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Hitchens v. Doll

United States District Court, D. New Mexico

January 25, 2017

NANCY DOLL, Defendant.


          STEPHAN M. VIDMAR United States Magistrate Judge Presiding

         THIS MATTER is before the Court on Defendant's Motion for Summary Judgment or, in the Alternative, Dismissal with Prejudice [Doc. 29], filed on October 28, 2016. Plaintiff responded on November 17, 2016. [Doc. 30]. Defendant replied on December 1, 2016. [Doc. 31]. The Court heard oral argument on January 23, 2017. [Doc. 35]. Having considered the briefing, oral argument, relevant law, and being fully advised in the premises, the Court will deny the motion and dismiss the counterclaim for revocation of inheritance for lack of jurisdiction.


         This is a sad case. Plaintiff and Defendant are sisters and the only children of Ms. Evelyn Doll, who passed away on March 11, 2014. The women spent their mother's final years fighting over their anticipated inheritances. They continue that fight today.

         Plaintiff alleges that the mother executed a Power of Attorney in favor of Defendant on July 19, 2011. [Doc. 4] at 2. Immediately (and perhaps even before), Defendant began liquidating the mother's assets, retitling her real property, and taking other steps to benefit herself. Id. at 4. Plaintiff alleges that their mother began having seizures, was diagnosed with dementia, and was hospitalized in November and December of 2012. Id. During this time, the mother revoked the Power of Attorney for Defendant and Dated:e for Plaintiff instead. Then, in January of 2013, the mother moved to California to be near Plaintiff. Id. at 5. In May of 2013, the mother executed an estate plan that designated Plaintiff as the beneficiary and “disinherited Defendant for her ‘fraudulent' actions.” Id. On May 16, 2013, the mother (with counsel) filed a lawsuit in federal court in California against Defendant and others, alleging that they had conspired to steal money, property, and assets from her. Id. (Plaintiff was not named as a party to that lawsuit.)

         In June of 2013, Defendant traveled to California and picked up the mother from an assisted living facility and transported her back to New Mexico. The mother then signed another Power of Attorney for Defendant, which Defendant used to continue to liquidate the mother's assets. Id. at 6. On November 19, 2013, the mother, Plaintiff, and Defendant entered into a Settlement Agreement to resolve the lawsuit (even though Plaintiff had not been named in it) and any disputes among them related to the lawsuit. The Settlement Agreement provided, in pertinent part, that the mother would immediately execute a “New Estate Plan” (consisting of a will alone or a will combined with a revocable trust) naming her two daughters (Plaintiff and Defendant) as her “primary beneficiaries in equal shares.” [Doc. 9] at 9. The Agreement further provided that “all current and future assets held by [the mother] shall be distributed through the New Estate Plan.” Id. Finally, the mother agreed not to revoke or amend the New Estate Plan unless she and both daughters agreed to the change in writing. Id.

         On the same day that the three signed the Settlement Agreement, the mother signed a will. As contemplated by the Settlement Agreement, the will named the sisters as the sole heirs taking in equal shares. Id. The will also contained a “No Contest Clause, ” which prohibited the heirs from contesting the will. It read:

If any person who is a legatee or devisee or beneficiary shall, directly or indirectly contest or dispute the probate of this Will, or maintain before any judicial body that this is not my Last Will and Testament or call into question before any tribunal the provisions of any legacy, devise, or provision herein, or claim to be a child or heir of mine and establish such claim in a court of competent jurisdiction, then I absolutely revoke the legacy, devise, or provision for such person and declare the same void and of no effect, and the remaining provisions hereof shall be carried into effect, disregarding those for such person, and the portions for such other legatees, devisees or beneficiaries shall be increased proportionately. To any other person, directly or indirectly contesting or otherwise questioning my Will or claiming to be an heir in the manner described in the preceding sentence, I bequeath the sum of One Dollar.

Id. at 17.

         The mother passed away on March 11, 2014, less than four months after she signed the Settlement Agreement and will. [Doc. 4] at 7. Defendant initiated probate proceedings in a New Mexico state court on June 9, 2014. See [Doc. 9] at 4; In re Evelyn C. Doll, case number D-202-PB-201400282. On or around August 22, 2014, Defendant “quitclaimed” a piece of real estate that had belonged to the mother to Plaintiff; it is unclear whether this transfer occurred as part of the probate proceedings or whether it was transferred outside probate. [Doc. 4] at 7; see [Doc. 31] at 2 (Defendant's reply, alleging that Defendant distributed the estate, which consisted of two pieces of real estate in Silver City, “signing the most valuable and profitable property over to Plaintiff”). In October of 2014, Plaintiff requested an accounting of the mother's assets, but Defendant did not provide the accounting. [Doc. 4] at 8.

         Plaintiff filed suit in this Court on June 14, 2016. [Doc. 1]. She amended her complaint on June 20, 2016. [Doc. 4]. The Amended Complaint alleges that Defendant had been taking advantage of the mother's “diminished mental and physical capacity” since 2011, in order to take control of assets and money to benefit herself, to the detriment of Plaintiff's anticipated inheritance. Id. at 9, ¶ 70. Plaintiff alleges that Defendant violated the Settlement Agreement by distributing the mother's assets outside the New Estate Plan (i.e., the will) in several ways. For example, she alleges that Defendant: transferred (or directed the mother to transfer) the mother's assets and/or changed the beneficiary designations, id. at 9, ¶ 73; unduly influenced the mother to make inter vivos transfers of property and assets, id. at 10, ¶ 76; filed transfer-on-death deeds for the mother's real property, id. at 12, ¶ 94; improperly handled money received from liquidation of stocks, including self-dealing of such monies, id. at 13, ¶ 95; lied to her about their mother's assets and properties and lied about how she was handling such assets and properties, id. at 14, ¶ 110; and transferred and liquidated stocks, assets, and properties outside the New Estate Plan, id. at 16, ¶ 124.

         Based on these and other facts, the Amended Complaint lists ten counts. However, three are requests for relief, rather than causes of action. See Id. at 8-11. The remaining seven counts are for: violation of the Uniform Power of Attorney Act and breach of fiduciary duties (Count IV); breach of contract, i.e., the Settlement Agreement (Count V); conversion (Count VI); fraud (Count VII); fraudulent misrepresentation (Count VIII); conspiracy to commit fraud (Count IX); and unjust enrichment (Count X). Id. at 11-17.

         Defendant answered on August 10, 2016. [Doc. 9]. She contests Plaintiff's assertion of diversity jurisdiction. Id. at 2. She argues that the Settlement Agreement precludes this Court's jurisdiction, and she asserts counterclaims to enforce the Settlement Agreement and to revoke Plaintiff's share of the estate. Id. at 3-6.

         Plaintiff answered the counterclaims on August 31, 2016. [Doc. 15]. She argues that the Settlement Agreement does not preclude this Court's jurisdiction. Id. at 6. Additionally, she argues that to the extent any of the counterclaims require the Court to enforce the mother's will or administer her estate, such counterclaims are barred by the probate ...

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