Preview:

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 PEGGY J. CORDOVA and 3 KRISTINE D. SANCHEZ, 4 5 vs. 6 IN THE MATTER OF THE ESTATE 7 OF ANNIE PACHECO DELEON, deceased, 8 Defendant-Appellee. Plaintiffs-Appellants, No. 31,733

9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 C. Shannon Bacon, District Judge 11 Joshua R. Simms, P.C. 12 Albuquerque, NM 13 for Appellants 14 John V. Nilan LLC 15 John V. Nilan 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION

1 GARCIA, Judge. 2 Cordova and Sanchez appeal an order granting summary judgment in favor of

3 their mother's estate. In this Court's notice of proposed summary disposition, we 4 proposed to affirm. Cordova and Sanchez have filed a memorandum in opposition, 5 which we have duly considered. As we are not persuaded by their arguments, we 6 affirm. 7 In our notice of proposed summary disposition, we proposed to hold that

8 Cordova and Sanchez's response to the estate's motion for summary judgment did not 9 raise a genuine issue of material fact on the questions of either their mother's 10 testamentary capacity or of any undue influence over her. We also proposed to hold 11 that the district court did not abuse its discretion in declining to reconsider its order 12 when Cordova and Sanchez did not demonstrate that the additional evidence they 13 sought to introduce in their motion to reconsider could not have been obtained 14 previously. See In re Estate of Keeney, 121 N.M. 58, 60-61, 908 P.2d 751, 753-54 15 (Ct. App. 1995) (stating that the district court has "considerable discretion" in 16 determining whether to consider new evidence filed in support of a motion to 17 reconsider). 18 In Cordova and Sanchez's memorandum in opposition, their argument that

19 summary judgment should be reversed relies heavily on an affidavit they submitted

2

1 along with their motion to reconsider. They state that the reason they did not submit 2 the affidavit with their original response to the motion for summary judgment is 3 because Cordova and Sanchez believed that the affiant, Bernadine DeLeon, was an 4 adverse party who would not provide them with an affidavit. [MIO 3] However, 5 Cordova and Sanchez do not represent that they attempted to get Bernadine to execute 6 an affidavit and she refused, they simply indicate that they did not get this evidence 7 because they "considered" her to be adverse. Furthermore, even if Cordova and 8 Sanchez believed that Bernadine would not voluntarily execute such an affidavit, Rule 9 1-056(F) NMRA provides a mechanism for a party opposing summary judgment to 10 request a continuance in order to depose people whose testimony would support her 11 response in opposition to summary judgment. Cordova and Sanchez did not make use 12 of this procedure. Therefore, Cordova and Sanchez's failure to obtain this evidence 13 when they filed their response to the motion for summary judgment appears to have 14 been due to their own inaction, and the district court did not err in declining to permit 15 them to later submit evidence that might have been submitted with their original 16 response. 17 Because we hold that the district court did not abuse its considerable discretion

18 in declining to consider new evidence attached to Cordova and Sanchez's motion to 19 reconsider, we look only to the evidence submitted with their original response in

3

1 determining whether they raised a question of material fact sufficient to defeat 2 summary judgment. See Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 3 1244-45 (1992) ("Upon the movant making a prima facie showing, the burden shifts 4 to the party opposing the motion to demonstrate the existence of specific evidentiary 5 facts which would require trial on the merits."). For the reasons discussed in our 6 notice of proposed summary disposition, Cordova and Sanchez's response and the 7 affidavits in support of their response failed to demonstrate the existence of specific 8 evidentiary facts that would require a trial on the merits of the issue of their mother's 9 testamentary capacity or any undue influence upon her. 10 Therefore, for the reasons stated in this Opinion and in our notice of proposed

11 summary disposition, we affirm. 12 13 14 15 WE CONCUR: IT IS SO ORDERED. TIMOTHY L. GARCIA, Judge

16 17 CYNTHIA A. FRY, Judge

18 4

1 LINDA M. VANZI, Judge

5



Download CA31733.pdf

New Mexico Law