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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ROGER KUHN,
8 Plaintiff-Appellant,
9 v. NO. 29,927
10 PARADISE RIDGE HOMEOWNERS 11 ASSOCIATION, INC.,
12 Defendant-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Alan M. Malott, District Judge
15 Roger Kuhn 16 Albuquerque, NM
17 Pro Se Appellant
18 Vance Chavez & Associates, LLC 19 Claud Eugene Vance 20 Albuquerque, NM
21 for Appellee
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge. 1 Appellant Roger Kuhn (Plaintiff) appeals pro se from the district court’s
2 summary judgment ruling that Appellee Paradise Ridge Homeowners Association (the
3 Association) has no duty to maintain the disputed area. The notice proposed to affirm,
4 and Plaintiff filed a timely memorandum in opposition. We remain unpersuaded by
5 Plaintiff’s arguments, and therefore affirm.
6 Plaintiff continues to argue that the district court erred in granting summary
7 judgment in favor of the Association. We review the district court’s grant of summary
8 judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M.
9 396, 970 P.2d 582. “Summary judgment is appropriate where there are no genuine
10 issues of material fact and the movant is entitled to judgment as a matter of law.” Id.
11 At issue is Section 3.03 of the Declaration of Restrictions (Maintenance
12 Clause), which provides [RP 274]:
13 The exterior of all [l]ot walls abutting public right[-]of[-]way and those 14 portions of individual lots shown as open space or other public use 15 easements on the Plat are Easement [a]reas. The Association shall 16 have the right and the obligation to maintain the appearance of the 17 exterior of these Easement Areas. [emphasis added]
18 From Plaintiff’s perspective, the undeveloped land at issue is an “open space”
19 and “Easement Area” for which the Maintenance Clause provides that the Association
2 1 has a right and obligation to maintain. [DS 5-6; MIO 3, 6] However, given the
2 Maintenance Clause’s express reference to the Plat [MIO 10], any consideration of
3 the Association’s obligation to maintain necessarily must be viewed in conjunction
4 with, as opposed to exclusive of [DS 3; MIO 11], the referenced Plat language. See
5 generally Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007, ¶ 11, 124 N.M. 472, 952
6 P.2d 467 (noting that when considering restrictions set forth in a subdivision’s
7 declaration, “[e]ffect is to be given to the intention of the parties as shown by the
8 language of the whole instrument”) (internal quotation marks and citation omitted).
9 Although Plaintiff construes our citation to Cypress Gardens, Ltd., as an implicit
10 determination that the Maintenance Clause is ambiguous [MIO 9], he is mistaken.
11 Our citation to Cypress Gardens, Ltd. was simply an acknowledgment that because
12 the Maintenance Clause incorporates by reference the Plat itself, the Plat is an integral
13 part of what governs the obligations between the parties over the disputed area. See
14 Master Builders, Inc. v. Cabbell, 95 N.M. 371, 373, 622 P.2d 276, 278 (Ct. App.
15 1980) (recognizing a general rule of contract construction allowing two documents to
16 be properly construed together when one document refers to the other).
17 To this end, the Plat provides that the disputed land at issue is a private access
18 and drainage easement that must be maintained by the benefitting lots. Specifically,
3 1 the Plat states: “Proposed private access [and] drainage easement (width varies),
2 granted to lots 1-6, Block B [and] Lots 28-33, Block B by this Plat and to be
3 maintained by the benefitting Lots.” [RP 51-52, 278] [emphasis added] Reading the
4 Plat language in conjunction with the Maintenance Clause, the logical and unstrained
5 [DS 3; MIO 7] reading of the Maintenance Clause is such that only the “exterior of
6 all lot walls abutting public right-of-way” and those lots designated or shown [MIO
7 4-5] as “open space or other public use easements” on the Plat are subject to the
8 Associations obligation to maintain.
9 Plaintiff argues that while the disputed land may not be “designated” as open
10 space on the Plat, we should construe the use of the word “shown” in the Maintenance
11 Clause as a more expansive word that would encompass the disputed land. [MIO 4-8]
12 If the Plat were silent as to the responsibility for maintaining the disputed area,
13 Plaintiff’s argument would perhaps have more force. But because the Plat specifically
14 refers to the disputed land to be a private access and drainage easement that must be
15 maintained by the benefitting lots, rather than an open space or public easement [MIO
16 7-8], we hold that the land is not subject to the Maintenance Clause. For this reason,
17 we agree with the district court that the disputed portions of the lots are not “‘open
18 space or other public use easement’ and, therefore, are not within the purview or
4 1 control of the Homeowner’s Association as set forth in Restriction 3.03.” [RP 276]
2 See Wilcox v. Timberon Protective Ass’n, 111 N.M. 478, 483, 806 P.2d 1068, 1073
3 (Ct. App. 1990) (recognizing that “restrictive covenants must be considered
4 reasonably, though strictly, so that illogical, unnatural or strained construction will not
5 be effected”) (internal quotation marks and citation omitted).
6 Plaintiff also suggests that unless the disputed land is considered open space,
7 the provision in the Maintenance Clause that requires the Association to maintain
8 “open space” would be rendered meaningless because there is no other area shown or
9 designated as open space. [MIO 8] However, the record appears to only contain
10 portions of the Plat to which the Maintenance Clause refers. [RP 30-32] For this
11 reason, we will not presume that the rest of the Plat, which is not contained in the
12 record, does not show or designate another area as open space. See Reeves v.
13 Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. App. 1988) (“Upon a doubtful or
14 deficient record, every presumption is indulged in favor of the correctness and
15 regularity of the trial court's decision, and the appellate court will indulge in
16 reasonable presumptions in support of the order entered.”).
17 We also remain unpersuaded by Plaintiff’s argument that the district court’s
18 ruling runs afoul of the Covenants’ Section 1.05. [DS 6; MIO 12] We recognize that
5 1 Section 1.05 defines “Easement Area” as including certain “beneficial interests in real
2 property . . . owned by . . . the Lot Owners but maintained by the Association for the
3 common use and enjoyment of the Association members.” [DS 6; MIO 12]
4 However, significantly, this Section further provides that the “Easement Areas to be
Free access — add to your briefcase to read the full text and ask questions with AI
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 ROGER KUHN,
8 Plaintiff-Appellant,
9 v. NO. 29,927
10 PARADISE RIDGE HOMEOWNERS 11 ASSOCIATION, INC.,
12 Defendant-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Alan M. Malott, District Judge
15 Roger Kuhn 16 Albuquerque, NM
17 Pro Se Appellant
18 Vance Chavez & Associates, LLC 19 Claud Eugene Vance 20 Albuquerque, NM
21 for Appellee
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge. 1 Appellant Roger Kuhn (Plaintiff) appeals pro se from the district court’s
2 summary judgment ruling that Appellee Paradise Ridge Homeowners Association (the
3 Association) has no duty to maintain the disputed area. The notice proposed to affirm,
4 and Plaintiff filed a timely memorandum in opposition. We remain unpersuaded by
5 Plaintiff’s arguments, and therefore affirm.
6 Plaintiff continues to argue that the district court erred in granting summary
7 judgment in favor of the Association. We review the district court’s grant of summary
8 judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M.
9 396, 970 P.2d 582. “Summary judgment is appropriate where there are no genuine
10 issues of material fact and the movant is entitled to judgment as a matter of law.” Id.
11 At issue is Section 3.03 of the Declaration of Restrictions (Maintenance
12 Clause), which provides [RP 274]:
13 The exterior of all [l]ot walls abutting public right[-]of[-]way and those 14 portions of individual lots shown as open space or other public use 15 easements on the Plat are Easement [a]reas. The Association shall 16 have the right and the obligation to maintain the appearance of the 17 exterior of these Easement Areas. [emphasis added]
18 From Plaintiff’s perspective, the undeveloped land at issue is an “open space”
19 and “Easement Area” for which the Maintenance Clause provides that the Association
2 1 has a right and obligation to maintain. [DS 5-6; MIO 3, 6] However, given the
2 Maintenance Clause’s express reference to the Plat [MIO 10], any consideration of
3 the Association’s obligation to maintain necessarily must be viewed in conjunction
4 with, as opposed to exclusive of [DS 3; MIO 11], the referenced Plat language. See
5 generally Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007, ¶ 11, 124 N.M. 472, 952
6 P.2d 467 (noting that when considering restrictions set forth in a subdivision’s
7 declaration, “[e]ffect is to be given to the intention of the parties as shown by the
8 language of the whole instrument”) (internal quotation marks and citation omitted).
9 Although Plaintiff construes our citation to Cypress Gardens, Ltd., as an implicit
10 determination that the Maintenance Clause is ambiguous [MIO 9], he is mistaken.
11 Our citation to Cypress Gardens, Ltd. was simply an acknowledgment that because
12 the Maintenance Clause incorporates by reference the Plat itself, the Plat is an integral
13 part of what governs the obligations between the parties over the disputed area. See
14 Master Builders, Inc. v. Cabbell, 95 N.M. 371, 373, 622 P.2d 276, 278 (Ct. App.
15 1980) (recognizing a general rule of contract construction allowing two documents to
16 be properly construed together when one document refers to the other).
17 To this end, the Plat provides that the disputed land at issue is a private access
18 and drainage easement that must be maintained by the benefitting lots. Specifically,
3 1 the Plat states: “Proposed private access [and] drainage easement (width varies),
2 granted to lots 1-6, Block B [and] Lots 28-33, Block B by this Plat and to be
3 maintained by the benefitting Lots.” [RP 51-52, 278] [emphasis added] Reading the
4 Plat language in conjunction with the Maintenance Clause, the logical and unstrained
5 [DS 3; MIO 7] reading of the Maintenance Clause is such that only the “exterior of
6 all lot walls abutting public right-of-way” and those lots designated or shown [MIO
7 4-5] as “open space or other public use easements” on the Plat are subject to the
8 Associations obligation to maintain.
9 Plaintiff argues that while the disputed land may not be “designated” as open
10 space on the Plat, we should construe the use of the word “shown” in the Maintenance
11 Clause as a more expansive word that would encompass the disputed land. [MIO 4-8]
12 If the Plat were silent as to the responsibility for maintaining the disputed area,
13 Plaintiff’s argument would perhaps have more force. But because the Plat specifically
14 refers to the disputed land to be a private access and drainage easement that must be
15 maintained by the benefitting lots, rather than an open space or public easement [MIO
16 7-8], we hold that the land is not subject to the Maintenance Clause. For this reason,
17 we agree with the district court that the disputed portions of the lots are not “‘open
18 space or other public use easement’ and, therefore, are not within the purview or
4 1 control of the Homeowner’s Association as set forth in Restriction 3.03.” [RP 276]
2 See Wilcox v. Timberon Protective Ass’n, 111 N.M. 478, 483, 806 P.2d 1068, 1073
3 (Ct. App. 1990) (recognizing that “restrictive covenants must be considered
4 reasonably, though strictly, so that illogical, unnatural or strained construction will not
5 be effected”) (internal quotation marks and citation omitted).
6 Plaintiff also suggests that unless the disputed land is considered open space,
7 the provision in the Maintenance Clause that requires the Association to maintain
8 “open space” would be rendered meaningless because there is no other area shown or
9 designated as open space. [MIO 8] However, the record appears to only contain
10 portions of the Plat to which the Maintenance Clause refers. [RP 30-32] For this
11 reason, we will not presume that the rest of the Plat, which is not contained in the
12 record, does not show or designate another area as open space. See Reeves v.
13 Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. App. 1988) (“Upon a doubtful or
14 deficient record, every presumption is indulged in favor of the correctness and
15 regularity of the trial court's decision, and the appellate court will indulge in
16 reasonable presumptions in support of the order entered.”).
17 We also remain unpersuaded by Plaintiff’s argument that the district court’s
18 ruling runs afoul of the Covenants’ Section 1.05. [DS 6; MIO 12] We recognize that
5 1 Section 1.05 defines “Easement Area” as including certain “beneficial interests in real
2 property . . . owned by . . . the Lot Owners but maintained by the Association for the
3 common use and enjoyment of the Association members.” [DS 6; MIO 12]
4 However, significantly, this Section further provides that the “Easement Areas to be
5 maintained by the Association shall be (i) the exterior of all walls or fences of the Lots
6 which abut public right-of-way, [and] (ii) the Landscape Areas” (which are defined
7 in Section 1.11 as a public right-of-way limited to the frontages of the subdivision).
8 (Emphasis added.). [RP 51-52] Because the land at issue does not fall within either
9 of these categories, the district court’s ruling does not run afoul of either Section 1.05
10 or the Maintenance Clause.
11 We similarly disagree with Plaintiff’s contention that the district court’s ruling
12 contravenes Restriction Section 5.02 and 5.04. [MIO 3-4] These sections recognize
13 that the Association has the power and authority to provide for the maintenance of
14 easement areas. But because the plat shows the disputed land as a private access and
15 drainage easement that must be maintained by the benefitting lots, the Association is
16 not responsible for its maintenance under these sections for the same reason the
17 disputed land is not covered by the Maintenance Clause.
6 1 Lastly we note that running throughout Plaintiff’s arguments is the assumption
2 that the term “easement area” used within the Declarations is an all-encompassing
3 term that includes all easements, public or private, within the Paradise Ridge
4 subdivision. But as discussed above, the Declarations strictly define what is included
5 within the term “easement area”. And as the term is used in the Maintenance Clause
6 and other provisions cited by Plaintiff, the district court correctly ruled that it does not
7 include Plaintiff’s private access and drainage easement.
8 Conclusion.
9 Based on the foregoing discussion, we affirm the district court’s summary
10 judgment ruling in favor of the Association.
11 IT IS SO ORDERED.
12 13 MICHAEL D. BUSTAMANTE, Judge
14 WE CONCUR:
15 16 CYNTHIA A. FRY, Chief Judge
17 18 MICHAEL E. VIGIL, Judge
7 8