Clinesmith v. TemmermanClinesmith v. Temmerman
BUSTAMANTE, Judge.
{1} In early 2005, Bruce Clinesmith was suffering from Alzheimer‘s disease. The district court appointed a guardian and conservator to protect his person and assets. After the conservator was appointed, Ruth Clinesmith (Wife) and her attorney met with Mr. Clinesmith at the locked assisted care facility where he had been admitted. The conservator unsuccessfully tried to stop the meeting. During the meeting, Mr. Clinesmith executed a new estate plan giving Wife control of his estate. In response to a motion by the conservator to prevent interference with its duties, the district court voided the estate plan. This case presents two issues. Did the district court have jurisdiction over the new estate plan? This appeal was filed over five years after the district court voided the estate plan. Is the appeal timely? Answering the former question in the affirmative and the latter in the negative, we dismiss.
I. Background
{2} In March 2005, Mr. Clinesmith‘s daughter, Cathe Temmerman, filed a verified petition for the appointment of a guardian and conservator, asserting that Mr. Clinesmith
{3} Starting in 1992, Mr. Clinesmith had arranged for the bulk of his estate to go to Moody Bible Institute of Chicago (Moody). The estate was spread among three revocable trusts; two administered by Moody and the third by a commercial trust—Salomon Smith Barney. The trust provisions allowed Mr. Clinesmith to draw on the trust assets for his expenses. In separate but parallel proceedings commenced in federal court while this guardianship/conservatorship action in state court was pending, Wife attempted to gain control of the trust assets. In addition, Wife sought to have the monies held in trust for Moody transferred to her pursuant to a power of attorney signed by Mr. Clinesmith in early 2004.
{4} In compliance with
{5} Disregarding the order and its effects, Mr. Stein and Wife met with Mr. Clinesmith at the elder care facility on August 18, 2005, without notifying the district court, Decades, or the guardian ad litem of the meeting. Staff at the elder care facility notified Decades that Mr. Stein and Wife, along with several of Mr. Stein‘s staff, were meeting with Mr. Clinesmith in a private room. A social worker and an attorney representing Decades arrived at the facility shortly thereafter. The Decades staff attempted unsuccessfully to stop the meeting altogether and were unable to discuss the documents with Mr. Clinesmith.
{6} At the meeting, Mr. Clinesmith signed a new will naming Wife as personal representative and a new trust document naming Wife as trustee. We refer to these documents as the “new estate plan.” The effect of these modifications was to revoke the previous trusts and “create a new trust with [Wife] as trustee with all the power ‘that an absolute owner of such property would have.’ ” In re Stein, 2008-NMSC-013, ¶ 12, 143 N.M. 462, 177 P.3d 513 (per curiam). “These documents had the additional effect of removing all of the assets belonging to [Mr. Clinesmith] from the jurisdiction of the court in the guardianship and conservatorship proceeding.” Id.
preventing [Mr.] Stein from having any contact with Mr. Clinesmith, ordering [Mr.] Stein to produce all documents that were presented or involved in the meeting at [Mr. Clinesmith‘s residence in the Alzheimer‘s ward at an elder care facility] on August 18, 2005, ordering [Mr.] Stein to produce all documents or records pertaining to his representation of Mr. Clinesmith, and for all such other and further relief as the Court deems just and proper.
At the emergency hearing on the motion, Decades requested orally that the new estate plan be voided. Mr. Stein objected that this request was not made in writing in the motion and, therefore, he did not have notice of such request. The district court orally granted the motion and Decades’ request to void or hold “frozen” the new estate plan. The district court voided the new estate plan “for a variety of reasons, not the least of which is that [the court thought] that they were improperly—the signatures were improperly gained.” The district court denied Mr. Stein‘s oral request for an interlocutory appeal of this order. The district court‘s order was filed on August 29, 2005. Wife did not file a motion for rehearing or reconsideration of this order. After another hearing, the district court disqualified Mr. Stein from representing Wife “and [a]ll [o]ther [p]ersons with [i]nterests [a]dverse to [Mr.] Clinesmith.” Finally, on October 7, 2005, the district court appointed Decades as permanent guardian and conservator for Mr. Clinesmith.
{8} Wife timely filed a notice of appeal from this order on November 4, 2005. The notice stated that she appealed “from the final [o]rder entered . . . on October 7, 2005, . . . and from all orders and rulings that preceded, led to, and produced said [o]rder.” Wife then voluntarily dismissed the appeal in February 2006. Mr. Clinesmith died on May 9, 2010, and the district court accepted the recommendations of a special master and approved Decades’ final report on March 4, 2011. The present appeal was timely filed on April 4, 2011, over five years after entry of the October 7, 2005, order.
{9} As a result of his conduct in this matter, Mr. Stein was disbarred for five years. Id. ¶¶ 19, 73. The Supreme Court held that Mr. Stein‘s conduct violated the New Mexico Rules of Professional Conduct, including, inter alia,
II. Discussion
{10} Appellees argue that Wife failed to timely appeal and, therefore, the appeal should be dismissed. The parties appear to agree that the August 29, 2005, order invalidating the new estate plan was not a final order. While we are not convinced that this is the case, we accept this premise consistent with our interest in facilitating the right to appeal and because we do not pursue arguments the parties do not make. See Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party‘s] arguments might be.“). Appellees argue that the October 7 order was final because it resolved all of the issues in Ms. Temmerman‘s initial petition and incorporated all previous orders such that appeal of the August 29 order should have been filed within thirty days of the October 7 order.
{11} Wife maintains that the October 7 order did not make the order voiding the new estate plan final and appealable. As we understand her argument, Wife argues that (1) the district court did not have jurisdiction to void the new estate plan because such relief was not requested in Decades’ motion, or the issue could not be considered until after Mr. Clinesmith‘s death; and (2) because the court had no jurisdiction over the matter, any order on the new estate plan was not final and appealable. Wife argues that the August 29 order became final only after Mr. Clinesmith died and the district court adopted the special master‘s recommendations as to his estate on March 4, 2011. Thus, Wife argues, the appeal filed on April 4, 2011, was timely under
{12} We hold that the district court had the power to address the new estate plan because the district court was exercising its general civil jurisdiction and its order was within the scope of the motion. We also hold that the district court was not precluded from addressing the signing of the new estate plan prior to Mr. Clinesmith‘s death. We conclude further that the October 7 order incorporated the August 29 order and that both orders became final and appealable on October 7, 2005. As a result, this appeal—filed over five years later—is untimely.
A. Standard of Review
{13} The questions before us require that we construe the UPC and the appellate rules. Statutory interpretation is a question of law which an appellate court undertakes de novo. Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 7, 145 N.M. 650, 203 P.3d 865 (“Determining whether [an] appeal was timely involves the interpretation of court rules, which we review de novo.“); Ottino v. Ottino, 2001-NMCA-012, ¶ 6, 130 N.M. 168, 21 P.3d 37 (“Whether the district court is possessed of jurisdiction over the subject matter of a case is a question of law that we review de novo.“).
{14} Wife maintains that the new estate plan did not fall within the scope of the petition that prompted the August 29 or October 7 orders and, therefore, the district court could not rule on that issue. She argues additionally that, even if the new estate plan fell within the scope of the petition, the new estate plan could not be considered until after Mr. Clinesmith‘s death. We are not persuaded.
1. The New Estate Plan Was Raised in the Motion
{15} The August 29 order voided the new estate plan in response to Decades’ motion to prevent interference with its duties as temporary guardian and conservator of Mr. Clinesmith‘s estate. That motion described Mr. Stein‘s meeting with Mr. Clinesmith to sign the new estate plan as “interfer[ing] with Decades’ performance of its duties and exercise of its powers as Mr. Clinesmith‘s guardian and conservator . . . over Decades’ clear and unequivocal objection.” Decades’ duties are related to the overall purpose of a conservatorship: “[T]o protect the person and property of persons whose functional and decision-making capacity has become impaired.” 57 C.J.S. Mental Health § 151 (2007). A conservator is “a person who is appointed by a court to manage the property or financial affairs or both of a protected person[.]”
{16} The facts admitted by Mr. Stein at the hearing are sufficient to show that Mr. Stein (1) arranged to meet with Mr. Clinesmith about the new estate plan without notifying Decades, the district court, or the guardian ad litem of the meeting; (2) met with Mr. Clinesmith over the objections of Decades’ staff who arrived after the meeting had begun; and (3) refused to discontinue the meeting or allow Decades’ staff to read the documents or take over the meeting. Since Decades was appointed by the court to “manage the property or financial affairs” of Mr. Clinesmith, any action by Mr. Stein to alter the disposition of Mr. Clinesmith‘s estate without Decades’ knowledge and approval, even if it were at the request of Mr. Clinesmith himself, was an interference with Decades’ duties.
{17} To the extent Wife argues that she was denied due process of law because she had no notice of Appellees’ intent to request that the new estate plan be voided and no opportunity to present evidence, we disagree. Decades’ motion requested relief from Mr. Stein‘s interference with its duties, and Wife acknowledged Decades’ motion in her response. In that response, Wife averred that “[t]he meeting with the Clinesmiths, the witnesses and the two doctors [who accompanied Mr. Stein] was going fine and without incident until [a Decades staff member] came in the room.” Wife acknowledged that Decades’ staff tried to end the meeting and prevent Mr. Clinesmith from signing the new documents. Although Wife claimed that “[t]he [m]otion is . . . silent as to what was the interference with the exercise of the powers of the [t]emporary [g]uardian and [t]emporary
{18} Wife‘s argument that she was denied the opportunity to present evidence on this issue also misses the mark. Wife does not direct this Court to the evidence she would have presented in the district court. Nevertheless, the parties appear to agree on the essential facts: that Mr. Stein arranged a meeting with Mr. Clinesmith without notifying Decades, the district court, or the guardian ad litem and that Decades staff attempted unsuccessfully to prevent the meeting and the signing of a new estate plan. These facts alone establish Mr. Stein‘s interference with Decades’ duties as guardian and conservator, which was the basis of the August 29 order. As the district court explained:
Mr. Stein, my ruling is based on the fact that I issued an order in this case, and that you, with full knowledge of Mr. Clinesmith‘s incapacity, nevertheless, went and saw him on two occasions and secured a signature from him. The trust is a very big issue because that is the basis of the [f]ederal [c]ourt lawsuit and that is the very thing that is being changed, and so on that basis, I don‘t really need to hear testimony from other people. You‘ve admitted the things that I needed to hear today from you.
Additional evidence as to Mr. Clinesmith‘s testamentary capacity, the specifics of who said what in the meeting, or Mr. Clinesmith‘s intent would not alter these undisputed facts.
2. The District Court Had General Civil Jurisdiction
{19} The district court had general civil jurisdiction over the conservatorship proceedings and the August 29 order was entered pursuant to that authority. The New Mexico Constitution limits jurisdiction over “special cases and proceedings” to that “conferred by law.”
{20} In re Estate of Harrington applies to formal probate proceedings, which are different from conservatorship proceedings. See
{21} In many ways, the appointment of a conservator is more significant than a formal probate because the appointment deprives the protected person of the autonomy to manage his or her own estate and financial affairs. The importance of this determination is reflected in the statutory conditions for conservatorships, which require, inter alia, (1) notice to those who may have an interest in the protected person or the estate,
{22} In addition, like district courts sitting in formal probate proceedings, district courts in conservatorship proceedings exercise broad powers.
A. The district court has exclusive original jurisdiction over all subject matter relating to:
. . . .
(2) estates of missing and protected persons; (3) protection of incapacitated persons and minors;
. . . .
(7) governing instruments except wills.
B. . . . The district court has full power to make orders, judgments and decrees and to take all other action necessary and proper to administer justice in matters that come before it.
(Emphasis added.) In addition,
A. . . . the court, without appointing a conservator, may authorize, direct or ratify any transaction necessary or desirable to achieve any security, service or care arrangement meeting the foreseeable needs of the person.
. . . .
B. . . . the court, without appointing a conservator, may authorize, direct or ratify any contract, trust or other single transaction relating to the protected person‘s estate and financial affairs if the court finds that the transaction is in the best interests of the protected person.
Furthermore,
After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:
A. exclusive jurisdiction to determine the need for a conservator or other protective order;
B. exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of New Mexico shall be managed, expended or distributed to or for the use of the protected person or any of his dependents[.]
{23} As in In re Estate of Harrington, we look also to whether the purposes of Article 5 of the UPC “would be frustrated if we gave [it] a narrower interpretation.” In re Estate of Harrington, 2000-NMCA-058, ¶ 20. As discussed above, the goal of a conservatorship “is
{24} Finally, conservatorship proceedings require a level of judicial oversight and notice that is similar to or more stringent than that in formal probate proceedings. “The distinctions between informal and formal proceedings include the degree of notice and judicial oversight required.” In re Estate of Duncan, 2002-NMCA-069, ¶ 15. Formal proceedings are those “conducted before a district judge with notice to interested persons[,]”
{25} The UPC requires substantial judicial oversight throughout the conservatorship proceedings and continuing until the protected person‘s death and termination of the conservatorship. See, e.g.,
{26} In sum, the new estate plan was properly before the district court because it was addressed by Decades’ motion and because the district court had and was exercising its general civil jurisdiction when it dealt with the motion. The finality of the August 29 and October 7 orders is not affected by any lack of jurisdiction.
{27} Wife argues that, notwithstanding the appointment of Decades as temporary conservator and temporary guardian, Mr. Clinesmith was entitled to make changes to his estate plan without the district court‘s prior approval, provided that he did so during a period of lucidity, and that, absent a probate action, the district court could not void the new estate plan. Wife further argues that the district court‘s reliance on the documents filed by Mr. Stein which set forth Mr. Stein‘s understanding that Mr. Clinesmith was suffering from “some sort of memory loss or dementia” did not provide a basis for the district court‘s order voiding the new estate plan because issues related to Mr. Clinesmith‘s testamentary capacity “should only be evaluated in the pending probate case.” This argument is unavailing for two reasons.
{28} First, this argument about the status of the will does not address the alteration of the trust documents, the effect of which was to give Wife power over Mr. Clinesmith‘s property and remove his assets from the jurisdiction of the district court in the conservatorship proceedings. In re Stein, 2008-NMSC-013, ¶ 12. This act was in violation of the district court‘s authority over the property as well as the conservator‘s duties. See
{29} Second, this argument presumes that the district court‘s order voiding the new estate plan was based on an assessment of Mr. Clinesmith‘s testamentary capacity. Wife relies on Lucero v. Lucero in support of her argument. 118 N.M. 636, 884 P.2d 527 (Ct. App. 1994), superseded on other grounds by statute as stated in Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109. She argues that the new estate plan could not even be considered until after Mr. Clinesmith‘s death because “nothing in the UPC prohibit[s] [the protected person] from executing [a] will merely because [another] was appointed to be the conservator of her property.” Id. at 639, 884 P.2d at 530.
{30} Lucero is inapposite because it pertained to probate of a will and Mrs. Lucero‘s testamentary capacity whereas here the proceedings were to appoint a conservator and guardian. Id. at 638, 884 P.2d at 529. The district court voided the new estate plan not because Mr. Clinesmith lacked capacity, but because “the signatures were improperly gained.” The order did not prohibit Mr. Clinesmith from amending his estate plan under properly protective arrangements. Indeed, the UPC explicitly permits a conservator to “faciliat[e] execution of a new will or estate plan where the protected person has sufficient mental capacity[.]” Id. at 640, 884 P.2d at 531. Had he wished to, Mr. Clinesmith could have requested Decades’ assistance with hiring an attorney to prepare a new will and trust documents just as Mrs. Lucero did. Thus, unlike in Lucero, neither the hearing nor the order
{31} Wife contends that Lucero stands for the proposition that “[t]he testamentary capacity of Bruce Clinesmith on August 18, 2005 . . . should only be evaluated in the pending probate case.” Lucero does not so hold. Although the Lucero court determined that “[t]he mental capacity of the disabled person was thus intentionally left open [by the UPC] for future litigation, often postmortem[,]” 118 N.M. at 638, 884 P.2d at 529, it does not follow that the UPC requires that litigation of the testamentary capacity of the protected person take place only after death. Wife finds a prohibition where there is only an observation—that such analysis often takes place after death. That the UPC does not foreclose creation of a new will while under conservatorship does not have any impact on whether or when litigation over that instrument will take place.
{32} Though Wife maintains that Lucero is “on all fours” with the present case, it is distinguishable. In Lucero, one of the testator‘s sons had been appointed conservator and, at her request, he arranged for an attorney to meet with her to make a new will. The testator then died. Id. In a formal probate proceeding at which another son sought to introduce the first will, the district court ruled that appointment of a conservator created “a rebuttable presumption that Mrs. Lucero lacked testamentary capacity[,]” but found that “at the time of execution of the [later] will, Mrs. Lucero . . . was capable of understanding, in a reasonable manner, the nature and effect of the act of executing her Last Will and Testament.” Id. (internal quotation marks omitted). The later will was admitted to probate. Id. This Court affirmed. Id.
{33} The procedures employed by the conservator in Lucero and the process by which the new will was made distinguish Lucero from this case. There, the conservator arranged for an attorney to meet privately (except for the witness) with Mrs. Lucero at her home. Id. at 639, 884 P.2d at 530. No one with an interest in Mrs. Lucero‘s estate was present, including the conservator, to whom she left a greater portion of her estate than to her other devisees. Id. at 639-40, 884 P.2d at 530-31. Here, the conservator was unaware of the meeting regarding the new estate plan until it was underway and was prevented from reviewing the documents or discussing them with Mr. Clinesmith. The meeting was attended by (1) Wife, who had a substantial interest in the new estate plan and whose interests had been declared adverse to Mr. Clinesmith‘s; and (2) Mr. Stein, who represented Wife and was prohibited from representing Mr. Clinesmith in any way. Because Mr. Stein was prohibited from representing Mr. Clinesmith due to the conflict of interest with Wife, no one in the meeting
{34} At the hearing, Mr. Stein argued that Decades’ motion pertained only to future conduct and, therefore, did not address his conduct on August 18. Although Wife does not make this argument explicitly on appeal, she makes a similar one: that Decades did not ask specifically for the new estate plan to be voided and, therefore, the court was without power to do so. This argument is without merit not only because, as discussed above, the new estate plan was incorporated into the motion, but also because it assumes the district court is powerless to rectify the instances of interference that prompted the motion in the first place. The motion included a description of the conduct complained of and stated that the meeting resulted in “an [a]mended and [r]estated [t]rust and a new [w]ill.” Thus, it obviously encompassed Mr. Stein‘s past interference with Decades’ ability to manage Mr. Clinesmith‘s estate. To hold that only future interference was addressed by the motion would be absurd because such an interpretation would permit the results of the interference to stand uncorrected even after they were brought to the attention of the district court. This interpretation is counter to the fundamental goals of the UPC and conservatorships.
C. The October 7 Order Was a Final Order
{35} Having determined that the district court had subject matter jurisdiction over the new estate plan and, therefore, there was no jurisdictional bar to the district court‘s ruling on the new estate plan, we turn to whether the October 7 order was final and appealable. Only final orders are appealable.
{36} In this case, a detailed analysis of the practical effect of court orders is unnecessary because
{37} A final order may be appealed pursuant to the Rules of Appellate Procedure. See
{38} Ms. Temmerman‘s petition was for the appointment of a guardian and conservator. After appointment as temporary conservator and guardian on August 5, 2005, Decades sought an order to prevent Mr. Stein from interfering with its duties in that role. That motion was granted. On September 28, 2005, the district court heard argument on the petition and reviewed reports submitted by the guardian ad litem and court visitor. The court also heard argument on other pending motions. Wife withdrew several of her motions in opposition to the petition and other motions were rendered moot as a result. Thus, all pending matters related to the petition were resolved at that hearing and memorialized in the October 7, 2005, order that appointed Decades the permanent guardian and conservator. In the context of the UPC, the October 7 order was a final order.
{39} Wife filed a notice of appeal of the October 7 final order within the thirty-day period required by
In all causes appealed, or in any other manner brought from any inferior court to any superior court, the party appealing, . . . may, in like manner,
dismiss his appeal in the same manner as in the preceding section provided; and when said cause is dismissed, as aforesaid, the judgment in the inferior court shall remain and be in all things as valid, as if said cause had never been removed from said inferior court.
Based on that notice, the appeal was dismissed. No other appeal was initiated until the present appeal was filed on April 4, 2011.
{40} Wife argues that the first “appeal is not preclusive of the present appeal.” We agree that the mere fact of a voluntarily dismissed appeal is not by itself preclusive of a second appeal. But neither does the voluntary abandonment of an appeal confer on an appellant dispensation to avoid the deadline for filing a second appeal.
{41} There is a dearth of New Mexico cases addressing the effect of voluntary dismissal of an appeal directly. Authority from other jurisdictions persuades us that our construction of
{42} The appellate courts’ ability under Trujillo to review untimely appeals does not save this appeal. See Trujillo, 117 N.M. at 278, 871 P.2d at 374. Here, Wife does not point to any unusual circumstances that would require extension of the filing deadline, nor did she request an extension of time to file an appeal. See id.;
CONCLUSION
{44} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
TIMOTHY L. GARCIA, Judge
Topic Index for Clinesmith v. Temmerman, No. 31,230
APPEAL AND ERROR
Standard of Review
CIVIL PROCEDURE
Dismissal
Final Order
DOMESTIC RELATIONS
Guardians and Conservators
JURISDICTION
Ancillary
District Court
Subject Matter
STATUTES
Interpretation
WILLS, TRUSTS, AND PROBATE
Administration of Estate
Competence
Personal Representative
Testamentary Intent
Trusts, General