Estate of D Jaramillo

• Court: New Mexico Court of Appeals
• Decided: March 30, 2009
• Docket: 29,209
• Status: Unpublished

Opinion

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

2 PHELISHA GUTIERREZ and 3 JOSLYN BUSTAMANTE,

4 Petitioners-Appellees,

5 v. NO. 29,209

6 ANDREW JARAMILLO,

7 Respondent-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Linda M. Vanzi, District Judge

10 Thomas Smidt, II 11 Albuquerque, NM

12 for Appellees

13 Kelley Law Offices 14 Cody K. Kelley 15 Charlotte L. Itoh 16 Albuquerque, NM

17 for Appellant

18 MEMORANDUM OPINION

19 KENNEDY, Judge.

20 Respondent appeals from the district court’s order removing and replacing him

21 as personal representative and trustee in a probate matter. We issued a calendar notice

22 proposing to summarily dismiss the appeal as premature. Respondent filed a timely 1 memorandum in opposition and Petitioners filed a timely memorandum in support,

2 which we have duly considered. Unpersuaded by Respondent, we dismiss.

3 DISCUSSION

4 We proposed to summarily dismiss Respondent’s appeal because it does not

5 appear that Respondent is appealing from a final order. The New Mexico Uniform

6 Probate Code provides that “each proceeding before the district court is independent

7 of any other proceeding involving the same estate.” NMSA 1978, § 45-3-107 (1975).

8 Our cases have interpreted that provision to mean that the claims and issues raised in

9 a particular petition frame the scope of the proceeding. In re Estate of Newalla, 114

10 N.M. 290, 294, 837 P.2d 1373, 1377 (Ct. App. 1992). Thus, “each petition in a

11 probate file should ordinarily be considered an independent proceeding, so that an

12 order disposing of the matters raised in the petition should be considered a final,

13 appealable order.” Id.

14 In this case, we were concerned in the calendar notice that the order removing

15 and replacing Respondent as personal representative and trustee does not resolve all

16 matters raised in the petition. The petition seeking Respondent’s removal and

17 replacement also raises a claim for breach of fiduciary duty and asks for damages. [RP

18 100-101] The district court’s order does not resolve this claim and does not certify the

19 removal issue for immediate appeal pursuant to Rule 1-054(B)(1) NMRA. [RP 214]

2 1 In our calendar notice, we noted that there is no indication in the record or docketing

2 statement that the breach of fiduciary duty claim was dismissed. See Gates v. N.M.

3 Taxation & Revenue Dep’t, 2008-NMCA-023, ¶ 15, 143 N.M. 446, 176 P.3d 1178

4 (construing a partial summary judgment as a final order giving the appellate court

5 jurisdiction after the parties stipulated to dismiss individual claims pursuant to Rule

6 1-015(A) NMRA). In response, both parties acknowledge that the breach of fiduciary

7 duty claim has not been dismissed and is still pending. [MIO 3; MIS 2-3] Thus, the

8 order removing Respondent and appointing a new personal representative and trustee

9 does not dispose of all matters raised in the petition.

10 Although the breach of fiduciary duty claim has not been resolved, Respondent

11 contends that the claim should not have been included in the petition. [MIO 3]

12 Respondent asserts that a cause of action for breach of fiduciary duty did not arise

13 until the district court removed Respondent as personal representative, relying on

14 Bowman v. Butler, 98 N.M. 357, 648 P.2d 815 (Ct. App. 1982). [Id.] We do not read

15 Bowman as supporting Respondent’s position. Rather, we agree with Petitioners [MIS

16 2 n. 1] that Bowman merely holds that under the facts of that particular case the cause

17 of action for breach of fiduciary did not arise until the death of the husband, who was

18 the personal representative of the wife’s estate, and as a result the claim against the

19 husband’s estate was not barred as untimely under the Probate Code. Id. at 360-62,

3 1 648 P.2d at 818-20. In any event, Respondent’s arguments concerning Bowman

2 should have been made to the district court. If Petitioners’ claim was improper,

3 Respondent should have sought its dismissal and then would be appealing from a final

4 order. In the alternative, Respondent could have requested the district court to certify

5 the order for interlocutory appeal. See Rule 1-054(B)(1); NMSA 1978, § 45-1-308

6 (1975) (providing that interlocutory appeals in probate matters are governed by the

7 rules of civil procedure).

8 Respondent also argues that the claim for breach of fiduciary duty is

9 independent of the claim seeking his removal and replacement and thus should not

10 affect the finality of the order from which he is appealing. [MIO 3] We are more

11 persuaded by Petitioners’ response that Respondent’s removal as personal

12 representative and trustee does not independently determine the finality of an order

13 when other issues raised in the petition are still pending. [MIO 4] See Newalla, 114

14 N.M. at 294-95, 837 P.2d 1377-78 (recognizing that when a petition combines a

15 request for formal probate and a request for an order appointing a personal

16 representative the order ordinarily is final and appealable only when both matters have

17 been decided). Because the issue of Respondent’s removal and replacement was not

18 the only issue raised in the petition, and not all issues raised in the petition were

19 resolved, we hold that this appeal is premature and should be dismissed.

4 1 CONCLUSION

2 For these reasons, and those in the calendar notice, we dismiss this appeal.

3 IT IS SO ORDERED.

4 ___________________________________ 5 RODERICK T. KENNEDY, Judge

6 WE CONCUR:

7 ___________________________ 8 JONATHAN B. SUTIN, Judge

9 ___________________________ 10 ROBERT E. ROBLES, Judge