May 06, 2010 – Tobore Kokoricha and Oyinkan Kokoricha v. Estate of Donald Keiner and Pat E. White, as Personal Representative of the Estate of Donald I. Keiner, Pat E. White and Wessie White, No. 29,204

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 6, 2010
NO. 29,204

TTOBORE KOKORICHA and OYINKAN KOKORICHA,
husband and wife,

Plaintiffs-in- Intervention/A ppellants,
V.

THE ESTATE OF DONALD I. KEINER, Deceased,
and PAT E. WHITE, as Personal Representative of
the Estate of Donald I. Keiner, PAT E. WHITE and
WESSIE WHITE, husband and wife,

Defendants-in-Intervention/A ppellees.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Moses, Dunn, Farmer & Tuthill, P.C.
Mark A. Glenn

Albuquerque, NM
for Appellants

Pool Law Firm, P.C.
Wesley O. Pool
Clovis, NM

for Appellees

OPINION
VANZI, Judge.
{1} 	At issue in this appeal is the ownership of a single-family residence in Clovis,
New Mexico (the Property). 	Tobore Kokoricha and Oyinkan Kokoricha (the
Kokorichas) appeal the district court’s order dismissing with prejudice their request
for a declaratory judgment stating that they are good-faith purchasers for value of the
Property. The Kokorichas contend that the district court erred when it concluded that
the Kokorichas’ purchase of the Property was subject to a notice of lis pendens and
that the Kokorichas’ title to the Property was subject to the same deficiencies as the
title of their immediate predecessors in interest. We reverse the district court’s ruling
and remand for further factual determinations as set forth below.
BACKGROUND
{2} 	The following facts are undisputed. The Kokorichas purchased the Property on
March 27, 2007, for $88,000. Upon purchase, the Kokorichas received a warranty
deed to the Property, which was duly recorded with the county clerk. At the time of
the Kokorichas’ purchase, the Property was the subject of a lengthy and ongoing
probate litigation. 	The Kokorichas claim that they were unaware of the pending
litigation when they purchased the Property.
{3} 	The probate litigation was initiated in 2001 by Pat E. White, as personal

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representative of the Estate of Donald I. Keiner (the Estate). Mr. Keiner had owned
the Property until shortly before his death, when he deeded the Property to his
nephew, Lari Bollinger (Nephew). After Mr. Keiner’s death, the Estate alleged that
Nephew had asserted undue influence over Mr. Keiner in obtaining the deed. The
Estate initiated an action within the probate proceeding to set aside the deed from Mr.
Keiner to Nephew and to have the Property and other assets in Nephew’s possession
returned to the Estate. 	The Estate did not record a notice of lis pendens on the
Property at the initiation of these proceedings.
{4} 	During the first two years of the litigation, the Property changed hands three
times. 	The first two exchanges were between family members and for nominal
purchase prices. 	The third exchange took place on August 6, 2003, when the
Kokorichas’ grantors (Grantors) purchased the Property for $42,500. It is undisputed
that at the time of Grantors’ purchase of the Property, no notice of lis pendens had
been recorded, and Grantors were not a party to the ongoing probate litigation.
{5} 	On September 23, 2003, upon motion by the Estate, the district court issued an
order joining Grantors to the probate litigation. Three days later, on September 26,
2003, the Estate recorded a notice of lis pendens on the Property. Subsequently, on
November 4, 2003, the Estate recorded an amendment to lis pendens. The record does
not include a copy of the notice of lis pendens or the amendment, and it is unclear
from the record why the amendment was necessary.

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{6} 	On November 12, 2003, Grantors moved to be dismissed as parties to the
probate litigation based on insufficiency of process and failure to state a claim upon
which relief could be granted. In a separate motion, Grantors moved to have the lis
pendens and amended lis pendens canceled. On February 20, 2006, the district court
dismissed “any and all claims and causes of action” against Grantors without
prejudice. The court did not issue an order regarding Grantors’ motion to cancel the
lis pendens; however, on February 23, 2006, the Estate, on its own initiative, recorded
a release of lis pendens releasing both the original and the amended notices. 	The
Estate made no further effort to join Grantors as parties to the litigation.
{7} 	On March 27, 2007, a little more than a year after the Estate’s release of lis
pendens, the Kokorichas purchased the Property from Grantors. The Kokorichas had
not at any time been parties to the probate litigation, and they claim they were
unaware of the probate litigation at the time they purchased the property.
{8} 	On October 31, 2007, the district court issued a final order in the probate
litigation declaring that the deed from Mr. Keiner to Nephew had been fraudulently
obtained and was therefore void and invalid and that all subsequent deeds were also
invalid. The order returned possession of the Property to the Estate. Thereafter, the
personal representative of the Estate conveyed the Property to Pat E. White and
Wessie White (the Whites), as joint tenants, by executor’s deed dated November 30,
2007. 	The Whites then took steps to take possession and control of the Property.

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Upon learning of the Whites’ actions, the Kokorichas filed emergency motions to
reopen and to intervene in the probate proceeding and filed a request for declaratory
judgment stating that they were “good-faith purchasers of the Property for value and
declaring the parties’ ownership rights and status with regard to the Property.” The
court granted the motions to reopen and to intervene but ultimately dismissed with
prejudice the Kokorichas’ request for declaratory judgment. The court found that the
release of lis pendens recorded by the Estate was ineffective and that the Kokorichas
could obtain no better title to the Property than their predecessors in title possessed.
{9} 	On appeal, the Kokorichas argue that the district court erred when it concluded
as a matter of law that (1) despite being released by the Estate, the notice of lis
pendens was in effect at the time the Kokorichas purchased the Property, and (2) the
Kokorichas were subject to the same failures of title to which Grantors were subject.
The Kokorichas also argue that, because they were not parties to the probate litigation,
they were not bound by the district court’s order in that proceeding, that the district
court lacked personal jurisdiction to enter a binding order against them, and that lack
of notice violated their rights to due process. We find sufficient reason to overturn the
district court’s ruling based on the Kokorichas’ first two arguments, and we remand
for further factual findings on whether the Kokorichas had actual notice of the probate
litigation.
DISCUSSION

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Standard of Review
{10} 	The parties disagree as to the appropriate standard of review to be applied in the
current case. The Kokorichas argue that the facts of the case are not in dispute, and
the only issues raised on appeal are questions of law, and therefore, a de novo review
is appropriate. On the other hand, the Estate asserts that substantial evidence is the
appropriate standard to apply. 	Citing Ponder v. State Farm Mutual Automobile
Insurance Co., 2000-NMSC-033, ¶ 6, 129 N.M. 698, 12 P.3d 960, the Estate argues
that a de novo review is inappropriate because “this appeal presents no questions of
public policy with any broad precedential value.” 	We note, however, that our
Supreme Court in Ponder does not limit the use of de novo review to cases having
broad precedential value and presenting questions of public policy; it merely states
that in such cases a de novo review is appropriate. Id.
{11} 	The resolution of this appeal depends solely on two legal questions. First, was
the notice of lis pendens in effect at the time the Kokorichas purchased the Property?
And second, were the Kokorichas subject to the possible deficiencies in Grantors’
title? 	We review questions of law de novo. 	“[I]f no material issues of fact are in
dispute and an appeal presents only a question of law, we apply de novo review.” City
of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146. “We review de novo the trial court’s application of the law to the
facts in arriving at its legal conclusions.” Ponder, 2000-NMSC-033, ¶ 7.

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Effect of the Release of Lis Pendens
{12} 	The Kokorichas argue that the district court erred when it concluded as a matter
of law that, despite being previously released by the Estate, the notice of lis pendens
was in effect at the time the Kokorichas purchased the Property. We agree that the
district court erred.
{13} 	“A lis pendens is a vehicle for permitting an individual, involved in an action
which affects title, to put subsequent purchasers on notice of pending claims involving
the property.” 	Salas v. Bolagh, 106 N.M. 613, 615, 747 P.2d 259, 261 (Ct. App.
1987). 	A lis pendens provides constructive notice of the suit in the absence of a
party’s actual knowledge of the litigation. 	Title Guar. & Ins. Co. v. Campbell, 106
N.M. 272, 277, 742 P.2d 8, 13 (Ct. App. 1987).
{14} 	In New Mexico, the lis pendens doctrine is codified in NMSA 1978, Sections
38-1-14 to -15 (1953, as amended through 1965). Section 38-1-14 states that in all
actions affecting the title to real estate, the plaintiff may record a notice of the
pendency of the suit, and that notice “shall be constructive notice to a purchaser or
encumbrancer of the property concerned; and any person whose conveyance is
subsequently recorded . . . shall be bound by all the proceedings taken after the
recording of the notice to the same extent as if he were made a party to the said
action.” If a judgment is ultimately rendered in favor of the party filing the notice of
lis pendens, “the rights of that party relate back to the date of the notice.” Title Guar.

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& Ins. Co., 106 N.M. at 277, 742 P.2d at 13. “The result of filing a formal notice of
lis pendens is that anyone dealing with the property in a subsequent transaction is
prevented from being a bona fide purchaser without notice” 14 Richard R. Powell,
Powell on Real Property § 82A.03[2] at 82A-20 (Michael Allan Wolf ed., Matthew
Bender 2008) (1949).
{15} 	In the present case, the Estate did not exercise its right to record a notice of lis
pendens when it initiated the legal action involving the Property; however, the Estate
did record a notice of lis pendens after Grantors were joined in the lawsuit,
approximately two years into the probate litigation. When the district court dismissed
Grantors without prejudice from the probate litigation for insufficiency of process, the
Estate chose to record a release of lis pendens on the Property instead of properly
serving and attempting to rejoin Grantors to the suit. The threshold question in this
appeal is the effect of the Estate’s release of lis pendens.
{16} 	In reaching its decision that the lis pendens remained in effect until the end of
the lawsuit, notwithstanding the voluntary release by the Estate, the district court
relied on Salas. In that case, this Court stated that “regardless of the validity of the
cancellation, the lis pendens established by the suit continues until expiration of the
time for appeal or until final disposition of the case by the appellate court.” Salas, 106
N.M. at 615, 747 P.2d at 261. The district court interpreted our holding in Salas to
apply to any release of lis pendens whether it be ordered by the court or voluntarily

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released by the party who originally filed the notice. We disagree with the district
court’s interpretation.
{17} 	The question before this Court in Salas was whether a district court’s release
of notice of lis pendens prior to the completion of the appeals process was valid. In
Salas, the district court had entered judgment for the defendant and released a notice
of lis pendens that had been recorded by the plaintiff. Id. at 614, 747 P.2d at 260. On
appeal, this Court ruled in favor of the plaintiff; however, by the time the appeals
process had completed, the defendant had sold the property to third-party purchasers.
Id. The third-party purchasers claimed that, because of the district court’s release of
the notice of lis pendens, they had no notice of the legal action involving the property
and, therefore, they were bona fide purchasers in good faith. Id. at 614-15, 747 P.2d
at 260-61. The district court agreed with the third-party purchasers, and the plaintiff
once again appealed. Id.
{18} 	In response to the plaintiff’s second appeal, we held that a court may not order
a release of notice of lis pendens “until expiration of the time for appeal or until final
disposition of the case by the appellate court.” 	Id. at 615, 747 P.2d at 261. 	Our
holding in Salas addresses a court-ordered release of lis pendens. In the present case,
the district court did not order the release of lis pendens; rather, the Estate voluntarily
recorded the release. The question of a voluntary release of notice by the party that
originally filed that notice was not before this Court in Salas. We adhere to the rule

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that “cases are not authority for propositions not considered.” Fernandez v. Farmers
Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (internal quotation marks
and citation omitted). 	Therefore, our holding in Salas is not applicable to the
circumstances of the present case.
{19} 	In order to determine the effect of a party’s voluntary release of lis pendens, we
look to the history of the lis pendens doctrine and the purpose of New Mexico’s lis
pendens statutes. Prior to the Legislature’s adoption of the lis pendens statutes in the
late eighteen hundreds, the general common-law doctrine of lis pendens applied. The
essence of that doctrine was that the doctrine of lis pendens attached upon the filing
of any action involving the title to real property, and subsequent purchasers, either
with or without notice, took subject to the result of that litigation. 	Hammersley v.
District Court, 610 P.2d 94, 95 (Colo. 1980) (en banc).
{20} 	The common-law rule was harsh because “[i]t bound anyone who acquired an
interest in property by the result of pending litigation involving that property even
though the interest was acquired without knowledge of the litigation.” Id. at 96. The
harshness of the common-law rule led most states to adopt statutes that required the
recording of a notice of lis pendens in addition to the initiation of litigation in order
to trigger the lis pendens doctrine. Powell, supra, § 82A.01[3] at 82A-7. Under these
statutes, “[p]arties who do not take the minimal steps required . . . to properly provide
notice of pending litigation lose the protections they would otherwise have against

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subsequent good faith purchasers of the property.” Id. § 82A.01[2] at 82A-5.
{21} 	In New Mexico, the lis pendens statutes, Sections 38-1-14 to -15, replaced the
common-law doctrine. These statutes provide the specific mechanism of a recorded
notice of suit, which a plaintiff in an action affecting title to real property must use if
he wishes to ensure that subsequent purchasers of that property have constructive
notice of the pending claims. Section 38-1-14. The effect of the statute is that where
a party chooses not to exercise his right to give notice to subsequent purchasers
through a notice of lis pendens, either by not recording a notice during the litigation
or by releasing the notice prior to the conclusion of the litigation, future purchasers
are deemed to be without constructive notice of the pending claims involving the
property.
{22} 	The Estate chose not to file a notice of lis pendens upon its initiation of the
action or at any time during the first two years of the litigation. Similarly, after filing
a notice of lis pendens, the Estate released that notice prior to the conclusion of the
litigation. 	The result of the Estate’s actions was that, at the time the Kokorichas
purchased the Property, there was no active notice on record providing the Kokorichas
with constructive notice of the pending probate litigation involving title to the
Property.
Effect of Grantors’ Voidable Title
{23} 	The Kokorichas next argue that the district court erred when it concluded as a

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matter of law that the Kokorichas were subject to the same failures of title to which
Grantors were subject. Again, we agree that the district court erred.
{24} 	The district court found in the probate litigation that the deed from Mr. Keiner
to Nephew was fraudulently obtained. Based on that determination, the district court
declared Nephew’s deed to be void and invalid. The district court further determined
that all subsequent takers of the Property, up to and including Grantors, had actual
notice of the litigation and, therefore, those deeds were also void and invalid. In the
current case, the district court reasoned that because Grantors’ title was void, the title
the Kokorichas obtained from Grantors was also void. We note, however, that the
Kokorichas purchased the Property from Grantors several months before the district
court issued its ruling declaring Grantors’ deed to be void; therefore, at the time of the
Kokorichas’ purchase, Grantors’ deed may have been voidable, but it had not yet been
declared void.
{25} 	In State ex rel. State Tax Commission v. Garcia, 77 N.M. 703, 427 P.2d 230
(1967), our Supreme Court discussed when conveyances are void or merely voidable.
In Garcia, the state sought to set aside certain deeds issued by the State Tax
Commission because the state alleged that it had issued the deeds based on fraudulent,
false, illegal, and untrue representations made by the defendant. Id. at 704, 427 P.2d
at 231. Prior to the state bringing suit in the matter, the defendant had transferred title
to third-party purchasers who had no actual or constructive knowledge of the

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defendant’s fraudulent representations. 	Id. 	The state argued that, because of the
fraud, the defendant had obtained no title from the state and, consequently, the
defendant’s grantees obtained nothing from the defendant. Id. at 704-05, 427 P.2d at
232. The Court held that deeds alleged to have been obtained by fraud are not void
but are merely voidable until suit to cancel them is sustained “by proof which
produces conviction.” Id. at 708-09, 427 P.2d at 234 (internal quotation marks and
citation omitted). Based on this holding, we conclude that, because the district court
had not yet issued its ruling declaring Grantors’ deed void, Grantors’ deed to the
Property was merely voidable at the time of the conveyance to the Kokorichas.
{26} 	The Court in Garcia went on to state that there can be no cancellation of a
voidable deed where there has been a sale to a good-faith bona fide purchaser. Id. at
709, 427 P.2d at 235. Despite satisfactory proof of fraud, “bona fide purchase for
value is a perfect defense.” 	Id., 427 P.2d at 234 (quoting Wright-Blodgett Co. v.
United States, 236 U.S. 397, 403 (1915)). In light of the holding in Garcia, if the
Kokorichas are found to be bona fide purchasers for value, then the Kokorichas
received good title to the property, free from any defects that may have been inherent
in Grantors’ title. We, therefore, next address the question of whether the Kokorichas
were bona fide purchasers for value at the time of their purchase of the Property.
{27} 	In order to have been bona fide purchasers, the Kokorichas must have given
value for the property, and they must have been without either constructive or actual

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notice of the pending litigation. The Kokorichas gave value for the property by paying
Grantors $88,000 and, as we determined above, the Kokorichas did not have
constructive notice of the litigation; however, we are unable to determine whether the
Kokorichas had actual notice of the litigation.
{28} 	The Kokorichas were not at any time parties to the probate litigation, and they
allege in their emergency motion to intervene, their complaint in intervention for
declaratory judgment, and their verified petition for temporary restraining order and
injunctive relief, that they had no actual notice of the litigation. However, the Estate’s
answer to the complaint and the verified petition deny these allegations. Evidence
was not presented on this issue at the hearing, and the district court, in its findings of
fact and conclusions of law, made no finding as to whether the Kokorichas had actual
notice of the litigation. 	Additionally, the district court did not make a definitive
finding as to the Kokorichas’ status as bona fide purchasers, rather, the court merely
noted that the Kokorichas claimed that status.
{29} 	Based on the record before us, we cannot determine whether the Kokorichas
had actual notice of the litigation and, therefore, we cannot determine whether the
Kokorichas were bona fide purchasers of the Property. Accordingly, we remand to
the district court for a factual determination as to whether the Kokorichas had actual
knowledge of the pending litigation at the time of their purchase of the Property.
Other Arguments Made By the Estate in Its Answer Brief

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{30} 	The Estate makes several arguments based on its premise that granting title to
the Kokorichas is, in effect, granting the Kokorichas an award of specific performance
against the Estate. 	The Estate cites no controlling or on-point authority for its
argument, and we are not persuaded that the equitable remedy of specific performance
is at issue in this case.
{31} 	Specific performance is an equitable remedy under contract law. 	“Specific
performance is the actual accomplishment of a contract by a party bound to fulfil it,
and is a means of compelling a party to do precisely what he ought to have done
without being coerced by a court.” McCoy v. Alsup, 94 N.M. 255, 261, 609 P.2d 337,
343 (Ct. App. 1980) (internal quotation marks and citation omitted). The present case
raises no claims under contract law; rather, both the Estate and the Kokorichas claim
ownership of the Property and the remedy sought is a declaration by the court as to
which party is the lawful owner.
CONCLUSION
{32} 	For the reasons set forth above, we reverse the district court’s ruling and
remand the case for further proceedings consistent with this opinion.
{33} 	IT IS SO ORDERED.
_________________________________
LINDA M. VANZI, Judge
WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

MICHAEL E. VIGIL, Judge

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