This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

In the Matter of the ESTATE 7 OF CLAUDIO M. VELA, deceased, 8 Respondent-Appellee, 9

v. NO. 31,009 10 JIMMY J. VELA and 11 RICHARD L. VELA, 12 Claimants-Appellants. 13

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 14 David P. Reeb, Jr., District Judge 15

Doerr & Knudson P.A. 16 Randy J. Knudson 17 Portales, NM 18 for Appellee 19 Mark S. Sweetman 20 Clovis, NM 21 for Appellants 22

MEMORANDUM OPINION 23 VIGIL, Judge. 242 Jimmy Vela and Richard Vela (Claimants) appeal from the district court’s 1 probate order dismissing their claims ag ainst the Estate with prejudice for the 2 untimely filing of their petition for allowance of claims. We issued a notice of 3 proposed summary disposition, proposing to reverse. The Estate has filed a 4 memorandum in opposition to our notice. We have considered the Estate’s arguments 5 and remain persuaded that dismissal was inappropriate under the circumstances. 6 Accordingly, we reverse the district court. 7 In its response to our notice, the Estate argues that under NMSA 1978, Section 8 45-3-806(A) (1993), the statutory period for filing the petition for allowance of claims 9 is mandatory, and we should not encourag e parties to wrongly pursue dual litigation 10 tracks. [MIO 2, 5-9] Also, the Estate points out that Claimants did not request that 11 the district court’s order of dismissal in the civil proceeding be entered without 12 prejudice, or reserve their right to file the petition for allowance of claim in the 13 probate action or enlarge their time to do so . [MIO 3-4] The Estate addresses our 14 reliance on In re Estate of Mayfield , 108 N.M. 246, 771 P.2d 179 (1989) and argues 15 that the Supreme Court did not make it clearwhat “the right ci rcumstances” are and 16 that Claimants are not entitled to any equitabl e relief because they did not protect their 17 own interests. [MIO 5-8] As for the Estate’s notice of Claimant s’ claims against it, 183 the Estate argues that the concerns detaile d above are more important considerations 1 that should compel dismissal. We disagree. 2 Although technical compliance with the statutory time period for filing a 3 petition for allowance of claims is important, dismissal under the circumstances 4 clearly exalts form over substance. See Estate of Mayfield , 108 N.M. at 249, 771 P.2d 5 at 182 (stating that it “would be loath to ex alt form over substance to foreclose the 6 adjudication of a claim on its merits, ev en though a formal petition for allowance not 7 be filed, where within the statutory time period the facts of record demonstrate that 8 the claimant is litigating the claim or the parties have invoked the exercise of the 9 court’s authority with respect to the disallowed claim”). Furthermore, Claimants’ 10 attentive pursuit of their claims in the civil action is so highly analogous to the 11 circumstances under which the Supreme Court in Estate of Mayfield envisioned a 12 party could substantially comply with th e statute to justify an exception to the 13 mandatory time period, we cannot overlook or meaningfully distinguish these facts. 14 See id. at 247, 771 P.2d at 180 (pointing out the failures of the claimant in Estate of 15 Mayfield , and noting that a claim could be asserted “by either filing a petition for 16 allowance in the formal pr obate action or commencing a separate proceeding against 17 the co-personal representatives,” and observe d that the claimant did neither). Also, 18 the Estate was not prejudiced by the minor delay caused by Claimants’ mistaken filing 194 of the civil action, and it was clearly on noti ce of the claims pursuedagainst it. Under 1 these particular circumstances, we are not persuaded that dismi ssal was appropriate. 2

Lastly, we note that the Estate seem s confused about why our notice did not 3 address the remaining bases for dismissal, including res judicata. [MIO 9-10] The 4 notice relies on an exception to the statutory period for filing the petition for 5 allowance of claim in Estate of Mayfield , which is based in a substantial compliance 6 analysis. Thus, our proposed analysis treated the petition for allowance of claim as 7 timely. Every other basis for dismissal treated the petition for allowance of claim as 8 untimely and then as though it was never filed. Because we hold that Claimants 9 substantially complied with Section 45-3- 806(A), that probate action should proceed 10 with the petition for allowance of claims. We also observe that the district court in the 11 civil action dismissed the claims are agai nst the Estate and directed Claimants to 12 litigate them in the probate action; it did not foreclose their litigation. [RP 97, 100] 13 For the reasons stated in this opinion and in our notice, we reverse the district 14 court’s dismissal and remand for further proceedings. 15 IT IS SO ORDERED. 16

_______________________________ 17 MICHAEL E. VIGIL, Judge 185 WE CONCUR: 1

_________________________________ 2 CELIA FOY CASTILLO, Chief Judge 3

_________________________________ 4 RODERICK T. KENNEDY, Judge 5