Encinias v. Whitener Law Firm, P.A.

• Citation: 294 P.3d 1245
• Decision Date: 06 December 2012
• Docket Number: No. 30,106.,30,106.
• Parties: Joe Robert ENCINIAS, Plaintiff–Appellant, v. WHITENER LAW FIRM, P.A. and Russell Whitener, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

294 P.3d 1245

Joe Robert ENCINIAS, Plaintiff–Appellant,

v.WHITENER LAW FIRM, P.A. and Russell Whitener, Defendants–Appellees.

No. 30,106.

Court of Appeals of New Mexico.

Sept. 20, 2012.

Certiorari Granted, Dec. 6, 2012, No. 33,874.

Will Ferguson & Associates, Roger V. Eaton, David M. Houliston, Sanders & Westbrook, P.C., Maureen A. Sanders, Albuquerque, NM, for Appellant.

Tax, Estate & Business Law, Ltd., James T. Reist, Barry D. Williams, Albuquerque, NM, for Appellees.

OPINION

KENNEDY, Judge.

{1} In 2006, the parents of Plaintiff Joe Robert Encinias met personally with Defendants Whitener Law Firm, P.A. and Russell Whitener (collectively, Whitener) to pursue a lawsuit against Encinias's school district for a brutal beating that Encinias suffered at the hands of two students during school hours. There is no dispute that Whitener took on the case and failed to file the case within the statute of limitations. When Encinias inquired about the status of the case, Whitener scurried to mend the situation by improperly filing the case with the district court in order to show Encinias that it “would do what [it] could.” Whitener voluntarily dismissed the lawsuit in the face of sanctions. When sued for malpractice, misrepresentation, and violating the Unfair Practices Act (UPA), NMSA 1978, §§ 57–12–1 to –26 (1967, as amended through 2009), Whitener ran for the cover of our malpractice case law that holds that a case for legal malpractice cannot lie where the underlying action would not be viable. See Richardson v. Glass, 114 N.M. 119, 122, 835 P.2d 835, 838 (1992). The district court granted summary judgment on all three causes of action against Whitener.

{2} The liability of a school for a student's injuries under the New Mexico Tort Claims Act (TCA), NMSA 1978, §§ 41–4–1 to –30 (1976, as amended through 2010), has not been the most clearly delineated of legal principles, and it is that very pool of murky law into which we must dive to assess whether Encinias had a claim that could have succeeded against the school district. Thus, this case is as much about the TCA's applicationto schools, as it is about Whitener in handling Encinias's case. As we explain further below, we hold that the seemingly broad rule about school immunity stated in Upton v. Clovis Mun. School Dist., 2006–NMSC–040, 140 N.M. 205, 141 P.3d 1259, does not extend so far as to provide relief to Encinias in this case. We also determine that his claims for misrepresentation and unfair trade practices must fail as well. We affirm the district court's orders granting summary judgment to Whitener on all claims.

I. BACKGROUND

{3} In September 2004, Encinias was attacked during the lunch period at his high school in Las Vegas, New Mexico, by one or two fellow students. The attack occurred on a street adjacent to the school that was roped off by the school for lunch vendors to provide food to the students. As a result of the attack, Encinias suffered serious injuries that required him to be airlifted to Albuquerque for medical treatment. No school faculty or security was monitoring that area at the time of the attack. It is disputed whether, pursuant to a school safety policy, a member of the school personnel was supposed to be watching the area where the attack occurred during the lunch period.

{4} In January 2006, Encinias contacted Whitener to represent him in a suit against the high school after seeing advertisements on television and in a phone book for the firm. Whitener agreed to represent Encinias, but then failed to bring suit within the statute of limitations. Encinias contends that Whitener “engaged in a series of misrepresentations about the case's merits, its status, and the missed statute of limitations for filing the case.” Subsequently, Encinias sued under several causes of action, three of which are before us today—malpractice, violations of the UPA, and misrepresentation. Whitener moved for summary judgment on each claim. The district court granted summary judgment on all claims. Encinias now appeals from orders granting summary judgment on the UPA claim, the misrepresentation claim, and the underlying case.

II. STANDARD OF REVIEW

{5} “We are mindful that summary judgment is a drastic remedial tool which demands the exercise of caution in its application, and we review the record in the light most favorable to support a trial on the merits.” Woodhull v. Meinel, 2009–NMCA–015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted). “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998–NMSC–046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review these legal questions de novo.” Id. “We also review the applicability of the TCA de novo.” Upton, 2006–NMSC–040, ¶ 7, 140 N.M. 205, 141 P.3d 1259.

{6} We consider an issue of fact to be genuine “if the evidence before the court considering a motion for summary judgment would allow a hypothetical fair-minded fact[ ]finder to return a verdict favorable to the non-movant on that particular issue of fact.” Romero v. Philip Morris, Inc., 2009–NMCA–022, ¶ 12, 145 N.M. 658, 203 P.3d 873,rev'd on other grounds,2010–NMSC–035, 148 N.M. 713, 242 P.3d 280. We consider an issue of fact to be “material if the existence (or non-existence) of the fact is of consequence under the substantive rules of law governing the parties' dispute.” 2009–NMCA–022, ¶ 12, 145 N.M. 658, 203 P.3d 873 (internal quotation marks omitted). “[T]he party opposing summary judgment has the burden to show at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact.” Eisert v. Archdiocese of Santa Fe, 2009–NMCA–042, ¶ 10, 146 N.M. 179, 207 P.3d 1156 (internal quotation marks and citation omitted).

III. DISCUSSIONA. The School Did Not Waive Its Immunity Under the TCA

{7} The district court granted Whitener's motion for summary judgment, holding that Encinias's malpractice claim must fail because the underlying claim was barred by the school's immunity from suit. See Richardson, 114 N.M. at 122, 835 P.2d at 838(“[The p]laintiff ha[s] the burden of not only proving her counsel's negligence, but also that she would have recovered at trial in the underlying action.”). The district court concluded that “while ... parents rely on school officials to protect their children, and schools develop policies in an attempt to achieve this end, schools like other governmental agencies do not have a duty to do everything that might or could have been done.” See Cobos v. Doña Ana Cnty. Hous. Auth., 1998–NMSC–049, ¶ 6, 126 N.M. 418, 970 P.2d 1143 (quoting the legislative purpose of the TCA that “government should not have the duty to do everything that might be done”); § 41–4–2(A). Thus, the first issue before us is whether the claim Encinias sought to bring against the school was barred as a matter of law by immunity under the TCA, thereby foreclosing Encinias's claim for malpractice.

{8} The State is generally granted immunity from suit, but the TCA waives that immunity in “certain defined circumstances.” Cobos, 1998–NMSC–049, ¶ 6, 126 N.M. 418, 970 P.2d 1143. “Generally, the [TCA] provides governmental entities and public employees acting in their official capacities with immunity from tort suits unless the Act sets out a specific waiver of that immunity.” Wachocki v. Bernalillo Cnty. Sheriff's Dep't, 2010–NMCA–021, ¶ 18, 147 N.M. 720, 228 P.3d 504 (internal quotation marks and citation omitted), aff'd,2011–NMSC–039, 150 N.M. 650, 265 P.3d 701;see§ 41–4–4(A) (providing that, with few statutory exceptions, “[a] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort”). Section 41–4–6(A) is one such waiver, and it provides that the “immunity granted pursuant to Subsection A of Section 41–4–4 ... does not apply to liability for damages resulting from bodily injury ... caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building [.] ” (Emphasis added.) The central question is whether the negligent operation or maintenance of a building creates a “dangerous condition that threatens the general public or a class of users of the building.” Upton, 2006–NMSC–040, ¶ 8, 140 N.M. 205, 141 P.3d 1259. Contrary to Encinias's arguments, Upton is distinguishable from this case and does not compel us to conclude that the school is subject to the limited waiver of immunity to be liable for his injuries.

{9} Encinias argues that he “had a claim that on the day he was beaten, school personnel were negligent while they were acting within the scope of their duties in the operation or maintenance of the school [and thus,] the school district did not have a defense of immunity to the claims.” More specifically, Encinias argues that the school's negligent execution of its safety policies for patrolling the campus during the lunch period, and the school's failure to keep a suspended student off campus, resulted in his injuries. Evidence proffered below indicates that it may have been the responsibility of a security guard or faculty member to patrol the food vendor area and that no one patrolled that area at the time of the attack. Encinias contends that he was first hit by fellow student and friend, Michael Salazar, and then by a second assailant, Chris Chavez, who had been suspended from school on the morning of the attack, but entered the campus area for no apparent reason but to attack Encinias. Salazar attested in his affidavit that a security guard or teacher usually patrolled the food vendor area, but neither was present at the time of the attack. In an affidavit, the assistant principal stated that the location of the attack near the food vendors was a known “[h]ot zone” for student violence and that a security guard was...