 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CITY OF RIO RANCHO,

 8          Plaintiff-Appellant,

 9 v.                                                                           NO. 29,510

10 CLOUDVIEW ESTATES, LLC,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 Louis P. McDonald, District Judge

14   Montgomery & Andrews, P.A.
15   Randy S. Bartell
16   Sharon T. Shaheen
17   Santa Fe, NM

18 for Appellant

19   Foster, Rieder & Jackson, P.C.
20   J. Douglas Foster
21   Travis G. Jackson
22   Albuquerque, NM

23 for Appellee

24                                 MEMORANDUM OPINION

25 VANZI, Judge.
 1        At issue in this appeal is the nature and extent of a drainage easement that

 2 covers the entirety of a ten-acre parcel of land located within the City of Rio Rancho,

 3 New Mexico. The City of Rio Rancho (the City) appeals the district court’s order

 4 reversing the City’s administrative decision that denied Cloudview Estates, LLC’s

 5 (Cloudview) request to vacate the drainage easement on the parcel. The City also

 6 appeals the district court’s order granting summary judgment in favor of Cloudview

 7 on Cloudview’s inverse condemnation claim and granting summary judgment in favor

 8 of Cloudview as to all of the City’s claims against Cloudview. We reverse the district

 9 court’s reversal of the City’s administrative decision. We also reverse the district

10 court’s grant of summary judgment, both as to Cloudview’s inverse condemnation

11 claim and as to the City’s claims.

12 BACKGROUND

13        The property at issue is a ten-acre parcel of land labeled “Parcel F” on the

14 recorded final plat (the Plat) of the Vista Hills West Unit 1 (VHWU1) subdivision in

15 Rio Rancho, New Mexico, dated October 18, 1985. AMREP Southwest, Inc. (Amrep)

16 was the original owner and subdivider of all property within the VHWU1 subdivision

17 boundaries. The entirety of Parcel F is labeled as a drainage easement on the Plat.

18 Parcel F is also the subject of a dispute between the City and Amrep regarding their

19 intent in designating Parcel F as a drainage easement. See City of Rio Rancho v.


                                              2
 1 AMREP Southwest, Inc., 2010-NMCA-___, ___ N.M. ___, ___ P.3d ___ (No. 28,709,

 2 June 7, 2010).

 3        Cloudview purchased Parcel F in November 2004 from Martin and Theresa

 4 Mares who themselves had purchased the property from Amrep in March 2004. On

 5 July 1, 2005, Cloudview submitted an application to the City’s Planning and Zoning

 6 Board (PZB) to vacate the drainage easement and create a thirty-lot subdivision on

 7 Parcel F.

 8        The City initially approved the proposed subdivision; however, after protests

 9 by neighboring property owners who claimed that Parcel F had been represented to

10 them as permanent open space when they purchased their properties, the PZB

11 withdrew its approval for the proposed subdivision and denied Cloudview’s

12 application to vacate the easement. Cloudview appealed the PZB’s decision to the

13 City’s Governing Body (CGB). The CGB upheld the PZB decision. The CGB

14 determined that, at the time of the original platting of VHWU1, Amrep and the City

15 intended that Parcel F be set aside as undevelopable open space. The CGB further

16 determined that “[g]iven the twenty-year lapse of time, the complete build-out of the

17 underlying subdivision, and the relative scale of development sought by Cloudview

18 . . . development of Parcel F at this time would violate the planning principles dictated

19 by City law in effect now and at the time of the approval of the original plat.”


                                               3
 1        Following the CGB’s denial of its appeal, Cloudview filed a complaint against

 2 the City in federal district court alleging that the City’s refusal to vacate the drainage

 3 easement on Parcel F deprived Cloudview of due process and requested review of the

 4 City’s administrative decision denying Cloudview’s application to vacate the

 5 easement. The federal district court dismissed Cloudview’s claims without prejudice.

 6        After the federal court’s dismissal of Cloudview’s complaint, the City filed a

 7 complaint in district court, naming both Amrep and Cloudview as defendants. In the

 8 complaint, the City requested a declaratory judgment determining the ownership of

 9 Parcel F and the nature and extent of the encumbrance of the drainage easement on

10 Parcel F. In response to the City’s complaint, Cloudview filed several counterclaims

11 against the City. Two of these counterclaims are at issue in this appeal. First,

12 Cloudview requested judicial review by the district court of the City’s administrative

13 decision denying Cloudview’s application to vacate the easement. Second, Cloudview

14 made a claim of inverse condemnation alleging that the City’s denial of Cloudview’s

15 application to vacate the drainage easement had resulted in a taking of Cloudview’s

16 property for public use without just compensation. Cloudview moved for partial

17 summary judgment on the City’s claims against Cloudview and also requested

18 summary judgment on its inverse condemnation claim. The district court reversed the

19 City’s administrative decision denying Cloudview’s application to vacate the drainage


                                               4
 1 easement and granted summary judgment in favor of Cloudview on Cloudview’s

 2 claim of inverse condemnation and granted summary judgment in favor of Cloudview

 3 on the City’s claims against Cloudview. As noted above, the dispute between Amrep

 4 and the City is the subject of a separate appeal. We discuss each of the district court’s

 5 rulings regarding Cloudview and the City in turn.

 6 DISCUSSION

 7 I.     District Court’s Reversal of the City’s Administrative Decision

 8        Sitting in its appellate capacity, the district court reversed the City’s

 9 administrative decision that had denied Cloudview’s request that the City vacate the

10 drainage easement over Parcel F. The district court held that the City’s decision was

11 contrary to law and not supported by substantial evidence. The district court did not

12 state the underlying facts that were the basis of its decision.

13        The City argues that the district court erred in reversing the City’s

14 administrative decision because (1) Cloudview’s notice of appeal to the district court

15 was untimely, (2) the court improperly reweighed evidence and made findings of fact,

16 and (3) the City’s decision was based on substantial evidence and in accordance with

17 the law. We reverse the district court’s ruling because we conclude that the City’s

18 decision was in accordance with the law and based on substantial evidence; therefore,

19 we do not address the City’s remaining arguments.


                                               5
 1 A.     Standard of Review for Appeals From Administrative Decisions

 2        This Court will “conduct the same review of an administrative order as the

 3 district court sitting in its appellate capacity, while at the same time determining

 4 whether the district court erred in the first appeal.” Rio Grande Chapter of Sierra

 5 Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806.

 6 “The district court may reverse an administrative decision only if it determines that

 7 the [city] . . . acted fraudulently, arbitrarily, or capriciously; if the decision was not

 8 supported by substantial evidence in the whole record; or if the [c]ity did not act in

 9 accordance with the law.” Gallup Westside Dev., LLC v. City of Gallup, 2004-

10 NMCA-010, ¶ 10, 135 N.M. 30, 84 P.3d 78 (filed 2003).

11        We review the City’s decisions based on a review of the whole record. Id. ¶ 11.

12 However, “a reviewing court may not substitute its judgment for that of the [c]ity.”

13 Id. On review, “[w]e view evidence in the light most favorable to the [c]ity while also

14 considering contravening evidence.” Id. “[W]e may only evaluate whether the record

15 supports the result reached, not whether a different result could have been reached.”

16 Id. “The party seeking to overturn the [c]ity’s decision must establish that there is no

17 substantial evidence in the record to support the decision.” Id.

18 B.     The City’s Decision Is Supported by Substantial Evidence and Not
19        Contrary to Law

                                               6
 1        The CGB held a hearing on November 9, 2005, to consider Cloudview’s appeal

 2 of the PZB’s decision denying Cloudview’s application for vacation of the drainage

 3 easement. After consideration of the arguments and evidence presented at the hearing,

 4 the CGB upheld the PZB’s decision. The CGB issued a set of findings in support of

 5 its decision.

 6        The findings issued by the CGB included findings that substantial evidence had

 7 been submitted to allow the CGB to conclude that, at the time of the approval of the

 8 Plat, Amrep and the City intended that Parcel F be used as open space and that Parcel

 9 F continue to have a role in the City’s provision of open space areas. The CGB also

10 found that the City ordinances required all developable property within a subdivision

11 to be identified at the time of platting and that Parcel F was not identified as

12 developable property on the Plat of VHWU1. Finally, the CGB found that, given the

13 twenty-year lapse of time, the now complete build-out of the underlying subdivision,

14 and the relative scale of development sought by Cloudview, development of Parcel

15 F at the time of Cloudview’s application would violate the planning principles dictated

16 by City law.

17        The record shows that the CGB based its findings on the following evidence:

18 (1) Parcel F was designated as open space on the preliminary plat submitted to the

19 City for preliminary approval of the subdivision; (2) a letter, written in 1985, from


                                              7
 1 Dan Holmes, Cinfran Engineering, Inc., to Loring Spitler, City of Rio Rancho, stating

 2 that certain areas on the preliminary plat with difficult topography had been left in

 3 their natural state in areas set aside as open space; (3) a letter from Charles M.

 4 Easterling, City Engineer, to the same Mr. Spitler, also written in 1985, commenting

 5 that the open space parcels were of concern from a drainage and maintenance

 6 standpoint; (4) minutes from the City’s PZB meetings in 1985 indicating that VHWU1

 7 plat approval was based on the developer’s representations that forty acres of open

 8 space would be provided within the subdivision; (5) the Plat of VHWU1, identifying

 9 as drainage easements the same forty acres identified as open space on the preliminary

10 plat; (6) an affidavit from Michael Springfield, senior planner for the City’s

11 development department in 1985, stating that the drainage easement on Parcel F was

12 intended to satisfy Amrep’s obligation to convey open space for the VHWU1

13 subdivision; (7) VHWU1 covenants of record providing that easements shall run with

14 the land and be binding on all parties unless a majority of the owners of the VHWU1

15 lots vote to change such restrictions; (8) City subdivision restrictions in existence

16 when Cloudview applied for the vacation of the easement on Parcel F; (9) subdivision

17 regulations in existence at the time the Plat was approved requiring all developable

18 land susceptible to subdivision or development to be identified; (10) supporting

19 documentation regarding a replat of Parcel H in VHWU1 identifying the original


                                             8
 1 planned use of Parcel H as open space (Parcel H was labeled identically to Parcel F

 2 on both the preliminary and final plats); (11) City land inventories listing Parcel F as

 3 open space; (12) statements by numerous homeowners in VHWU1 stating that Amrep

 4 representatives had assured them at the time of their purchase that Parcel F would

 5 remain open space; and (13) the fact that several homeowners in VHWU1 stated they

 6 had paid a premium for their lots because it adjoined Parcel F.

 7        As noted above, the party seeking to overturn the City’s decision “must

 8 establish that there is no substantial evidence in the record to support the decision.”

 9 Gallup Westside Dev., LLC, 2004-NMCA-010, ¶ 11. On appeal, however, Cloudview

10 does not specifically address the City’s findings or the evidence relied upon by the

11 City in arriving at its decision. Rather, Cloudview asserts that the “controlling issue

12 on this appeal is the district court’s ruling that the City has ‘taken’ Cloudview’s

13 property, entitling Cloudview to summary judgment on its claim for ‘inverse

14 condemnation.’” Cloudview claims that the district court’s ruling on the inverse

15 condemnation claim renders the City’s administrative decision moot and leaves the

16 inverse condemnation claim as Cloudview’s sole remedy in this matter.

17        Cloudview also asserts that it was a bona fide purchaser of Parcel F, subject

18 only to the drainage easement over the entirety of the parcel, and that fee title to the




                                              9
 1 property carries with it the right to make economic, beneficial use of the property. We

 2 address Cloudview’s inverse condemnation claim below.

 3        With regard to the administrative appeal, however, based on a thorough review

 4 of the whole record, and considering the evidence in a light most favorable to

 5 upholding the City’s decision, we conclude that while there is evidence that might

 6 support a different conclusion, there is substantial evidence in the record to support

 7 the City’s decision.

 8        The parties do not dispute that the City has the authority to approve or deny

 9 proposed subdivisions within its boundaries and to approve or deny requests for

10 vacation of easements in the City’s possession. We determine, therefore, that the City

11 did not fail to act in accordance with the law in denying Cloudview’s request to vacate

12 the drainage easement. Finally, we find no evidence in the record to show that the

13 City acted fraudulently, arbitrarily, or capriciously. Because we conclude that there

14 is substantial evidence in the record to support the City’s decision, that the City acted

15 in accordance with the law, and that the City did not act fraudulently, arbitrarily, or

16 capriciously, we reverse the district court’s ruling overturning the City’s

17 administrative decision.

18 II.    Summary Judgment as to Cloudview’s Inverse Condemnation Claim




                                              10
 1        The district court granted summary judgment in favor of Cloudview on

 2 Cloudview’s claim of inverse condemnation. The court ruled that, as a matter of law,

 3 the City’s actions in denying Cloudview’s request to vacate the drainage easement on

 4 Parcel F resulted in a taking of Cloudview’s property and, therefore, Cloudview was

 5 entitled to recover just compensation. The City argues that summary judgment was

 6 inappropriate because issues of material fact exist as to whether Cloudview possessed

 7 the right to develop the property in the manner it had requested.

 8 A.     Standard of Review for Summary Judgment

 9        “Summary judgment is appropriate where there are no genuine issues of

10 material fact and the movant is entitled to judgment as a matter of law.” Self v. United

11 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “An appeal

12 from the grant of a motion for summary judgment presents a question of law and is

13 reviewed de novo.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141

14 N.M. 21, 150 P.3d 971 (filed 2006).

15        The party seeking summary judgment need only make a prima facie showing

16 that he is entitled to summary judgment, after which the burden shifts to the party

17 opposing the motion “to demonstrate the existence of specific evidentiary facts which

18 would require trial on the merits.” Roth v. Thompson, 113 N.M. 331, 334-35, 825

19 P.2d 1241, 1244-45 (1992). The nonmoving party need not convince the district court


                                              11
 1 that he has evidence to support all the elements of his case; rather, the nonmoving

 2 party must merely show that one or more factual issues are contested. Bartlett v.

 3 Mirabal, 2000-NMCA-036, ¶ 17, 128 N.M. 830, 999 P.2d 1062. “The facts are

 4 considered in the light most favorable to the party opposing summary judgment.”

 5 Zarr v. Wash. Tru Solutions, L.L.C., 2009-NMCA-050, ¶ 9, 146 N.M. 274, 208 P.3d

 6 919.

 7 B.     Inverse Condemnation

 8        In New Mexico, the remedy of inverse condemnation is codified in NMSA

 9 1978, Section 42A-1-29 (1983), which states that inverse condemnation is available

10 to a property owner when an entity authorized to exercise the right of eminent domain

11 takes the owner’s property for public use without making just compensation. In order

12 to succeed in its claim of inverse condemnation, Cloudview must make a threshold

13 showing that (1) it was the legal owner of the property at the time of the taking, and

14 (2) that the City effected an uncompensated taking of a property right that Cloudview

15 possessed. We discuss each threshold element in turn.

16 C.     Legal Ownership of Parcel F

17        In its district court complaint, the City claimed that fee title to Parcel F was

18 vested in the City pursuant to NMSA 1978, Section 3-20-11 (1973), which states that

19 a municipality automatically acquires fee title to land within its boundaries when such


                                             12
 1 land is designated “for public use” on an endorsed and filed plat. The City claimed

 2 that the designation of the entirety of Parcel F as a drainage easement was intended

 3 by both Amrep and the City to designate Parcel F for public use; therefore, by

 4 operation of Section 3-20-11, fee title to Parcel F passed to the City upon the

 5 recording of the Plat. The City also argues that Cloudview is not a bona fide

 6 purchaser because the nature and extent of the drainage easement over Parcel F gave

 7 Cloudview constructive notice of a defect in fee title to the property.

 8        The district court found Cloudview to be the legal owner of Parcel F based on

 9 its determination that, at the time of its purchase of the property, Cloudview had

10 neither actual nor constructive notice that any party, other than the owner of record,

11 claimed ownership of the property. The district court, therefore, concluded that

12 Cloudview is the legal owner of the property because it was a bona fide purchaser for

13 value without notice.

14        We note that the City does not argue or present any evidence that Cloudview

15 had actual knowledge that any party other than the owner of record claimed ownership

16 of Parcel F. Therefore, for the purposes of this appeal, we assume that Cloudview was

17 without actual knowledge of any potential defects in fee title to the property at the

18 time of its purchase.




                                             13
 1        Similarly, the City does not argue that any documentation existed in the

 2 property record that would have given Cloudview constructive notice that the City,

 3 or any party other than the owner of record, claimed ownership of the property. The

 4 City does not dispute that it had not recorded its claim of ownership of the property

 5 in any manner other than the recording of the Plat itself. The Plat, however, does not

 6 clearly and unequivocally dedicate Parcel F to the City, nor does it clearly indicate

 7 that Parcel F is to be dedicated for public use, thereby giving notice to a subsequent

 8 purchaser that title might have transferred to the City pursuant to Section 3-20-11.

 9 We conclude, therefore, that at the time of its purchase of Parcel F, nothing in the

10 property record provided Cloudview with constructive notice of any potential defects

11 in fee title to the property.

12        On the other hand, the City does argue that the nature and extent of the drainage

13 easement over Parcel F would have led an ordinarily prudent person to investigate the

14 title of the property further, and had Cloudview done so, it would have discovered

15 defects in the title to Parcel F. The City argues that, following this line of reasoning,

16 Cloudview had constructive notice of a defect in the fee title to the property. In

17 support of its position, the City cites Dunne v. Petterman, 52 N.M. 284, 287-88, 197

18 P.2d 618, 621-22 (1948), and Hunt v. Ellis, 27 N.M. 397, 401, 201 P. 1064, 1065

19 (1921), for the proposition that a purchaser has constructive notice of a defect in title


                                              14
 1 if the purchaser has knowledge of facts that would lead an ordinarily prudent person

 2 to investigate further, and further investigation would lead to knowledge of the

 3 infirmities in the title.

 4        In Dunne, the Court found that a purchaser had constructive notice of defects

 5 in title to property where the title presented by the seller to the purchaser showed that

 6 it was fraudulent on its face due to “erasures as well as insertions written in different

 7 colored ink and different hand writing.” 52 N.M. at 286-87, 197 P.2d at 619. In Hunt,

 8 the Court found that a purchaser did not have constructive notice of defects in title

 9 despite the occupancy of the property by a third party who also claimed title. 27 N.M.

10 at 402-03, 201 P. at 1065-66. The Court found that constructive notice was not given

11 to subsequent purchasers because the third party’s occupancy was not sufficiently

12 different from the use that party had made of the property prior to that party’s alleged

13 purchase. Id. at 403, 201 P. at 1066.

14        In the present case, the City was not in open possession of the property in a

15 manner that would have given notice of its claimed ownership to a subsequent

16 purchaser. In fact, the City states that Parcel F was and is vacant land in use as open

17 space. Similarly, as we noted above, there was nothing on the face of the only

18 recorded instrument (the Plat) that would create a duty in a subsequent purchaser to

19 inquire further into the fee title. Additionally, prior to its purchase of Parcel F,


                                              15
 1 Cloudview discussed its intention to purchase the parcel with the City, and at that

 2 time, the City did not give Cloudview any indication that it considered itself, or

 3 anyone else other than the owner of record, to be the owner of the property. Based on

 4 these facts, we conclude that, while the nature and extent of the drainage easement

 5 might be sufficient to provide a subsequent purchaser with notice that development

 6 of Parcel F could be problematic, it would not provide constructive notice of a defect

 7 in fee title.

 8         We conclude that Cloudview had neither actual nor constructive notice that the

 9 legal owner of the property might be other than the owner of record at the time of

10 purchase. We therefore determine that Cloudview was a bona fide purchaser of the

11 property without notice and is the current legal owner of the property.

12 D.      The City’s Alleged Taking

13         We next discuss whether the City’s denial of Cloudview’s request for vacation

14 of the drainage easement resulted in a taking. The district court granted summary

15 judgment in favor of Cloudview, stating that, as a matter of law, the City’s actions in

16 denying Cloudview’s request to vacate the drainage easement resulted in a taking of

17 Cloudview’s property that entitled Cloudview to recover just compensation. The City

18 argues that summary judgment was inappropriate because issues of material fact exist

19 as to whether Cloudview possessed the right to develop the property in the manner it


                                             16
 1 had requested, and if Cloudview did not possess such a right, then the City’s actions

 2 were not a taking. We agree that summary judgment was inappropriate in this matter.

 3        As noted above, in order to sustain a claim for inverse condemnation,

 4 Cloudview must demonstrate that its title to Parcel F included the right of which it

 5 claims to be deprived. In the current case, the City’s denial of Cloudview’s request

 6 for vacation of the drainage easement over Parcel F deprived Cloudview of the right

 7 to develop the parcel. The City argues that because of the drainage easement over the

 8 entirety of Parcel F, Cloudview never actually possessed an undisputed right to

 9 develop the parcel.

10        Cloudview does not dispute that it purchased Parcel F with the clear

11 understanding that the parcel was encumbered in its entirety by a drainage easement.

12 Cloudview also acknowledges that it understood at the time of purchase that any

13 future development of the property was conditioned upon the City’s vacation of the

14 drainage easement. Cloudview admits that it was within the City’s authority to

15 decline to vacate the drainage easement. In fact, Cloudview states that had the City

16 merely declined to vacate the easement, no taking would have resulted and

17 Cloudview’s only remedy would have been an appeal of the City’s administrative

18 decision.




                                            17
 1        Despite its understanding that any development of Parcel F was predicated

 2 upon the City’s vacation of the drainage easement, Cloudview claims that the City’s

 3 rejection of Cloudview’s request to vacate the drainage easement deprived Cloudview

 4 of any economically viable use of the property. Cloudview bases its claim on the fact

 5 that, in one of the findings upon which the City based its decision, the City stated that,

 6 at the time of the approval of the Plat, Amrep and the City intended that Parcel F be

 7 used as open space and that the requirement for open space was a condition of the

 8 City’s approval of the Plat. Cloudview argues that it bought Parcel F subject only to

 9 a drainage easement and that the City changed the character of that easement by

10 declaring it to be open space. Cloudview further asserts that this change in the

11 easement effected a taking of Cloudview’s property rights in Parcel F.

12        The City, on the other hand, argues that Amrep (the original developer of

13 VHWU1) and the City intended at the time of the platting of VHWU1 in 1985 that the

14 drainage easement over Parcel F was to be used as open space; therefore, the character

15 of the easement was not changed by the City’s administrative decision. The City

16 further asserts that the nature and character of the drainage easement gave Cloudview

17 constructive notice that the intended use of the easement was for purposes other than

18 drainage. As evidence of this constructive notice, the City points to the fact that the




                                               18
 1 drainage easement covers the entirety of the ten-acre parcel, and the parcel is

 2 obviously an elevated area that could serve no function for drainage.

 3        We conclude that the nature and extent of the easement to which Parcel F was

 4 subject at the time of Cloudview’s purchase of the property is dispositive in this case.

 5        The nature and extent of an easement is “determined by a true construction of

 6 the grant or reservation by which it is created, aided by any concomitant

 7 circumstances which have a legitimate tendency to disclose the intention of the

 8 parties.” Olson v. H & B Props., Inc., 118 N.M. 495, 498, 882 P.2d 536, 539 (1994)

 9 (internal quotation marks and citation omitted). “An easement should be construed

10 according to the intent of the parties.” Id. “When the express terms of an easement

11 are ambiguous, the intent of the parties should be determined from the language of the

12 granting instrument in conjunction with the surrounding circumstances.” Id.

13        In AMREP Southwest, 2010-NMCA-___, ¶ 25, the companion to the present

14 case, we concluded that “the parties’ intent in creating a pervasive easement over the

15 entirety of Parcel F is reasonably and fairly susceptible to different constructions, and

16 that these constructions present genuine issues of material fact that must be submitted

17 to an appropriate fact finder.” Cloudview purchased the property as a bona fide

18 purchaser for value without notice but subject to the easement over the entirety of

19 Parcel F. The nature and extent of that easement must still be determined in the


                                              19
 1 companion to the present case, AMREP Southwest. Thus, summary judgment is

 2 inappropriate as to Cloudview’s claim of inverse condemnation.

 3 III.   Summary Judgment in Favor of Cloudview as to the City’s Claims

 4        The district court granted summary judgment in favor of Cloudview as to all of

 5 the City’s claims against Cloudview. The district court based its holding on its

 6 decision in its April 2008 order granting summary judgment in favor of Amrep on the

 7 same claims. In AMREP Southwest, we found summary judgment to be inappropriate

 8 in that case because issues of material fact existed. Id. Accordingly, we also find

 9 summary judgment on those counts to be inappropriate in the present case.

10 CONCLUSION

11        For the reasons set forth above, we reverse the district court’s orders and

12 remand the case for further proceedings consistent with this opinion.

13        IT IS SO ORDERED.



14                                        __________________________________
15                                        LINDA M. VANZI, Judge




                                            20
1 WE CONCUR:



2 _________________________________
3 MICHAEL E. VIGIL, Judge



4 _________________________________
5 ROBERT E. ROBLES, Judge




                                  21
