 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 LOS ALAMOS NATIONAL BANK,

 8          Plaintiff-Appellant,

 9 v.                                                                           NO. 30,943

10   SANTA FE HORSE PARK, LLC, a New Mexico
11   Limited Liability Company, CHARLES R. KOKESH,
12   MARLA G. KOKESH, SANTA FE VENTURE TRUST,
13   a New Mexico Trust, REVERDY JOHNSON, or his successor
14   in interest, trustee of the Santa Fe Venture Trust,
15   SANTA FE VENTURE PARTNERS, LP, a California
16   Limited Partnership,

17          Defendants-Appellees.

18 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
19 Barbara Vigil, District Judge

20   The Simons Firm, LLP
21   Thomas A. Simons, IV
22   Faith Kalman Reyes
23   Santa Fe, NM

24 for Appellant

25   The Waggoner Law Firm, P.C.
26   William J. Waggoner
27   Daniel Sanchez
28   Robert M. Strumor
29   Santa Fe, NM
 1 Law Offices of Christopher Carlsen
 2 Christopher Carlsen
 3 Santa Fe, NM

 4 Scott M. Davidson
 5 Albuquerque, NM

 6 for Appellees


 7                              MEMORANDUM OPINION

 8 VIGIL, Judge.

 9        Plaintiff appeals an order granting Defendants’ motion for relief from judgment.

10 In this Court’s notice of proposed summary disposition, we proposed to affirm.

11 Plaintiff has filed a memorandum in opposition and a motion to consolidate this

12 appeal with another appeal arising from the same underlying district court case. We

13 have duly considered Plaintiff’s arguments, and as we are not persuaded by them, we

14 deny its motion to consolidate and we affirm.

15 Whether It Was Error to Grant Relief from a Stipulated Judgment

16        Plaintiff contends that the district court erred in addressing Defendant Santa

17 Fe Horse Park’s claims regarding the Hagerman Well water rights pursuant to a Rule

18 1-060(B) NMRA motion for relief from judgment. [DS 7] See Sun Country Savings

19 Bank of N.M., F.S.B. v. McDowell, 108 N.M. 528, 532, 775 P.2d 730, 734 (1989)

20 (holding that the district court did not abuse its discretion in refusing to grant a motion

                                                2
 1 for relief from a stipulated judgment because “Rule 1-060 was not designed nor does

 2 it permit relief from final orders when the effect of such relief would free the moving

 3 party from calculated voluntary choices and decisions previously made”). In this

 4 Court’s notice of proposed summary disposition, we proposed to find no error,

 5 because although both the parties and the district court characterized the ruling as

 6 being pursuant to Rule 1-060(B), it appeared to this Court that the district court was

 7 not actually providing relief from the judgment pursuant to that rule, and instead was

 8 determining whether the Hagerman Well water rights came within the terms of the

 9 judgment. See Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 238, 824 P.2d

10 1033, 1040 (1992) (stating that a district court always retains jurisdiction to enforce

11 and give effect to the terms of a judgment).

12         In Plaintiff’s memorandum in opposition, it argues that this Court overlooked

13 the terms of the stipulated judgment, which expressly incorporated two paragraphs of

14 the complaint. [MIO 2-3] We clearly did not overlook these provisions, as we quoted

15 them in our notice of propose summary disposition. The stipulated judgment provides

16 that “[j]udgment of foreclosure is hereby entered on the mortgage held by [Plaintiff]

17 as referred to in . . . Plaintiff’s Complaint . . ., and providing a sale of the property as

18 described in Paragraphs 14 and 15 of the Complaint and the Mortgage.” [RP 206]

19 Paragraphs 14 and 15 of the complaint state that the mortgage is a valid lien on the



                                                3
 1 described real property and that “[o]n information and belief, the property includes

 2 wells, water rights, and various contracts and/or options to purchase water or water

 3 rights, all of which are subject to the LANB mortgage and the other agreements

 4 between LANB and the non-lienholder Defendants.” [RP 3]

 5        Plaintiff’s memorandum does not persuade us that we have misinterpreted these

 6 provisions. The stipulated judgment is clear that “[j]udgment of foreclosure is hereby

 7 entered on the mortgage . . . ,” such that the foreclosure would only warrant a sale of

 8 that property that was subject to the terms of the mortgage. [RP 206] Nothing about

 9 the judgment reflects an intention to provide Plaintiff with any interests beyond its

10 interest in the property covered by the mortgage, and Paragraph 15 of the complaint

11 only states that on “information and belief” certain water rights were subject to the

12 mortgage. [RP 3] We do not read this paragraph to express a conclusion that the

13 Hagerman Well water rights were in fact subject to the mortgage. Instead, we read it

14 to mean that the agreement between the parties was that the mortgage was to be

15 foreclosed and that the terms of the mortgage might encompass certain water rights.

16 Plaintiff appeared to recognize that the language of the stipulated judgment did not

17 constitute an agreement that the Hagerman Well rights were subject to the mortgage,

18 since, in the district court, Plaintiff stated that “Para[graph] 15 of the Stipulated

19 Judgment . . . merely acknowledges the possibility that water rights and wells may be



                                              4
 1 among the ‘rights’ and ‘appurtenances’ enumerated in the mortgage [RP 286

 2 (emphasis in original)], and Plaintiff repeatedly stated that the stipulated judgment

 3 provided that the Hagerman Well rights “may” be subject to the mortgage. [RP 259,

 4 284, 285] As there was a dispute between the parties about whether the Hagerman

 5 Well rights were in fact subject to the mortgage, and as the stipulated judgment did

 6 not expressly resolve this dispute, the district court could determine, without resort to

 7 Rule 1-060(B), whether the Hagerman Well rights were subject to the mortgage as

 8 part of its determination of whether the judgment of foreclosure on the mortgage

 9 included those rights. The district court did not grant relief from the stipulated

10 judgment and instead interpreted the terms of the stipulated judgment so that it could

11 be properly effectuated.

12 Whether the Hagerman Well Water Rights Were Included in the Mortgage

13         Plaintiff contends that the district court erred in concluding that the Hagerman

14 Well water rights were not encompassed by that portion of the mortgage that states

15 that Santa Fe Horse Park “assigns, . . . as additional security all the right title and

16 interest in . . . and all rights . . . that in any way pertain to or are on account of the use

17 or occupancy of the whole or any part of the Property.” [DS 9] In our notice of

18 proposed summary disposition, we proposed to conclude that Plaintiff’s excerpted

19 language was somewhat misleading and that a reading of the relevant provisions in



                                                 5
 1 full indicated that the assignment was of “rents, issues and profits” that would entitle

 2 Plaintiff as assignee to income and profits from the property. We proposed to

 3 conclude that neither a right to purchase water rights in the future nor the water rights

 4 themselves, once purchased, would come within a reasonable reading of the

 5 mortgage’s terms for assignment of rents, issues, and profits.

 6         Plaintiff’s memorandum in opposition argues that the Court has improperly

 7 relied on the heading of the relevant section of the mortgage, in violation of another

 8 provision that states that headings are not to be used to interpret the terms of the

 9 mortgage. [MIO 4] Plaintiff is incorrect. Although our notice included the heading

10 when quoting the language of the section regarding assignments of rents, issues, and

11 profits, the text of the section itself indicates that it covers assignment of “rents, issues

12 and profits.” [RP 1109] We have relied on the text, and not the heading for our

13 interpretation.

14         Plaintiff argues that we have also interpreted the section on assignments of

15 rents, issues, and profits too narrowly. [MIO 5] We disagree. The general rule is that

16 while appurtenant water rights will be automatically conveyed with the land unless the

17 grantor reserves them, water rights that are not appurtenant must be expressly

18 conveyed. See Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶¶ 23-24, 143 N.M. 142,

19 173 P.3d 749. As we pointed out in our notice of proposed summary disposition,



                                                 6
 1 Plaintiff has abandoned its argument that the Hagerman Well water rights—which

 2 were conveyed along with a separate parcel of land that was purchased after the

 3 mortgage at issue in this case [RP 1175-79, 1181-82]—were appurtenant to the land

 4 that was subject to the mortgage here. Since Plaintiff does not argue that the rights

 5 were automatically conveyed because they are appurtenant to the land, we presume

 6 the rights are not appurtenant and that they therefore would have to be expressly listed

 7 in the mortgage in order to convey them to Plaintiff. As we pointed out in our notice

 8 of proposed summary disposition, Plaintiff cited no authority to suggest that a broad

 9 reading of a clause in a mortgage assigning “rents, issues, and profits” derived from

10 the use or occupancy of a property should be read to encompass water rights. Where

11 a party cites no authority in support of an argument, this Court may presume that there

12 is none. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

13 We decline to read the provisions regarding rents, issues, and profits to constitute an

14 express conveyance of the Hagerman Well rights.

15 The Terms of the District Court’s Order

16        Plaintiff contends that the district court erred in its conclusion that “[o]wnership

17 of water rights is governed by the New Mexico Constitution and a separate body of

18 law and procedure,” and that the district court was required to apply the law governing

19 mortgages and contracts. [DS 10] In our notice of proposed summary disposition, we



                                               7
 1 proposed to conclude that even if the district court’s statement was erroneous, it would

 2 not constitute reversible error, since Plaintiff failed to demonstrate any error in the

 3 substance of its ruling. See In re Estate of Heeter, 113 N.M. 691, 695, 831 P.2d 990,

 4 994 (Ct. App. 1992) (“On appeal, error will not be corrected if it will not change the

 5 result.”).

 6        In response, Plaintiff argues that the district court should not have applied water

 7 law principles at all, and should have only interpreted the terms of the mortgage.

 8 [MIO 7] We disagree with Plaintiff’s assessment of whether the district court should

 9 have made its decision with reference to water law principles, first, because the issue

10 involved the ownership of water rights, and second, because, although it has

11 abandoned this argument on appeal, Plaintiff expressly asked the district court to

12 conclude that the water rights were appurtenant to the land that was subject to the

13 mortgage. [RP 1230 (asking the district court to conclude that the Hagerman Well

14 water rights were “appurtenances”)] Furthermore, even if the district court had done

15 as Plaintiff now suggests and just considered the terms of the mortgage without

16 reference to water law principles, as we have explained, the terms of the mortgage do

17 not convey the Hagerman Well water rights. Accordingly, we find no reversible error

18 based on this statement.

19 Assignment to the General Calendar



                                               8
 1        Plaintiff asserts that our notice of proposed summary disposition perpetuates

 2 several errors, and asks this Court to assign the case to the general calendar so that the

 3 Court may benefit from “the analysis provided to the Court in briefing on the General

 4 Calendar,” and so that the Court can engage in a “broader examination of the

 5 underlying facts.” [MIO 7-8] Plaintiff misunderstands its obligation on appeal.

 6 Plaintiff cannot file a docketing statement and a memorandum in opposition that do

 7 not provide a complete analysis of the facts and law and then request that the case be

 8 assigned to the general calendar so that it may do so. We have read the record

 9 carefully, and once this Court filed its notice of proposed summary disposition and

10 Plaintiff had access to the record proper, we presume that Plaintiff also did so in order

11 to make its best arguments on appeal. We note that Plaintiff’s memorandum in

12 opposition contains no citations to the record proper and contains only two citations

13 to legal authority—both of which were included in its docketing statement and

14 therefore had already been considered by this Court. If Plaintiff had facts, analysis,

15 or legal authority that it believed would have persuaded this Court to reverse the

16 district court, it was required to present them in its docketing statement, and then

17 certainly in its memorandum in opposition once it had been alerted to this Court’s

18 proposed analysis and had access to the full record proper. See State ex rel. State

19 Highway & Transp. Dep’t v. City of Sunland Park, 2000-NMCA-044, ¶ 15, 129 N.M.



                                               9
 1 151, 3 P.3d 128 (noting that the docketing statement takes the place of full briefing

 2 when a case is decided on the summary calendar); Hennessy v. Duryea,

 3 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (stating that once this Court

 4 issues a notice of proposed summary disposition, “[o]ur courts have repeatedly held

 5 that . . . the burden is on the party opposing the proposed disposition to clearly point

 6 out errors in fact or law”).

 7        Plaintiff also asks this Court to assign this case to the general calendar because

 8 another appeal arising from the same district court case has been assigned to the

 9 general calendar. [Supp. Response in Opp. to Proposed Summary Disposition and

10 Mot. to Consolidate] We decline to do so at this point, where we have already issued

11 a notice of proposed summary disposition and Plaintiff’s memorandum in opposition

12 does not persuade us that our proposed disposition is incorrect. As the two appeals

13 raise separate issues and as we can dispose of the issues raised in this appeal

14 summarily, the appeals need not be decided together.

15        Therefore, for the reasons stated in this opinion and in our notice of proposed

16 summary disposition, we affirm.

17        IT IS SO ORDERED.



18                                                 _______________________________
19                                                 MICHAEL E. VIGIL, Judge

                                              10
11
1 WE CONCUR:



2 _________________________________
3 JAMES J. WECHSLER, Judge



4 _________________________________
5 JONATHAN B. SUTIN, Judge




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