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March 5, 2026 Get Citation Alerts Download PDF Add Note

Pinasco v. Ashcroft

New Mexico Court of Appeals

• Citations: None known
• Docket Number: Unknown

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41319

WILLIAM PINASCO and SHERRY PINASCO,

Plaintiffs/Counterdefendants-Appellants,

v.

BRONSON ASHCROFT,

Defendant,

and

EL PASO NATURAL GAS COMPANY,
LLC,

Defendant/Counterplaintiff-Appellee,

and

EL PASO NATURAL GAS COMPANY,
LLC,

Third-Party Plaintiff,

v.

AUBREY WOOD and PATRICK WOOD,

Third-Party Defendants.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
R. David Pederson, District Court Judge

Jennings Haug Keleher McLeod Waterfall LLP
Benjamin F. Feuchter
Albuquerque, NM
for Appellants

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Lynn H. Slade
Spencer L. Edelman
Jennifer A. Kittleson
Albuquerque, NM

for Appellee

MEMORANDUM OPINION

DUFFY, Judge.

{1} Plaintiffs William and Sherry Pinasco appeal from the district court’s order
granting summary judgment in favor of Defendant El Paso Natural Gas Company, LLC,
and dismissing their complaint with prejudice. We affirm.

BACKGROUND

{2} In 1983, Third-Party Defendants Aubrey and Patricia Wood (the Woods) acquired
property described as the SE/4 of the SW/4 of Section 23, Township 29 North, Range
11 West, N.M.P.M, San Juan County, New Mexico. The property is divided into northern
and southern portions by the San Juan River. The southern portion of the property (the
Southern Tract) is the subject of this appeal. The Southern Tract abuts the northern
boundary of property currently owned by Defendant. The Woods alleged that they could
only access the Southern Tract via a two-track road running across the east side of
Defendant’s property. In 2002, the Woods entered into an access agreement with
Defendant’s predecessor in interest to use the two-track road “for ingress and egress
only for vehicle and livestock access for grazing purposes.”

{3} Plaintiffs claim to have entered into a purchase agreement with the Woods in
2020 to buy the Southern Tract. Plaintiffs contacted Defendant to discuss using
Defendant’s property to access the Southern Tract pursuant to the access agreement. A
dispute arose among the parties concerning the validity and scope of the access
agreement, and Defendant demanded that Plaintiffs cease crossing Defendant’s
property to access the Southern Tract. Plaintiffs filed an action for declaratory judgment,
damages, and injunctive relief claiming, in relevant part, either a prescriptive easement,
express easement, easement in gross, or a contractual right to use the two-track road
across Defendant’s property to access the Southern Tract. Defendant counterclaimed
for trespass, declaratory judgment, and injunctive relief against Plaintiffs and brought a
third-party complaint against the Woods. Following written discovery, Defendant filed a
motion for summary judgment on the basis that Plaintiffs lacked standing, arguing that
Plaintiffs had not produced any deed or other writing showing that they actually owned
the Southern Tract. The district court granted Defendant’s motion and dismissed
Plaintiffs’ claims with prejudice, concluding that Plaintiffs lacked standing due to their
failure to demonstrate by deed or other legal instrument that they held legal title to the
Southern Tract. The district court certified under Rule 1-054(B) NMRA that there was no
just reason for delay, thereby allowing for an immediate appeal.

DISCUSSION

{4} On appeal, Plaintiffs argue that the district court erred by (1) granting summary
judgment, and (2) dismissing Plaintiffs’ claims “with prejudice.” We address each in turn.

I. Summary Judgment1

{5} “We review the district court’s grant of summary judgment de novo.” Freeman v.
Fairchild, 2018-NMSC-023, ¶ 14, 416 P.3d 264. “Summary judgment is proper if there
are no genuine issues of material fact and the movant is entitled to judgment as a
matter of law.” Roth v. Thompson, 1992-NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d
1241.

{6} Plaintiffs advance two arguments in support of their assertion that the district
court erred in granting summary judgment. Plaintiffs primarily contend that they are the
real parties in interest and have standing to bring their claims because they hold
equitable title to the parcel. In addition, Plaintiffs argue that they are successors in
interest to the Woods under the access agreement, and therefore, have standing to
enforce those contractual rights. As we explain, both arguments are unpreserved.

1. Equitable Title

{7} Plaintiffs first assert that the district court erred in granting summary judgment
because a deed is not necessary to prove ownership. Plaintiffs argue that “[t]he holder
of equitable title to real property is a real party in interest with respect to, and has
standing to sue for, injuries to the holder’s rights in that property.” (Emphasis added.)
Defendant counters that Plaintiffs did not preserve any argument regarding standing
under an equitable ownership theory.

{8} “To preserve an issue for review, it must appear that a ruling or decision by the
trial court was fairly invoked.” Rule 12-321(A) NMRA. “The preservation rule provides
the lower court an opportunity to correct any mistake, provides the opposing party a fair
opportunity to show why the court should rule in its favor, and creates a record from

1The parties appear to discuss the issue on appeal as both one of standing and also an issue of whether
Plaintiffs are the real parties in interest. Whether a party has standing and whether a plaintiff is a real
party in interest are two distinct concepts. O’Brien v. Behles, 2020-NMCA-032, ¶ 25, 464 P.3d 1097.
“[W]hile standing focuses on whether the plaintiff’s injuries are fairly traceable to the defendant’s conduct,
the real party in interest requirement focuses on whether the plaintiff is the person who possesses the
right sought to be enforced.” Id. ¶ 26 (internal quotation marks and citation omitted). A plaintiff must be
both the real party in interest and have standing. Id. (citing 6A Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1542 (3d ed. 2010)). We do not focus our analysis on this point, as it is
unnecessary to our disposition, but nevertheless draw the parties’ attention to this matter.
which this Court may make informed decisions.” Yurcic v. City of Gallup, 2013-NMCA-
039, ¶ 35, 298 P.3d 500 (omissions, internal quotation marks, and citation omitted).

{9} Plaintiffs maintain that they raised the issue of equitable title below on two
separate occasions. First, Plaintiffs claim they gave express notice that they intended to
rely on an equitable title theory in their reply in support of their emergency motion to
modify preliminary injunction. In that motion, Plaintiffs asserted, without citation to
authority, that “all that is required to transfer title to real property in New Mexico is an
agreement between the buyer and the seller to do so, plus an exchange of
consideration.” This is insufficient to have alerted Defendant or the district court that
Plaintiffs were proceeding on an equitable title theory. To the extent Plaintiffs claim that
the district court judge “acknowledged the [Plaintiffs’] position on this issue and
discussed it during an April 20, 2023, hearing” on the motion, we find no support for
Plaintiffs’ claim. At the April 20 hearing, the district court questioned Plaintiffs’ failure to
memorialize in writing or record the purported real estate transfer. Plaintiffs did not
respond by arguing equitable title. They merely argued that the point of recording is to
provide constructive notice, and noted that they “cannot get title insurance until the
issue of their access to the property has been resolved.”

{10} Second, Plaintiffs contend they raised equitable title in their response to
Defendant’s motion for summary judgment by arguing that possession of a deed was
not necessary for standing. Plaintiffs claim that they “specifically referred the district
court to the equitable title doctrine discussed in Conway v. San Miguel Cnty. Bd. of
Educ., 1955-NMSC-008, ¶ 36, [59 N.M. 242,] 282 P.2d 719, and the exception to the
statute of frauds doctrine discussed in Beaver v. Brumlow, 2010-NMCA-033, ¶ 21, [148
N.M. 172,] 231 P.3d 628.” However, the record shows that Plaintiffs’ argument centered
on refuting the application of the statute of frauds to their purchase. Plaintiffs cited to
Conway and Beaver for the proposition that “New Mexico law does not require the
execution, delivery, or recordation of a deed to make a real estate conveyance effective,
even when the grantor and grantee disagree as to whether a conveyance occurred or
what was conveyed.”2 Plaintiffs’ response does not expressly mention equitable title,
much less advance an argument that equitable title provides a basis for standing.
Simply put, Plaintiffs’ argument in the district court was that no deed was required, but
they did not articulate in any meaningful way the legal theory now being advanced on
appeal, namely that they hold equitable title and are therefore real parties in interest
with enforceable rights in property.

{11} Plaintiffs also contend that the district court “confirmed it acknowledged the
[Plaintiffs’] equitable arguments but was rejecting them” at the hearing on the summary
judgment motion. Contrary to Plaintiffs’ assertion, it was clear that the district court
believed the statute of frauds was controlling. Though the court acknowledged “there’s a

2We do not necessarily endorse Plaintiffs’ view of the holdings in these cases. Both involved ownership
disputes between parties claiming title to the same tract. Conway, for example, was a quiet title suit
involving two buyers who claimed title to the same tracts. 1955-NMSC-008, ¶¶ 1, 36. Beaver involved an
oral contract to convey property where the seller reneged after the buyer had improved the land, and the
buyer sued for specific performance. 2010-NMCA-033, ¶¶ 1, 21-22.
whole bunch of really ancient cases that say that, yeah, if you paid, you own the land
and if you can prove it,” the district court judge ultimately concluded Plaintiffs had not
proved that they were owners of the tract. The district court did not rule, and was not
asked to rule, that Plaintiffs had standing as equitable owners of the Southern Tract.

{12} “Although we do not apply the preservation requirement in an unduly technical
manner, it is necessary for the issue advanced on appeal to have been raised before
the district court with enough specificity to apprise the district court of the nature of the
claimed error and invoke an intelligent ruling thereon.” State v. Medema, 2025-NMCA-
011, ¶ 22, ___ P.3d ___ (alterations, internal quotation marks, and citations omitted).
Having reviewed the record, we cannot agree with Plaintiffs that the theory of equitable
ownership presented on appeal was preserved, and therefore, we decline to consider it.
See Wolfley v. Real Est. Comm’n, 1983-NMSC-064, ¶ 5, 100 N.M. 187, 668 P.2d 303
(“It is well established in this state that theories, defenses, or other objections will not be
considered when raised for the first time on appeal.”).

1. Successor in Interest

{13} Plaintiffs also contend that fact questions remain with regard to whether they are
successors in interest to the Woods under the access agreement. Here, too, Plaintiffs’
claims depend on ownership, as Plaintiffs argue that they have stepped into the Woods’
shoes as purchasers and owners of the Southern Tract. However, Plaintiffs have not
argued any theory of ownership on appeal other than equitable title. As discussed
above, Plaintiffs have not preserved these arguments. Because Plaintiffs have not
otherwise contested that an ownership interest is necessary to pursue their claims, we
affirm the district court’s grant of summary judgment.

II. Plaintiffs Failed to Preserve Their Argument Regarding the District Court’s
Dismissal “With Prejudice”

{14} Plaintiffs also contend the district court abused its discretion in dismissing their
claims “with prejudice.” Defendant maintains that Plaintiffs failed to preserve these
arguments as well. Based on our review of the supplemental record, we conclude that
Plaintiffs had an opportunity to preserve the issue but failed to do so. See Rule 12-
321(A); cf. State v. Bregar, 2017-NMCA-028, ¶ 29 n.3, 390 P.3d 212 (noting that where
a party does not have the opportunity to object to a ruling or order at the time it is made,
the rules of preservation do not apply).

{15} At the hearing on Defendant’s motion for summary judgment, the district court
directed Defendant to prepare the order. The district court judge did not make any oral
ruling as to whether the dismissal of Plaintiffs’ claims should be with or without
prejudice. Plaintiffs’ counsel asked the court to include Rule 1-054(B) language to
permit them to pursue an immediate appeal to this Court, and the district court agreed
that would be appropriate. Plaintiffs did not ask for a ruling on the form of the dismissal.
{16} The supplemental record shows that Defendant submitted a proposed form of
order to Plaintiffs, who in turn offered only two suggested edits to the proposed order—
neither of which were addressed to the dismissal with prejudice language. When the
parties could not agree on the final form of the order, Plaintiffs suggested that
Defendant submit both the originally proposed form of order and the version containing
Plaintiffs’ edits for the district court judge to consider. Both versions contained language
stating that Plaintiffs’ claims would be dismissed with prejudice. Given that Plaintiffs’
version of the order also contained the “with prejudice” language, we must reject
Plaintiffs’ argument that they preserved the issue simply by refusing to approve
Defendant’s form of order.

{17} Based on the above, we conclude Plaintiffs had two opportunities to object to the
dismissal “with prejudice”—first at the hearing and again when suggesting edits to the
proposed order—and failed to do so. Thus, we must conclude that Plaintiffs failed to
preserve this issue for appellate review. Notwithstanding the “with prejudice”
designation, however, dismissal for lack of standing is not an adjudication on the merits.
See Bank of N.Y. v. Romero, 2016-NMCA-091, ¶ 16, 382 P.3d 991; see also State v.
Cotton Belt Ins. Co., 1981-NMSC-129, ¶ 5, 97 N.M. 152, 637 P.2d 834 (“The doctrine of
res judicata was never intended to operate so as to prevent a reexamination of the
same question between the same parties where, in the interval between the first and
second actions, the facts have materially changed or new facts have occurred which
may have altered the legal rights or relations of the litigants.” (internal quotation marks
and citation omitted)).

CONCLUSION

{18} For the foregoing reasons, we affirm the district court’s grant of summary
judgment and dismissal of Plaintiffs’ claims with prejudice.

{19} IT IS SO ORDERED.

MEGAN P. DUFFY, Judge

WE CONCUR:

ZACHARY A. IVES, Judge

KATHERINE A. WRAY, Judge