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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 MELBA SILVA, GREG CHAVEZ, and 8 ELENA ELLISON, 9 10 v. 11 RAYMOND CHAVEZ, 12 Defendant-Appellant. Plaintiffs-Appellees, NO. 30,404

13 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 14 John W. Pope, District Judge 15 Pedro G. Rael 16 Los Lunas, NM 17 for Appellees 18 Law Offices of Nicholas R. Gentry, L.L.C. 19 Nicholas R. Gentry 20 Albuquerque, NM 21 for Appellant

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MEMORANDUM OPINION

1 CASTILLO, Judge. 2 Raymond Chavez (Defendant) appeals from the district court's final judgment,

3 and the district court's findings of fact and conclusions of law. [RP 230, 214] 4 Defendant raises four issues on appeal. [DS] This Court filed first and second 5 calendar notices proposing summary affirmance in part and summary reversal in part. 6 [CN1, CN2] Melba Silva (Plaintiff) filed responses in support of both of the calendar 7 notices, indicating that she did not oppose the proposed summary dispositions. 8 [PMIS1, PMIS2] We addressed the arguments Defendant raised in his memorandum 9 in opposition to the first calendar notice in the second calendar notice. [DMIO1, 10 CN2] Defendant has filed a memorandum in opposition to the second calendar notice 11 that we have duly considered. [DMIO2] Unpersuaded, however, we affirm in part 12 and reverse in part. 13 DISCUSSION 14 Issue 1 - Imposition of a Constructive Trust 15 Defendant continues to contend that clear and convincing evidence does not

16 support the imposition of a constructive trust on the bank account funds in the amount 17 of $58,185.88, or the district court's decision that Defendant misappropriated 18 $42,230.84 of those funds for his own purposes. [DS 4, DMIO1, DMIO2] In his first 19 and second memorandums, Defendant argues that the district court's imposition of a

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1 constructive trust was not legally correct, because the trial court did not enter any 2 findings or conclusions that proof of a clear and convincing nature existed. [DMIO1 3 3; MIO2 3-4] Defendant points out that the district court did not find any evidence 4 of undue influence or that Defendant dominated or controlled his mother, Josefita 5 Chavez. [DMIO1 3; MIO 3-4] The district court found that Josefita Chavez was 6 competent at all material times. [Id.] Defendant further continues to contend that the 7 imposition of a constructive trust is inconsistent with the plain language of the power 8 of attorney, which granted him broad powers and allowed him to spend the money in 9 the bank account as an owner of the account until his mother's death. [DMIO1 1,2, 10 4; DMIO2 4] Defendant also continues to argue that if this Court concludes that 11 Defendant was not entitled to spend the money in the bank account or spent it 12 inappropriately, then the total amount that was inappropriately spent was $27,225.69, 13 rather than $42,230.84. [DMIO1 4] Defendant further continues to argue that the 14 district court disregarded certain evidence that he presented that more expenditures 15 were made on behalf of his mother. [DMIO2 6] We remain unpersuaded and affirm 16 the district court on this issue. 17 "The imposition of a constructive trust is an equitable remedy, and as such is In re Estate of Duran,

18 within the broad discretion of the district court."

19 2003-NMSC-008,

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