In the Matter of the Estate of Joe D. Whittenburg, Jr.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 IN THE MATTER OF THE ESTATE 3 OF JOE D. WHITTENBURG, JR., 4 Deceased. 5 GINGER BOONE, 6 Personal Representative-Appellant, 7 and NO. 35,590 8 WANDA WHITTENBURG, 9 Intervenor-Appellee. 10 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 11 Donna J. Mowrer, District Judge 12 Steven K. Sanders & Associates, L.L.C. 13 Steven K. Sanders 14 Albuquerque, NM 15 for Appellant 16 Hinkle Shanor LLP 17 Stephen S. Shanor 18 Albuquerque, NM 19 for Appellee 20 MEMORANDUM OPINION 1 VIGIL, Chief Judge. 2 {1} Appellant has challenged the dismissal of the underlying probate proceedings. 3 We previously issued a notice of proposed summary disposition in which we proposed 4 to uphold the district court’s disposition. Memoranda in support and in opposition 5 have been filed. After due consideration, we affirm. 6 {2} The pertinent background has previously been set forth. We will avoid undue 7 reiteration here, focusing instead on the content of the memorandum in opposition. 8 {3} Appellant continues to argue that the district court erred in dismissing in 9 deference to the previously-filed Texas proceedings. We understand her to assert that 10 our proposed reliance upon principles of judicial deference, as set forth in FastBucks 11 of Roswell, New Mexico, LLC v. King, 2013-NMCA-008, 294 P.3d 1287, is improper 12 for two reasons: first, because she is not a party to the Texas litigation, and second, 13 because the equities should favor her choice of forum. [MIO 1-8] For the reasons that 14 follow, we remain unpersuaded. 15 {4} We acknowledge that Appellant may not be a party to the Texas proceedings 16 at this juncture. However, as the district court observed, those proceedings are 17 ongoing, and Appellant is at liberty to intervene in order to present her claims. [RP 18 365] Appellant does not dispute this. [MIO 1-8] Accordingly, Appellant “has the 19 opportunity to raise the same arguments” in that forum. Id. ¶ 11. We further note that 2 1 the district court took the additional precautionary step of dismissing without 2 prejudice, to ensure that Appellant may further pursue her claims here in the unlikely 3 event that she should be precluded from so doing in Texas. [RP 368] Under the 4 circumstances, the fact that Appellant has yet to take steps to participate in the Texas 5 proceedings does not alter our assessment. 6 {5} Appellant further contends that her status as the first-appointed personal 7 representative, and her alleged status as the decedent’s common-law wife, should 8 entitle her to pursue her claims in New Mexico, as her forum of choice. [MIO 3-5] 9 Relatedly, she argues that a variety of factors associated with the doctrine of forum 10 non conveniens weigh in her favor. [MIO 5-8] However, as we previously observed, 11 [CN 5] Appellant has cited no authority to suggest that her status should preclude 12 application of the broad principles of comity and deference upon which the district 13 court relied. The doctrine of forum non conveniens, which was neither invoked nor 14 applied below, does not require a different result. 15 {6} Accordingly, for the reasons stated above and in the notice of proposed 16 summary disposition, we conclude that the district court’s election to defer to the 17 Texas proceedings was well within its discretion. We therefore affirm. 18 19 20 IT IS SO ORDERED. _________________________________ MICHAEL E. VIGIL, Chief Judge 3 1 WE CONCUR: 2 ____________________________ 3 M. MONICA ZAMORA, Judge 4 ____________________________ 5 J. MILES HANISEE, Judge 4
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