¶1(specially concurring).
¶2While I concur in the result reached in this opinion, I do so on rationale that conflicts with that of the author. Referring to the substantive evidentiary burden of clear and convincing evidence, the opinion holds that the "sufficiency of the heirs' proof” can be tested only at trial on a motion for directed verdict or by the jury. We recently addressed sufficiency of proof by clear and convincing evidence in the context of a directed verdict.
The possibility of recovery may appear remote to the trial judge in the normal case involving a “preponderance of the evidence” standard. It may appear even more remote when proof is required by “clear and convincing evidence.” However, if the plaintiff has introduced a minimum quantum of evidence from which the jury could reasonably find in his favor under the applicable standard of proof, then the plaintiff is entitled to a jury determination.
When the standard is clear and convincing evidence, the question for the trial judge is whether there is sufficient evidence introduced from which a reasonable juror could reach an “abiding conviction” as to the truth of the plaintiff’s claim. See Duke City Lumber Co. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975); In re Foster, 102 N.M. 707, 699 P.2d 638 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985); see also In re Fletcher, 94 N.M. 572, 613 P.2d 714 (Ct.App.), cert. denied, 94 N.M. 674, 615 P.2d 991 (1980).
In the instant case, we believe that the evidence presented by [plaintiff] met this threshold standard and, therefore, entry of a directed verdict against him was error. The evidence is entirely circumstantial, but we have long recognized that clear and convincing evidence may be circumstantial in nature. See Ledbetter v. Webb, 103 N.M. 597, 711 P.2d 874 (1985); Sauter v. St. Michael’s College, 70 N.M. 380, 374 P.2d 134 (1962).
¶3Chavez v. Manville Products Corp., 108 N.M. 643, 648, 777 P.2d 371, 376 (1989).
¶4I would explicitly extend the holding of Chavez to summary judgment proceedings. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court held:
[W]e are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.
¶5Id. at 252, 106 S.Ct. at 2512.
In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages. Consequently, where the … “clear and convincing” evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant.
¶6Id. at 255, 106 S.Ct. at 2514.
¶7The opinion rendered today does not apply the Chavez holding to summary judgment proceedings. It specifically states: “We certainly do not hold that the raising of these questions [i.e., factual inferences] would satisfy the heirs’ burden at trial to prove fraud by clear and convincing evidence.” Also: “The record in this case does not establish that the defendants made ‘deliberately false representations’ or that they intended to abuse the informal probate process.”
¶8To the contrary, while the possibility of recovery may appear remote and, as expressed in the opinion, “the heirs may have a difficult time at trial meeting the exacting requirements for a claim of fraud,” I believe the plaintiff has responded to the motion for summary judgment with a minimum quantum of evidence from which the jury could reasonably find in his favor under the applicable standard of proof.
¶9Therefore, applying the substantive evidentiary standard of proof to this proceeding, I would reverse the summary judgment and remand for trial.