Acequia Compound Owners' Ass'n, Inc. v. Orchard Metal Capital Corp.

• Decision Date: 21 September 2022
• Docket Number: A-1-CA-38797
• Citation: 523 P.3d 606
• Parties: The ACEQUIA COMPOUND OWNERS’ ASSOCIATION, INC., Plaintiff-Appellee, v. ORCHARD METAL CAPITAL CORP., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

523 P.3d 606

The ACEQUIA COMPOUND OWNERS’ ASSOCIATION, INC., Plaintiff-Appellee,

v.ORCHARD METAL CAPITAL CORP., Defendant-Appellant.

No. A-1-CA-38797

Court of Appeals of New Mexico.

Filing Date: September 21, 2022

Certiorari Granted, January 3, 2023, No. S-1-SC-39616

Katz Herdman MacGillivray & Fullerton PC, Frank T. Herdman, Brecken N. Larson, Santa Fe, NM for Appellee

Holland & Hart LLP, Larry J. Montaño, Julia Broggi, Santa Fe, NM for Appellant

WRAY, Judge.

{1} Defendant Orchard Metal Capital Corporation (OMC) appeals the district court's entry of partial summary judgment and an injunction in favor of Plaintiff the Acequia Compound Association (the Association), as well as the dismissal without prejudice of the Association's remaining claim. We affirm.

BACKGROUND

{2} The Association is a condominium association that is responsible for the administration, management, operation, and control of the common elements of the Acequia Compound Condominium (Condominium Property). The Condominium Property is located at the southern end of a public street, Halona Street, in Santa Fe, New Mexico. An easement (Condominium Property Easement) runs along the west side of the Condominium Property, connecting Halona Street to both the Condominium Property to the east and several other abutting properties to the west, including property owned at one time by the New Mexico Association of Counties (NMAC), located at 613 Old Santa Fe Trail. The language of the original Condominium Property Easement granted a "non-exclusive access-egress and underground utility easement twenty feet in width along the west boundary of the property of grantor [the Association]" and asserted that the "easement granted herein shall run with the land [and] serve only the following described property, hereinafter the dominant estate," which was defined as 613 Old Santa Fe Trail.

{3} Defendant OMC owns property at 621 Old Santa Fe Trail, immediately to the south of 613 Old Santa Fe Trail. The Condominium Property and OMC property do not abut; 613 Old Santa Fe Trail is located to the north of the OMC property and the Condominium Property is located directly to the east of 613 Old Santa Fe Trail. NMAC, the owner of 613 Old Santa Fe Trail at the time, granted OMC an easement (the Wedge Easement) for OMC to use the southeastern wedge of 613 Old Santa Fe Trail in return for a one-time fee of $5,000 and payment of maintenance costs. See Appendix A. This southeastern wedge of 613 Old Santa Fe Trail abuts (1) the western edge of the Condominium Property Easement, and (2) the northern edge of OMC's property at 621 Old Santa Fe Trail. The Wedge Easement connects Defendant OMC's property at 621 Old Santa Fe Trail to the Condominium Property Easement, giving Defendant OMC access to Halona Street.¹ The Wedge Easement was subsequently amended to ensure that

[OMC] acknowledges and represents that [NMAC] has made no representations or warranties whatsoever regarding the access from the [Wedge Easement] beyond the boundary line of [613 Old Santa Fe Trail] to the public portion of Halona Street or the "Halona Road extension"² referenced in paragraph 3 of the April 10, 2013 Easement Agreement.

After obtaining the Wedge Easement, Defendant OMC removed a portion of a fence at the northeastern corner of its property, 621 Old Santa Fe Trail. The removal of the fence allowed OMC's president to enter and exit OMC's property by traveling across 613 Old Santa Fe Trail, using the Wedge Easement to access the Condominium Property Easement and travel to Halona Street.

{4} The Association filed a complaint for trespass and injunctive relief against Defendant OMC, alleging that OMC was trespassing and causing or permitting others to trespass on the Condominium Property. The Association quickly moved for partial summary judgment on the issue of OMC's trespass and sought an injunction to prevent OMC from trespassing and to require OMC to erect a fence to prevent others from trespassing. OMC filed a motion to strike the affidavit of the Association's president and alleged that she lacked personal knowledge about the number of vehicles entering the Condominium Property Easement going to or from OMC's property. In response to the Association's motion for summary judgment, Defendant OMC contended that by granting the Wedge Easement, NMAC had authorized OMC to use the Condominium Property Easement, which was next to NMAC's property at 613 Old Santa Fe Trail. After hearing argument, the district court determined that OMC had failed to rebut the Association's evidence that established OMC's trespass. Although the district court enjoined OMC and its employees and agents from trespassing, the district court declined to require the construction of a fence or other permanent barrier. As a practical matter, the district court noted that the case would go forward "at least ... for the purpose of the establishment of the appropriate remedy as it relates to the gap in the fence." In the order granting partial summary judgment, the district court ordered that

1. [OMC], including [OMC]’s employees and agents (which includes its president, David Lamb), is permanently enjoined and prohibited from using the [Condominium Property] Easement across [the Association's] property.

2. [The Association's] request for an injunction requiring [OMC] to install a permanent barrier on the northern boundary of the [OMC] Property is not granted at this time but the request for such relief is reserved and may be raised by motion or at trial at a later date.

{5} Following entry of the district court's order, the Association filed a second summary judgment motion and argued again that the district court should require OMC to erect a fence or other permanent barrier. Attached to this motion was another affidavit from the Association's president, as well as multiple video recordings purporting to depict traffic moving across the Condominium Property Easement to and from OMC's property (621 Old Santa Fe Trail). OMC again moved to strike the affidavit. At the hearing, the district court agreed that certain paragraphs of the affidavit were speculative and argumentative and additionally declined to consider the video recordings. Following the district court's ruling, the Association withdrew its summary judgment motion and moved to dismiss without prejudice its remaining claim related to the permanent barrier. OMC opposed the motion and argued that the dismissal should be with prejudice.

During the hearing, the district court asked OMC if the Association could refile a lawsuit if the trespass continued, regardless of whether the present case was dismissed with or without prejudice. OMC responded that it was positioned to defend against the current claims and that to dismiss without prejudice would be unfair. OMC acknowledged that the district court had the discretion to dismiss with or without prejudice but maintained that it would only be "fair to OMC to dismiss it with prejudice at this stage in the litigation." The district court ruled that OMC had failed to demonstrate that any prejudice would result from dismissal without prejudice and granted the Association's motion to dismiss without prejudice. This appeal followed.

DISCUSSION

{6} OMC argues that the district court improperly granted partial summary judgment to the Association and wrongly dismissed the Association's remaining claim without prejudice. We review grants of summary judgment de novo. City of Rio Rancho v. Amrep Sw. Inc. , 2011-NMSC-037, ¶ 14, 150 N.M. 428, 260 P.3d 414. Whether to dismiss claims with or without prejudice is within the district court's discretion, and we review that decision for abuse of discretion. Trinosky v. Johnstone , 2011-NMCA-045, ¶¶ 18, 20, 149 N.M. 605, 252 P.3d 829. We consider each argument in turn.

I. The District Court Properly Granted Summary Judgment

{7} The district court properly grants summary judgment if "there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." City of Rio Rancho , 2011-NMSC-037, ¶ 14, 150 N.M. 428, 260 P.3d 414 (internal quotation marks and citation omitted). OMC offers several arguments to support its position that the district court improperly granted summary judgment on the Association's trespass claim. To put the Association's trespass claim in context, we briefly explain the connection between trespass and easements. "The gist of an action of trespass to real property is in tort for the alleged injury to the right of possession." Pacheco v. Martinez , 1981-NMCA-116, ¶ 14, 97 N.M. 37, 636 P.2d 308. New Mexico law explains that "[a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." City of Rio Rancho , 2011-NMSC-037, ¶ 33, 150 N.M. 428, 260 P.3d 414 (quoting Restatement (Third) of Prop.: Servitudes § 1.2(1) (2000) ). A trespass claimant, like the Association, must prove that the defendant had no right to enter and use the land. But if an easement grants the right to enter and use land, use of that land in accordance with the easement causes no injury to the right of possession, and no action for trespass exists.

{8} In the present case, to make a prima facie case for summary judgment, the Association had to demonstrate that the undisputed material facts established that OMC had no right to enter and use the Condominium Property Easement. See City of Rio Rancho , 2011-NMSC-037, ¶ 14, 150 N.M. 428, 260 P.3d 414 ("The party moving for summary judgment has the initial burden of establishing a prima facie case for summary judgment by presenting such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted." (internal quotation marks and citation omitted)). In its response, OMC primarily contends that as a matter of law, OMC "may use the [Condominium Property Easement] for ingress/egress ...