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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 TAL REALTY, INC.,
3 Petitioner-Appellee,
4 v. No. 33,440
5 SAN ANGELO PROPERTY SERVICES,
6 Respondent-Appellant,
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 William C. Birdsall, District Judge
9 Marrs Law, Ltd. 10 Clinton W. Marrs 11 Albuquerque, NM
12 for Appellee
13 Gary W. Boyle 14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 ZAMORA, Judge.
18 {1} Appellant San Angelo Property Services (San Angelo) appeals from the district
19 court’s order granting summary judgment in favor of TAL Realty, Inc. (TAL Realty)
20 cancelling San Angelo’s claim of lien and ordering the return of TAL Realty’s 1 substitute cash collateral. San Angelo argues that its materialmen’s lien, based on
2 improvements made to property purchased at a foreclosure sale, is not subordinate to
3 TAL Realty’s right to redeem the property. San Angelo also argues that it is entitled
4 to judgment based on unjust enrichment against TAL Realty. We hold that San
5 Angelo is not entitled to reimbursement for improvements it made to the property
6 prior to the expiration of the redemption period and affirm the district court’s order.
7 BACKGROUND
8 {2} On January 27, 2012, the district court entered a judgment and decree of
9 foreclosure against Richard McDaniel and in favor of CitiMortgage, Inc., pertaining
10 to property in Farmington, New Mexico. The judgment foreclosed McDaniel’s rights
11 in the property, except for McDaniel’s right, by law and by the mortgage, to redeem
12 the property. The judgement also appointed a special master to sell the property at a
13 foreclosure sale. On March 6, 2012, Alpha Beta Properties, LLC (Alpha Beta)
14 purchased the property at the foreclosure sale and immediately contracted with San
15 Angelo to make improvements to the property. San Angelo delivered materials and
16 worked on the property from March 6, 2012, to March 21, 2012.
17 {3} On March 20, the right of redemption was assigned to TAL Realty. The
18 foreclosure sale was confirmed by the district court on April 2, 2012. A stipulated
19 order granting TAL Realty’s petition for redemption was entered on May 24, 2012.
2 1 The stipulated order was approved by Stephen Harward as Alpha Beta’s authorized
2 manager. On June 18, 2012, San Angelo filed a materialmen’s lien for its work on the
3 property claiming that it had not been paid for the improvements it made to the
4 property. This lien was verified by Stephen Harward, as Manager of San Angelo
5 property services. TAL Realty filed a petition for cancellation of San Angelo’s lien
6 and San Angelo counterclaimed for foreclosure of the claim of lien. The parties filed
7 cross-motions for summary judgment. The district court granted TAL Realty’s motion
8 for summary judgment cancelling San Angelo’s claim of lien, thereby rendering San
9 Angelo’s motion for summary judgment moot.
10 DISCUSSION
11 {4} On appeal, San Angelo argues that under NMSA 1978, § 48-2-5(A) (1991) it
12 is entitled to reimbursement for its work on the property, which commenced prior to
13 the petition for the certificate of redemption. San Angelo further argues that it is
14 entitled to restitution for the improvements based on a theory of unjust enrichment.
15 TAL Realty argues that its right of redemption is superior to the claim of lien, that San
16 Angelo had reason to know that the property was subject to the right of redemption
17 when its work on the property commenced, and that allowing San Angelo to recover
18 improvements made to the property before the expiration of the redemption period
3 1 would contravene the policy of New Mexico’s Redemption Statute, NMSA 1978, §
2 39-5-18 (2007).
3 Standard of Review
4 {5} Whether San Angelo is entitled to reimbursement for improvements it made to
5 the property prior to the expiration of the redemption period is a question of law,
6 which we review de novo. See Montgomery v. Lomos Altos, Inc., 2007-NMSC-002,
7 ¶ 16, 141 N.M. 21, 150 P.3d 971 (“An appeal from the grant of a motion for summary
8 judgment presents a question of law and is reviewed de novo.”). “Summary judgment
9 is appropriate where there are no genuine issues of material fact and the movant is
10 entitled to judgment as a matter of law.” Id. (internal quotation marks and citation
11 omitted). The issue of whether San Angelo’s materialmen’s lien is superior to TAL
12 Realty’s right to redemption, or alternatively, whether it is entitled to reimbursement
13 for the improvements is a matter of statutory interpretation. Such an interpretation
14 presents a question of law requiring a de novo review. State v. Smith, 2009-NMCA-
15 028, ¶ 8, 145 N.M. 757, 204 P.3d 1267.
16 San Angelo Is Not Entitled to Reimbursement for Improvements Under Section 17 48-2-5
18 {6} Section 48-2-5(A) states, in pertinent part, that the materialmen’s liens are
19 preferred over “any lien, mortgage or other encumbrance which may have attached
20 subsequent to the time when the . . . improvement . . . was commenced[;] also to any
4 1 lien, mortgage or other encumbrance of which the lienholder had no notice and which
2 was unrecorded at the time the . . . improvement . . . was commenced.” San Angelo
3 claims that Section 48-2-5(A) gives its lien absolute statutory preference over TAL’s
4 right of redemption since improvements on the property commenced before the
5 certificate of redemption was filed. We disagree. Our Supreme Court has explained
6 that Section 48-2-5, read together with related sections of the materialmen’s lien
7 statute indicates that “timing and actual or constructive notice—not a general public
8 policy favoring materialmen—are the principal considerations in determining [a
9 lien’s] priority.” Hasse Contracting Co. v. KBK Fin., Inc., 1999-NMSC-023, ¶ 12, 127
10 N.M. 316, 980 P.2d 641.
11 {7} We find that to be true in the present case. Under NMSA 1978, § 48-2-4 (1880)
12 of the materialmen’s lien statute, a materialmen’s lien will not attach to the property
13 unless the person or entity that is contracting to improve the property has a fee simple
14 estate in the property. Where a purported owner that does not have a fee simple estate
15 in the property at issue and has improvements made, the materialmen’s lien will only
16 attach to the interest the purported owner does have. See § 48-2-4 (“[I]f at the
17 commencement of the work, or of the furnishing the materials for the same, the land
18 belonged to the person who caused said building, improvement or structure to be
5 1 constructed, altered or repaired, but if such person owned less than a fee simple estate
2 in such land, then only his interest therein is subject to such lien.”).
3 {8} In the context of a foreclosure sale, the purchaser does not obtain a fee simple
4 estate in the property upon its purchase. See First State Bank of Taos v. Wheatcroft,
5 1931-NMSC-047, ¶ 10, 36 N.M.
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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 TAL REALTY, INC.,
3 Petitioner-Appellee,
4 v. No. 33,440
5 SAN ANGELO PROPERTY SERVICES,
6 Respondent-Appellant,
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 William C. Birdsall, District Judge
9 Marrs Law, Ltd. 10 Clinton W. Marrs 11 Albuquerque, NM
12 for Appellee
13 Gary W. Boyle 14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 ZAMORA, Judge.
18 {1} Appellant San Angelo Property Services (San Angelo) appeals from the district
19 court’s order granting summary judgment in favor of TAL Realty, Inc. (TAL Realty)
20 cancelling San Angelo’s claim of lien and ordering the return of TAL Realty’s 1 substitute cash collateral. San Angelo argues that its materialmen’s lien, based on
2 improvements made to property purchased at a foreclosure sale, is not subordinate to
3 TAL Realty’s right to redeem the property. San Angelo also argues that it is entitled
4 to judgment based on unjust enrichment against TAL Realty. We hold that San
5 Angelo is not entitled to reimbursement for improvements it made to the property
6 prior to the expiration of the redemption period and affirm the district court’s order.
7 BACKGROUND
8 {2} On January 27, 2012, the district court entered a judgment and decree of
9 foreclosure against Richard McDaniel and in favor of CitiMortgage, Inc., pertaining
10 to property in Farmington, New Mexico. The judgment foreclosed McDaniel’s rights
11 in the property, except for McDaniel’s right, by law and by the mortgage, to redeem
12 the property. The judgement also appointed a special master to sell the property at a
13 foreclosure sale. On March 6, 2012, Alpha Beta Properties, LLC (Alpha Beta)
14 purchased the property at the foreclosure sale and immediately contracted with San
15 Angelo to make improvements to the property. San Angelo delivered materials and
16 worked on the property from March 6, 2012, to March 21, 2012.
17 {3} On March 20, the right of redemption was assigned to TAL Realty. The
18 foreclosure sale was confirmed by the district court on April 2, 2012. A stipulated
19 order granting TAL Realty’s petition for redemption was entered on May 24, 2012.
2 1 The stipulated order was approved by Stephen Harward as Alpha Beta’s authorized
2 manager. On June 18, 2012, San Angelo filed a materialmen’s lien for its work on the
3 property claiming that it had not been paid for the improvements it made to the
4 property. This lien was verified by Stephen Harward, as Manager of San Angelo
5 property services. TAL Realty filed a petition for cancellation of San Angelo’s lien
6 and San Angelo counterclaimed for foreclosure of the claim of lien. The parties filed
7 cross-motions for summary judgment. The district court granted TAL Realty’s motion
8 for summary judgment cancelling San Angelo’s claim of lien, thereby rendering San
9 Angelo’s motion for summary judgment moot.
10 DISCUSSION
11 {4} On appeal, San Angelo argues that under NMSA 1978, § 48-2-5(A) (1991) it
12 is entitled to reimbursement for its work on the property, which commenced prior to
13 the petition for the certificate of redemption. San Angelo further argues that it is
14 entitled to restitution for the improvements based on a theory of unjust enrichment.
15 TAL Realty argues that its right of redemption is superior to the claim of lien, that San
16 Angelo had reason to know that the property was subject to the right of redemption
17 when its work on the property commenced, and that allowing San Angelo to recover
18 improvements made to the property before the expiration of the redemption period
3 1 would contravene the policy of New Mexico’s Redemption Statute, NMSA 1978, §
2 39-5-18 (2007).
3 Standard of Review
4 {5} Whether San Angelo is entitled to reimbursement for improvements it made to
5 the property prior to the expiration of the redemption period is a question of law,
6 which we review de novo. See Montgomery v. Lomos Altos, Inc., 2007-NMSC-002,
7 ¶ 16, 141 N.M. 21, 150 P.3d 971 (“An appeal from the grant of a motion for summary
8 judgment presents a question of law and is reviewed de novo.”). “Summary judgment
9 is appropriate where there are no genuine issues of material fact and the movant is
10 entitled to judgment as a matter of law.” Id. (internal quotation marks and citation
11 omitted). The issue of whether San Angelo’s materialmen’s lien is superior to TAL
12 Realty’s right to redemption, or alternatively, whether it is entitled to reimbursement
13 for the improvements is a matter of statutory interpretation. Such an interpretation
14 presents a question of law requiring a de novo review. State v. Smith, 2009-NMCA-
15 028, ¶ 8, 145 N.M. 757, 204 P.3d 1267.
16 San Angelo Is Not Entitled to Reimbursement for Improvements Under Section 17 48-2-5
18 {6} Section 48-2-5(A) states, in pertinent part, that the materialmen’s liens are
19 preferred over “any lien, mortgage or other encumbrance which may have attached
20 subsequent to the time when the . . . improvement . . . was commenced[;] also to any
4 1 lien, mortgage or other encumbrance of which the lienholder had no notice and which
2 was unrecorded at the time the . . . improvement . . . was commenced.” San Angelo
3 claims that Section 48-2-5(A) gives its lien absolute statutory preference over TAL’s
4 right of redemption since improvements on the property commenced before the
5 certificate of redemption was filed. We disagree. Our Supreme Court has explained
6 that Section 48-2-5, read together with related sections of the materialmen’s lien
7 statute indicates that “timing and actual or constructive notice—not a general public
8 policy favoring materialmen—are the principal considerations in determining [a
9 lien’s] priority.” Hasse Contracting Co. v. KBK Fin., Inc., 1999-NMSC-023, ¶ 12, 127
10 N.M. 316, 980 P.2d 641.
11 {7} We find that to be true in the present case. Under NMSA 1978, § 48-2-4 (1880)
12 of the materialmen’s lien statute, a materialmen’s lien will not attach to the property
13 unless the person or entity that is contracting to improve the property has a fee simple
14 estate in the property. Where a purported owner that does not have a fee simple estate
15 in the property at issue and has improvements made, the materialmen’s lien will only
16 attach to the interest the purported owner does have. See § 48-2-4 (“[I]f at the
17 commencement of the work, or of the furnishing the materials for the same, the land
18 belonged to the person who caused said building, improvement or structure to be
5 1 constructed, altered or repaired, but if such person owned less than a fee simple estate
2 in such land, then only his interest therein is subject to such lien.”).
3 {8} In the context of a foreclosure sale, the purchaser does not obtain a fee simple
4 estate in the property upon its purchase. See First State Bank of Taos v. Wheatcroft,
5 1931-NMSC-047, ¶ 10, 36 N.M. 88, 8 P.2d 1061. The purchaser’s interest is subject
6 to the right of redemption, and as such, the purchaser’s title can be defeated by the
7 redeemer until the expiration of the redemption period. See Ulivarri v. Lovelace,
8 1934-NMSC-087, ¶ 5, 39 N.M. 36, 38 P.2d 1114 (stating that when a decree of
9 foreclosure is entered, “the mortgagor no longer has any title to the property. The sole
10 right remaining to the mortgagor is the right to redeem, a right, which does not arise
11 out of the mortgage or the decree, but a right, which is extended to him by statute,
12 whereby he [or his assigns] may defeat the title of the purchaser” (internal quotation
13 marks and citation omitted)).
14 {9} In the instant case, Alpha Beta purchased the property on March 6, 2012. The
15 same day Alpha Beta contracted with San Angelo and San Angelo began improving
16 the property. Because Alpha Beta did not have a fee simple estate when it contracted
17 with San Angelo or when work on the property commenced, San Angelo’s lien only
18 attached to Alpha Beta’s interest, which was extinguished once the property was
19 redeemed. See First State Bank of Taos, 1931-NMSC-047, ¶ 15 (stating that “when
6 1 the assignee of the mortgagors redeems he takes the title of the purchaser at the
2 foreclosure sale and [sic] free of subsequent judgment liens”). Thus, under the
3 materialmen’s lien statute, we conclude San Angelo is not entitled to recover from
4 TAL for improvements to the property that were made while the property was subject
5 to the right of redemption.
6 San Angelo Is Not Entitled to Reimbursement Under the Theory of Unjust 7 Enrichment
8 {10} San Angelo also claims that TAL Realty has been unjustly enriched by the
9 uncompensated value, which the improvements added to the property. We are not
10 persuaded. To prevail on a claim of unjust enrichment, “one must show that: (1)
11 another has been knowingly benefitted at one’s expense[, and] (2) in a manner such
12 that allowance of the other to retain the benefit would be unjust.” Ontiveros Insulation
13 Co. v. Sanchez, 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695. The theory of
14 unjust enrichment provides relief where, “in the absence of privity, a party cannot
15 claim relief in contract and instead must seek refuge in equity.” Id. San Angelo
16 verified that it had entered into an oral contract with Alpha Beta to furnish the labor,
17 service, equipment, or materials to Alpha Beta as the owner or reputed owner of the
18 real property. Arguably, San Angelo has the avenue of seeking relief in contract
19 against Alpha Beta.
7 1 {11} As we discussed earlier, Section 48-2-4 precludes San Angelo from attaching
2 its lien to the property where the purported owner requesting the improvements did
3 not have a fee simple estate in the property. San Angelo cannot rely on this equitable
4 doctrine to recover the costs of improvements on the equitable theory of unjust
5 enrichment where the result would contravene the materialmen’s lien statute. See
6 Coppler & Mannick, P.C. v. Wakeland, 2005-NMSC-022, ¶ 8, 138 N.M. 108, 117
7 P.3d 914 (“It is a basic maxim that equity is ancillary, not antagonistic, to the law.
8 Equitable relief is not available when the grant thereof would violate the express
9 provision of a statute.” (internal quotation marks and citation omitted)).
10 {12} In its motion for summary judgment and on appeal, TAL Realty relies on Chase
11 Manhattan Bank v. Candelaria, 2004-NMSC-017, 135 N.M. 527, 90 P.3d 985, for the
12 proposition that requiring a redeemer to pay for the improvements made by the
13 purchaser is contrary to the redemption statute and the policy underlying the
14 redemption statute, where the improver had reason to know that the property was
15 subject to the right of redemption when improvements had commenced. San Angelo
16 argues that Chase is inapplicable because improvements here were made by a third
17 party, not a purchaser. We note that our result in this case is consistent with our
18 Supreme Court’s interpretation of the redemption statue as articulated in Chase. See
19 id. ¶¶ 8-9 (stating that based on the plain language of the redemption statute “the only
8 1 funds that a purchaser may recover under the redemption statute are those funds that
2 the purchaser paid to acquire the property” and further reasoning that requiring the
3 redeemer to pay for improvements made by the purchaser would contravene the public
4 policy and defeat the purpose underlying the redemption statute giving the property
5 owner, or his assigns, a reasonable opportunity to redeem the property, noting in
6 particular that “[p]urchasers could make it more burdensome for redeemers to redeem
7 their property by investing significant amounts of money into improvements, almost
8 ensuring that the redeemer would be unable to redeem their property,” essentially
9 inhibiting, if not extinguishing a redeemer’s right to redemption). Because San
10 Angelo’s unjust enrichment claim directly circumvents Section 48-2-4, we need not
11 further apply Chase to these facts.
12 CONCLUSION
13 {13} For the foregoing reasons, we affirm the district court’s order granting summary
14 judgment in favor of TAL Realty, Inc.
15 {14} IT IS SO ORDERED.
16 17 M. MONICA ZAMORA, Judge
18 WE CONCUR:
9 1 2 RODERICK T. KENNEDY, Judge
3 4 J. MILES HANISEE, Judge