Cordova v. Cordova

1

ALBERT TOM CORDOVA and ROBERT TIM CORDOVA, Plaintiffs-Appellants, v. LOUIS ORLANDO CORDOVA, Defendant-Appellee.

No. A-1-CA-39120

Court of Appeals of New Mexico

October 10, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Francis J. Mathew District Court Judge

Francis J. Mathew, District Court Judge Hurley Toevs Styles Hamblin & Panter PA Gregory W. MacKenzie Lalita Devarakonda Albuquerque, NM for Appellants

Law Office of Jamison Barkley, LLC Jamison Barkley Santa Fe, NM for Appellee

MEMORANDUM OPINION

ZACHARY A. IVES, JUDGE

{¶1}This case involves a dispute between Plaintiffs Albert Tom Cordova and Robert Tim Cordova (individually, Tom or Tim) and Defendant Louis Cordova about the distribution of certain real property (the Properties) owned by their deceased mother, Maria Elena Cordova (Decedent). Plaintiffs appeal two district court orders granting Defendant's motion for directed verdict and dismissing Plaintiffs' complaint. Of the many arguments made on appeal, several are not preserved, and we need only address two arguments to resolve the appeal: (1) that Decedent improperly revoked a living trust (the Trust) with a subsequent will (the Will); and (2) that Plaintiffs' claims of undue influence should not have been dismissed because those claims were properly before the district court. Unpersuaded by either argument, we affirm.

BACKGROUND

{¶2} The dispute between the parties gave rise to two parallel proceedings pertaining to the distribution and ownership of the Properties: a probate case, case number D-101-PB-2017-00079 (Probate Proceeding), and a civil case, case number D-101-CV-2017-01869 (Civil Proceeding). The latter is the subject of this appeal.^[1]Defendant initiated the Probate Proceeding-a formal probate in district court-and notified Plaintiffs of his application. That court admitted Decedent's Will into probate without objection. Then Plaintiffs initiated the Civil Proceeding instead of bringing their claims in the Probate Proceeding. Pertinent to this appeal, Plaintiffs alleged that Defendant unduly influenced Decedent in amending the Trust and later revoking it with the recently probated Will and, while Decedent was alive, in conveying several (but not all) of the Properties from the Trust to herself and to Defendant as co-tenants. Defendant counterclaimed that Plaintiff Tim slandered the title to the Properties because he recorded deeds of the Properties according to the Trust rather than the Will.

{¶3} The district court granted Defendant's motion for a directed verdict on all of Plaintiffs' claims and on Defendant's slander of title claim. In doing so, the court determined that the Will properly revoked the Trust and that Plaintiffs should have brought their undue influence claims in the Probate Proceeding because "if proven, [the claims] would give rise to disputed . . . real property becoming estate assets." Plaintiffs appeal.

DISCUSSION

{¶4} We first review Plaintiffs' preserved arguments, then discuss their unpreserved ones.^[2]

I. Plaintiffs' Preserved Arguments Do Not Establish Error

{¶5} Plaintiffs do not meet their burden of showing how the district court erred by concluding that (1) the Will properly revoked the Trust, and (2) Plaintiffs' undue influence claims were improperly brought in the Civil Proceeding. "The function of an appellate court is to correct an erroneous result." Morris v. Merchant, 1967-NMSC-026, ¶ 24, 77 N.M. 411, 423 P.2d 606. On appeal, we presume the district court was correct, and it is the appellant's burden to clearly show how the district court erred. See Farmers, Inc. v. Dal Mach. &Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063. Without a showing of error by appellant, we have nothing to correct and will affirm the district court's decision. Id. We discuss each of Plaintiffs' arguments in turn.

A. Whether Decedent's Will Properly Revoked the Trust

{¶6} As is applicable here, one may revoke a trust with a will "that expressly refers to the trust" so long as the revocation method outlined in the trust "is not expressly made exclusive." NMSA 1978, § 46A-6-602(C)(2) (2007). Plaintiffs argue that the court erred because the Trust had an exclusive method of revocation.^[3] We disagree.

{¶7} Here, the Trust allowed Decedent to "amend or revoke [the Trust], in whole or in part, by written notice to" both Decedent and Plaintiff Tim and that "[u]pon any revocation," Decedent or Plaintiff Tim "shall deliver to [Decedent] . . . any property as to which the [T]rust has been revoked, together with supporting instruments as may be necessary to release any interest [Decedent or Plaintiff Tim] may have in the property." Critically, the Trust term does not expressly state that the method of revocation is exclusive. Plaintiffs argue that the Trust term implicitly excluded revocation by way of a will. But the statute does not provide for implicit exclusion. The plain language of Section 46A-6-602(C)(2) clearly states that the trust's term must be "expressly made exclusive" to prevent a will from revoking the trust. Id.; see Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153 (requiring a court to give effect to the statute's language and refrain from further interpretation when the language is clear and unambiguous). We conclude that the plain language of Section 46A-6-602(C)(2) allowed Decedent to use her Will to revoke her Trust.

{¶8} Precedent buttresses our conclusion. In In re Schlicht, 2014-NMCA-074, ¶¶ 3, 16, 329 P.3d 733, this Court determined that a trust term that included language substantially similar to the language at issue here was nonexclusive. Plaintiffs seek to distinguish Schlicht by identifying minor differences between each trust's requirements regarding the timing for delivery of notice and the number of trustees. However, they do not explain why we should conclude that such differences mean that the Trust term here was the exclusive method of revocation-a conclusion that would run afoul of the plain language of Section 46A-6-602(C)(2), as we have explained.

{¶9} Because Section 46A-6-602(C)(2)(a) allowed Decedent to revoke the Trust with her Will so long as she expressly referred to the Trust in her Will, and she did just that, we are not persuaded that the district court erred by concluding that the Trust was properly revoked. See Farmers, Inc., 1990-NMSC-100, ¶ 8.

B. Whether Plaintiffs' Claims of Undue Influence Were Properly Dismissed

{¶10} Plaintiffs next contend that their undue influence claims could be brought in the Civil Proceeding regardless of the Probate Proceeding and the order there that probated the Will. To begin, we do not understand the parties to dispute that the order probating the Will is final. And so, for the purposes of this opinion, we assume without deciding that the order probating the Will is final and that the terms of the Will-including the clause revoking the Trust-are to be given effect because the application for probate was uncontested. See NMSA 1978, § 45-3-412(A) (1995) (stating a formal testacy order is final, subject to certain exceptions); NMSA 1978, § 45-3-407 (1975) (outlining the burdens for contesting the validity of a will). The parties disagree about the legal rationale relied upon by the district court in concluding that the order probating the Will barred Plaintiffs from bringing their claims in the Civil Proceeding. Plaintiffs assert that the court did so under either claim or issue preclusion. Defendant, on the other hand, argues that the court relied upon Wilson v. Fritschy, 2002-NMCA-105, 132 N.M. 785, 55 P.3d 997, for the proposition that a probate proceeding is the proper forum for addressing the distribution of disputed assets. Plaintiffs do not establish that the court erred by applying either rationale. See Farmers, Inc., 1990-NMSC-100, ¶ 8. As such, we affirm the district court's dismissal.^[4]

1. Preclusion Doctrines

{¶11} As we understand Plaintiffs' briefs, they argue that the district court improperly dismissed their claims based on claim or issue preclusion because (1) the court presiding over the Probate Proceeding did not have exclusive jurisdiction over their claims; (2) the Probate Proceeding was not the exclusive venue to challenge the revocation of the Trust; (3) Plaintiffs did not violate any specific provision of the Uniform Trust Code (UTC), NMSA 1978, §§ 46A-1-1 to -11-1105 (2003, as amended through 2018), by bringing their claims in civil court rather than in the Probate Proceeding; and (4) the provision in the Will revoking the Trust was nontestamentary, which allowed them to bring their claims in civil court.^[5] Assuming the district court dismissed the claims under claim or issue preclusion, and without reaching the merits of Plaintiffs' legal contentions, Plaintiffs do not establish error.

{¶12} A party asserting claim preclusion "must establish that (1) there was a final judgment in an earlier action, (2) the earlier judgment was on the merits, (3) the parties in the two suits are the same, and (4) the cause of action is the same in both suits." Potter v. Pierce 2015-NMSC-002, ¶ 10, 342 P.3d 54. Similarly, for issue preclusion, the asserting party must show "(1) the party to be estopped was a party to the prior proceeding, (2) the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, (3) the issue was actually litigated in the prior adjudication, and (4) the issue was...