April 23, 2020- Linda Contreras Ridlington v. Bobby Contreras, No. A-1-CA-37029

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
LINDA CONTRERAS RIDLINGTON,	2
as Conservator of the Estate of	3
Alvino Contreras,	4
Plaintiff-Appellant,	5
v. 	No. A-1-CA-37029	6
BOBBY CONTRERAS,	7
Defendant-Appellee.	8
APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY	9
Mercedes C. Murphy, District Judge	10
Law Office of Richmond L. Neely	11
Richmond L. Neely	12
Albuquerque, NM	13
for Appellant	14
Rose L. Brand & Associates, P.C.	15
Eraina M. Edwards	16
Albuquerque, NM	17
Davis Miles McGuire Gardner, PLLC	18
Latisha K. Frederick	19
Albuquerque, NM	20
for Appellee	21
MEMORANDUM OPINION	22
HANISEE, Chief Judge.	23
{1} 	Linda Contreras Ridlington (Plaintiff), as guardian and conservator of her	24
father, Alvino Contreras (Father), appeals the district court’s orders granting	25
Court of Appeals of New Mexico
Filed 4/23/2020 8:57 AM

2
summary judgment in favor of her brother, Bobby Contreras (Defendant), and	1
denying Plaintiff’s motion to reconsider. We affirm.	2
BACKGROUND	3
{2} 	This dispute arose in connection with twenty-six quitclaim deeds signed by	4
Father conveying various real properties to Defendant in November 2015. Almost	5
twenty years prior to the conveyance, in August 1997, Father gave Plaintiff a durable	6
power of attorney (POA). Plaintiff, however, did not record the POA until August	7
2016, nine months after the conveyances at issue had occurred, and when she first	8
employed her authority as POA. Similarly, Plaintiff was only appointed as guardian	9
and conservator of Father on November 21, 2016, a week after she filed the	10
complaint in the present case to “void” the November 2015 deeds given to	11
Defendant, alleging coercion and duress, Father’s mental incapacity, and the invalid	12
notarization of the deeds.	13
{3} 	In July 2017, Defendant filed a motion for summary judgment and asked the	14
district court to quiet title to the twenty-six properties that he claimed were gifted to	15
him. A week prior to the motions hearing and anticipated bench trial, Plaintiff	16
submitted a seemingly untimely two-page response to the summary judgment	17
motion. However, the district court exercised its discretion to consider Plaintiff’s	18
response because there was some question as to whether Defendant’s motion was	19
properly served. Following arguments on the motion, the district court stated its	20

3
intention to grant Defendant’s motion, finding that Plaintiff failed to meet her burden	1
in overcoming the motion for summary judgment. The next day, prior to entry of a	2
written order by the district court, Plaintiff filed a motion to reconsider, attaching	3
exhibits including the recorded POA, an affidavit by Dr. Samuel Roll who allegedly	4
evaluated Father in December 2013, a copy of one of the twenty-six recorded deeds,	5
the deposition transcript of Defendant, and correspondence indicating that the	6
notarization of the November 2015 deeds was invalid because that notary’s	7
commission had expired in 2012. In ensuing written orders, the district court granted	8
Defendant’s motion for summary judgment and denied Plaintiff’s motion for	9
reconsideration, refusing to consider the proffered exhibits because under Rule 1-	10
060 NMRA there was no basis to excuse Plaintiff’s failure to submit those	11
documents with Plaintiff’s response to the summary judgment motion. Plaintiff	12
appeals.	13
DISCUSSION	14
{4} 	Plaintiff raises seven issues on appeal: (1) the district court erred in concluding	15
that Plaintiff’s case was barred because her POA was not recorded before the deeds	16
were recorded; (2) the district court erred in concluding that Plaintiff’s case was	17
barred because she was not appointed as guardian of Father and conservator of	18
Father’s estate before the deeds were recorded; (3) the district court erred in granting	19
summary judgment in favor of Defendant despite her allegation that such deeds were	20

4
improperly induced by coercion and duress; (4) the district court erred in granting	1
summary judgment despite Plaintiff’s allegation that Father lacked the mental	2
capacity to sign the deeds, and Defendant presented no evidence of Father’s capacity	3
in executing the deeds; (5) the district court erred in granting summary judgment due	4
to the false notary certifications on the deeds, and neither the motion for summary	5
judgment nor the order granting summary judgment addresses such ground; (6) the	6
district court erred in granting summary judgment by ruling that the “execution of	7
the deeds was valid” when the deeds were not in evidence; and (7) the district court	8
abused its discretion in denying Plaintiff’s motion for reconsideration when there	9
was no indication that Defendant’s summary judgment motion was sufficient to shift	10
the burden to Plaintiff to produce evidence. In light of the volume and overlapping	11
nature of Plaintiff’s arguments, several of which mischaracterize the nature of the	12
district court’s orders, we address them collectively in the context of the two district	13
court orders appealed. See Rio Grande Kennel Club v. City of Albuquerque, 2008-	14
NMCA-093, ¶¶ 54-55, 144 N.M. 636, 190 P.3d 1131 (“[W]e encourage litigants to	15
consider carefully whether the number of issues they intend to appeal will negatively	16
impact the efficacy with which each of those issues can be presented.”). We do so,	17
however, only to the extent each contention is adequately developed and supported	18
by authority and properly cited facts in the record. Corona v. Corona, 2014-NMCA-	19

5
071, ¶ 28, 329 P.3d 701 (“This Court has no duty to review an argument that is not	1
adequately developed.”).	2
I. 	The District Court Did Not Abuse Its Discretion in Denying Plaintiff’s	3
Motion to Reconsider	4
{5} 	Plaintiff argues the district court abused its discretion both in granting	5
Defendant’s motion for summary judgment and in denying Plaintiff’s motion to	6
reconsider, primarily because Defendant did not meet his burden of a prima facie of	7
showing entitlement to summary judgment. We conclude that Defendant indeed met	8
his burden, but first evaluate the district court’s denial of Plaintiff’s motion to	9
reconsider. We do so because Plaintiff’s arguments rely extensively on exhibits	10
attached to the motion to reconsider that the district court declined to consider	11
because those exhibits “were not presented with her [r]esponse to the [m]otion for	12
[s]ummary [j]udgment.” If the district court did not err in this regard, then we too	13
may not consider the rejected exhibits on appeal, or entertain argument based	14
thereon. See City of Sunland Park v. N. M. Pub. Regulation Comm’n, 2004-NMCA-	15
024, ¶ 17, 135 N.M. 143, 85 P.3d 267 (“[T]his Court considers additional material	16
attached in support of a motion for reconsideration only when the district court	17
considers or relies on the material to make its final determination.” (emphasis	18
omitted)).	19
{6} 	“We review the denial of a motion for reconsideration for [an] abuse of	20
discretion.” Unified Contractor, Inc. v. Albuquerque Hous. Auth., 2017-NMCA-060,	21

6
¶ 77, 400 P.3d 290. “We cannot say the district court abused its discretion by its	1
ruling unless we can characterize it as clearly untenable or not justified by reason.”	2
Wilde v. Westland Dev. Co., 2010-NMCA-085, ¶ 30, 148 N.M. 627, 241 P.3d 628	3
(internal 	quotation 	marks 	and 	citation 	omitted). 	In 	denying 	the 	motion 	for	4
reconsideration, the district court emphasized (1) that Plaintiff did not set forth an	5
appropriate reason under Rule 1-060 supporting her requested reconsideration; and	6
(2) that the proffered exhibits were not properly filed since Plaintiff failed to credibly	7
explain why the documents were not presented with her response to the summary	8
judgment motion. Although it is unclear whether the motion for reconsideration here	9
was brought pursuant to Rule 1-059(E) NMRA or Rule 1-060(B), the result is the	10
same—the court may exercise its discretion regarding the consideration of the	11
untimely exhibits. See Varga v. Ferrell, 2014-NMCA-005, ¶ 31, 362 P.3d 96 (“[A]	12
district court may, in its discretion, refuse to consider materials purporting to create	13
issues of fact that are presented after summary judgment has been granted.”); Deaton	14
v. Gutierrez, 2004-NMCA-043, ¶ 9, 135 N.M. 423, 89 P.3d 672 (concluding that the	15
district court did not abuse its discretion in refusing to consider materials filed with	16
a motion seeking reconsideration of summary judgment); In re Estate of Keeney,	17
1995-NMCA-102, ¶ 12, 121 N.M. 58, 908 P.2d 751 (explaining that Rule 1-060(B)	18
motions require specific grounds in a motion to reconsider while Rule 1-059(E)	19
motions are not so restricted as to the basis for relief and that the trial court has	20

7
“considerable discretion to reconsider summary judgment under Rule 1-059(E)”	1
(emphasis added)).	2
{7} 	In issuing its ruling here, the district court exercised its discretion not to	3
consider the untimely presented documents. We note that the district court could	4
have decided otherwise. Cf. Keeney, 1995-NMCA-102, ¶ 12 (finding no abuse of	5
discretion in district court’s review of untimely filed materials submitted on motion	6
for reconsideration of summary judgment where untimely filing was due to	7
counsel’s negligence). However, we have no basis to conclude that the district court	8
abused its discretion in deciding differently than the district court in Keeney,	9
particularly given Plaintiff’s motion for reconsideration amounted to a belated	10
attempt to rectify her inadequate response to the summary judgment motion.	11
Because the district court acted within its discretion, “we will not consider the	12
additional materials submitted with the motion for reconsideration.” Deaton, 2004-	13
NMCA-043, ¶ 9; Keeney, 1995-NMCA-102, ¶ 14 (stating that the reviewing court	14
may consider materials submitted with a motion for reconsideration if the district	15
court considered the materials); see City of Sunland Park, 2004-NMCA-024, ¶ 17	16
(declining to consider on appeal the material that “the district court did not consider	17
or rely on” to reach its decision).	18
{8} 	For similar reasons, we will also not consider Plaintiff’s affidavit which was	19
attached to the docketing statement as it had no impact on the district court’s rulings.	20

8
Sunland, 2005-NMCA-024, ¶ 17 (“[A]n appellate court may not consider the	1
documents if the district court’s decision is not based on that material.”); see also	2
Durham v. Guest, 2009-NMSC-007, ¶ 10, 145 N.M. 694, 204 P.3d 19 (“[R]eference	3
to facts not before the district court and not in the record is inappropriate and a	4
violation of our Rules of Appellate Procedure.”).	5
II. 	The District Court Did Not Err in Granting Defendant’s Summary	6
Judgment Motion	7
{9} 	We review an order granting summary judgment de novo. Freeman v.	8
Fairchild, 2018-NMSC-023, ¶ 14, 416 P.3d 264. We consider “the facts in a light	9
most favorable to the party opposing summary judgment and draw all reasonable	10
inferences in support of a trial on the merits.” Id. (internal quotation marks and	11
citation omitted). Summary judgment is appropriate where “there is no genuine issue	12
of material fact and the moving party is entitled to judgment as a matter of law.” Id.	13
¶ 16 (internal quotation marks and citation omitted).	14
{10} 	“The 	party 	moving 	for 	summary 	judgment 	has 	the 	initial 	burden 	of	15
establishing a prima facie case for summary judgment by presenting such evidence	16
as is sufficient in law to raise a presumption of fact or establish the fact in question	17
unless rebutted.” City of Rio Rancho v. AMREP Sw. Inc., 2011-NMSC-037, ¶ 14,	18
150 N.M. 428, 260 P.3d 414 (internal quotation marks and citation omitted). “The	19
movant need not demonstrate beyond all possibility that no genuine factual issue	20
exists.” Parker v. E.I. DuPont de Nemours & Co., 1995-NMCA-086, ¶ 10, 121 N.M.	21

9
120, 909 P.2d 1. Once the movant meets this burden of a prima facie showing, “the	1
burden shifts to the non-movant to demonstrate the existence of specific evidentiary	2
facts which would require trial on the merits.” Freeman, 2018-NMSC-023, ¶ 16	3
(internal quotation marks and citation omitted); see Rule 1-056(E) NMRA (“When	4
a motion for summary judgment is made and supported as provided in this rule, an	5
adverse party may not rest upon the mere allegations or denials of his pleading, but	6
his response, by affidavits or as otherwise provided in this rule, must set forth	7
specific facts showing that there is a genuine issue for trial.”). The non-movant “may	8
not simply argue that such evidentiary facts might exist, nor may it rest upon the	9
allegations of the complaint. Instead, the party opposing summary judgment motion	10
must adduce evidence to justify a trial on the issues.” Horne v. Los Alamos Nat’l	11
Sec., L.L.C., 2013-NMSC-004, ¶ 15, 296 P.3d 478 (emphasis added) (alteration,	12
internal quotation marks, and citation omitted). If the non-movant “does not so	13
respond, summary judgment, if appropriate, shall be entered” in favor of the moving	14
party. Rule 1-056(E).	15
{11} 	Defendant moved for summary judgment in July 2017 by submission of a	16
straightforward four-page motion that attached no evidence, asserting undisputed	17
facts and relying heavily on legal presumptions—the validity of the deeds at issue,	18
the capacity of Father in signing those deeds, as well as Plaintiff’s failure to record	19
her POA on the properties as required prior to the challenged conveyances in	20

10
November 2015. In his argument at the motion hearing, Defendant contended that	1
he 	was 	entitled 	to 	summary 	judgment 	because 	neither 	Plaintiff’s 	POA 	nor	2
guardianship of Father, which became official in August and November 2016,	3
respectively, were controlling at the time of the deed conveyances in November	4
2015. Therefore, he argues that as a matter of law, the deeds were valid. Defendant	5
also highlighted that Plaintiff did not attach any affidavits or evidence in her	6
response to Defendant’s summary judgment motion to rebut the undisputed facts	7
therein. As stated, Plaintiff filed a two-page response a week before the motions	8
hearing. The response failed to raise any disputed facts or attach any evidence or	9
affidavits 	to 	rebut 	Defendant’s 	arguments, 	and 	instead 	focused 	solely 	upon	10
Defendant’s challenge to Plaintiff’s standing set forth within Defendant’s motion for	11
summary judgment. At the hearing, Plaintiff argued that the mere existence of	12
otherwise proper deeds does not indicate that Father, as the grantor, had the capacity	13
to execute those deeds. Plaintiff’s counsel also conceded that Plaintiff only recorded	14
her POA after she needed to avail herself of the authority, explaining that Plaintiff	15
“never had any reason to use it before” and “never had to avail herself of that [POA]	16
until then.” In granting Defendant’s motion, the district court held that Father was	17
under no legal constraint at the time of the conveyances in November 2015, that	18
Defendant met his burden of proving that the execution of the deeds was valid, and	19

11
that Plaintiff did not rebut the presumptive capacity of grantor nor the valid	1
execution of the deeds.	2
{12} 	On appeal, Plaintiff challenges the district court’s grant of summary judgment	3
in favor of Defendant on numerous grounds. We summarize her central arguments	4
as we understand them to be as follows: (1) Plaintiff’s POA and her position as	5
guardian and conservator, though not effective prior to the deed conveyances in	6
November 2015 gave her standing to sue on Father’s behalf because he was allegedly	7
defrauded, coerced, and unduly influenced into signing those deeds, and such claims	8
vested at the time of the alleged wrong (fraud and undue influence);1 (2) Defendant’s	9
motion was itself defective since he did not directly refer to specific evidence; and	10
(3) the district court erred in concluding that Defendant met his prima facie burden	11
that the execution of the deeds was valid and in not addressing Plaintiff’s allegations	12
regarding Defendant’s coercion and duress, Father’s mental incapacity, and the	13
invalid notarization of the deeds.	14
{13} 	As to Plaintiff’s first argument regarding standing, no challenge to Plaintiff’s	15
standing has been renewed on appeal by Defendant, and the district court’s grant of	16
summary judgment did not indicate any such rationale when ruling in favor of	17
1 We note that Plaintiff did not expressly plead an “undue influence” claim in
her complaint to the district court, instead stating that the deeds should be void
because they were obtained under “duress or coercion.” Only on appeal does
Plaintiff point to undue influence cases to support her separate cause of action.

12
Defendant. 	Rather, the district court expressly stated in its order that it had	1
jurisdiction over both the parties and the subject matter. In addition, we view the	2
order permitting the substitution of parties after Plaintiff was appointed as guardian	3
and conservator for Father as acknowledging Plaintiff’s standing to bring this suit	4
on his behalf. Thus, we need not address the issue further. Instead, we proceed to	5
whether Defendant met his initial burden of a prima facie showing. See City of Rio	6
Rancho, 2011-NMSC-037, ¶ 14.	7
{14} 	Regarding Plaintiff’s other arguments, Defendant need not demonstrate	8
beyond all possibility that no genuine factual issue exists, Parker, 1995-NMCA-086,	9
¶ 10; rather, he must present evidence that is “sufficient in law to raise a presumption	10
of fact or establish the fact in question unless rebutted.” See City of Rio Rancho,	11
2011-NMSC-037, ¶ 14 (emphasis added) (internal quotation marks and citation	12
omitted). To that end in this case, in New Mexico, “[a]ny person . . . who may hold,	13
any right or title to real estate in this state, be it absolute or limited, in possession,	14
remainder or reversion, may convey the same” under our property law. NMSA 1978	15
§ 47-1-4 (1851-1852) (emphasis added); NMSA 1978, § 47-1-5 (1851-1852) (“All	16
conveyances of real estate shall be subscribed by the person transferring his title or	17
interest in said real estate[.]” (emphasis added)). Here, the undisputed facts provide	18
that the properties, as enumerated in an exhibit in Plaintiff’s complaint, were	19
transferred in writing via quitclaim deeds on November 10, 2015, with the property	20

13
sufficiently described, consideration noted, signed by Father—the grantor—and	1
witnessed by a neutral third party. Because the deeds appeared to be statutorily	2
proper as they were in writing and, notably, signed by Father, the resulting	3
conveyances were presumptively valid. See Gonzales v. Gonzales, 1993-NMCA-	4
159, ¶ 21, 116 N.M. 838, 867 P.2d 1220 (“[W]e agree that in general, once property	5
has been conveyed by deed from the record owner, the person to whom the property	6
has been conveyed owns it.”); Vigil v. Sandoval, 1987-NMCA-101, ¶ 8, 106 N.M.	7
233, 741 P.2d 836 (“Courts will construe a deed in such a manner that will uphold	8
the validity of the conveyance, if possible.”). Together, these facts indicate that the	9
deeds were facially valid, thus shifting the burden to Plaintiff to rebut the	10
presumption. See Gutierrez v. Gianini, 1958-NMSC-024, ¶ 10, 64 N.M. 64, 323 P.2d	11
1102 (“A deed, valid on its face, delivered to the grantee, raises a presumption that	12
the grantor intended to part with the property. To overcome the presumption of	13
validity . . . the evidence must be clear, convincing, cogent and indubitable.” (citation	14
omitted)). Instead of presenting evidence rebutting the validity of the deeds,	15
however, Plaintiff merely alleged coercion, duress, and mental incapacity. See Rule	16
1-056(D)(2) (“All material facts set forth in the statement of the moving party shall	17
be deemed admitted unless specifically controverted.” (emphasis added)). Mere	18

14
allegations of coercion or duress are insufficient to overcome presumptions of law	1
made applicable by the nature of the evidence in this case.2
2
{15} 	Regarding Father’s purported lack of capacity to sign the deeds, the burden	3
similarly rested on Plaintiff to assert specific facts to demonstrate incapacity at the	4
time of the conveyances by clear and convincing proof. See Roybal v. Morris, 1983-	5
NMCA-101, ¶ 13, 100 N.M. 305, 669 P.2d 1100; In re Estate of Head, 1980-NMCA-	6
2 Under the dissent’s approach, presumptively valid quitclaim conveyances of
property owned by presumptively capable conveyors could be challenged well after
the fact, as it is here in this case, by merely alleging—with no evidentiary showing—
that the grantor was incapacitated or otherwise subjected to undue influence of some
unspecified sort. In such an unsettled landscape, it would be hard to predict which
quitclaim deed could be relied upon post-conveyance and which could not, given
that any interested party wishing someone other than the grantee (perhaps even
themselves) had been deeded the property could proceed to trial upon little more
than a bald allegation of “coercion and duress.” Moreover, in making its pitch that
the district court should be reversed, the dissent embraces and capably improves
upon 	Plaintiff’s 	undue influence argument, a contention 	first 	and 	minimally
espoused by Plaintiff only in briefing to this court. This we do not normally do. See
Corona, 2014-NMCA-071, ¶ 28; Elane Photography, LLC v. Willock, 2013-NMSC-
040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed issue, this Court would
have to develop the arguments itself, effectively performing the parties’ work for
them. This creates a strain on judicial resources and a substantial risk of error. It is
of no benefit either to the parties or to future litigants for this Court to promulgate
case law based on our own speculation rather than the parties’ carefully considered
arguments.” (citation omitted)). And by relying on statements in Defendant’s answer
to Plaintiff’s complaint to place a material fact in dispute, the dissent would reverse
based on an argument Plaintiff did not make in the district court and therefore did
not preserve for appellate review. See Nellis v. Farmers Ins. Co. of Arizona, 2012-
NMCA-020, ¶ 23, 272 P.3d 143 (“The rules of preservation are no different for
review of summary judgment than for review of other final orders. We review the
case litigated below, not the case that is fleshed out for the first time on appeal.”
(internal quotation marks and citation omitted)).

15
096, ¶ 16, 94 N.M. 656, 615 P.2d 271. In his summary judgment motion, Defendant	1
also relied on a presumption of law that all persons in New Mexico are competent,	2
unless otherwise shown. See Heights Realty, Ltd. v. Phillips, 1988-NMSC-007, ¶ 5,	3
106 N.M. 692, 749 P.2d 77 (“The law presumes that every person is competent. To	4
show the contrary, the burden of proof rests on the person asserting lack of capacity	5
to establish the same by clear and convincing proof.”); In re Estate of Head, 1980-	6
NMCA-096, ¶ 16. Here, the legal presumption allowed Defendant to meet his prima	7
facie burden as pertains to Father’s capacity, and Plaintiff failed to rebut that	8
presumption with sufficient evidence of Father’s incapacity because her response to	9
the summary judgment motion was devoid of any evidence. See Rule 1-056(D)(2).	10
Accordingly, and with no specific evidence that Plaintiff contends rendered the	11
otherwise presumptively valid deeds invalid, the district court did not err in finding	12
that Defendant met his burden of proving that the execution of the deeds was proper	13
by relying on the presumptive validity of the conveyances and the presumptive	14
capacity of Father to make those conveyances.	15
{16} 	Next, Plaintiff argues that the deeds contained “false notary certifications”	16
because the commission of the notary who witnessed the deeds expired prior to the	17
conveyance. Plaintiff, however, failed to properly develop this argument, instead,	18
citing authority regarding fraud and coercion. Corona, 2014-NMCA-071, ¶ 28	19
(holding that appellate courts have no duty to review inadequately developed	20

16
arguments). In any event, notarization is not a requirement for the deeds to be	1
binding as between the parties involved. See NMSA 1978, § 14-13-12 (1901) (“An	2
acknowledgment of an instrument of writing shall not be necessary to its execution	3
unless expressly so provided by statute.”); NMSA 1978, § 47-1-6 (1967) (“No seal	4
or scroll is necessary to the validity of any . . . conveyance, whether respecting real	5
or personal property, or any other instrument of writing, nor does the addition or	6
omission of a seal or scroll in any way affect the force or effect of the same.”);	7
Amethyst Land Co. v. Terhune, 2014-NMSC-015, ¶ 11, 326 P.3d 12 (holding that	8
“noncompliance with statutory requirement that deeds be notarized does not make	9
the deed void, but merely makes it ineligible to be recorded,” and unacknowledged	10
deeds 	are 	nevertheless 	binding 	“between 	the 	parties 	. 	. 	., 	their 	heirs 	and	11
representatives, and persons having actual notice of the instrument” (internal	12
quotation marks and citation omitted)); New Mexico Properties, Inc. v. Lennox	13
Indus., Inc., 1980-NMSC-087, ¶ 6, 95 N.M. 64, 618 P.2d 1228 (“The absence of an	14
acknowledgment to a deed or instrument of conveyance does not affect its validity	15
or render it void as between parties.”). While the deeds would be improper as	16
constructive notice to bona fide purchasers, here, Father, as the grantor, signatory,	17
and a party to the conveyances was bound by the mis-notarized deed. Furthermore,	18
since Plaintiff represents Father’s interests, Plaintiff was also bound barring her	19
demonstration 	of 	evidence 	to 	challenge 	the 	validity 	of 	the 	conveyances.	20

17
Accordingly, the burden shifted from Defendant to Plaintiff to rebut that the	1
execution of the deeds, though valid on its face, was improper. Plaintiff could rebut	2
the validity of the deeds by presenting the existence of specific evidentiary facts	3
requiring a trial by way of affidavits or other evidence. See Rule 1-056(E) (“[A]n	4
adverse party may not rest upon the mere allegations or denials of his pleading, but	5
his response, by affidavits or as otherwise provided in this rule, must set forth	6
specific facts showing that there is a genuine issue for trial.”). But Plaintiff’s mere	7
allegations of coercion or duress in her complaint were insufficient to rebut	8
Defendant’s prima facie case for summary judgment. See Horne, 2013-NMSC-004,	9
¶ 15 (reiterating that speculation is insufficient to overcome a prima facie case	10
for summary judgment). Rule 1-056(D)(2) sets out what is required of a party	11
moving for summary judgment and a party opposing it. See id. (“All material facts	12
set forth in the statement of the moving party shall be deemed admitted unless	13
specifically 	controverted.”). We conclude that Defendant made a prima facie	14
showing and Plaintiff failed to adequately respond in compliance with those	15
requirements by rebutting Defendant’s reliance on the presumptions of law. See	16
Freeman, 2018-NMSC-023, ¶ 14	17
{17} 	Finally, as to Plaintiff’s argument that the district court failed to specifically	18
address the grounds of each of her claims in granting summary judgment, we are	19
again unpersuaded. Principally, as the district court emphasized, Father was under	20

18
no legal constraint when he conveyed the properties—neither by guardianship,	1
conservatorship, or Plaintiff’s POA. Significantly, the POA, though granted to	2
Plaintiff 	almost 	twenty 	years 	prior, 	was 	not 	recorded 	until 	2016, 	after 	the	3
conveyances in November 2015, and Plaintiff’s counsel admitted at the hearing that	4
such authority was not exercised by Plaintiff until it was needed. Thus, since Plaintiff	5
failed to record such authority on the property before the conveyances, her POA had	6
no effect on the conveyances. NMSA 1978, § 14-9-1 (1991) (“All deeds, mortgages,	7
. . . and other writings affecting the title to real estate shall be recorded in the office	8
of the county clerk . . . in which the real estate affected thereby is situated.”);	9
Amethyst Land Co., 2014-NMSC-015, ¶ 10. Moreover, even if the POA had been	10
recorded prior to the conveyances, such would not restrict Father’s own authority to	11
convey his property absent evidence of incapacity at the time of the conveyances.	12
Additionally, as discussed earlier, Plaintiff failed to timely present any evidence that	13
Father was incapable of exercising his rights to convey the property in November	14
2015, whether by challenging the presumptively valid conveyances with evidence	15
of duress or coercion, or challenging Father’s presumptive capacity with evidence	16
of his mental incapacity. Consequently, in ruling that the “execution of the deeds	17
[was] valid” under New Mexico laws, the district court substantively disposed of all	18
of Plaintiff’s claims, and Plaintiff cites no authority for the proposition that each	19
claim in her complaint must be specifically named or individually disposed of in the	20

19
order. Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where	1
a party cites no authority to support an argument, we may assume no such authority	2
exists.”). Accordingly, given the legal presumptions in favor of Defendant, the	3
timing of the conveyances without any legal constraint on Father’s authority to	4
convey the properties, and Plaintiff’s failure to present any evidence whatsoever, the	5
district court properly determined that Defendant met his prima facie burden and	6
granted summary judgment in favor of Defendant.	7
CONCLUSION	8
{18} 	For these reasons, we affirm both of the district court’s orders.	9
{19} 	IT IS SO ORDERED.	10
_____________________________	11
J. MILES HANISEE, Chief Judge	12
I CONCUR:	13
__________________________	14
ZACHARY A. IVES, Judge	15
MEGAN P. DUFFY, Judge (dissenting).	16

20
DUFFY, Judge (dissenting).	1
{20} 	In November 2015, one year before Father was declared legally incapacitated,	2
he signed twenty-six quitclaim deeds giving various properties in Socorro to his son,	3
Defendant Bobby Contreras; Defendant prepared all of the deeds. Plaintiff was	4
appointed as Father’s guardian and conservator to manage his personal and financial	5
affairs in November 2016 after the district court found he was no longer able to do	6
so for himself; she initiated this lawsuit seeking to void the deeds and recover the	7
twenty-six Socorro properties for her father on the basis that the deeds were obtained	8
by “duress and coercion” and that Father lacked the mental capacity to understand	9
the nature and extent of what he was doing. As the majority acknowledges,	10
Plaintiff’s “duress or coercion” claim is best understood as an undue influence claim.	11
See Trigg v. Trigg, 1933-NMSC-040, ¶¶ 8-9, 37 N.M. 296, 22 P.2d 119 (stating that	12
“undue influence would seem to be a species of duress, or, if this be not quite	13
accurate, the two would at least seem to run together so that the precise line where	14
one begins and the other stops is not easily definable”); 26A C.J.S. Deeds § 133	15
(2020) (“Undue influence can generally be defined as influence which dominates	16
the grantor’s will and coerces it to serve the will of another, or the substitution of the	17
will of the dominant party for the free will and choice of the subservient party.”	18
(footnote 	omitted)). 	Because 	I 	disagree 	with 	the 	majority’s 	conclusion 	that	19
Defendant met his burden of establishing a prima facie case for summary judgment	20

21
on Plaintiff’s undue influence claim, and because I perceive disputed issues of fact	1
that should have precluded summary judgment on both claims, I respectfully dissent.	2
See Bartlett v. Mirabal, 2000-NMCA-036, ¶ 17, 128 N.M. 830, 999 P.2d 1062 (“The	3
burden is first on the moving party to make a prima facie showing that there is no	4
genuine issue of fact as to one or more of the requisite elements in non-movant’s	5
claim.” (alterations, internal quotation marks, and citation omitted))	6
{21} 	Before turning to the particular claims, I note as an initial matter that it is not	7
clear that Defendant’s motion was ever intended to make a prima facie showing as	8
to either of Plaintiff’s claims. The motion consisted of just six “undisputed facts”:	9
1. 	[Plaintiff] and [Defendant] are the children of [Father].	10
2. 	The properties which are the subject of this suit are correctly	11
enumerated in Plaintiff’s Exhibit B [to the complaint].	12
3. 	Plaintiff failed to properly record or give notice of her Durable	13
Power of Attorney as having any relation to the properties in	14
Socorro County, as required by [NMSA 1978, § 47-1-7 (1901)].	15
4. 	Plaintiff 	did 	not 	at 	the 	time 	of 	transfer 	from 	[Father] 	to	16
[Defendant] have any guardianship or conservatorship authority	17
over [Father].	18
5. 	[Father] was under no legal constraint at the time he gifted the	19
properties to his son, [Defendant].	20
6. 	The properties were transferred in writing, with the property	21
sufficiently 	described, 	consideration 	noted, 	signed 	by 	the	22
grantor, and witnessed by a neutral third party. See §§ 47-1-5	23
and 47-1-6.	24

22
Defendant did not make any legal argument and immediately followed his factual	1
assertions with the conclusion, which stated that Plaintiff lacked standing to bring	2
this lawsuit and that, “[a]s a matter of law, Plaintiff’s Complaint fails due to the	3
statutory requirements of conveyance of title having been met by [Father] in properly	4
conveying land to his son, Defendant Bobby Contreras.”	5
{22} 	Substantively, the motion appears to be nothing more than an assertion that	6
Father had legal capacity to deed the properties to Defendant—that is, that Father	7
was under no legal constraint that prevented him from executing the deeds because	8
Plaintiff had not invoked her durable power of attorney and Father was not yet under	9
a conservatorship and guardianship. At the hearing on the motion, Defendant’s	10
counsel focused almost exclusively on Father’s legal capacity, arguing that Plaintiff	11
has no right under the law to challenge deeds executed by a grantor before he was	12
placed under a conservatorship. But see Montoya v. Torres, 1991-NMCA-152, ¶ 19,	13
113 N.M. 105, 823 P.2d 905 (holding that an otherwise valid deed may be set aside	14
on the basis of undue influence, which calls into question “whether the donor would	15
have made the gift but for the undue influence exerted over him or her”); 23 Am.	16
Jur. 2d Deeds § 177 (2020) (“[A] deed executed as a result of undue influence	17
practiced upon the grantor is voidable[.]”). It was only during rebuttal argument that	18
Defendant’s counsel finally mentioned the presumptions that form the basis of the	19
majority’s holding in this appeal. On the whole, I am doubtful that Defendant sought	20

23
to make a prima facie showing on either of Plaintiff’s claims, and for the reasons set	1
forth below, I am unpersuaded that he has done so here.	2
Plaintiff’s Undue Influence Claim	3
{23} 	Turning now to Plaintiff’s specific claims, the majority concludes that	4
Defendant’s six factual allegations, which demonstrate nothing more than that the	5
deeds at issue in this lawsuit are facially valid, are sufficient to meet Defendant’s	6
initial burden of establishing a prima facie case for summary judgment on Plaintiff’s	7
undue influence claim. Even assuming that “[a] deed [that] is regular on its face is	8
clothed with a presumption of validity,” 26A C.J.S. Deeds § 478, neither Defendant	9
nor the majority explain how the presumptions attached to a facially valid deed apply	10
within the contours of an undue influence claim. Because the presumptions do not	11
address or negate the elements of undue influence, they are insufficient to establish	12
Defendant’s prima facie showing. C & H Const. & Paving Co. v. Citizens Bank,	13
1979-NMCA-077, ¶ 9, 93 N.M. 150, 597 P.2d 1190 (“If the movant fails to meet	14
this burden, summary judgment is erroneous.”).	15
{24} 	“[U]ndue influence involves the substitution of the mind of the person	16
exercising the influence for the mind of the person executing the instrument,	17
resulting in an instrument that would otherwise not have been made.” Ray D.	18
Madoff, Unmasking Undue Influence, 81 Minn. L. Rev. 571, 575 (1997). “The	19
underlying theory of the doctrine is that the donor is induced by various means to	20

24
execute an instrument that, in reality, is the will of another substituted for that of the	1
donor.” Montoya, 1991-NMCA-152, ¶ 16. The controlling issue is “whether there	2
was undue influence exercised by [the] defendant so that the transfer was not [the	3
grantor’s] 	free 	will.” 	Roybal, 	1983-NMCA-101, 	¶ 18. 	The 	fact-finder 	must	4
determine “whether the donor would have made the gift but for the undue influence	5
exerted over him or her.” Montoya, 1991-NMCA-152, ¶ 19. If successful, a finding	6
of undue influence will allow the court to set aside an otherwise valid deed. See id.	7
(upholding the district court’s judgment setting aside a deed quieting title in favor of	8
grantors when, even though grantors were competent and had capacity to understand	9
the effect of executing a quitclaim deed, the deed was a product of undue influence);	10
see also Roybal, 1983-NMCA-101, ¶ 28 (holding that a deed that is the product of	11
undue influence may be declared invalid in its entirety).	12
{25} 	The fundamental problem in undue influence cases is that “direct proof is	13
notoriously elusive.” Chapman v. Varela, 2009-NMSC-041, ¶ 13, 146 N.M. 680,	14
213 P.3d 1109. “[B]ecause of the difficulty in obtaining direct proof in cases where	15
undue influence is alleged,” a presumption of undue influence arises when “a	16
confidential or fiduciary relation with a donor is shown together with suspicious	17
circumstances.” Id. ¶ 7 (internal quotation marks and citations omitted). Common	18
“suspicious circumstances” include	19
(1) old age and weakened physical or mental condition of testator; (2)	20
lack of consideration for the bequest; (3) unnatural or unjust disposition	21

25
of the property; (4) participation of beneficiary in procuring the gift; (5)	1
domination or control over the donor by a beneficiary; and (6) secrecy,	2
concealment, or failure to disclose the gift by a beneficiary.	3
Id. (stating that “[t]his is not an exhaustive list, nor is it a list of circumstances that	4
are always suspicious” and that “the presence of any of these circumstances is not in	5
itself dispositive” (internal quotation marks and citation omitted)). “The mechanism	6
of a presumption allows the . . . contestant to get the issue of undue influence before	7
the fact finder by offering only proof of a confidential relationship and suspicious	8
circumstances.” Id. ¶ 13. If the presumption is triggered, it will be sufficient to avoid	9
a motion for judgment as a matter of law. Id. ¶ 11; see also id. ¶ 16 (emphasizing	10
that these standards do not pose a risk to a grantor’s freedom because the factfinder	11
“must still determine whether the contestant has made his or her ultimate case for	12
undue influence by clear and convincing evidence” and that “[o]ur system of	13
presumptions simply assures that it is the finder of fact, not the judge as arbiter of	14
law, that makes this determination”).	15
{26} 	With this in mind, I return to the question of whether Defendant’s undisputed	16
facts establish a prima facie case for summary judgment on Plaintiff’s undue	17
influence claim. Although Plaintiff had the burden of showing a confidential	18
relationship and suspicious circumstances, id. ¶ 9, Defendant, as the moving party,	19
had the burden of showing an absence of any genuine issue of material fact that	20
could prove or establish undue influence. Blauwkamp v. Univ. of New Mexico Hosp.,	21

26
¶ 14 	114 	N.M. 	228, 	836 	P.2d 	1249 	(“A 	defendant 	seeking 	summary	1
judgment . . . bears the initial burden of negating at least one of the essential	2
elements upon which the plaintiff’s claims are grounded.”). Nothing in Defendant’s	3
motion can be said to meet that burden, as neither the facial validity of the deeds,	4
nor the “presumption of validity” he advocates on appeal, goes so far as to address	5
or negate the elements of undue influence set out in Chapman. Specifically, the	6
presumption does not establish (and Defendant did not aver) that Defendant did not	7
exert undue influence, that Defendant did not share a confidential relationship with	8
Father, or that suspicious circumstances were not present. See, e.g., McWilliams v.	9
Jensen, No. 33,137, memo. op. ¶ 14 (N.M. Ct. App. Apr. 6, 2015) (non-precedential)	10
(affirming the district court’s entry of summary judgement where the defendants, in	11
their motion for summary judgment, argued that they did not exert undue influence	12
over the grantor to persuade her to sign documents). Because Defendant failed to	13
make any showing regarding the fundamental components of undue influence, I	14
cannot conclude that he made a prima facie showing for summary judgment or that	15
the burden shifted to Plaintiff here.	16
{27} 	Even if Defendant had addressed Plaintiff’s undue influence claim, he would	17
still have to contend with the factual issues created by his own admissions in his	18
answers to Plaintiff’s complaint. We are tasked with conducting a whole record	19
review for evidence that puts a material fact at issue. Zamora v. St. Vincent Hosp.,	20

27
2014-NMSC-035, ¶ 9, 335 P.3d 1243 (“In reviewing an order on summary judgment,	1
we examine the whole record on review, considering the facts in a light most	2
favorable to the nonmoving party and drawing all reasonable inferences in support	3
of a trial on the merits.”). In so doing, I note that Defendant, in an initial pro se	4
answer, admitted that he prepared the deeds—one of the suspicious circumstances	5
identified 	in 	Chapman. 	2009-NMSC-041, 	¶ 	7 	(identifying 	“participation 	of	6
beneficiary in procuring the gift” as a suspicious circumstance). Likewise, in a later	7
answer filed by counsel, Defendant represented that “[he] and his father have all	8
their lives had a close and open relationship, and lived next door to one another[,]”	9
which is sufficient to raise a question about whether Defendant had a confidential	10
relationship with Father for purposes of summary judgment. See id.; see also	11
Montoya, 1991-NMCA-152, ¶ 19 (“A confidential or fiduciary relation exists	12
whenever trust and confidence is reposed by one person in the integrity and fidelity	13
of another.”). These admissions demonstrate issues of material fact that should have	14
prevented summary judgment under any circumstance. For these reasons, I would	15
reverse the district court’s grant of summary judgment on Plaintiff’s undue influence	16
claim.	17
Plaintiff’s Lack of Capacity Claim	18
{28} 	Plaintiff separately claimed that Father lacked mental capacity to execute the	19
deeds in 2015. “The issues of mental capacity and undue influence are separate and	20

28
distinct.” Roybal, 1983-NMCA-101, ¶ 23. “The test of mental capacity is whether a	1
person is capable of understanding in a reasonable manner, the nature and effect of	2
the act in which the person is engaged.” In re Estate of Head, 1980-NMCA-096,	3
¶ 15.	4
{29} 	As the majority correctly points out, “[t]he law presumes that every person is	5
competent. To show the contrary, the burden of proof rests on the person asserting	6
lack of capacity to establish the same by clear and convincing proof.” Heights Realty,	7
Ltd., 1988-NMSC-007, ¶ 5. While Defendant’s reliance on this presumption at the	8
summary judgment hearing was sufficient to make a prima facie showing on	9
Plaintiff’s lack of mental capacity claim, whether summary judgment was properly	10
granted depends on the absence of a disputed issue of material fact. Plaintiff	11
presented evidence, both in documents attached to her pleadings and in her argument	12
to the district court, that Father had been placed under a conservatorship and	13
guardianship within a year of executing the deeds. Our Supreme Court’s holding in	14
Heights Realty, Ltd. establishes that evidence of Father’s subsequent incapacity is	15
relevant to show his condition at the time he executed the deeds, and I believe that	16
Plaintiff’s evidence was sufficient to demonstrate a disputed issue of material fact at	17
the summary judgment stage. See id. ¶ 6 (“Although the test of mental capacity is	18
applied as of the date that the attacked instrument is executed, evidence of a person’s	19
prior or subsequent condition is admissible to show the condition at the time in	20

29
issue.”); see also Bartlett, 2000-NMCA-036, ¶ 7 (stating that “the nonmoving party	1
need only show a genuine issue of material fact and need not present evidence	2
sufficient to meet the burden at trial”).	3
{30} 	For the foregoing reasons, I would reverse the district court’s grant of	4
summary judgment and remand the matter for further proceedings on the merits.	5
_________________________	6
MEGAN P. DUFFY, Judge	7