Andrews v. Saylor

• Decision Date: 25 September 2003
• Docket Number: No. 22,694.,22,694.
• Citation: 80 P.3d 482,134 N.M. 545
• Court: Court of Appeals of New Mexico
• Parties: Deborah ANDREWS, Plaintiff-Appellant, v. Richard SAYLOR, as Personal Representative of the Estate of Susan J. Scarborough, deceased, the Albuquerque Law Clinic, and Bruce W. Barnett & Associates, P.A., Defendants-Appellees.

80 P.3d 482

134 N.M. 545

Deborah ANDREWS, Plaintiff-Appellant, v. Richard SAYLOR, as Personal Representative of the Estate of Susan J. Scarborough, deceased, the Albuquerque Law Clinic, and Bruce W. Barnett & Associates, P.A., Defendants-Appellees.

No. 22,694.

Court of Appeals of New Mexico.

September 25, 2003.

Certiorari Denied November 4, 2003.

Daymon B. Ely, Law Offices of Damon B. Ely, Albuquerque, NM, for Plaintiff-Appellant.

R. Nelson Franse, John M. Brant, Charles K. Purcell, Charles Vigil, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendants-Appellees.

Certiorari Denied, No. 28,319, November 4, 2003.

OPINION

ALARID, Judge.

{1} This case presents us with a question of first impression concerning proximate cause in legal malpractice cases: does the judge or the jury decide whether an attorney's failure to appeal was a proximate cause of injury to the client? We hold that questions of proximate cause in legal malpractice cases are to be treated as questions of fact for the factfinder—in this case, the jury. We also consider the question of whether malpractice by successor attorneys hired to respond to the original attorney's malpractice is a foreseeable consequence of the original attorney's malpractice. We hold that it is. Lastly, we consider, and reject, a legal malpractice exception to the doctrine of comparative fault.

BACKGROUND

{2} Plaintiff-Appellant, Deborah Andrews, and her husband, Stephen Andrews, were divorced in 1986, after approximately twelve years of marriage. During the marriage, Stephen worked for the Bernalillo County Fire Department (BCFD) and made contributions towards a pension pursuant to the Public Employees Retirement Act (PERA). NMSA 1953, §§ 5-5-1 to -31 (1953, as amended through 1986), superceded by 1987 N.M. Laws ch. 253. Plaintiff was aware that Stephen made contributions to a PERA account.

{3} A final decree granting the divorce was signed by District Judge Robert L. Thompson and was filed on May 29, 1986. The final decree contained the following provision dividing the parties' property:

[P]etitioner shall have as her sole and separate property the "Golden Body Gym" business, the 1976 MG, and all other property presently in her possession; and, Respondent shall have as his sole and separate property the house at 2936 Dakota, N.E., the 1981 Honda, the 1973 Ford, and all other property presently in his possession.

{4} The final decree was prepared by Plaintiff's attorney, Defendant-Appellant, Susan J. Scarborough,¹ who was employed by Defendants-Appellants, Albuquerque Law Clinic, and Bruce W. Barrett & Associates. Stephen was not represented by an attorney. There is no provision in the final decree expressly declaring the parties' respective interests in the PERA benefits.

{5} In early 1996, Plaintiff encountered a friend who some years previously had also divorced an employee of the BCFD. By this time, both Stephen and the friend's former husband had retired from the BCFD, and were receiving PERA retirement benefits. Plaintiff's friend mentioned that she had been awarded, and was receiving, a share of the PERA benefits earned during her husband's employment with the BCFD.

{6} The friend's remarks led Plaintiff to hire an attorney to investigate Plaintiff's entitlement to a portion of the PERA benefits earned by Stephen during their marriage. In April 1996, this second attorney, Claudia Work, filed a "Petition to Divide Undivided Marital Property." The petition alleged that, by operation of community property law, Plaintiff was entitled to a 24% interest in Stephen's PERA retirement account. The petition requested that the district court divide Stephen's retirement account pursuant to the community property laws of the State of New Mexico. The petition to divide was docketed separately from the original divorce case and was assigned to District Judge William Lang. Judge Lang conducted an evidentiary hearing at which both Plaintiff and Stephen testified. The remarks of counsel indicate that the parties were proceeding pursuant to NMSA 1978, § 40-4-20(A) (1993).

{7} At the end of the hearing, Judge Lang ruled that the parties had intended to accomplish a complete division of all community property and that the 1986 final decree clearly and unambiguously divided all of the parties' community property, including the PERA account:

[T]here is an argument advanced by the petitioner, that somehow the state had possession of the account, and that I agree with [counsel for Stephen,] is a red herring indeed[.][I]t is the money of the contributor or in this instance Mr. Andrews, subject to the community interest at least during their marriage. The real issue is the language entered in the final decree and does it contemplate a final division of all of the property and debts of the parties, and in my estimation and in this court[']s estimation having viewed a number of these, this final decree did that. The petitioner was represented by coun[sel], if there is a remedy here, perhaps it lies in that particular avenue[,] the final decree having been drafted by petitioner's coun[sel].... Ms. Scarborough was a licensed attorney at the time[.] [H]er failure to investigate, should in no way prejudice the rights of the parties, either of them, with respect to what is contained in the language of the decree. The language being clear and unambiguous that all community property was divided, that each takes the specifically enumerated items plus all other items in their personal property or property in your possession. Fully and fairly and satisfactorily divided the goods and debts of the parties in existence at that time, that is to say including the husband's retirement benefits through the Public Employees Retirement Administration[.][T]here was a failure to investigate apparently by petitioner's agent and that in no way induces or brings up any issue of fraud, there was no evidence that there was any attempt to hide anything, in fact it is clear and was stated by both parties that the petitioner knew of the existence of the retirement all during the course of the marriage[.] [E]ssentially, this is [r]es [j]udicata[.] [T]he issue of the retirement was negotiated and was resolved by the terms of the final decree. As is indicated by the clear and unambiguous language contained in the final decree, if there is a remedy in this matter, that the petitioner may have, it does not lie versus the respondent[,] but perhaps it lies elsewhere. I do not reach the issue of laches for the forgoing reasons; as there is legal defense and on the basis of what was presented in court today I will decree that the retirement benefits of the respondent were previously divided to the satisfaction of the parties as eviden[ced] by the clear and [un]ambiguous language of the final decree.

{8} After the hearing, but prior to entry of an order, Plaintiff hired attorney Thomas Nance Jones to take over the case from Work. Jones advised Plaintiff that he did not believe there was a good chance of successfully appealing Judge Lang's ruling and that the cost of an appeal would be substantial. Plaintiff also consulted attorney William Gilstrap about pursuing a malpractice claim against Defendants. Gilstrap consulted with Jones regarding the viability of an appeal. The case was reassigned to District Judge Mark Macaron who entered an order denying Plaintiff's motion to divide the PERA benefits on April 15, 1998.

{9} Plaintiff did not appeal from the April 15, 1998 order. Instead, Plaintiff filed the present malpractice action on May 26, 1998. The malpractice action was assigned to Judge Robert L. Thompson, the same judge who had signed the 1986 final decree.

{10} Defendants moved for summary judgment on the ground that Plaintiff's failure to appeal from Judge Lang's ruling was the proximate cause of the loss of Plaintiff's share of PERA benefits. According to Defendants, Judge Lang erred by ruling that Stephen's interest in his PERA account constituted property presently in his possession. Defendants relied on cases from Texas holding that possession is a term of art referring to property over which the parties have physical control or at least the power of immediate enjoyment and disposition. Defendants argued that Stephen's PERA benefits were in the possession of the Retirement Board, which held them as a statutory trustee. Defendants argued that Plaintiff should have appealed the April 15, 1998 order.

{11} Plaintiff responded that (1) Judge Lang did not err in finding that Plaintiff and Stephen intended to include the PERA account in property presently in Stephen's possession; and (2) even if Judge Lang erred, his conduct was not an independent intervening cause. Plaintiff attached to her response portions of the deposition of her expert witness, attorney Barbara Shapiro. In her deposition testimony, Shapiro discussed the likelihood of successfully appealing from the April 15, 1998, order denying the motion to divide. In Shapiro's view, Plaintiff had a "good chance ... of losing the appeal."

{12} In their reply, Defendants asserted that they were not claiming that the alleged negligence of Plaintiff's successor attorneys was an "intervening cause"; rather, it was Defendants' position that Plaintiff had not established causation "in the first place."

{13} Judge Thompson granted Defendants' motion for summary judgment. At the conclusion of the hearing on the motion, he explained his reasoning:

Let me just say three or four things that I think cap it. The language [of the final decree] itself, I think, is clear and unambiguous. And I don't think the PERA is included, okay? I think had there been a timely appeal, the plaintiff would not have suffered injury.

There's an undivided community asset protected by law, and I don't think she had any damages at the time of the decree because they were protected by law. And had the—and I hate to disagree with my fellow judge, because I may get

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