In the Matter of the Estate of Duran

Decision Date19 April 2007
Docket NumberNo. 26,342.,26,342.
Citation2007 NMCA 068,161 P.3d 290
PartiesIn the Matter of the ESTATE OF Salome DURAN, Deceased.
CourtCourt of Appeals of New Mexico

Moses, Dunn, Farmer & Tuthill, P.C., Victor E. Carlin, Albuquerque, NM, for Appellants.

Scheuer, Yost & Patterson, P.C., Charles V. Henry, Kristin L. Davidson, Santa Fe, NM, for Appellee Joe Gallegos.

Leroy P. Duran, Daniel L. Duran, Rosemary D. Walker, Dina M. Duran, Jacob F. Duran, Pro Se Parties.

OPINION

VIGIL, Judge.

{1} In In re Estate of Duran (Duran I), 2003-NMSC-008, ¶ 34, 133 N.M. 553, 66 P.3d 326, the Supreme Court held that the co-tenant ownership of 11.392 acres of land by five siblings was never dissolved although one of the siblings had claimed ownership of the entire tract by adverse possession. It remanded the matter to the district court. Id. Two of the siblings appeal from the Order of Complete Settlement of Estate by Personal Representative (Order of Complete Settlement) subsequently entered by the district court in which siblings who either did not participate in the prior proceedings or appeal were awarded an undivided one-fifth ownership of the property. We affirm the district court order and hold that the property shall be distributed as stated in the Order of Complete Settlement to all five co-tenants (or their estate or heirs) in the undissolved co-tenancy.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Macarita Sanchez was a widow who owned 11.392 acres of land in Taos County when she died intestate in 1932. Her five children, Salome, Evilia, Cinesio, Donaciana, and Felipe thereupon became cotenant owners of the 11.392 acres of land. In 1945, Salome took possession of the entire tract of land and paid all taxes for the property from that time until he died in 1998. In 1978, Salome conveyed the property in joint tenancy to himself and his wife, who subsequently preceded him in death. After Salome died, Evilia and Cinesio were the only children of Macarita that were still living. In the Salome Estate proceeding, Evilia and Cinesio asserted they each owned one-fifth of the parcel, and sought the imposition of a constructive trust and an accounting. Litigation followed in formal probate proceedings before the district court. The parties were Evilia, Cinesio, Salome's Estate (the Estate), and Donaciana's son, Joe Gallegos. No other parties chose to participate in the district court litigation, despite being given adequate notice. Ultimately, the district court agreed with Salome's Estate that he acquired title to the entire tract of land by adverse possession. The district court also found against Gallegos on his claim to a portion of the parcel. Gallegos did not appeal, but Evilia and Cinesio did. In a memorandum opinion, we affirmed the district court finding that Salome acquired title to the entire tract of land by adverse possession.

{3} The Supreme Court granted certiorari and reversed, concluding that two elements required to establish title by adverse possession on Salome's part were missing: hostile possession and good faith color of title. Duran I, 2003-NMSC-008, ¶ 1. The Supreme Court therefore held that the cotenancy was never dissolved and remanded the matter to the district court to reconsider in its discretion whether to impose a constructive trust or order an accounting. Id. ¶¶ 34-36.

{4} After the case was remanded to the district court, Evilia and Cinesio argued that the Estate only owned, at most, an indivisible one-fifth interest in the land, subject to a set off for the value of rent and profits for the time that Salome occupied the land. They added that since it might be difficult, if not impossible, to calculate these amounts, the court should order that they were at least equal to the value of the Estate's one-fifth ownership, making Evilia and Cinesio sole owners of the entire property. The Estate took the position that because the evidence at trial established that Salome and his four siblings had agreed that Salome could take possession of the land if he paid the taxes, without further obligation to them, the siblings had agreed to forego any claim for rents and profits. The Estate also argued that because Felipe's heirs did not participate in any of the litigation or appeals despite notice, and because Gallegos did not appeal the district court's adverse decision against him, they were bound by the original order that Salome acquired the entire property by adverse possession. The Estate therefore asserted it owned an undivided three-fifths of the land, and Evilia and Cinesio each owned an undivided one-fifth.

{5} The district court advised the parties in a letter that it intended to decline to order an accounting because the siblings had agreed that Salome could live in the property without payment to them if he maintained the property and paid all the taxes, which he did. However, the district court remained unsure about how to divide the property, asking:

Without good faith color of title, can adverse possession be had against those who did not appear, or did not appeal? Does the procedural status of the case in relation to heirs of Felipe and Donaciana prevail? Or does the failure to establish good faith color of title against the interests of Evilia and Cinesio trump the failure of the other heirs to assert their interests?

Following arguments addressed to these questions, the district court issued a letter setting forth its decision. The district court said that because the Supreme Court in Duran I held that the cotenancy of Macarita Sanchez's five children was never dissolved, "the ends of justice require that the estate [i.e., land] be distributed to those to whom it should have been decreed in the first place, namely all five cotenants in the undissolved cotenancy; and that to do otherwise, and grant to the [Estate] two additional shares simply because of the non-participation of cotenants would be an unjustified windfall."

{6} The district court then filed a Judgment on Remand, setting forth findings of fact, conclusions of law, and a judgment. Consistent with its letter, the district court concluded that, "[t]he five (5) children of [Macarita] Sanchez remained owners of undivided one-fifth (1/5) interests in the Property from the time of [Macarita] Sanchez's death to the present," and that, "[t]he ends of justice require that the Property be distributed to those to whom it should have been decreed in the first place, namely, all five (5) co-tenants [or their estate or heirs]." The district court also concluded that the Estate had no duty to provide an accounting of rents and profits to the other heirs of Macarita Sanchez. Judgment was entered imposing a constructive trust upon Salome's Estate to hold the property for the benefit of Macarita Sanchez's five children (or their respective estates or heirs), each one having been adjudicated to be the owner of a one-fifth (1/5) undivided interest in the property; and denying the motion for an accounting. The Judgment on Remand was entered over the objection of Evilia and Cinesio, and they filed a notice of appeal.

{7} The Personal Representative of the Estate subsequently filed a "Petition for Order of Complete Settlement of Estate by Personal Representative," and after a hearing, the district court filed the Order of Complete Settlement. Therein, the district court found that as between the heirs of Macarita Sanchez, all issues pertaining to title to the 11.392 acres of land have been completely and absolutely resolved, and that the proceedings concerning title to that parcel "sufficed as a quiet title suit among the heirs" and "all issues which were, or which could have been, raised in said litigation have been fully resolved and adjudicated." It is also noted that a partition suit concerning the land is imminent, and that there was no longer any purpose to continue the constructive trust. The constructive trust was therefore terminated, and the Personal Representative was ordered to issue a deed to each heir of Macarita Sanchez (or their estate or heirs) conveying an undivided one-fifth interest in the 11.392 acres of land to each of them. The Estate was otherwise fully settled and closed.

{8} Evilia having passed away, her daughter and her daughter's husband, and Cinesio appeal from the Order of Complete Settlement. For the sake of continuity, we continue to refer to the appellants as Evilia and Cinesio. The Estate has not appeared in this appeal. However, Gallegos appears on his own behalf, seeking to affirm the district court.

DISCUSSION
1. Timeliness and Propriety of the Appeal

{9} Evilia and Cinesio filed a notice of appeal from the Judgment on Remand, but did not perfect or pursue that appeal by filing a docketing statement, brief, or otherwise complying with the Rules of Appellate Procedure. After the Order of Complete Settlement was subsequently filed in the district court, Evilia and Cinesio timely appealed that order. Gallegos asserts that to the extent this appeal challenges the Judgment on Remand, it must be dismissed because: (1) the appeal is untimely and (2) the Judgment on Remand substantially complies with the Supreme Court's decision and mandate in the Duran I appeal, and it is not subject to further review. We disagree for the following reasons.

{10} First, the appeal is timely. An appeal only lies from a final order of the district court, and generally, "[a] judgment is not final unless all issues of law and of fact necessary to be determined have been determined, and the case has been completely disposed of to the extent the court has power to dispose of it." In re Estate of Foster, 102 N.M. 707, 712, 699 P.2d 638, 643 (Ct.App. 1985) (quoting Clancy v. Gooding, 98 N.M. 252, 254, 647 P.2d 885, 887 (Ct.App.1982)). Following the Judgment on Remand in this case, additional judicial oversight was required to secure the complete administration and settlement of the Estate. See In re Estate of Foster, 102 N.M. at 711-12, 699 P.2d at...

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