City of Rio Rancho v. Cloudview Estates

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 —