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


 2 JUAN TAFOYA LAND CORPORATION,

 3          Petitioner-Appellant,

 4 v.                                                                                     NO. 35,280

 5 THE ACTUAL AND PUTATIVE
 6 SHAREHOLDERS OF THE JUAN
 7 TAFOYA LAND CORPORATION,

 8          Respondents-Appellees.


 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 Alan M. Malott, District Judge


11 Lorenz Law
12 Alice T. Lorenz
13 Albuquerque, NM

14 Albuquerque Advocates PC
15 Darryl W. Millet
16 Albuquerque, NM

17 for Appellant

18 Rammelkamp, Muehlenweg & Cordova, P.A.
19 Robert J. Muehlenweg
 1 Brian Vogler
 2 Albuquerque, NM

 3 for Appellees

 4                             MEMORANDUM OPINION

 5 WECHSLER, Judge.

 6   {1}   The Juan Tafoya Land Corporation (the Corporation) appeals a summary

 7 judgment finding that its action seeking a declaration “ratifying” its shareholder list

 8 is barred by the doctrine of res judicata. [RP 1-6, 1014-1032] In our notice of

 9 proposed summary disposition, we proposed to affirm. [CN 7] The Corporation has

10 filed a memorandum in opposition to that disposition and three separate groups of

11 appellees have also filed responsive memoranda.1 Having duly considered all of those

12 memoranda, we now affirm.

13   {2}   In its memorandum, the Corporation continues to argue that a lawsuit filed in

14 2007 was ultimately dismissed for lack of prosecution, and it therefore cannot form

15 the basis of preclusion.2 [MIO 1, 16] That argument, however, completely ignores the


         1
15         One group of respondents has joined in the Corporation’s memorandum in
16 opposition, one group has filed a memorandum in support of this Court’s proposed
17 disposition, and a third group has filed a “notice of position” that does not oppose the
18 proposed disposition.
       2
19       Although this argument is asserted as the fourth issue in the Corporation’s
20 memorandum in opposition, it was asserted as issue 1 in the docketing statement. [DS
21 10]

                                              2
 1 entry of a summary judgment on the merits in November 2008, which formed the

 2 basis of this Court’s proposed summary disposition. [CN 2-5] “Our courts have

 3 repeatedly held that, in summary calendar cases, the burden is on the party opposing

 4 the proposed disposition to clearly point out errors in fact or law.” Hennessy v.

 5 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. As the Corporation

 6 makes no attempt to explain how or why the summary judgment was not a decision

 7 on the merits, we find that the 2007 litigation resulted in a valid final judgment on the

 8 merits for purposes of res judicata.

 9   {3}   The Corporation also continues to argue that a prior corporate board failed to

10 properly maintain the list of corporate shareholders.3 [MIO 2, 22-24] Our proposed

11 summary disposition suggested that any impropriety by the prior board should have

12 been asserted in the 2007 litigation. [CN 5-6]4 And, of course, that issue was the issue

         3
11         Although this argument is asserted as the fifth issue in the Corporation’s
12 memorandum in opposition, it was asserted as part of issue two in the docketing
13 statement. [DS 10]
           4
14           The Corporation also suggests—as the second issue asserted in its
15   memorandum in opposition—that the res judicata effect of a prior declaratory
16   judgment is narrowly limited to the matters actually declared in the judgment. [RP 1,
17   10-13] We note, however, that the relevant declaratory judgment actions involving the
18   Corporation resulted in explicit declarations contrary to the relief that the Corporation
19   sought in its most recent petition: The 1971 litigation resulted in a declaration
20   regarding the specific heirs entitled to ownership of the Corporation, which was
21   founded during the pendency of that suit [RP 711-17], and the 2007 litigation declared
22   that the corporate board was fulfilling its duty of care in maintaining the shareholder
23   list [RP 792]. This case explicitly sought a contrary declaration that different persons

                                                3
 1 addressed in that litigation, which found that the board did not breach its duty of care

 2 in maintaining the list. [RP 792] The Corporation’s memorandum in opposition now

 3 asserts both that the prior board took inconsistent positions with regard to determining

 4 who holds shares in the Corporation and that the district court judgment in this case

 5 is “contrary” to that board’s practices and to the final judgment in a prior case. [MIO

 6 2, 19-26] With regard to any inconsistency or impropriety in the prior board’s actions,

 7 we reiterate that the 2007 litigation was addressed to that question.

 8   {4}   With regard to the judgment in this case, we note at the outset that the district

 9 court’s judgment merely dismissed the Corporation’s petition on the basis of res

10 judicata. [RP 1032] The Corporation’s memorandum does not explain how that

11 judgment, which did not declare any new method for distributing shares, can be in

12 conflict with any prior judgment addressing the distribution of shares.

13   {5}   In any event, the written judgment at issue in this appeal includes a thorough

14 consideration of the prior litigation involving the Corporation. [RP 1014-1032] The

15 case that the Corporation now asserts to be in conflict with the judgment dismissing

16 its petition resulted in an opinion by our Supreme Court, reported as Marquez v. Juan

17 Tafoya Land Corp., 1981-NMSC-080, 96 N.M. 503, 632 P.2d 738. Generally, that




14 are entitled to ownership of the Corporation. [RP 4]


                                               4
 1 opinion affirmed the distribution of fractional corporate shares, at the time of

 2 incorporation, to the heirs of the original Juan Tafoya Land Grant pursuant to the laws

 3 of descent and distribution. See id. ¶ 1 (discussing incorporation); id. ¶ 15 (approving

 4 the method of distribution).

 5   {6}   Distributing shares in this way involves two distinct questions. First, it must be

 6 determined who is entitled to hold shares in the Corporation, and second, it must be

 7 determined what share of the Corporation each individual shareholder will receive.

 8 Marquez involved only the latter question. Id. ¶¶ 11-15. In the process of answering

 9 that question, the Supreme Court considered two lists of heirs to the original Juan

10 Tafoya Land Grant generated in prior litigation and incorporated in a prior decree: a

11 list of “trunk heirs,” most of whom were deceased, and a list of the then-living

12 descendants of the “trunk heirs.” Id. ¶ 3. Ultimately, the Marquez opinion affirmed the

13 district court’s approved method of distribution, which involved assigning one

14 corporate share to each of the “trunk heirs” and then distributing fractional shares to

15 the living descendants of deceased “trunk heirs.” Id. ¶¶ 12, 15.

16   {7}   The Corporation now characterizes the Marquez case as having held that “the

17 ‘living heirs’ list was not the list that should be used; instead the [C]orporation had

18 proceeded properly in using the . . . ‘trunk heirs’ list.” [MIO 2 (emphasis omitted)]

19 The Corporation is mistaken. Marquez affirmed the distribution of shares to everyone


                                               5
 1 on the list of then-living heirs, with the “trunk heirs” list being used to determine the

 2 size of each person’s corporate share. Id. ¶ 4. Thus, to the extent that the summary

 3 judgment in this case requires adherence, in any form, to the so-called “living heirs”

 4 list for purposes of determining who is entitled to participate in ownership of the

 5 Corporation, that judgment would not be in conflict with the holding in Marquez.

 6   {8}   The Corporation’s docketing statement in this appeal also asserted that the

 7 judgment in this case somehow prevents it from updating its shareholder list on the

 8 basis of events that have occurred since the conclusion of the 2007 litigation.5 [DS 10]

 9 Our proposed disposition suggested that, with regard to shareholder changes resulting

10 from “deaths and transfers in recent years, there appears to be no dispute that the

11 Corporation must recognize such changes in ownership,” and, as a result, the entirely

12 hypothetical problem suggested by the Corporation in its docketing statement does not

13 involve any actual controversy between any of the parties to this case. [CN 6-7] As

14 it is not the proper role of an appellate court to issue an “advisory opinion in the

15 absence of a justiciable issue,” Insure New Mexico, LLC v. McGonigle, 2000-NMCA-

16 018, ¶ 27, 128 N.M. 611, 995 P.2d 1053, we proposed to hold that the Corporation




         5
17         Although this argument is asserted as the first issue in the Corporation’s
18 memorandum in opposition, it was asserted as part of issue 2 in the docketing
19 statement. [DS 10]

                                               6
 1 had presented nothing for this Court to review in connection with such updates to the

 2 shareholder list.

 3   {9}   In its memorandum in opposition, the Corporation has now characterized that

 4 portion of our notice of proposed summary disposition as having suggested that the

 5 Corporation should not be barred from “correcting its shareholder lists,” and it

 6 proceeds to suggest that such corrections would include remedying alleged errors in

 7 the “trunk heirs” and “living heirs” lists that were generated in the 1970s. [MIO 1, 3-

 8 7] These characterizations are unwarranted. This Court did not suggest in any way that

 9 such actions would be appropriate or permitted; instead, the Court addressed the

10 specific issue raised in the Corporation’s docketing statement, which was that “some

11 of the changes to the shareholder list were due to deaths of shareholders or assignment

12 of shares that occurred after 2007.” [DS 10]6 We see nothing in the history of the

13 Corporation or the litigation involving it that would prevent the current board from




           6
14          The Corporation also asserted that “the other changes did not the [sic] result
15   from the disputed interpretation of the Supreme Court’s language ‘from Marquez.’ ”
16   [DS 10] Unable to decipher that statement, this Court proposed to decline review on
17   the basis that we do not review unclear or undeveloped arguments. State v. Fuentes,
18   2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181. As the Corporation’s
19   memorandum in opposition offers no clarification of that assertion, we deem the issue
20   abandoned. See State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306
21   (recognizing that failure to respond to the proposed disposition of an issue is an
22   abandonment of that issue).

                                              7
 1 acknowledging transfers of shares due to death or assignment, and this case involved

 2 no dispute regarding such transfers.

 3   {10}   Nonetheless, to the extent that the Corporation is now expanding its argument

 4 to assert that the district court has precluded it from re-litigating the question of who

 5 should have been issued corporate shares in the late 1970s, we agree: the Corporation

 6 is precluded from re-litigating that question because that question was thoroughly

 7 litigated at the time of incorporation. The “trunk heirs” list, as well as the list of then-

 8 living heirs, were both incorporated into a decree issued on September 11, 1975. [RP

 9 714] See Marquez, 1981-NMSC-080, ¶ 12 (discussing the contents of the decree).

10 There has also been subsequent litigation, involving the question of how shares should

11 be distributed among the heirs listed in that decree. See, generally, Marquez, 1981-

12 NMSC-080. And, in 2007, the question of whether the board was satisfying its

13 statutory duty to maintain a list of shareholders was also litigated. [RP 749-92] In

14 sum, the lengthy history of litigation over ownership of the Corporation has resulted

15 in final judicial determinations answering many different questions, including: the

16 persons entitled to hold shares, the method of distributing shares to those people, and

17 the propriety of the prior board’s maintenance of the shareholder list. The judgment

18 in this case, which simply declined to allow a relitigation of any of those three

19 questions, is not in conflict with those prior judgments.


                                                8
 1   {11}   The Corporation’s memorandum in opposition also asserts three issues that

 2 were not raised in its docketing statement. [MIO 1-3] We construe the assertion of

 3 these new issues as a motion to amend the docketing statement to raise additional

 4 issues. In order to show good cause for our allowance of an amendment to a docketing

 5 statement, an appellant must establish: (1) that the motion is timely, (2) that the new

 6 issues to be raised were either (a) properly preserved below or (b) allowed to be raised

 7 for the first time on appeal, and (3) that the issues raised are viable. See State v.

 8 Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other

 9 grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730.

10   {12}   The Corporation’s first new issue, which is raised as the third issue in the

11 memorandum in opposition, asserts that the district court erred by applying the

12 doctrine of res judicata against the party who prevailed in a previous suit. [MIO 1, 8-

13 9] The Corporation does not appear to have raised this issue below. In support of its

14 position on appeal, the Corporation quotes out-of-state dicta to the effect that one of

15 the purposes of res judicata is to allow a “prevailing party to enjoy the benefits of its

16 victory.” [MIO 8] (Internal quotation marks and citation omitted.) While it is

17 generally true that this is one of the benefits of res judicata, largely because a

18 prevailing party will not usually file a subsequent suit, the doctrine does not include

19 any “prevailing party” requirement. Instead, the doctrine applies whenever its four


                                               9
 1 elements are present: “(1) identity of parties or privies, (2) identity of capacity or

 2 character of persons for or against whom the claim is made, (3) same cause of action,

 3 and (4) same subject matter.” Three Rivers Land Co., Inc. v. Maddoux,

 4 1982-NMSC-111, ¶ 21, 98 N.M. 690, 652 P.2d 240, overruled on other grounds by

 5 Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467.

 6   {13}   We also note that the primary purposes of res judicata are “to relieve parties of

 7 the cost and vexation of multiple lawsuits, conserve judicial resources, and by

 8 preventing inconsistent decisions, encourage reliance on adjudication.” Id. Each of

 9 these purposes is served by the application of res judicata in this case, as the

10 Corporation’s petition seeks to reopen questions determined in prior suits in the hope

11 of obtaining an inconsistent decision on those questions, while forcing all parties, as

12 well as the court, to re-litigate previously decided matters. We are not persuaded that

13 the defense of res judicata cannot be asserted against a party who prevailed in

14 previous litigation. We conclude that this issue is not viable, that it was not preserved

15 below, and that the Corporation has not asserted any reason that this issue could be

16 raised for the first time on appeal. The Corporation’s motion to amend its docketing

17 statement to add this issue is denied.

18   {14}   As its second new issue, which is the sixth issue in its memorandum in

19 opposition, the Corporation asserts that some of the respondents in this suit should not


                                               10
 1 be bound by prior judgments because they were not in privity with parties to the prior

 2 litigation involving ownership of the Corporation. [MIO 1, 17-18] This issue also does

 3 not appear to have been raised below, and the Corporation asserts no basis to believe

 4 that it may be properly raised for the first time on appeal. And, in any event, the

 5 Corporation’s central assertion is that these respondents, whom the Corporation

 6 characterizes as “newly discovered shareholders,” should not be “barred from

 7 litigating [their] right to shares [in the Corporation].” [MIO 17-18] The right to

 8 ownership of corporate shares, however, was litigated—on a global basis—in the

 9 series of suits that culminated in Marquez. See Marquez, 1981-NMSC-080, ¶¶ 1-4

10 (describing some of the relevant litigation).

11   {15}   That course of litigation involved the appointment of a special master who

12 compiled a list of the members of the original Juan Tafoya Land Grant as well as the

13 then-living heirs of those members who were entitled to shares in the Corporation at

14 the time it was created. Id. ¶ 12. Of particular relevance to the question of privity,

15 prior to compiling those lists, the special master made service by publication of a

16 notice for determination of heirship “to all and any individuals claiming heirship or

17 any interest in a certain tract of property known as the Juan Tafoya Land Grant or

18 tract.” [RP 698, 701] As the district court noted in its summary judgment, “[t]he

19 Corporation does not challenge the validity or effectiveness of this notice [and, t]hus,


                                              11
 1 it appears that anyone with a claim to the lands held by the [Juan Tafoya Land Grant]

 2 would be bound by the determination in that suit.” [RP 1025]

 3   {16}   Thus, because the right to ownership of any share in the Corporation is directly

 4 traceable to co-tenancy in the ownership of the Juan Tafoya Land Grant, Marquez,

 5 1981-NMSC-080, ¶ 14, any person with a claim to such shares would, of necessity,

 6 be bound by the final judgment incorporating the special master’s lists of heirs. See

 7 Bentz v. Peterson, 1988-NMCA-071, ¶ 14, 107 N.M. 597, 762 P.2d 259 (discussing

 8 validity of service by publication). As a result, there appears to be no reason that the

 9 Corporation’s “newly discovered shareholders” cannot be bound to the special

10 master’s determination of heirship—and the final judgment declaring that

11 determination—for purposes of res judicata. We, therefore, conclude that this issue

12 is neither viable nor preserved, and we deny the Corporation’s motion to amend its

13 docketing statement to add this issue.

14   {17}   Finally, the Corporation’s memorandum in opposition now asserts, as its

15 seventh issue, that the entry of summary judgment was precluded by the existence of

16 undeveloped facts. [MIO 3] This issue does appear to have been raised below, but the

17 only factual issue asserted in the memorandum in opposition is that “there is no

18 evidence supporting Appellees’ interpretation of the critical phrase ‘from Marquez.’ ”

19 [MIO 3, 24-26] The purported significance of the phrase “from Marquez” derives


                                               12
 1 from the fact that it was used in the Marquez opinion to describe the members of the

 2 Juan Tafoya Land Grant who were entitled to shares in the newly formed Corporation.

 3 Marquez, 1981-NMSC-080, ¶ 4. The Corporation asserts that “from Marquez” should

 4 be read to mean persons born in Marquez, as opposed to those residing in Marquez

 5 when the land grant was organized. [MIO 26]

 6   {18}   Initially, we note that the district court’s summary judgment in this case

 7 accurately pointed out that the final judgment in a suit initiated in 1969 incorporated

 8 a finding that the original Juan Tafoya Land Grant was partitioned “to residents and

 9 owners and proprietors of land in that certain community then known as Juan Tafoya

10 and thereafter known as the Town of Marquez.” [RP 680-81, 1031] That judgment

11 also included a finding that those persons “residing in said area organized themselves

12 into a governing entity purporting to govern themselves . . . as a Community Land

13 Grant.” [RP 681] It thus appears that a valid final judgment of a district court long ago

14 declared that the original members of the Juan Tafoya Land Grant were the “residents

15 and owners and proprietors of land in [Marquez]” and that the grant was organized by

16 those “residing in said area.” [Id.]

17   {19}   More importantly, subsequent litigation generated and incorporated into a final

18 judgment a list of members of the grant along with a list of the heirs of those people.

19 Marquez, 1981-NMSC-080, ¶ 12. And the Marquez case involved the determination


                                              13
 1 and declaration of the proper method for distributing shares in the Corporation to the

 2 persons on those lists. Id. ¶¶ 14-15. Thus, even if we assume that a disputed

 3 interpretation of the phrase “from Marquez” could constitute a factual dispute

 4 preventing summary judgment, rather than a mere legal argument to be resolved by

 5 the district court, the dispute at issue, nonetheless, involves only a description of the

 6 method used to generate a pair of lists. And those lists, themselves, were before the

 7 courts in each of the relevant cases. And—contrary to the Corporation’s current

 8 contention that the lists contained errors capable of resulting in an improper

 9 distribution of corporate shares—those cases resulted in judicial decrees incorporating

10 those lists and, ultimately, approving the method used by the Corporation to distribute

11 shares to the persons on those lists. Thus, regardless of any words used to describe the

12 lists or their compilation, the lists themselves have been the subject of litigation that

13 resulted in valid, final judgments on the merits, including judgments that incorporated

14 the lists themselves. Because we are not persuaded that disagreement regarding the

15 meaning of the phrase “from Marquez” represents a genuinely disputed issue of

16 material fact, we conclude that this issue is not viable and deny the Corporation’s

17 motion to amend its docketing statement to assert this issue.

18   {20}   As the new issues asserted by the Corporation are not viable, we deny the

19 Corporation’s motion to amend the docketing statement in its entirety, and, for the


                                              14
1 foregoing reasons, as well as those articulated in the notice of proposed summary

2 disposition, we affirm the summary judgment of the district court in its entirety.

3   {21}   IT IS SO ORDERED.


4                                               ________________________________
5                                               JAMES J. WECHSLER, Judge


6 WE CONCUR:


7 ________________________________
8 MICHAEL E. VIGIL, Judge


 9 ________________________________
10 TIMOTHY L. GARCIA, Judge




                                           15
