This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOAN BLUMENSHINE f/k/a 3 JOAN RUPERT and CATHY PEARSON,
4 Petitioners/Plaintiffs-Appellants,
5 v. NOS. 34,308 & 34,398 6 (Consolidated)
7 PAUL KASTLER and EDWARD PEASE, 8 Individually and as Trustees of the GRETCHEN 9 SAMMIS REVOCABLE TRUST DATED 10 JANUARY 1, 2004, and as Officers of THE 11 CHASE RANCH CHARITABLE FOUNDATION, 12 a New Mexico Nonprofit Corporation, THE ESTATE 13 OF GRETCHEN ANN SAMMIS, THE GRETCHEN 14 SAMMIS REVOCABLE TRUST DATED JANUARY 15 1, 2004, and THE CHASE RANCH CHARITABLE 16 FOUNDATION,
17 Respondents/Defendants-Appellees,
18 and
19 JOAN BLUMENSHINE f/k/a 20 JOAN RUPERT and CATHY PEARSON,
21 Petitioners/Plaintiffs-Appellants,
22 v. NO. 35,032
23 PAUL KASTLER and EDWARD PEASE 1 Individually and as Trustees of the GRETCHEN 2 SAMMIS REVOCABLE TRUST DATED 3 JANUARY 1, 2004, and as Officers of THE 4 CHASE RANCH CHARITABLE FOUNDATION, 5 a New Mexico Nonprofit Corporation, THE ESTATE 6 OF GRETCHEN ANN SAMMIS, THE GRETCHEN 7 SAMMIS REVOCABLE TRUST DATED JANUARY 8 1, 2004, and THE CHASE RANCH CHARITABLE 9 FOUNDATION,
10 Respondents/Defendants-Appellees.
11 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 12 Sarah C. Backus, District Judge
13 Alex Chisholm 14 Albuquerque, NM
15 for Appellants
16 Alsup Law Office 17 Gary D. Alsup 18 Clayton, NM
19 Montgomery & Andrews, P.A. 20 Seth C. McMillan 21 Santa Fe, NM
22 for Appellees
23 MEMORANDUM OPINION
24 VANZI, Judge.
25 {1} This is a consolidated case concerning three separate appeals from a single
26 district court case that involves the distribution of trust and will assets. Joan
27 Blumenshine and Cathy Pearson (collectively, Petitioners) appeal the district court’s
2 1 dismissal of Pearson on the ground that she lacked standing; the district court’s award
2 of summary judgment against Blumenshine; and the district court’s imposition of Rule
3 1-011 NMRA sanctions on Petitioners and their counsel for filing a frivolous lawsuit.
4 {2} We hold that the district court did not err when it dismissed Pearson for lack of
5 standing because the New Mexico Uniform Probate Code (UPC), NMSA 1978,
6 Sections 45-1-101 to -9A-13 (1975, as amended through 2016), does not confer
7 standing to her; the district court did not err in granting summary judgment against
8 Blumenshine because she did not dispute any material facts and judgment was proper
9 as a matter of law; and the district court did not abuse its discretion in imposing Rule
10 1-011 sanctions because Petitioners and their counsel had no facts supporting the
11 allegations and claims of the verified complaints at the time of filing. Therefore, we
12 affirm.
13 BACKGROUND
14 {3} This appeal pertains to a ranch in northern New Mexico that is the subject of
15 a will and trust dispute. Gretchen Sammis was the great-granddaughter of Manly
16 Chase, who established the ranch in the nineteenth century. In the 1880s, Chase
17 purchased land in Colfax County, New Mexico that was originally part of the
18 Maxwell Land Grant. Chase then expanded his land by a series of additional
19 purchases and passed down his interest in the land to his heirs by testamentary devise.
20 Today, these lands are known as the Chase Ranch and are located four miles northeast
3 1 of Cimarron, New Mexico. In 1954, the Chase Ranch was conveyed to Sammis and
2 Sammis’ half-sister, Blumenshine. In 1960, Sammis consolidated her interest in the
3 Chase Ranch by purchasing Blumenshine’s 50 percent interest in the property,
4 excluding mineral rights. Over the course of thirty-two years, Sammis executed
5 numerous wills, each of which acknowledged Blumenshine as her sister, but none of
6 which included any provisions that left Blumenshine anything. The wills stated that
7 Sammis never married and had no children.
8 {4} On January 16, 2004, Sammis executed her Last Will and Testament, which
9 revoked all her previous wills and devised all her personal and real property to the
10 Gretchen Sammis Revocable Trust (Trust). The Trust was also executed in January
11 2004. The Trust’s purpose was to “have the Chase Ranch retained as an historic ranch
12 and museum.” Sammis nominated Paul Kastler, Edward Pease (collectively,
13 Respondents), and Ruby Nell Gobble, as co-personal representatives and co-trustees
14 of both the will and the Trust. Kastler was Sammis’ long-time attorney, Pease was
15 Sammis’ personal acquaintance, and Gobble was Sammis’ good friend. Pearson was
16 named as an alternate trustee.
17 {5} In her final will, Sammis directed that her personal representatives should
18 devise her personal property, including jewelry and silver, to the Trust. Sammis also
19 instructed that “all such tangible personal property be distributed by [her] Personal
20 Representative pursuant to a written statement or list prepared by [her] in [her] own
4 1 handwriting, or signed by [her], which list shall control to the extent that it disposes
2 of [her] tangible personal property.” At the time of her death, Sammis left behind two
3 signed handwritten statements. One was dated August 20, 1995, and stated, “My
4 intention is to have the Chase Ranch house, barns, shed, shops and everything they
5 contain remain intact. The only things that may be removed will be listed below.”
6 Sammis gave the “Maupin silver and all other pieces to [Blumenshine].” The other
7 signed handwritten statement was dated August 19, 1997, and stated, “[Blumenshine]
8 can distribute the jewelry.”
9 {6} In addition, Sammis’ will devised her residuary estate to the Chase Ranch
10 Charitable Foundation (Foundation), which was established in 2001. The purpose of
11 the Foundation was to operate and enhance “the Historic Chase Ranch . . . for historic,
12 educational, sociological, cultural and Southwestern United States and New Mexican
13 historic ranch and museum purposes.” Respondents were named co-directors of the
14 Foundation.
15 {7} Sammis died on August 14, 2012, and on September 6, 2012, Respondents and
16 Gobble applied for informal probate. Pearson—Blumenshine’s daughter and Sammis’
17 niece—was listed as “Niece/Devisee” in the application for probate. Kastler later
18 admitted that the inclusion of Pearson was a mistake because she was not named as
19 a devisee in Sammis’ will or in the two handwritten statements. Blumenshine, on the
20 other hand, was properly listed as “Sister/Devisee” in the application.
5 1 {8} Petitioners filed a complaint on September 6, 2013, in the district court alleging
2 that Respondents committed conversion by “convincing [Sammis] to create the . . .
3 Foundation[] and the . . . Trust.” Petitioners also alleged that Respondents engaged in
4 tortious interference with an expected inheritance, claiming Petitioners had an
5 “expectancy that the Chase [R]anch would be left to one or both of them” based on
6 an oral agreement between Sammis and Blumenshine. In addition, Petitioners asked
7 the district court to set aside Sammis’ Last Will and Testament and sought an
8 adjudication of intestacy based on undue influence. Petitioners specifically argued that
9 Respondents “used their position of trust and their confidential and fiduciary
10 relationship with [Sammis] to convince her to abandon her heritage and her obligation
11 to keep the Chase [R]anch in the family.” Respondents denied Petitioners’ allegations
12 and filed a motion to dismiss Pearson as a party for lack of standing. Respondents also
13 filed a motion for summary judgment on all claims.
14 {9} On October 9, 2014, the district court held a motions hearing during which
15 counsel for Petitioners conceded that “it just boils down to conversion.” Counsel for
16 Petitioners also asserted that the case had been reduced to the property claims. When
17 asked whether Petitioners were abandoning their tortious interference with an
18 expected inheritance claim, counsel responded in the affirmative. Likewise, when the
19 court inquired as to whether Petitioners were abandoning the undue influence claim,
6 1 counsel said that the claim no longer had any bearing. The district court granted
2 Respondents’ motion to dismiss Pearson and their motion for summary judgment.
3 {10} Subsequently, Respondents brought a Rule 1-011 motion for sanctions against
4 Petitioners and their attorney, alleging the complaint was “groundless” and
5 “frivolous.” The district court agreed with Respondents and granted the motion,
6 making numerous findings that Petitioners’ allegations were not supported by facts
7 and expressly concluding that a “large number of the allegations in [Petitioners’]
8 verified complaint are simply mean and scandalous and appear calculated to inflict
9 embarrassment and harm” to Respondents’ reputation. While the court found
10 Petitioners and their counsel in violation of Rule 1-011, it did not quantify the amount
11 of damages.
12 {11} Although the parties and case below were the same, Petitioners filed three
13 separate appeals to this Court pertaining to (1) the dismissal of Pearson on the ground
14 that she lacked standing, (2) the order granting summary judgment to Respondents,
15 and (3) the district court’s imposition of Rule 1-011 sanctions. We have consolidated
16 the three appeals and address all the issues raised in this opinion.
17 DISCUSSION
18 Standing
7 1 {12} We begin with the threshold question of whether the district court erred when
2 it dismissed Pearson for lack of standing. Petitioners argue that various provisions of
3 the UPC give Pearson standing because she is an heir to Sammis, she was listed as a
4 devisee in the application for informal probate, and she was named as a successor co-
5 trustee. Petitioners further argue that the doctrine of judicial estoppel bars
6 Respondents from asserting that Pearson was not a devisee. We disagree and address
7 each of Petitioners’ arguments in turn.
8 {13} “Whether a party has standing to bring a claim is a question of law which we
9 review de novo. For purposes of ruling on a motion to dismiss for want of standing,
10 both the trial and reviewing courts must accept as true all material allegations of the
11 complaint, and must construe the complaint in favor of the complaining party.” N.M.
12 Gamefowl Ass’n v. State ex rel. King, 2009-NMCA-088, ¶ 12, 146 N.M. 758, 215
13 P.3d 67 (internal quotation marks and citations omitted).
14 {14} Petitioners first argue that Pearson has standing to sue because she is an
15 interested person as defined in Sections 45-3-203A(3), (5), and (6) of the UPC.
16 Contrary to Petitioners’ assertion, however, Pearson does not meet the definition of
17 an interested person and, therefore, does not have standing in this case. We explain.
18 {15} Under New Mexico’s codification of the UPC, an “interested person” in a
19 probate matter “includes heirs, devisees, children, spouses, creditors, beneficiaries and
20 any others having a property right in or claim against a trust estate or the estate of a
8 1 decedent[.]” Section 45-1-201(A)(26). The term “interested person” also includes
2 persons who have a “priority for appointment as personal representatives and other
3 fiduciaries representing interested persons.” Id. Further, the Legislature has defined
4 the term “devisee” as “a person designated in a will to receive a devise.” Section 45-1-
5 201(A)(11).
6 {16} Petitioners’ contention that Pearson is an heir to Sammis fails. “Heirs” are
7 persons “who are entitled under the statutes of intestate succession to the property of
8 a decedent.” Section 45-1-201(A)(23). Under Section 45-2-103(A)(1), (2), an
9 individual is entitled to an intestate share of a decedent’s estate if such an individual
10 is a descendant of the decedent or a parent of the decedent. In the event there are no
11 surviving descendants or parents, the intestate share passes to the descendants of the
12 decedent’s parents. Section 45-2-103(A)(3). Here, Pearson is neither a descendent
13 entitled to an estate share or a parent of Sammis, nor is she a descendant of Sammis’
14 parents. See § 45-2-103(A). Rather, she is Blumenshine’s daughter and Sammis’
15 niece. Pursuant to the plain language of the UPC set forth above, Pearson is not an
16 heir and is not entitled to an intestate share of Sammis’ estate. See id.
17 {17} Petitioners also argue that Section 45-3-108(A)(3) confers standing to Pearson.
18 That provision of the UPC provides, “No informal probate or appointment proceeding
19 or formal testacy or appointment proceeding . . . may be commenced more than three
20 years after the decedent’s death, except . . . a proceeding to contest an informally
9 1 probated will and to secure appointment of the person with legal priority for
2 appointment.” Id. This provision is merely a limitations statute and does not operate
3 to confer standing on Pearson. See id.; Vieira v. Estate of Cantu, 1997-NMCA-042,
4 ¶ 11, 123 N.M. 342, 940 P.2d 190 (discussing whether a petition under Section 45-3-
5 108(A)(3) was timely filed).
6 {18} Petitioners additionally claim that Pearson is granted standing by virtue of
7 Section 45-3-203. However, Petitioners misconstrue this section because it applies to
8 “[p]riority among persons seeking appointment as personal representative” and does
9 not confer standing. See id. In any event, Section 45-3-203 does not apply to Pearson
10 because she does not fall into the category of persons that would have priority under
11 the UPC. See § 45-3-203(A) (giving priority to “(1) the person with priority as
12 determined by a probated will, including a person nominated by a power conferred in
13 a will; (2) the surviving spouse of the decedent who is a devisee of the decedent; (3)
14 other devisees of the decedent; (4) the surviving spouse of the decedent; (5) other
15 heirs of the decedent; and (6) on application or petition of an interested person other
16 than a spouse, devisee or heir, any qualified person”).
17 {19} As to Petitioners’ argument that Pearson was conferred standing because she
18 was mistakenly listed as a devisee in the application for informal probate, we are not
19 persuaded. Nothing in the UPC provides that simply naming someone as a devisee in
20 an application for informal probate unilaterally bestows the title of “devisee” on that
10 1 individual. See § 45-1-201(A)(11). Indeed, as we have already explained, standing
2 requires one to be named in a will as a devisee or to be otherwise entitled under the
3 statutes of intestacy. See § 45-1-201(A)(11), (23). Pearson was not named in the will
4 and cannot demonstrate that she is otherwise entitled to bring this suit under any other
5 provision of the UPC.
6 {20} Petitioners also assert that Pearson has standing because she was named as a
7 successor co-trustee, but they put forth no specific arguments or law to support this
8 claim. Importantly, we note as well that there is no evidence in the record that Pearson
9 was a successor trustee and that she was only named as an alternate trustee in the
10 Trust. This Court has no duty to review an argument that is not adequately developed.
11 See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a
12 party cites no authority to support an argument, we may assume no such authority
13 exists.”); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339,
14 110 P.3d 1076 (declining to entertain a cursory argument that included no explanation
15 of the party’s argument and no facts that would allow the appellate court to evaluate
16 the claim).
17 {21} To the extent Petitioners argue that Pearson has standing under the Uniform
18 Trust Code (UTC), NMSA 1978, § 46A-6-604(A) (2007), we disagree. That provision
19 states:
11 1 A person may commence a judicial proceeding to contest the 2 validity of a trust that was revocable at the settlor’s death within the 3 earlier of:
4 (1) three years after the settlor’s death; or
5 (2) one hundred twenty days after the trustee sent the person a 6 copy of the trust instrument and a notice informing the person of the 7 trust’s existence, of the trustee’s name and address and of the time 8 allowed for commencing a proceeding.
9 Id.
10 {22} As with Section 45-3-108(A)(3) of the UPC, this provision concerns the statute
11 of limitations to contest the validity of a trust and does not operate to confer standing
12 to Pearson. Cf. McNeill v. Rice Eng’g & Operating, Inc., 2010-NMSC-015, ¶ 1, 148
13 N.M. 16, 229 P.3d 489 (holding that, in a trespass action, while discovery of the
14 trespass causes the statute of limitations to run, discovery of the trespass itself does
15 not give standing to the aggrieved party). In any case, neither party argues to this
16 Court that the limitations period had run on Pearson’s alleged claims.
17 {23} We agree with Respondents that any challenge to the Trust should be viewed
18 through the lens of the UPC. The UTC applies to “express trusts,” such as the one at
19 issue here. See NMSA 1978, § 46A-1-102 (2003). The UTC, however, does not define
20 the term “interested person” or give guidance on when a person has a cause of action
21 under that statute. See Uniform Trust Code, NMSA 1978, §§ 46A-1-101 to -11-1105
22 (2003, as amended through 2016). We therefore look to the UPC for illumination. See
12 1 Oldham v. Oldham, 2011-NMSC-007, ¶ 11, 149 N.M. 215, 247 P.3d 736 (“A
2 statutory subsection may not be considered in a vacuum, but must be considered in
3 reference to the statute as a whole and in reference to statutes dealing with the same
4 general subject matter.” (alteration, internal quotation marks, and citation omitted)).
5 Our Supreme Court has held that “[s]tatutes covering the same subject matter should
6 be harmonized and construed together when possible in a way that facilitates their
7 operation and the achievement of their goals.” Id. (internal quotation marks and
8 citation omitted).
9 {24} Section 45-1-301(A)(1) of the UPC applies to “the affairs and estates of
10 decedents[.]” Because Sammis’ final will and Trust “represent a unified estate plan”
11 and concern the same subject matter (Sammis’ estate), the UPC properly applies. See
12 Wilson v. Fritschy, 2002-NMCA-105, ¶ 27, 132 N.M. 785, 55 P.3d 997 (“[T]rusts
13 related to estates are undeniably within the sweep of the [UPC].”). As previously
14 discussed, the UPC defines an “interested person” as someone who has a “property
15 right in or claim against a trust estate.” Section 45-1-201(A)(26). As also detailed
16 above, the intestacy laws set forth the standards for establishing who—in the absence
17 of being a spouse, heir, child, beneficiary, or creditor—has standing to contest a will
18 or the validity of a trust. See id.; § 45-2-101(A) (“Any part of a decedent’s estate not
19 effectively disposed of by will passes by intestate succession.”). Because Pearson does
13 1 not have an interest in the intestate estate, see § 45-2-103, she does not have a
2 property interest or claim against the trust estate under the UPC.
3 {25} Finally, as to Petitioners’ contention that judicial estoppel bars Respondents
4 from asserting that Pearson was not a devisee, we are likewise unpersuaded. “Judicial
5 estoppel is a doctrine that prevents a party who has successfully assumed a certain
6 position in judicial proceedings from then assuming an inconsistent position[.]”
7 Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, ¶ 20, 123 N.M. 489, 943 P.2d
8 136. There is nothing in the present case to suggest that Respondents assumed an
9 inconsistent position with one that was successfully assumed before. See id. As
10 Petitioners have cited no authority for the proposition that mistakenly listing someone
11 as a devisee in an application for informal probate is tantamount to assuming a
12 position in litigation, we assume no such authority exists. See Curry, 2014-NMCA-
13 031, ¶ 28 (“Where a party cites no authority to support an argument, we may assume
14 no such authority exists.”). Moreover, it cannot be said that Respondents were
15 successful in arguing for one position and then later argued for an inconsistent
16 position because they never sought to name Pearson as a devisee to their advantage.
17 See Keith v. ManorCare, Inc., 2009-NMCA-119, ¶ 39, 147 N.M. 209, 218 P.3d 1257
18 (“The primary purpose of the judicial estoppel rule is to prevent parties from playing
19 fast and loose with the court by successfully arguing one position and then later
20 adopting a position inconsistent with the first.” (internal quotation marks and citation
14 1 omitted)). As such, the doctrine of judicial estoppel is of no moment to this case.
2 Accordingly, we affirm the district court’s dismissal of Pearson for lack of standing.
3 Summary Judgment
4 {26} “Summary judgment is appropriate where there are no genuine issues of
5 material fact and the movant is entitled to judgment as a matter of law.” Self v. United
6 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. The appellate
7 courts “review these legal questions de novo.” Id. A party opposing summary
8 judgment may not simply argue that evidentiary facts requiring a trial on the merits
9 may exist, “nor may [a party] rest upon the allegations of the complaint.” Dow v.
10 Chilili Coop. Ass’n, 1986-NMSC-084, ¶ 13, 105 N.M. 52, 728 P.2d 462; see Juneau
11 v. Intel Corp., 2006-NMSC-002, ¶ 15, 139 N.M. 12, 127 P.3d 548 (“[T]he non-
12 movant may not rest on the pleadings, but must demonstrate genuine issues of
13 material fact by way of sworn affidavits, depositions, and similar evidence.”).
14 {27} “In determining which issues of fact are material facts . . . we look to the
15 substantive law governing the dispute.” Farmington Police Officers Ass’n v. City of
16 Farmington, 2006-NMCA-077, ¶ 17, 139 N.M. 750, 137 P.3d 1204. As we noted
17 above, Petitioners abandoned their tortious interference with an expected inheritance
18 and undue influence claims in the proceedings below. Where a party has abandoned
19 a claim and does not subsequently argue or revive the abandoned claim in the district
20 court, the claim is not sufficiently preserved. Cf. Benz v. Town Ctr. Land, LLC, 2013-
15 1 NMCA-111, ¶ 24, 314 P.3d 688 (“To preserve an issue for review on appeal, it must
2 appear that [the] appellant fairly invoked a ruling of the trial court on the same
3 grounds argued in the appellate court.” (internal quotation marks and citation
4 omitted)); Budget Rent-A-Car Sys., Inc. v. Bridgestone, 2009-NMCA-013, ¶ 10, 145
5 N.M. 623, 203 P.3d 154 (explaining that, where a party abandoned a claim in the
6 course of litigation, that party was prohibited from renewing the abandoned claim at
7 a later time). Consequently, the only issue remaining for this Court’s review is the
8 order granting summary judgment on Petitioners’ conversion claim.
9 {28} To prevail on a claim for conversion, a claimant must demonstrate “the
10 unlawful exercise of dominion and control over personal property belonging to
11 another in exclusion or defiance of the owner’s rights, or acts constituting an
12 unauthorized and injurious use of another’s property, or a wrongful detention after
13 demand has been made.” Muncey v. Eyeglass World, LLC, 2012-NMCA-120, ¶ 22,
14 289 P.3d 1255 (internal quotation marks and citation omitted).
15 {29} In their motion for summary judgment, Respondents set forth sixteen
16 undisputed material facts and attached record evidence in support. Petitioners did not
17 challenge any of Respondents’ undisputed facts below, nor do they do so on appeal.
18 Instead, citing Juneau, 2006-NMSC-002, ¶ 27, Petitioners merely contend that “the
19 credibility of a witness, a party to the case, is always a material fact.” Petitioners take
20 this case out of context. In Juneau, the plaintiff alleged his employer committed
16 1 wrongful termination and retaliation, and the district court granted summary judgment
2 in favor of the defendants. Id. ¶¶ 1, 26. In holding that summary judgment was
3 improper, our Supreme Court noted that the plaintiff had proffered disputed facts
4 relevant to the claims in question and that it was for a jury to determine the credibility
5 of those facts. Id. ¶¶ 25-26; see id. ¶ 27 (“Trial is the only sure way to test . . .
6 conflicting allegations, at which time the fact-finder can weigh the evidence and judge
7 the credibility of the principal witnesses. It is well-settled in New Mexico that
8 summary judgment is not an appropriate vehicle for courts to do either.”). Contrary
9 to Petitioners’ assertion, the Juneau Court did not hold that the plaintiff’s credibility
10 created an issue of disputed fact but only that it was the fact-finder’s job to weigh the
11 credibility of witnesses in relation to, and in light of, the allegations made. Indeed, the
12 credibility of a witness, in and of itself, is not a fact. See Black’s Law Dictionary 709
13 (10th ed. 2014) (defining “fact” as “[s]omething that actually exists; an aspect of
14 reality”). To be more precise, the credibility of a witness may be relevant to proving
15 or disproving a fact, but is not, standing alone, a fact. See Archuleta v. Lacuesta, 1999-
16 NMCA-113, ¶ 14, 128 N.M 13, 988 P.2d 883 (“Neither we, nor the district court, are
17 entitled to weigh evidence or pass on the credibility of witnesses in deciding summary
18 judgment issues.” (internal quotation marks and citation omitted)).
19 {30} In this case, Petitioners have not raised any disputes of material fact and their
20 claim that Respondents are not credible is an unsupported assertion with no factual
17 1 basis.1 “Arguments by counsel are not evidence and cannot be used to create a
2 material issue of fact to defeat summary judgment.” Cain v. Champion Window Co.
3 of Albuquerque, LLC, 2007-NMCA-085, ¶ 14, 142 N.M. 209, 164 P.3d 90. Further,
4 Petitioners have made no argument that their claim for conversion otherwise succeeds
5 as a matter of law. Accordingly, we hold that the district court did not err in granting
6 Respondents’ motion for summary judgment.
7 Sanctions
8 {31} Petitioners’ appeal of the district court’s award of Rule 1-011 sanctions is
9 fivefold. Petitioners allege that (1) the case “exposes Mr. Kastler to malpractice”; (2)
10 “the district court misconstrued the law”; (3) Petitioners had a “subjective good faith
11 belief in the accuracy of their allegations”; (4) they had engaged in a good faith effort
1 13 We note that in their response to Respondents’ motion for summary judgment, 14 Petitioners requested a continuance pursuant to Rule 1-056(F), stating that they 15 needed more time for discovery to respond to Respondents’ motion because they had 16 not finished deposing the Respondents. Petitioners do not contend on appeal that they 17 were unable to complete discovery, and we therefore do not address this issue. In any 18 event, in their response and reply below, Petitioners did not attach an affidavit 19 specifically explaining why more time and discovery was needed. See Butler v. 20 Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532 21 (explaining that when a party seeks a continuance of a summary judgment 22 determination, under Rule 1-056(F), the “party must submit an affidavit explaining 23 why additional time and discovery are needed”). And they also failed to specify what 24 they hoped to discover in additional depositions. See id. ¶ 39 (declining to allow a 25 party to defeat a summary judgment motion when “he never made any specific 26 allegations regarding what he hoped to find in discovery”).
18 1 to challenge the correctness of current law; and (5) Respondents violated their
2 fiduciary duty to Petitioners.
3 {32} Because the district court did not assess the amount of sanctions, we first
4 address whether the issue before us is sufficiently final for review. “[O]ur appellate
5 jurisdiction is limited to review of ‘any final judgment or decision, any interlocutory
6 order or decision which practically disposes of the merits of the action, or any final
7 order after entry of judgment which affects substantial rights.’ ” Capco Acquisub, Inc.
8 v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140 N.M. 920, 149 P.3d 1017
9 (alteration omitted) (quoting NMSA 1978, § 39-3-2 (1966)). However, “[w]here a
10 judgment declares the rights and liabilities of the parties to the underlying
11 controversy, a question remaining to be decided thereafter will not prevent the
12 judgment from being final if resolution of that question will not alter the judgment or
13 moot or revise decisions embodied therein.” Massengill v. Fisher Sand & Gravel Co.,
14 2013-NMCA-103, ¶ 16, 311 P.3d 1231 (internal quotation marks and citation
15 omitted). In this case, the district court ordered Respondents to “present, by affidavit
16 of counsel, attorney’s fees and costs accrued in connection with the defense of this
17 matter in a subsequent pleading praying for money judgment” against Petitioners and
18 their counsel and provided Petitioners the opportunity to object to the fees and costs
19 contained in the affidavits. The district court had not ruled on the issue of the damage
20 amount before these appeals were filed; however, that is not a barrier to our appellate
19 1 review. See Landess v. Gardner Turf Grass, Inc., 2008-NMCA-159, ¶ 5, 145 N.M.
2 372, 198 P.3d 871 (observing that the underlying proceedings were “sufficiently final”
3 to permit appellate review where an order had been entered resolving the merits of the
4 underlying litigation and imposing sanctions pursuant to Rule 1-011, notwithstanding
5 the fact that the specific amount of the sanctions award was undecided); cf. Audette
6 v. Montgomery, 2012-NMCA-011, ¶ 10, 270 P.3d 1273 (“An order granting attorney
7 fees but not setting the amount . . . constitutes a final, appealable order.”).
8 {33} Several of Petitioners’ arguments pertaining to the district court’s imposition
9 of Rule 1-011 sanctions have been raised for the first time on appeal, and we decline
10 to entertain those contentions. Specifically, we do not address Petitioners’ arguments
11 that Rule 1-011 sanctions were improper because the instant litigation had exposed
12 Kastler to malpractice2 and that the district court misconstrued the law when it
13 considered previous wills in its final order because prior wills have no bearing on the
14 will being probated.3 “To preserve an issue for review on appeal, it must appear that
2 13 We also point out that Petitioners did not cite any authority for the proposition 14 that a claim cannot be frivolous if a party-lawyer notifies his malpractice insurance 15 provider of the claim against him. 3 16 To the contrary, however, the district court was establishing the fact that 17 Sammis had “only left a token amount of property” to Pearson in her previous wills. 18 It does not appear from the district court’s final order that the district court was using 19 extrinsic evidence to analyze Sammis’ Last Will and Testament. See In re Estate of 20 Frietze, 1998-NMCA-145, ¶ 10, 126 N.M. 16, 966 P.2d 183 (“If a will is 21 unambiguous, extrinsic evidence may not be accepted to determine the intent of the 22 testator.”). In fact, the district court laid out approximately fifty factors explaining the
20 1 appellant fairly invoked a ruling of the trial court on the same grounds argued in the
2 appellate court.” Benz, 2013-NMCA-111, ¶ 24 (emphasis added) (internal quotation
3 marks and citation omitted); see Rule 12-216(A) NMRA (“To preserve a question for
4 review it must appear that a ruling or decision by the district court was fairly
5 invoked[.]”). As we stated in State v. Allen:
6 The primary purposes for the preservation rule are: (1) to specifically 7 alert the district court to a claim of error so that any mistake can be 8 corrected at that time, (2) to allow the opposing party a fair opportunity 9 to respond to the claim of error and to show why the district court should 10 rule against that claim, and (3) to create a record sufficient to allow this 11 Court to make an informed decision regarding the contested issue.
12 2014-NMCA-047, ¶ 9, 323 P.3d 925 (internal quotation marks and citation omitted).
13 {34} Petitioners have failed to show us where in the record these arguments were
14 preserved , and we will not search the record to support their arguments. See State v.
15 Clements, 2009-NMCA-085, ¶ 19, 146 N.M. 745, 215 P.3d 54 (“This Court will not
16 search the record to find whether an issue was preserved where [the parties do] not
17 refer this Court to appropriate transcript references.”).
18 {35} We also decline to review Petitioners’ argument that the district court
19 misconstrued the law when it concluded that the dismissal of Petitioners’ petition in
20 the probate matter (before a different district court judge) was a dismissal with
21 prejudice. Although Petitioners preserved the argument below, they have failed to set
16 basis for its imposition of Rule 1-011 sanctions. None of these factors address whether 17 Sammis may have left any property to Petitioners in her previous wills.
21 1 forth any argument or cite any controlling authority as to why this was not proper. See
2 Curry, 2014-NMCA-031, ¶ 28 (“Where a party cites no authority to support an
3 argument, we may assume no such authority exists.”).
4 {36} We now turn to Petitioners’ argument that there was a good faith basis for their
5 allegations in the verified complaint as that issue was properly preserved. We also
6 address Petitioners’ contention that their appeal “is the continuation of their good faith
7 effort to modify the law” and their claim that Respondents violated their fiduciary
8 duty to Petitioners.
9 {37} An appellate court reviews the imposition of sanctions for abuse of discretion.
10 See Enriquez v. Cochran, 1998-NMCA-157, ¶ 20, 126 N.M. 196, 967 P.2d 1136.
11 Under this standard, we consider the following: (1) “the full record to determine
12 whether the trial court’s decision is without logic or reason, or clearly unable to be
13 defended”; (2) whether the sanction is appropriate in light of the nature of the conduct
14 and level of culpability found by the trial court; (3) “whether the court’s findings and
15 decision are supported by substantial evidence”; and (4) the “trial court’s exploration
16 of alternatives to the sanctions ultimately imposed.” Id. ¶¶ 20-21. The district court’s
17 order in this case contained extensive findings, none of which Petitioners challenge
18 on appeal.
19 {38} Under Rule 1-011(A), a party or attorney’s signature on a document certifies
20 that “there is good ground to support” the pleading, motion, or other document. “For
22 1 a willful violation of this rule an attorney or party may be subjected to appropriate
2 disciplinary or other action. Similar action may be taken if scandalous or indecent
3 matter is inserted.” Id. “The primary goal of Rule [1-011] is to deter baseless filings
4 in district court.” Rivera v. Brazos Lodge Corp., 1991-NMSC-030, ¶ 14, 111 N.M.
5 670, 808 P.2d 955. Furthermore, the standard for whether Rule 1-011 sanctions are
6 appropriate is subjective. Landess, 2008-NMCA-159, ¶ 16. “Any violation depends
7 on what the attorney or litigant knew and believed at the relevant time and involves
8 the question of whether the litigant or attorney was aware that a particular pleading
9 should not have been brought.” Id. (internal quotation marks and citation omitted).
10 Additionally, “[s]anctions should be entered against an attorney . . . when a pleading
11 or other paper is unsupported by existing law.” Id. (internal quotation marks and
12 citation omitted).
13 {39} In addition to Rule 1-011, “[c]ourts have the inherent power, independent of
14 statute or rule, to award attorney fees to vindicate their judicial authority and
15 compensate the prevailing party for expenses incurred as a result of frivolous or
16 vexatious litigation.” Id. ¶ 19 (alteration, internal quotation marks, and citation
17 omitted). “It has long been recognized that a court must be able to command the
18 obedience of litigants and their attorneys if it is to perform its judicial functions. Such
19 powers inhere in judicial authority and exist independent of statute[.]” State ex rel.
23 1 N.M. Highway & Transp. Dep’t v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896
2 P.2d 1148.
3 {40} Petitioners first argue that there was a good faith basis for their allegation of
4 tortious interference with an expected inheritance. In our deferential review of a
5 district court’s imposition of Rule 1-011 sanctions, we affirm a district court when the
6 “sanctions are based on findings of facts that are supported by evidence in the record.”
7 Benavidez v. Benavidez, 2006-NMCA-138, ¶ 15, 140 N.M. 637, 145 P.3d 117. The
8 elements of the tort are “(1) an expectancy; (2) a reasonable certainty that the
9 expectancy would have been realized but for the interference; (3) intentional
10 interference with the expectancy; (4) tortious conduct involved with the interference,
11 such as fraud, duress, or undue influence; and (5) damages.” Wilson, 2002-NMCA-
12 105, ¶ 11. Here, the district court’s numerous findings of fact were supported by
13 evidence in the record. The district court specifically found that Petitioners’ attorney
14 “was unaware of any evidence to support any of the elements of tortious interference
15 with an expectancy of inheritance.” The district court found that Petitioners did not
16 have an expectancy as both knew they “had no reason to believe that . . . Sammis
17 would leave [them] anything from her estate.” The court additionally found that
18 Petitioners “had no facts supporting a claim to any damages” caused by Respondents.
19 {41} Having reviewed the full record to “determine whether the [district] court’s
20 decision [was] without logic or reason, or clearly unable to be defended[,]” we
24 1 conclude that the district court’s finding that Petitioners did not have facts to advance
2 their tort claim was supported by substantial evidence. See Enriquez, 1998-NMCA-
3 157, ¶ 20. For instance, the record reveals that Blumenshine conveyed her interest in
4 the Chase Ranch to Sammis in 1960. During her deposition, Blumenshine admitted
5 she never had a discussion with Sammis about whether Sammis intended to leave her
6 any property. Blumenshine also admitted that she never expected the Chase Ranch to
7 be left to her. As for Pearson, she similarly acknowledged during her deposition that
8 she never discussed any property with Sammis. Therefore, the district court’s decision
9 was reasonable based on substantial evidence in the record indicating Petitioners did
10 not have an expectancy in the Chase Ranch. See id. (explaining that under the abuse
11 of discretion standard the appellate court determines “whether the court’s findings and
12 decision are supported by substantial evidence”).
13 {42} Moreover, evidence before the district court demonstrated that Petitioners knew
14 that the allegations of tortious interference with an expected inheritance were not
15 supported by facts at the time the complaint was filed. See Landess, 2008-NMCA-159,
16 ¶ 16 (discussing the subjective standard by which Rule 1-011 sanctions are judged).
17 In fact, counsel for Petitioners admitted that any claim to the Chase Ranch was merely
18 brought to ensure that, when Blumenshine prevailed on the conversion claim, there
19 would be something she could recover in the event Respondents sold all the property.
20 Counsel’s admission reveals that there was not good grounds to support Petitioners’
25 1 complaint, but rather, that the complaint was intended to impede the probate of
2 Sammis’ will. See Rule 1-011(A). Further, counsel’s statement suggests there was a
3 deliberate and “willful violation” of Rule 1-011(A). See id. (“For a willful violation
4 of this rule an attorney or party may be subjected to appropriate disciplinary or other
5 action.”).
6 {43} Turning next to the undue influence claim, we conclude that the district court’s
7 findings of fact were supported by substantial evidence in the record and justified the
8 award of sanctions. See Benavidez, 2006-NMCA-138, ¶ 15. The court specifically
9 found that Petitioners put forth no facts supporting the undue influence claim.
10 Throughout the proceedings, however, Petitioners have argued they made a “good
11 faith effort to modify the law.” In their response to the motion for sanctions, for
12 example, Petitioners asserted, “Without an established set of checks and balances,
13 trustees may become corrupt, dishonest and self-dealing in their handling of the trust
14 estate.” And in their brief to this Court, Petitioners state that “[l]awyers who prepare
15 estate document[s] should be prohibited from being named as a personal
16 representative, trustee or director.” Petitioners also argue that lawyers “should not be
17 allowed, as a matter of public policy, to perpetuate [their] job security by insinuating
18 themselves into positions of control over their clients[’] wills, trust or foundations.”
19 Despite Petitioners’ arguments, however, the record is devoid of any evidence
20 indicating that Kastler engaged in self-dealing or abused his position as an attorney.
26 1 Parties may not make unfounded accusations purely to challenge perceived injustices
2 in the law. See generally Landess, 2008-NMCA-159, ¶ 17 (“[P]atently meritless
3 actions abuse the judicial process and impose enormous burdens on the courts and the
4 parties who must defend such claims.”). “The mere assertions and arguments of
5 counsel are not evidence.” Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256
6 P.3d 987 (internal quotation marks and citation omitted). Therefore, we conclude that
7 the district court did not abuse its discretion in rejecting Petitioners’ contention that
8 their undue influence claim was grounded in a good faith effort to change the law.
9 {44} Additionally, the district court reasonably found that there were no facts
10 suggestive of undue influence in the record. See generally Bernier v. Bernier ex rel.
11 Bernier, 2013-NMCA-074, ¶ 21, 305 P.3d 978 (“Upon the imposition of Rule 1-011
12 sanctions, the district court must enter findings of fact that are supported by evidence
13 in the record that indicate the basis for the sanctions.”). Our Supreme Court has
14 defined “undue influence” as “influence, improperly exerted, which acts to the injury
15 of the person swayed by it or to the injury of those persons whom he or she would
16 have benefited.” Chapman v. Varela, 2009-NMSC-041, ¶ 6, 146 N.M. 680, 213 P.3d
17 1109 (alteration, internal quotation marks, and citation omitted). A presumption of
18 undue influence arises if there is a confidential or fiduciary relationship with the donor
19 coupled with suspicious circumstances. Id. ¶ 7. Suspicious circumstances include, but
20 are not limited to:
27 1 (1) old age and weakened physical or mental condition of testator; (2) 2 lack of consideration for the bequest; (3) unnatural or unjust disposition 3 of the property; (4) participation of beneficiary in procuring the gift; (5) 4 domination or control over the donor by a beneficiary; and (6) secrecy, 5 concealment, or failure to disclose the gift by a beneficiary.
6 Id. (internal quotation marks and citation omitted).
7 {45} In its findings of fact, the district court impliedly found that there was an
8 absence of suspicious circumstances. For instance, the district court found that
9 Petitioners “recognized . . . Sammis was aware of the extent and character of the
10 property she owned and of the natural objects of her bounty in 2004” when the final
11 will and the Trust were executed. The district court also found that Sammis “was
12 aware of who her family and friends were and was aware of what it meant to make a
13 will in 2004.” It found that Petitioners “knew . . . Sammis was a headstrong person all
14 of her life and was strong willed in 2004.” The district court’s findings of fact are
15 supported by both Petitioners’ depositions, and Petitioners do not claim that such facts
16 are inaccurate. We therefore agree with the district court that Petitioners “had no facts
17 supporting a claim [Respondents] exerted undue influence upon . . . Sammis in
18 connection with the creation and execution of her 2004 will and [T]rust.”
19 {46} Because we reject Petitioners’ argument that the allegation of undue influence
20 was based on a good faith effort to modify the law, and we conclude that the district
21 court reasonably found there were no facts suggestive of undue influence, we hold that
28 1 the district court did not abuse its discretion in awarding sanctions against Petitioners
2 for advancing their undue influence claim.
3 {47} We next address Petitioners’ argument that Respondents violated a fiduciary
4 duty to Petitioners because they were co-personal representatives of Sammis’ estate
5 and refused to give Blumenshine the silver pursuant to Sammis’ handwritten notes.
6 We understand Petitioners’ argument to be that this fiduciary duty justified the
7 conversion allegations in the complaint because Respondents “had a duty to give
8 certain items to . . . Blumenshine.” According to the district court’s findings of fact,
9 however, Petitioners did not advance any facts demonstrating that Respondents owed
10 Petitioners a fiduciary duty and found that Petitioners’ allegations were “completely
11 groundless.”
12 {48} Relying on In re Estate of Gardner, 1992-NMCA-122, ¶¶ 32-33, 114 N.M. 793,
13 845 P.2d 1247, Petitioners argue that Respondents “had a fiduciary duty to them in
14 connection with [Sammis’] testamentary dispositions.” In Gardner, the personal
15 representative had fraudulently misrepresented the will’s terms to the devisees. Id.
16 ¶¶ 32-36. This Court held that the district court did not abuse its discretion in finding
17 the personal representative breached her fiduciary duty to petitioners. Id. ¶ 33. This
18 Court additionally held that a “personal representative . . . [has] a duty to distribute the
19 estate in accordance with the will and New Mexico law ‘consistent with the best
20 interests of the estate’ and ‘for the best interest of successors to the estate.’ ” Id. ¶ 32
29 1 (quoting NMSA 1978, § 45-3-703(A) (2011)). Unlike in Gardner, however, there is
2 no allegation in the present case that Respondents fraudulently represented the terms
3 of Sammis’ will. Rather, the closest contention to one of fraudulent misrepresentation
4 is that the mistaken designation of Pearson as a devisee in the application for informal
5 probate somehow gave her standing. Moreover, there is not substantial evidence that
6 Respondents did not distribute the estate in accordance with Sammis’ final will and
7 New Mexico law, although Petitioners allege that Respondents did not deliver all the
8 silver to Blumenshine.4 See In re Estate of Gardner, 1992-NMCA-122, ¶ 32.
9 {49} Furthermore, there was no evidence in the record of a confidential or fiduciary
10 relationship between Respondents and Petitioners. See Swallows v. Laney, 1984-
11 NMSC-112, ¶ 10, 102 N.M. 81, 691 P.2d 874 (“A fiduciary relationship exists in all
12 cases where there has been a special confidence reposed in one who in equity and
13 good conscience is bound to act in good faith and with due regard to the interests of
14 one reposing the confidence.” (internal quotation marks and citation omitted)); see
15 also In re Keeney, 1995-NMCA-102, ¶ 16, 121 N.M. 58, 908 P.2d 751 (“A
16 confidential or fiduciary relationship exists when one person places trust and
4 17 We note that Petitioners’ complaint did not allege that Respondents failed to 18 properly distribute the silver. Instead, the conversion claim involved the allegation 19 that Petitioners were entitled to 50 percent of the personal property at the Chase 20 Ranch. Consequently, the silver was not the subject of this appeal.
30 1 confidence in the integrity and fidelity of another.”). In fact, Pearson testified during
2 her deposition that the first time she met Kastler was at Sammis’ funeral, and she
3 believed she had seen Pease only once before. She never spoke to Kastler after
4 Sammis’ death. Likewise, Blumenshine testified during her deposition that the first
5 time she interacted with Kastler was at Sammis’ funeral. Blumenshine met Pease once
6 before Sammis’ funeral but did not speak with him. A confidential and fiduciary
7 relationship cannot be said to exist under such circumstances. See Swallows, 1984-
8 NMSC-112, ¶ 10; In re Keeney, 1995-NMCA-102, ¶ 16. Because Petitioners do not
9 allege that Respondents engaged in fraudulent misrepresentation or that Petitioners
10 placed their confidence in Respondents, the district court’s finding that Petitioners did
11 not have a fiduciary relationship with Respondents is reasonable and supported by
12 substantial evidence in the record. See Enriquez, 1998-NMCA-157, ¶¶ 20-21.
13 {50} Finally, we consider whether the Rule 1-011 sanctions are appropriate in light
14 of “the nature of the conduct and level of culpability” found by the district court, and
15 whether the district court’s “exploration of alternatives to the sanctions” was
16 sufficient. See id. The district court found that numerous “allegations in [Petitioners’]
17 verified complaint [were] simply mean and scandalous and appear[ed] calculated to
18 inflict embarrassment and harm to the reputations” of Respondents. Petitioners do not
19 challenge this statement, and we do not find error with the court’s findings. In
20 addition, we observe that many of the allegations in Petitioners’ complaint were not
31 1 only “mean and scandalous,” but were also unrelated to Petitioners’ legal claims. We
2 do not find it necessary to run down the whole litany of these accusations but will note
3 a few as examples. Petitioners alleged that Kastler pushed to have Sammis cremated
4 “because he wanted to avoid an autopsy of [Sammis] to determine the cause of death”;
5 Pease knew that Sammis and Gobble were partners and that somehow this impacted
6 his interactions with Sammis because he disapproved of homosexuality; Respondents
7 severely mistreated Gobble after Sammis’ death, including by doing “what they could
8 to get [Gobble] to die sooner rather than later”; and Respondents had Sammis’ dog
9 killed. Given the wholly unsupported nature of these accusations, we conclude that the
10 district court did not abuse its discretion in imposing Rule 1-011 sanctions. See Rule
11 1-011(A) (stating that sanctions are appropriate if “scandalous or indecent matter is
12 inserted”).
13 {51} In addition, the district court did not abuse its discretion in granting Rule 1-011
14 sanctions because, as detailed in our analysis above, evidence in the record supports
15 the district court’s finding that Petitioners and their attorney engaged in willful
16 violations of Rule 1-011. See Rivera, 1991-NMSC-030, ¶ 13 (“A court may exercise
17 its discretion and impose sanctions for a willful violation of the rule when it finds, for
18 example, that a pleading or other paper signed by an attorney is not well grounded in
19 fact, is not warranted by existing law or a reasonable argument for its extension, or is
20 interposed for an improper purpose.”).
32 1 {52} Lastly, Petitioners do not allege that the district court’s exploration of
2 alternatives to sanctions was insufficient; therefore, we will assume such exploration
3 was sufficient. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100,
4 ¶ 8, 111 N.M. 6, 800 P.2d 1063 (“The presumption upon review favors the correctness
5 of the trial court’s actions.”); see also Enriquez,1998-NMCA-157, ¶ 21 (“[P]art of our
6 calculus includes a review of the trial court’s exploration of alternatives to the
7 sanctions ultimately imposed. This latter inquiry is not strictly required . . . but the
8 subject recommends itself as a generally useful exercise both on appeal and for the
9 trier in the first instance.”). We again observe that an appellate court should not reach
10 issues that the parties have failed to raise in their briefs. See In re Doe, 1982-NMSC-
11 099, ¶¶ 3, 5, 98 N.M. 540, 650 P.2d 824. Nevertheless, we note that the district court
12 had the independent judicial authority to impose sanctions in light of this frivolous
13 and vexatious litigation. See Landess, 2008-NMCA-159, ¶ 19. Accordingly, we hold
14 that the district court did not abuse its discretion in imposing Rule 1-011 sanctions.
15 CONCLUSION
16 {53} We affirm the dismissal of Pearson, the grant of summary judgment in favor of
17 Respondents on Petitioners’ conversion claim, and the imposition of Rule 1-011
18 sanctions against Petitioners and their counsel. We remand to the district court to
19 assess the amount of sanctions.
20 {54} IT IS SO ORDERED.
33 1 __________________________________ 2 LINDA M. VANZI, Judge
3 WE CONCUR:
4 _________________________________ 5 J. MILES HANISEE, Judge
6 _________________________________ 7 STEPHEN G. FRENCH, Judge