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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 EL CASTILLO RETIREMENT
 3 RESIDENCES,

 4          Plaintiff-Appellant,

 5 v.                                                                     NO. A-1-CA-37494

 6   GUS MARTINEZ, Santa Fe County
 7   Assessor, and BOARD OF COUNTY
 8   COMMISSIONERS FOR THE
 9   COUNTY OF SANTA FE,

10          Defendants-Appellees.

11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
12 David K. Thomson, District Judge

13   Jones, Snead, Wertheim & Clifford, P.A.
14   Jerry Todd Wertheim
15   Jenny F. Kaufman
16   Jiadai Lin
17   Santa Fe, NM

18 for Appellant

19 Bridget Jacober
20 Santa Fe, NM

21 for Appellees
 1                               MEMORANDUM OPINION

 2 VANZI, Judge.

 3   {1}   We withdraw the opinion filed in this case on February 4, 2019, and substitute

 4 the following in its place. We grant the motion to correct the opinion.

 5   {2}   Appellant appeals from the district court’s order granting summary judgment

 6 and dismissal in favor of Appellees. This Court filed a calendar notice proposing

 7 summary affirmance. We received Appellee’s memorandum in support of the

 8 proposed disposition, Appellant’s memorandum in opposition (MIO) to summary

 9 affirmance, Appellant’s motion to withdraw the appeal, Appellee’s motion to strike

10 the MIO, and Appellee’s response in opposition to dismissal of the appeal, and have

11 considered the same. We deny Appellees’ motion to strike the MIO. We also deny

12 Appellant’s motion to withdraw the appeal and proceed with summary affirmance of

13 the district court’s order.

14   {3}   Appellant’s docketing statement challenged whether the exemption for property

15 interests provided for by NMSA 1978, Section 7-36-3(B) (2006), is limited to

16 property a governmental entity has an ownership interest in pursuant to Article VIII,

17 Section 3 of the New Mexico Constitution. [DS 8] Appellant argued that interpreting

18 Section 7-36-3(B) as being limited by the Constitution renders the plain meaning of

19 that statute meaningless. [Id.] Relying on our Supreme Court’s holding in El Castillo

20 Retirement Residences v. Martinez, as controlling authority, our calendar notice

                                              2
 1 proposed to conclude that Article VIII, Section 3 limits the Legislature’s power to

 2 exempt property from taxation, and because there is no constitutional authority for the

 3 Legislature to exempt real property by statute, like NMSA 1978, Section 7-36-

 4 7(B)(1)(d) (2008), Section 7-36-7(B)(1) cannot grant exemptions outside those

 5 authorized by Article VIII, Section 3. [CN 3-4] El Castillo Retirement Residences v.

 6 Martinez, 2017-NMSC-026, ¶¶ 29-30, 401 P.3d 751.

 7   {4}   Appellant does not assert any error in fact or law, or otherwise oppose the

 8 proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754,

 9 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the

10 burden is on the party opposing the proposed disposition to clearly point out errors in

11 fact or law.”); see also Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111,

12 ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing

13 statement but not contested in a memorandum in opposition are abandoned). Rather,

14 Appellant moves to dismiss the appeal by order and to allow the judgment below to

15 stand as decided without entry of a memorandum opinion. [Motion 1-2, 8; MIO 3, 8]

16 In the alternative, Appellant requests assignment to the general calendar for full

17 briefing on the constitutional question. [MIO 8; Motion 8]

18   {5}   Appellees, on the other hand, agree to dismissal of the appeal on the condition

19 that this Court enter a memorandum opinion summarily affirming in accordance with

20 the proposed disposition. [MIS 1] Appellees assert that contrary to Appellant’s

                                              3
 1 assertion, they do not seek a declaration on the constitutionality of Section 7-36-3(B),

 2 but request a memorandum opinion adopting the analysis in the proposed disposition

 3 addressing the application of Section 7-36-3(B) to the undisputed facts of the case.

 4 [Response 5]

 5   {6}   Appellant submits that permitting dismissal of the appeal by order alone, and

 6 without a memorandum opinion, avoids any future dispute over the meaning and legal

 7 force of the “un-litigated memorandum opinion.” [MIO 4] Appellant further asserts

 8 that adopting the proposed summary disposition to affirm without full appellate

 9 review would create persuasive authority that Article VIII, Section 3 renders Section

10 7-36-3(B) unconstitutional as written. [MIO 4-5] We disagree.

11   {7}   First, there should be no dispute as to the propriety of our summary disposition

12 of the case or the precedential value of the resulting memorandum opinion. “The

13 summary calendar allows us to dispose of certain cases in an expeditious manner.”

14 Udall v. Townsend, 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341. And when

15 the facts are not disputed, a case may appropriately be decided on the Court’s

16 summary calendar. See Taylor, 1996-NMCA-111, ¶ 1; State v. Hearne, 1991-NMCA-

17 046, ¶ 32, 112 N.M. 208, 813 P.2d 485 (pointing out that, when facts are undisputed

18 and application of legal principles is clear, a case is appropriately decided on the

19 summary calendar). The docketing statement takes the place of full briefing when a

20 case is decided on the summary calendar. See State ex rel. N.M. Highway & Transp.

                                               4
 1 Dep’t v. City of Sunland Park, 2000-NMCA-044, ¶ 15, 129 N.M. 151, 3 P.3d 128

 2 (“[T]he docketing statement . . . , which a party files in advance of assignment of his

 3 [or her] case to one of the Court’s three dispositional calendars, . . . takes the place of

 4 full briefing when a case is decided on the Court’s summary calendar.”). Thus, while

 5 the summary disposition disposes of the legal and factual issues on appeal as between

 6 the parties, and “may be cited for any persuasive value,” it is not precedential

 7 authority for other cases. Rule 12-405(A) NMRA (“It is unnecessary for the appellate

 8 court to write precedential opinions in every case. Disposition by order, decision or

 9 memorandum opinion does not mean that the case is considered unimportant. It does

10 mean that the disposition is not precedent.”).

11   {8}   Second, we emphasize that our proposed disposition does not decide the

12 constitutionality of Section 7-36-3(B). Rather, the calendar notice addresses whether

13 Section 7-36-3(B) is limited by Article VIII, Section 3. [CN 3-4] While Appellant’s

14 docketing statement argued that interpreting Section 7-36-3(B) as being limited by

15 Article VII, Section 3, would render the plain meaning of the statute unconstitutional

16 [DS 8], we merely applied controlling precedent to the undisputed facts of the case in

17 holding that because the Legislature has been given no constitutional authority to

18 enact a statute exempting real property from taxation, Section 7-36-3(B) cannot be

19 interpreted to grant exemptions that are not authorized by Article VIII, Section 3. [CN

20 3-4] See El Castillo Ret. Residences, 2017-NMSC-026, ¶¶ 29-30. Although the

                                                5
 1 constitutional and statutory claims as raised and argued in the docketing statement are

 2 necessarily intertwined, the proposed disposition does not consider either a facial or

 3 as applied constitutional challenge to the statute. See Bounds v. State ex rel.

 4 D’Antonio, 2013-NMSC-037, ¶ 14, 306 P.3d 457 (“Generally, in a facial challenge

 5 to a statute, we consider only the text of the statute itself, not its application; whereas,

 6 in an as-applied challenge, we consider the facts of the case to determine whether

 7 application of the statute even if facially valid deprived the challenger of a protected

 8 right.” (alterations, internal quotation marks, and citation omitted)).

 9   {9}   Lastly, Appellees do not stipulate to the dismissal of the appeal. [Motion 2-3;

10 Response 2] See Rule 12-401(B)(1) NMRA (“Prior to entry of disposition, if all of the

11 parties affected by an appeal or other proceeding sign and file with the appellate court

12 clerk an agreement that the same be dismissed, an order of dismissal shall be entered

13 and mandate or other process of the court shall issue immediately.”). Under these

14 circumstances, this Court has discretion to dismiss an appeal on our terms or on those

15 agreed upon by the parties. See Rule 12-401(B)(2) (“An appeal or other proceeding

16 may be dismissed by the appellate court after motion by the appellant or party

17 instituting the proceeding and upon such terms as are fixed by the appellate court or

18 agreed upon by the affected parties.” (emphasis added)). However, absent Appellees’

19 stipulation, we deny Appellant’s motion to dismiss the appeal, as this would prejudice

20 the rights of Appellee “to end the litigation by securing an affirmance of the judgment

                                                6
 1 of the lower court.” Acequia Madre v. Meyer, 1912-NMSC-044, ¶ 10, 17 N.M. 371,

 2 128 P. 68 (“[H]ad appellants filed the dismissal prior to the motion for affirmance, no

 3 question could, we apprehend, be raised as to the right to dismiss; but to permit the

 4 dismissal after the appellee has acquired the right to an affirmance by his diligence

 5 would be to deprive him of a legal right which he has acquired under the statute.”).

 6   {10}   We clarify that Section 7-36-3(B) must be read in light of Article VIII, Section

 7 3 of the New Mexico Constitution. See El Castillo Ret. Residences, 2017-NMSC-026,

 8 ¶ 25 (“A statute must be interpreted and applied in harmony with constitutionally

 9 imposed limitations.”); see also Zhao v. Montoya, 2014-NMSC-025, ¶ 14, 329 P.3d

10 676 (“The Legislature’s inherent authority and discretion to exercise the State’s power

11 of taxation is plenary except in so far as limited by the Constitution.” (internal

12 quotation marks and citation omitted)). We conclude that Appellant is not entitled to

13 property tax exemptions under Section 7-36-3(B) because it, and not the city, owns

14 the subject property. See Sims v. Vosburg, 1939-NMSC-026, ¶ 4, 43 N.M. 255, 91

15 P.2d 434 (relying on Article VIII, Sections 1, 3, and 5 in stating that “[a]ll tangible

16 property in New Mexico is subject to taxation in proportion to value, and should be

17 taxed, unless specifically exempted by the constitution or by its authority”).

18   {11}   For all of these reasons, and those stated in the proposed disposition, we affirm.

19   {12}   IT IS SO ORDERED.



                                                7
1                               __________________________________
2                               LINDA M. VANZI, Judge

3 WE CONCUR:



4 _________________________________
5 M. MONICA ZAMORA, Chief Judge



6 _________________________________
7 JULIE J. VARGAS, Judge




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