Rodriguez v. Valdez

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 JOSE RODRIGUEZ JR., 3 Plaintiff-Appellee, 4 v. NO. 34,232

5 CARLOS VALDEZ and 6 MARIA VALDEZ,

7 Defendants-Appellants, 8 Consolidated with

9 IN THE MATTER OF THE ESTATE OF 10 JOSE M. RODRIGUEZ, Deceased.

11 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 12 J.C. Robinson, District Judge

13 Lopez, Dietzel & Perkins, PC 14 William John Perkins 15 Sliver City, NM

16 for Appellee

17 The Simons Firm, LLP 18 Daniel H. Friedman 19 Faith Lesley Kalman Reyes 20 Santa Fe, NM

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1 Frederick H. Sherman 2 Deming, NM

3 for Appellants 4 MEMORANDUM OPINION 5 GARCIA, Judge. 6 {1} Defendants-Appellants Carlos Valdez and Maria Rodriguez Valdez 7 (collectively referred to as “Daughter”) appeal the district court’s order setting aside 8 the will of their father, Jose M. Rodriguez, Sr. (“the Deceased”). [DS 2] This Court 9 issued a calendar notice proposing to affirm. Daughter has filed a memorandum 10 opposing this Court’s proposed disposition, and has moved to amend the docketing 11 statement. Daughter’s motion to amend the docketing statement is denied, and having 12 given due consideration to Daughter’s arguments in opposition, we affirm. 13 A. Motion to Amend Docketing Statement 14 {2} As an initial matter, Daughter moves to amend the docketing statement to 15 “assist the [C]ourt in more fully understanding the issues on appeal, justify placing 16 this appeal on the [g]eneral [c]alendar, [and] eliminate certain appellate issues set forth 17 in the original [d]ocketing [s]tatement[.]” [MIO 13] In cases assigned to the summary 18 calendar, this Court will grant a motion to amend the docketing statement to include 19 additional issues if the motion (1) is timely, (2) states all facts material to a 20 consideration of the new issues sought to be raised, (3) explains how the issues were

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1 properly preserved or why they may be raised for the first time on appeal, (4) 2 demonstrates just cause or excuse by explaining why the issues were not originally 3 raised in the docketing statement, and (5) complies in other respects with the appellate 4 rules. State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M. 193, 668 P.2d 309. 5 {3} In the present case, Daughter does not seek to add an issue that was not raised 6 in the docketing statement. Accordingly, we deny Daughter’s motion to amend the 7 docketing statement. See generally State v. Munoz, 1990-NMCA-109, ¶ 19, 111 N.M. 8 118, 802 P.2d 23 (explaining that we deny motions to amend the docketing statement 9 if the issue that the appellant is seeking to raise is not viable). To the extent Daughter 10 seeks to add additional facts or legal arguments in support of her issues that were not 11 provided in the docketing statement, [MIO 13] we consider this information in the 12 context of Daughter’s issues as part of Daughter’s memorandum in opposition. 13 {4} We next address Daughter’s argument in her memorandum in opposition that 14 this case should be placed on the general calendar because a thorough review of the 15 transcripts is required for this Court to obtain a full picture of the facts. [MIO 1–2] We 16 disagree. “It has never been held that a complete verbatim transcript of proceedings 17 is necessary to afford adequate appellate review.” State v. Talley, 1985-NMCA-058, 18 ¶ 23, 103 N.M. 33, 702 P.2d 353. In cases assigned to the summary calendar, the 19 docketing statement serves as “an adequate alternative to a complete transcript of

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1 proceedings[,]” unless the assertions of the docketing statement are contradicted by 2 the record. Id. Under Rule 12-208 NMRA, it is trial counsel’s responsibility to provide 3 this Court with a full picture of the facts. Rule 12-208 sets forth the information that 4 must be included in the docketing statement, including “a concise, accurate statement 5 of the case summarizing all facts material to a consideration of the issues presented[.]” 6 Rule 12–208(D)(3). If this Court believes the facts that are contained in the docketing 7 statement or contained in the record are sufficient to enable us to resolve the issues 8 raised on appeal, we will assign the case to the summary calendar, which we did in 9 this case. See Udall v. Townsend, 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341. 10 We have determined that we can resolve this case on the summary calendar, and 11 accordingly, we proceed below to address the arguments in Daughter’s memorandum 12 in opposition. 13 B. Sufficiency of Evidence (Issues A, C, D, F, and H) 14 {5} Daughter maintains that there is insufficient evidence to support the district 15 court’s determination that the Deceased lacked testamentary capacity to execute a will. 16 [MIO 2–6; DS 21–23, 26–27] In support of her contention, Daughter asserts that the 17 testimony of Felix Jaramillo, a former attorney and witness to the signing of the 18 Deceased’s will, establishes that the Deceased was in a period of lucidity at the time 19 he signed his will. [MIO 1–3] In this Court’s notice of proposed summary disposition,

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1 we pointed out that sufficient evidence was presented, in the form of testimony from 2 Dr. Jennifer Agosta, the Deceased’s personal physician, as well as from Martha Noel, 3 another daughter of the Deceased, to indicate that Deceased had decreased cognitive 4 function, and to support the district court’s finding that the Deceased lacked 5 testamentary capacity to execute a will. [CN 2–4] 6 {6} We note, as an initial matter, that contrary to Daughter’s assertion, [MIO 2–3] 7 Mr. Jaramillo’s testimony does not establish that the Deceased experienced a lucid 8 interval. [MIO 3] Mr. Jaramillo’s testimony merely states his opinion that, at the time 9 of the execution of the will, the Deceased understood what he was doing. [MIO 3] 10 Nevertheless, even if Mr. Jaramillo’s testimony could be viewed to support the 11 proposition that the Deceased experienced lucid intervals, the district court was 12 entitled to weigh Mr. Jaramillo’s testimony, along with the rest of the 13 testimony—namely the opinion of Dr. Agosta, the CT scan results, and the testimony 14 of Martha Noel—when making its determination about the Deceased’s testamentary 15 capacity. The district court was in the best position to weigh the credibility of all of 16 the witness and determine whether or not the will contestant (in this case, Jose 17 Rodriguez, Jr. (“Son”)) met his burden of proof to establish the Deceased’s lack of 18 testamentary capacity by clear and convincing evidence. Chapman v. Varela, 2009- 19 NMSC-041, ¶ 5, 146 N.M. 680, 213 P.3d 1109 (stating that, on appeal, our Court

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1 defers to the district court’s assessment of witness credibility and resolution of 2 conflicting evidence, viewing the evidence in the light most favorable to the prevailing 3 party and disregarding any evidence and inferences to the contrary); see NMSA 1978, 4 § 45-3-407 (1975) (“Contestants of a will have the burden of establishing lack of 5 testamentary intent or capacity, undue influence, fraud, duress, mistake or 6 revocation.”). Accordingly, we affirm. 7 C. Cross-Examination of Dr. Agosta (Issue E) 8 {7} Daughter continues to assert that the district court erred by refusing to allow 9 cross-examination of a witness (Dr. Agosta) for a second time, after the district asked 10 clarifying questions, for the asserted reason that Dr. Agosta changed her position 11 regarding the Deceased’s testamentary capacity. [MIO 7; DS 24; RP v.2/158, 198] 12 Our notice observed that the district court’s questions were of a clarifying nature, and 13 because Daughter already had the opportunity to cross-examine Dr. Agosta, any 14 further cross-examination was discretionary with the district court. [CN 7] In her 15 memorandum in opposition, Daughter states that the district court’s questions were 16 not of a clarifying nature, [MIO 7] but raised a new issue that warranted further cross- 17 examination by Daughter’s attorney. [MIO 9] 18 {8} We are unpersuaded that Dr. Agosta’s prior testimony was inconsistent with her 19 response to the district court’s questions. The questioning of Dr. Agosta up until that

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1 point [MIO 4–5] indicated that Dr. Agosta thought that, in 2011, the Deceased had 2 age-associated cognitive changes. [MIO 5] When Dr. Agosta was asked by Son’s 3 attorney directly for her opinion as to the Deceased’s capacity to execute a will, she 4 stated that she had no reason to think that the Deceased possessed the required 5 capacities. [MIO 4] When the district court re-asked the question, Dr. Agosta gave a 6 differently-worded response that maintained the same position that she previously had 7 taken. The district court’s question did not delve into subject matter that had not 8 already been explicitly examined by the parties, and Dr. Agosta did not change her 9 position. Accordingly, we conclude that the district court did not abuse its discretion 10 by not allowing Daughter’s attorney to conduct additional cross-examination of Dr. 11 Agosta. See Empire W. Companies, Inc. v. Albuquerque Testing Laboratories, Inc., 12 1990-NMSC-096, ¶ 8, 110 N.M. 790, 800 P.2d 725 (explaining that “after the right 13 to cross-examination has been substantially exercised[,]. . . the right to further 14 examination become[s] discretionary”). 15 D. Cross-Examination of Felix Jaramillo (Issue G) 16 {9} Daughter continues to argues that the district court improperly permitted Son’s 17 attorney to cross-examine a witness, Felix Jaramillo, with respect to a disciplinary 18 complaint with the New Mexico Bar. [MIO 10] Daughter argues that the line of 19 questioning about the disciplinary complaint was inappropriate because “counsel’s

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1 questions shed no light on Mr. Jaramillo’s truthfulness or untruthfulness, a necessary 2 requirement of [Rule 11-608 NMRA].” [MIO 11] Further, Daughter argues that as a 3 result of the improper admission of Mr. Jaramillo’s statement that he resigned from 4 the practice of law due to disciplinary actions, the district court erroneously 5 discounted Mr. Jaramillo’s testimony about the Deceased’s mental capacity at the time 6 of the execution of his will. [MIO 12] 7 {10} We are unpersuaded. The memorandum in opposition indicates that Son’s 8 attorney discontinued his questioning of Mr. Jaramillo upon Mr. Jaramillo’s statement 9 that he voluntarily resigned from the practice of law, at which point it became evident 10 that the New Mexico Bar did not specifically find Mr. Jaramillo to have committed 11 an act of untruthfulness. [MIO 11] See Rule 11-608 NMRA (permitting, on cross- 12 examination, inquiry into specific instances of a witness’ conduct if they are probative 13 of the witness’ character for truthfulness). Because the district court needed to hear 14 some information about the nature of the disciplinary proceeding, and whether it 15 resulted in any finding of untruthfulness, in order to determine whether such inquiry 16 was even admissible, we see no error. See State v. Pickett, 2009-NMCA-077, ¶ 13, 17 146 N.M. 655, 213 P.3d 805 (explaining that in a bench trial, “we generally presume 18 that a judge is able to properly weigh the evidence, and thus the erroneous admission 19 of evidence in a bench trial is harmless unless it appears that the judge must have

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1 relied upon the improper evidence in rendering a decision” (internal quotation marks 2 and citation omitted)). 3 {11} However, even assuming that this line of cross-examination was improper, there 4 is nothing to indicate that the district court inappropriately used this information in 5 making its ultimate findings. See id. Although Daughter argues that the district court’s 6 finding that “Defendants provided no evidence sufficient to rebut Dr. Agosta’s 7 evaluation of [the Deceased’s] diminished mental capacity due to dementia/age- 8 associated cognitive impairment” indicates that the district court improperly 9 discounted Mr. Jaramillo’s testimony about the Deceased’s testamentary capacity, 10 [MIO 12 (emphasis in original)] we disagree. It was within the district court’s purview 11 to consider Mr. Jaramillo’s testimony, along with all of the other testimony presented, 12 and assign relative weight and credibility to all of the testimony, to determine that 13 Daughter did not provide testimony sufficient to rebut that given by Dr. Agosta. 14 Chapman v. Varela, 2009-NMSC-041, ¶ 5 (stating that, on appeal, our Court defers 15 to the district court’s assessment of witness credibility and resolution of conflicting 16 evidence, viewing the evidence in the light most favorable to the prevailing party and 17 disregarding any evidence and inferences to the contrary). We affirm. 18 {12} Lastly, we note that Daughter specifically abandons issues B, I, and J, relating 19 to notice, telephonic testimony, and fraud on the court, and as such, we do not address

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1 these issues. [MIO 13] See State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M. 356, 2 758 P.2d 306 (holding that when a case is decided on the summary calendar, an issue 3 is deemed abandoned where a party fails to respond to the proposed disposition of the 4 issue). 5 {13} In sum, we affirm for the reasons stated above and in this Court’s notice of 6 proposed disposition, and deny Daughter’s motion to amend the docketing statement. 7 {14} IT IS SO ORDERED.

8 ________________________________ 9 TIMOTHY L. GARCIA, Judge

10 WE CONCUR:

11 _______________________________ 12 JONATHAN B. SUTIN, Judge

13 _______________________________ 14 LINDA M. VANZI, Judge