Sandel v. Sandel

                                              Office of the Director   New Mexico
                                               09:43:20 2020.07.10     Compilation
                                                             '00'06-   Commission


          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.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Louis E. DePauli, Jr., District Judge

Released for Publication June 2, 2020.

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

Gurley Law Firm
Curtis Gurley
Aztec, NM

for Appellees
                                          OPINION

MEDINA, Judge.

{1}    Plaintiff Jeffrey Sandel appeals the district court’s order dismissing his complaint
on the grounds that Plaintiff was collaterally estopped from bringing his tort claims and
barred by the statute of limitations for bringing a claim under the New Mexico Uniform
Probate Code (the Probate Code). We affirm.

BACKGROUND

{2}    This action arises out of an intergenerational dispute over the proceeds of a
marital trust. Plaintiff is the adult son of Defendant Jerry Sandel and his now-deceased
wife, Nancy Sandel. Defendant and Mrs. Sandel jointly executed the Jerry W. and
Nancy M. Sandel Revocable Trust (the Trust) in 1974. The Trust was amended and
restated several times over the years, with the last amendments and restatements
occurring in June 1995 (the 1995 Amendment), January 1999 (the 1999 Restatement),
and May 2001 (the 2001 Restatement). Following Mrs. Sandel’s death in 2001,
Defendant, the personal representative of Mrs. Sandel’s estate, informally probated her
estate in August 2002. As we describe in detail below, Plaintiff first brought suit against
Defendant, individually, as well as in his capacity as the personal representative of Mrs.
Sandel’s estate and trustee of the Trust in federal court, and when those claims were
dismissed, Plaintiff then filed this action.

The Federal Lawsuit

{3}     In October 2015, fourteen years after Mrs. Sandel’s death, Plaintiff filed suit in
federal district court (the Federal Suit) against Defendant, alleging fraud, breach of trust,
and conversion. Plaintiff’s complaint alleged that under the original terms of the Trust,
following the deaths of both Defendant and Mrs. Sandel, the Trust principal was to be
distributed in equal parts to Plaintiff and his two siblings over the course of time until
they reach thirty-five years of age, at which time they could demand their remaining full
share of the marital trust principal. However, the Trust was amended in 1995 and then
amended and restated in 2001 in such a way to ultimately eliminate Plaintiff’s right to
demand the principal of the Trust—which Plaintiff claimed was in the millions of dollars.
A handwriting expert, who subsequently reviewed the 1995 Amendment and 2001
Restatement, concluded that Mrs. Sandel’s signatures on two instruments were forged.
The complaint further alleged that Defendant: (1) knew that Mrs. Sandel’s signature was
forged on the two instruments; (2) intentionally misled Plaintiff by telling him that
Defendant and Mrs. Sandel “modified the terms of [Mrs. Sandel’s] testamentary
documents such that Plaintiff . . . had no inheritance rights, present or future, to any of
the assets in [Mrs. Sandel’s] estate[;]” and (3) fraudulently concealed the existence of
the Trust by telling Plaintiff in March 2009 and February 2010 that “there was no trust in
which Plaintiff . . . had any interest.” As a result of Defendant’s representations, Plaintiff
claimed that he did not contest the validity of the Trust or the disposition of Mrs.
Sandel’s estate until he was able to obtain a copy of the 1995 Amendment and 2001
Restatement through discovery in a separate lawsuit. 1

{4}     Defendant filed a motion for judgment on the pleadings, which the federal district
court granted as to the counts for fraud, breach of trust, and conversion. Sandel v.
Sandel, No. CV-15-924 MCA/KK, 

 (D.N.M. July 18, 2016). In doing
so, the federal court found that those claims were foreclosed by Wilson v. Fritschy,

, 

, 

, which “established that ‘when the
interference with inheritance takes place in the context of a will or other testamentary
device that can be challenged in probate,’ the plaintiff must utilize the Probate Code,
rather than tort law, to obtain relief.” Sandel, 

, at *1 (quoting Wilson,

). Although the federal district court dismissed Plaintiff’s tort
claims, it noted that Plaintiff could potentially pursue his fraud claim under NMSA 1978,
Section 45-1-106(A) (1975), a Probate Code provision that allows any person to obtain
“appropriate relief” within two years of discovering fraud “perpetrated in connection with
any proceeding or in any statement filed under the . . . Probate Code or . . . fraud . . .
used to avoid or circumvent the provisions or purposes of the code.” See Sandel, 

, at *1.

The State Lawsuit

{5}     Following the dismissal of the Federal Suit, Plaintiff filed the instant action in
state district court in August 2016. Plaintiff’s complaint alleged fraud, breach of trust,
and tortious interference with an expected inheritance based largely on the same facts
he alleged in the Federal Suit. Plaintiff further alleged that the same handwriting expert
who reviewed the 1995 Amendment and 2001 Restatement believed that the 1999
Restatement was likely forged as well. In addition to the above causes of actions,
Plaintiff contended that Defendant breached his duty as personal representative to Mrs.
Sandel’s estate by intentionally failing to inform Plaintiff of the estate’s informal probate,
which Plaintiff claimed he did not learn of until 2009. Although Plaintiff admitted learning
in 2009 that Mrs. Sandel’s estate had been probated in 2002, the complaint alleged that
Plaintiff did not discover the fraud until 2015.

{6}     In response, Defendant filed a counterclaim against Plaintiff for malicious abuse
of process. Additionally, Defendant moved to dismiss for failure to state a claim, arguing
that the Federal Suit barred Plaintiff’s tort claims under the doctrine of res judicata.
Defendant also argued that Plaintiff’s claims were time-barred under NMSA 1978,
Section 46A-6-604(A) (2007), which provides that “[a] person may commence a judicial
proceeding to contest the validity of a trust that was revocable at the settlor’s death
within the earlier of . . . three years after the settlor’s death; or . . . one hundred twenty
days after the trustee sent the person a copy of the trust [along with a notice containing
certain information].” Alternatively, Defendant argued that Plaintiff’s claims were time-barred because Plaintiff knew or should have discovered the alleged fraud in 2009.



1Plaintiff did not specify when this lawsuit took place.
{7}     Defendant attached several exhibits in support of his motion, including multiple
affidavits from his estate planning attorney in which the attorney described his personal
involvement with drafting the provisions of the Trust—including the 1995 Amendment,
1999 Restatement, and 2001 Restatement—as well as his involvement with the informal
probate of Mrs. Sandel’s will. Defendant’s attorney also attested that he met with
Plaintiff on June 5, 2002, to go over Mrs. Sandel’s will and the disposition provisions of
the Trust and that he sent Plaintiff a complete copy of Mrs. Sandel’s will and the 2001
Restatement on April 9, 2009. Additionally, Defendant attached a copy of Mrs. Sandel’s
will devising her entire estate (besides personal and household effects) to the Trust, as
well as copies of the 1995 Amendment, 1999 Restatement, and 2001 Restatement—
including the unnotarized signature pages with Mrs. Sandel’s purportedly forged
signatures.

{8}     In addition to the above, Defendant attached two other exhibits to the motion.
One was a copy of an email Plaintiff sent to Defendant’s attorney in 2009 in which
Plaintiff wrote:

       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
       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.

The other was a short, six-paragraph affidavit Plaintiff submitted in the Federal Suit in
which Plaintiff admitted sending an e-mail in 2009 threatening to challenge the Trust in
court. In that affidavit, Plaintiff attested that “[i]n or around 2001, shortly after the death
of [Mrs. Sandel], . . . Defendant . . . told [Plaintiff] that he and [Mrs. Sandel] had modified
the terms of [her] testamentary documents such that [Plaintiff] had no inheritance rights,
present or future, to any of the assets in [Mrs. Sandel’s] estate” and that Defendant told
Plaintiff in 2009 and 2010 that “there was no trust in which [Plaintiff] had any interest.”
Plaintiff also attested that he did not discover the purported forgeries until 2015 because
Mrs. Sandel’s signatures “on the 1995, 1999, and 2001 [T]rust instruments here in
dispute looked similar enough to hers that [Plaintiff] did not question them when [he]
saw them.” In sum, over sixty pages of supporting documents were attached to
Defendant’s motion to dismiss.
{9}     Plaintiff responded, setting forth his “separate statement of undisputed facts,” to
which he attached the same affidavit of his from the Federal Suit and a copy of the
same e-mail Plaintiff sent to Defendant’s attorney. Plaintiff also attached various
pleadings from the Federal Suit, including the federal district court’s order granting
judgment on the pleadings. Plaintiff argued that his tort claims were not barred by res
judicata because the Federal Suit did not resolve the merits of his challenge to the
validity of the Trust under the Probate Code. Next, Plaintiff argued—relying on his
affidavit from the Federal Suit—that his claims did not accrue until he discovered the
purported forgeries in 2015. Lastly, Plaintiff argued that Defendant should be equitably
estopped from raising a statute of limitations defense.

{10} Because the parties submitted materials outside of the pleadings that were not
excluded by the state district court, the court was obligated to treat Defendant’s motion
to dismiss as one for summary judgment. See Rule 1-012(B) NMRA (stating that if
“matters outside the pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as provided by
Rule 1-056 NMRA[.]”). After considering Defendant’s motion, “all other pleadings
generated by the motion, the applicable law,” and the “undisputed facts,” the state
district court granted Defendant’s motion. Notwithstanding that Defendant sought
dismissal on res judicata grounds, the state district court held that Plaintiff was
“collaterally estopped from proceeding in tort.” Further, the court held that, “[i]n any
event, whether proceeding in tort or probate, all possible statutes of limitations have
run[.]” The district court’s statute of limitations ruling was based on the following factual
allegations which the court accepted as undisputed and therefore true: (1) Defendant
told Plaintiff in 2001 that Mrs. Sandel’s testamentary documents had been altered in
such a way to eliminate Plaintiff’s inheritance rights; (2) Defendant told Plaintiff in March
2009 that there was no trust in which Plaintiff had an interest; (3) Plaintiff was aware of
the Trust and knew of its terms since 2009; and (4) Plaintiff threatened litigation to
challenge the Trust in 2009. Based on these facts, the district court held that Plaintiff
knew or should have learned of his causes of action in 2009, at the very latest. Because
Plaintiff did not bring the suit until 2016—seven years later—the district court held that
Plaintiff’s claims were time-barred and dismissed his complaint with prejudice. This
appeal followed.

DISCUSSION

{11} Plaintiff makes three arguments on appeal. First, Plaintiff contends that the
district court improperly held that the Federal Suit precluded him from his bringing tort
claims in state district court because the elements of collateral estoppel were not met.
Second, Plaintiff contends that he timely brought his claims pursuant to Section 45-1-
106 of the Probate Code because he did not discover Defendant’s purported forgeries
until 2015. Lastly, Plaintiff claims that Defendant should be equitably estopped from
raising the statute of limitations defense. We address each in turn. 2


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
Standard of Review

{12} We review orders granting summary judgment de novo. Romero v. Philip Morris
Inc., 

, 

, 

. Summary judgment is
appropriate where the “pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Rule 1-056(C). “An issue of fact is ‘material’ if the existence (or nonexistence) of the fact is of consequence under the substantive rules of law governing
the parties’ dispute.” Oakey, Estate of Lucero v. May Maple Pharmacy, Inc., 2017-
NMCA-054, ¶ 15, 

 (internal quotation marks and citation omitted).

{13} The movant has the initial burden of making a prima facie showing that he is
entitled to summary judgment, which constitutes “such evidence as is sufficient in law to
raise a presumption of fact or establish the fact in question unless rebutted.” Romero,

 (internal quotation marks and citation omitted). Once the movant
establishes this prima facie case for summary judgment, “the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require
trial on the merits.” Kreutzer v. Aldo Leopold High Sch., 

, 

 (internal quotation marks and citation omitted). When attempting to meet this
burden, the non-movant cannot rely on allegations or speculation but must present
admissible evidence demonstrating the existence of a genuine issue of a material fact.

 “If the non-movant fails to do so, summary judgment, if appropriate, shall be entered
against him.” 

 (internal quotation marks and citation omitted). In determining whether
there exists a genuine issue of material fact, “[w]e review the record in the light most
favorable to support a trial on the merits, and we construe all reasonable inferences
from the record in favor of the party that opposed summary judgment.” Griffin v. Penn,

, 

, 

 (internal quotation marks and
citations omitted).

{14} Although our courts view summary judgment with disfavor, see Romero, 2010-
NMSC-035, ¶ 8, “[t]he Rule 1-056 procedure serves a worthwhile purpose in disposing
of groundless claims, or claims which cannot be proved, without putting the parties and
the courts through the trouble and expense of full blown trials on these claims.”
Kreutzer, 

 (alteration, internal quotation marks, and citation
omitted).

I.      Res Judicata, Not Collateral Estoppel, Bars Plaintiff’s Tort Claims

{15} Plaintiff first challenges the district court’s holding that Plaintiff is collaterally
estopped from proceeding with his tort claims. Specifically, Plaintiff argues, among other


briefing only those issues raised in the docketing statement. See Rule 12-318(A)(1) NMRA (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 Plaintiff’s arguments.
things, that the doctrine of collateral estoppel does not apply because the causes of
action in the two suits are the same. We agree. As our Supreme Court has stated:

        [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.

Ideal v. Burlington Res. Oil & Gas Co. LP, 

, 

, 

 (emphasis added). 3 Here, although Plaintiff brought two additional claims for
breach of fiduciary duty and tortious interference with an expected inheritance that he
did not bring in the Federal Suit, all of his causes of action arise out of Defendant’s
purported forgeries and alleged motivation to wrongfully disinherit Plaintiff. Accordingly,
the causes of action in Plaintiff’s suits are the same, cf. Chaara v. Lander, 2002-NMCA-
053, ¶ 15, 

, 

 (“[C]laims present the same ‘cause of action’ for
purposes of res judicata if they arise out of the same transaction, or series of connected
transactions.” (internal quotation marks and citation omitted)); cf. also Three Rivers
Land Co. v. Maddoux, 

, ¶ 27, 

, 

 (“What
factual grouping constitutes a “transaction[,]” and what groupings constitute a “series[,]”
are to be determined pragmatically, giving weight to such considerations as whether the
facts are related in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the parties’ expectations or
business understanding or usage.” (internal quotation marks and citation omitted),
overruled on other grounds by Universal Life Church v. Coxon, 

, ¶ 9,

, 

), and collateral estoppel does not apply to the case at hand.
See Ideal, 

.

{16} Nonetheless, as we explain, we affirm on the related doctrine of res judicata.
Defendant’s motion to dismiss accurately argued that res judicata barred Plaintiff’s tort
claims from being litigated again, and Plaintiff responded to the arguments raised by
Defendant. Consequently, we may affirm the district court’s judgment on the grounds of
res judicata under the right for any reason doctrine. See Wild Horse Observers Ass’n,
Inc. v. N.M. Livestock Bd., 

, 

 (“An appellate court
may affirm a district court if it was right for any reason and affirming on new grounds
would not be unfair to the appellant.”); cf. Blea v. Sandoval, 

, ¶ 8, 

, 

 (holding that, despite the defendant’s erroneous reliance on res

3We recognize that because the initial judgment comes from federal court, we apply the federal law of collateral
estoppel. See Deflon v. Sawyers, 

, ¶ 13, 

, 

. However, as federal courts,
unlike New Mexico courts, do not require that the two suits contain different causes of action, compare Shovelin v.
Cent. N.M. Elec. Coop., ¶ 10, 

, 

 (1993), with Smith v. Dinwiddie, 

(10th Cir. 2007), we must adhere to New Mexico law in regard to this element. See Deflon, 

(stating that our courts will apply federal preclusion law “unless doing so conflicts with precedent from [our
Supreme Court]”).
judicata on appeal, collateral estoppel applied and precluded the plaintiffs from claiming
superior title).

{17} “Res judicata is a judicially created doctrine designed to promote efficiency and
finality by giving a litigant only one full and fair opportunity to litigate a claim and by
precluding any later claim that could have, and should have, been brought as part of the
earlier proceeding.” Potter v. Pierce, 

, 

. “Because the
prior action was in federal court, federal law determines the preclusive effect of a federal
judgment.” Moffat v. Branch, 

, 

, 

.
Nonetheless, as New Mexico does not diverge from federal law with respect to res
judicata, we may employ state precedent. See Deflon, 

. “A party
asserting res judicata or claim preclusion must establish that (1) there was a final
judgment in an earlier action, (2) the earlier judgment was on the merits, (3) the parties
in the two suits are the same, and (4) the cause of action is the same in both suits.”
Potter, 

. “[W]e review the legal issue presented by the district
court’s application of res judicata de novo.” Deflon, 

.

{18} Here, Defendant filed a motion for judgment on the pleadings in the Federal Suit,
to which Plaintiff filed a written response. Sandel, 

, at *1. After
considering the parties’ written submissions, the federal district court found that
Plaintiff’s tort claims were foreclosed by Wilson, 

. Sandel, 

, at *1. Accordingly, the court granted judgment on the pleadings in favor of
Defendant, dismissing Plaintiff’s tort claims with prejudice. 4 

{19} Under these circumstances, we conclude the elements of res judicata are
present. First, the order granting judgment on the pleadings constituted a final
judgment, as it disposed of Plaintiff’s tort claims to the fullest extent possible. Cf. Turner
v. First N.M. Bank, 

, 

 (concluding that an order
dismissing for failure to state a claim constituted a final judgment because “it fully
disposed of the rights of the parties, and otherwise disposed of the matter to the fullest
extent possible” and “decisively and fully determined that [the p]laintiffs failed to state a
cause of action”); Vill. of Los Ranchos de Albuquerque v. Shiveley, 

,
¶¶ 12-13, 

, 

 (concluding that an order dismissing for lack of
standing constituted a final judgment because the order “terminated the suit and the
proceeding was completely disposed of so far as the court had power to dispose of it”).
Second, the district court’s order granting judgment on the pleadings expressly
considered the merits of whether Plaintiff’s tort claims were foreclosed by Wilson, 2002-
NMCA-105. See Styskal v. Weld Cty. Bd. of Cty. Comm’rs, 

 (10th Cir.
2004) (explaining that an adjudication “on the merits” is one that passes directly on the
substance of a particular claim). And lastly, Plaintiff does not dispute that the parties
and causes of action (as discussed above) were the same in both suits. As a result,
Plaintiff is barred from bringing his tort claims against Defendant.


4Although 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., 

 (10th Cir. 2014) (“Dismissals for failure to
state a claim are presumptively with prejudice because they fully dispose of the case.”).
{20} Although Plaintiff tailors his argument toward the application of collateral
estoppel, we understand his argument in the context of res judicata to be that the
Federal Suit was not decided on the merits. Plaintiff points to the federal district court’s
subsequent order dismissing Defendant’s counterclaim in which it stated, “The [c]ourt’s
order dismissing Plaintiff’s tort claims did not resolve the merits of Plaintiff’s challenge to
various estate planning documents . . . that challenge must be resolved in state court.”
Sandel v. Sandel, No. CV-15-924 MCA/KK, 

, at *1 (D.N.M. Aug. 25,
2016). Plaintiff claims that this statement establishes there was no litigation on the
merits. Plaintiff is correct that the Federal Suit did not address the merits of Plaintiff’s
challenge to the Trust, and, therefore he is not precluded by either res judicata or
collateral estoppel from challenging the Trust under the Probate Code. However, as
discussed above, the federal district court analyzed whether Plaintiff’s tort claims were
foreclosed by Wilson, 

, and concluded that they were. See Sandel,

, at *1. Thus, the Federal Suit addressed the merits of whether
Plaintiff could bring his tort claims against Defendant. See Styskal, 

.

{21} We note that Plaintiff continues to challenge whether he had an adequate
remedy under the Probate Code, and consequently, whether the federal district court
properly applied Wilson. Our task, however, is not to determine whether the federal
court arrived at the correct conclusion; our task here is limited to addressing its
preclusive effect. See Concerned Residents of Santa Fe N., Inc. v. Santa Fe Estates,
Inc., 

, 

, 

 (“The purpose of res judicata
is to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial
resources, and, by preventing inconsistent decisions, encourage reliance on
adjudication.” (internal quotation marks and citation omitted)); Moffat v. Branch, 2002-
NMCA-067, ¶ 26, 

, 

 (“The essence of res judicata is that
litigants are encouraged and afforded a full and fair opportunity to raise issues that exist
between them in a single action. There are consequences for the failure to take
advantage of this opportunity. If a litigant is able to raise a claim in an action before the
action becomes final, but does not do so, the claim is forever barred.” (citation omitted)).
Accordingly, to the extent that Plaintiff challenges the merits of the Federal Suit, we can
offer him no relief.

II.     Plaintiff’s Probate Code Claim is Time-Barred

{22} Plaintiff next challenges the district court’s holding that he was time-barred from
bringing a claim under the Probate Code. The parties disagree about the statute of
limitations applicable to Plaintiff’s claim. Plaintiff argues that, pursuant to Section 45-1-
106, his claim is not time-barred because he brought it within two years of discovering
that Mrs. Sandel’s signatures were allegedly forged. 5 Defendant, on the other hand,
argues that Section 46A-6-604(A) bars Plaintiff from bringing his claim because it
necessarily involves a challenge to the validity of a revocable trust, which must be
made, at the latest, within three years of the settlor’s death. We need not decide this

5Plaintiff 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.
issue because even if Plaintiff is correct that he had two years from the time of
discovery of the fraud to file his claim under Section 45-1-106, he failed to come forward
with competent evidence demonstrating that he could not have reasonably discovered
the fraud in 2009. We explain.

{23} New Mexico follows the discovery rule, which provides that a cause of action
sounding in fraud does not accrue until the plaintiff “discovers” the fraud. See Wilde v.
Westland Dev. Co., 

, 

, 

; see also
NMSA 1979, § 37-1-7 (1880) (“In actions for relief, on the ground of fraud . . . , the
cause of action shall not be deemed to have accrued until the fraud . . . shall have been
discovered by the party aggrieved.”). Section 45-1-106 expressly incorporates this rule
into its limitation period, providing that “[a]ny proceeding must be commenced within two
years after the discovery of the fraud.” “[D]iscovery is defined as the discovery of such
facts as would, on reasonable diligent investigation, lead to knowledge of the fraud or
other injury.” Wilde, 

 (alteration, internal quotation marks, and
citation omitted). “In the absence of actual knowledge of fraud, a reasonable-person
standard will be applied as to whether a plaintiff should have known of the fraud.” 

(alteration, internal quotation marks, and citation omitted). If a reasonable person in the
plaintiff’s position would have made an inquiry leading to the discovery of the fraud, then
the plaintiff is said to be on “inquiry notice” and deemed to have discovered the cause of
action for purposes of the rule. See Yurcic v. City of Gallup, 

, 

.

{24} Although our courts generally characterize the application of the discovery rule
as a jury question, see id. ¶ 10, where there are undisputed facts that show that the
plaintiff knew or should have become aware of the facts underlying his or her claim by a
specific date, the district court may decide the issue as a matter of law. See, e.g.,
Brunacini v. Kavanagh, 

, ¶ 30, 

, 

. “When a
defendant makes a prima facie showing that a claim is time barred, a plaintiff attempting
to invoke the discovery rule has the burden of demonstrating that if he or she had
diligently investigated the problem he or she would have been unable to discover the
facts underlying the claim.” Butler v. Deutsche Morgan Grenfill, Inc., 

, 

, 

 (alterations, internal quotation marks, and citation
omitted); see also Martinez v. Showa Denko, K.K., 

, 

, 

 (“Even applying the discovery rule, in order to refute [the
d]efendant’s prima facie showing that [the p]laintiff filed her lawsuit outside the time
limitation of the statute of limitations, it was incumbent upon [the p]laintiff to demonstrate
that if she had diligently investigated the problem she would have been unable to
discover the cause of her injury.”). Here, Plaintiff argues that the district court improperly
dismissed his claims as time-barred because factual disputes existed with regard to
when he discovered or should have discovered his claim. We disagree.

{25} The exhibits attached to Defendant’s motion to dismiss, together with the
allegations set forth in Plaintiff’s complaint, established the following undisputed facts.
Defendant’s estate planning attorney met with Plaintiff to go over Mrs. Sandel’s will and
the Trust on June 5, 2001, including the Trust’s disposition provisions. Defendant told
Plaintiff in 2001 that he and Mrs. Sandel “had modified the terms of [Mrs. Sandel]’s
testamentary documents such that [Plaintiff] had no inheritance rights, present or future,
to any of the assets in [Mrs. Sandel]’s estate.” Defendant told Plaintiff in 2009 and 2010
that “there was no trust in which [Plaintiff] had any interest.” Plaintiff learned in 2009 that
Defendant probated Mrs. Sandel’s estate seven years earlier. Also in 2009, Defendant’s
attorney sent Plaintiff a complete copy of Mrs. Sandel’s will, which devised her estate to
the Trust. Defendant’s attorney sent Plaintiff a copy of the 2001 Restatement in 2009
(including the unnotarized signature page), which Plaintiff admitted receiving in an
email. In that same email, Plaintiff asserted that Defendant “repeatedly lied” to Plaintiff
about the Trust, telling Plaintiff “on numerous occasions . . . there [was] no trust and
then later [telling him] that all of [Mrs. Sandel’s] trust [was] in [Defendant’s] name.”
Plaintiff stated that he “of course” planned on challenging the Trust and claimed that
Defendant was “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.” To
this end, Plaintiff informed Defendant’s attorney that he retained an attorney in
Farmington and sent a copy of the Trust to his family law attorney in California, giving
him or her permission to forward a copy of the Trust to other attorneys who would be
interested in representing Plaintiff.

{26} The above undisputed facts constituted a prima facie showing that Plaintiff
reasonably should have discovered the alleged forgeries by 2009. Plaintiff knew that
Defendant and Mrs. Sandel disinherited him by devising Mrs. Sandel’s estate to the
Trust. Plaintiff had a copy of the allegedly forged 2001 Restatement eliminating his right
to collect any of the Trust’s multi-million dollar corpus, which was formalized by
Defendant’s and Mrs. Sandel’s unnotarized signatures. Plaintiff believed Defendant had
“repeatedly lied” about the Trust and caused Plaintiff damages. Indeed, Plaintiff stated
that he planned on challenging the Trust and went so far as to retain an attorney. Under
these circumstances, the district court properly determined that a reasonable person
would have diligently investigated the validity of a trust he believed was illegally altered.
Furthermore, given that the Trust was co-created by someone Plaintiff claims
“repeatedly lied” about the Trust, a reasonable person would have investigated the
authenticity of Mrs. Sandel’s unnotarized signature on the 2001 Restatement. And
although it is unclear when Plaintiff received copies of the 1995 Amendment and the
1999 Restatement, a reasonable person in Plaintiff’s position would have investigated
the authenticity of Mrs. Sandel’s signatures on related trust instruments after
discovering that her signature on the 2001 Restatement was possibly forged.

{27} Once Defendant made this prima facie showing that Plaintiff was on inquiry
notice of the alleged forgeries in 2009, it became Plaintiff’s burden to demonstrate that if
he had diligently investigated the Trust, he would have been unable to discover that
Defendant allegedly forged Mrs. Sandel’s signatures. See Butler, 

; Martinez, 

. Plaintiff did not meet this burden. Plaintiff’s lone
support comes from his own affidavit, in which he attested, in relevant part,

       I did not discover that my mother’s signatures on the [T]rust instruments at
       issue in this case were forgeries until the summer of 2015. The signatures
       of my mother on the 1995, 1999, and 2001 [T]rust instruments here in
       dispute looked similar enough to hers that I did not question them when I
       saw them. . . . Although in 2009 I sent an e[-]mail threatening to challenge
       the [T]rust instruments in court, I did so merely because I was upset that
       my inheritance rights had been virtually eliminated. I had no reason to
       believe at that time that my mother’s signature had been forged.”

{28} Neither the pleadings attached to Plaintiff’s response, nor the statements in his
affidavit (including the one above) create a genuine dispute of material fact sufficient to
demonstrate that he was unable to reasonably have discovered his cause of action
within the statute of limitations period. Plaintiff’s statement that he did not question Mrs.
Sandel’s signatures because they looked “similar enough,” does not explain why
Plaintiff could not have performed a reasonably diligent investigation in order to discover
whether he had a claim in 2009 or why he could not have discovered his claim had he
performed such an investigation. Importantly, Plaintiff did not provide any facts to
establish why he could not have hired a handwriting expert in 2009 when he received
the trust documents and threatened to challenge the Trust with the assistance of
multiple attorneys. Indeed, Plaintiff provides no facts at all—disputed or not—to explain
why he did not investigate his potential claims in 2009, and what prompted him to
ultimately hire the handwriting expert when he finally did.

{29} Since the undisputed facts established that Plaintiff was on inquiry notice, it was
incumbent upon him to proffer competent evidence sufficient to establish that an
objectively reasonable person’s diligent investigation would not have revealed the facts
on which Plaintiff relies in bringing his claim. See Butler, 

;
Martinez, 

. Plaintiff did not do this. We, therefore, conclude as a
matter of law, based on the undisputed material facts that Plaintiff knew or with
reasonable diligence should have known of Defendant’s purported forgeries in 2009.
See Brunacini, 

, ¶ 30. Accordingly, the district court properly dismissed
Plaintiff’s claim, as he brought suit more than two years after 2009. We reject Plaintiff’s
argument that our holding would impose too high a “standard of care” on disinherited
heirs because it would require “every disinherited heir to hire forensic examiners . . .
when they are merely put on notice that they were simply disinherited through a genuine
signature.” Our holding today is not that an heir must hire a handwriting expert to
investigate the signatures on testamentary documents in every case of disinheritance; it
is simply that Plaintiff failed to meet his burden to demonstrate why a disinherited heir in
these specific circumstances could not have discovered the alleged forgery after a
reasonably diligent investigation.

{30} Finally, Plaintiff argues that the district court’s ruling was premature because
Plaintiff did not have the benefit of discovery. We recognize that “[i]t is generally
inadvisable to grant summary judgment before discovery has been completed.” Romero
v. Giant Stop-N-Go of N.M., Inc., 

, 

, 

.
Plaintiff, however, never requested or filed a Rule 1-056(F) affidavit requesting more
time to obtain discovery to support his position. See 

 (“Should it appear from the
affidavits of a party opposing the motion that he cannot for reasons stated present by
affidavit facts essential to justify his position, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or depositions
to be taken or discovery to be had or may make such other order as is just.”). Although
Defendant did not style his motion as one for summary judgment, he attached several
exhibits in support of his motion, and Plaintiff did the same in response, including listing
his own “statement of undisputed facts.” Rule 1-012(C) makes clear that when matters
outside the pleading are included with a motion to dismiss, the motion is to be treated
as one for summary judgment (unless the district court excludes the extraneous
evidence). Plaintiff never argued that he needed more time to develop the evidence or
to do more discovery. Nor did he file a motion for reconsideration stating that he needed
additional discovery to meet his burden to proffer evidence sufficient to create a genuine
dispute of fact. Appellate courts do not exist to rescue parties from the consequences of
their choices in the district court, and if Plaintiff needed more time to develop evidence,
it was incumbent upon him to make this request to the district court. Cf. Butler, 2006-
NMCA-084, ¶ 38 (rejecting the plaintiff’s assertion that he needed more discovery to
develop his discovery rule argument because he never made any specific allegations
regarding what he hoped to find in discovery). Accordingly, we decline to remand this
matter back to the district court so Plaintiff can engage in further discovery.

III.    Plaintiff Is Not Entitled to Equitable Estoppel

{31} Lastly, Plaintiff argues that Defendant should be equitably estopped from
asserting a limitations defense because he misled Plaintiff by (1) forging Mrs. Sandel’s
signatures, (2) failing to inform Plaintiff that Mrs. Sandel’s estate was probated, and (3)
lying about the existence of the Trust. Although Plaintiff raised this argument below, the
district court did not explicitly address it in its order. However, by granting Defendant’s
motion on statute of limitations grounds, the district court necessarily rejected Plaintiff’s
equitable estoppel claim. After reviewing the record, we conclude the Plaintiff failed to
meet his burden to demonstrate the elements of equitable estoppel. 6

{32} “Equitable estoppel prohibits a party from asserting a statute of limitations
defense if that party’s conduct has caused the plaintiff to refrain from filing an action
until after the limitations period has expired.” Little v. Baigas, 

,

 (internal quotation marks and citation omitted). “[T]he party relying on a
claim of equitable estoppel has the burden of establishing all facts necessary to prove it
. . . [and] must plead the circumstances giving rise to estoppel with particularity” Id. ¶ 22
(internal quotation marks and citations omitted). In order to raise equitable estoppel, the

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 of Brice v. Toyota Motor Corp.,

, 

 (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 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.
plaintiff must demonstrate that the defendant: “(1) concealed material facts, falsely
represented material facts, or made representations of fact different or inconsistent with
later assertions in court; (2) had an intent or expectation that such conduct would be
acted upon by the plaintiff; and (3) possessed either actual or constructive knowledge of
the real facts.” Id. ¶ 24 (internal quotation marks and citation omitted). Additionally, the
plaintiff must demonstrate that he or she: “(1) lacked both the knowledge and the means
of acquiring knowledge of the truth as to the facts in question; (2) relied on the
defendant’s conduct; and (3) acted upon that conduct in a way that prejudicially altered
his position.” Id. (internal quotation marks and citation omitted).

{33} Thus, in order to raise a claim for equitable estoppel in regard to asserting a
statute of limitations defense against Plaintiff’s claim under Section 45-1-106, Plaintiff
was required to demonstrate, among other things, that Defendant’s conduct caused
Plaintiff to refrain from filing his claim within two years of discovery of the fraud. See §
45-1-106(A) (providing that any person may obtain “appropriate relief” within two years
of discovering the fraud); Little, 

. Plaintiff failed to do this.
Although (according to Plaintiff) Defendant concealed the existence of the Trust and the
fact that Mrs. Sandel’s estate had been probated for some years, it is undisputed that
Plaintiff learned of the estate’s probate and obtained a copy of 2001 Restatement in
2009. Plaintiff cannot point to any actions by Defendant beyond 2009 that caused
Plaintiff to refrain from filing his action within two years. While Plaintiff claims he did not
know that Mrs. Sandel’s signature was allegedly forged at that point, he failed to
demonstrate that Defendant took any actions to prevent Plaintiff from investigating Mrs.
Sandel’s signatures after 2009. Accordingly, Plaintiff’s claim for equitable estoppel must
fail.

CONCLUSION

{34} For the foregoing reasons, we affirm the district court’s dismissal of Plaintiff’s
claims and remand for further proceedings on Defendant’s remaining counterclaim for
malicious abuse of process.

{35}   IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

LINDA M. VANZI, Judge

JULIE J. VARGAS, Judge