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Waller v. Waller

United States Court of Appeals, Tenth Circuit

July 13, 2016

BYRON DEAN WALLER, Plaintiff - Appellant,
v.
MICHAEL JAMES WALLER; PAULA WALLER, Defendants-Appellees.

         (D.C. No. 1:14-CV-00921-LH-KBM) (D. N.M.)

          Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.

          ORDER AND JUDGMENT [*]

          Mary Beck Briscoe Circuit Judge

         This is a dispute between two brothers over their deceased father's estate and filed as a diversity action. Plaintiff Byron Dean Waller, a pro se[1] Florida inmate, claims his brother, Michael James Waller, and sister-in-law, Paula Waller, who are residents of New Mexico, tortiously interfered with his inheritance expectancy by exerting undue influence over their father, who executed a will in Missouri, but later moved to New Mexico where he died. The district court granted summary judgment to Michael and Paula, ruling that the suit was barred under New Mexico's three-year statute of limitations.[2] We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court's judgment.

         I

         Byron, a Florida resident, is presently serving a twenty-year sentence in a Florida state prison. His brother, Michael, and sister-in-law, Paula, live in New Mexico. Byron and Michael's father, James Byron Waller, was a resident of Missouri and was hospitalized in March 2006 after suffering a stroke. While in the hospital, James and Michael met with a lawyer, who prepared a last will and beneficiary deed that conveyed all of James' estate to Michael. At the time, James had difficulty speaking, but he was lucid. He executed the will and deed on April 10, 2006, and was discharged from the hospital on April 18, 2006. James soon moved to New Mexico, and approximately a year later, on June 15, 2007, he passed away.

         There is some uncertainty concerning when Byron first learned that he would not receive an estate distribution. According to an affidavit that Michael submitted in support of summary judgment, he told Byron weeks after their father's death that Byron would receive only $5, 000 from a life insurance policy, to which Byron replied, "I know." R. at 229. Byron, however, alleged that his father had previously executed a will that equally divided the estate between him and his brother. Byron claimed he had no knowledge of the last will and deed until early 2010, when, during an argument, Michael told him their father had executed the will and deed that transferred the entire estate to him. Michael denies that a previous will ever existed, but he does not dispute that Byron received a copy of the last will and beneficiary deed on or about January 27, 2011.

         Following these events, Byron filed at least three other actions claiming that Michael and Paula tortiously interfered with his inheritance expectancy. Two of those actions were initiated in the Southern District of Florida and were dismissed for lack of jurisdiction. See Waller v. James, No. 11-CV-22547 (S.D. Fla. Aug. 31, 2011) (court could not identify any jurisdictional basis); Waller v. Waller, No. 11-CV-23596 (S.D. Fla. Sept. 21, 2012) (dismissed for lack of personal jurisdiction). The third suit Byron filed in the District of New Mexico, though he voluntarily dismissed that case because he was sick and wished to resolve the dispute amicably. Waller v. Waller, No. 12-CV-1234 (D. N.M. Apr. 10, 2013). There was no such resolution, however, because on October 14, 2014, Byron initiated this suit by filing the same complaint he filed in No. 12-CV-1234, again alleging that Michael and Paula tortiously interfered with his inheritance expectancy.

         Michael and Paula answered the complaint and moved for summary judgment, arguing, among other things, that the suit was time-barred. Byron failed to respond, however, and after well over a month passed, Michael and Paula notified the court that briefing was complete. This prompted Byron to file a motion in opposition, seeking an extension of time to respond. Thereafter, he also moved for appointment of counsel and discovery pursuant to Fed.R.Civ.P. 54(d). The district court, in three separate orders, denied counsel, denied discovery and an extension, and granted Michael and Paula's motion for summary judgment. Byron subsequently appealed.

         II

         A. Summary Judgment

         1. Standard of Review

         "We review a district court's decision to grant summary judgment de novo, applying the same standard as the district court." Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1238-39 (10th Cir. 2015) (internal quotation marks omitted). Courts will grant summary judgment if "'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (quoting Fed.R.Civ.P. 56(a)). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Wright, 805 F.3d at 1239 (internal quotation marks omitted).

         Our summary judgment standard "provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "An issue is genuine if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is material if under the substantive law it is essential to the proper disposition of the claim." J.V. v. Albuquerque Public Schs., 813 F.3d 1289, 1295 (10th Cir. 2016) (citations and internal ...


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