November 02, 2012 – Ruth Clinesmith v. Cathe Temmerman, No. 31,230

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _November 2, 2012

NO. 31,230

IN THE MATTER OF BRUCE C, CLINESMITH,
an Adult Incapacitated Person (now deceased),

RUTH CLINESMITH,
Interested Party-A ppellant,
V.
CATHE TEMMERMAN,
Petitioner Appellee,
and
DECADES, LLC,
Conservator: A ppellee Intervenor,
and
MOODY BIBLE INSITTUTE OF CHICAGO,

Intervenor-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Linda M. Vanzi, District Judge
Peter B. Shoenfeld, P.A.
Peter B. Shoenfeld
Santa Fe, NM
Sawtell, Wirth & Beidscheid, P.C.
Peter F. Wirth
Santa Fe, NM
for Appellant
Hurley, Toevs, Styles, Hamblin & Panter, P.A.
Gregory W. MacKenzie
Albuquerque, NM
for Appellee Cathe Temmerman
Pregenzer, Baysinger, Wideman & Sale, PC
Ruth O. Pregenzer
Albuquerque, NM
for Conservator-Appellee Decades, LLC
Keleher & McLeod, P.A.
W. Spencer Reid
Thomas C. Bird
Gary J. Van Luchene
Albuquerque, NM
for Intervenor-Appellee Moody Bible Institute of Chicago

OPINION
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 suffered from dementia such that he was incapable of managing both his
declining health and his estate of over $11 million. At the time the petition was filed,
Mr. Clinesmith was eighty-seven years old and living with his Wife in a private

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residence, but after a hospital stay he was moved into the dementia/Alzheimer’s unit
at an elder care facility in late May 2005. 	Mr. Clinesmith and Wife, initially both
represented by attorney Stuart Stein, opposed the petition.
{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 NMSA 1978, Section 45-5-407 (1998) of the Uniform
Probate Code (UPC), the district court appointed a guardian ad litem on March 4,
2005, to represent Mr. Clinesmith. See NMSA 1978, §§ 45-1-101 to -7-612 (1975,
as amended through 2012). On August 5, 2005, the district court appointed Decades,
LLC, 	an 	elder 	care 	management 	organization, 	as 	a 	temporary 	guardian 	and
conservator with “full” powers to manage Mr. Clinesmith’s assets. The same order
disqualified Mr. Stein from representing Mr. Clinesmith on the ground that his

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interests and Wife’s interests were adverse and, therefore, Mr. Stein could not
represent both. The order also revoked the 2004 power of attorney granted to Wife
by Mr. Clinesmith.
{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.

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{7} 	Decades and Ms. Temmerman (Appellees) filed a motion and sought an
emergency hearing to prevent Mr. Stein from “interfer[ing] . . . with Decades’
performance of its duties and the exercise of its powers as temporary guardian and
conservator of [Mr.] Clinesmith.” The specific relief requested was an order
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

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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, Rule 16-402 NMRA
(communication with persons represented by counsel); Rule 16-804(C) NMRA
(misconduct); Rule 16-109(A) NMRA (representing a person in the same or
substantially related matter in which that person’s interests were materially adverse
to those of a former client). In re Stein, 2008-NMSC-013, ¶¶ 27, 32, 39. Recognizing
that Mr. Stein had described Mr. Clinesmith in pleadings as suffering from early
stages of dementia and otherwise expressed doubt as to Mr. Clinesmith’s competency,
the Court wrote, “[w]hat is so reprehensible to this Court is that [Mr. Stein],

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acknowledging that [Mr. Clinesmith’s] mental capacity was in question, attempted to
take money from him and transfer it to [Wife,] while purporting to represent both of
them.” Id. ¶ 25.
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

7
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 Rule 12-201
NMRA.
{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

8
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.”).
B. 	The District Court Had Jurisdiction Over The New Estate Plan
{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

9
manage the property or financial affairs or both of a protected person[.]” Section 45-
5-101(A). 	“In the exercise of a conservator’s powers, a conservator shall act as a
fiduciary . . . .” 	Section 45-5-417. 	Thus, a conservator has the authority and
obligation to manage the financial affairs of the protected person in that person’s
stead.
{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’

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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 [c]onservator[,]” the facts, recited by
Wife in her response, reflect that Decades sought to prevent the meeting and the
signing of documents, and that this objective was thwarted by Wife and Mr. Stein.
Wife’s response itself is evidence that the motion was sufficient to provide notice of
Decades’ intent.
{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

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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.” 	N.M. Const. art. VI, § 13. 	Probate proceedings are special
proceedings. 	In re Estate of Harrington, 2000-NMCA-058, ¶ 14, 129 N.M. 266, 5
P.3d 1070. In In re Estate of Harrington, however, this Court held that the UPC gives
“district courts general civil jurisdiction in formal probate proceedings.” Id. ¶¶ 17, 22;
see §§ 45-1-302, -302.1. 	In that case, the question was whether the district court
sitting in probate had the authority to liquidate a business that was the subject of a will

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contest. In re Estate of Harrington, 2000-NMCA-058, ¶ 1. This Court concluded that
it did based on construction of the language of Section 45-1-302(B), which gives the
district court power to, among other things, “make orders, judgments and decrees and
to take all other action necessary and proper to administer justice in matters that come
before it.” Id.; In re Estate of Harrington, 2000-NMCA-058, ¶ 16. This Court also
found that the UPC’s intent to “promote a speedy and efficient system for the
settlement of the estate of the decedent” is facilitated by vesting general civil
jurisdiction in the district court in formal probate proceedings. 	Id. 	¶ 19 (internal
quotation marks and citation omitted); cf. Ottino, 2001-NMCA-012, ¶ 14 (stating that
“the district court’s original jurisdiction arises from our state’s constitution” and
explaining that “[i]n this light, the statutory jurisdiction vested in our district courts
for the purposes of . . . entering orders . . . upon divorce ought not to be viewed as a
limitation upon the courts’ original jurisdiction, but as an augment to it”).
{20} 	In re Estate of Harrington applies to formal probate proceedings, which are
different from conservatorship proceedings. 	See § 45-3-401(A) (“A formal testacy
proceeding is litigation to determine whether a decedent left a valid will.”).
Nevertheless, the factors that led the In re Estate of Harrington Court to its conclusion
are also present in conservatorship proceedings and, therefore, we determine that
district courts have general civil jurisdiction over them. 	We note first that “[t]he

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[UPC] governs conservatorship proceedings.” 	In re Conservatorship of Chisholm,
1999-NMCA-025, ¶ 8, 126 N.M. 584, 973 P.2d 261. Thus, the general definitions and
requirements of the UPC apply to conservatorship proceedings to the extent they do
not conflict with specific provisions within Article 5 of the UPC, which governs
protection of minors and incapacitated persons. See, e.g., §§ 45-1-102, -201, -5-101.
Secondly, the issues to be resolved in formal probate proceedings are similar in
gravity to those addressed by conservatorship proceedings. 	The New Mexico
Constitution reserves to district courts sitting in probate, rather than probate courts,
those issues related to title or possession of real property, which are often the most
significant, contested, and complex aspects of the decedent’s estate. N.M. Const. art.
VI, § 23; see In re Estate of Duncan, 2002-NMCA-069, ¶ 15, 132 N.M. 426, 50 P.3d
175, rev’d on other grounds by In re Estate of Duncan v. Kinsolving, 2003-NMSC-
013, ¶ 8, 133 N.M. 821, 70 P.3d 1260. This division of labor indicates the desire to
give these issues the greater protections of a district court.
{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

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or the estate, Section 45-5-405; (2) careful consideration of the least restrictive means
of managing the affairs of the protected person, Section 45-5-402.1(A); (3)
appointment of a guardian ad litem, visitor, and health care professional to advise the
court on the capacity of the person to be protected, Section 45-5-407(B), (C), (D); a
jury trial, if requested, Section 45-5-407(P); and (4) processes for the protected person
to terminate the conservatorship, Section 45-5-430.
{22} 	In addition, like district courts sitting in formal probate proceedings, district
courts in conservatorship proceedings exercise broad powers. Section 45-1-302, a
general provision applicable to conservatorship proceedings, provides that:
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, Section 45-5-405.1 states that once a basis for
appointment of a conservator has been established,

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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, Section 45-5-402 provides that
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 to protect the person and property of persons whose functional
and decision-making capacity has become impaired.” 57 C.J.S. Mental Health § 151.
The facts before us here provide a prime example of why limiting the district court’s

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authority would frustrate that purpose. A temporary conservator was appointed to
manage Mr. Clinesmith’s estate and financial affairs. Obviously, conduct interfering
with those duties is contrary to the goal of the appointment. To hold that the district
court was powerless to rectify the interference would frustrate the overarching purpose
of the proceedings: the protection of Mr. Clinesmith and his financial affairs.
{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[,]” Section 45-1-201(A)(19), whereas informal proceedings are
“conducted without notice to interested persons.” Section 45-1-201(A)(25). The UPC
includes extensive notice requirements for conservatorship proceedings, not only for
the initial petition for conservator, but also for other motions and petitions in the
course of the proceedings. 	See, e.g., §§ 45-5-402.1(B)(3), (C), -405, -406(A)
(requiring notice to “[a]ny interested person who desires to be notified before any
order is made in a . . . protective proceeding” who requests notice); §§45-5-416(C),
-430.

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{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., §§ 45-5-402, -402.1(B)(3) (giving the court “all the powers
over the estate and financial affairs which the [protected] person could exercise if
present and not under disability, except the power to make a will”); §§ 45-5-405.1, -
407, -416(C) (stating that “[u]pon notice and hearing, the court may give appropriate
instructions or make any appropriate order” on motions subsequent to appointment of
a conservator). 	Thus, the UPC sets out specific procedures for appointment of a
conservator for the protection of the rights of the incapacitated person. See § 45-5-
402.1(A) (stating that the court’s authority must be exercised to promote the
“maximum self-reliance and independence of a protected person and [the court may]
make protective orders only to the extent necessitated by the protected person’s
mental and adaptive limitations”). 	Failure to follow these rules renders the
proceedings invalid. See Bonds v. Joplin’s Heirs, 64 N.M. 342, 345, 328 P.2d 597,
599 (1958). 	In fact, under these rules, conservatorship proceedings are formal by
default: unlike the proceedings available for probate of a will, there is no procedure
whereby a conservator may be appointed without judicial oversight.
{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

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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.
3. 	The District Court Had The Power to Void The New Estate Plan Prior to
Mr. Clinesmith’s Death
{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 § 45-5-402(B) (“After the service of notice in a proceeding

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seeking the appointment of a conservator . . . until termination of the proceeding, the
court . . . has . . . exclusive jurisdiction to determine how the estate of the protected
person . . . shall be managed[.]” 	The order voiding the new estate plan was an
exercise of the district court’s general civil jurisdiction over conduct that contravened
that authority.
{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

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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 were directed at Mr. Clinesmith’s
testamentary capacity. Rather, the focus of the hearing was on Mr. Stein’s behavior
in light of the district court’s order prohibiting him from representing Mr. Clinesmith
and the appointment of a guardian ad litem and conservator for Mr. Clinesmith.
Although the district court questioned Mr. Stein about his understanding of Mr.
Clinesemith’s capacity and referred to Mr. Clinesmith’s capacity in the hearing, the
order voiding the new estate plan was not directed at whether Mr. Clinesmith intended
to amend his estate plan; rather its effect was to return Mr. Clinesmith to the status
quo ante the interference. As discussed, the district court had general civil jurisdiction
over these proceedings. Nothing in Lucero limits that authority in this case.
{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

21
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

22
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 was representing Mr. Clinesmith’s interests until the staff from Decades
arrived, and they were unsuccessful in stopping the meeting or the signing of
documents.
{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

23
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. NMSA 1978, § 39-3-2 (1966); Kelly
Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 234 n.7, 824 P.2d 1033, 1036 n.7
(1992). “The general rule in New Mexico for determining the finality of a judgment
is that an order or judgment is not considered final unless all issues of law and fact
have been determined and the case disposed of by the trial court to the fullest extent

24
possible.” Kelly Inn, 113 N.M. at 236, 824 P.2d at 1038 (internal quotation marks and
citation omitted). This general rule is not inflexible. Id. It “is to be given a practical,
rather than a technical, construction.” Id.
{36} 	In this case, a detailed analysis of the practical effect of court orders is
unnecessary because Section 45-3-107 of the UPC addresses this question. 	In the
context of probate proceedings, “each proceeding before the district court or probate
court is independent of any other proceeding involving the same estate.” Id.; see In
re Estate of Newalla, 114 N.M. 290, 294, 837 P.2d 1373, 1377 (Ct. App. 1992) (“To
hold that orders terminating separate proceedings are final orders is to give finality a
practical, rather than a technical, construction.” (internal quotation marks and citation
omitted)). An order is final if it is dispositive as to the issues raised in the petition
prompting the order. In re Estate of Newalla, at 294, 837 P.2d at 1377; see § 45-1-
201(A)(38) (defining “petition” as “a written motion or other request to the district
court for an order after notice”). 	Multiple petitions may be addressed in a single
proceeding and order, and “no petition is defective because it fails to embrace all
matters which might then be the subject of a final order.” Section 45-3-107. This rule
of the UPC works in conjunction with Rule 1-054 NMRA. 	See § 45-1-308
(“Appellate review, including the right to appellate review [and] interlocutory appeal,
. . . is governed by the rules applicable to civil appeals to the [C]ourt of [A]ppeals

25
from the district court.”); Rule 1-054; In re Estate of Newalla, 114 N.M. at 294-95,
837 P.2d at 1377-78 (stating that when there is more than one claim in a petition, “an
order is ordinarily final and appealable only when both matters have been decided,
subject, of course, to [Rule 1-054(B)(1)], [which] permits a court to enter a final
judgment as to fewer than all of the claims presented in an action if there is no just
reason for delay”). Under this rubric, the question of whether an order is final is a
factual inquiry into whether the district court has fully decided the issues in the
petition that prompted it.
{37} 	A final order may be appealed pursuant to the Rules of Appellate Procedure.
See § 45-1-308 (stating that appeals from proceedings conducted under the UPC are
“governed by the rules applicable to civil appeals to the [C]ourt of [A]ppeals from the
district court”). The Rules of Appellate Procedure provide that an appeal of right from
the district court “shall be filed . . . within thirty (30) days after the judgment or order
appealed from is filed in the district court clerk’s office.” Rule 12-201(A)(2). This
rule states a “mandatory precondition[ ] to the exercise of jurisdiction,” not an
“absolute jurisdictional requirement.” Trujillo v. Serrano, 117 N.M. 273, 277-78, 871
P.2d 369, 373-74 (1994) (emphasis omitted). Under Trujillo, this Court may review
an appeal even when not timely filed, but “[o]nly [in] the most unusual circumstances
beyond the control of the parties.” 	Id. at 278, 871 P.2d at 374. 	“Procedural

26
formalities should not outweigh basic rights where the facts present a marginal case
which does not lend itself to a bright-line interpretation.” Id. at 276, 871 P.2d at 372.
The flexibility of this rule notwithstanding, “[c]ounsel should not rely on the court’s
munificence when filing notices of appeal. It is incumbent upon the parties to strictly
adhere to our clearly articulated rules of procedure.” Id. at 278, 871 P.2d at 374.
{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 Rule 12-201. Wife filed a “notice of voluntary abandonment of

27
appeal” three months later on February 2, 2006, pursuant to NMSA 1978, § 39-3-14
(1851-1852), which provides that:
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. Section 39-
3-14 states that, upon voluntary dismissal of an appeal, it is “as if said cause had never
been removed from [the] inferior court.” As Wife acknowledges, upon dismissal of
an appeal, the parties are returned to their positions as of the entry of judgment in the
lower court and retain their right to appeal the judgment subject to the statutes and
rules governing appeals. See id.; Rule 12-401(B) NMRA; Rule 12-201. These rules
require that an appeal be filed within thirty days. See Rule 12-201(A)(2). Wife was,
therefore, obliged to file her appeal to the October 7 order within thirty days,
regardless of whether the first appeal was voluntarily dismissed.

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{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 Section 39-3-14 is correct. In United States v. Arevalo, 408 F.3d
1233, 1237 (9th Cir. 2005), the Ninth Circuit Court of Appeals held that “an appellant
who has voluntarily dismissed his appeal must move to reinstate within the time limits
for filing a notice of appeal, or seek an extension of time from the district court to re-
file the notice of appeal.” (citation omitted). Accord Williams v. United States, 553
F.2d 420 (5th Cir. 1977) (stating that dismissal of an appeal “placed [appellant] in the
same position as if they had never filed a notice of appeal in the first place” 	and
stating that “[t]heir next notice of appeal was not filed until over a year after the
judgment complained of was handed down [which was] obviously well outside the
sixty-day limit”).
{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.; Rule 12-201(E)(1),
(2). Furthermore, the extended period between the October 7 order and the date the
appeal was filed—over five years—would stretch the flexibility permitted by Trujillo
well beyond its breaking point. 	See Trujillo, 117 N.M. at 278, 871 P.2d at 374;

29
Chavez v. U-Haul Co. of N.M., 1997-NMSC-051, ¶¶ 19-22, 124 N.M. 165, 947 P.2d
122 (hearing an appeal where notice was filed fifty-eight minutes late, but declining
to hear an appeal filed thirty days late).
CONCLUSION
{43} 	In conclusion, there was no jurisdictional bar to the district court’s order
voiding the plan. Since the court had jurisdiction and the October 7 order resolved all
of the issues pertaining to the petition that prompted it, the order was final and
appealable. 	Wife filed this appeal over five years after that order was filed, well
beyond the thirty-day deadline, and has provided no extraordinary reason for this
Court to consider the untimely appeal. We decline to do so and dismiss the appeal.
{44} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

TIMOTHY L. GARCIA, Judge

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