20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022)

IN THE SOUTHERN UTE TRIBAL COURT OF APPEALS

SOUTHERN UTE INDIAN RESERVATION

IGNACIO, COLORADO

Sally Velasques, Faith Gomez, Henry Taylor, Jr., and Henrietta Taylor, Appellants,

v.

Erwin Taylor, Appellee/Cross-Appellant.

NO.    17-PR-003 (June 7, 2022)

SYLLABUS*

Trial court granted appellee’s petition to reopen decedent’s estate and awarded him a share of the estate. Appellee alleged half-siblings committed fraud when they failed to disclose him as an heir. Appellants argued trial court did not have authority to award appellee a share and that statute of limitations barred appellee’s claim. Court of Appeals indicated trial court is a court of law and equity that has authority to revoke its own orders and reopen proceedings such as this probate matter. Trial court did not find sufficient evidence of fraud. Trial court ruled that appellee timely filed petition within the period provided for in the code and that discovery of the alleged fraud begins the accrual. Court of Appeals did not deem trial court’s findings as clearly erroneous. Trial court’s order and judgment affirmed.

Before:	Lisa L. Atkinson, Chief Judge; Eric Nielsen, Judge; Patricia L. Davis, Judge.
Appearances:	David Liberman, for Appellants; Josh W. Mack, for Appellee/Cross-Appellant.

OPINION

Nielsen, J.:

BACKGROUND

In 1989, Laddie Taylor (decedent), a member of the Southern Ute Indian Tribe, became disabled following a motorcycle accident. On December 17, 2016, he passed away. At the time of his death, he was living in an assisted living facility in Canon City, Colorado.

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 6

The decedent was unmarried and had no children. On July 9, 2007, he executed a Will. Under the terms of the Will, he left his entire estate to his niece, Loucille "Little Fawn" McCook excepting some small bequests to charities.

On January 10, 2017, Sunni Dez Waratza filed a Petition to Probate decedent’s estate. The Petition named Ms. Waratza, Henry Taylor, Jr., Sally Velasquez, Faith Gomez, Henrietta Taylor, and Valerie Taylor as the decedent’s siblings. Ms. Velasquez and Ms. Gomez share the same mother as the decedent. Mr. Henry Taylor, Jr., Ms. Taylor, and Ms. Waratza share the same father as the decedent. Erwin Taylor also shares the same father as the decedent. Although a sibling of the decedent, Ms. Waratza did not name him in her Petition.

The decedent’s obituary was published in the Durango Herald on December 21, 2016, and in the Southern Ute Drum on December 23, 2016. On January 20, 2017, and again on February 3, 2017, notice of the probate proceeding was published in the Southern Ute Drum.

A hearing was held February 13, 2017, and Ms. Waratza was appointed Personal Representative of the decedent’s estate under the terms of his Will. On February 24, 2017, Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., and Ms. Taylor moved to set aside the Will alleging the decedent was incompetent when he executed the Will. They also moved to appoint a new Personal Representative.

Before the court’s scheduled hearing on the motion to set aside the Will, there was a request for mediation. The court granted the request, and "[a]ll prospective heirs under the Will as well as intestate succession" were ordered to participate in mediation, Order, dated June 12, 2017.

A status conference held on August 21, 2017. At the hearing Ms. Waratza, and Ms. McCook informed the court that they and Ms. Velasquez, M. Gomez, Mr. Henry Taylor, Jr., and Ms. Taylor had reached a settlement. The parties agreed the Will should be set aside, and the estate assets under the court’s jurisdiction after payment of claims and other bequests be distributed equally among the parties. The court approved the Settlement Agreement and entered it as a court order and ordered the case closed upon final distribution according to the Agreement.

Mr. Erwin Taylor became aware of the decedent’s death in January 2017. He did not participate in any of the probate hearings or the mediation and was not named in the settlement agreement. Order, dated August 23, 2017.

On May 28, 2019, Mr. Erwin Taylor filed a petition to reopen the case under SUITC §9-1-103 alleging the parties to the settlement agreement committed fraud by failing to disclose him as

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 7

an heir given his status as decedent’s half-brother.¹ He claimed he was entitled to an intestate share of the estate under SUITC §9-1-115(5).²

Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., and Ms. Taylor moved to dismiss the petition. They argued that Mr. Erwin Taylor knew or should have known of his claim and heirship in February 2017, thus the two-year statute of limitations in SUITC § 1-2-110(2)³ was a bar his request to reopen the proceedings and his request for a share of the estate based on his fraud allegation.

The court denied the motion to dismiss reasoning that the more specific language of SUITC §9-1-103 (“Any proceeding must be commenced within two (2) years after discovery of the fraud”) applies to probate proceedings and therefore Mr. Erwin Taylor's petition alleging fraud would be timely if discovered (as opposed to should have discovered) the alleged fraud within the two years prior to filing his petition. Order, dated August 2, 2019.

The court then ordered the parties into mediation. Mediation failed and a trial on the petition was held on July 27 and 28, 2021. Following the trial, the court entered written findings of fact and conclusions of law.

Relevant to the issues on appeal, the court found:

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 8

The court concluded that:

Based on its findings and conclusions the tribal court granted Mr. Erwin Taylor’s petition to reopen the proceedings and ordered that Ms. McCook’s original distribution remain unchanged with the remainder of the estate’s assets shared equally between Mr. Erwin Taylor, Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., Ms. Taylor, and Ms. Waratza. The tribal court entered a judgment in favor of Mr. Erwin Taylor and against Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., Ms. Taylor, and Ms. Waratza, each, and severally, in the amount of $21,114.41.⁶

Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., Ms. Taylor, appeal.⁷ They assert the tribal court did not have jurisdiction to award Erwin Taylor a share of Mr. Taylor’s Estate, and alternatively that the statute of limitations bars Mr. Erwin Taylor’s claim.

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 9

Mr. Erwin Taylor cross-appeals. He claims the court erred in failing to find he proved his claim of fraudulent concealment. He asserts that the court should have entered a judgment against Ms. McCook as well so that Ms. Waratza, Ms. McCook, and the siblings will all share the proceeds of the estate equally.

STANDARD OF REVIEW

This Court will not disturb the trial court’s findings of fact unless the findings are clearly erroneous. SUTC 3-1-112(1)(b).⁸ Southern Ute Tribe v. Pena, 16 NICS App. 10, 12 (Southern Ute Tribal Ct.App. 2018); Southern Ute Tribe v. Henry, 15 NICS App. 35, 37 (Southern Ute Tribal Ct.App. 2017). Under this standard we defer to the trial court’s findings “because the trial court has the opportunity not only to hear all of the testimony and other evidence, but also to directly observe and determine the credibility of each witness.” Renee Cloud v. Estate of Neil Buck Cloud, 16 NICS App. 31, 32 (Southern Ute Tribal Ct.App. 2018) (quoting Hoopa Valley Tribal Council v. Duane Sherman, Sr., 7 NICS App. 9, 11 (Hoopa Valley Tribal Ct.App. 2005); see Baumgartner v. Tweedy, 143 Colo. 556, 354 P.2d 586 (1960) (same).

This Court reviews the trial court’s conclusions of law de novo. SUTC 3-1-112(2); Pena, 16 NICS App. at 12; Henry, 15 NICS App. at 37.

STATUTE OF LIMITATIONS

We first address the siblings’ argument that Mr. Erwin Taylor’s claim is barred because he did not timely file his petition alleging fraud.

Under SUTC §9-1-103, the code governing probates (probate code), “Any proceeding must be commenced within two (2) years after discovery of the fraud.” SUTC §1-2-110(2) is found in the code addressing general court rules and procedures. It provides that a ”Cause of action shall not accrue until the injury is or should be known.”

This Court’s primary duty in interpreting any provision of the Tribe’s Code is to discern and implement the intent of the Tribe’s legislative body. The language of the code provision itself provides the most reliable evidence of the intent of the Tribal Council. Henry, 15 NICS App. at 39 (citations omitted). In interpreting statutory language, it is presumed that the legislature body did not use language idly. See Carlson v. Ferris, 85 P.3d 504, 509 (Colo.2003). “In the absence of a

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clear expression of legislative intent to the contrary, a statute of limitations specifically addressing a particular class of cases will control over a more general or catch-all statute of limitations.” Persichini v. Brad Ragan, Inc., 735 P.2d 168, 172-73 (Colo. 1987).

Under the plain language of SUTC §9-1-103, any proceeding in a probate action based on an allegation of fraud must be commenced within two years of discovery of the fraud. “Discovery” means “the act, process, or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or recognized.” Webster’s Third New International Dictionary, 647 (2002); Black’s Law Dictionary, 478 (7th ed. 1999)(same).

The trial court found Mr. Erwin Taylor did not discover the alleged fraud until he saw the court’s file in this matter. That finding is supported by the evidence that Mr. Erwin Taylor was unaware that the decedent had any assets at the time of his death or that the assets were distributed to his siblings, until he viewed the file in April 2019. Mr. Erwin Taylor filed his petition in May 2019.

The siblings argue that the “should be known” language in SUTC §1-2-110(2), the general statute of limitations, governs the accrual of an action under the “discovery” language in SUTC §9-1-103. We do not agree.

Both SUTC §1-2-110(2) and SUTC §9-1-103 were adopted at the same time in the same resolution. Tribal Resolution No. 80-120. Not only is SUTC §9-1-103 specifically addressed to probate matters, as opposed to the more general SUTC §1-2-110(2), if the intent was to give those provisions the same meaning the Tribe’s legislative body would have presumably used the same language. See Lomelli v. Kelly, 12 NICS 1, 11 (Nooksack Tribal Ct.App. 2014) (presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions).

Even if Mr. Erwin Taylor should have known that decedent’s estate would be subject to a probate proceeding, under the plain language in SUTC §9-1-103 his claim accrued on his discovery of the alleged fraud. Because he did not have knowledge that he was a victim of the alleged fraud until he viewed the court files, and he filed his petition within two years of his discovery of the alleged fraud, the court correctly found his petition was not time barred.

INSUFFICENT EVIDENCE OF FRAUD

The decedent’s Will directed that his sister, Ms. Waratza, be appointed Personal Representative. Ms. Waratza filed a Petition to Probate on January 10, 2017. SUTC §9-1-111, requires that the petition list heirs, including brothers and sisters of the decedent. Ms. Waratza failed to name Mr. Erwin Taylor in the petition.

In his petition to reopen the estate, Mr. Erwin Taylor alleged Ms. Waratza along with the siblings, who each received an equal share of the estate, knew Mr. Erwin Taylor was decedent’s sibling and concealed that from the court, thus procuring their distribution of the assets of the estate

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 11

through fraud. Petition to Re-Open Estate at 3.⁹ The court, however, found that although Ms. Waratza breached her duty to disclose Mr. Erwin Taylor’s existence to the court pursuant to SUITC §9-1-111, neither she nor any of the siblings had the intent to defraud Erwin Taylor.¹⁰

In his cross appeal Mr. Erwin Taylor contends the trial court’s finding there was no intent to defraud is a legal conclusion unsupported by the facts. He asks us to rule that he met his burden of proving fraud by a preponderance of the evidence and enter a judgment against the siblings, Ms. Waratza, and Ms. McCook in an amount of one-seventh of the proceeds of the estate.

In general, however, the issue of a party’s intent is a question of fact. Nixon v. City & Cnty. of Denver, 343 P.3d 1051, 1058 (Colo. 2014); Wolther v. Schaarschmidt, 738 P.2d 25, 28 (Colo. App. 1986). The court’s finding that there was no intent to defraud is not clearly erroneous.

The decedent’s Will directed that his sister, Ms. Waratza, be appointed Personal Representative. Given that directive, Ms. Waratza filed a Petition to Probate. She conceded she failed to name Mr. Erwin Taylor in the Petition.

Ms. Waratza testified that she was unfamiliar with probate proceedings, did not know why siblings were required to be listed in the probate petition, and did not know that if the decedent had no will or the Will was not valid, his siblings would be entitled to an inheritance. Transcript (T.) July 27, 2021, at 29-30, 35. She did not list Mr. Erwin Taylor as a sibling because she did not consider him part of the family. She did not consider him part of the family because he was not raised with her and the other siblings. Id,. at 204-206. She testified she did not intentionally conceal Erwin Taylor’s name to evade the requirements of the probate code or conceal anything from him. Id., at 208, 221.

Ms. Velasquez testified she too was unfamiliar with probate code and did not assist Ms. Waratza in preparing the probate petition. She testified she did not intentionally conceal Mr. Erwin Taylor’s existence to the court. T. July 28, 2021, at 88.

Ms. Gomez testified that she was raised with the other siblings, Ms. Waratza, and the decedent. Mr. Erwin Taylor never came around when she was growing up and was not considered part of the family. T. July 28, 2021, at 119-120. She said that she and the others that entered the settlement agreement did not even think of him. Id., at 123, 126, 136. She too did not help Ms. Waratza prepare the probate petition and did not intentionally conceal Mr. Erwin Taylor’s existence from the court. Id., at 122, 126.

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 12

Mr. Henry Taylor, Jr., testified he was not familiar with the Tribe’s probate code and did not help Ms. Waratza prepare the probate petition. Id., at 148, 150. He did not intentionally conceal Erwin Taylor’s relationship to the decedent from the court to prevent him from him participating in the probate proceedings and did not believe Ms. Waratza did either. Id., at 152-153, 156-157.

Ms. Taylor also testified she did not assist Ms. Waratza in preparing the probate petition. Id., at 176. She too testified she did not intentionally conceal anything from the court. Id., at 179-180.

Moreover, notices of the probate proceedings were published in the Southern Ute Drum in January and February 2017. Although Mr. Erwin Taylor initially testified that he did not receive the Drum, he was impeached by his discovery response where he stated he always received it. Id., at 64-65. He then testified the paper was mailed to him in 2016-2017, but he only read the sports section. Id., at 72, 78. That notices of the probate proceeding were published corroborates the testimony of Ms. Waratza and the siblings that they did not intentionally conceal the probate proceeding from Mr. Erwin Taylor or his existence from the court, but instead they mistakenly did not consider him a member of the family and did not think of him because he was not raised with them and was not around them when they were growing up.

In essence, Mr. Erwin Taylor is asking us to reverse the trial court’s decision by substituting the trial court’s factual findings with our own based on the evidence in the record. That is not our role. Our role as an appellate court is to review the record and determine whether the trial court's findings are “clearly erroneous.” Pena, 16 NICS App. at 12. Even if we would have made different findings, we defer to the trial court’s findings if they are supported by the record. See Fern v. Torres, 6 NICS App. 200, 202 (Chehalis Tribal Ct. App. 2001) (appellate court should refrain from disturbing the trial court's findings even if, in the balance, it disagrees with them).¹¹

While Ms. Waratza had a duty under the probate code to list all the decedent’s siblings in the probate petition, and the siblings may have had a duty to reveal to the court he was the decedent’s sibling as part of their settlement agreement,¹² on this record the trial court’s finding that there was no fraudulent intent to conceal on the part of Ms. Waratza or the siblings is supported by the record and not clearly erroneous.

EQUITY

The siblings argue that because the trial court concluded there was no fraud, the court did not have the authority to reopen the probate and enter a judgement against them. We disagree.

The trial court recognized that tribal courts have a long history of sitting in equity. It exercised its equitable authority to grant Mr. Erwin Taylor’s petition to reopen the estate. Its

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 13

decision was based on its finding that Ms. Waratza breached her duty to disclose to the court that Mr. Erwin Taylor was decedent’s brother. That failure prevented the court from sending him notice of the probate proceedings, thereby preventing him from participating in the proceedings and ultimately a distribution from the estate’s assets. It concluded he was entitled to the same share of the estate as the siblings and entered a judgment against each of the siblings to provide him that share.

In Alexander v. Confederated Tribes of Grand Ronde, 13 Am. Tribal Law 353 (2016)¹³ the Grand Ronde court of appeals noted that, “We are also well aware that almost all tribal courts apply their own principles of tribal common law, customary law, traditions, and well-known native beliefs of fairness and equity.” Id., at 357. The Southern Ute tribal court is no different. The Tribe’s Code directs its court to apply pertinent federal and tribal law, but also tribal “customs”¹⁴ and even authorizes the court to appoint “advisors familiar with the Southern Ute Indian Tribal customs and usages.” ¹⁵

The Alexander court held the Grande Ronde court system was a court of both law an equity, with the authority to consider equitable claims and defenses. Alexander, 13 Am. Tribal Law at 357, reasoning that “American Indian cultures, traditions, and laws clearly support the idea that modern-day tribal governments and their court systems protect both the legal rights and the equitable/fairness rights of litigants.” Id. That reasoning applies to the Southern Ute court system.

The Tribe’s Civil Procedure Code reflects that the Southern Ute court system protects both legal rights and equitable/fairness rights of litigants as well. It provides that the purpose of the civil procedure rules is “…to secure the just, speedy and inexpensive determination of every civil case.” SUTC 2-1-101(2) (emphasis added). The Code prescribes that “The hearing of all cases shall be informal, the object being to dispense justice promptly and economically between the litigants.” SUTC 2-1-117 (emphasis added). It cannot be doubted the Southern Ute Tribe vested its courts with equitable authority and jurisdiction. We find the Alexander court’s reasoning and decision persuasive and consistent with the laws of the Southern Ute Tribe. We hold the Southern Ute Tribal Court is a court of law and equity.

Under the probate code when fraud has been perpetrated or used to avoid or circumvent the provisions or purposes of the code, a person injured by the fraudulent act is entitled to appropriate relief. SUTC 9-1-113. There is no language in that provision or the probate code that specifically limits reopening a probate proceeding only on an allegation of fraud. The code is silent and provides no guidance regarding whether a person injured by acts other than fraud is entitled to relief in a probate proceeding. We will not add words to the code that would make a showing of fraud the only means an injured party may seek relief. See Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849 (2009) (courts should resist reading words or elements into a statute that do not appear on its face).

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When not contrary to the Tribe’s laws, the court is authorized to apply Anglo common law. SUTC 1-2-101(4). In probate matters the court has the discretion to refer to and follow the laws of the State of Colorado where the probate code provides no guidance. SUTC 9-1-110. Under Colorado law, a probate court may revoke its orders and reopen proceedings where the settlement of an estate has been procured by fraud, irregularly made or by mistake. In re Estate of Lembach, 622 P.2d 606, 607 (Colo.App.1980); Williams v. Hankins, 82 Colo. 251, 258 P. 1114 (1927).

Probate courts in Colorado also enjoy equitable jurisdiction in addition to the authority granted to them under provisions of the probate code. “Equity plays a critical role in providing a probate court with authority to account for the unique circumstances of a particular proceeding and to ensure that parties are treated fairly, and the decedent's will is upheld.” Beren v. Beren, 349 P.3d 233, 240 (Colo. 2015). “A central concept of equity jurisprudence is that, if the defendant has violated the plaintiff's substantive rights, and there is no adequate remedy at law, equity may then intervene to fashion a remedy.” Federal Deposit Insurance Corp. v. Mars, 821 P.2d 826, 832 (Colo.App.1991). It is an ancient common law principle that where there is a wrong there is a remedy. Id; Sells v. Dermody, 114 Iowa, 344, 86 N. W. 325, 326 (1901).

We view the Colorado probate laws as providing guidance on the issue of reopening a probate proceeding and the decisions of its courts as persuasive. Colorado law authorizing a probate court to revoke its orders and reopen proceedings where the settlement of an estate has been procured not only by fraud, but by irregularly or by mistake and is not contrary to the Tribe’s probate code and is consistent with the court’s equitable jurisdiction and the common law maxim that where there is a wrong there is a remedy. See SUTC 3-1-118 (“Where not contrary to tribal or applicable law, the Court of Appeals may consider state and federal law as persuasive authority”).

We hold that in a probate proceeding, the Southern Ute Tribal Court sits as a court of law and equity and has the discretion to revoke its orders and reopen the proceedings if the settlement of an estate has been procured by an irregularly or mistake (in addition to fraud) where a person suffers injury because of the mistake or irregularity.¹⁶

Although the trial court found there was insufficient evidence of fraud, it found that Ms. Waratza breached her duty to inform the court of Erwin Taylor’s existence as one of decedent’s heirs. But for that breach he would have been notified of the probate proceedings and entitled to participate in the proceedings. Because he did not participate in the proceedings, he was not a party to the Settlement Agreement and the court’s order distributing a share of decedent’s estate to each of the decedent’s other siblings pursuant to SUTC 9-1-115(5). Ms. Waratza’ s breach clearly constituted an irregularity in the proceedings and Mr. Erwin Taylor was injured because of that irregularity. Sitting as a court of equity, the court did not abuse its discretion in granting Mr. Erwin Taylor’s motion to reopen the proceedings and revoking its previous order. SUTC. 3-1-112(3).

20 NICS App. 5, IN THE MATTER OF THE ESTATE OF LADDIE TAYLOR (June 2022) p. 15

REMEDY

The court’s remedy was to order that Mr. Erwin Taylor was entitled to the same share of the estate as the decedent’s other siblings, and it entered judgment against the siblings and Ms. Waratza to effectuate that order. The court left in place the original distribution of $126,686.46 to Ms. McCook, as a matter of equity, given her decision to settle with the siblings to avoid the expense of litigating the Will naming her the beneficiary of the decedent’s estate.

Mr. Erwin Taylor contends that the court’s remedy should include a judgment against Ms. McCook as well as the siblings and Ms. Waratza thereby providing her, the siblings and Mr. Erwin Taylor each an equal share of the proceeds of the estate. We review the court’s remedy under the abuse of discretion standard. SUTC. 3-1-112(3).

Mr. Erwin Taylor’s contention ignores that Ms. Cook could have forced the siblings to litigate their claim that the Will was not valid. As she was the named beneficiary, had the siblings been unsuccessful in proving the invalidity of the Will she would have been entitled to the remaining proceeds of the estate after payment of the claims and the other bequests and the siblings, including Mr. Erwin Taylor, would not have received a distribution.

“The purpose of a court sitting in equity is to promote and achieve justice with some degree of flexibility, according to the particular circumstances of each case.” Garrett v. Arrowhead Improvement Ass'n,, 826 P.2d 850, 855 (Colo.1992) (emphasis added). Under the circumstances of this case, the court did not abuse its discretion in fashioning an equitable remedy where Ms. McCook is distributed her original proceeds of the estate pursuant to the settlement agreement and Mr. Erwin Taylor and the other siblings share the remainder equally. See SUTC 9-1-115(5) (“If there are no surviving issue or parent, the issue of the parent or either of them if they are of the same degree of kinship to the decedent will take equally…”).¹⁷

We affirm the court’s September 3, 2021, order and judgment.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

SUITC §9-1-103 provides:

    Whenever fraud has been perpetrated or is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person or parent other than a bona fide purchaser (benefiting from the fraud) whether innocent or not. Any proceeding must be commenced within two (2) years after discovery of the fraud.

Mr. Erwin Taylor agreed that the trial court’s adoption of the Agreement that the decedent’s Will be set aside remain intact.

SUITC § 1-2-110 provides in pertinent part:

    The Following shall be the statute of limitations for the Southern Ute Indian Tribal Court:

    (2) All other actions, including but not limited to, all actions of contract, tort, fraud, forfeiture, waste and trespass, slander and libel shall be commenced within two (2) years after the cause of action occurs and not afterward. Cause of action shall not accrue until the injury is or should be known.

“If there are no surviving issue or parent, the issuer of the parent or either of them if they are of the same degree of kinship to the decedent will take equally, but if unequal degree, then those of more remote degree will take by representation.” SUITC §9-1-115(5).

September 3, 2021, Findings and Order.

Under the settlement agreement Ms. McCook, Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., Ms. Taylor, and Ms. Waratza were each awarded $126,686.46. Based on the court’s findings and conclusions, less Loucille McCook’s award of $126,686.46, the proceeds of the estate total $633,432.30. The court’s judgment effectuates its order that Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., Ms. Taylor, and Ms. Waratza and Mr. Erwin Taylor share equally the $633,432.30.

Ms. McCook and Ms. Waratza did not appeal the court’s order. The appellants, Ms. McCook, Ms. Velasquez, Ms. Gomez, Mr. Henry Taylor, Jr., Ms. Taylor are referred to by the trial court collectively as the “siblings” and we do the same.

SUTC. 3-1-112. Standard of Review.

In deciding an appeal, the Court of Appeals will apply the following standards:

(1) Factual findings

(a) Jury decisions will be sustained unless no evidence in the record supports them.

(b) A finding of fact will be sustained unless clearly erroneous.

(2) A conclusion of law will be reviewed without deference to the Tribal Court’s determination;

(3) A matter within the discretion of the Tribal Court will be sustained if the record reflects that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion, even if an alternative decision could have been reached.

The common law elements of fraudulent concealment are: (1) concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages. Brody v. Bock, 897 P.2d 769, 775–76 (Colo.1995).

See In re Cisneros, 163 Colo. 245, 430 P.2d 86, 89 (1967) (“In order to set aside the decree on the ground of fraud, it must appear that the prevailing party in the suit in which the decree was rendered contrived by fraud to keep the complainant and the court in ignorance of the true facts, whereby a wrong conclusion was reached and a positive injury was done to the party complaining, without neglect or inattention on his part.”).

See also E. Twin Lakes Ditches & Water Works, Inc. v. Bd. of Cnty. Comm'rs, 76 P.3d 918, 922 (Colo.2003) (where the appellate court ruled under the deferential standard of reviewing a trial court’s findings, like the clearly erroneous standard in SUTC 3-1-112(1)(b), that, “We will search the record for any evidence in support of the decision, and, if successful, ... uphold the decision even if, had this court been the trier of fact, it might have held differently.”).

We make no finding that the siblings in fact had that duty.

Accessed at https://cite.case.law/am-tribal-law/13/353.

SUTC 1-2-101(2).

SUTC 1-2-101(3).

See Schneider v. Drake, 44 P.3d 256, 261 (Colo. App. 2001)(equitable matters are entirely discretionary).

Mr. Erwin Taylor requests he be awarded costs, citing SUTC 2-1-122. That is the wrong code provision. Under SUTC 3-1-114, applicable to appeals, this Court has the discretion to award costs to the prevailing party. We find that neither the siblings nor Mr. Taylor is the prevailing party. Mr. Taylor’s request for costs is denied.