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

 2 WILLIAM DEMENT and
 3 BARBARA DEMENT, husband
 4 and wife,

 5       Plaintiffs-Appellants,

 6 v.                                           NO. 29,287

 7   RANDALL CAMP and ANDREA CAMP,
 8   husband and wife, ANTHONY STEVENS
 9   and JACQUELINE STEVENS, husband
10   and wife, and ALL UNKNOWN
11   CLAIMANTS OF INTEREST,

12       Defendants-Appellees.

13 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
14 Frank K. Wilson, District Judge

15 The Rose Law Firm, P.C.
16 Timothy L. Rose
17 Ruidoso, NM

18 for Appellants

19 Richard A. Hawthorne
20 Ruidoso, NM

21 for Appellees
 1                             MEMORANDUM OPINION

 2 VIGIL, Judge.

 3        Plaintiffs seek a declaratory judgment that they have an easement to use a

 4 driveway that separates two lots that Plaintiffs own, and compensatory and punitive

 5 damages.     [RP 41-46]     (A third count was dismissed by stipulation, as was

 6 Defendants’ counterclaim.) [RP 124] Plaintiffs appeal the district court’s grant of

 7 summary judgment to Defendants, arguing that issues of material fact remain. This

 8 Court filed a notice of assignment to the summary calendar on May 7, 2009,

 9 proposing to affirm.      Plaintiffs filed a memorandum in opposition to proposed

10 summary affirmance on May 27, 2009, which we have duly considered. We affirm

11 the district court.

12        Plaintiffs’ two lots in Ranches of Sonterra subdivision (Nos. 418 and 421) both

13 abut and have access to Santiago Drive, a public road. [See plat RP 140] Defendants’

14 two lots (Nos. 419 and 420) sit behind Plaintiffs’ lots and would not have access to

15 Santiago Drive if not for a driveway located on two narrow, side-by-side strips of land

16 that connect the main portion of Defendants’ lots to the road. The strips, known as

17 “pipestems,” separate Plaintiffs’ two lots. [RP 68, 140] Plaintiffs would like to use

18 the driveway to provide additional access to their lots. They would also like to be able



                                              2
 1 to cross the driveway to get from one of their lots to the other without having to go on

 2 the public road. [RP 36-37, ¶ 11]

 3        Defendants’ motion for summary judgment asserts that they own the pipestem

 4 portions of their lots in fee simple and that the circumstances demonstrate that the

 5 driveway was to serve only their lots. [RP 68, ¶ 7; 72-75] Plaintiffs’ amended

 6 complaint and their response to the motion for summary judgment assert that the

 7 original intent for the driveway easement was that it serve all four lots, not just the two

 8 lots owned by Defendants. [RP 42, ¶ 9; 98-99] Plaintiffs contend that the question

 9 of which lots the driveway easement was intended to serve is an unresolved issue of

10 material fact, and that summary judgment was therefore improper.

11        “Summary judgment is a drastic remedy to be used with great caution.”

12 Pharmaseal Labs., Inc. v. Goffe, 90 N.M. 753, 756, 568 P.2d 589, 592 (1977).

13 “Summary judgment is proper if there are no genuine issues of material fact and the

14 movant is entitled to judgment as a matter of law.”               Maloof v. Prieskorn,

15 2004-NMCA-126, ¶ 6, 136 N.M. 516, 101 P.3d 32; Rule 1-056(C) NMRA. “We must

16 view the pleadings, affidavits, and depositions presented for and against a motion for

17 summary judgment in a light most favorable to the nonmoving party.” Estate of

18 Griego v. Reliance Standard. Life Ins. Co., 2000-NMCA-022, ¶ 18, 128 N.M. 676,

19 997 P.2d 150. “A prima facie showing of summary judgment shifts the burden to

                                                3
 1 [the] party opposing the motion to come forward with specific material facts that

 2 would make a trial necessary.” Maloof, 2004-NMCA-126, ¶ 6; Rule 1-056(E)

 3 NMRA. “Where the movant has made a prima facie showing, the opponent cannot

 4 rely on the allegations contained in its complaint or upon the argument or contention

 5 of counsel to defeat it. Rather, the opponent must come forward and establish with

 6 admissible evidence that a genuine issue of fact exists.” Ciup v. Chevron U.S.A.,

 7 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263 (citation omitted). “In a case

 8 where the facts are not in dispute, but only the legal effect of the facts is presented for

 9 determination, summary judgment may be properly granted.” Meeker v. Walker, 80

10 N.M. 280, 283-84, 454 P.2d 762, 765-66 (1969).

11               Whether an original landowner intended to convey or reserve an
12        easement in order to provide access to a given tract is a question of fact
13        to be determined from the terms of the conveyance and the surrounding
14        circumstances. Generally, the law does not favor claims of easement and
15        the burden is on the party asserting such . . . claim to prove it clearly.

16 Herrera v. Roman Catholic Church, 112 N.M. 717, 720, 819 P.2d 264, 267 (Ct. App.

17 1991) (internal quotation marks and citations omitted). “Any words which clearly

18 show intention to grant an easement are sufficient, provided the language is certain

19 and definite in its term.” Martinez v. Martinez, 93 N.M. 673, 675, 604 P.2d 366, 368

20 (1979) (citations omitted).



                                                4
 1        We conclude that Defendants made a prima facie showing for summary

 2 judgment, and that Plaintiffs did not come forward with specific material facts that

 3 would require a trial. Plaintiffs’ first amended complaint for declaratory judgment and

 4 damages contains the following allegations, the truth or untruth of which appears to

 5 be determinative of Plaintiffs’ claim:

 6        9.     The original intent for the driveway easement was that it was to
 7               serve all four lots that are now owned by the parties.

 8        10.    There is a common easement on the [driveway] for the use of the
 9               owners of lots 418, 421, 419, and 420. [RP 42]

10 Defendants’ memorandum in support of their motion for summary judgment contains

11 several factual assertions and supporting documents that tend to contradict Plaintiffs’

12 allegations 9 and 10. They assert that they own the pipestems in fee simple, [RP 68,

13 ¶ 7] that only utility easements were reserved in the subdivision’s declaration of

14 covenants, conditions, and restrictions, [RP 69 ¶ 13] and that Plaintiffs were

15 informed at the time they purchased their first lot (No. 421) that the driveway was

16 private as to lot nos. 419 and 420. [RP 70, ¶ 24] Supporting documents include a

17 copy of the subdivision declarations [RP 77-82] and an affidavit from the real estate

18 agent who sold lot no. 421 to Plaintiffs stating that she told Plaintiffs that they would

19 have no interest in the driveway, but that she would inquire about getting permission

20 from the owners of lot nos. 419 and 420 (of which she was one at the time) for

                                               5
 1 Plaintiffs to use the driveway. [RP 88-89] When permission could not be secured,

 2 the affidavit continues, Plaintiffs proceeded to construct their own driveway off of

 3 Santiago Drive. [Id.] Also attached to Defendants’ memorandum is a disclosure

 4 statement containing the following language: “Because of their ‘pipestem’ or common

 5 driveway configurations, lots . . . 419, 420 . . . may need to construct longer driveways

 6 than usual to reach their homes, and in some cases these driveways may be located on

 7 shared easements and will require common maintenance among the affected lots.”

 8 [RP 83-84]

 9        In their argument for summary judgment, Defendants observe that if Plaintiffs

10 only owned one lot, there would be no need to use the driveway, as the lot (either lot

11 no. 418 or 421) abutted and had access to Santiago Drive. [RP 72] Use of the

12 driveway only became an issue after Plaintiffs bought the second lot on the other side

13 of the pipestems and wanted to cross from one of their lots to the other. [Id.]

14 Defendants argue that it is illogical to assume that the developer would have foreseen

15 this situation and would have reserved easements in the driveway for lot nos. 418 and

16 421 just in case the situation arose. [Id.] Defendants argue that the disclosure

17 statement’s reference to “shared easements” and the need for “common maintenance

18 among the affected lots” logically refers only to Defendants’ two lots. [RP 72-73]

19        Plaintiffs’ response to Defendants’ motion for summary judgment includes an

                                               6
 1 affidavit of Plaintiff William Dement asserting that the conversation between him and

 2 the real estate agent described above never took place. [RP 97] Plaintiffs do not

 3 dispute that Defendants own the pipestems in fee simple. Plaintiffs note that the deeds

 4 recite that title is “subject to all easements . . . of record.” [RP 93, ¶ 4, 102-03] They

 5 assert that the declaration of covenants, conditions, and restrictions does not answer

 6 the issue of whether the developers intended the easement to serve all four lots. [RP

 7 93, ¶ 4] Referring to the disclosure about the driveways quoted above, Plaintiffs argue

 8 that if the developers meant the term “affected lots” to mean only the two pipestem

 9 lots, they would have used specific language limiting the maintenance disclosure to

10 the pipestem lots. [RP 93-94, ¶¶ A - C] Further, they point out that the use of the

11 phrase “among the affected lots” rather than “between the affected lots” indicates that

12 more than two lots are involved. [RP 94, ¶ D] Next, Plaintiffs assert that the surveyor

13 told them he intended that all four lots touching the driveway were to have access to

14 it. [RP 98] Finally, Plaintiffs argue that even if lots 418 and 421 had different

15 owners, it would not make sense to prevent the owners from crossing the driveway to

16 go to the other lot, and to prevent emergency vehicles from accessing lots 418 and 421

17 via the driveway. [RP 99, ¶ 18]

18        We first conclude that Defendants made a prima facie showing that there were

19 no genuine issues of material fact and they were entitled to judgment as a matter of

                                               7
 1 law. Among other things, Defendants showed that they owned the pipestems in fee

 2 simple. To the extent that it was possible for them to prove a negative, they showed

 3 that no easement of record existed aside from the reference in the disclosures to the

 4 driveways for some lots in the subdivision being located on “shared easements.”

 5 Defendants presented evidence of circumstances suggesting that the easement was

 6 “shared” only between themselves as the owners of the pipestem lots. That is, the

 7 driveway straddled both pipestems and both Defendants were entitled by the shared

 8 easement to use the entire width of the driveway, including the portion on the other

 9 Defendant’s pipestem. The other two lots, 418 and 421, both had ready access to

10 Santiago Drive and thus had no pre-existing need to use the driveway.

11        We also conclude that Plaintiffs have not satisfied their burden “to come

12 forward with specific material facts that would make a trial necessary.” Maloof,

13 2004-NMCA-126, ¶ 6; Rule 1-056(E). Plaintiffs needed to present something more

14 than the bare assertion in their first amended complaint that “[t]here is a common

15 easement on the [driveway] for the use of the owners of lots 418, 421, 419, and 420.”

16 [RP 42] They presented no documentation memorializing an easement serving lots

17 418 and 421 other than a strained interpretation of the reference to “shared easement”

18 and “affected lots” in the property disclosures.



                                             8
 1        In their memorandum in opposition to proposed summary affirmance, Plaintiffs

 2 point out that the affidavit of William Dement attached to their response denies that

 3 the conversation to which Charlotte Goodwin’s affidavit attested ever took place.

 4 Plaintiffs argue that this Court, to the extent that it gives credence to Goodwin’s

 5 affidavit over Dement’s, is in effect weighing the evidence. We observe that the

 6 affidavits are substantially in agreement.        Dement’s affidavit states, “That

 7 conversation never happened.” [RP 105, ¶ 4] His affidavit also states, however,

 8 “Because I knew that the law provided me with access to the common driveway

 9 easement, I purchased the lot in spite of Ms. Goodwin’s assertion to the contrary.”

10 [RP 106, ¶ 10] We can only conclude that Dement’s statement that the conversation

11 never happened meant that no conversation occurred in which he waived his claim to

12 use of the driveway. We do not interpret Goodwin’s affidavit as an assertion that

13 Dement waived his claim; it only states that Goodwin advised him that the driveway

14 was private and he would have no interest in it. [RP 88-89] As Dement’s affidavit

15 shows, he chose to disregard Goodwin’s advice. Regardless of the opposing views

16 of the affidavits, we note that whether or not Goodwin warned Dement about his lack

17 of any interest in the driveway is not dispositive of the question of whether any such

18 interest existed.



                                             9
 1        We conclude that this is a case where the dispositive facts are not in dispute,

 2 only the legal effect of the facts, and summary judgment is therefore appropriate.

 3 Meeker, 80 N.M. at 283-84, 454 P.2d at 765-66. The dispositive facts are that

 4 Defendants own the pipestems in fee simple, and there is no documentary record

 5 establishing an easement other than the ambiguous reference in the disclosure

 6 documents to a “shared easement.” Given that language establishing an easement

 7 must be “certain and definite in its term,” Martinez, 93 N.M. at 675, 604 P.2d at 368,

 8 we conclude that the district court properly ruled that the legal effect of this language

 9 was insufficient as a matter of law.

10        For the reasons set forth above, we affirm the district court.

11        IT IS SO ORDERED.

12
13                                          MICHAEL E. VIGIL, Judge




                                              10
1 WE CONCUR:


2
3 CYNTHIA A. FRY, Chief Judge


4
5 ROBERT E. ROBLES, Judge
6




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