June 4, 2019- In Re The Estate of Encarnacion S. Rivera, No. A-1-CA-36231

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 IN RE: THE ESTATE OF
3 ENCARNACION S. RIVERA,
4 	(Deceased December 16, 1966)
5 	San Miguel Probate Court No.:
6 D-412-PB-1967-00666. 	No. A-1-CA-36231
7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
8 	Gerald E. Baca, District Judge
9 Domenici Law Firm, P.C.
10 Pete V. Domenici, Jr.
11 	Reed C. Easterwood
12 Albuquerque, NM
13 	for Appellant
14 Rothstein Donatelli LLP
15 	Richard W. Hughes
16 Caroline "KC" Manierre
17 	Santa Fe, NM
18 	for Appellee
19
20 	B. ZAMORA, Judge.
MEMORANDUM OPINION
21 	{t} 	Shirley Kelley (Kelley) appeals the district court's order granting a motion to 	,
22 exclude 	6.2 	acres 	of land 	from 	the 	Estate 	of Encarnacion 	Rivera, 	Kelley's
23 	grandfather. Arguing judicial estoppel and the after-acquired title doctrine, Kelley
24 asserts that the property became part of the Estate of Encarnacion Riv~ra, entitling
Court of Appeals of New Mexico
Filed 6/4/2019 11:28 AM

1 her to an intestate share as an heir. Because the property at issue is not and never
2 was a part of Encarnacion Rivera's estate, we affirm.
3 BACKGROUND
4 	{2} 	This case involves a dispute over 6.2 acres of land (subject property) in
5 Terrero, New Mexico, along the Pecos river. The property had been occupied by
6 Cristino 	Rivera, 	Encamacion's 	father, 	and 	his 	heirs 	for 	several 	generations
7 beginning in the 1870s. The subject property is located within a larger area of land
8 that was subsequently identified as "Lot 10." The United States continuously owned
9 all of Lot 10 until 2009 when it conveyed a portion of it, composed of the subject
10 property, to Ramona Lawson, Encamacion's daughter, and Boyd Lawson, Ramona's
11 	husband.
12 {3} 	The genesis of the controversy involves a mistake concerning the boundaries
13 	of a patent. issued to Cristino Rivera in 1888, pursuant to the Homestead Act. Cristino
14 believed, based on an 1883 survey, that the subject property was part of the 160 acres
15 	of land for which he sought a patent. A year after the 1883 s1;1rvey, Cristino Rivera
16 applied to the General Land Office, currently the Bureau of Land Management
17 (collectively BLM), for a patent consisting of 160 acres of land and certified in a
18 	homestead proof that he had established residence, built a corral, fences, 	and
19 cultivated the land for several years. The BLM issued the patent to Cristino Rivera
20 	in 1888 (1888 patent), evidencing a conveyance of what was thought at the time to
2

1 be 160 acres based on the 1883 public land survey. In 1892, the area surrounding the
2 property described in Cristino's 1888 patent was designated as part of the Pecos
3 River Forest Reserve, now the Santa Fe National Forest, precluding further patents
4 in the area.
5 {4} 	In 1918, Cristino Rivera died without a will and the land described in the 1888
6 patent passed to his heirs. Amongst the heirs, it was decided that Encarnacion Rivera
7 would receive the subject property, which also included a stone cellar, house, cabin,
· 8 and the surrounding land. In 1925,. the BLM independently resurveyed the land
9 described in the 1888 patent to more accurately locate the boundaries of the property
10 patented to Cristino Rivera. The 1925 survey identified the property owned by the
11 	Rivera estate as "Tract 43." However, based on the 1925 survey, the land described
12 in Cristino Rivera's 1888 patent contained only approximately 148 acres. Further,
13 	the survey revealed that the structures Cristino Rivera had described as grounds to
14 apply for the patent-including the stone cellar and cabin-were not part of the land
15 	described in the 1888 patent. Instead, the survey established that the area containing
16 the improvements, identified as Lot 10, was still owned by the United States and was
· 17 adjacent to Tract 43, the property actually owned by the Rivera estate pursuant to
18 the 1888 patent. Consequently, the 1925 survey established that the 1888 pat'ent did
19 not describe the land Cristino Rivera had initially thought was being conveyed and
20 that Cristino and Encarnacion had been living on land owned by the United States.
3

1 Encarnacion wrote to the BLM in 1946 "indicating a desire to amend his father's
2 homestead entry" and gain title to Lot 10, but never successfully obtained title.
3 Likewise, although the Forest Service knew that Rivera's heirs were occupying the
4 house on Lot 10, it never initiated any action to evict them.
5 	{5} 	Encarnacion Rivera died in 1966 and his wife, Ignacita Rivera, inherited his
6 property through probate proceedings. The parties do not dispute that the probate did
7 not include any land in Lot 10 and consequently, did not include the subject property,
8 because, when Encarnacion Rivera died in 1966, the United States continued to own
9 Lot 10 where the structures were located.
10 {6} 	Nevertheless, 	in 	1979 Ignacita purported to 	convey via 	quitclaim 	deed
11 	approximately sixteen acres on Lot 10 to Ramona Lawson, her daughter, and Boyd
12 Lawson, 	Ramona's 	husband. 	This 	conveyance 	presumably 	encompassed what
13 	would later be identified as the subject property. In 1986, Ramona and Boyd Lawson
14 sought to confirm title to property later identified as the subject property through a
15 	color of title action, which was denied by the Interior Board of Land Appeals
16 (IBLA). Nine years later, Ramona and Boyd Lawson filed an application with the
17 BLM that sought to correct the 1888 patent to include 12 acres of Lot 10, which also
18 	would have included the subject property. In the application, Ramona and Boyd
19 Lawson conceded that the United States owned Lot 10 and that it was "under the
20 jurisdiction of the United States Forest Service," but argued that the land in Lot 10
4

1 upon which the structures sat was erroneously omitted from the 1888 patent. In 1997,
2 the BLM denied Ramona and Boyd Lawsons' application to correct the patent, but,
3 in 2003 the IBLA reversed the BLM's decision, concluding "that the equities clearly
4 fall in favor of correcting the patent to include" the land originally sought by Cristino
5 and thought to have been conveyed by the BLM. The IBLA remanded the case to
6 the "BLM for further action in compliance with [its] decision." However, the record
7 does not reflect that the BLM ever corrected the patent or conveyed to Ramona and
8 Boyd Lawson the requested 12 acres, which, as we have noted, would have included
9 the subject property.
10 {7} 	The record does not reflect any factual development immediately following
11 	the IBLA's decision. In 2007, the Forest Service conducted another survey of Lot
12 	10 and, for the first time, demarcated the 6.2 acres consisting of the subject property
13 	in dispute here. In 2009, Congress passed the Omnibus Public Land Management
14 Act, authorizing the Forest Service to convey the subject property to Ramona and
15 	Boyd Lawson. Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11,
16 	§ 3304, 123 Stat. 1134, 123 (2009). The United States Forest Service quitclaimed
17 the subject property to Ramona and Boyd Lawson the same year.
18 	{8} 	In 2016, Kelley, Encarnacion Rivera's granddaughter, filed a petitiori in the
19 district court to reopen the 1967 probate ofEncamacion's estate, specifically seeking
20 to probate the subject property. In response, Boyd Lawson and Sondra Lawson
5

1 Bennett 	(collectively 	Lawsons) 	filed 	a 	motion 	to 	exclude 	the 	property 	from
2 Encamacion's estate and to close the probate proceedings, which the district court
3 granted after finding that the subject property was not part of Encarnacion Rivera's
4 estate. 1 The district court concluded that the conveyance of the subject property was
5 a result of a settlement between Ramona and Boyd Lawson and the United States
6 Forest Service. Kelley subsequently appealed. 2
7 DISCUSSION
8 	{9} 	On appeal, Kelley argues the district court erred because: (1) the Lawsons
9 were judicially estopped from arguing that the subject property was not part of
10 Encamacion's estate; and (2) the doctrine of after-acquired title gave Kelley an
11 	intestate share of the subject property. For the reasons stated below, we do need to
12 reach Kelley's third argument that the quitclaim by Ignacita Rivera to Ramona and
13 	Boyd Lawson in 1979 did not preclude Kelly from claiming an interest in the
14 property. We address each argument in tum.
15 	I. 	Judicial Estoppel
16 	{to} 	Both parties request that we apply a de novo standard of review. However,
17 generally, "[w ]here a district court denies equitable relief, such as estoppel, we
1By this point, Ramona Lawson had passed away.
2While this case was·pending below, Boyd Lawson also passed away, leaving
Sondra Lawson Bennett, Ramona and Boyd Lawson's daughter, as the only living
appellee in this case.
6

1 review the matter for abuse of discretion." In Re Adoption Petition of Rebecca M,
2 2008-NMCA-038, ,r 22, 143 N.M. 554, 178 P.3d 839; see Laughlin v. Convenient
3 Mgmt. Servs., Inc., 2013-NMCA-088, ,r 15, 308 P.3d 992 ("We review the proper
4 application of judicial estoppel under an abuse of discretion standard."). Irrespective
5 of which standard of review we apply~ Kelley's arguments fail.
6 {11} 	"Judicial estoppel is a doctrine that prevents a party who has successfully
7 assumed 	a 	certain 	position 	in 	judicial 	proceedings 	from 	then 	assuming 	an
8 inconsistent position, especially if doing so prejudices a party who had acquiesced
9 in the former position." Santa Fe Pac. Tr., Inc. v. City ofAlbuquerque, 2012-NMSC-
10 028, ,r 32, 285 P.3d 595 (internal quotation marks and citation omitted). "The
11 	purpose of judicial estoppel is to prevent a party from playing fast and loose with
12 the court during the course oflitigation." Laughlin, 2013-NMCA-088, ,r 16 (internal
13 quotation marks and citation omitted). To prevail under the doctrine of judicial
14 estoppel:
15
16
17
18
19
20
21
First, the party against whom the doctrine is to be used must have
successfully assumed a position during the course of litigation. Second,
that first position must be necessarily inconsistent with the position the
party takes later in the proceedings. Finally, while not an absolute
requirement, judicial estoppel will be especially applicable when the
party's change of position prejudices a party who had acquiesced in the
former position.
22 Santa Fe Pac. Tr., Inc., 2012-NMSC-028, ,r 32 (internal quotation marks and citation
23 	omitted).
7

·.1 	{12} 	For a number of reasons, judicial estoppel does not apply under the facts and
2 circumstances of this case. 3 We begin by analyzing whether Ramona and Boyd
3 La~son successfully assumed a position during the course of litigation before the
4 IBLA-the first factor ofjudicial estoppel..Kelley argues Ramona and Boyd Lawson
5 were successful before the IBLA based on their position that "the 1888 patent and
6 	1883 survey, upon which the parties relied, showed that Cristino Rivera intended the
7 homestead to include Lot 10." As more fully explained below, we disagree that
8 Ramona and ·Boyd Lawson were successful in their litigation before the IBLA.
9 Because we conclude the first factor required for judicial estoppel has not been
10 established, we need not address the remaining factors.
11 	{13} 	The Secretary of the United States Department of the Interior, which both the
12 BLM and IBLA are a part of, has the authority to correct patents, but any corrections
3 Ramona and Boyd Lawson challenge whether the· doctrine .of judicial
estoppel can be applied in multiple proceedings. Historically, New Mexico cases
applied"the doctrine of judicial estoppel in cases involving a single legal proceeding.
However, 	more 	recent 	cases 	suggest 	that 	the 	doctrine 	has 	been 	applied 	to
inconsistent positions taken in separate proceedings. No New Mexico opinion has
discussed the exact boundaries of the doctrine or the scope of its applicati(?n, See
Guzmanv. Laguna Dev. Corp., 2009-NMCA-116, 1111-13, 147N.M. 244, 2l9P.3d
12 (applying judicial estoppel when a party took a position in its case before the
Workers' Compensation Administration that was inconsistent with the position it
later took in the district court); see also Gallegos v. Pueblo of Tesuque, 2002-NMSC-
012, 123, 132 N.M. 207, 46 P.3d 668 (analyzing a judicial estoppel claim when a
party's position taken in prior federal cases was inconsistent with its position in state
court, but nonetheless concluding that the doctrine was inapplicable because it
"cannot be used against a party which espoused a position in an earlier case and lost
and is now correctly stating the law that came from that decision").
8

1 "which affect the boundaries of, or jurisdiction over, land administered by another
2 Federal agency shall be made only after consultation with, and the approval .of, the
3 head of such other agency." 43 U.S.C. § 1746 (2018). At the time IBLA made its
4 decision, Lot 10, which included the subject property, was owned by the United
5 States Forest Service, an agency within the Department of Agriculture, not the
6 Department of Interior. As such, the Department of Interior could not have corrected
7 the 	1888 pa~ent until the Department 	of Agriculture was consulted and gave
8 approval. Despite the IBLA's conclusion "that the equities clearly fall in favor of
9 correcting the patent" and its decision to remand the case "to BLM for further action
10 	in compliance with [its] decision[,]" the IBLA did not and could not correct the 1888
11 	patent without action by the Forest Service. We conclude that the absence. of the
12 Forest 	Service's 	approval to 	correct the 	1888 	patent, 	pursuant to 	§ 	1746 	is
13 	dispositive.
14 	{14} 	Kelley argues that the Forest Service's quitclaim deed of the property to
15 	Ramona and Boyd Lawson was 	a result 	of the IBLA decision and that the
16 Department of Interior consulted with the Forest Service, who approved correction
17 of the 1888 patent by authorizing the quitclaim deed. Upon examination 1
of the
18 record, we fail to see how this could be the case. The record reflects that ~amona
19 and Boyd Lawson obtained the quitclaim deed to the subject property based on a
20 settlement with the Forest Service and not, as Kelley argues, through Ramona's
9

1 position as an heir to Cristino Rivera. The quitclaim deed reflects a conveyance of
2 6.2 acres (subject property), not the 12 acres requested in the application· to the
3 IBLA, the deed indicates that it is from the United States of America to Ramona and
4 Boyd Lawson, states that it is subject to an easement, references an attached release,
5 and is signed by an official with the Forest Service.
6 	{15} 	The release acknowledges that, through the IBLA decision, Ramona and Boyd
7 Lawson had "proven their entitlement" to the lands sought to be corrected by their
. 8 application, but the Forest Service "disputed the legal entitlement of [Ramona and
9 Boyd] Lawson[] to the lands and improvements, and the Forest Service is required
10 to consent to the issuance of a corrected patent[.]" The release then states that
11 	Ramona and Boyd Lawson and the Forest Service agreed to settle issues over the
12 entitlement to the subject property. In exchange for the conveyance of the subject
13 	property, which included a conservation easement, Ramona and Boyd Lawson
14 released their claims against the United States. The release also references the
15 	Omnibus Public Land Management Act 	of 2009. This Act indicates that the,
16 Department of Agriculture would transfer the subject property to Ramona and Boyd
17 Lawson in exchange for a release of any other claims to Lot 10 and the granting of
18 	a scenic easement in the subject property. Omnibus Public Land Managem~nt Act
I
19 	of 2009, Pub. L. No. 111-11, § 3304, 123 Stat. 1134, 123.
10

1 {16} 	Neither 	the 	quitclaim 	deed, 	release, 	nor 	the 	Omnibus 	Public 	Land
2 Management Act of 2009 shows that the Department of the Interior corrected the
3 1888 patent or that the Forest Service consented to a correction. See 63C Am. Jur.
4 2d Public Lands § 70 (2019) ("The Secretary of the Interior may correct errors in
5 patents or documents of conveyance relating to the disposal of public lands. Any
6 corrections which affect the boundaries of, or jurisdiction over, land administered
7 by another Federal agency, however, will be made only after consultation with, and
8 the approval of, the head of that agency." (footnotes omitted)). To the contrary, the
9 record reflects that the Forest Service did not approve of the transfer of the subject
10 property based on the .IBLA decision, but rather transferred the subject property to
11 	settle a dispute with Ramona and Boyd Lawson. Ramona and Boyd Lawson did not
12 	succeed before· the IBLA because the IBLA decision did not directly result in
13 	conveyance 	of the requested 	12 acres or even the subject property and they
14 eventually acquired the subject property through settlement. See Sw. Steel Coil, Inc.
15 	v. Redwood Fire & Cas. Ins. Co., 2006-NMCA-151,, 19, 140 N.M. 720, 148 P.3d
16 	806 (holding that a party was not successful in assuming a position when the parties
17 settled before the lower court resolved the issue). Accordingly, judicial estoppel does
18 	not apply.
19 	{t 7} 	In the context of her judicial estoppel argument, Kelley also argues that the
20 IBLA decision constituted the law of the case and its legal effect related back to the
11

1 time when the United States originally granted Cristino Rivera the 1888 patent. The
2 doctrine of law of the case applies "to litigation of the same issue recurring 'within
3 the same suit." Alba v. Hayden, 2010-NMCA-037,, 7, 148 N.M. 465,237 P.3d 767.
4 Under this discretionary doctrine, "decision by an appeals court on an issue of law
5 made in one stage of a lawsuit becomes binding on subsequent trial courts as well as
6 subsequent appeals courts during the course of that litigation." State ex rel. King v.
7. UU Bar Ranch Ltd. P'ship, 2009-NMSC-010,, 21, 145 N.M. 769, 205 P.3d 816
8 (emphasis added). The doctrine does not apply here because the IBLA decision
9 stemmed from a separate proceeding. Thus, any legal issues decided before the
10 IBLA are inapposite here and do not constitute law of the case. Additionally, to the
11 	extent these are distinct arguments, they are disjointed, undeveloped, and Kelley
12 fails to identify where she preserved them. See State v. Leon, 2013-NMCA-011,
13 	, 33, 292 P.3d 493 ("We generally do not consider issues on appeal that are not
14 preserved below." (internal quotation marks and cit~tion omitted)); see also Corona
15 	v. Corona, 2014-NMCA-071, ,I 28,329 P.3d 701 ("This Court has no duty to review
16 an argument that is not adequately developed.").
17 II. 	After-Acquired Title and the 1979 Conveyance
18 	{18} 	Kelley also argues that the district court should have applied "a species ofI
19 after-acquired title doctrine to the matter to preserve [Kelley's] equitable right in"
20 the subject property. Kelley contends that the United States, the original grantor,
12

1 intended to patent the subject property to Cristino Rivera in 1888 and that is the
2 reason the Forest Service quitclaimed the subject property to Ramona and Boyd
3 Lawson. Thus, according to Kelley, the subject property passed from Cristino Rivera
4 into the Estate of Encarnacion Rivera.
5 {19} 	"The common law doctrine of after-acquired title is one under which title to
6 land subsequently acquired_by a grantor who previously attempted to conveytitle to
7 the same land, which he then did not own, completely· and automatically inures to
8 the benefit ofhis prior grantee." Hays v. King, 1989-NMSC-078, 18, 109 N.M. 202,
9 784 P .2d 21. "The doctrine is nothing more than an enforcement of the grantor's
10 	obligation to deliver a good title." Id. (internal quotation marks and citation omitted).
11 	The after-acquired title doctrine has been "applied to vest title in the first grantee
12 and those holding under him where there were two chains of title from one initial
13 	grantor." Rendleman v. Heinley, 2007-NMCA-009, 1 19, 140 N.M. 912, 149 P.3d
14 	1009. This Court has expressed doubts about the applicability of the after-acquired
15 	title doctrine when title is conveyed via quitclaim deed, as it was here. See Rabo
16 Agrifinance, 	Inc. 	v. 	Terra 	XX!, 	Ltd., 	2014-NMCA-106, 	1 	8, 	336 	P.3d 	972
17 ("[Defendant] likens this language to a quitclaim deed, to which the after-acquired
18 title doctrine is likely inapplicable."). The applicability of the after-acquir~d title
;
19 doctrine is a question of law, which we review de novo. Id. 17 .
. 13

1 {20} 	Even if the doctrine did apply in situations where title is conveyed by
2 quitclaim deed, it would not be relevant here. The United States never conveyed the
3 subject property to Cristino Rivera and, as we have pointed out, always owned Lot
4 	10 until it conveyed a portion of it to Ramona and Boyd Lawson in 2009. As the
5 district court noted, there are several instances in the record that illustrate this fact.
6 First, the 1925 survey showed that the 1888 patent did not include the subject
7 property. Second, the IBLA denied a color of title application submitted by Ramona
8 and Boyd Lawson in 1986, which sought to confirm their title in the subject property.
9 Lastly, the United States did not subsequently obtain title to the subject property.
10 	Instead, the United States always had title to it. The record reflects a single chain of
11 	title from the United States Forest Service to Ramona and Boyd Lawson, making the
12 doctrine inapplicable.
13 	{21} 	Lastly, Kelley argues-that Ignacita Rivera's 1979 conveyance to Ramona and
14 Boyd Lawson did not preclude Kelly from her claim to the property. As our previous
15 	analysis has shown, the subject property never entered the Estate of Encarnacion
16 Rivera and thus Ignacita did not own the land the conveyance described at that time
17 or at any other time. See Metzger v. Ellis, 1959-NMSC-03 l, 114, 65 N.M. 347,337
18 P.2d 609 ("[A] quitclaim deed conveys nothing if the grantor himself did not have
'I
19 title or an interest in the property.").
14

1 CONCLUSION
2 	{22} 	For the aforementioned reasons, we affirm.
3 	{23} 	IT IS SO ORDERED.
6 WE CONCUR:
1l\.L~._8 M. MONICA ZAMO
9~£[1+10 MEGMP.DUFF~e
15