January 30, 2020- Jeffrey W. Sandel v. Jerry W. Sandel, No. A-1-CA-36397

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in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 30, 2020

No. A-1-CA-36397
JEFFREY W. SANDEL,

Plaintiff-Appellant,
v.

JERRY W. SANDEL, individually,
and in his capacity as Personal
Representative of THE ESTATE -
OF NANCY M. SANDEL,

and in his capacity as Trustee

of THE JERRY W. AND NANCY
M. SANDEL TRUSTS,

Defendants-Appellees.

Court of Appeals of New Mexico
Filed 1/30/2020 12:05 PM

Hn
Mark Reynolds

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Louis E. DePauli, Jr., District Judge

Bustos Law Firm, P.C.
Dustin N. Slade, Of Counsel

Fernando M. Bustos
Lubbock, TX

for Appellant

Hurley Toevs Styles Hamblin & Panter PA

Gregory W. MacKenzie
Lalita Devarakonda
Albuquerque, NM

—

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4

Gurley Law Firm
Curtis Gurley
Aztec, NM

for Appellees

1 	OPINION
2 MEDINA, Judge.
3 {l} 	Plaintiff Jeffrey Sandel appeals the district court's order dismissing his
4 complaint on the grounds that Plaintiff was collaterally estopped from bringing his
5 tort claims and barred by the statute of limitations for bringing a claim under the
6 New Mexico Uniform Probate Code (the Probate Code). We affirm.
7 BACKGROUND
8 {2} 	This action arises out of an intergenerational dispute over the proceeds of a
9 marital trust. Plaintiff is the adult son of Defendant Jerry Sandel and his now-
10 deceased wife, Nancy Sandel. Defendant and Mrs. Sandel jointly executed the Jerry
11 	W. and Nancy M. Sandel Revocable Trust (the Trust) in 1974. The Trust was
12 amended and restated several times over the years, with the last amendments and
13 	restatements occurring in June 1995 (the 1995 Amendment), January 1999 (the 1999
14 Restatement), and May 2001 (the 2001 Restatement). Following Mrs. Sandel's death
15 	in 200 l, Defendant, the personal representative of Mrs. Sandel' s estate, informally
16 probated her estate in August 2002. As we describe in detail below, Plaintiff first
17 brought suit against Defendant, individually, as well as in his capacity as the
18 	personal representative of Mrs. Sandel's estate and trustee of the Trust in federal
19 .court, and when those claims were dismissed, Plaintiff then filed this action.

1 The Federal Lawsuit
2 	{3} 	In October 2015, fourteen years after Mrs. Sandel's death, Plaintiff filed suit
3 in federal district court (the Federal Suit) against Defendant, alleging fraud, breach
4 	of trust, and conversion. Plaintiffs complaint alleged that under the original terms
5 of the Trust, following the deaths of both Defendant and Mrs. Sandel, the Trust
6 principal was to be distributed in equal parts to Plaintiff and his two siblings over
7 the course of time until they reach thirty-five years of age, at which time they could
8 demand their remaining full share of the marital trust principal. However, the Trust
9 was amended in 1995 and then amended and restated in 2001 in such a way to
10 ultimately eliminate Plaintiffs right to demand the principal of the Trust-which
11 	Plaintiff claimed was 	in the millions 	of dollars. 	A handwriting 	expert, 	who
12 	subsequently reviewed the 1995 Amendment and 2001 Restatement, concluded that
13 	Mrs. Sandel' s signatures on two instruments were forged. The complaint further
14 alleged that Defendant: ( 1) knew that Mrs. Sandel' s signature was forged on the two
15 	instruments; (2) intentionally misled Plaintiff by telling him that Defendant and Mrs.
16 	Sandel "modified the terms of [Mrs. Sandel' s] testamentary documents such that
17 Plaintiff ... had no inheritance rights,·present or future, to any of the assets in [Mrs.
18 	Sandel's] estate[;]" and (3) fraudulently concealed the existence of the Trust by
19 telling Plaintiff in March 2009·and February 2010 that "there was no trust in which
20 Plaintiff ... had any interest." As a result of Defendant's representations, Plaintiff
2

1 claimed that he did not contest the validity of the Trust or the disposition ~f Mrs.
2 	Sandel's estate until he was able to obtain a copy of the 1995 Amendment and 2001
3 Restatement through discovery in a separate lawsuit. 1
4 	{4} 	Defendant filed a motion for judgment on the pleadings, which the federal
5 district court _granted as to the counts for fraud, breach of trust, and conversion.
6 Sandel v. Sandel, No. CV-15-924 MCAIKK, 2016 WL 7535356 (D.N.M. July 18,
7 2016). In doing so, the federal court found that those claims were foreclosed by
8 	Wilson 	v. 	Fritschy, 	2002-NMCA-105; 	132 	N.M. 	785, 	55 	P.3d 	997, 	which
9 "established that 'when the interference with inheritance takes place in the context
10 of a will or other testamentary device that can be challenged in probate,' the plaintiff
11 	must utilize the Probate Code, rather than tort law, to obtain relief." Sandel, 2016
12 	WL 7535356, at *1 (quoting Wilson, 2002-NMCA-105,, 12). Although the federal
13 	district court dismissed Plaintiffs tort claims, it noted that Plaintiff could potentially
14 pursue his fraud claim under NMSA 1978, Section 45-1-106(A) (1975), a Probate
15 	Code provision that allows any person to obtain "appropriate relief' within two years
16 	of discovering fraud "perpetrated in connection with any proceeding or in any
17 statement filed under the . . . Probate Code or . . . fraud . . . used to avoid or
18 	circumvent the provisions or purposes of the code." See Sandel, 2016 WL 7535356,
19 	at* 1.
1
Plaintiff did not specify when this lawsuit took place.
3

1 The State Lawsuit
2 	{5} 	Following the dismissal of the Federal Suit, Plaintiff filed the instant action in
3 state district court in August 2016. Plaintiffs complaint alleged fraud, breach of
4 trust, and tortious interference with an expected inheritance based largely on the
5 same facts he alleged in the Federal Suit. Plaintiff further alleged that the same
6 handwriting expert who reviewed the 1995 Amendment and 2001 Restatement
7 believed that the 1999 Restatement was likely forged as well. In addition to the above
8 causes of actions, Plaintiff contended that Defendant breached his duty as personal
9 representative to Mrs. Sandel' s estate by intentionally failing to inform Plaintiff of
10 the estate's informal probate, which Plaintiff claimed he did not learn of until 2009.
11 	Although Plaintiff admitted learning in 2009 that Mrs. Sandel' s estate had been
12 probated in 2002, the complaint alleged that Plaintiff did not discover the fraud until
13 	2015.
14 	{6} 	In response, Defendant filed a counterclaim against Plaintiff for malicious
15 	abuse of process. Additionally, Defendant moved to dismiss for failure to state a
16 claim, arguing that the Federal Suit barred Plaintiffs tort claims under the doctrine
17 	of res judicata. Defendant also argued that Plaintiffs claims were time-barred under
18 NMSA 1978, Section 46A-6-604(A) (2007), which provides that "[a] person may
19 commence a judicial proceeding to contest the validity of a trust that was revocable
20 at the settlor's death within the earlier of ... three years after the settlor's death; or
4

1 . . . one hundred twenty days after the trustee sent the person a copy of the trust
2 [along with a notice containing certain information]." Alternatively, Defendant
3 argued that Plaintiffs claims were time-barred because Plaintiff knew or should
4 have discovered the alleged fraud in 2009.
5 	{7} 	Defendant attached several exhibits in support of his motion, including
6 multiple affidavits from his estate planning attorney in which the attorney described
7 his personal involvement with drafting the provisions of the Trust-including the
8 1995 	Amendment, 	1999 Restatement, 	and 2001 	Restatement-as 	well as his
9 involvement with the informal probate of Mrs. Sandel's will. Defendant's attorney
10 	also attested that he met with Plaintiff on June 5, 2002, to go over Mrs. Sandel's will
11 	and the disposition provisions of the Trust and that he sent Plaintiff a complete copy
12 	of Mrs. Sandel' s will and the 2001 Restatement on April 9, 2009. Additionally,
13 	Defendant attached a copy of Mrs. Sandel's will devising her entire estate (besides
14 personal 	and household effects) to the Trust, as well as copies 	of the 	1995
15 	Amendment, 1999 Restatement, and 2001 Restatement-including the unnotarized
16 	signature pages with Mrs. Sandel' s purportedly forged signatures.
17 {8} 	In addition to the above, Defendant attached two other exhibits to the motion.
18 	One was a copy of an email Plaintiff sent to Defendant's attorney in 2009 in which
19 Plaintiff wrote:
20
21
I received a copy of the [Trust] ... you sent me on April 9, 2009 and of
course I plan on challenging it in court. I have retained [an attorney] in
5

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Farmington and have 	sent a 	copy to 	my 	family 	law 	attorney 	in
· California ... and given him permission to give a copy of the trust to
other attorneys that may be interested in representing me. As you know
[Defendant] 	has 	repeatedly 	lied to 	me 	about the 	[T]rust 	and 	on
numerous occasions has told me there is no trust and then later told me
that all of my mother's trust is in his name .... [Defendant] has
constantly defamed me and lied to me about the [T]rust that was
originally set up for my comfort, support, and welfare which instead
has 	been used to 	manipulate, 	defame, 	abuse, 	and hurt me. 	. 	. 	.
[Defendant] is liable for damages that have been caused by his neglect
and mishandling of an estate that he pretends to be the sole owner of
which is not true. I will personally sue your client for damages· and I
will win.
14 The other was a short, six-paragraph affidavit Plaintiff submitted in the Federal Suit
15 	in which Plaintiff admitted sending an e-mail in 2009 threatening to challenge the
16 Trust in court. In that affidavit, Plaintiff attested that "[i]n or around 2001, shortly
17 after the death of [Mrs. Sandel], ... Defendant ... told [PlaintiffJ that he and [Mrs.
18 	Sandel] had modified the terms of [her] testamentary documents such that [Plaintiff]
19 had no inheritance rights, present or future, to any of the assets in [Mrs. Sandel' s]
20 estate" and that Defendant told Plaintiff in 2009 and 2010 that "there was no trust in
21 	which [Plaintiff] had any interest." Plaintiff also attested that he did not discover the
22 purported forgeries until 2015 because Mrs. Sandel's signatures "on the 1995, 1999,
23 	and 2001 [T]rust instruments here in dispute looked similar enough to hers that
24 	[Plaintiff] did not question them when [he] saw them." In sum, over sixty pages of
25 	supporting documents were attached to Defendant's motion to dismiss ..
6

1 {9} 	Plaintiff responded, setting forth his "separate statement of undisputed facts,"
'
2 to which he attached the same affidavit of his from the Federal Suit and a copy of
3 the same e-mail Plaintiff sent to Defendant's attorney. Plaintiff also attached various
4 pleadings from the Federal Suit, including the f~deral district court's order granting
5 judgment on the pleadings. Plaintiff argued that his tort claims were not barred by
6 res judicata because the Federal Suit did not resolve the merits of his challenge to
7 the validity of the Trust under the Probate Code. Next, Plaintiff argued-relying on
8 his affidavit from the Federal Suit-that his claims did not accrue until he discovered
9 the purported forgeries in 2015. Lastly, Plaintiff argued that Defendant should be
10 equitably estopped from raising a statute of limitations defense.
11 	{10} 	Because the parties submitted materials outside of the pleadings that were not
12 excluded by the state district court, the court was obligated to treat Defendant's
13 	motion to dismiss as one for summary judgment. See Rule l-012(B) NMRA (stating
14 that if "matters outside the pleadings are presented to and not excluded by the court,
15 	the motion shall be treated as one for summary judgment and disposed of as provided
16 by Rule 	1-056 NMRA[.]"). 	After considering Defendant's motion, "all other
17 pleadings generated by the motion, the applicable law," and the "undisputed facts,"
18 the state district court granted Defendant's motion. Notwithstanding that Defendant
19 	sought dismissal on res judicata grounds, the state ,district court held that Plaintiff
20 was "collaterally estopped from proceeding in tort." Further, the court held that, "[i]n
7

1 any event, whether proceeding in tort or probate, all possible statutes of limitations
2 have run[.]" The district court's statute of limitations ruling was based on the
3 following factual allegations which the court accepted as undisputed and therefore
4 true: ( 1) Defendant told Plaintiff in 2001 that Mrs. Sandel' s testamentary documents
5 had been altered in such a way to eliminate Plaintiffs inheritance rights; 	(2)
6 Defendant told Plaintiff in March 2009 that there was no trust in which Plaintiff had
7 an interest; (3) Plaintiff was aware of the Trust and knew of its terms since 2009;
8 and (4) Plaintiff threatened litigation to challenge the Trust in 2009. Based on these
9 	facts, the district court held that Plaintiff knew or should have learned of his causes
10 of action in 2009, at the very latest. Because Plaintiff did not bring the suit until
11 	2016-seven years later-the district court held that Plaintiffs claims were time-
12 barred and dismissed his complaint with prejudice. This appeal followed.
13 	DISCUSSION
14 	{11} 	Plaintiff makes three arguments on appeal. First, Plaintiff contends that the
15 	district court improperly held that the Federal Suit precluded him from his bringing
16 tort claims in state district court because the elements of collateral estoppel were not
17 met. Second, Plaintiff contends that he timely brought his claims pursuant to Section
18 	45-1-106 of the Probate Code because he did not discover Defendant's purported
8

1 forgeries until 2015. Lastly, Plaintiff claims that Defendant should be equitably
2 estopped from raising the statute of limitations defense. We address each in tum.2
3 	Standard of Review
4 	{12} 	We review orders granting summary judgment de novo. Romero v. Philip
5 Morris Inc., 2010-NMSC-035, 17, 148 N.M. 713,242 P.3d 280. Summary judgment
6 is appropriate where the "pleadings, depositions, answers to interrogatories and
7 admissions on file, together with the affidavits, if any, show that there is no genuine
8 issue as to any material fact and that the moving party is entitled to a judgment as a
9 matter of law." Rule 1-056(C). "An issue of fact is 'material' if the existence (or
10 non-existence) of the fact is of consequence under the substantive rules of law
11 	governing the parties' dispute." Oakey, Estate of Lucero v. May Maple Pharmacy,
12 Inc., 2017-NMCA-054, 1 15, 399 P.3d 939 (internal quotation marks and citation
13 	omitted).
14 	{13} 	The movant has the initial burden of making a prima facie showing that he is
15 	entitled to summary judgment, which constitutes "such evidence as is sufficient in
2Defendant claims that Plaintiff failed to preserve his arguments because he
did not raise them in his docketing statement. Defendant is mistaken, however, as
cases assigned to the general calendar are no longer restricted to briefmg only those
issues raised in the docketing statement. See Rule 12-318(A)(l) Nl\1RA (providing
that "[t]he appellant may raise issues in addition to those raised in the docketing
statement or statement of the issues unless the appellee would be prejudiced").
Defendant does not claim that he would be prejudiced, and we therefore proceed to
address Plaintiffs arguments.
9

1 law to raise a presumption of fact or establish the fact in question unless rebutted."
2 Romero, 2010-NMSC-035, 1 10 (internal quotation marks and citation omitted).
3 Once the movant establishes this prima facie case for summary judgment, "the
4 burden shifts to the non-movant to demonstrate the existence of specific evidentiary
5 facts which would require trial on the merits." Kreutzer v. Aldo Leopold High Sch.,
6 2018-NMCA-005, 1 27, 409 P.3d 930 (internal quotation marks and citation
7 omitted). When attempting to meet this burden, the non-movant cannot rely on
8 allegations or speculation but must present admissible evidence demonstrating the
9 existence of a genuine issue of a material fact. Id. "If the non-movant fails to do so,
10 summary judgment, if appropriate, shall be entered against him." Id. 	(internal
11 	quotation marks and citation omitted). In determining whether there exists a genuine
12 	issue of material fact, "[w]e review the record in the light most favorable to support
13 	a trial on the merits, and we construe all reasonable inferences from the record in
14 	favor of the party that opposed summary judgment." Griffin v. Penn, 2009-NMCA-
15 	066, 17, 	146 N.M. 610, 213 P.3d 514 (internal quotation marks and citations
16 omitted).
17 {14} 	Although our courts view summary judgment with disfavor, see Romero,
18 	2010-NMSC-035, 18, "[t]he Rule 1-056 procedure serves a worthwhile purpose in
19 disposing of groundless claims, or claims which cannot be proved, without putting
20 the parties and the courts through the trouble and expense of full blown trials on
10

1 these claims." 	Kreutzer, 	2018-NMCA-005, , 	30 (alteration, internal quotation
2 marks, and citation omitted).
3 I. 	Res Judicata, Not Collateral Estoppel, Bars Plaintiff's Tort Claims
4 	{15} 	Plaintiff first challenges the district court's holding that Plaintiff is collaterally
5 estopped from proceeding with his tort claims. Specifically, Plaintiff argues, among
6 other things, that the doctrine of collateral estoppel does not apply because the causes
7 	of action in the two suits are the same. We agree. As our Supreme Court has stated:
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[Collateral estoppel] bars re-litigation of the same issue if (1) the party
to be estopped was a party to the prior proceeding, (2) the cause of
action in the case presently before the court is different from the cause
of action in the prior adjudication, (3) the issue was actually litigated
in the prior adjudication, and (4) the issue was necessarily determined
in the prior litigation. . . . If any one element is not satisfied issue
preclusion is not applicable.
15 Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022,, 9, 148 N.M. 228,
16 233 P.3d 362 (emphasis added). 3 Here, although Plaintiff brought two additional
17 claims for breach of fiduciary duty and tortious interference with an expected
18 inheritance that he did not bring in the Federal Suit, all of his causes of action arise
3
W e recognize that because the initial judgment comes from federal court, we
apply the federal law of collateral estoppel. See Deflon v. Sawyers, 2006-NMSC-
025, , 	13, 139 N.M. 637, 137 P.3d 577. However, as federal courts, unlike New
Mexico courts, do not require that the two suits contain different causes of action,
compare Shove/in v. Cent. N.M Elec. Coop.,, 10, 115 N.M. 293, 850 P.2d 996
(1993), with Smith v. Dinwiddie, 510 F.3d 1180, 1188 (10th Cir. 2007), we must
adhere to New Mexico law in regard to this element. See Deflon, 2006-NMSC-025,
, 	13 (stating that our courts will apply federal preclusion law "unless doing so
conflicts with precedent from [our Supreme Court]").
11

1 out 	of Defendant's purported forgeries 	and alleged motivation to wrongfully
2 disinherit Plaintiff. Accordingly, the causes of action in Plaintiffs suits are the same,
3 cf Chaara v. Lander, 2002-NMCA-053,, 15, 132 N.M. 175, 45 P.3d 895 ("[C]laims
4 present the same 'cause of action' for purposes of res judicata if they arise out of the
5 same transaction, or series of connected transactions." (internal quotation marks and
6 citatio!l omitted)); cf also Three Rivers Land Co. v. Maddoux, 1982-NMSC-1 l 1,
7 , 27, 	98 	N.M. 	690, 	652 	P.2d 	240 	("What 	factual 	grouping 	constitutes 	a
8 "transaction[,]" and what groupings constitute a "series[,]" are to be determined
9 pragmatically, giving weight to such considerations as whether the facts are related
10 in time, space, origin, or motivation, whether they form a convenient trial unit, and
11 	whether their treatment as a unit conforms to the parties' expectations or business
12 	understanding or usage." (internal quotation marks and citation omitted), overruled
13 	on other grounds by Universal Life Church v. Coxon, 1986-NMSC-086,, 9, 105
14 N.M. 57, 728 P.2d 467), and collateral estoppel does not apply to the case at hand.
15 	See Ideal, 2010-NMSC-022,, 9.
16 	{16} 	Nonetheless, as we explain, we affirm on the related doctrine of res judicata.
17 Defendant's motion to dismiss accurately argued that res judicata barred Plaintiffs
18 tort claims from being litigated again, and Plaintiff responded to the arguments
19 raised by Defendant. Consequently, we may affirm the district court's judgment on
20 the grounds of res judicata under the right for any reason doctrine. See Wild Horse
12

l 	Observers Ass 'n, Inc. v. N.M LivestockBd., 2016-NMCA-001, 129,363 P.3d 1222
2 ("An appellate court may affirm a distric~ court if it was right for any reason and
3 affirming on new grounds would not be unfair to the appellant."); cf Blea v.
4 Sandoval, 1988-NMCA-036, 18, 107 N.M. 554, 761 P.2d 432 (holding that, despite
5 the defendant's erroneous reliance on res judicata on appeal, collateral estoppel .
6 applied and precluded the plaintiffs from claiming superior title).
7 {17} 	"Res judicata is a judicially created doctrine designed to promote efficiency
8 and finality by giving a litigant only one full and fair opportunity to litigate a claim
9 and by precluding any later claim that could have, and should have, been brought as
10 part of the earlier proceeding." Potter v. Pierce, 2015-NMSC-002, 11, 342 P.3d 54.
11 	"Because the prior action was in federal court, federal law determines the preclusive
12 	effect of a federal judgment." Moffat v. Branch, 2005-NMCA-103, 111, 138 N.M.
13 	224, 118 P.3d 732. Nonetheless, as New Mexico does not diverge from federal law
14 with respect to res judicata, we may employ state precedent. See Deflon, 2006-
15 	NMSC-025, 12. "A party asserting res judicata or claim preclusion must establish
16 that (1) there was a final judgment in an earlier action, (2) the earlier judgment was
17 on the merits, (3) the parties in the two suits are the same, and (4) the cause of action
18 	is the same in both suits." Potter, 2015-NMSC-002, 110. "[W]e review the legal
19 issue presented by the district court's application of res judicata de novo." Deflon,
20 2006-NMSC-025, 13.
13

1 {18} 	Here, Defendant filed a motion for judgment on the pleadings in the Federal
2 Suit, to which Plaintiff filed a written response. Sandel, 2016 WL 7535356, at * 1.
3 After considering the parties' written submissions, the federal district court found
4 that Plaintiffs tort claims were foreclosed by Wilson, 2002-NMCA-105. Sandel,
5 2016 WL 7535356, at *l. Accordingly, the court granted judgment on the pleadings
6 in favor of Defendant, dismissing Plaintiffs tort claims with prejudice.4 Id.
7 	{19} 	Under these circumstances, we conclude the elements of res judicata are
8 present. First, the order granting judgment on the pleadings constituted a final
9 judgment, as it disposed of Plaintiffs tort claims to the fullest extent possible. Cf
IO 	Turner v. First N.M Bank, 2015-NMCA-068, 17,352 P.3d 661 (concluding that an
11 	order dismissing for failure to state a claim constituted a final judgment because "it
12 fully disposed of the rights of the parties, and otherwise disposed of the matter to the
13 	fullest extent possible" and "decisively and fully determined that [the p]laintiffs
14 failed to state a cause of action"); Vil!. of Los Ranchos de Albuquerque v. Shiveley,
15 	1989-NMCA-095, 1112-13, 110 N.M. 15, 791 P.2d 466 (concluding that an order
16 dismissing for lack of standing constituted a final judgment because the order
17 "terminated the suit and the proceeding was completely disposed of so far as the
4 Although the federal 	district court's order did not specify whether the
dismissal was with prejudice, we presume it was. Cf Stan Lee Media, Inc. v. Walt
Disney Co., 774 F.3d 1292, 1299 (10th Cir. 2014) ("Dismissals for failure to state a
claim are presumptively with prejudice because they fully dispose of the case.").
14

1 court had power to dispose of it"). Second, the district court's order granting
2 judgment on the pleadings expressly considered the merits of whether Plaintiffs tort
3 claims were foreclosed by Wilson, 2002-NMCA-105. See Styskal v. Weld Cty. Bd.
4 o/Cty. Comm 'rs, 365 F.3d 855,858 (10th Cir. 2004) (explaining that an adjudication
5 "on the merits" is one that passes directly on the substance of a particular claim).
6 And lastly, Plaintiff does not dispute that the parties and causes of action (as
7 discussed above) were the same in both suits. As a result, Plaintiff is barred from
8 bringing his tort claims against Defendant.
9 	{20} 	Although Plaintiff tailors his argument toward the application of collateral
10 	estoppel, we understand his argument in the context of res judicata to be that the
11 	Federal Suit was not decided on the merits. Plaintiff points to the federal district
12 	court's subsequent order dismissing Defendant's counterclaim in which it stated,
13 	"The [c]ourt's order dismissing Plaintiffs tort claims did not resolve the merits of
14 Plaintiffs challenge to various estate planning documents . . . that challenge must
15 	be resolved in state court." Sandel v. Sandel, No. CV-15-924 MCA/KK, 2016 WL
16 	7510236, 	at 	*1 	(D.N.M. Aug. 	25, 2016). Plaintiff claims that this 	statement
17 establishes there was no litigation on the merits. Plaintiff is correct that the Federal
18 	Suit did not address the merits of Plaintiffs challenge to the Trust, and, therefore he
19 	is not precluded by either res judicata or collateral estoppel from challenging the
20 Trust under the Probate Code. However, as discussed above, the federal district court
15

1 analyzed whether Plaintiffs tort claims were foreclosed by Wilson, 2002-NMCA-
2 	105, and concluded that they were. See Sandel, 2016 WL 7535356, at *l. Thus, the
3 Federal Suit addressed the merits of whether Plaintiff could bring his tort claims
4 against Defendant. See Styskal, 365 F.3d at 858.
5 {21} 	We note that Plaintiff continues to challenge whether he had an adequate
6 remedy under the Probate Code, and consequently, whether the federal district court
7 properly applied Wilson. Our task, however, is not to determine whether the federal
8 court arrived at the correct conclusion; our task here is limited to addressing its
9 preclusive effect. See Concerned Residents of Santa Fe N., Inc. v. Santa Fe Estates,
10 Inc., 2008-NMCA-042, , 	17, 143 N.M. 811, 182 P.3d 794 ("The purpose of res
11 judicata is to relieve parties of the cost and vexation of multiple lawsuits, conserve
12 judicial resources, and, by preventing inconsistent decisions, encourage reliance on
13 	adjudication." (internal quotation marks and citation omitted)); Moffat v. Branch,
14 2002-NMCA-067,, 26, 132 N.M. 412, 49 P.3d 673 ("The essence of res judicata is
15 	that litigants are· encouraged and afforded a full and fair opportunity to raise issues
16 that exist between them in a single action. There are consequences for the failure to
17 take advantage of this opportunity. If a litigant is able to raise a claim in an action
18 	before 	the 	action 	becomes 	final, 	but 	does 	not 	do 	so, 	the 	claim 	is 	forever
19 barred." (citation omitted)). Accordingly, to the extent that Plaintiff challenges the
20 merits of the Federal Suit, we can offer him no relief.
16

1 II. 	Plaintiff's Probate Code Claim is Time-Barred
2 	{22} 	Plaintiff next challenges the district court's holding that he was time-barred
3 from bringing a claim under the Probate Code. The parties disagree about the statute
4 oflimitations applicable to Plaintiffs claim. Plaintiff argues that, pursuant to Section
5 45-1-106, his claim is not time-barred because he brought it within two years of
6 discovering that Mrs. Sandel' s signatures were allegedly forged. 5 Defendant, on the
7 other hand, argues that Section 46A-6-604(A) bars Plaintiff from bringing his claim
8 because it necessarily involves a challenge to the validity of a revocable trust, which
9 must be made, at the latest, within three years of the sett_lor' s death. We need not
10 decide this issue because even if Plaintiff is correct that he had two years from the
11 	time of discovery of the fraud to file his claim under Section 45-1-106, he failed to
12 come forward with competent evidence demonstrating that he could not have
13 	reasonably discovered the fraud in 2009. We explain.
14 	{23} 	New Mexico follows the discovery rule, which provides that a cause of action
15 	sounding in fraud does not accrue until the plaintiff"discovers" the fraud. See Wilde
16 v. Westland Dev. Co., 2010-NMCA-085, 118, 148 N.M. 627,241 P.3d 628; see also
17 NMSA 1979, § 37-1-7 (1880) ("In actions for relief, on the ground of fraud ... , the
5
Plaintiff also argues that NMSA 1978, Section 37-1-18 (1880) indefinitely
tolled his cause of action. However, Section 37-1-18 only applies to limitations
periods provided in Chapter 37 of the New Mexico Statutes Annotated, and is
therefore inapplicable to Section 45-1-106' s limitations period.
17

1 cause of action shall not be deemed to have accrued until the fraud ... shall have
2 been discovered by the party aggrieved."). Section 45-1-106 expressly incorporates
3 this rule into 	its limitation period, providing that "[a]ny proceeding must be
4 commenced within two years after the discovery of the fraud." "[D]iscovery is
5 defined as the discovery of such facts as would, on reasonable diligent investigation,
6 lead to knowledge of the fraud or other injury." Wilde, 2010-NMCA-085, 1 18
7 (alteration, internal quotation marks, and citation omitted). "In the absence of actual
8 knowledge of fraud, a reasonable-person standard will be applied as to whether a
9 plaintiff should have known of the fraud." Id. (alteration, internal quotation marks,
10 	and citation omitted). If a reasonable person in the plaintiffs position would have
11 	made an inquiry leading to the discovery of the fraud, then the plaintiff is said to be
12 on "inquiry notice" and deemed to have discovered the cause of action for purposes
13 	of the rule. See Yurcic v. City of Gallup, 2013-NMCA-039, 19, 298 P.3d 500.
14 	{24} 	Although our courts generally characterize the application of the discovery
15 	rule as a jury question, see id. 1 10, where there are undisputed facts that show that
16 the plaintiff knew or should have become aware of the facts underlying his or her
17 claim by a specific date, the district court may decide the issue as a matter of law.
18 See, e.g., Brunacini v. Kavanagh, 1993-NMCA-157, 130, 117 N.M. 122, 869 P.2d
19 	821. "When a defendant makes a prima facie showing that a claim is time barred, a
20 plaintiff attempting to invoke the discovery rule has the burden of demonstrating
18

1 that if he or she had diligently investigated the problem he or she would have been
2 unable to discover the facts underlying the claim." Butler v. 	Deutsche Morgan
3 	Grenfill, Inc., 2006-NMCA-084, 128, 140 N.M. 111, 140 P.3d 532 (alterations,
4 internal quotation marks, and citation omitted); see also Martinez v. Showa Denko,
5 K.K, 1998-NMCA-ll 1, 12~, 125 N.M. 615, 964 P.2d 176 ("Even applying the
6 discovery rule, in order to refute [the d]efendant's prima facie showing that [the
7 p]laintiff filed her lawsuit outside the time limitation of the statute of limitations, it
8 was 	incumbent upon 	[the p]laintiff to 	demonstrate that 	if she had diligently
9 investigated the problem she would have been unable to discover the cause of her
10 injury."). Here, Plaintiff argues that the district court improperly dismissed his
11 	claims as time-barred because factual disputes existed with regard to when he
12 	discovered or should have discovered his claim. We disagree.
13 	{25} 	The exhibits attached to Defendant's motion to dismiss, together with the
14 allegations set forth in Plaintiffs complaint, established the following undisputed
15 	facts. Defendant's estate planning attorney met with Plaintiff to go -over Mrs.
16 	Sandel's will and the Trust on June 5, 2001, including the Trust's disposition
17 provisions. Defendant told Plaintiff in 2001 that he and Mrs. Sandel "had modified
18 the terms of [Mrs. Sandel]'s testamentary documents such that [Plaintiff] had no
19 	inheritance rights, present or future, to any of the assets in [Mrs. Sandel]'s estate."
20 Defendant told Plaintiff in 2009 and 2010 that "there was no trust in which [Plaintiff]
19

1 had any interest." Plaintiff learned in 2009 that Defendant probated Mrs. Sandel's
2 estate seven years earlier. Also in 2009, Defendant's attorney sent Plaintiff a
3 complete copy 	of Mrs. 	Sandel' s will, which devised her estate to the Trust.
4 Defendant's attorney sent Plaintiff a copy 	of the 	2001 	Restatement in 2009
5 (including the unnotarized signature page), which Plaintiff admitted receiving in an
6 email. In that same email, Plaintiff asserted that Defendant "repeatedly lied" to
7 Plaintiff about the Trust, telling Plaintiff"on numerous occasions ... there [was] no
8 trust 	and then 	later 	[telling him] 	that all 	of [Mrs. 	Sandel's] 	trust 	[was] 	in ·
9 [Defendant's] name." Plaintiff stated that he "of course" planned on challenging the
10 Trust and claimed that Defendant was "liable for damages that have been caused by
11 	his neglect and mishandling of an estate that he pretends to be the sole owner of
12 which is not true." To this end, Plaintiff informed Defendant's attorney that he
13 	retained an attorney in Farmington and sent a copy of the Trust to his family law
14 attorney in California, giving him or her permission to forward a copy of the Trust
15 	to other attorneys who would be interested in representing Plaintiff.
16 {26} 	The above undisputed facts constituted a prima facie showing that Plaintiff
17 reasonably should have discovered the alleged forgeries by 2009. Plaintiff knew that
18 	Defendant and Mrs. Sandel disinherited him by devising Mrs. Sandel' s estate to the
19 Trust. Plaintiff had a copy of the allegedly forged 2001 Restatement eliminating his
20 right to collect any of the Trust's multi-million dollar corpus, which was formalized
20

1 by 	Defendant's 	and 	Mrs. 	Sandel's 	unnotarized 	signatures. 	Plaintiff believed
2 Defendant had "repeatedly lied" about the Trust and caused Plaintiff damages.
3 Indeed, Plaintiff stated that he planned on challenging the Trust and went so far as
4 to 	retain 	an 	attorney. 	Under these 	circumstances, 	the 	district 	court properly
5 determined that a reasonable person would have diligently investigated the validity
6 	of a trust he believed was illegally altered. Furthermore, given that the Trust was co-
7 created by someone Plaintiff claims "repeatedly lied" about the Trust, a reasonable
8 person would have investigated the authenticity of Mrs. 	Sandel' s unnotarized
9 signature on the 2001 	Restatement. And although it is unclear when Plaintiff
10 received copies of the 1995 Amendment and the 1999 Restatement, a reasonable
11 	person in Plaintiffs position would have investigated the authenticity of Mrs.
12 	Sandel' s signatures on related trust instruments after discovering that her signature
13 	on the 2001 Restatement was possibly forged.
14 	{27} 	Once Defendant made this prima facie showing that Plaintiff was on inquiry
15 	notice of the alleged forgeries in 2009, it became Plaintiffs burden to demonstrate
16 that ifhe had diligently investigated the Trust, he would have been unable to discover
17 that Defendant allegedly forged,Mrs. Sandel's signatures. See Butler, 2006-NMCA-
18 	084, 128; Martinez, 	1998-NMCA-111, 122. Plaintiff did not meet this burden.
19 Plaintiffs lone support comes from his own affidavit, in which he attested, in
20 relevant part,
21

1 	I 	did 	not 	discover 	that 	my 	mother's 	signatures 	on 	the 	[T]rust
2 	instruments at issue in this case were forgeries until the summer of
3 	2015. The signatures of my mother on the 1995, 1999, and 2001 [T]rust
4 	instruments here in dispute looked similar enough to hers that I did not
5 	question them when I saw them .. ~ . Although in 2009 I sent an e[-]mail
6 	threatening to challenge the [T]rust instruments in court, I did so merely
7 	because I was upset that my inheritance rights had been virtually
8 	eliminated. I had no reason to believe at that time that my mother's
9 	signature had been forged."
10 	{28} 	Neither the pleadings attached to Plaintiffs response, nor the statements in
11 	his affidavit (including the one above) create a genuine dispute of material fact
12 	sufficient to demonstrate that he was unable to reasonably have discovered his cause
13 	of action within the statute of limitations period. Plaintiffs statement that he did not
14 	question Mrs. Sandel's signatures because they looked "similar enough," does not
15 	explain why Plaintiff could not have performed a reasonably diligent investigation
16 	in order to discover whether he had a claim in 2009 or why he could not have
17 	discovered his claim had he performed such an investigation. Importantly, Plaintiff
18 	did not provide any facts to establish why he could not have hired a handwriting
19 expert in 2009 when he received the trust documents and threatened to challenge the
20 Trust with the assistance of multiple attorneys. Indeed, Plaintiff provides no facts at
21 	all-disputed or not-to explain why he did not investigate his potential claims in
22 2009, and what prompted him to ultimately hire the handwriting expert when he
23 	finally did.
22

1 {29} 	Since the undisputed facts established that Plaintiff was on inquiry notice, it
2 was incumbent upon him to proffer competent evidence sufficient to establish that
3 an objectively reasonable person's diligent investigation would not have revealed
4 the facts on which Plaintiff relies in bringing his claim. See Butler, 2006-NMCA-
5 084, 128; Martinez, 1998-NMCA-1l1,122. Plaintiff did not do this. We, therefore,
6 conclude as a matter of law, based on the undisputed material facts that Plaintiff
7 knew or with reasonable diligence should have known of Defendant's purported
8 forgeries in 2009. See Brunacini, 1993-NMCA-157, 130. Accordingly, the district
9 court properly dismissed Plaintiffs claim, as he brought suit more than two years
10 after 2009. We reject Plaintiffs argument that our holding would impose too high a
11 	"standard of care" on disinherited heirs because it would require "every disinherited
12 heir to hire forensic examiners ... when they are merely put on notice that they were
13 	simply disinherited through a genuine signature." Our holding today is not that an
14 heir must hire ·a handwriting expert to investigate the signatures on testamentary
15 	documents in every case of disinheritance; it is simply that Plaintiff failed to meet
16 his burden to demonstrate why 1
a disinherited heir in these specific circumstances
17 could 	not 	have 	discovered 	the 	alleged 	forgery 	after 	a 	reasonably 	diligent
18 	investigation.
19 	{30} 	Finally, Plaintiff argues that the district court's ruling was premature because
20 Plaintiff did not have the benefit of discovery. We recognize that "[i]t is generally
23

1 inadvisable to grant summary judgment before discovery has been completed."
2 Romero v. Giant Stop-N-Go of N.M, Inc., 2009-NMCA-059, , 	17, 146 N.M. 520,
3 212 P.3d 408. Plaintiff, however, never requested or filed a Rule 1-056(F) affidavit
4 requesting more time to obtain discovery to support his position. See id ("Should it
5 appear from the affidavits of a party opposing the motion that he cannot for reasons
6 stated present by affidavit facts essential to justify his position, the court may refuse
7 the application for judgment or may order a continuance to permit affidavits to be
8 obtained or depositions to be taken or discovery to be had or may make such other
9 order as is just."). Although Defendant did not style his motion as one for summary
10 judgment, he attached several exhibits in support of his motion, and Plaintiff did the
11 	same in response, including listing his own "statement of undisputed facts." Rule 1-
12 	012(C) makes clear that when matters outside the pleading are included with a
13 	motion to dismiss, the motion is to be treated as one for summary judgment (unless
14 the district court excludes the extraneous evidence). Plaintiff never argued that he
15 	needed more time to develop the evidence or to do more discovery. Nor did he file
16 a motion for reconsideration stating that he needed additional discovery to meet his
. 17 burden to proffer evidence sufficient to create a genuine dispute of fact. Appellate
18 	courts do not exist to rescue parties from the consequences of their choices in the
19 district court, 	and if Plaintiff needed more time to develop evidence, 	it was
20 incumbent upon him to make this request to the district court. Cf Butler, 2006-
24

1 NMCA-084,, 38 (rejecting the plaintiffs assertion that he needed more discovery
2 to develop his discovery rule argument because he never made any specific
3 allegations regarding what he hoped to find in discovery). Accordingly, we decline
4 to remand this matter back to the district court so Plaintiff can engage in further
5 discovery.
6 III. 	Plaintiff Is Not Entitled to Equitable Estoppel
7 {31} 	Lastly, Plaintiff argues that Defendant should be equitably estopped from
8 asserting a limitations defense because he misled Plaintiff by (1) forging Mrs.
9 Sandel's signatures, (2) failing to inform Plaintiff that Mrs. Sandel's estate was
10 probated, and (3) lying about the existence. of the Trust. Although Plaintiff raised
11 	this argument below, the district court did not explicitly address it in its order.
12 However, by granting Defendant's motion on statute of limitations grounds, the
13 	district 	court 	necessarily 	rejected 	Plaintiffs 	equitable 	estoppel 	claim. 	After
14 reviewing the record, we conclude the Plaintiff failed to meet his burden to
15 	demonstrate the elements of equitable estoppel. 6
6Defendant argues that equitable estoppel does not apply under the facts of
this case, as Defendant never promised to not plead the statute of limitations, nor did
Plaintiff claim that he knew of his cause of action and relied on Defendant's
statements of conduct in failing to bring his suit. See Estate ofBrice v. Toyota Motor
Corp., 	2016-NMSC-018, 	,, 	10-14; 	373 	P.3d 977 (discussing the differences
between the doctrines of equitable estoppel and fraudulent concealment and stating
that "the doctrine of equitable estoppel comes into play if the defendant takes active
steps to prevent the plaintiff from suing in time, as by promising not to plead the
statute of limitations" and "equitable estoppel applies when a plaintiff who knows
25

1 {32} 	"Equitable estoppel prohibits a party from asserting a statute of limitations
2 defense if that party's conduct has caused the plaintiff to refrain from filing an action
3 until after the limitations period has expired." Little v. Baigas, 2017-NMCA-027,
4 , 23, 390 P.3d 201 (internal quotation marks and citation omitted). "[T]he party
5 relying on a claim of equitable estoppel has the burden of establishing all facts
6 necessary to prove it ... [and] must plead the circumstances giving rise to estoppel
7 with particularity" Id. , 22 (internal quotation marks and citations omitted). In order
8 to raise equitable .estoppel, the plaintiff must demonstrate that the defendant: "( 1)
9 concealed material facts, falsely represented material facts, or made representations
10 	of fact different or inconsistent with later assertions in court; (2) had an intent or
11 	expectation that such conduct would be acted upon by the plaintiff; and (3) possessed
12 either actual or constructive knowledge of the real facts." Id., 24 (internal quotation
13 	marks and citation omitted). Additionally, the plaintiff must demonstrate that he or
14 	she: "( 1) lacked both the knowledge and the means of acquiring knowledge of the
15 	truth as to the facts in question; (2) relied on the defendant's conduct; and (3) acted
16 upon that conduct in a way that prejudicially altered his position." Id. (internal
17 quotation marks and citation omitted).
'
of his cause of action reasonably relies on the defendant's statement or conduct in
failing to bring suit" (internal quotation marks and citation omitted)). Nonetheless,
we need not decide this issue given our conclusion that Plaintiff did not demonstrate
the elements of equitable estoppel.
26

1 {33} 	Thus, in order to raise a claim for equitable estoppel in regard to asserting a
2 statute of limitations defense against Plaintiffs claim under Section 45-1-106,
3 Plaintiff was required to demonstrate, among other things, that Defendant's conduct
4 caused Plaintiff to refrain from filing his claim within two years of discovery of the
5 fraud. See § 45-1-106(A) (providing that any person may obtain "appropriate relief'
6 within two years of discovering the fraud); Little, 2017-NMCA.:027, 123. Plaintiff
7 failed to do this. Although (according to Plaintiff) Defendant concealed the existence
8 of the Trust and the fact that Mrs. Sandel's estate had been probated for some years,
9 it is undisputed that Plaintiff learned of the estate's probate and obtained a copy of
10 	2001 Restatement in 2009. Plaintiff cannot point to any actions by Defendant beyond
11 	2009 that caused Plaintiff to refrain _from filing his action within two years. While. 	.
12 Plaintiff claims he did not know that Mrs. Sandel's signature was allegedly forged
13 	at that point, he failed to demonstrate that Defendant took any actions to prevent
14 Plaintiff from 	inv~stigating Mrs. 	Sandel's signatures after 2009. Accordingly,
15 	Plaintiffs claim for equitable estoppel must fail.
16 	CONCLUSION
17 	{34} 	For the foregoing reasons, we affirm the district court's dismissal of Plaintiffs
18 	claims and remand for further proceedings on Defendant's remaining counterclaim
19 	for malicious abuse of process.
27

—"

4

35} ITISSO ORDERED.

WE CONCUR:
a Al a
LINDA ML. VANZI, Judge

Che Ch Vargan~

JULIE J. VARGAS, Sadge

28

UELINE R. MEDINA, Judge