Rodarte v. Hoover

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 = IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 RAYMOND RODARTE and 8 NICANOR “NICK” LOPEZ,

9 Plaintiffs-Appellants 10 v. NO. 30,137

11 MELISSA HOOVER a/k/a 12 MELISSA HOOVER ROMERO 13 MATTHEW HOOVER, and 14 JESSICA HOOVER, individually 15 and as personal representatives of 16 the ESTATE OF MARY JANE 17 HOOVER, Deceased,

18 Defendants-Appellees.

19 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 20 Sam B. Sanchez, District Judge

21 J. Ronald Boyd 22 Santa Fe, NM

23 for Appellants

24 Alan Maestas Law Office 25 Alan H. Maestas 26 Taos, NM

27 for Appellees 28 MEMORANDUM OPINION

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1 FRY, Chief Judge. 2 Plaintiffs appeal from the district court’s order dismissing their complaint with 3 prejudice. We issued a notice of proposed summary disposition, proposing to affirm. 4 Plaintiffs have responded to our notice with a memorandum in opposition. 5 Defendants have responded with a memorandum in support. We have given the 6 parties’ responses due consideration, and remain unpersuaded that Plaintiffs have 7 clearly demonstrated error. We therefore affirm. 8 In their docketing statement, Plaintiffs did not clearly list the issues they wanted 9 to be decided on appeal. We construed the docketing statement to make three 10 arguments: (1) the district court erred by dismissing their complaint as to their 11 allegations of civil conspiracy and fraud; (2) the district court erred by dismissing 12 Count II of their complaint, in which they allege that Defendants made two fraudulent 13 conveyances and ask that the deeds be set aside and the property restored to Mary Jane 14 Hoover’s probate estate; and (3) the district court erred by ruling that enforcement of 15 the judgment entered by Judge Hall should have been sought in the county probate 16 action, because only the district court has jurisdiction to determine title to real estate. 17 [DS unnumbered 3-4] 18 Our notice observed that the docketing statement gave us very little insight into 19 the complicated factual and procedural background of this case, which seems to have 20 its origins in a 2001 probate action from the death of Anastacia Lopez. We warned 21 Plaintiffs that it is not this Court’s obligation to comb the record to understand or find

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1 support for the appellant’s claims, and that it is incumbent on the appellant to provide 2 this Court with all the facts material to the issues raised, including those facts that 3 support the ruling of the district court. See Rule 12-208(D)(3) NMRA (requiring that 4 the docketing statement contain “a concise, accurate statement of the case 5 summarizing all facts material to a consideration of the issues presented”); see also 6 Thornton v. Gamble, 101 N.M. 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) 7 (reminding the appellant to set forth all relevant facts in the docketing statement, 8 including the facts supporting the district court’s ruling). We referred Plaintiffs to our 9 case law warning that the failure to include all material facts could result in affirmance 10 or other sanctions. See id.; see also State v. Chamberlain, 109 N.M. 173, 176, 783 11 P.2d 483, 486 (Ct. App. 1989) (refusing to grant relief where the defendant failed to 12 provide us with a summary of all the facts material to our consideration of the issue 13 raised in the docketing statement). 14 From what we could glean from the record, it appeared to this Court that, in a 15 previous action initiated in 2002, Plaintiffs litigated, and prevailed on their claim of 16 fraud, which was based on the same concealment and conversion of the same savings 17 bonds alleged here against Melissa Hoover, and was asserted against the Estate of 18 Mary Jane Hoover, for which Defendant Melissa Hoover was a personal 19 representative. [RP 50, 81-84] We told Plaintiffs that the deficiencies in the docketing 20 statement precluded us from understanding how their current claim differed from their 21 previous claim, why the facts underlying the current claim were not discovered or 22 discoverable at the time of the previous action, and why the statute of limitations had

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1 not run. See Deflon v. Sawyers, 2006-NMSC-025, ¶ 2, 139 N.M. 637, 137 P.3d 577 2 (“Res judicata prevents a party or its privies from repeatedly suing another for the 3 same cause of action.”); see also NMSA 1978, § 45-1-106(A) (1975) (“Any 4 proceeding must be commenced within two years after the discovery of the fraud. No 5 proceeding may be brought against one not a perpetrator of the fraud later than five 6 years after the time of commission of the fraud.”). 7 In response to our notice, Plaintiffs simply state that the current action is 8 separate from the previous conversion claim, because they did not previously have 9 evidence that Melissa Hoover concealed bank records that showed her mother 10 depositing and withdrawing large sums of money. [MIO 1] This reply does not 11 respond to our concerns about why res judicata principles should not bar the current 12 claim of fraud, why the facts underlying the current claim were not discovered or 13 discoverable at the time of the previous action, and why the statute of limitations had 14 not run. Plaintiffs’ response also makes no citation to the record or authority that 15 would demonstrate error. Because we warned counsel about the deficiencies in the 16 docketing statement, the consequences of the omission of information, and described 17 what information should be included in any response they might file, Plaintiffs’ 18 response, failing to cure the deficiencies, leaves us no alternative but to affirm. 19 Plaintiffs have not clearly demonstrated that the district court erred by dismissing the 20 fraud claim, and we therefore affirm. 21 Similarly, our notice proposed to affirm the district court’s dismissal of Count 22 II of their complaint, in which they allege that Defendants made two fraudulent

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1 conveyances and ask that the deeds be set aside and the property restored to Mary Jane 2 Hoover’s probate estate. [DS unnumbered 3-4] Our notice pointed out to Plaintiffs 3 that although they argue that Defendants’ motion to dismiss Count II addressed only 4 one of the two deeds, Plaintiffs do not explain the full factual and legal basis for either 5 claim about either deed. Again we looked to the record in an attempt to understand 6 the dispute. We noted that Defendants argued that Plaintiffs’ claim or status as a 7 creditor arose after the allegedly fraudulent transfer was made, and that Plaintiffs have 8 not alleged otherwise. [RP 55-56] We observed that Plaintiffs’ docketing statement 9 simply stated that the conversion of the savings bonds occurred in 2000 and 2001 and 10 that the 2002 deed was not discovered until 2008. [DS unnumbered 3] 11 We warned Plaintiffs that their assertion did not constitute a clear 12 demonstration of error, because it was not explained by any reasoning and was not 13 supported by any citation to authority. We explained to Plaintiffs that in any response 14 they may wish to file, they should explain the factual and procedural background that 15 supports their claim and refer this Court to controlling authority. In the absence of 16 such information, we proposed to affirm. 17 In response to our notice, Plaintiffs state that Mary Jane Hoover conveyed a 18 parcel of land to her son during the pendency of the 2006 conversion case. [MIO 19 unnumbered 2] Plaintiffs represent that the alleged fraudulent conveyance was not 20 addressed in any of Defendants’ motions to dismiss. [Id.] These statements fall far 21 short of the factual and procedural background necessary to establish error. It 22 addresses only one deed, and there is no statement explaining why they believed the

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1 conveyance was fraudulent or why Plaintiffs might be entitled to either deed. 2 Plaintiffs cannot establish reversible error by representing that they were denied an 3 opportunity to respond or present evidence to support their claim, where they have not 4 stated what they would have done with that opportunity. They should have explained 5 what evidence they would have presented and how it might have prevailed. “On 6 appeal, error will not be corrected if it will not change the result.” In re Estate of 7 Heeter, 113 N.M. 691, 695, 831 P.2d 990, 994 (Ct. App. 1992); see Crutchfield v. 8 N.M. Dep’t of Tax. & Rev., 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A 9 reviewing court generally does not decide academic or moot questions.”). Because 10 we remain without such information, we affirm the dismissal of Count II. 11 Lastly, we hold that Plaintiffs have not demonstrated that the district court erred 12 by refusing to remove the case from probate, consolidate it with the current action in 13 district court, and appoint a special administrator. In our notice, we stated that 14 Plaintiffs have given this Court no reason to believe that the district court should be 15 deciding both the probate and civil matters because Plaintiffs have not established that 16 it was error to dismiss the civil complaint. In addition, we stated that the record does 17 not show us whether Plaintiffs explained to the district court that they attempted to 18 enforce the judgment in probate and that their attempts had failed. 19 Also, we observed that Plaintiffs do not state the reasoning and legal authority 20 they offered to the district court for why the “county probate action” should be 21 resolved in district court. We explained that appointment of a special administrator 22 in district court requires support for a finding “that appointment is necessary to

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1 preserve the estate or to secure its proper administration including its administration 2 in circumstances where a general personal representative cannot or should not act.” 3 NMSA 1978, § 45-3-614(B) (1975). From what the record revealed, we stated that 4 there were three personal representatives of Mary Jane Hoover’s estate, and that 5 Plaintiffs did not explain what facts they presented to the district court to satisfy the 6 statute, the arguments Defendants asserted, and the grounds on which the district court 7 ruled. 8 In response to our notice, Plaintiffs state that “there is nothing wrong with 9 joining all claims in a single action. Permitting adjudication of all phases of litigation 10 involving the same parties in one action would avoid a multiplicity of suits.” [MIO 11 unnumbered 3] Again, this assertion falls short of providing this Court with the 12 information and legal arguments necessary to establish reversible error. Arguing that 13 the district court could have assumed jurisdiction over the probate proceeding, 14 consolidated the actions, and appointed a special administrator does not establish that 15 district court should have done so, and that it was error. Without sufficient factual and 16 legal argument, we affirm. 17 To the extent that Plaintiffs now assert that the district court erroneously 18 awarded Defendants attorney fees, we cannot address the matter in the current appeal 19 with the current record proper. [MIO unnumbered 3] Normally, we would require a 20 new issue to be raised in a motion to amend the docketing statement. State v. Rael, 21 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). However, this issue 22 challenges a separate order from which Plaintiffs must take a separate appeal. See,

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1 e.g., Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 398, 851 P.2d 1064, 1065 (1993) 2 (observing that a party may choose to appeal from a judgment before the order on 3 attorney fees is entered, where resolving the latter does not affect the substance of the 4 judgment, or the party may choose to file one appeal from both the judgment and the 5 order on attorney fees after the completion of both). As a result, we need not address 6 this issue further. 7 For the reasons discussed above and in our notice, we affirm the district court’s 8 dismissal of Plaintiffs’ complaint. 9 IT IS SO ORDERED.

10 11 CYNTHIA A. FRY, Chief Judge

12 WE CONCUR:

13 14 JAMES J. WECHSLER, Judge

15 16 TIMOTHY L. GARCIA, Judge