Martinez v. Martinez Trust

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 GEORGE MARTINEZ, 3 JESSE MARTINEZ, and 4 VELMA LOPEZ,

5 Plaintiffs-Appellants, 6 v. No. A-1-CA-36009

7 THE PRECILIANA MARTINEZ 8 REVOCABLE TRUST, THE MICHAEL F. 9 MARTINEZ TRUST, THE MICHAEL MARTINEZ 10 AND MARY SHACKLEFORD-MARTINEZ 11 TRUST, MICHAEL F. MARTINEZ, individually 12 and as Trustee for the Damacio Martinez Trust, 13 as Trustee for the Preciliana Martinez Revocable 14 Trust, as Trustee for the Michael F. Martinez Trust, 15 and as Co-Trustee for the Michael Martinez and Mary 16 Shackleford-Martinez Trust, and MARY 17 SHACKLEFORD-MARTINEZ, individually and 18 as Co-Trustee for the Michael Martinez and Mary 19 Shackleford-Martinez Trust,

20 Defendants-Appellees.

21 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 22 Sarah C. Backus, District Judge

23 Dory-Garduño Law Firm, LLC 24 James E. Dory 25 Rio Rancho, NM

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1 Dwight E. Thompson Law Office, P.C. 2 Dwight Thompson 3 Denver, CO

4 for Appellants

5 Jane B. Yohalem 6 Santa Fe, NM

7 for Appellees 8 MEMORANDUM OPINION 9 BOHNHOFF, Judge. 10 {1} This case involves a dispute among siblings regarding transfers of real 11 property that their mother had owned. Following a bench trial, the district court 12 quieted title to the property in favor of Defendants Michael F. Martinez (Michael) 13 and Mary Shackelford-Martinez as Co-Trustees of the Michael Martinez and Mary 14 Shackelford-Martinez Trust, awarded Michael his attorney’s fees, and otherwise 15 dismissed the claims of Plaintiffs George Martinez, Jesse Martinez, and Velma 16 Martinez (collectively, Plaintiffs). On appeal, Plaintiffs raise four issues: (1) a trust 17 created in the name of the parties’ mother, Preciliana Martinez, was not valid; (2) 18 the deed transferring the real property in question to their mother’s trust was not 19 valid; (3) Preciliana’s will was not valid; and (4) the district court abused its 20 discretion in awarding attorney’s fees to Michael. We affirm. 21 BACKGROUND

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1 A. Factual Background 2 {2} The district court’s unchallenged findings of fact and the evidence admitted 3 during the trial establish, in relevant part, the following: 4 {3} Preciliana and Damacio Martinez were married on October 14, 1946. They 5 had four children: Michael Martinez, George Martinez, Velma Martinez, and Jesse 6 Martinez. Sometime in late 1990 Preciliana and Damacio met with attorney Philip 7 S. DeCaro, who thereafter drafted their estate planning documents, including 8 power of attorney instruments, wills, and trusts. Gale Gatto, DeCaro’s wife and 9 legal assistant, performed the word processing to prepare the documents. 10 {4} On October 1, 1990, Preciliana executed her power of attorney, giving 11 Damacio authority to “act in every[]thing whatsoever require[d] to be done in my 12 name, for all intent[s] and purposes.” Preciliana signed the document with a mark; 13 Consuelo Velasquez, Preciliana’s sister-in-law, witnessed and Aurora Montoya, a 14 longtime friend of Preciliana’s, notarized her signature. 15 {5} On February 11, 1991, Preciliana and Damacio had Montoya prepare a 16 warranty deed to convey 18.2738 acres of land, including a homestead, from 17 Preciliana to the Preciliana Martinez Revocable Trust (the Preciliana Trust). 18 Damacio signed the deed that day as attorney-in-fact for Preciliana. Then, on 19 February 13, 1991, Damacio signed an instrument purporting to create the 20 Preciliana Trust: Damacio signed for Preciliana as the settlor and co-trustee by

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1 hand-printing her name, and then signed by hand-printing his own name as co- 2 trustee with a notation that he also was acting as Preciliana’s attorney-in-fact. 3 These signatures were notarized. 4 {6} Preciliana died on March 30, 1991. On May 28, 1991, Damacio, as trustee of 5 the Preciliana Trust, conveyed a 3.6403 acre parcel out of the 18.2738 acre 6 property to Gray Mercer and Judith Hoveter. Title to this parcel was insured by 7 Stewart Title with Tierras de Taos Title Company acting as its authorized agent. 8 {7} On November 9, 1994, Damacio executed his will and a trust instrument (the 9 Damacio Trust) in which he designated himself as the primary trustee and the 10 primary beneficiary, and Michael as the successor trustee. DeCaro witnessed and 11 Gatto notarized Damacio’s signatures on both documents. The same day, Damacio, 12 as trustee of the Preciliana Trust, conveyed by deed to the Damacio Trust all of the 13 property that remained in the Preciliana Trust; Gatto notarized Damacio’s 14 signature on the deed. 15 {8} On December 8, 2000, Damacio transferred from the Damacio Trust 16 portions of what remained of the 18.2738 acre tract to Michael as trustee of the 17 Michael F. Martinez Trust; on December 11, 2006, Damacio transferred the 18 remaining acres and the family homestead to Michael as trustee of the Michael F. 19 Martinez Trust, reserving for himself a lease for life. On November 12, 2009, 20 Damacio resigned as trustee of the Damacio Trust and Michael accepted the

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1 responsibilities of trustee. Damacio died in 2013 and shortly thereafter Michael 2 distributed most of the cash assets in the Damacio Trust equally among the three 3 siblings and himself. 4 B. Procedural History 5 {9} Plaintiffs subsequently filed their complaint. The complaint focused mainly 6 on claims of fraud, undue influence, and breach of fiduciary duty by Michael in his 7 individual capacity and as the successor trustee of the Damacio Trust. 8 {10} During the trial, the district court admitted two versions of the Preciliana 9 Trust instrument, Exhibits D and GG-3, into evidence. Gatto testified that Exhibit 10 D was a complete but unsigned copy of the trust instrument that she found in her 11 husband’s office files. Gatto testified that it was her and her husband’s practice to 12 keep only unexecuted copies of trust instruments and allow the client to keep the 13 originals. She also testified that Exhibit GG-3 looked the same as Exhibit D except 14 that the pagination seemed to be slightly different. She suggested the pagination 15 might be different because the secretary had run out of copies, minor changes were 16 made, or the format had been changed. She further testified that the font size was 17 different. 18 {11} Exhibit GG-3 was identified as a partial (it is missing pages) but signed copy 19 of the instrument. Evelyn Jean Trujillo, who co-owned the title company that 20 handled the May 1991 conveyance of the 3.6403 acre parcel of trust property to

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1 Mercer and Hoveter, testified that the title company received and retained Exhibit 2 GG-3. Exhibit GG-3 included the portions of the trust instrument that established 3 that Damacio was the trustee and had authority to transfer trust property. Trujillo 4 testified that sometimes the title company required only certain portions of the trust 5 documents, and that it was possible that Damacio provided only those portions to 6 her. The court ultimately found that Exhibit GG-3 was “[a] copy of the Preciliana 7 Martinez Revocable Trust signed by Damacio Martinez for himself and for 8 Preciliana Martinez” and that the title company “required and reviewed an 9 executed copy of the the Preciliana Martinez Revocable Trust evidencing that 10 Damacio Martinez was authorized to act as Trustee of the Trust.” 11 {12} Following the trial, the district court concluded that Plaintiffs had failed to 12 prove their allegations of fraud, undue influence, and breach of fiduciary duty by 13 Michael. Plaintiffs do not challenge these conclusions on appeal. The district court 14 also upheld the validity of both the Preciliana Trust and the Damacio Trust. The 15 court concluded that the power of attorney executed by Preciliana appointing 16 Damacio as her attorney-in-fact was valid and that the warranty deed executed by 17 Damacio validly transferred property from the Preciliana Trust to the Damacio 18 Trust. The district court additionally ruled that Michael was authorized to 19 reimburse himself for his attorney’s fees out of the remaining cash in the Damacio 20 Trust for attorney’s fees, but that no additional attorney’s fees would be awarded.

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1 {13} Michael moved for reconsideration of the attorney’s fee ruling, requesting an 2 additional award to cover the entire cost of defending the lawsuit. He argued that, 3 having prevailed on all claims, it was unjust and inequitable for him to be forced to 4 spend his personal funds to defend the trust and the trust property. The court 5 agreed to reconsider and ordered Michael to file a fee affidavit. Michael filed an 6 affidavit that showed in detail the work performed throughout the case and the 7 costs incurred. At a subsequent hearing, the district court ruled that fees properly 8 should be awarded for defending challenges to the trust and that the majority of the 9 issues in the case were about the trust, but that it would discount Michael’s fees by 10 15 percent to account for the fact that some of Plaintiffs’ claims were made against 11 Michael in his personal capacity. The district court accordingly entered a final 12 judgment, awarding an additional amount of $34,420.26 in attorney’s fees and 13 $4,185.69 in costs to Michael as the prevailing party. 14 DISCUSSION

15 A. The District Court Did Not Err in Determining That the Preciliana 16 Trust Was a Valid Trust

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1 {14} On appeal, Plaintiffs do not challenge the district court’s admission of 2 Exhibits GG-3 and D into evidence. Plaintiffs nevertheless challenge the district 3 court’s Findings of Fact 21 and 25 as well as Conclusion of Law 5:1

4 21. On February 13, 1991, Damacio Martinez executed the 5 Preciliana Martinez Revocable Trust for himself and for Preciliana 6 Martinez pursuant to the Power of Attorney granted to him by her. A 7 copy of the Preciliana Martinez Revocable Trust signed by Damacio 8 Martinez for himself and for Preciliana Martinez was admitted into 9 evidence as Exhibit [GG-3].

10 ....

11 25. As part of the process of insuring title in the Preciliana 12 Martinez Revocable Trust and insuring the conveyance into the 13 Grantees, Tierras de Taos Title Company, Inc., required and reviewed 14 an executed copy of the Preciliana Martinez Revocable Trust 15 evidencing that Damacio Martinez was authorized to act as Trustee of 16 the Trust.

17 ....

18 5. The Preciliana Martinez Revocable Trust was executed by 19 Damacio Martinez for himself and for Preciliana Martinez pursuant to 20 the Power of Attorney granted him by Preciliana Martinez and validly 21 created the Preciliana Martinez Revocable Trust on February 13, 22 1991.

23 Plaintiffs do not challenge the testimony of Gatto and Trujillo concerning the 24 circumstances surrounding the creation of Exhibits D and GG-3, respectively, nor 25 do they assert that the district court could not accept that testimony as truthful and

1

Plaintiffs do not challenge the district court’s Finding of Fact 9.d, which identifies the February 1991 Preciliana Trust as “[a]n unexecuted copy of this document [that] was admitted into evidence as Exhibit ‘D’.”

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1 accurate. Plaintiffs instead limit their argument to the following: (1) Exhibit GG-3, 2 the signed but incomplete version of the Preciliana Trust instrument, does not 3 identify any beneficiaries or trustees and therefore does not establish a valid trust; 4 (2) Exhibit GG-3 was not properly executed, and for that additional reason does 5 not establish a valid trust; and (3) Exhibit D, the complete version of the 6 instrument, does not establish a valid trust because it was not executed at all and 7 also is different from Exhibit GG-3. 8 {15} We will uphold the district court’s findings of fact “unless they are 9 demonstrated to be clearly erroneous or not supported by substantial evidence.” 10 Disabled Am. Veterans v. Lakeside Veterans Club, Inc., 2011-NMCA-099, ¶ 19, 11 150 N.M. 569, 263 P.3d 911 (internal quotation marks and citation omitted).

12 To the extent that [appellant] contends that there are errors of law in 13 the trial court’s conclusions or in those findings that function as 14 conclusions, we apply a de novo standard of review. When the facts 15 are not in dispute, but the parties disagree on the legal conclusion to 16 be drawn from those facts, we review the issues de novo.

17 Jones v. Schoellkopf, 2005-NMCA-124, ¶ 8, 138 N.M. 477, 122 P.3d 844 (citation 18 omitted). 19 {16} NMSA 1978, Section 46A-4-402(A) (2003) of the New Mexico Uniform 20 Trust Code, NMSA 1978, Sections 46A-1-101 to -11-1105 (2003, as amended 21 through 2018) (the Code), provides that:

22 A trust is created only if: 23 (1) the settlor has capacity to create a trust;

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1 (2) the settlor indicates an intention to create the trust; 2 (3) the trust has a definite beneficiary . . .; 3 (4) the trustee has duties to perform; and 4 (5) the same person is not the sole trustee and sole beneficiary.

5 However, the Code does not mandate that these predicate elements of the trust be 6 set forth in one signed instrument. On the contrary, Section 46A-4-407 provides 7 that, “[e]xcept as required by a statute other than the Uniform Trust Code . . ., a 8 trust need not be evidenced by a trust instrument, but the creation of an oral trust 9 and its terms may be established only by clear and convincing evidence.” 10 (Emphasis added.) Further, Section 46A-1-103, which provides definitions 11 applicable to the Code, defines “trust instrument” and “terms of trust” in a manner 12 that makes apparent that a trust and its terms may be proven without a signed 13 instrument. A “‘trust instrument’ means an instrument executed by the settlor that 14 contains terms of the trust[.]” Section 46A-1-103(S). “Terms of a trust,” however, 15 “means the manifestation of the settlor’s intent regarding a trust’s provisions as 16 expressed in the trust instrument or as may be established by other evidence that 17 would be admissible in a judicial proceeding[.]” Section 46A-1-103(R) (emphasis 18 added). We read Sections 46A-4-407, 46A-1-103(R), and 46A-1-103(S) together 19 to permit a trust to be established by evidence other than one executed writing that 20 contains the entire terms of the trust.2

2

In reply, Plaintiffs also argue—based on statute of fraud principles—that it was impermissible for the district court to rely on parole evidence because the

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1 {17} Plaintiffs view Exhibits D and GG-3 each in isolation: they argue that 2 Exhibit D fails to prove a valid trust because it is unsigned, and Exhibit GG-3 is 3 deficient because it is incomplete. But Section 46A-1-103(R) allowed the district 4 court to consider them together, as copies (albeit different) of the same instrument, 5 along with the testimony regarding the events that led to their creation and 6 retention. Thus, we review the evidence in its entirety to determine whether the 7 Preciliana Trust is valid. We need not consider whether, for example, Exhibit D 8 alone would establish a valid trust in the absence of Exhibit GG-3, or vice versa. 9 {18} We note first that Exhibit D addresses all of the predicate elements set forth 10 in Section 46A-4-402(A)(3), (4), and (5), including identifying the beneficiaries, 11 for creating a trust.3 Second, because it was signed, Exhibit GG-3 amounted to 12 evidence that Damacio accepted, as Preciliana’s attorney-in-fact, the terms of the 13 trust as articulated in Exhibit D and intended to create the trust. See § 46A-4- 14 402(A)(2). Third, Section 46A-1-103(R) permitted the district court to rely on the 15 testimony of Gatto and Trujillo regarding the circumstances surrounding the

court did not make a finding that the original executed writing that created the Preciliana Trust was lost or destroyed. Plaintiffs have failed to show that this issue was raised before the district court, and, as such, we decline to consider it. See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“Absent . . . citation to the record [where the party invoked the district court’s ruling] or any obvious preservation, we will not consider the issue.”).

3

Plaintiffs do not challenge on appeal Damacio’s capacity or intent to create a trust. See Section 46A-4-402(A)(1), (2).

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1 creation of Exhibits D and GG-3 to buttress its conclusion regarding the validity of 2 the trust. Gatto explained how her husband drafted the full Preciliana Trust 3 agreement and kept a copy of the unexecuted agreement—Exhibit D—in his 4 office. She further testified that it was her husband’s normal practice to let his 5 clients retain the executed, original versions. Gatto also stated that the difference in 6 page length between Exhibit D, 57 pages, and the pagination shown in the table of 7 contents contained in Exhibit GG-3, 53 pages, was likely because of a difference in 8 font size and formatting. Trujillo explained that Damacio provided her title 9 company with Exhibit GG-3, a portion of the executed Preciliana Trust. She stated 10 that the reason she had only a portion of the trust could have been because that was 11 all Damacio gave her. 12 {19} Plaintiffs point to certain differences between Exhibits D and GG-3, 13 apparently to argue that the two documents cannot be considered jointly as 14 evidence of the terms of the Preciliana Trust. They argue that the text on Exhibit D 15 has a different font and different pagination than appears on the eleven pages of 16 Exhibit GG-3. They also point out that on five of the pages of Exhibit GG-3, the 17 footer is misspelled: “Revocable Turst of Preciliana Martinez” (emphasis added). 18 Plaintiffs do not, however, direct our attention to any substantive differences 19 between the two exhibits. These irregularities go only to the weight the district 20 court gave to the documents, a judgment call that we will not second-guess. See,

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1 e.g., Murken v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-080, ¶ 21, 140 N.M. 2 68, 139 P.3d 864 (distinguishing between arguments challenging the authenticity 3 versus the accuracy of a document, and applying abuse of discretion standard to 4 district court’s decision regarding weight to be afforded to the document). 5 {20} Plaintiffs also argue that Exhibit GG-3 was not “executed” by Damacio, 6 because in the district court’s other findings Damacio’s signature was identified as 7 a cursive signature whereas Damacio signed the Preciliana Trust, individually and 8 as Preciliana’s attorney-in-fact, by hand-printing his name. While Plaintiffs had 9 objected (unsuccessfully) to Exhibit GG-3 at trial for other reasons, they did not 10 make the argument to the district court that they now raise on appeal, i.e., that a 11 signature must be in cursive and must be the individual’s usual signature in order 12 to validly execute a document. Because it was not raised below, we will not 13 address it for the first time on appeal. See Robey v. Parnell, 2017-NMCA-038, ¶ 14 16, 392 P.3d 642 (stating that “[t]o preserve an issue for review on appeal, it must 15 appear that an appellant fairly invoked a ruling of the trial court on the same 16 grounds argued in the appellate court (internal quotation marks and citation 17 omitted)). 18 {21} For these reasons, we conclude that the district court did not err in adopting 19 Findings of Fact 21 and 25 and Conclusion of Law 5, and more generally in

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1 determining that the Preciliana Trust was valid, notwithstanding that Exhibit D was 2 not executed and Exhibit GG-3 was incomplete.

3 B. Plaintiffs Failed to Preserve the Claimed Error Regarding the Validity 4 of the Deed

5 {22} Plaintiffs argue that the 1991 deed that transferred the property into the 6 Preciliana Trust was null and void for lack of a grantee, because the trust did not 7 exist at the time the deed was executed. Plaintiffs failed to preserve this claimed 8 error, because they never advanced it below. We therefore will not address this 9 issue for the first time on appeal. Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 10 106 N.M. 492, 745 P.2d 717 (“To preserve an issue for review on appeal, it must 11 appear that appellant fairly invoked a ruling of the trial court on the same grounds 12 argued in the appellate court.”).

13 C. Plaintiffs’ Argument Regarding the Validity of Preciliana’s Will Is 14 Moot

15 {23} Plaintiffs argue that Preciliana’s will is invalid because no signed copy was 16 found. This question, however, is moot: the district court correctly upheld the 17 validity of Preciliana’s conveyance of her real property to the Preciliana Trust prior 18 to her death, and therefore the terms of her will regarding disposition of that 19 property are immaterial. When no actual controversy exists for which a ruling by 20 the court will grant relief, the question is moot. Gunaji v. Macias, 2001-NMSC- 21 028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. “[A] reviewing court generally does not

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1 decide academic or moot questions[.]” State v. Favela, 2013-NMCA-102, ¶ 13, 2 311 P.3d 1213 (internal quotation marks and citation omitted).

3 D. The District Court Did Not Abuse Its Discretion in Its Award of 4 Attorney’s Fees

5 {24} Plaintiffs do not challenge the district court’s initial award of fees from the 6 funds remaining in the Damacio Trust or the reasonableness of the total amount of 7 Michael’s attorney’s fees. Instead, they focus on the district court’s order following 8 reconsideration that Plaintiffs individually must pay all but 15 percent of Michael’s 9 attorney’s fees. Plaintiffs generally contend that the district court abused its 10 discretion in making this award. Plaintiffs also claim error based on the fact that 11 (1) Michael’s affidavit and attached billing records failed to segregate the time 12 Michael’s trial counsel spent on work performed in defense of the claims against 13 Michael as trustee from time spent on work performed in defense of the claims 14 against Michael as an individual, and (2) the district court failed to make findings 15 of fact regarding the fee award. 16 {25} An “[a]ward of attorney fees rests in the discretion of the trial court and this 17 [C]ourt will not alter the fee award absent an abuse of discretion.” Lenz v. 18 Chalamidas, 1991-NMSC-099, ¶ 2, 113 N.M. 17, 821 P.2d 355. The test is 19 “whether the trial court’s decision was clearly against the logic and effect of the 20 facts and circumstances before the court. Stated otherwise, our inquiry is limited to 21 the question of whether the trial court’s decision was beyond the bounds of all

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1 reason.” In re Estate of Greig, 1988-NMCA-037, ¶ 22, 107 N.M. 227, 755 P.2d 71 2 (citation omitted). 3 {26} The Code provides that, “[i]n a judicial proceeding involving the 4 administration of a trust, the court, as justice and equity may require, may award 5 costs and expenses, including reasonable attorney fees, to any party, to be paid by 6 another party or from the trust that is the subject of the controversy.” Section 46A- 7 10-1004. This Court addressed Section 46A-10-1004 in Khalsa v. Puri, 2015- 8 NMCA-027, ¶ 70, 344 P.3d 1036. There, we looked to New Mexico common law 9 which permits an award of attorney fees to a party who successfully defends the 10 assets of a trust, finding that Section 46A-10-1004 incorporates these equitable 11 principles. See id. ¶ 74 (relying on In re Estate of Foster, 1985-NMCA-038, ¶ 43, 12 102 N.M. 707, 699 P.2d 638 (noting that protecting the assets of a trust or estate 13 from being distributed unlawfully confers a substantial benefit that supports an 14 award of attorney fees)). We held that

15 given the many years of litigation over issues on which [the 16 defendant] failed to present any direct evidence to support her claims 17 and in light of the [t]rustees’ overall success in defending these 18 claims, we cannot say that the district court abused its discretion in 19 determining that justice and equity required an award of the [t]rustees’ 20 reasonable attorney fees.

21 Khalsa, 2015-NMCA-027, ¶ 74. 22 {27} This lawsuit spanned a period of three years. During the hearing on 23 Michael’s motion to reconsider, the district court asked defense counsel to address

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1 Plaintiffs’ argument that some of the claims were made against Michael as an 2 individual and not as a trustee. Defense counsel responded that the court had the 3 discretion to award all or a portion of the attorney’s fees, the bulk of the attorney’s 4 fees were incurred defending the validity of the trust documents, and the trust 5 documents themselves authorized the trustee to use trust assets for attorney’s fees. 6 Defense counsel further stated that 10 percent of his time was spent defending the 7 claims against Michael in his individual capacity. In awarding attorney’s fees, the 8 district court determined that “the majority of the case was about the trust.” Having 9 presided over the trial, the district court was in the best position to evaluate defense 10 counsel’s assessment of the amount of work done in defense of the trust as 11 opposed to the amount of work performed in defense of Michael individually. 12 Given the district court’s discretion in awarding attorney’s fees, we will not 13 second-guess its decision to award Michael 85 percent of the attorney’s fees he 14 incurred. We conclude that the district court’s attorney’s fees award was not an 15 abuse of discretion. 16 {28} Plaintiffs rely on Dean v. Brizuela, 2010-NMCA-076, 148 N.M. 548, 238 17 P.3d 917, for their argument that, because Michael’s affidavit and attached billing 18 records failed to segregate the time his counsel spent on work performed in defense 19 of the claims against him as trustee from work performed in defense of claims 20 against him individually, the attorney fee award was improper. Dean stands for the

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1 proposition that, where there is authority to award attorney’s fees for only some of 2 the claims asserted by the party seeking the award, the party seeking the award 3 must segregate in its fee request those fees which were incurred prosecuting the 4 claim for which fees can be recovered and those fees which were incurred for other 5 claims. Id. ¶ 17. Alternatively, the party must show that prosecution of all of the 6 claims was intertwined and as a result it is difficult or impossible to segregate the 7 fees. Id. ¶¶ 17-18. Here, however, Section 46A-10-1004, and the equitable 8 principles underlying it, do not require the segregation of fees by claim. See 9 Khalsa, 2015-NMCA-027, ¶ 74; In re Estate of Foster, 1985-NMCA-038, ¶ 43. In 10 this context, the district court in its discretion could consider not only the 11 statements of Michael’s counsel regarding the percentage of his time that he spent 12 defending the claims against his client individually but also the court’s own 13 observations during the trial in determining the attorney’s fee award. 14 {29} Plaintiffs also argue that the district court erred in failing to make findings of 15 fact on the attorney’s fees issue. Plaintiffs did not request any findings on the issue. 16 They therefore waived their right to claim error on appeal. See Cockrell v. 17 Cockrell, 1994-NMSC-026, ¶ 8, 117 N.M. 321, 871 P.2d 977 (holding that a party 18 waives error in the court’s failure to make findings by its failure to request or 19 submit findings); Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 42, 132 N.M. 459, 50 20 P.3d 554 (holding that there was no error in failing to make findings on attorney’s

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1 fees issues where the party did not request findings and the court stated its 2 rationale for the award on the record); cf. Montoya v. Medina, 2009-NMCA-029, 3 ¶¶ 4-6, 145 N.M. 690, 203 P.3d 905 (remanding for entry of findings of fact where 4 findings were requested and appellate court could not tell from the record, even in 5 light of district court’s oral comments, how it arrived at its decision). Here, the 6 district court stated its rationale for the award on the record during the hearing on 7 the motion to reconsider, explaining that while some claims were made against 8 Michael in his personal capacity, an award of fees incurred defending the trust was 9 appropriate and the majority of the case was in fact about the trust. On that basis, 10 the court reduced the attorney fee award by 15 percent to account for any work 11 done for Michael individually and not as trustee. Given this articulation of the 12 basis for its decision and that further findings were not requested, we find no error 13 in the failure to make findings on the issue. 14 CONCLUSION 15 {30} We affirm the district court. 16 {31} IT IS SO ORDERED.

17 ______________________________ 18 HENRY M. BOHNHOFF, Judge

19 WE CONCUR:

20 ______________________________

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1 LINDA M. VANZI, Chief Judge

2 ______________________________ 3 JENNIFER L. ATTREP, Judge