August 13, 2010 – Tryna Saavedra Wilde, as personal representative of the Estate of Rosalia A. Saavedra, deceased v. Westland Development Co., Inc., Westland Devco, LLC, Mellon Investor Services, Inc., and Barbara Page, No. 28,632

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: AUGUST 13, 2010

NO. 28,632
TRYNA SAAVEDRA WILDE, as
personal representative of the Estate of
ROSALIA A. SAAVEDRA, deceased,
Plaintiff-A ppellant,
V.
WESTLAND DEVELOPMENT CO., INC.,
WESTLAND DEVCO, LLC, MELLON
INVESTOR SERVICES, INC., and
BARBARA PAGE,
Defendants-A ppellees,
and
NO. 29,071
TRYNA SAAVEDRA WILDE, as
personal representative of the Estate of
ROSALIA A. SAAVEDRA, deceased,

Plaintiff-A ppellant,

RAYMOND ARANDA,
Defendant-Appellee,
and
NO. 29,307
TRYNA SAAVEDRA WILDE, as
personal representative of the Estate of
ROSALIA A. SAAVEDRA, deceased,
Plaintiff-Appellant,
v.
EMMA JARAMILLO, PATRICK
JOSE PERCHES, EPIMENIO L.
JARAMILLO, EMMA YOLANDA
JARAMILLO, LORRAINE MORALES,
DOMINIC CARLOS PERCHES, JOSE A.
PERCHEZ, JOSE A. PERCHES as custodian
of SARA ESTANESLADA PERCHES,
SALVADOR GREGORIO JARAMILLO,
CHRISTINA MARIE JARAMILLO, ROSEMARY
NIETO, and KIMBERLY ANN JARAMILLO,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Clay Campbell, District Judge
Arnold Padilla
Albuquerque, NM
for Appellant

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Douglas G. Schneebeck
Brian K. Nichols
Albuquerque, NM
for Appellees Westland Development Co., Inc.,
Westland DevCo, LLC, and Mellon Investor
Services, Inc.
Civerolo, Gralow, Hill & Curtis
M. Clea Gutterson
Albuquerque, NM
Greenberg Traurig, LLP
Paul R. Bessette
Jesse Z. Weiss
Austin, TX
for Appellee Page
Claudine R. Sattler
Albuquerque, NM
for Appellee Aranda
Gilpin & Keefe, P.C.
Donald C. Gilpin
Albuquerque, NM
for Appellees Jaramillo/Perches

OPINION
FRY, Chief Judge.
{1} 	In this opinion we resolve three separate appeals brought by Plaintiff Tryna
Saavedra Wilde, the personal representative of the estate of Rosalia Saavedra, all
stemming from the dismissal of Saavedra’s lawsuit alleging fraud, conversion, and
breach of fiduciary duty regarding the transfer and sale of certificates representing
shares of stock in Westland Development Co. (Westland). Of the parties relevant to
this appeal, Saavedra sued Westland, Westland DevCo (DevCo), and Mellon Investor
Services (collectively, the Entity Defendants), the heirs of Gregorio Jaramillo (the
Jaramillo Defendants), Barbara Page, and Raymond Aranda for alleged wrongdoing
surrounding the transfer and sale of the stock certificates. The district court granted
summary judgment to all Defendants, and Plaintiff appeals. 	For the following
reasons, we affirm the district court’s dismissal of Saavedra’s claims.
I. 	BACKGROUND
{2} 	Westland is an entity formed to manage the property interests of the heirs of the
Atrisco land grant. See Lett v. Westland Dev. Co., 112 N.M. 327, 327-28, 815 P.2d
623, 623-24 (1991) (reviewing the history of the Atrisco land grant and the formation
of Westland). The heirs of the Atrisco land grant were each issued shares of Westland
stock based on their ownership interests in the land grant. Id. at 328, 815 P.2d at 624.

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These shares were represented by stock certificates that were given to each
shareholder.
Griego Jaramillo and Antonio Aranda Certificates Transferred to Nino Barboa
{3} 	Sometime between 1974 and 1976, three registered shareholders transferred a
total of four stock certificates to Saturnino (Nino) Barboa. 	Gregorio Jaramillo
transferred two certificates (the Jaramillo certificates) and Antonio Aranda transferred
one certificate to Nino. 	The fourth certificate is irrelevant to this appeal. 	The
certificates were signed over to Nino, and Nino attempted to register the certificates
in his name. However, due to a problem with Nino’s ability to have the certificates
registered in his name because he was not an original heir of the Atrisco land grant,
Aranda and Jaramillo remained the registered owners of the certificates in Westland’s
records.
Nino Barboa Transfers Jaramillo and Aranda Certificates to Sonny Barboa, and
Sonny Transfers to Saavedra
{4} 	In 1984, prior to his death, Nino transferred all four of the certificates to his
son, Sonny. Nino did not endorse the certificates to Sonny, and Sonny never attempted
to register the shares. Instead, in 1989, Sonny gave all of the original certificates to
the original plaintiff in this case, Rosalia Saavedra, as a gift. The certificates were not
signed by Sonny or otherwise endorsed to Saavedra. In 1990 Sonny accompanied
Saavedra to Westland’s office to attempt to have the certificates registered in

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Saavedra’s name. According to Sonny, Westland refused to register the certificates,
citing a problem with the transfer from Sonny to Saavedra. According to Saavedra’s
first amended complaint, Barbara Page, the chief executive officer of Westland,
informed Saavedra that her ownership of the certificates would be noted in Westland’s
records and that Saavedra should “hold on to” the certificates.
Gregorio Jaramillo and Raymond Aranda Obtain Replacement Certificates
{5} 	In 1987, prior to the time that Sonny gave the certificates to Saavedra,
Jaramillo, who was still the registered owner of the Jaramillo certificates, obtained
replacement certificates for the shares he had sold to Nino. 	Thus, in 1990, when
Saavedra and Sonny unsuccessfully attempted to have the Aranda and Jaramillo
certificates registered in Saavedra’s name, while Saavedra possessed the original
certificates, 	Jaramillo 	possessed 	replacement 	certificates 	for 	the 	same 	shares
represented by the original Jaramillo certificates. As a result of the fact that Antonio
Aranda and Gregorio Jaramillo were still the registered owners of the certificates,
dividends from their stock continued to be paid to their heirs. The dividends paid to
these heirs between 1992 and 1997 ranged from $.50 to $1.35 per share. Saavedra
never received any dividends from the certificates at issue in this case.
{6} 	In 1998, Raymond Aranda, a descendant of Antonio Aranda, contacted
Saavedra and inquired about buying Antonio’s certificate from her. 	Despite his

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inquiry, Raymond Aranda never purchased the certificate from Saavedra. Instead, in
2004, Raymond Aranda filed an affidavit with Westland stating that he was the
successor of the estate of Antonio Aranda, whereupon Westland issued a new
certificate in Raymond Aranda’s name. 	Although Plaintiff alleged that Raymond
Aranda had represented to Westland that he had lost his father’s original certificate,
Plaintiff was unable to produce evidence supporting this allegation.
Saavedra Again Attempts to Register Her Certificates and Then Files Suit
{7} 	In 2006 Suncal Companies acquired Westland. As a result of this acquisition,
the owners of Westland stock certificates were able to sell their Westland shares for
approximately $315 per share. In 2007, after learning about the sudden increase in the
value of the shares, Saavedra again attempted to register her certificates, but again,
Westland informed her that she could not register them.
{8} 	Sometime after this attempt to register the certificates, Saavedra discovered that
Westland had issued replacement certificates to Aranda and Jaramillo. As a result of
this discovery, Saavedra filed suit against the Entity Defendants and Barbara Page.
In addition, Saavedra filed suit against Raymond Aranda and his two daughters and
the Jaramillo Defendants, who are heirs of Gregorio Jaramillo who had received an
interest in the certificates for which Gregorio had obtained replacements.
{9} 	Saavedra sought damages for breach of fiduciary duty, conversion, and fraud,

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all stemming from Westland’s issuance of the replacement certificates. Specifically,
Saavedra alleged that Page, as a Westland director, had a fiduciary duty “not to allow
or facilitate transfer of ownership” of the certificates and that this duty had been
breached when the replacement certificates were issued. 	Saavedra alleged that
Jaramillo’s and Aranda’s acts of obtaining replacement certificates constituted fraud
and “improper conversion” of her property. Finally, Saavedra alleged that Page had
committed fraud by representing that Saavedra’s ownership of the certificates would
be noted in Westland’s records. 	A short time after filing her complaint, Saavedra
died, and her estate was substituted as Plaintiff. In this opinion, we refer to Saavedra
by name, while we refer to her estate, which is the party to this appeal, as “Plaintiff.”
Motions for Summary Judgment
{10} 	Following the filing of Saavedra’s complaint, Defendants each filed separate
motions for summary judgment. 	All Defendants argued that Saavedra’s cause of
action accrued when she was first informed in 1990 that Westland would not register
her certificates and that her claims were therefore time-barred by the applicable statute
of limitations or under the doctrine of laches. 	All Defendants except Aranda also
argued that Saavedra’s claims were barred because Westland had acted in accordance
with its obligations to issue new stock certificates under Article 8 of New Mexico’s
Uniform Commercial Code.

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{11} 	The district court granted all Defendants’ motions for summary judgment,
concluding that Saavedra’s claims were time-barred and that there had been no tolling
of the statute of limitations. Plaintiff separately appealed each of the court’s summary
judgment orders. Because all three of the appeals stem from the same complaint, we
address them in one opinion.
II. 	DISCUSSION
A. 	Standard of Review
{12} 	We review an order granting summary judgment de novo. 	Beggs v. City of
Portales, 2009-NMSC-023, ¶ 10, 146 N.M. 372, 210 P.3d 798. “Summary judgment
is appropriate where there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law.” Tafoya v. Rael, 2008-NMSC-057, ¶ 11, 145
N.M. 4, 193 P.3d 551 (internal quotation marks and citation omitted). “We view the
pleadings, affidavits, and depositions presented for and against a motion for summary
judgment in a light most favorable to the nonmoving party.” 	Deaton v. Gutierrez,
2004-NMCA-043, ¶ 12, 135 N.M. 423, 89 P.3d 672 (filed 2003). Summary judgment
is not appropriate “when the record discloses the existence of a genuine controversy
concerning a material issue of fact or when the [district] court granted summary
judgment based upon an error of law.” Id.
B. 	Outline of Opinion

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{13} 	Central to all three of Plaintiff’s appeals is the question of whether the statute
of limitations barred Saavedra’s claims. 	Therefore, we first address this issue and
conclude that the claims against the Jaramillo Defendants, as well as the claims
against the Entity Defendants and Page that arise out of the Jaramillo certificates,
began to run in 1990. On the other hand, we conclude that the statute of limitations
applicable to Saavedra’s claims arising out of the Aranda certificate began to run in
2004 and thus, that the limitations period had not expired on the claims arising out of
the Aranda certificate. We then address Plaintiff’s argument that misrepresentations
tolled the statute of limitations applicable to the claims related to the Jaramillo
certificates and conclude that no tolling occurred. 	Thus, the statute of limitations
barred Saavedra’s claims arising from the Jaramillo certificates.
{14} 	This leaves us with the claims against Aranda and the claims against the Entity
Defendants and Page that arise out of the Aranda certificate. 	We hold that these
claims are not barred under the doctrine of laches.
{15} 	We then consider whether Plaintiff failed to demonstrate an issue of material
fact related to Saavedra’s fraud claim against Aranda and conclude that she did so fail.
Thus, summary judgment in favor of Aranda, the Entity Defendants, and Page related
to Saavedra’s fraud claims was proper. We further conclude that relevant provisions
of the Uniform Commercial Code warranted summary judgment against Plaintiff on

8
Saavedra’s claim against Aranda for conversion and on all of Saavedra’s remaining
claims against the Entity Defendants and Page.
C. 	Applicability of Statute of Limitations
{16} 	As a preliminary matter, Plaintiff argues that the district court improperly
permitted the Jaramillo Defendants to incorporate by reference the statute of
limitations arguments made by Page in her motion for summary judgment. 	Thus,
Plaintiff contends that the Jaramillo Defendants did not properly raise the issue and
that we should therefore reverse summary judgment in their favor. Plaintiff concedes,
however, that she “did not explicitly object below to this practice, believing it
necessary in the exercise of diligence and caution to respond to all of [the Jaramillo
[Defendants’] allegations.” 	Because Plaintiff admittedly failed to preserve her
argument, we decline to review the issue on appeal. 	Sandoval v. Baker Hughes
Oilfield Operations, Inc., 2009-NMCA-095 , ¶ 56, 146 N.M. 853, 215 P.3d 791 (“In
order to preserve an issue for appeal, [a party] must have made a timely and specific
objection that apprised the district court of the nature of the claimed error and that
allows the district court to make an intelligent ruling thereon.”).
{17} 	The district court concluded that the statute of limitations began to run on all
of Saavedra’s claims when Westland informed Saavedra in 1990 that she could not
register the shares. Plaintiff contends that the statute of limitations did not begin to

9
run until Saavedra attempted to register and redeem her certificates in 2007 and was
informed that Westland had issued replacement certificates. In this case, the relevant
facts are generally not in dispute. As a result, “the standard of review is whether the
court correctly applied the law to the undisputed facts.” Gilmore v. Gilmore, 2010-
NMCA-013, ¶ 13, 147 N.M. 625, 227 P.3d 115. This presents a question of law that
we review de novo. Id.
{18} 	The statute of limitations for causes of action sounding in fraud or conversion
is four years from the date that the cause of action accrues. NMSA 1978, § 37-1-4
(1880). Because New Mexico follows the “discovery rule,” the cause of action does
not accrue until the plaintiff discovers the fraud or conversion. NMSA 1978, § 37-1-7
(1880). For purposes of determining when the cause of action accrues, discovery is
defined as the “discovery of such facts as would, on reasonable diligent investigation,
lead to knowledge of [the] fraud” or other injury. 	Ambassador E. 	Apartments
Investors v. Ambassador E. Invs., 106 N.M. 534, 536, 746 P.2d 163, 165 (Ct. App.
1987) (internal quotation marks and citation omitted); see McNeill v. Burlington Res.
Oil & Gas Co., 2007-NMCA-024, ¶ 14, 141 N.M. 212, 153 P.3d 46 (noting that under
the discovery rule, “a cause of action arises not necessarily at the time of injury, but
rather at the time a plaintiff knows or should have known of the claims”), aff’d 2008-
NMSC-022, 143 N.M. 740, 182 P.3d 121. 	In the absence of actual knowledge of

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fraud, “a reasonable-person standard will be applied as to whether [a plaintiff] should
have known of the fraud.” Ambassador E. Apartments Investors, 106 N.M. at 536,
746 P.2d at 165.
{19} 	Saavedra alleged that when she attempted to register the certificates in 1990,
Westland “gave no reason but declined to make the transfer.” Sonny, who gave the
certificates to Saavedra and accompanied her to Westland’s office when she attempted
to register the certificates, testified in his deposition that he was not sure what reason
Westland gave for not registering the certificates, but that he thought it might have
been because the certificates were still in Nino’s name. Saavedra did not inquire into
the reason that she was unable to register her certificates and took no action to compel
Westland to register the certificates. Whether the statute of limitations began to run
in 1990 thus depends on whether a reasonable person would have discovered the
alleged fraud and conversion as a result of Westland’s refusal to register the
certificates.
{20} 	We discuss the commencement of the statute of limitations separately with
respect to the Jaramillo certificates and the Aranda certificate because different
circumstances obtain with respect to each category. In addition, some of Saavedra’s
claims against the Entity Defendants and Page are based on those Defendants’ alleged
conduct with respect to both the Jaramillo certificates and the Aranda certificate.

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1. 	The Jaramillo Certificates
{21} 	Saavedra claimed that Jaramillo fraudulently obtained replacement certificates
and that the Entity Defendants and Page fraudulently issued Jaramillo the replacement
certificates despite their knowledge of Saavedra’s preexisting ownership of the
original certificates. Plaintiff contends that the statute of limitations for Saavedra’s
claims stemming from the issuance of these certificates began to run when Saavedra
discovered in 2007 that the certificates had been issued. However, when Saavedra
attempted to register her certificates in 1990, Jaramillo had already obtained
replacement certificates from Westland. Consequently, had Saavedra undertaken a
reasonable investigation into the reason she was unable to register her certificates, she
would have discovered that Jaramillo had obtained replacement certificates in 1987.
Saavedra’s inability to register the certificates therefore constituted knowledge of facts
that would have led a reasonable person to undertake further investigation into the
reasons underlying the impediment to registration. Such an investigation would have
uncovered the fraud allegedly perpetrated by Jaramillo, the Entity Defendants, and
Page.
{22} 	The statute of limitations for Saavedra’s fraud and conversion claims relating
to the Jaramillo certificates therefore began to run in 1990, which was sixteen years
prior to the date Saavedra filed her claims related to the Jaramillo certificates. The

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district court therefore properly concluded that Saavedra’s claims against the Jaramillo
Defendants were barred by the statute of limitations. Similarly, Saavedra’s claims
against the Entity Defendants and Page that stem from the Jaramillo certificates also
began to accrue in 1990 and are also time barred. 	We therefore affirm summary
judgment in favor of the Jaramillo Defendants, the Entity Defendants, and Page for
Plaintiff’s claims related to the Jaramillo certificates.
2. 	The Aranda Certificate
{23} 	Applying the same analysis to Saavedra’s claims related to the Aranda
certificate, however, we reach a different conclusion. Unlike Jaramillo, who obtained
replacement certificates in 1987, Aranda obtained his replacement certificate in 2004.
Thus, when Saavedra discovered in 1990 that she was unable to register her
certificates, no amount of due diligence would have uncovered the alleged fraud and
conversion that occurred fourteen years later in 2004. 	Because the earliest that
Saavedra could have become aware of Aranda’s alleged misconduct in requesting the
replacement certificate (and the alleged misconduct of the Entity Defendants and Page
in issuing the replacement certificate) was 2004, we disagree with the district court’s
conclusion that the statute of limitations for Saavedra’s cause of action against Aranda
began to run in 1990. 	Similarly, Saavedra’s cause of action against the Entity
Defendants and Page related to the Aranda certificate did not begin to accrue until, at

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the earliest, the time of the alleged wrongdoing—2004. 	Because Saavedra’s
complaint was filed in 2007, she was well within the four-year statute of limitations
with respect to her claims stemming from the Aranda certificate.
D. 	Saavedra’s Tolling Claim as Applied to the Claims Arising Out of the
Jaramillo Certificates
{24} 	Because we have concluded that the statute of limitations on Saavedra’s claims
arising out of the Jaramillo certificates began to run in 1990, we now turn to Plaintiff’s
argument that the statute of limitations was tolled. Plaintiff maintains that Page made
misrepresentations that led Saavedra to believe that she should not be concerned about
her ownership of the certificates. 	The district court concluded that there was no
admissible evidence supporting Plaintiff’s assertion that Page or anyone else at
Westland made misrepresentations to Saavedra regarding her ownership of the
certificates. On appeal, Plaintiff argues that the court erroneously failed to consider
the sworn statements Saavedra made in her complaint to be admissible evidence of the
misrepresentations.
{25} 	In the district court, Plaintiff contended that because Saavedra died during the
course of the litigation, the court should consider the verified allegations Saavedra
made in her complaint as sworn statements supporting Plaintiff’s opposition to the
Entity Defendants’ motion for summary judgment. Plaintiff argued that Saavedra’s
statements in her complaint, while hearsay, were admissible under Rule 11-807

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NMRA, the residual hearsay exception that allows the admission of statements “not
specifically covered by Rule 11-803 NMRA or Rule 11-804 NMRA but having
equivalent circumstantial guarantees of trustworthiness.” 	Plaintiff made these
arguments in response to the district court’s order directing supplemental briefing and
specifically requesting Plaintiff to demonstrate the circumstances of Saavedra’s sworn
statements that would support the applicability of the residual exception. 	After
reviewing the parties’ briefing on the issue, the court determined that Plaintiff had
failed to present any evidence of the circumstances surrounding Saavedra’s statements
that would tend to guarantee their trustworthiness such that Rule 11-807 would apply,
and it concluded that the statements were therefore inadmissible hearsay. 	In the
absence of the statements in Saavedra’s complaint, there was no admissible evidence
that Page made any misrepresentations to Saavedra that could have tolled the statute
of limitations, and the court granted summary judgment in favor of the Entity
Defendants and Page. Because the question of whether the statute of limitations had
been tolled also necessarily affected the district court’s conclusion that the statute of
limitations barred Saavedra’s claims against the Jaramillo Defendants, resolution of
this question is therefore essential to all claims arising out of the Jaramillo certificates.
1. 	Residual Hearsay Exception Not Applicable
{26} 	Plaintiff contends that she established genuine issues of material fact related to

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Page’s alleged misrepresentations, which served to toll the statute of limitations. She
argues that Saavedra’s verified statements in the complaint constituted evidence of
these misrepresentations. It appears that the statements on which Plaintiff relies were
statements in Saavedra’s complaint alleging that Page told Saavedra that “her current
ownership of the [c]ertificates would be noted in Westland records” and that when she
again attempted to transfer the certificates to her name, Saavedra “was repeatedly
rebuffed by . . . Page.” The district court concluded that Saavedra’s statements in her
complaint were hearsay, and Plaintiff does not argue that they were not hearsay.
Rather, Plaintiff maintains that the statements were subject to the hearsay exception
in Rule 11-807.
{27} 	As a preliminary matter, Plaintiff contends that Saavedra’s verified statements
“were no different from any affidavit of any declarant not present in court and all
inferences should have been resolved in favor of admitting her sworn statements.” In
support of this argument, Plaintiff cites Seal v. Carlsbad Independent School District,
116 N.M. 101, 860 P.2d 743 (1993), for the propositions that “the form of summary
judgment evidence itself does not have to meet the requirements of admissibility for
trial evidence, but the substance of the evidence must be of a type that can be admitted
at trial” and that “a deposition that may not be admissible at trial for one reason or
another is still a sworn statement that may contain sufficient specific facts admissible

16
into evidence to raise a genuine issue of material fact if it is based on personal
knowledge.” Id. at 105, 860 P.2d at 747 (emphasis omitted). Plaintiff contends that
because Saavedra’s sworn statements were based on personal knowledge, the court
should have considered the allegations in the complaint when determining whether
there were any issues of fact regarding Page’s alleged misrepresentations to Saavedra.
{28} 	Plaintiff ignores the distinction made in Seal between the form and the
substance of summary judgment evidence. Seal makes clear that while a court must
consider evidence even if the form of the evidence, such as a deposition, would be
inadmissible at trial, it cannot consider evidence if the substance of the evidence is
inadmissible at trial. The Court explained that hearsay, for example, “is not generally
admissible at trial, so affidavits or depositions containing hearsay are not sufficient
evidence of a fact.” Id.
{29} 	Here, the district court concluded that Saavedra’s complaint was hearsay and
that the statements in it were therefore inadmissible for purposes of summary
judgment. This conclusion was not based on the form of the evidence, but instead on
the substance of the evidence Plaintiff sought to use. The substance of the evidence
Plaintiff sought to use was Saavedra’s verified complaint itself, which the district
court determined to constitute hearsay, and Plaintiff does not challenge this
determination.

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{30} 	Plaintiff further contends that the district court erred in concluding that Rule 11-
807, the residual hearsay exception, did not apply to Saavedra’s complaint itself,
which set out statements by Page alleged to constitute misrepresentations. We review
the exclusion of hearsay testimony for an abuse of discretion. State v. Lopez, 2000-
NMSC-003, ¶ 10, 128 N.M. 410, 933 P.2d 727 (filed 1999). 	In so doing, we
“presume[] that the district court is correct and that the burden is on the appellant to
clearly demonstrate the district court’s error.” Akins v. United Steelworkers of Am.,
AFL-CIO, CLC, 2009-NMCA-051, ¶ 40, 146 N.M. 237, 208 P.3d 457, cert. granted,
2009-NMCERT-005, 146 N.M. 728, 214 P.3d 793. “An abuse of discretion occurs
when the ruling is clearly against the logic and effect of the facts and circumstances
of the case. We cannot say the district court abused its discretion by its ruling unless
we can characterize it as clearly untenable or not justified by reason.” Id. (alteration
omitted) (internal quotation marks and citation omitted).
{31} 	Rule 11-807 provides that a statement that is not covered by the hearsay
exceptions in Rules 11-803 and 11-804 may be admitted under certain circumstances
if it has “equivalent circumstantial guarantees of trustworthiness.” The district court
concluded that Plaintiff offered no evidence of the “circumstances which might tend
to guarantee the trustworthiness of [Saavedra’s] declarations [in the complaint].”
{32} 	We agree with the district court. 	The evidence Plaintiff offered on the

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trustworthiness of Saavedra’s statements consisted of evidence tending to corroborate
her statements, such as notes in the Westland file suggesting that Saavedra maintained
an ownership interest in the certificates. According to our Supreme Court, this is not
sufficient. In assessing indicia of trustworthiness, “[the] analysis focuses exclusively
upon the circumstances surrounding the making of the out-of-court statement,
disregarding other evidence that might corroborate the statement’s veracity.” State
v. Ross, 122 N.M. 15, 24, 919 P.2d 1080, 1089 (1996); see Lopez, 2000-NMSC-003,
¶ 17 (stating, in an analysis involving the residual hearsay exception, that courts do
not consider corroborating evidence). We therefore conclude that the district court did
not abuse its discretion in determining that Saavedra’s statements were not sufficiently
trustworthy to fall within the residual exception to the hearsay rule.
2. 	The Sanchez Affidavit
{33} 	After the district court determined that it would enter summary judgment in
favor of the Entity Defendants and Page, Plaintiff attempted to submit additional
evidence purporting to bolster the trustworthiness of Saavedra’s statements in the
complaint. Plaintiff filed a motion to reconsider to which she attached the affidavit
of Helen Sanchez, who was the shareholder relations director at Westland from 1989
to 1995. Sanchez attested that she had spoken to Saavedra on numerous occasions
after Saavedra met with Page and that Saavedra always stated that Page had told her

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not to worry about the certificates. 	In their response to Plaintiff’s motion to
reconsider, the Entity Defendants argued that the court should not consider Sanchez’s
affidavit because (1) Plaintiff, despite knowing about Sanchez’s testimony since June
2007, failed to mention Sanchez at any time prior to filing her motion for
reconsideration; and (2) the affidavit did not provide any indicia of reliability such
that Rule 11-807 would apply. The district court agreed with the Entity Defendants
and denied Plaintiff’s motion, concluding that Plaintiff failed to establish “any
grounds for failing at the hearing on the matter to make any of the new or additional
arguments” contained in the motion to reconsider and that Plaintiff failed “to establish
proper material grounds for reconsideration of the issues raised.”
{34} 	On appeal, Plaintiff argues that the district court erred in denying her motion
to reconsider and in declining to consider the affidavit she attached to her motion.
Plaintiff claims that Sanchez was unavailable to submit an affidavit until after the
hearing on the motion for summary judgment.
{35} 	We review the denial of a motion to reconsider for abuse of discretion. Nance
v. L.J. Dolloff Assocs. Inc., 2006-NMCA-012, ¶ 23, 138 N.M. 851, 126 P.3d 1215
(filed 2005). In Nance, we upheld the district court’s denial of a motion to reconsider
summary judgment where the party opposing summary judgment presented evidence
for the first time in a motion to reconsider even though the evidence was available at

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the time the party filed its response to the motion. See id. ¶ 24. In the present case,
Plaintiff contends that because Sanchez was unavailable to sign an affidavit until after
Plaintiff filed her response to the Entity Defendants’ motion for summary judgment,
Sanchez’s affidavit was new evidence, not evidence that was available at the time of
the hearing. We disagree.
{36} 	Plaintiff’s investigator attested that he spoke to Sanchez on June 29, 2007, and
that Sanchez provided him with information regarding “her knowledge of issues
related to Rosalia Saavedra and the [c]ertificates.” Thus, as of June 29, 2007, nearly
six months before the first summary judgment hearing on January 18, 2008, Plaintiff
was aware that Sanchez had knowledge of issues related to Saavedra and the
certificates. Despite this awareness, Plaintiff did not mention the potential testimony
of Sanchez at any time during the summary judgment proceedings until she filed her
motion to reconsider. Plaintiff contends that she was unable to submit an affidavit
from Sanchez earlier because Sanchez became ill shortly after she met with Plaintiff’s
investigator and did not recover until after the motion for summary judgment had been
granted. 	However, Plaintiff fails to explain why she did not comply with Rule 1-
056(F) NMRA, which provides a method by which a party can delay summary
judgment in order to obtain an affidavit from an unavailable witness.
{37} 	In her reply brief, Plaintiff cites Pena v. Westland Development Co., 107 N.M.

21
560, 564, 761 P.2d 438, 442 (Ct. App. 1988), and argues that she has met all six of the
elements required for granting a new trial based on newly discovered evidence.
Plaintiff does not explain why or how the rules applicable to motions for a new trial
based on newly discovered evidence are relevant to a motion to reconsider. Plaintiff
further fails to account for the fact that she was aware of Sanchez’s testimony at the
time she filed her response to the Entity Defendants’ motion for summary judgment.
{38} 	Under these circumstances, we conclude that the district court did not abuse its
discretion in denying Plaintiff’s motion for reconsideration and in refusing to consider
the affidavit of Sanchez. We therefore reject Plaintiff’s argument that the Sanchez
affidavit guarantees the trustworthiness of the statements in the complaint.
{39} 	Because we affirm the district court’s ruling that there was no admissible
evidence that Page made any misrepresentations to Saavedra, we do not address
Plaintiff’s arguments that Page’s statements constituted fraudulent misrepresentation.
E. 	Laches and the Aranda Certificate
{40} 	Because Saavedra’s claims related to the Aranda certificate are not barred by
the statute of limitations, we now address Aranda’s argument that the doctrine of
laches also serves as a bar to Saavedra’s claims against him.
{41} 	The district court concluded that the doctrine of laches barred Saavedra’s
claims against Aranda. Specifically, the court noted that “[Saavedra] was aware of a

22
number of significant problems with respect to the stock as early as 1989, and never
did anything about it, and there is prejudice.”
{42} 	Laches is an equitable defense that will bar a cause of action not barred by a
statute of limitations when four elements are met. 	Martinez v. Martinez, 2004-
NMCA-007, ¶ 21, 135 N.M. 11, 83 P.3d 298 (filed 2003). The required elements are:
(1) 	Conduct on the part of the defendant, giving rise to the situation
of which complaint is made and for which the complainant seeks a
remedy;
(2) 	delay in asserting the complainant’s rights, the complainant having
had knowledge or notice of the defendant’s conduct and having been
afforded an opportunity to institute a suit;
(3) 	lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which [she] bases [her] suit; and
(4) 	injury or prejudice to the defendant in the event relief is accorded
to the complainant or the suit is not held to be barred.
Id. (internal quotation marks and citation omitted).
{43} 	Aranda contends that there was no disputed issue of fact that all four elements
of laches have been met. 	As to the first element, Aranda argues that “the pivotal
event” was Saavedra’s inability to register the certificates in 1990 and that “[f]rom
that time forward [Saavedra] knew that there was some flaw in the handing along of
the certificates” and that “action by the original heirs, if still living, was possible.”
Aranda argues that the second element was met by Saavedra’s failure to take any

23
action regarding her ownership of the certificates between the date she first knew there
might be a problem and the date that she filed suit. With respect to the third element,
Aranda contends that “the passage of time from 1974 when Certificate 198 was placed
in Antonio Aranda’s name until 2004 when it was placed in . . . Aranda’s name
provide[d] Aranda with no knowledge or notice that a claim would be made.” Finally,
Aranda contends that he is prejudiced by the fact that the majority of the parties
involved in the original transfer have died and are unable to testify.
{44} 	We disagree with Aranda that there is no issue of fact regarding the elements
of laches. The first element of the tort requires a showing that there was some conduct
on the part of Aranda that gave rise to the situation about which Plaintiff complains.
Garcia, 111 N.M. at 588, 808 P.2d at 38. None of the conduct in the early 1990s that
Aranda cites, however, constitutes Aranda’s conduct giving rise to Saavedra’s
complaint. 	Aranda did nothing until 2004, when he obtained the replacement
certificate. 	In addition, while Saavedra was put on notice in 1990 that there were
some problems with her ability to register the certificate, she was not put on notice
that Aranda was going to make an adverse claim regarding the ownership of the
certificate sometime in the future.
{45} 	Regarding the second element, delay, Aranda has not argued that Saavedra
engaged in any unreasonable delay between the time she first became aware that

24
Aranda had obtained the certificate and the time that the suit was filed. 	The short
delay between Saavedra’s discovery that Aranda had obtained the certificate in 2007
and the filing of her suit later that year is not the type of delay that the doctrine of
laches is intended to remedy. Even assuming that Saavedra should have known in
2004 that Aranda had obtained a replacement certificate, we cannot say that the three-
year delay between Aranda’s conduct and the filing of the suit was unreasonable as
a matter of law.
{46} 	With respect to the third element, Aranda argues that because Saavedra took no
action to resolve the registration issues with the certificate between 1974 and 2004,
he had no knowledge or notice that a claim would be made. The record before us on
appeal, however, belies Aranda’s argument. According to Plaintiff, Aranda contacted
Saavedra directly in 1998 or 1999 to ask about buying the certificate. 	Westland’s
notes from that time indicate that Aranda was seeking to buy the certificate, and
Aranda concedes that he was inquiring about purchasing the certificate at that time.
By 	seeking 	to 	purchase 	the 	certificate 	from 	Saavedra, 	Aranda 	demonstrated
knowledge that Saavedra possessed the certificates and claimed ownership of them.
Thus, contrary to his argument that he had no knowledge that a claim would be made,
there is evidence that Aranda was on notice that if he attempted to obtain the
certificate without Saavedra’s consent, Saavedra might assert her ownership of the

25
certificate.
{47} 	Finally, Aranda contends that he was prejudiced by the fact that a number of
material witnesses died between the time that Saavedra first became aware of the
ownership issues and the time that she filed her suit. Specifically, he points to the
deaths of Antonio Aranda, Nino, and Saavedra herself. 	Nino died in 1986,
approximately three years before Sonny gave the certificates to Saavedra. Antonio
Aranda died in 1989, the same year that Saavedra received the certificates. 	Thus,
while Aranda argues that Saavedra’s delay resulted in prejudice because both Antonio
and Nino had died, the record reflects that both of these individuals died before
Saavedra ever obtained possession of the certificates. 	Thus, it is illogical to fault
Saavedra for any prejudice caused by the unavailability of those individuals.
{48} 	Because Aranda failed to demonstrate the existence of any of the four necessary
elements for the doctrine of laches to apply, we conclude that the district court erred
in granting summary judgment on the basis of the doctrine with respect to Plaintiff’s
claims related to the Aranda certificate.
F. 	Fraud Claims Based on the Aranda Certificate
{49} 	Having rejected the district court’s conclusion that the claims based on the
Aranda certificate were time-barred, we now turn to the court’s conclusion that
Plaintiff failed to demonstrate a genuine issue of any material fact supporting her

26
fraud claim based on that certificate. 	Saavedra’s fraud claim against Aranda was
based on the alleged fact that Aranda filed a lost-certificate affidavit and obtained a
replacement certificate when he knew that Saavedra had possession of the allegedly
lost certificate. 	Thus, Saavedra’s claims stemmed from the representations that
Aranda allegedly made to Westland in order to obtain a replacement certificate. In
granting summary judgment in favor of Aranda, the district court explained that there
was no evidence “concerning a misrepresentation from Aranda or to [Saavedra],
whether directly or from an agent” and that “without evidence of a misrepresentation,
there logically could[ not] be any evidence of reliance.” On appeal, Plaintiff argues
that the court’s conclusion was wrong.
{50} 	“An actionable fraud is a misrepresentation of a fact, known to be untrue by the
maker, and made with an intent to deceive and to induce the other party to act upon
it with the other party relying upon it to his injury or detriment.” Unser v. Unser, 86
N.M. 648, 653-54, 526 P.2d 790, 795-96 (1974). In this case, Plaintiff claimed that
Aranda misrepresented to Westland that he had lost the original certificate belonging
to his father, despite his knowledge that Saavedra had possession of the original
certificate. 	She claimed that the Entity Defendants and Page relied on Aranda’s
misrepresentation in issuing the replacement certificate and further that they
committed fraud in their own right by issuing the replacement while knowing that

27
Saavedra had the original.
{51} 	The problem with Plaintiff’s claims is that she failed to produce evidence of
Aranda’s alleged misrepresentation. The only evidence in the record regarding the
replacement certificate established that Aranda filed an affidavit with Westland stating
that he was the successor to the estate of Antonio Aranda and that Westland issued a
replacement certificate on the basis of that affidavit. There is nothing suggesting that
any of the statements in this form affidavit were misrepresentations because Aranda
was indeed the successor to his father’s estate. Plaintiff therefore failed to present
evidence of any misrepresentation on which to base her fraud claims.
{52} 	Plaintiff further argues that the district court should have stayed the summary
judgment proceedings to give Plaintiff an opportunity to obtain a copy of the
documents that Aranda submitted to Westland to obtain the replacement certificate.
Plaintiff filed a Rule 1-056(F) affidavit seeking a stay in order to conduct additional
discovery and argued that the case was complex, involved voluminous documentation
and that while “some discovery . . . ha[d] been conducted, much of the time spent in
th[e] case ha[d] been monopolized by numerous pleadings and hearings related to
prior motions for summary judgment.” 	The affidavit stated that “[e]ssential and
extensive discovery of testimony and of documents in the possession of . . .
Defendants was interrupted” by the summary judgment proceedings “and remain[]

28
incomplete.”
{53} 	At the hearing on the matter, the district court first indicated that Plaintiff’s
“Rule [1-0]56(F) affidavit is deficient” because Plaintiff made only a general
statement that she needed more discovery and failed to indicate with particularity the
specific evidence she sought to obtain through further discovery. Immediately after
making that statement, however, the district court indicated that during the argument,
Plaintiff’s counsel had “cleared up what [he was] looking for,” which was apparently
the lost-certificate affidavit allegedly submitted to Westland by Aranda. The district
court noted that the Rule 1-056(F) motion “ha[d] been pending for longer than three
months which, under the circumstances, ought to be ample time to present to the
[c]ourt any and all missing evidence.”
{54} 	On 	appeal, 	Plaintiff 	argues 	only 	that 	“she 	satisfied 	the 	Rule 	[1-0]56
requirements for obtaining a stay of proceedings” and that a Rule 1-056(F) motion
does not require the particular details of the evidence sought to be obtained during
discovery. Thus, Plaintiff contends that the district court erred in concluding that the
motion and accompanying affidavit were deficient. However, as evidenced by the
statements of the district court, the court did not deny Plaintiff’s motion due to its lack
of particularity. Rather, the court indicated that Plaintiff’s counsel had clarified what
he wanted to obtain through further discovery but that Plaintiff had had ample time

29
to conduct the discovery. 	Plaintiff does not challenge this conclusion. 	Because
Plaintiff challenges only the district court’s conclusion that her affidavit was deficient,
and because the court did not base its denial of Plaintiff’s motion on the deficiency of
the affidavit, we conclude there was no error. Thus, we hold that summary judgment
against Plaintiff was proper on her claims based on Aranda’s alleged fraud, whether
they were asserted against Aranda or against the Entity Defendants and Page.
G. 	Conversion Claims Against Aranda
{55} 	The district court concluded that there was an issue of material fact with respect
to Saavedra’s conversion claim against Aranda, but that the claim nonetheless failed
because it was time-barred by either the statute of limitations or the doctrine of laches.
Because we conclude that Saavedra’s claims against Aranda are not barred by the
statute of limitations or laches, we address Aranda’s argument that the district court
erroneously concluded that there were issues of material fact with respect to the
conversion claim. Aranda argues that Saavedra’s conversion claim is governed by the
Uniform Commercial Code (UCC) and that she failed to state a cause of action upon
which relief can be granted. We agree.
{56} 	“Conversion is the unlawful exercise of dominion and control over property
belonging to another in defiance of the owner’s rights, or acts constituting an
unauthorized and injurious use of another’s property, or a wrongful detention after

30
demand has been made.” Sec. Pac. Fin. Servs. v. Signfilled Corp., 1998-NMCA-046,
¶ 15, 125 N.M. 38, 956 P.2d 837. An essential element of a conversion claim is that
the defendant exercise dominion or control over the property of another. See id.
{57} 	Saavedra’s conversion claim against Aranda alleged that Aranda knew that
Saavedra possessed the certificate and, despite that knowledge, he obtained and
redeemed a replacement certificate from Westland. Plaintiff contends that the act of
obtaining a replacement certificate constituted conversion. We disagree. Under the
common law, the issuance of a replacement certificate automatically revoked the
original certificate, rendering the original certificate valueless. NMSA 1978, § 55-8-
405 (1996), cmt. 2. 	Under the UCC, however, the issuance of a replacement
certificate under the UCC has no effect on the value of the original certificate. See id.
Section 55-8-405 makes clear that “[i]f, after the issue of a new security certificate,
a protected purchaser of the original certificate presents it for registration of transfer,
the issuer,” which in this case is Westland, is required to “register the transfer unless
an overissue would result.” 	Section 55-8-405(b). 	In the event that a protected
purchaser, such as (hypothetically) Saavedra, registers the original certificate, the
issuer “may recover the new certificate from a person to whom it was issued or any
person taking under that person, except a protected purchaser.” Id. It is only “[w]here
both the original and the new certificate have reached protected purchasers” and “an

31
overissue would result” that the “purchaser of the original certificate is relegated to
an action for damages.” Id. at cmt. 2. By contrast, if an overissue would not result,
the issuer must honor both the original and the new replacement certificates. 	Id.
Thus, Saavedra’s remedy under the UCC in the event that Westland refused to honor
her original certificate was a cause of action against Westland to compel registration
of the original certificate, not a conversion claim against the person who obtained the
replacement certificate.
{58} 	Thus, contrary to Plaintiff’s contention that Aranda’s acquiring a replacement
certificate constituted an unlawful conversion of Saavedra’s property, Aranda’s
conduct and the subsequent issuance of the replacement certificate actually had no
effect on the value of the original certificate that Saavedra possessed. Under the UCC,
Saavedra could have sought to compel Westland to register and redeem her certificate
and, therefore, the certificate retained the full value it had prior to Aranda’s obtaining
a replacement. 	See id. 	Because Aranda’s conduct did not constitute the unlawful
exercise of dominion and control over Saavedra’s original certificate, we conclude
that Plaintiff failed to demonstrate the existence of facts necessary to prevail on her
conversion claim. See Sec. Pac. Fin. Servs., 1998-NMCA-046, ¶ 15. We therefore
affirm summary judgment in favor of Aranda with respect to the conversion claim.
H. 	The Entity Defendants and Page

32
{59} 	As explained above, the statute of limitations with respect to Saavedra’s claims
against the Entity Defendants and Page related to the issuance of Jaramillo’s
replacement certificates began to run in 1990. However, the statute of limitations for
Saavedra’s claims against the Entity Defendants and Page related to the Aranda
certificate did not begin to run until, at the earliest, 2004. Thus, summary judgment
in favor of these Defendants with respect to the Aranda certificate was erroneous to
the extent it was based on the statute of limitations. However, the district court also
considered the argument that summary judgment was appropriate due to the Entity
Defendants’ and Page’s compliance with their obligations under the UCC. Under our
right-for-any-reason doctrine, we can affirm the district court on this alternative basis
so long as it would not be unfair to Plaintiff. See Meiboom v. Watson, 2000-NMSC-
004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (explaining that an appellate court may
affirm a district court’s ruling on a ground that was not relied on below if reliance on
the new ground would not be unfair to the appellant). Because the parties argued the
UCC issue below and on appeal, it would not be unfair to affirm the district court on
the basis of the Entity Defendants’ and Page’s compliance with the UCC, and we
therefore address their argument.
{60} 	The specific causes of action that Saavedra asserted against the Entity
Defendants and Page are vague. 	Saavedra’s first amended complaint specifically

33
alleged breach of fiduciary duty against these Defendants, but the claims for fraud and
conversion appeared to be directed against the Jaramillo Defendants and Aranda. In
her brief-in-chief, however, Plaintiff clarifies that “[a]t its roots, [Plaintiff’s] case
against the [Entity Defendants and Page] is for fraud and conversion, arising from the
fact that [the Entity Defendants] and Page allowed and facilitated transfers of the
shares belonging to Rosalia Saavedra to third parties.” Plaintiff goes on to explain
that “[t]he fraud did not occur as a consequence of failure to register stocks in
[Plaintiff’s] name, but arose in connection with the subsequent improper registration
by [the Entity Defendants] and Page of the stocks in the names of third parties.”
Saavedra’s allegations regarding breach of fiduciary duty also stem from the
registration of the shares. Thus, we construe Saavedra’s cause of action against the
Entity Defendants and Page to be solely based on the propriety of their issuance of the
replacement certificates, which Plaintiff contends divested Saavedra of her ownership
interest in the original certificates. 	Because Saavedra’s claims arising out of the
Jaramillo certificates are barred by the statute of limitations, the only remaining claims
against these Defendants are those arising out of the Aranda certificate. The Entity
Defendants and Page argue that they acted in accordance with their obligations under
the UCC when they issued the replacement certificate and that summary judgment in
their favor was therefore proper.

34
1. 	The UCC Required Issuance of Replacement Certificates
{61} 	Article 8 of the UCC imposes specific obligations on a stock issuer requiring
the issuance of replacement stock certificates when certain conditions have been met.
Section 55-8-405. 	Section 55-8-405(a)(1) provides that “[i]f an owner of a
certificated security . . . claims that the certificate has been lost, destroyed or
wrongfully taken, the issuer shall issue a new certificate if,” among other things, the
owner “so requests before the issuer has notice that the certificate has been acquired
by a protected purchaser.” 	The stock issuer’s obligation to issue a replacement
certificate to the registered owner stems from the requirement that the issuer “treat the
registered owner as the person exclusively entitled to vote, receive notifications and
otherwise exercise all the rights and powers of an owner” unless the certificate has
been presented for registration of transfer pursuant to NMSA 1978, Section 55-8-401
(1996). NMSA 1978, § 55-8-207 (1996).
{62} 	Plaintiff contends that the Entity Defendants and Page failed to comply with
Article 8 because they had actual notice of Saavedra’s adverse claim, which precluded
them from issuing the replacement certificates. In support of this argument, Plaintiff
cites NMSA 1978, Section 55-8-105(a) (1996), which provides that
(a) 	A person has notice of an adverse claim if:
(1) 	the person knows of the adverse claim;

35
(2) 	the person is aware of facts sufficient to indicate that there
is a significant probability that the adverse claim exists and deliberately
avoids information that would establish the existence of the adverse
claim; or
(3) 	the person has a duty, imposed by statute or regulation, to
investigate whether an adverse claim exists and the investigation so
required would establish the existence of the adverse claim.
Plaintiff contends that because the Entity Defendants and Page were aware that
Saavedra had tried to register the certificates in 1990 and because the Entity
Defendants’ and Page’s records reflected that Saavedra possessed the original
certificates, they were aware that Saavedra had an adverse claim that would preclude
the issuance of the replacement certificates.
{63} 	Plaintiff fails to recognize that the notice provision in Section 55-8-105 applies
only to those sections of the UCC requiring a purchaser to take the certificates
without notice of an adverse claim. See § 55-8-105, cmt. 1. Section 55-8-405, which
governs the obligations of the stock issuer, precludes the issuance of a replacement
certificate only if the issuer has notice that the original certificate has been acquired
by a protected purchaser, not where the issuer has notice of an adverse claim. See also
NMSA 1978, § 55-8-404 (1996), cmt. 3 (explaining that “the fact that a third person
notifies the issuer of a claim does not preclude the issuer from treating the registered
owner as the person entitled to the security”). Thus, the Entity Defendants and Page
were required to refrain from issuing the replacement certificates only if they had

36
notice that a protected purchaser had acquired the original certificates.
{64} 	A “protected purchaser” is defined as “a purchaser of a certificated . . . security”
who “(1) gives value[,] (2) does not have notice of any adverse claim to the security[,]
and (3) obtains control of the certificated . . . security.” 	NMSA 1978, § 55-8-
303(a)(1)-(3) (1996). The requirements for control of a certificate in registered form
are: “(1) delivery as defined in [NMSA 1978,] Section [55-]8-301(b) [(1996)], plus
(2) either an effective [e]ndorsement or registration of transfer by the issuer.” Section
55-8-303, cmt. 3. Plaintiff does not argue that Saavedra was a protected purchaser or
that the Entity Defendants or Page had any notice that the certificates had been
acquired by a protected purchaser, nor does she contend that Saavedra gave value for
the certificates or that there was an effective endorsement on the certificates such that
she could be deemed to have control of the certificates. Instead, Plaintiff contends
only that Saavedra possessed the physical copy of the original certificates that had
been endorsed to Nino Barboa.
{65} 	Section 55-8-405 makes clear that an issuer is obligated to issue a replacement
certificate upon request by a registered owner unless the issuer is aware that the
certificate has been obtained by a protected purchaser. 	Because Plaintiff does not
allege that Saavedra was a protected purchaser and because it is undisputed that
Aranda was the heir of the registered owner of the certificate at the time the

37
replacement was issued, we conclude that as to Saavedra the Entity Defendants and
Page acted in accordance with their obligations under the UCC when they issued the
replacement certificate. 	See Smouha v. MTA & J.P. Morgan Chase, 797 N.Y.S.2d
278, 284 (App. Div. 2005) (noting that compliance with Section 55-8-405 “is a
defense even as against a person in possession of the security certificate”). Assuming
that the Entity Defendants and Page had notice that Saavedra possessed the original
certificate, Plaintiff does not argue that they had notice that she was a protected
purchaser. The Entity Defendants and Page were therefore required by Section 55-8-
405 to issue the replacement certificate when Aranda requested it.
{66} 	Finally, the requirement that an issuer issue a replacement certificate upon
request of the registered owner stems from the fact that the issuer may be entitled to
“treat the registered owner as the person exclusively entitled to . . . exercise all the
rights and powers of an owner.” 	Section 55-8-207(a). 	The ability to treat the
registered owner as the exclusive person entitled to exercise the rights of an owner
ceases, however, upon “due presentment for registration of transfer of a certificated
security in registered form” as defined in Section 55-8-207(a). 	While Saavedra
attempted to register the transfer of her certificates in 1990, Plaintiff does not argue
that Saavedra met the requirements of Section 55-8-401, and the Entity Defendants’
and Page’s duty to treat the registered owner as the owner of the certificates was

38
therefore unaffected by Saavedra’s unsuccessful attempt to register the certificates.
{67} 	Because the UCC required the Entity Defendants and Page to issue a
replacement certificate upon the request of the registered owner and because Aranda
was the heir of the registered owner at the time he obtained his replacement certificate
in 2004, we conclude that as to Saavedra the Entity Defendants and Page acted in
accordance with the UCC when they issued the replacement certificate. See NMSA
1978, § 55-8-107 (1996) (explaining that if the registered owner is deceased, the heir
has the ability to make instructions regarding the certificate); § 55-8-405 (requiring
issuer to issue a replacement certificate upon request from the registered owner).
2. 	Saavedra’s Common Law Claims Are Inconsistent with Article 8
{68} 	Plaintiff contends that despite the Entity Defendants’ and Page’s compliance
with Article 8, Saavedra was still entitled to bring a common law action against them
for fraud and conversion. Plaintiff relies on NMSA 1978, Section 55-1-103(b) (2005),
which provides that “[u]nless displaced by the particular provisions of the [UCC], the
principles of law and equity, including . . . fraud, misrepresentation, duress, coercion,
mistake, bankruptcy and other validating or invalidating cause, shall supplement its
provisions.” In addition, Plaintiff argues that “New Mexico courts continue to deal
with a large number of fraud claims involving securities in this UCC subject area
without finding a displacement of the common law.”

39
{69} 	We disagree. If a stock issuer acted in violation of its obligations under the
UCC, then, as Plaintiff argues, common law claims for fraud or conversion would
supplement any remedy provided by the UCC. However, where a stock issuer acts in
accordance with its obligations under the UCC, then a common law claim for the
conduct required by the UCC would be displaced by the UCC.
{70} 	The cases Plaintiff cites in support of her argument are not persuasive. 	In
Gallagher v. Santa Fe Federal Employees Federal Credit Union, 2002-NMCA-088,
¶ 18, 132 N.M. 552, 52 P.3d 412, for example, this Court held that a plaintiff’s
common law claim for conversion was displaced by the UCC because the UCC
specified the conversion liabilities to which a bank can be subject. 	In addition, in
holding that the three-year statute of limitations in the UCC would govern any of the
plaintiff’s claims that were not displaced by the UCC, we noted that “a statute of
limitations applying to any of those claims of a greater period than three years would
conflict with the purposes of the UCC.” Id. ¶ 25. Similarly, in Venaglia v. Kropinak,
1998-NMCA-043, ¶ 23, 125 N.M. 25, 956 P.2d 824, we noted that a common law rule
that was “directly contrary” to the provisions of the UCC was displaced by the UCC.
{71} 	Here, as in Gallagher and Venaglia, Saavedra’s common law claims are directly
contrary to the provisions of the UCC and are therefore displaced. 	If, as Plaintiff
argues, a stock issuer could be held liable for fraud or conversion for doing what it is

40
required to do under the UCC, then the issuer would have to choose whether to violate
the UCC or potentially violate the common law. Had the Entity Defendants and Page
refused to issue a replacement certificate upon the request of the registered owner’s
heir, Aranda, then they would have been subject to liability for disregarding their
obligation under the UCC. 	Thus, we hold that the Entity Defendants’ and Page’s
actions in accordance with their obligations under the UCC displaced Saavedra’s
common law claims stemming from those actions.
{72} 	Finally, to the extent Plaintiff argues that Saavedra would be left without a
remedy if she could not seek relief under the common law, we note that the UCC
provides a specific remedy for an individual who purchases a stock certificate for
which the registered owner has already obtained a replacement. 	As we explained
above in discussing Saavedra’s conversion claims against Aranda, Section 55-8-405
provides the exclusive remedy through which the holder of an original certificate can
register the certificate when a replacement has been issued.
{73} 	If, following the issuance of the replacement certificate, Saavedra had
established that she was a protected purchaser, then the Entity Defendants would have
been obligated to register the original certificate pursuant to Section 55-8-405 and to
recover the replacement certificate from Aranda. See In re Bame, 252 B.R. 148, 157
(Bankr. D. Minn. 2000) (explaining that if a protected purchaser presents an original

41
certificate to an issuer after the replacement certificate is issued, the issuer would be
required to honor both certificates). 	Had the Entity Defendants refused to register
Saavedra’s certificate after she established the requisite ownership, Saavedra could
have sought to compel registration pursuant to the applicable UCC provisions. See
§ 55-8-401 (explaining an issuer’s duty to register transfers). However, Plaintiff has
not challenged the Entity Defendants’ and Page’s refusal to register the certificates
when Saavedra attempted to register them in 1990 and again in 2007. That Saavedra
chose to pursue an action for fraud and conversion against the Entity Defendants and
Page that is inconsistent with the provisions of the UCC rather than the remedy
provided by the UCC does not mean that she had no remedy available to her.
3. 	Summary Judgment in Favor of Mellon Investment Services
{74} 	Plaintiff argues that no argument or evidence was submitted to support
summary judgment in favor of Defendant Mellon Investment Services (Mellon) and
that the district court’s dismissal of the claims Saavedra brought against Mellon was
therefore improper. Plaintiff contends that nothing was submitted regarding dismissal
of the claims against Mellon and that she “accordingly assumed that no claim existed,
and filed no response related to Mellon.” Contrary to Plaintiff’s assertion, the Entity
Defendants’ motion for summary judgment clearly sought dismissal of the claims
against Westland, DevCo, and Mellon. 	That motion listed the three corporate

42
Defendants, noted in a parenthetical that the three Defendants would be collectively
referred to as the “Entity Defendants,” and sought relief on behalf of the Entity
Defendants. Furthermore, in a footnote, the motion noted that because Mellon acted
as Westland’s agent and because DevCo is the successor-in-interest of Westland,
Saavedra’s claims against all of the Entity Defendants should be dismissed if her
claims against Westland were dismissed. Thus, the motion clearly apprised Plaintiff
of the fact that the Entity Defendants sought dismissal of Saavedra’s claims against
Westland, DevCo, and Mellon.
III. 	CONCLUSION
{75} 	For the foregoing reasons, we affirm the judgment of the district court
dismissing all of Plaintiff’s claims.
{76} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge

RODERICK T. KENNEDY, Judge
43