Roybal v. Morris

Decision Date30 August 1983
Docket NumberNo. 7036,7036
Citation1983 NMCA 101,100 N.M. 305,669 P.2d 1100
PartiesNerio ROYBAL, Plaintiff-Appellee, v. Mary Ann MORRIS, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
Roberto C. Armijo, Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendant-appellant
OPINION

DONNELLY, Judge.

Defendant Mary Ann Morris appeals from the judgment entered by the trial court denying her counterclaim, and imposing a constructive trust in favor of her adoptive brother, Nerio Roybal, upon a one-half interest in lands deeded to her by her father.

Plaintiff brought suit individually and on behalf of his adoptive father, Daniel Roybal (father), seeking to have a warranty deed given by the father to defendant set aside because of alleged fraud and undue influence. Defendant filed a counterclaim seeking to quiet title in the property covered by the deed, and seeking punitive damages predicated upon plaintiff's alleged fraudulent procurement of a power of attorney from the father.

Defendant raises six claims of error. We discuss (1) propriety of the constructive trust; (2) claim of indispensable party; and (3) decide the remaining issues summarily. We affirm in part and reverse in part.

Facts:

The father, a widower, owned extensive real property in San Miguel County. He was born in 1896, and from his marriage to Carlotta V. Roybal, defendant was his only natural child. In 1979, at age 85, he suffered a major illness and was hospitalized in Santa Fe. Following his release from the hospital he moved to Albuquerque to live with defendant. On July 16, 1980, defendant drove her father to an attorney's office in Las Vegas, New Mexico, where the father executed and delivered a warranty deed to defendant covering all of his real estate.

The plaintiff was the nephew of Daniel Roybal, and was raised from early infancy to adulthood in the Roybal home as the Roybal's own child. The father suffered a stroke in May, 1981, and resided in a nursing home in Albuquerque, where he was regularly visited by plaintiff and defendant. In August 1982, the father initiated proceedings in the district court of Bernalillo County to adopt plaintiff and a final decree of adoption was entered later that same month. On April 7, 1982, the father executed a general power of attorney to the plaintiff. The power of attorney executed by the father expressly provided that it "shall not be affected by any disability which [he] may suffer in the future." The instrument further invested plaintiff with the right to institute or defend suits against adverse claims. Plaintiff, acting under the power of attorney, managed the father's real estate holdings and rented a portion of the property. In February, 1980, the father transferred to plaintiff some cattle, brands, and forest grazing permits in San Miguel County.

After obtaining the warranty deed from her father to herself, defendant recorded it, but did not disclose for approximately two years to plaintiff or other members of her family the fact that she had secured the conveyance. Upon learning of the deed in May, 1982, plaintiff filed suit against defendant seeking to have the deed declared invalid. Following a trial to the court, a judgment was entered finding that defendant had procured the deed by undue influence, and ordering that deed to defendant and also that the federal grazing lease, which the father had transferred to plaintiff, be each impressed with a trust to the extent of a one-half interest in favor of plaintiff and defendant respectively.

I. Issues Answered Summarily

(A) The trial court refused to accede to defendant's request for a recusal following a pretrial hearing on both parties' request for entry of a preliminary injunction. As a general rule, whether a judge should voluntarily enter a recusal is a matter within the sound discretion of the trial judge. NMSA 1978, Code of Judicial Conduct, Cannon 3 C. (Supp.1982); see also Klindera v. Worley Mills, Inc., 96 N.M. 743, 634 P.2d 1295 (Ct.App.1981); Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct.App.1980). Suspicion of bias or prejudice is not enough to disqualify a judge. State v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966). The only evidence of alleged bias or prejudice herein is the fact that the trial judge knew Pete Roybal, one of the witnesses in case. Roybal's testimony was consistent with that of several other witnesses in the case. Under the record herein, it was not error on the part of the trial judge to refuse to recuse himself.

(B) The trial court denied defendant's motion for a new trial or, alternatively, for relief from the judgment. Defendant contends the court erred in denial of this motion because of the surprise testimony of Isidro Roybal and her attorney's inability to obtain discovery of her father's medical records. Defendant could have deposed the witness prior to trial but failed to do so. Plaintiff's answers to interrogatories listed Isidro Roybal as a prospective witness. Defendant's counsel spoke to the witness prior to trial; he now claims his trial testimony was not consistent with that conversation. Since the content of the conversation is disputed, this does not afford a basis for a new trial. Defendant also claims she was wrongfully refused access to her father's medical records and her proposed order allowing her access was denied. The proposed order, however, is not a part of the record herein. Defendant did not subpoena the records. Under the facts it was not error to deny the motion for a new trial or to grant other relief from the judgment.

(C) Defendant asserts the trial court erred in failing to direct a verdict in her favor at the close of plaintiff's case, that the court erred in granting plaintiff's motion for a restraining order, and that the court erred in failing to grant her counterclaim. Defendant fails to specify in what particular aspects the trial court erred, or to cite specific authorities for her contentions. This point is without merit.

(D) Both prior to and at trial defendant asserted that plaintiff was not a real party in interest to the proceedings herein, and that the power of attorney given to plaintiff by her father was invalid because he lacked the mental capacity to execute the document. At trial defendant and her two sons testified that since the father had suffered a stroke in May, 1981, he had been confused and affected with an impaired memory. Dr. Donald B. Stewart, who treated the father testified that in his opinion the father was not mentally alert at the time he gave the power of attorney to plaintiff or when he signed the petition to adopt plaintiff.

In Miera v. Miera, 25 N.M. 299, 181 P. 583 (1919), it was held that a power of attorney must possess the same requisites and observe the same solemnities as are necessary in the case deeds conveying an interest in realty. In New Mexico, acts done by an agent under a power of attorney are invalid during the time the principal is mentally incompetent unless the power of attorney expressly provides that the authority to act shall not be affected by the disability of the principal. NMSA 1978, Sec. 45-5-501.

The trial court found that the father understood the power of attorney which was executed on April 7, 1982. Plaintiff testified that at the time of the signing of the power of attorney his father was able to understand what he was signing and even asked specific questions about the power of attorney and the powers granted thereunder. The trial court's finding of competency of the father was grounded upon substantial evidence.

In New Mexico a person is presumed to be competent and the initial burden of proof of incompetency is upon the party challenging competency. In re Estate of Taggart, 95 N.M. 117, 619 P.2d 562 (Ct.App.1980); see also In re Estate of Head, 94 N.M. 656, 615 P.2d 271 (Ct.App.1980).

The trial court correctly denied defendant's motion to dismiss for failure to join an indispensable party because the pleadings herein expressly indicate the father was a party to the action. Paragraph 1, of plaintiff's complaint states:

I. Plaintiff is a resident of the City of Albuquerque, County of Bernalillo, State of New Mexico and brings this action on his own behalf and as attorney in fact for Daniel Roybal, having been granted Power of Attorney by document dated April 7, 1982 * * *.

Although the caption of the suit lists only plaintiff as the party bringing the suit, paragraph 1 states the action is brought on behalf of plaintiff and "as attorney in fact for Daniel Roybal". Since the body of the complaint alleges that the action is brought on behalf of the father, the failure to list the father in the caption will not defeat the action herein. An amendment to conform the caption to the evidence and remainder of the pleading is proper even after trial on the merits. NMSA 1978, Civ.P.R. 15 (Repl.Pamp.1980).

II. Propriety of Constructive Trust

(A) Defendant attacks both the sufficiency of the evidence to support the trial court's findings and conclusions imposing a partial constructive trust, and the propriety of imposing a constructive trust upon the

property encompassed in the deed from her father.

Defendant argues that her father had sufficient mental capacity at the time of signing the deed to her to understand the nature of the transaction. Defendant also contends the deed was a gift from her father; however, the trial court refused to adopt defendant's requested findings as to a gift.

Proof of the father's mental competency at the time of execution of the deed is not the controlling issue. Rather it is whether there was undue influence exercised by defendant so that the transfer was not his free will. A person may be mentally competent, but a transaction performed by him may be invalidated if it is the result of undue influence. Ostertag v. Donovan, 65 N.M. 6, 331 P.2d 355 (1958); see also ...

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