Ullrich v. Moldt ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 IN THE MATTER OF THE ESTATE OF
3 ROBERT JOHANN ULLRICH AND
4 EVELYN ULLRICH, Deceased.
5 STEPHEN FLOYD ULLRICH,
6 Petitioner-Appellant,
7 v. NO. 35,108
8 ADDA MOLDT, TRUSTEE,
9 Respondent-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
11 Sarah M. Singleton, District Judge
12 Stephen Floyd Ullrich
13 Boise, ID
14 Pro Se Appellant
15 Lynn M. Finnegan
16 Los Alamos, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VANZI, Judge.
1 {1} Petitioner appeals from the district court’s dismissal of his petition concerning
2 his parents’ estates. We issued a notice of proposed disposition proposing to affirm,
3 and Petitioner has responded with a memorandum in opposition. We have carefully
4 considered the arguments raised in that memorandum, but continue to believe that
5 affirmance is warranted in this case. Therefore, for the reasons set out below and in
6 our notice of proposed summary disposition, we affirm.
7 {2} In our notice we pointed out that evidence was presented to the district court
8 indicating that the estates of Petitioner’s parents had no assets to distribute, and that
9 even if they did, Petitioner was not entitled to any assets as he had been disinherited
10 in the parents’ wills. We also pointed to evidence presented by Respondent, the trustee
11 for parents’ trusts, showing that Respondent had no knowledge of any property
12 belonging to Petitioner that was being held by the parents on behalf of Petitioner. In
13 response, Petitioner makes several arguments, none of which is supported by legal
14 authority. For that reason alone, we would be entitled to refuse to consider those
15 arguments. ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶
16 10, 125 N.M. 244, 959 P.2d 969 (holding that this court does not consider arguments
17 not supported by citation to authority). In addition, the arguments lack merit, as we
18 briefly discuss below.
19 {3} Petitioner contends that Respondent disposed of personal property belonging
20 to his parents’ estates and that her statement that she did not know of any property
2
1 being held for Petitioner is a “mere assertion.” [MIO 2] As to the first contention,
2 Petitioner submitted no evidence supporting his claim, and without such evidence we
3 cannot credit the claim on appeal. See, e.g., State v. Pacheco, 2007-NMSC-009, ¶ 27,
4 141 N.M. 340, 155 P.3d 745 (declining to order a new trial on the basis of the
5 defendant’s mere assertion, without supporting evidence, that the interpreter acted
6 improperly). As to the second, Respondent’s statement about Petitioner’s property was
7 not a “mere assertion”—as we discussed in our notice, the statement was made in a
8 verified (meaning sworn) response filed by Respondent, and is therefore the
9 equivalent of a sworn affidavit. See Rekart v. Safeway Stores, Inc., 1970-NMCA-020,
10 ¶ 18, 81 N.M. 491, 468 P.2d 892 (stating that a verified complaint is in effect an
11 affidavit). In turn, an affidavit may properly be the basis for a grant of summary
12 judgment. Rule 1-056(C) NMRA. We therefore reject Petitioner’s contentions.
13 {4} Petitioner next raises certain questions, without providing any answers or even
14 discussion. For example, he asks whether an executor should have been appointed for
15 his parents’ estates and whether there is a statute that allows him to be disinherited
16 even though he was adopted. [MIO 3] It is not this Court’s duty to search for authority
17 to answer Petitioner’s questions, and we decline to do so. See Elane Photography,
18 LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (pointing out that the appellate
19 courts will not perform parties’ work for them by addressing unclear arguments or
20 arguments that are not supported by cited authority).
3
1 {5} Finally, Petitioner complains that the district court, and now this Court, have
2 accepted Respondent’s assertions as fact while rejecting his assertions. He adds that
3 he believes it is extremely unlikely that his parents did not retain some items of
4 property, such as heirlooms. The reason Petitioner’s assertions have been rejected,
5 while Respondent’s have not, is simple—Petitioner’s assertions are unsworn
6 statements made in pleadings, while Respondent’s were made in a submission that,
7 as we discussed above, is equivalent to an affidavit. Unsworn statements and
8 assertions made in a brief or other pleading are not sufficient to create an issue of fact
9 requiring further proceedings. V.P. Clarence Co. v. Colgate, 1993-NMSC-022, ¶ 2,
10 115 N.M. 471, 853 P.2d 722; Martin v. Bd. of Educ., 1968-NMSC-178, ¶ 8, 79 N.M.
11 636, 447 P.2d 516. On the other hand, as we discussed above, factual assertions made
12 in an affidavit or in the equivalent of an affidavit are properly considered by the
13 district court. For this reason, the district court did not err in finding against Petitioner
14 and dismissing his petition.
15 {6} Based on the foregoing, we affirm the district court’s decision.
16 {7} IT IS SO ORDERED.
17 __________________________________
18 LINDA M. VANZI, Judge
19 WE CONCUR:
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1 _________________________________
2 TIMOTHY L. GARCIA, Judge
3 _________________________________
4 M. MONICA ZAMORA, Judge
5