
10 calendar notice that the motion did, in fact, set forth a series of factual allegations
11 supported by references to the record. [PSD 3-4] Defendant continues to argue that
12 because the motion “failed to directly list undisputed material facts as required by the
13 rule, it is obvious the same did not substantial [sic] comply [with Rule 1-056].” [MIO
14 4] Now, however, Defendant argues that the failure of compliance related, not to the
15 form of the undisputed-fact section, but to Plaintiff’s failure to enumerate “specific
16 facts, e.g. how [P]laintiff got title to lands in Section 16.” [Id.] As Defendant now
17 characterizes the issue, it is resolved by our holding on Issue 1: Plaintiff presented
18 evidence of valid title to Tract 30B as shown on a specific District map (without
19 reference to section numbers), and Defendant waived any argument against the
5 1 validity of that description by relying on a deed that contained the same description.
2 Issue 3: Defendant’s third issue concerns Defendant’s claim for the imposition
3 of a trust, due to Plaintiff’s alleged “posing in the agreement with the [District] as the
4 taxpayer,” and that the sale to Plaintiff was, instead, “effectively a redemption.” [DS
5 7] We acknowledged in our notice of proposed summary disposition that one
6 document did appear premised on the mistaken assumption that Plaintiff was the same
7 David Gonzales who lost the property in the 1942 tax sale. [PSD 4-5] But we noted
8 that the transaction could not have been a tax-forfeiture redemption, because the
9 redemption period had run by the time Plaintiff purchased the land. [PSD 5]
10 Defendant now claims that our proposed disposition of this issue was the result of
11 “confusion” arising from Plaintiff’s alleged failure to comply with Rule 1-056. [MIO
12 4] Defendant states that “the agreement with the [District]” to which he referred in
13 his docketing statement was, in fact, the District’s “Escrow Agreement between
14 [D]efendant and [the District].” [Id. (emphasis added)] To support this contention,
15 Defendant directs us to an affidavit entered in the district court, but that affidavit
16 contains no reference, and has no attachment referring, to any agreement between
17 Defendant and the District, let alone any admission that Plaintiff “posed” as his
18 eponymous predecessor-in-interest. [RP 51-58] We therefore decline to impose a
19 trust, there being no basis for such a trust evident in Defendant’s submissions.
6 1 Issue 4: Defendant argues that he should be granted a prescriptive easement
2 in a road, and that different plats depict the road either within or outside the property.
3 [DS 7] As we noted in our notice of proposed summary disposition, however, this
4 issue was not raised as an affirmative claim for relief, but only as a defense to
5 Plaintiff’s claim, and was therefore not at issue before the district court. [PSD 5-6]
6 Defendant does not address this point in detail, stating only that the easement issue
7 “was preserved in the record,” and that “[P]laintiff presented evidence of survey plats
8 disputing [the] location of the road, agreeing to litigation of the issue by submitting
9 evidence thereon.” [MIO 4] Again, we do not dispute that the issue was raised and
10 argued below; but Defendant presents no evidence that it was raised and argued as
11 anything other than a defense against Plaintiff’s claim. As such, we do not convert
12 the issue into a claim for relief on appeal.
13 CONCLUSION
14 We affirm the district court’s order granting summary judgment in Plaintiff’s
15 favor, and quieting title to the property in Plaintiff.
16 IT IS SO ORDERED.
17 ________________________________ 18 JAMES J. WECHSLER, Judge
7 1 WE CONCUR:
2 _______________________________ 3 CYNTHIA A. FRY, Judge
4 _______________________________ 5 RODERICK T. KENNEDY, Judge