Rienhardt v. Kelly

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 7 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

WILLIAM ART RIENHARDT,

Plaintiff-Appellee,

v.
Nos. 96-2161 & 97-2143
HILDA KELLY and TOM KELLY,

Defendants-Appellants,

and

MARVIN GARD and DON KLEIN,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-94-1438-LH)

George Holdt Garver of G. Holdt Garver, Chartered, Albuquerque, New Mexico,
for Defendants-Appellants in No. 96-2161.

Hilda and Tom Kelly, Magdelena, New Mexico, pro se in No. 97-2143.

Thomas L. Popejoy (Brian E. Jennings, with him on the brief) of Popejoy Law
Offices, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges.
HENRY , Circuit Judge.

William Rienhardt, a resident of California, sued Tom and Hilda Kelly,

residents of New Mexico, in diversity in federal district court for tortious

interference with inheritance, a tort under New Mexico common law. Mr.

Rienhardt won a jury verdict against the Kellys for $200,000 and was awarded

costs against them in the amount of $9,981.06. The jury found that the other two

named defendants, Marvin Gard and Don Klein, were not liable, and Mr.

Rienhardt did not appeal that verdict.

In appeal 96-2161, the Kellys petition this court for relief from the jury

verdict on several grounds: (1) that under the probate exception the district court

lacked subject matter jurisdiction to hear the tort claim; (2) that the district court

should have abstained from hearing the tort claim; and (3) that the district court

erred in excluding testimony relating to the Kellys’ character for unduly

influencing others. In appeal 97-2143, submitted on the briefs, the Kellys

challenge the costs awarded for deposition transcripts and copies of bank and

telephone records. Because the probate exception precludes federal jurisdiction

over part of Mr. Rienhardt’s suit, and because the jury’s verdict is not severable

into the issues over which the court did have jurisdiction and those over which it

did not, we set aside the verdict. Accordingly, we vacate and remand the decision

of the district court for further proceedings. The abstention doctrines do not bar

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further proceedings on the issues over which the district court may exercise

jurisdiction. The challenge to the exclusion of character evidence is mooted by

the resolution of the first issue – however, we do note that our initial review of

the district court’s decision does not reveal an abuse of discretion through

exclusion of this evidence. Additionally, we set aside the cost award.

I. BACKGROUND

A. Factual Setting

Mr. Rienhardt is the son of William Arch Rienhardt (“Arch”) and Fay

Rienhardt (“Fay”). Ms. Kelly is the niece of Arch and Fay, and Mr. Kelly is Ms.

Kelly’s husband. During the last few years of his parents’ lives, Mr. Rienhardt

resided in California, while the Kellys lived in New Mexico close to Arch and

Fay, with whom they had frequent contact. Mr. Rienhardt believes that the Kellys

exercised undue influence over the disposition of his parents’ assets.

Arch and Fay executed several wills giving Mr. Rienhardt up to $100,000

of their estate, but they never drafted a testamentary document which would have

given Mr. Rienhardt their main asset, their ranch, worth approximately $425,000.

Fay died before Arch, but her last will was reciprocal with his and would have

left $10,000 to Mr. Rienhardt upon Arch’s death. However, before Arch died he

executed trust documents that superseded the $10,000 testamentary gift and left

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only his oil and gas rights to Mr. Rienhardt. Those trust documents did not

dispose of Arch and Fay’s ranch because, on the same day Arch signed the trust

documents, Arch and the Kellys entered into a lease/option agreement on the

ranch. The lease/option agreement allowed the Kellys to purchase the $425,000

ranch for one dollar upon Arch’s death. Inconsistently, at the same time he

executed the lease/option contract, Arch deeded the ranch to the Kellys, and the

Kellys recorded the deed before Arch died and without paying the dollar to

exercise their option.

B. The Lawsuits

Asserting several different causes of action in several different legal fora,

Mr. Rienhardt is challenging his parents’ last testamentary acts and the inter vivos

ranch transfer. First, he is contesting the probate of Fay’s will, see Socorro

County Dist. Ct. No. PB-91-04, and Arch’s testamentary documents, see Socorro

County Dist. Ct. No. PB-93-02, in New Mexico probate actions. Second, he is

suing in New Mexico state court to set aside the lease/option agreement and deed,

both of which purport to give the ranch to the Kellys. See Socorro County Dist.

Ct. No. CV-93-101; Rienhardt v. Kelly , 917 P.2d 963 (N.M. Ct. App. 1996). The

state court dismissed him as an excessive plaintiff from the suit challenging the

lease/option agreement and deed, and he then filed in federal court the instant

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diversity suit under the New Mexico common law tort of intentional interference

with inheritance. Although the New Mexico Court of Appeals readmitted him to

the state suit challenging the lease/option agreement and deed, see Rienhardt , 917

P.2d at 967, he followed the tort suit in federal district court to its conclusion: a

jury verdict in his favor.

In his tortious interference with inheritance suit in federal court, Mr.

Rienhardt sued the Kellys directly, alleging

that beginning in 1988 and continuing through Arch’s death in 1992,
defendants Hilda and Tom Kelly, . . . with the assistance of
defendants Don Klein and Marvin Gard, intentionally took advantage
of decedents’ vulnerability and established confidential relationships
with Arch and Fay, thereafter taking control of their lives, destroying
Art’s relationship with them, causing them to replace wills favoring
him and not to make wills leaving him the ranch, and unduly
profiting by procuring the transfer of the family ranch and other
assets to themselves for little or no consideration.

App. at 24 (emphasis added). He asserted damages to his expectancy of

inheritance in Arch and Fay’s estate of over $400,000. The jury agreed that the

Kellys tortiously interfered with Mr. Rienhardt’s inheritance, but only in the

amount of $200,000. The record does not reveal how the jury derived this sum.

C. The Challenged District Court Rulings

Before the commencement of the trial in federal court, the district judge

heard from the parties regarding the pendency of the state court proceedings but

5
declined to dismiss or abstain from hearing Mr. Rienhardt’s suit pending the

outcome of those cases. See Aplts’ App. in No. 96-2161 at A-62 to A-67. At

trial, the Kellys attempted to offer testimony that, they claim, showed their

character not to “have a disposition to exert undue influence.” See id. at A-111.

The district court ultimately refused to admit this testimony, concluding that the

Federal Rules of Evidence mandated the exclusion of character testimony offered

in civil cases to prove that a party acted in conformity with that character trait.

See id. at A-116. After trial, Mr. Rienhardt moved for costs associated with

prosecuting his case. The clerk of court denied $893.10 of Mr. Rienhardt’s

litigation costs but ordered the Kellys to pay the remainder, totaling $9,088.66.

See Rec. in No. 97-2143 vol. I, doc. 93. The Kellys applied to the district court

for review of the clerk’s order. See id. at doc. 94. The district court vacated the

clerk’s order and awarded Mr. Rienhardt $9,981.16, his full costs request. See id.

at doc. 95. The Kellys appeal these rulings.

II. PROBATE EXCEPTION

A. Standard of Review

Because the probate exception to jurisdiction deprives a federal court of

6
subject matter jurisdiction, see Markham v. Allen , 326 U.S. 490, 494 (1946), we

review a determination that the probate exception is not applicable under the same

standard we apply to other reviews of subject matter jurisdiction: de novo, see

Beren v. Ropfogel , 24 F.3d 1226, 1228 (10th Cir. 1994).

B. Scope of the Probate Exception

“[A] federal court has no jurisdiction to probate a will or administer an

estate.” Markham , 326 U.S. at 494. Nonetheless, federal courts do “have

jurisdiction to entertain suits in favor of . . . heirs and other claimants against a

decedent’s estate to establish their claims so long as the federal court does not

interfere with the probate proceedings or assume general jurisdiction of the

probate or control of the property in the custody of the state court.” Markham ,

326 U.S. at 494 (quotation marks omitted). Because our jurisdiction is thus

limited by the scope of the probate proceedings, federal jurisdiction over probate

matters depends on state law. See McKibben v. Chubb , 840 F.2d 1525, 1529

(10th Cir. 1988).

The standard for determining whether federal jurisdiction may be
exercised is whether under state law the dispute would be cognizable
only by the probate court . If so, the parties will be relegated to that
court ; but where the suit merely seeks to enforce a claim inter partes ,
enforceable in a state court of general jurisdiction, federal diversity
jurisdiction will be assumed.

McKibben , 840 F.2d at 1529 (emphasis added).

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C. Applying the Probate Exception

Our Circuit has twice before explored the relationship between the tort at

issue here–intentional interference with inheritance–and the probate exception.

See id. at 1525; Beren , 24 F.3d at 1226. The McKibben opinion is particularly

helpful to the instant issue. The question there presented was whether the probate

exception prevented federal jurisdiction over two tortious interference with

inheritance claims. The first claim challenged property transfers under a will, and

the second challenged inter vivos property transfers. As to the will transfers, we

affirmed the district court’s refusal to accept jurisdiction because a claim of

undue influence in the execution of a will is ancillary to a will challenge and

belongs in state probate court. See McKibben , 840 F.2d at 1530. Although the

probate court had already denied his will contest, had the plaintiff succeeded in

the state proceedings “‘he could have obtained [in the probate court] all the relief

he could receive as damages in [his tort] case [in federal court].’” Id. (quoting

Maxwell v. Southwest Nat’l Bank , 593 F. Supp. 250 (D. Kan. 1984)). In contrast,

we accepted federal jurisdiction over the challenged inter vivos transfers of the

decedent’s property because (1) a will contest was not an adequate remedy for

property that was transferred before the testator died and thus was not part of the

testator’s estate and (2) Kansas law gave courts of general jurisdiction power to

hear actions to bring property into an estate. See id. at 1531.

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 Mr. Reinhardt’s federal suit may similarly be separated into distinct claims.

Although he pled a single claim for tortious interference with inheritance, his

claim ultimately rested upon three allegations of undue influence on the part of

Hilda and Tom Kelly: (1) that the 1990 wills and the 1992 testamentary

agreement, which replaced the 1987 wills favoring plaintiff, were the product of

undue influence on the part of the Kellys (“[Mr. and Mrs. Kelly] causing [Arch

and Fay] to replace wills favoring him ”); (2) that the Kellys exerted undue

influence on plaintiff’s parents to prevent them from executing new wills more

favorable to plaintiff (“[Mr. and Mrs. Kelly] causing [Arch and Fay] . . . not to

make wills leaving him the ranch”); and (3) that the Kellys exerted undue

influence on plaintiff’s father to purchase the ranch (“unduly profiting by

procuring the transfer of the family ranch and other assets to themselves for little

or no consideration”).

1. The First Allegation. – Alleging tortious interference with an expected

inheritance by “[Mr. and Mrs. Kelly] causing [Arch and Fay] to replace wills

favoring him ,” Mr. Rienhardt has alleged that the wills and testamentary

agreement subject to ongoing probate proceedings are the result of undue

influence. The elements of the tort are “(1) the existence of an expectancy; (2) a

reasonable certainty that the expectancy would have been realized, but for the

interference; (3) intentional interference with that expectancy; (4) tortious

9
conduct involved with interference, such as fraud, duress, or undue influence ; and

(5) damages.” Doughty v. Morris , 871 P.2d 380, 384 (N.M. Ct. App. 1994)

(emphasis added). On the first allegation, the expectancy stems from the 1987

will favoring Mr. Rienhardt, the alleged interference is the replacement of that

will with the 1990 wills and 1992 testamentary agreement, and the tortious

conduct required for element four amounts to an allegation that those 1990 wills

and the 1992 testamentary agreement are the result of such tortious conduct.

Necessary to resolution of Mr. Rienhardt’s first allegation is a resolution of the

very issue presented in probate proceedings, whether the 1990 and 1992 wills and

testamentary agreement are the result of undue influence.

Applying McKibben and Beren , we hold that the first allegation is ancillary

to the probate proceedings and thus jurisdiction by the federal district court is

precluded by the probate exception. It can and should be challenged only in the

ongoing state probate proceedings. See , e.g. , In re Estate of Kerr , 918 P.2d 1354,

1355 (N.M. App. 1996) (allowing undue influence issue to be raised in probate

proceedings); In re Estate of Strozzi , 903 P.2d 852, 853 (N.M. App. 1995) (same);

Lucero v. Lucero , 884 P.2d 527, 532 (N.M. App. 1994) (contestants of will have

burden of establishing undue influence); N.M. Stat. Ann. § 45-3-407 (1978)

(same); see also Dragan v. Miller , 679 F.2d 712, 717 (7th Cir. 1982) (“where . . .

the interference consists of having procured a will that disinherits the plaintiff, it

10
appears that the tort action must be brought as an ancillary proceeding . . . to the

original [probate] proceeding”). Indeed, it appears plaintiff is currently

attempting to challenge his mother’s 1990 will and his father’s 1992 testamentary

agreement on those precise grounds in the state probate proceedings. See Socorro

County Dist. Ct. No. PB-91-04, and Socorro County Dist. Ct. No. PB-93-02.

In Doughty v. Morris , New Mexico recognized the tort of intentional

interference with inheritance. See 871 P.2d at 384. Mr. Rienhardt has pled his

case under the rubric of this tort. However, the Doughty case recognized the tort

with regard to an inter vivos transfer of property that would have been subject of

the will. See id. at 382. Mr. Rienhardt, via his first allegation, would have us

recognize the tort with regard to interference with a will . To do so would be to

expand the tort in a manner inconsistent with the rationale for recognizing the tort

in the first place. The Doughty case recognized the tort where a brother used

undue influence to cause his mother to transfer him most of her property inter

vivos. The mother’s will specified that her estate should be divided equally

between the brother and the sister, but due to the inter vivos transfers, her estate

was negligible at the time of her death. See id. Thus, the brother effectively

circumvented the intent of the will without interfering with the will. No

challenge to this behavior could be brought in probate proceedings, because the

will remained valid and executable according to its language. Thus, to remedy

11
this seemingly remedy-less situation, the New Mexico court recognized the tort.

Mr. Rienhardt’s first allegation, that the 1990 wills and the 1992

testamentary agreement, which replaced the 1987 wills favoring plaintiff, were

the product of undue influence on the part of the Kellys, is precisely the type of

claim that is presentable in probate proceedings. See , e.g. , In re Estate of Kerr ,

918 P.2d 1354 (N.M. App. 1996). As such, we do not believe it is the type of

claim the New Mexico courts meant to recognize at law. Where the issue is

properly within the jurisdiction of the probate court, the tort may not be used to

circumvent the jurisdiction of that court.

The first allegation is within the probate court’s exclusive jurisdiction, and

therefore, federal courts are precluded from hearing the claim. See McKibben ,

840 F.2d at 1529.

2. The Second and Third Allegations. – Mr. Rienhardt’s second and third

allegations, however, are more akin to the allegation in the Doughty case. On

these charges, Mr. Rienhardt seeks damages from the Kellys for their alleged

wrongs. This suit, rather than being cognizable only by a probate court, is

enforceable in a state court of general jurisdiction. To paraphrase Markham , 326

U.S. at 494, in hearing the tort claim based on these two allegations, the federal

district court did not interfere with the probate proceedings, assume general

jurisdiction of the probate, or take control of the property in the custody of the

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state court. Therefore, the probate exception does not apply to deprive federal

diversity jurisdiction over these allegations.

3. The Non-Severability of the Jury Verdict. – We do not know on what

ground the jury reached its verdict. The jury may have done so at least in part on

a cause of action over which the district court had no jurisdiction: that is, the tort

claim based on the first allegation. Therefore, the verdict must be vacated and the

latter two allegations remanded for retrial.

III. COLORADO RIVER DOCTRINE

The parties’ abstention arguments to this court focused generally on the

Younger Abstention Doctrine, see Younger v. Harris , 401 U.S. 37 (1971), but we

conclude that the Colorado River Doctrine, see Colorado River Water

Conservation Dist. v. United States , 424 U.S. 800 (1976), is the controlling law in

this case. We further conclude that the Colorado River Doctrine does not

mandate dismissal of Mr. Rienhardt’s suit.

A. The Younger Abstention Doctrine Is Not Applicable

Younger abstention dictates that federal courts not interfere with state court

proceedings by granting equitable relief–such as injunctions of important state

proceedings or declaratory judgments regarding constitutional issues in those

13
proceedings–when such relief could adequately be sought before the state court.

See Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 716 (1996); Pennzoil Co. v.

Texaco , 481 U.S. 1, 10 (1987) (“The first ground for the Younger decision was

‘the basic doctrine of equity jurisprudence that courts of equity should not act,

and particularly should not act to restrain a criminal prosecution, when the

moving party has an adequate remedy at law.’”) (quoting Younger , 401 U.S. at

43); Colorado River , 424 U.S. at 816-17; Younger , 401 U.S. at 43-44, 49; see

generally Erwin Chemerinsky, Federal Jurisdiction §§ 13.1-.4 (2d ed. 1994)

(providing a critical analysis of the history, basis, and rationale of the Younger

Doctrine). The district court was not asked to give, and did not provide, any

equitable relief that interfered with the related state proceedings. Therefore,

Younger is not applicable here.

B. The Colorado River Doctrine Is Applicable

The Colorado River Doctrine controls when deciding, as we must here,

whether a district court should have stayed or dismissed a federal suit pending the

resolution of a parallel state court proceeding. See Colorado River , 424 U.S. at

817-18; Quackenbush , 517 U.S. at 717 (citing Colorado River , 424 U.S. at 800,

for the proposition “that federal courts have the power to refrain from hearing . . .

cases which are duplicative of a pending state proceeding”). In other words, the

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Colorado River Doctrine was adopted to avoid duplicative litigation. See

generally Chemerinsky, supra , §§ 14.1-.4 (providing a critical analysis of the

history, basis, and rationale of the Colorado River Doctrine).

C. Standard of Review

We review district court decisions regarding deferral under the Colorado

River Doctrine for abuse of discretion. See Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp. , 460 U.S. 1, 19 (1983).

D. Scope of the Colorado River Doctrine

In Colorado River , the Court first announced that federal courts may not

use the abstention doctrines to refuse to exercise jurisdiction over a suit for non-

equitable relief that duplicated ongoing state litigation. See Colorado River , 424

U.S. at 813, 816-818. However, the Court then concluded that judicial economy

concerns may justify deferral of a federal suit when pending state litigation will

resolve the issues presented in the federal case. See id. at 817-20. The

justification for deferral in such an instance is not to vindicate “Our Federalism,”

as the abstention doctrines do, Younger , 401 U.S. at 44, but rather to preserve

judicial resources:

Although this case falls within none of the abstention categories,
there are principles unrelated to considerations of proper

15
 constitutional adjudication and regard for federal-state relations
which govern in situations involving the contemporaneous exercise
of concurrent jurisdictions, either by federal courts or by state and
federal courts. These principles rest on considerations of “(w)ise
judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.”

Colorado River , 424 U.S. at 817 (quoting Kerotest Mfg. Co. v. C-O-Two Fire

Equip. Co. , 342 U.S. 180, 183 (1952)).

Because the Colorado River Doctrine springs from the desire for judicial

economy, rather than from constitutional concerns about federal-state comity, and

because the Colorado River Doctrine is an exception to our jurisdictional mandate

from Congress, the Doctrine may only be used when “the clearest of justifications

. . . warrant[s] dismissal.” Id. at 819. Thus, while Colorado River ’s judicial

economy goals allow a federal court to avoid the “virtually unflagging obligation .

. . to exercise the jurisdiction given [it],” id. at 818, the appropriate circumstances

for deferral under the Colorado River Doctrine are “considerably more limited

than the circumstances appropriate for abstention” and must be “exceptional.” Id.

at 817-18; but see Richmond, Fredericksburg & Potomac R.R. v. Forst , 4 F.3d

244, 253 n.20 (4th Cir. 1993) (“Although the Supreme Court made clear that the

Colorado River Doctrine was technically not a form of abstention, the distinction

has been lost, and we see no reason to revive it.”) (citation omitted);

Chemerinsky, supra , §§ 14.2-.4 (treating Colorado River and its progeny as

abstention cases).

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 Hence “our task in cases such as this is not to find some substantial reason

for the exercise of federal jurisdiction by the district court; rather, the task is to

ascertain whether there exist exceptional circumstances , the clearest of

justifications , that can suffice under Colorado River to justify the surrender of the

jurisdiction.” Moses H. Cone , 460 U.S. at 25-26 (internal quotation marks

omitted) (emphasis added). Despite the temptation for federal courts to use the

Doctrine as a means of stemming the rising tide of litigation, suits in federal court

are not easily swept away by Colorado River .

E. Applying the Colorado River Doctrine

Of Mr. Rienhardt’s two claims which withstood analysis under the probate

exception – (a) that the Kellys exerted undue influence on plaintiff’s parents to

prevent them from executing new wills more favorable to plaintiff, and (b) that

the Kellys exerted undue influence on plaintiff’s father to purchase the ranch –

the latter is in some manner at issue in a similar state court proceeding. See

Socorro County Dist. Ct. No. CV-93-101; Rienhardt v. Kelly , 917 P.2d 963 (N.M.

Ct. App. 1996). However, because the four factors enumerated by the Court in

Colorado River do not strongly counsel against retaining jurisdiction, we cannot

say the district court abused its discretion in refusing to abstain from hearing the

case. Those four factors are: (1) simultaneous jurisdiction over a single res; (2)

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the relative convenience of the fora; (3) order in which proceedings were

initiated; (4) the need to avoid piecemeal litigation. See Colorado River , 424

U.S. at 819.

The two actions do not cause the two courts to assume simultaneous

jurisdiction over a single res, because there is no res at issue in the federal action.

Rather the federal action is one for damages resulting from tortious conduct.

There is no contention that the federal forum was any less convenient to the

parties than the state forum. “The . . . order in which jurisdiction was obtained

by the concurrent forums – far from supporting the stay, actually counsel[s]

against it.” Moses H. Cone , 460 U.S. at 19. Although the state action was

initiated prior to the federal action, Mr. Rienhardt was dismissed from that action

as an excessive plaintiff. While he was later readmitted by the New Mexico

Court of Appeals, see Rienhardt , 917 P.2d at 967, the federal suit was initiated in

the interim. Thus, arguably the federal suit was initiated prior to Mr. Rienhardt’s

instant involvement in the state suit. Finally, the avoidance of piecemeal

litigation may counsel against hearing the case in federal court, but this factor

alone might be too insignificant in the district court’s discretion to be considered

the sort of “exceptional circumstance” in which a federal court is justified in

refusing to exercise its jurisdiction.

The district court did not abuse its discretion in refusing to dismiss or grant

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a stay, and retains jurisdiction over the remaining two allegations to conduct a

new trial on remand.

IV. CHARACTER EVIDENCE

Having set aside the jury verdict and reversed and remanded the decision of

the district court, the issue of whether the exclusion character evidence offered by

the Kellys constituted and abuse of discretion is moot.

V. COSTS

Having set aside the jury verdict and reversed and remanded for a new trial

on the issues over which the district court may exercise jurisdiction, we also set

aside the award of costs. We therefore need not rule on the merits of this appeal.

VI. CONCLUSION

Mr. Rienhardt effectively brought three causes of action under a single

heading. The first of these causes of action is actually a charge that the 1990

wills and the 1992 testamentary agreement, that replaced the 1987 will favoring

the plaintiff, were the product of undue influence. This cause of action is within

the exclusive jurisdiction of the probate court and therefore is excluded from

federal diversity jurisdiction by the probate exception. Because the jury verdict

19
does not distinguish between the three causes of action we set aside the verdict

and reverse and remand to the district court for a new trial on the latter two

causes of action. As the verdict has been set aside, so too is the award of costs.

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