In re Estate of LeBeau

In the Matter of the ESTATE OF SUZANNE LEBEAU, Deceased.

No. A-1-CA-37696

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 4, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Francis J. Mathew, District Judge

Lorenz Law

Alice T. Lorenz

Albuquerque, NM

Robert Richards

Santa Fe, NM

for Appellant Daniel J. LeBeau

Hinkle Shanor LLC

Nancy S. Cusack

Santa Fe, NM

for Appellee Personal Representative Kathleen A. LeBeau

Hurley Toevs Styles Hamblin & Panter PA

Gregory W. MacKenzie

Albuquerque, NM

for Intervenor Kathleen LeBeau

MEMORANDUM OPINION

IVES, Judge.

{1} In this appeal, Daniel LeBeau (Appellant) contends that the district court erred in (1) striking his objections to a special master's report under Rule 1-011(A) NMRA; (2) awarding personal representative and attorney fees; (3) denying his motion to remove Kathleen LeBeau (Appellee) as personal representative of the estate of Suzanne LeBeau (Decedent); (4) concluding that Appellee did not forfeit her interest in the estate under the will's no-contest clause; and (5) declining to compel a partial distribution of estate assets. We affirm.

DISCUSSION¹

I. Appellant Has Not Adequately Developed His Argument that the District Court Erred in Striking His Objections to the Special Master's Report

{2} We first address Appellant's argument that the district court erred in striking his objections to the special master's report as a sanction under Rule 1-011(A). While we would ordinarily review this issue for an abuse of discretion, see Rivera v. Brazos Lodge Corp., 1991-NMSC-030, ¶ 16, 111 N.M. 670, 808 P.2d 955, we conclude that Appellant's argument is insufficiently developed to warrant review at all.

{3} The crux of Appellant's argument is that, because there were good grounds for some of the contentions in the objections, the district court abused its discretion in striking the objections in their entirety. In support of this argument, Appellant asserts that, aside from the statements and implicit assertions in the objections that the district court found to be scandalous or indecent—which Appellant concedes were "problematic"—Appellant's objections were subjectively² supported by "good grounds." Proceeding from that premise, Appellant contends that, given New Mexico's "strong preference" for deciding matters on their merits, Lowery v. Atterbury, 1992-NMSC-001, ¶ 20, 113 N.M. 71, 823 P.2d 313, "striking [a paper] is warranted" only where "[an] attorney intentionally file[s] a paper for which there was no factual or legal basis [or for the purpose of] delay[ing] the proceedings."³

{4} Appellant's argument is sparse and, even more problematically, circular. The issue raised by this appeal is whether and, if so, when a district court may strike a filing upon finding that portions of the filing are scandalous or indecent, and thus unsupported by good grounds, and Appellant's assertion that a paper may be stricken only where that paper as a whole is without "factual or legal basis" is merely Appellant's desired answer to the question presented. But that question is a difficult one, and the Rule's opaque text does not admit of an easy answer. See generally D. Michael Risinger, Honesty in Pleading and its Enforcement: Some "Striking" Problems with Federal Rule of Civil Procedure 11, 61 Minn. L. Rev. 1 (1976) (discussing the difficulties presented by the text of Federal Rule of Civil Procedure 11 prior to the 1983 amendment); Cherryhomes v. Vogel, 1990-NMCA-128, ¶ 7, 111 N.M. 229, 804 P.2d 420 (noting "the difficulties encountered by federal courts in interpreting Federal Rule 11 prior to the 1983 amendment" in order to enable the "reexamin[ation of] our own Rule 11"); Boone v. Superior Ct., 700 P.2d 1335, 1339 (Ariz. 1985) ("[T]he provisions in Rule 11 for striking pleadings as 'sham and false' if they were signed 'with intent to defeat the purpose of this rule' will be appropriate only in those cases where the party or counsel intended some end or use not recognized as legitimate in our system of justice.").

{5} The general principles Appellant invokes to support his argument provide us no basis for reaching his requested holding. It is true that our courts have a preference for considering issues on their merits and that district courts must therefore exercise restraint in imposing sanctions that preclude such consideration. See Lowery, 1992-NMSC-001, ¶ 20. Those principles suggest that a court's authority to strike filings is narrow, but they do not specifically delineate the scope of that authority, and Appellant adds nothing that would assist us in determining whether the court exceeded its authority here. We would certainly have borne our courts' emphasis on merits-based adjudication in mind if Appellant had developed an argument based on the text, structure, purpose, or history of Rule 1-011 or on pertinent New Mexico or persuasive authority. As the case stands however, we would have to develop such an argument ourselves. Given the "substantial risk of error" and the "strain on judicial resources" that would inhere in that approach, we give no further consideration to Appellant's argument that the district court erred in striking his objections to the special master's report. See Elane Photography, LLC, 2013-NMSC-040, ¶ 70.

II. Appellant Has Not Adequately Developed His Challenge to the Amount of Personal Representative and Attorney Fees Awarded

{6} Next, Appellant contends that the district court erred in approving Appellee's compensation for the services she performed as personal representative and awardingattorney fees. Both parties appear to agree that these issues are reviewed for an abuse of discretion. But we need not decide whether the district court abused its discretion because Appellant's attacks on the court's fee awards are inadequately developed to warrant review. For one thing, Appellant's briefing is internally inconsistent with respect to the scope of his challenge. In some places, he objects broadly to "all attorney fees" or "all fees." In others he objects more narrowly, but even these narrower formulations vary in scope: the "majority of" Appellee's fees; "a substantial portion of her attorneys' charges"; "all fees incurred after the [p]etition for [r]emoval was filed in 2016"; and "any and all fees . . . paid either to the [Appellee] or her counsel that were a part of, incurred in the course of, or incurred because of" "any . . . actions" that this Court determines "amounted to breaches of [Appellee's] duties to the Estate."⁴ Compounding the problem, Appellant provides no argument. His claims of error amount to nothing more than conclusory assertions that fees relating to various generally described actions taken by Appellee and her attorneys during the course of this litigation must be disallowed and vague contentions that the fees Appellee charged were excessive. Appellant nowhere contends that Appellee and her attorneys did not provide the services for which fees were charged. To determine whether Appellant's arguments have merit, we would need to dive into the record ourselves to ascertain which fees correlate to the conduct complained of, come up with arguments for and against the reasonableness of the fees charged and whether Appellee's litigation expenses were incurred in good faith, and decide what would have been appropriate compensation. Developing arguments supported by legal authority and citations to the record on each issue is Appellant's counsel's job, not ours. See Elane Photography, LLC, 2013-NMSC-040, ¶ 70; Muse, 2009-NMCA-003, ¶ 42. We therefore decline to decide whether the district court abused its discretion in awarding personal representative and attorney fees.

III. The District Court Did Not Abuse Its Discretion by Refusing to Remove Appellee as Personal Representative

{7} Appellant contends that the district court erred in refusing to remove Appellee as personal representative of the estate, an issue we review for abuse of discretion. In re Estate of Boyer, 1994-NMCA-005, ¶ 30, 117 N.M. 74, 868 P.2d 1299. An abuse of discretion "will not be presumed; it must be affirmatively established." State v. Bonilla, 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491 (internal quotation marks and citation omitted). Appellant's arguments do not persuade us that the district court's decision not to remove Appellee from her position as personal representative was "contrary to logic and reason." State v. Lewis, 2019-NMSC-001, ¶ 10, 433 P.3d 276 (internal quotation marks and citation omitted).

{8} Even assuming that Appellant is correct in arguing that the alleged improprieties constituted violations of Appellee's duties as personal representative, we see no basis for ordering removal given the record and the arguments before us. Appellant nowhere persuasively argues that Appellee intentionally breached her duties. Cf. In re Hamilton, 1981-NMSC-120, ¶ 21, 97 N.M. 111, 637 P.2d 542 (assuming "that the trial court determined that [an executor's] conduct was not an intentional breach of his duty, but rather a result of poor advice" and therefore concluding that "removal was not required"). Moreover, because the district court found that all estate assets were accounted for and all fees awarded were reasonable, we do not see what the district court would have accomplished by removing Appellee from her position as personal representative. We have declined to review Appellant's challenges to the district court's fee awards, and Appellant has given us no basis for concluding that the district court erred in approving Appellee's final accounting.⁵ Under these circumstances, we have no reason to think that the alleged breaches of duty resulted...