1998 -NMCA- 122, Harrell v. Hayes

Decision Date22 July 1998
Docket NumberNo. 18416,18416
Citation1998 NMCA 122,965 P.2d 933,125 N.M. 814
Parties, 1998 -NMCA- 122 Glenn E. HARRELL, Individually and as Personal Representative of the Estate of Maureen V. Hayes, Plaintiff-Appellant, v. Fred Lee HAYES and Mary Virginia Rector, Defendants-Appellees, and Janis D. Rogers and Elizabeth M. Fisher, Defendants.
CourtCourt of Appeals of New Mexico

Kevin T. Riedel, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Las Cruces, for Appellant.

Beverly J. Singleman, Hubert & Hernandez, P.A., Las Cruces, for Appellees Fred Lee Hayes and Mary Virginia Rector.

Elizabeth M. Fisher, Las Cruces, Pro se Defendant.

OPINION

DONNELLY, Judge.

¶1 Plaintiff Glenn E. Harrell, individually and as the personal representative of the Estate of Maureen V. Hayes, deceased, appeals from an order granting the motion of Fred Lee Hayes and Mary Virginia Rector (Defendants) to dismiss his complaint for lack of personal jurisdiction. The single issue presented on appeal is whether the activities of Defendants subjected them to the jurisdiction of the New Mexico courts under this state's long-arm statute. NMSA 1978, § 38-1-16 (1971). For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL POSTURE

¶2 In November 1993 James A. Hayes (Husband) and Maureen V. Hayes (Wife), an elderly couple, were both discovered to have died from natural causes in their apartment in Las Cruces, New Mexico. A medical investigation revealed that Husband predeceased Wife; however, there was no indication as to the length of time Wife survived Husband. Decedents died intestate and without any surviving children.

¶3 On February 15, 1994, Janis D. Rogers, Husband's niece, a resident of Carrolton, Texas, filed a petition with the district court of Dona Ana County, New Mexico, in Cause No. PB-94-26 (the probate action), seeking to be appointed as the personal representative of the estates of Husband and Wife. Both Defendants filed a form that was a renunciation of the right to be personal representative and a nomination of Janis D. Rogers as personal representative in the probate action. On March 25, 1994, the district court entered an order determining that the decedents died intestate, appointing Rogers as the personal representative of Husband's estate, and finding that Defendant Fred Lee Hayes, a brother of Husband, and Defendant Mary Virginia Rector, a sister of Husband, were the only known surviving heirs of Husband. Both of these Defendants are residents of Texas.

¶4 Letters of administration were issued by the district court to Rogers. Thereafter, Rogers published notice of her appointment as personal representative in a newspaper of general circulation in Dona Ana County, New Mexico, and in the Fort Worth Star Telegram in Tarrant County, Texas.

¶5 On October 12, 1994, Rogers filed a sworn statement as personal representative in the probate action, pursuant to NMSA 1978, § 45-3-1003 (1993), reciting in pertinent part:

1. I am the Personal Representative of the Estate of James Arthur Hayes, Deceased.

2. My uncle James Arthur Hayes had no creditors except his monthly bills which I have paid. I have determined that the time limited for presentation of creditor's claims has expired.

3. I have fully administered the estate of the decedent by making payment, settlement or other disposition of all claims that were presented, expenses of administration, and the assets of the estate have been distributed to the persons entitled.

4. I have sent a copy of this statement to the distributees of the estate, and I have furnished a full account in writing of the Personal Representative's administration to them.

Section 45-3-1003 permits a personal representative, unless prohibited by order of the district court or in supervised administration proceedings, to close an estate by entering a sworn statement indicating that the estate has been fully administered; that all claims against the estate have been denied or paid; and that the assets of the estate have been distributed.

¶6 In August 1995 Wife's heirs, Glenn E. Harrell, R.G. Harrell, and Estate of William T. Harrell, Sr., learned of Wife's death and, thereafter, on August 7, 1995, Plaintiff filed a petition for an adjudication of Wife's intestacy in the same probate action which had originally been initiated by Rogers. Plaintiff also requested that he be appointed the personal representative of Wife's estate. Plaintiff's petition stated, in part, that Rogers had previously petitioned that she be appointed the personal representative of both Husband's and Wife's estates and, although the district court had appointed Rogers to serve as personal representative of Husband's ¶7 Plaintiff's petition also alleged that Wife was survived by Plaintiff, R.G. Harrell, and Estate of William T. Harrell, Sr., her brothers, Jennifer Hill, a niece, and William T. Harrell, Jr., a nephew. On October 3, 1995, Elizabeth Fisher entered her appearance as New Mexico counsel for Rogers and Defendants and filed a motion to dismiss Plaintiff's petition. Fisher also filed a motion pursuant to Rule 1-060 NMRA 1998 in the probate action asking the district court to clarify its prior order dated March 25, 1994, determining intestacy and heirship and appointing the personal representative.

estate, no order granting Roger's request to act as Wife's personal representative had ever been entered or approved.

¶8 Fisher's Rule 1-060 motion asserted that the district court's prior order inadvertently omitted the following language: " 'James Arthur Hayes is the true and rightful heir and sole successor owner of the community property the parties owned at their deaths.' " On November 21, 1995, the district court granted Defendants' motion to amend the March 25, 1994, order.

¶9 On October 11, 1996, the district court granted Plaintiff's petition to appoint a personal representative for Wife's estate and denied Defendants' motion to dismiss the petition for probate brought by Wife's heirs. The district court also ruled that "[t]he Amended Order of Determination of Intestacy and Heirship and of Formal Appointment of Personal Representative entered by this Court on November 21, 1995 is hereby modified to provide that the only heirs of [Wife] are [Glenn E. Harrell, R.G. Harrell, and the Estate of William T. Harrell, Sr.]...." The district court's ruling in Dona Ana District Court Cause No. PB-94-26 is presently pending before this Court in a separate appeal.

¶10 Following the appointment of Plaintiff as the personal representative of Wife's estate, Plaintiff filed suit in the present case (Dona Ana County District Court Cause No. CV-96-984), against Defendants, Rogers, and Fisher, alleging that Rogers had erroneously distributed property to Defendants. The complaint sought, among other things, restitution, the return of property owned by Wife, and damages. Fisher was personally served with a copy of the complaint and summons in New Mexico. Defendants were served with summons and copies of the complaint in Texas. Thereafter, another attorney entered a special appearance in the present case on behalf of Defendants and moved to dismiss the lawsuit for lack of personal jurisdiction. On January 21, 1997, the district court granted that attorney's motion to dismiss Defendants in this case because of lack of personal jurisdiction. Plaintiff filed a timely appeal to this Court.

STANDARD OF REVIEW

¶11 In reviewing an appeal from an order granting or denying a motion to dismiss for lack of personal jurisdiction, the determination of whether personal jurisdiction exists is a question of law, which an appellate court reviews de novo when the relevant facts are undisputed. See Morgan Bank (Delaware) v. Wilson, 164 Ariz. 535, 794 P.2d 959, 960 (App.1990). If the district court's ruling on the motion to dismiss is based upon pleadings and affidavits, the standard of review largely mirrors the standard involving appeals from the grant or denial of motions for summary judgment. See Doe v. Roman Catholic Diocese of Boise, Inc., 1996-NMCA-057, 121 N.M. 738, 742, 918 P.2d 17, 21; see also Mann v. Coonrod, 125 Idaho 357, 870 P.2d 1316, 1318 (1994). In the instant case the underlying material facts are not disputed.

APPLICABILITY OF LONG-ARM STATUTE

¶12 Plaintiff asserts that the district court erred in quashing service upon Defendants and dismissing Plaintiff's complaint against them for restitution and damages. In furtherance of this argument, Plaintiff contends that Defendants were not Wife's heirs, that they wrongfully took possession of property belonging to Wife's estate, and that they are liable to Plaintiff "for the value of such assets, including the reasonable rents, profits, interest and income thereon." Plaintiff asserts that the acts of Defendants in wrongfully taking possession of Wife's assets constitutes a tortious act (conversion), thereby subjecting them to the personal jurisdiction ¶13 Defendants argue that Plaintiff has no authority to act as the personal representative of Wife's estate to initiate these proceedings because the court, in PB-94-26, erred in appointing Plaintiff as the personal representative of Wife's estate and such cause is presently pending before this Court in a separate appeal. Alternatively, Defendants assert that the district court in the present case properly granted dismissal herein because the court lacked personal jurisdiction over Defendants. We need not resolve in this appeal the issue of whether the district court, in PB-94-26, erred in appointing Plaintiff as the personal representative of Wife's estate because we determine that in any event the district court herein properly determined that it lacked personal jurisdiction over Defendants.

of the district court in the present case under the New Mexico long-arm statute. Plaintiff also contends that Defendants engaged in business in New Mexico by purposely availing themselves of the privilege of conducting activities in New Mexico, by contesting the...

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