B.T.U. BLOCK & CONCRETE, INC. V. ORTEGA
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on the citation of unpublished memorandum opinions.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.
B.T.U. BLOCK & CONCRETE, INC.,
a New Mexico corporation,
Plaintiff-Appellee,
v.
TONY C. ORTEGA,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY,
Eugenio S. Mathis, District Judge
Nicholas T. Leger, Las Vegas, NM, L.
Helen Bennett, Albuquerque, NM, for Appellee
Walcott & Henry, P.C., Donald A.
Walcott, Santa Fe, NM, for Appellant
MICHAEL E. VIGIL, Judge. WE CONCUR:
RODERICK T. KENNEDY, Chief Judge, JONATHAN B. SUTIN, Judge
{1} Defendant Tony
Ortega (Ortega) appeals the district court’s judgment after a bench trial
quieting title to two tracts of land in favor of B.T.U. Block & Concrete,
Inc. (BTU). Concluding that BTU satisfied the elements of adverse possession of
Tract 1, we affirm BTU’s ownership as to Tract 1. However, because BTU failed
to prove the elements of adverse possession of Tract 2, we reverse as to Tract
2. We remand to the district court to resolve BTU’s claim for a private
prescriptive easement over Tract 2.
{2} BTU initiated this
suit to quiet title to two adjacent tracts of land in Las Vegas, New Mexico
(Tract 1 and Tract 2) . Tract 1, consisting of 19.077 acres, is situated
between some railroad tracks on the west and Tract 2 on the east. Tract 2, a
strip of land measuring approximately 80 feet from east to west and 1500 feet
from north to south, shares its western border with Tract 1 and eastern border
with the Interstate25 right-of-way. BTU conceded that Ortega has record title
to Tract 2. No fences have ever separated Tract 1 from Tract 2. However, there
is a gravel road on Tract 2, along its border to Tract 1, that extends from a
public paved road. BTU uses this road as its primary access to Tract 1. BTU has
used the area east of the road on Tract 2 for employee parking and to store
concrete block since it purchased the property in 1983 from T. Brown
Constructors, Inc. (Brown), which had also utilized Tract 2.
{3} In its complaint,
BTU sought to quiet title to Tract 1 to prevent Ortega from making any adverse
claims to it, while it claimed title to Tract 2 by adverse possession. In the
alternative, BTU sought a private prescriptive easement over Tract 2. The
district court ruled that BTU’s record title to Tract 1 was not contested and
that BTU owns Tract 1 in fee simple absolute. The district court quieted title
to Tract 2 in favor of BTU by adverse possession. Ortega appeals. Further
pertinent facts are discussed in the relevant sections below.
{4} Ortega challenges
BTU’s title to Tract 1, arguing that the district court erred in concluding
that BTU’s record title to Tract 1 was uncontested. He contends that while he
did not contest BTU’s ownership of Tract 1 in his answer, the court later
granted him permission to amend his answer during trial to dispute BTU’s title
to Tract 1. Although he claims no ownership of Tract 1 on appeal, Ortega
maintains that the evidence shows that BTU lacks record title to Tract 1 and
that BTU did not present clear and convincing evidence to prove title by
adverse possession over Tract 1.
{5} We agree that
Ortega did contest BTU’s record title to Tract 1 because the district court
granted Ortega’s motion to amend his answer. During Ortega’s trial testimony,
using an exhibit containing a surveyor’s map of Tract 1 and Tract 2, Ortega
pointed to areas of Tract 1 that overlapped with land south and west of Tract 2
that he claimed to own by virtue of deeds he acquired in 2003 and 2004. BTU
objected, arguing that Ortega should not be permitted to challenge BTU’s
ownership of Tract 1 in his testimony because he conceded that BTU owned Tract
1 in his answer to BTU’s complaint. At this point, Ortega moved to amend his
answer so that he could challenge BTU’s ownership of Tract 1, and the district
court granted this motion.
{6} It is unnecessary
for this Court to clarify the district court’s ambiguous findings and
conclusions regarding whether Ortega contested BTU’s ownership of Tract 1. The
district court also ruled that BTU “is the owner . . . in fee simple absolute”
of Tract 1. We will affirm the district court’s decision regarding Tract 1 if
it is right for any reason, so long as it is not unfair to Ortega that we do
so.
See Cordova v. World Fin. Corp. of N.M.,
2009-NMSC-021, ¶ 18,
146
N.M. 256,
208 P.3d 901 (“[I]t is established law that our appellate courts will
affirm a district court’s decision if it is right for any reason, so long as
the circumstances do not make it unfair to the appellant to affirm.”). In his
briefing to this Court, Ortega argued that BTU failed to establish record title
or title by adverse possession over Tract 1. Thus, it is not unfair to Ortega
for us to address the issue of BTU’s ownership of Tract 1 under either of these
theories.
{7} BTU recorded a
warranty deed from Brown in 1983 that did not contain a legal description of
the property or any description such that it could be located by a surveyor. In
1992, the deed was re-recorded with the legal description of Tract 1 attached
to it as Exhibit A. The re-recorded deed notes, “THIS DEED IS BEING RE-RECORDED
IN ORDER TO INCLUDE THE EXHIBIT ‘A’ WHICH WAS OMITTED FROM THE ORIGINAL
RECORDING.” Jay Moore, a witness for Ortega who owns a title company, testified
that occasionally in the title industry, it is discovered that an exhibit is
accidentally omitted from a recording and when it is discovered, the title
company will re-record the deed with the exhibit attached. Brown acquired title
to Tract 1 in January 1981 from Harold Saueresigg. The warranty deed from
Saueressig to Brown contains the same legal description to Tract 1 as is the
description attached as Exhibit A of BTU’s 1992 re-recorded deed.
{8} Referring to NMSA
1978, Section
14-8-4 (1981, amended 2011 and 2013), Ortega contends that the
1983 deed cannot give BTU record title of Tract 1 because it contained no legal
description of Tract 1 and because the 1992 deed did not contain a
contemporaneous signature by Brown as grantor, it should not have been accepted
for recording. Section 14-8-4, at the pertinent time, provided that “[a]ny
instrument of writing,
not duly acknowledged and certified, may not be
filed and recorded, nor considered of record, though so entered.” (Emphasis
added.) However, we decline to consider the legal significance, if any, of the
1983 acknowledgment on the 1992 re-recorded deed. We need not decide whether
BTU has record title to Tract 1, because, as we next explain, BTU proved that
it satisfied the elements of adverse possession of Tract 1 by clear and
convincing evidence.
{9} “[A] party claiming
ownership of land by adverse possession must prove by clear and convincing
evidence continuous adverse possession for ten years under color of title, in
good faith, and payment of taxes on the property during these years.”
In re
Estate of Duran,
2003-NMSC-008, ¶ 8,
133 N.M. 553,
66 P.3d 326 (internal
quotation marks and citation omitted);
see NMSA 1978, §
37-1-22 (1973)
(adverse possession statute).
{10} Ortega does not
challenge that BTU possessed Tract 1 for at least ten years nor that it paid
taxes on Tract 1 for these years. Indeed, evidence in the record shows that BTU
possessed and paid taxes on Tract 1 for more than thirty years. Ortega solely
challenges BTU’s good faith color of title.
{11} In order to achieve
color of title, the adverse possessor “must have a writing or a conveyance of
some kind that purports to convey the land title to which is claimed.”
City
of Rio Rancho v. Amrep Sw. Inc.,
2011-NMSC-037, ¶ 22,
150 N.M. 428,
260
P.3d 414 (internal quotation marks and citation omitted);
see § 37-1-22
(stating that an adverse possessor who has met the other requirements for
adverse possession “shall be entitled to keep . . . such quantity of lands as
shall be specified and described in some writing purporting to give color of
title to such adverse occupant”). “What will suffice as color of title is a
question of law, which we review de novo.”
In re Estate of Duran,
2003-NMSC-008, ¶ 20
(citation omitted). On its face, the 1992 deed
contains the elements a document is required to have in order to achieve color
of title for BTU. The deed purports to convey the land described in Exhibit A,
which contains the legal description of Tract 1, from Brown to BTU.
{12} Ortega challenges
the good faith element of color of title. “Good faith in this context is
freedom from a design to defraud the person having the better title.”
Id. ¶
21 (internal quotation marks and citation omitted). “We will typically apply a
presumption that this element has been satisfied by the person claiming title
by adverse possession.”
Id. “[B]ad faith will be found not in the
relative appearance of validity of the instrument chosen for color of title,
but in the methods used in the acquisition of such instrument.”
Id. (internal
quotation marks and citation omitted). Ortega argues that there is no evidence
that Brown or any other third party provided the legal description of Tract 1
that was eventually attached as Exhibit A in the re- recorded deed. Ortega insinuates
that because there is no evidence of the legal description’s origin, BTU could
have obtained a copy and attached the description itself. Quoting
In re
Estate of Duran,
2003-NMSC-008, ¶ 23, he asserts, “[A] deed made by a man
to himself could not well be supposed to have the characteristics of color of
title.” However, there is no evidence in the record to support Ortega’s
assertions.
{13} The evidence in the
record supports our presumption that BTU acquired the 1992 deed in good faith.
The 1992 deed itself notes that it is being re-recorded to include Exhibit A
because it was omitted from the original deed. The BTU principal testified that
he had no knowledge of the circumstances of the re-recording, and a title
company owner testified that it is standard in the industry to simply re-record
deeds with attachments that were initially erroneously omitted. The 1983 deed,
although no description was attached, does demonstrate that Brown sold BTU some
property. There was also testimony that BTU had worked with Brown on a highway
bypass construction project and that BTU bought property from Brown when the
project was complete and Brown put Tract 1 up for sale and moved off of it. BTU
moved on it and immediately set up its cement business. There was no evidence
presented at trial to suggest that the re-recordation of the 1992 deed was made
in bad faith by BTU to attempt to gain ownership of land that it did not own.
Therefore, we conclude that the evidence unquestionably provides BTU good faith
color of title to Tract 1. Therefore, BTU has satisfied all of the elements of
adverse possession of Tract 1.
{14} Ortega also
challenges the district court’s decision to quiet title to Tract 2 in favor of
BTU by adverse possession. The district court found that BTU had openly and
continuously occupied a portion of Tract 2 since 1983, that BTU paid all real
estate taxes on Tract 2, and that BTU had “proven all of the elements of
adverse possession over Tract 2 by clear and convincing evidence.” Ortega argues
there is not substantial evidence that BTU had color of title over Tract 2 nor
that BTU paid taxes on Tract 2. We agree.
{15} Here, BTU
relies on its chain of title and deed to Tract 1 as color of title for Tract 2.
BTU asserts that the district court resolved the “conflicting evidence” of
color of title in its favor. However, there is no conflicting evidence in the
record regarding what parcel of land BTU’s deed purports to convey. The
district court found that the legal description in the deed is for Tract 1.
Despite BTU’s insistence at oral argument that its expert testified as to an
area of “overlap” between the description of Tract 1 in BTU’s deed and the land
in Tract 2, BTU’s expert in fact testified that the legal description in BTU’s
deed solely describes Tract 1. He even identified Tract 1 as the parcel of land
described in BTU’s deed by drawing an outline of Tract 1 on an exhibit
containing a surveyor’s map of Tract 1 and Tract 2. There is no overlap between
Tract 1 and Tract 2 on the map. Any “overlap” referenced by the expert was in
reference to Ortega’s other property he acquired in deeds for the land south
and west of Tract 2.
{16} In its brief to this
Court, BTU argued that it offered sufficient evidence that it “relied” on its
deed to Tract 1 “in claiming title to the land encompassed by both Tract [1]
and Tract [2].” BTU’s argument fails because the deed BTU used to establish
color of title to Tract 2 does not describe the land in Tract 2, so it cannot
provide color of title for Tract 2. The writing offered for color of title
“must attempt to give title to the adverse occupant, but for some reason fails
to do so.”
Slemmons v. Massie,
1984-NMSC-108, ¶ 4,
102 N.M. 33,
690 P.2d
1027;
accord Currier v. Gonzales,
1967-NMSC-259, ¶ 5,
78 N.M. 541,
434
P.2d 66. Our Supreme Court has repeatedly declined to find color of title when
the document offered fails to attempt to convey the property claimed.
See,
e.g.,
Fischer v. Mascarenas,
1979-NMSC-063, ¶ 8,
93 N.M. 199,
598
P.2d 1159 (ruling that “[s]ince the uncontradicted evidence of the survey
indicates that the [deeds offered for color of title] do not describe the land
in question, those deeds cannot be the basis of a valid claim and cannot
provide color of title for purposes of adverse possession”);
Esquibel v.
Hallmark,
1978-NMSC-080, ¶ 9,
92 N.M. 254,
586 P.2d 1083 (holding that the
adverse possessors failed to show color of title since the deed they used did
not describe the portion of property they claimed by adverse possession).
{17} BTU argues that
because it
believed in good faith that its deed described Tract 2 in
addition to Tract 1, the deed provides color of title to Tract 2. The district
court found that BTU in good faith believed that the warranty deed from Brown
transferred all of the land encompassing Tract 1 and Tract 2. However, BTU
offers no legal support that an adverse possessor’s good faith belief that a
document provides title to property is sufficient to achieve color of title
over that property. Where a party cites no authority to support an argument, we
may assume no such authority exists.
In re Adoption of Doe,
1984-NMSC-024, ¶ 2,
100 N.M. 764,
676 P.2d 1329. Without such authority, we are
left with the well-settled law that the document used to achieve color of title
over a piece of land must
purport to convey that land,
City of Rio
Rancho,
2011-NMSC-037, ¶ 22, but for some reason fails to do so,
Slemmons,
1984-NMSC-108, ¶ 4. We therefore reject BTU’s reliance on its
erroneous good faith belief that its deed for Tract 1 included Tract 2 as color
of title to Tract 2.
{18} Ortega also
challenges the district court’s finding that BTU paid all real estate taxes
assessed against Tract 2. Because BTU lacks color of title, it is not necessary
for us to answer this argument. Title by adverse possession cannot be proved
unless all of these elements are established.
Slemmons,
1984-NMSC-108, ¶
6. However, we address this argument as an alternative disposition.
{19} BTU asserts that the
district court properly resolved “the conflicting evidence of payment of taxes”
in favor of BTU. However, there is no conflicting evidence regarding BTU’s
payment of taxes in the record. In fact, there is no evidence in the record
whatsoever that BTU paid any taxes on Tract 2. The evidence of BTU’s tax
payments shows that BTU paid taxes from 1992 to 2007 on 19.08 acres. BTU’s deed
to Tract 1 covers 19.077 acres. While the San Miguel County treasurer testified
that BTU also paid all taxes it was assessed from 1983 to 1991, no records
existed for this period so there is no evidence that the acreage that was
assessed for these years covered Tract 2.
{20} BTU relies on
testimony from San Miguel County Tax Assessor Elaine Estrada that records
“showed BTU to be the owner of the land in question for taxing purposes.” Ms.
Estrada testified that BTU’s property was formerly plotted on the tax
assessor’s map as encompassing both Tract 1 and Tract 2 for tax assessment
purposes and that Ortega’s property was plotted as the parcel north of BTU. She
also testified, however, that the tax assessor’s office made an error when
plotting Ortega’s property and did not plot it as indicated by the survey,
which is more accurate. Ms. Estrada advised that Ortega’s property was plotted
correctly on the county assessor’s map in 2001 and that she was unsure as to
how many years prior to that the map was wrong.
{21} Ms. Estrada’s
testimony and the exhibit of the old assessment map showing BTU being assessed
for Tract 2 does not provide a conflict in the evidence regarding what taxes
BTU actually paid. There was no evidence in the record that BTU ever even saw
the map. Even if it had, the erroneous map is not evidence of what was actually
assessed nor is it a record of payment of taxes on Tract 2. Again, the actual
tax assessments to and payments made by BTU only covered 19.08 acres. Even
BTU’s principal conceded in his testimony that it appears BTU was only paying
taxes on 19.08 acres, but he had always (erroneously) assumed that 19.08 acres
included all of the land between the railroad tracks and the highway
right-of-way to include Tract 2. The district court’s finding that BTU paid
taxes on Tract 2 is therefore not supported by substantial evidence.
{22} Despite its
inability to show any actual payments of taxes on Tract 2, BTU appears to rely
on its good faith payment of all taxes assessed by the San Miguel County tax
assessor as satisfaction of the payment of taxes element of adverse possession.
BTU asserts that “[w]here BTU occupied and used the lands in question, and paid
the taxes as billed by the authorities, the presumption must arise that the
payment of taxes requirement [in the adverse possession statute] was met.”
Whether the erroneous belief that tax payments cover a disputed parcel of property
is sufficient to satisfy the payment of taxes element is a legal question,
which we review de novo.
See In re Estate of Duran,
2003-NMSC-008, ¶ 21.
{23} BTU urges this Court
to apply the same rationale regarding a good faith payment of taxes utilized by
our Supreme Court in
Pratt v. Parker,
1953-NMSC-005,
57 N.M. 103,
255
P.2d 311. We decline to do so.
Pratt involved plaintiffs who had paid
the taxes they were billed, believing that the payments covered the taxes for
the property they owned.
Id. ¶ 8. However, the tax roll erroneously
described their property, thus they were actually paying the taxes on the
described property, which was not owned by them.
Id. ¶¶ 4, 8. The Court
agreed with the plaintiffs’ contention that since they had paid taxes on what
was assessed “in good faith” and “thinking and intending” the payment to cover
the property they owned, the payments constituted a good defense against a tax
sale.
Id. ¶ 8. The tax assessor’s mistake in
Pratt could have
potentially caused the plaintiffs to lose property they actually owned despite
their good faith tax payments. Whereas, here, BTU attempts to use its good
faith tax payments on property it owned as grounds to gain title to property it
does not own and for which it paid no taxes. The rationale utilized in
Pratt
is not applicable under such circumstances. BTU’s failure to pay taxes on
Tract 2 is fatal to its claim for adverse possession over Tract 2.
See Platt
v. Martinez,
1977-NMSC-026, ¶ 4,
90 N.M. 323,
563 P.2d 586 (refusing to
consider whether the defendant met any of the other elements of adverse
possession since there was no evidence that the defendant had paid taxes on any
more land than what was covered by his deed).
{24} We affirm the
district court’s decision regarding Tract 1. We reverse the district court’s
decision regarding Tract 2 and remand to the district court to resolve BTU’s
remaining claim for a private easement by prescription over Tract 2.
RODERICK T. KENNEDY, Chief Judge