This memorandum opinion was not selected for publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PHILIPP MERILLAT CORPORATION, 3 a Colorado Corporation,
4 Plaintiff-Appellee,
5 v. No. A-1-CA-36068
6 CARL R. ELKINS, as Personal 7 Representative of the Estate of 8 Fred V. Elkins, Deceased,
9 Defendant-Appellant,
10 and
11 ASPEN INVESTMENT PARTNERS, 12 LLC, a New Mexico Limited Liability 13 Company, WASHINGTON FEDERAL, 14 and ALL UNKNOWN CLAIMANTS OF 15 INTEREST IN THE PREMISES 16 ADVERSE TO THE PLAINTIFF,
17 Defendants.
18 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 19 Pedro G. Rael, District Judge
20 Espinosa & Associates, P.C. 21 Richard D. Barish 22 Leonard G. Espinosa 23 Albuquerque, NM 1 for Appellee
2 Mason & Isaacson, P.A. 3 James J. Mason 4 Joshua M. Montagnini 5 Gallup, NM
6 for Appellant
7 MEMORANDUM OPINION
8 BOHNHOFF, Judge.
9 {1} Defendant Carl R. Elkins (Elkins), as personal representative of the Estate of
10 Fred V. Elkins (Decedent), appeals from an award of summary judgment in favor of
11 Plaintiff Philipp Merillat Corporation (PMC). We affirm.
12 BACKGROUND
13 {2} This is a memorandum opinion and, because the parties are familiar with the
14 facts and procedural posture of the case, we set forth only such facts and law as are
15 necessary to decide the issues raised.
16 {3} The material facts of this case are undisputed. On August 1, 2006, Decedent
17 sold sixteen tracts of land located in Cibola County, New Mexico, to Aspen
18 Investment Partners, LLC (Aspen), which gave Decedent a mortgage (Mortgage) on
19 the sixteen tracts. On August 9, 2006, Decedent recorded the Mortgage and
2 1 concurrently assigned it to the predecessors of Washington Federal. Decedent died in
2 2007.
3 {4} Aspen subsequently defaulted on the Mortgage and also failed to pay property
4 taxes from 2006 through 2013. On May 30, 2013, PMC purchased four of the sixteen
5 tracts at a tax auction. (The four tracts will be referred to as “the Property.”) After the
6 taxes for 2006 through 2013 were paid from PMC’s payment for the Property, the
7 Property Tax Division of the State of New Mexico’s Taxation and Revenue
8 Department delivered deeds (Deeds) to PMC, granting and conveying to PMC “the
9 former owner’s interest in the . . . [P]roperty . . . as of the date the state’s lien for
10 property taxes arose, pursuant to the Property Tax Code, that date being January 1,
11 2009 . . . and that interest being subject only to perfected interests in the real property
12 existing before the date the property tax lien arose[.]” (Emphasis added.)
13 {5} In October 2013, PMC filed suit against Elkins, Aspen, and Washington Federal
14 to quiet title to the Property. On January 30, 2014, Washington Federal assigned the
15 Mortgage back to Decedent’s estate. Elkins thereafter brought a separate suit to
16 foreclose on the Mortgage, which was consolidated with the quiet title action. PMC
17 obtained a default judgment against Aspen, and Washington Federal disclaimed any
18 interest in the Property.
3 1 {6} Elkins and PMC filed cross-motions for summary judgment, disputing the
2 relative superiority of their respective interests in the Property. Elkins relied upon the
3 language in the Deeds, arguing that they stated that the State’s tax lien arose on
4 January 1, 2009, and that because the Mortgage was perfected on August 9, 2006,
5 PMC’s title to the Property was subject to the Mortgage. PMC relied on provisions of
6 New Mexico’s Property Tax Code, NMSA 1978, §§ 7-38-1 to -93 (1973, as amended
7 through 2018), arguing as follows: A tax lien attached to the tracts (including the
8 Property) as of January 1, 2006, based on Aspen’s failure to pay property taxes
9 pursuant to Section 7-38-48(A). Accordingly, PMC took title subject only to perfected
10 interests in the Property existing as of that date, pursuant to Section 7-38-65(A). Thus,
11 PMC concluded, it took title to the Property free and clear of the Mortgage.
12 {7} The district court granted summary judgment in favor of PMC and against
13 Elkins, agreeing with PMC that (1) a tax lien against the Property arose on January 1,
14 2006, pursuant to Section 7-38-48(A); (2) the tax lien was superior to Elkins’
15 Mortgage; and (3) by operation of Section 7-38-65(A), PMC acquired the Property
16 free and clear of the Mortgage because the property taxes were paid from the money
17 PMC paid for the Property.1
1 16 The district court entered “findings and conclusions” in reaching its decision. 17 We remind the court that when ruling on a motion for summary judgment, a district 18 court does not make findings and instead determines only whether there are any 19 genuine issues of material fact. See Rule 1-056(C) NMRA; see also Gardner-Zemke
4 1 DISCUSSION
2 A. Standard of Review
3 {8} “[I]f no material issues of fact are in dispute and an appeal [of a grant of
4 summary judgment] presents only a question of law, we apply de novo review and are
5 not required to view the appeal in the light most favorable to the party opposing
6 summary judgment.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-
7 NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “Statutory interpretation is an issue
8 of law, which we review de novo.” N.M. Indus. Energy Consumers v. N.M. Pub.
9 Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105.
10 B. Analysis
11 {9} Statutes are to be construed in accordance with their plain meaning. Cummings
12 v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 44, 121 N.M. 821, 918 P.2d 1321
13 (“When interpreting statutes, [the courts’] responsibility is to search for and give
14 effect to the intent of the [L]egislature. . . . Our understanding of legislative intent is
15 based primarily on the language of the statute, and we will first consider and apply the
16 plain meaning of such language.”). In addition, “[w]e will construe the entire statute
20 Co. v. State, 1990-NMSC-034, ¶ 11, 109 N.M. 729, 790 P.2d 1010 (noting that the 21 sole purpose of a summary judgment proceeding is to determine whether a genuine 22 issue of material fact exists; it is not to be used to decide an issue of fact). However, 23 the factual recitations in the district court’s decision track PMC’s statement of 19 undisputed material facts, which Elkins did not dispute below.
5 1 as a whole so that all the provisions will be considered in relation to one another.
2 Statutes must be construed so that no part of the statute is rendered surplusage or
3 superfluous.” Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶ 34, 140 N.M. 77,
4 140 P.3d 498 (internal quotation marks and citation omitted).
5 1. Section 7-38-48(A) Does Not Provide That a New Tax Lien Arises Every 6 Year
7 {10} Section 7-38-48(A) states:
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This memorandum opinion was not selected for publication 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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PHILIPP MERILLAT CORPORATION, 3 a Colorado Corporation,
4 Plaintiff-Appellee,
5 v. No. A-1-CA-36068
6 CARL R. ELKINS, as Personal 7 Representative of the Estate of 8 Fred V. Elkins, Deceased,
9 Defendant-Appellant,
10 and
11 ASPEN INVESTMENT PARTNERS, 12 LLC, a New Mexico Limited Liability 13 Company, WASHINGTON FEDERAL, 14 and ALL UNKNOWN CLAIMANTS OF 15 INTEREST IN THE PREMISES 16 ADVERSE TO THE PLAINTIFF,
17 Defendants.
18 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 19 Pedro G. Rael, District Judge
20 Espinosa & Associates, P.C. 21 Richard D. Barish 22 Leonard G. Espinosa 23 Albuquerque, NM 1 for Appellee
2 Mason & Isaacson, P.A. 3 James J. Mason 4 Joshua M. Montagnini 5 Gallup, NM
6 for Appellant
7 MEMORANDUM OPINION
8 BOHNHOFF, Judge.
9 {1} Defendant Carl R. Elkins (Elkins), as personal representative of the Estate of
10 Fred V. Elkins (Decedent), appeals from an award of summary judgment in favor of
11 Plaintiff Philipp Merillat Corporation (PMC). We affirm.
12 BACKGROUND
13 {2} This is a memorandum opinion and, because the parties are familiar with the
14 facts and procedural posture of the case, we set forth only such facts and law as are
15 necessary to decide the issues raised.
16 {3} The material facts of this case are undisputed. On August 1, 2006, Decedent
17 sold sixteen tracts of land located in Cibola County, New Mexico, to Aspen
18 Investment Partners, LLC (Aspen), which gave Decedent a mortgage (Mortgage) on
19 the sixteen tracts. On August 9, 2006, Decedent recorded the Mortgage and
2 1 concurrently assigned it to the predecessors of Washington Federal. Decedent died in
2 2007.
3 {4} Aspen subsequently defaulted on the Mortgage and also failed to pay property
4 taxes from 2006 through 2013. On May 30, 2013, PMC purchased four of the sixteen
5 tracts at a tax auction. (The four tracts will be referred to as “the Property.”) After the
6 taxes for 2006 through 2013 were paid from PMC’s payment for the Property, the
7 Property Tax Division of the State of New Mexico’s Taxation and Revenue
8 Department delivered deeds (Deeds) to PMC, granting and conveying to PMC “the
9 former owner’s interest in the . . . [P]roperty . . . as of the date the state’s lien for
10 property taxes arose, pursuant to the Property Tax Code, that date being January 1,
11 2009 . . . and that interest being subject only to perfected interests in the real property
12 existing before the date the property tax lien arose[.]” (Emphasis added.)
13 {5} In October 2013, PMC filed suit against Elkins, Aspen, and Washington Federal
14 to quiet title to the Property. On January 30, 2014, Washington Federal assigned the
15 Mortgage back to Decedent’s estate. Elkins thereafter brought a separate suit to
16 foreclose on the Mortgage, which was consolidated with the quiet title action. PMC
17 obtained a default judgment against Aspen, and Washington Federal disclaimed any
18 interest in the Property.
3 1 {6} Elkins and PMC filed cross-motions for summary judgment, disputing the
2 relative superiority of their respective interests in the Property. Elkins relied upon the
3 language in the Deeds, arguing that they stated that the State’s tax lien arose on
4 January 1, 2009, and that because the Mortgage was perfected on August 9, 2006,
5 PMC’s title to the Property was subject to the Mortgage. PMC relied on provisions of
6 New Mexico’s Property Tax Code, NMSA 1978, §§ 7-38-1 to -93 (1973, as amended
7 through 2018), arguing as follows: A tax lien attached to the tracts (including the
8 Property) as of January 1, 2006, based on Aspen’s failure to pay property taxes
9 pursuant to Section 7-38-48(A). Accordingly, PMC took title subject only to perfected
10 interests in the Property existing as of that date, pursuant to Section 7-38-65(A). Thus,
11 PMC concluded, it took title to the Property free and clear of the Mortgage.
12 {7} The district court granted summary judgment in favor of PMC and against
13 Elkins, agreeing with PMC that (1) a tax lien against the Property arose on January 1,
14 2006, pursuant to Section 7-38-48(A); (2) the tax lien was superior to Elkins’
15 Mortgage; and (3) by operation of Section 7-38-65(A), PMC acquired the Property
16 free and clear of the Mortgage because the property taxes were paid from the money
17 PMC paid for the Property.1
1 16 The district court entered “findings and conclusions” in reaching its decision. 17 We remind the court that when ruling on a motion for summary judgment, a district 18 court does not make findings and instead determines only whether there are any 19 genuine issues of material fact. See Rule 1-056(C) NMRA; see also Gardner-Zemke
4 1 DISCUSSION
2 A. Standard of Review
3 {8} “[I]f no material issues of fact are in dispute and an appeal [of a grant of
4 summary judgment] presents only a question of law, we apply de novo review and are
5 not required to view the appeal in the light most favorable to the party opposing
6 summary judgment.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-
7 NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “Statutory interpretation is an issue
8 of law, which we review de novo.” N.M. Indus. Energy Consumers v. N.M. Pub.
9 Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105.
10 B. Analysis
11 {9} Statutes are to be construed in accordance with their plain meaning. Cummings
12 v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 44, 121 N.M. 821, 918 P.2d 1321
13 (“When interpreting statutes, [the courts’] responsibility is to search for and give
14 effect to the intent of the [L]egislature. . . . Our understanding of legislative intent is
15 based primarily on the language of the statute, and we will first consider and apply the
16 plain meaning of such language.”). In addition, “[w]e will construe the entire statute
20 Co. v. State, 1990-NMSC-034, ¶ 11, 109 N.M. 729, 790 P.2d 1010 (noting that the 21 sole purpose of a summary judgment proceeding is to determine whether a genuine 22 issue of material fact exists; it is not to be used to decide an issue of fact). However, 23 the factual recitations in the district court’s decision track PMC’s statement of 19 undisputed material facts, which Elkins did not dispute below.
5 1 as a whole so that all the provisions will be considered in relation to one another.
2 Statutes must be construed so that no part of the statute is rendered surplusage or
3 superfluous.” Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶ 34, 140 N.M. 77,
4 140 P.3d 498 (internal quotation marks and citation omitted).
5 1. Section 7-38-48(A) Does Not Provide That a New Tax Lien Arises Every 6 Year
7 {10} Section 7-38-48(A) states:
8 [T]axes on real property are a lien against the real property from January 9 1 of the tax year for which the taxes are imposed. The lien runs in favor 10 of the state and secures the payment of taxes on the real property and any 11 penalty and interest that become due. The lien continues until the taxes 12 and any penalty and interest are paid. The lien created by this section is 13 a first lien and paramount to any other interest in the property, perfected 14 or unperfected. The annual taxing process provided for in the Property 15 Tax Code shall continue as to any particular property regardless of prior 16 tax delinquencies or of pending protests, actions for refunds or other tax 17 controversies involving the property, including a sale for delinquent 18 taxes.
19 Elkins argues that the last sentence of this statute contemplates the creation of a new,
20 separate tax lien for each unpaid tax year. We disagree.
21 {11} First, the plain language of the last sentence of Section 7-38-48(A) means only
22 that the process of annual tax accrual does not stop and instead continues, even if the
23 tax is not paid in any one year or the taxpayer challenges the first year’s tax. Nowhere
24 in Section 7-38-48(A) is there any textual support for the proposition that a new tax
25 lien arises if one year’s accrued tax is not paid.
6 1 {12} Second, the second to last sentence of Section 7-38-65(A) provides that “[r]eal
2 property may be sold for delinquent taxes at any time after the expiration of three
3 years from the first date shown on the tax delinquency list on which the taxes became
4 delinquent.” Thus, property is sold only if taxes have been delinquent for three years.
5 Under Elkins’ theory, the three-year delay would give rise to three separate tax
6 “liens.” However, the Property Tax Code refers only to “lien” in the singular, as
7 opposed to “liens” in the plural. See §§ 7-38-48, 7-38-65, 7-38-70. “When the
8 Legislature has spoken with precision on a topic[,] . . . it is not the proper role of the
9 judiciary to make plural that which is singular.” Rainaldi v. City of Albuquerque,
10 2014-NMCA-112, ¶ 15, 338 P.3d 94. The Deeds also refer to the State’s tax lien in
11 the singular.
12 2. Section 7-38-65(A) Does Not Prohibit the State From Selling Property to 13 Satisfy a Tax Lien That Arose More Than Four Years Earlier
14 {13} Section 7-38-65(A) states:
15 If a lien exists by the operation of Section 7-38-48 . . . , the department 16 may collect delinquent taxes on real property by selling the real property 17 on which the taxes have become delinquent. . . . Real property may be 18 sold for delinquent taxes at any time after the expiration of three years 19 from the first date shown on the tax delinquency list on which the taxes 20 became delinquent. Real property shall be offered for sale for delinquent 21 taxes either within four years after the first date shown on the tax 22 delinquency list on which the taxes became delinquent or, if the 23 department is barred by operation of law or by order of a court of 24 competent jurisdiction from offering the property for sale for delinquent 25 taxes within four years after the first date shown on the tax delinquency 26 list on which the taxes became delinquent, within one year from the time
7 1 the department determines that it is no longer barred from selling the 2 property[.]
3 Elkins argues that the quoted language from the last sentence of Section 7-38-65(A)
4 obligated the State to sell the Property by 2010 to satisfy the tax lien created by the
5 unpaid 2006 taxes. Because the Property was not sold until 2013, he contends that at
6 that point the State could only sell it pursuant to the “new” tax liens that he contends
7 separately arose in and after 2009.
8 {14} We disagree that Section 7-38-65(A) limits the State in its enforcement of tax
9 liens. First, the section’s initial sentence provides, “If a lien exists by the operation of
10 Section 7-38-48, the department may collect delinquent taxes on real property by
11 selling the real property on which the taxes have become delinquent.” Section 7-38-
12 65(A). There is no limit on the number of delinquent taxes that may be collected—all
13 that is required is one or more years of unpaid taxes that are at least three years old.
14 {15} Second, while Section 7-38-65(A) imposes a four-year deadline for offering to
15 sell property to satisfy a tax lien, “[f]ailure to offer property for sale within the time
16 prescribed by Subsection A of this section shall not impair the validity or effect of any
17 sale that does take place.” Section 7-38-65(B).
18 {16} Third, the statute of limitations provided in the Property Tax Code, found at
19 Section 7-38-81(A), states: “Property may not be sold and proceedings may not be
20 initiated for the collection of property taxes that have been delinquent for more than
8 1 ten years.” Under Elkins’ construction of Section 7-38-65(A), the State could not
2 collect property taxes older than four years. This would render Section 7-38-81
3 meaningless, contrary to the aforementioned rule of statutory construction.
4 CONCLUSION
5 {17} For the foregoing reasons, we affirm the district court.
6 {18} IT IS SO ORDERED.
7 _____________________________ 8 HENRY M. BOHNHOFF, Judge
9 WE CONCUR:
10 _____________________________ 11 LINDA M. VANZI, Chief Judge
12 _____________________________ 13 STEPHEN G. FRENCH, Judge