Encinias v. Whitener Law Firm, P.A.

• Decision Date: 12 September 2013
• Docket Number: No. 33,874.,33,874.
• Parties: Joe Robert ENCINIAS, Plaintiff–Petitioner, v. WHITENER LAW FIRM, P.A. and Russell Whitener, Defendants–Respondents.
• Court: New Mexico Supreme Court

310 P.3d 611

Joe Robert ENCINIAS, Plaintiff–Petitioner,

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

No. 33,874.

Supreme Court of New Mexico.

Sept. 12, 2013.

Recognized as Unconstitutional

West's NMSA § 41–4–15(A)Will Ferguson & Associates, David M. Houliston, Roger V. Eaton, Sanders & Westbrook, P.C., Maureen A. Sanders, Wray & Girard, P.C., Katherine Wray, Albuquerque, NM, for Petitioner.

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

Coppler Law Firm, P.C., Gerald A. Coppler, Thomas R. Logan, Santa Fe, NM, for Amicus Curiae New Mexico Public Schools Insurance Authority.

OPINION

CHÁVEZ, Justice.

{1} This case concerns an action for legal malpractice based on the defendant law firm's failure to file suit within the statute of limitations. The viability of the malpractice suit hinges on whether the underlying cause of action, a claim against a school district for injuries inflicted on one student by another, would have been barred by sovereign immunity or permitted by the Tort Claims Act (TCA), NMSA 1978, §§ 41–4–1 to –30 (1953, as amended through 2013). We conclude that the plaintiff has raised a genuine issue of material fact regarding the viability of the underlying suit under the premises liability provision of the TCA, § 41–4–6(A). For this reason, we reverse the Court of Appeals and vacate the district court's grant of summary judgment. We also conclude that the plaintiff may pursue his misrepresentation claim against the defendant law firm.

BACKGROUND

{2} The plaintiff, Joe Robert Encinias, claims that in late September of 2004, he was badly beaten by a classmate or classmates at Robertson High School in Las Vegas, New Mexico. The alleged attack itself took place outside of the school property, on a street that the school had cordoned off so that students could patronize food vendors there. Encinias claims that he lost consciousness during the attack, but he recalls waking up alone on the street. In early October, Encinias was treated at a hospital for severe internal injuries that he alleges were sustained during the beating.

{3} In January 2006, Encinias and his parents retained defendants Russell Whitener and the Whitener Law Firm (collectively Whitener) to represent Encinias in a possible suit against Robertson High School and the Las Vegas School District. However, Whitener never filed a complaint in the case. ¹ In April 2006, the Encinias family contacted Whitener to check on the status of the case. Whitener asked the family to re-submit its paperwork. Encinias alleges that Whitener lost the documents that Encinias had submitted earlier and had done no work on the case. In the fall of 2006, the Encinias family contacted Whitener over concerns that the statute of limitations would run out. In fact, the statute of limitations ran two years after the incident, in late September or early October 2006.²See§ 41–4–15(A) (stating that TCA suits must be “commenced within two years after the date of occurrence resulting in loss, injury or death”), held unconstitutional on other grounds as recognized by Jaramillo v. Heaton, 2004–NMCA–123, ¶ 4, 136 N.M. 498, 100 P.3d 204. A Whitener attorney testified that he and his colleagues had been aware of the statute of limitations, but they had allowed it to run because they were concerned about the strength of the case and thought that they could get around the statute. In August 2007, Whitener realized that the case was barred. In February 2008, the firm decided not to pursue the suit. Whitener waited until the spring of 2008 to tell the family that it had missed the statute of limitations.

{4} In October 2008, Encinias filed suit against Whitener for legal malpractice and misrepresentation, among other claims that have subsequently been abandoned. The district court granted summary judgment for Whitener on all claims. The Court of Appeals affirmed the grant of summary judgment, Encinias v. Whitener Law Firm, P.A., 2013–NMCA–003, ¶ 2, 294 P.3d 1245, and rejected Encinias's malpractice claim, concluding that the TCA did not waive the school district's immunity, id. ¶ 24. The Court also held that summary judgment was proper on Encinias's misrepresentation claim because Encinias did not establish that he suffered damages as a result of Whitener's misconduct. Id. ¶ 29.

{5} Encinias argues on appeal for reversal of summary judgment on both the legal malpractice and the misrepresentation claims. This Court granted certiorari.

DISCUSSION

{6} “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. This is a legal question that is reviewed de novo on appeal. Id.;Juneau v. Intel Corp., 2006–NMSC–002, ¶ 8, 139 N.M. 12, 127 P.3d 548. When we review a motion for summary judgment, we “view the facts in a light most favorable to the party opposing summary judgment and draw all reasonable inferences in support of a trial on the merits.” Romero v. Philip Morris Inc., 2010–NMSC–035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). Courts in New Mexico “view summary judgment with disfavor,” id. ¶ 8, and consider it “a drastic remedy to be used with great caution.” Pharmaseal Labs., Inc. v. Goffe, 1977–NMSC–071, ¶ 9, 90 N.M. 753, 568 P.2d 589.

A. Malpractice claim

{7} Encinias argues that Robertson High School and the school district were negligent in failing to protect him from being attacked, and further negligent in failing to respond to the attack or notice that it had occurred. Encinias also argues that he would have had a viable cause of action against the school district for negligent maintenance or operation of a public building. See§ 41–4–6(A). However, due to Whitener's failure to file a complaint within the two-year statute of limitations, any claim Encinias had against the school district is now barred. See§ 41–4–15(A) (establishing statute of limitations for the TCA). Encinias now attempts to recover from Whitener on a theory of legal malpractice.

{8} The elements of legal malpractice are: “(1) the employment of the defendant attorney; (2) the defendant attorney's neglect of a reasonable duty; and (3) the negligence resulted in and was the proximate cause of loss to the [client].” Sharts v. Natelson, 1994–NMSC–114, ¶ 10, 118 N.M. 721, 885 P.2d 642 (alteration in original) (internal quotation marks and citation omitted). The only issue before this Court is the third element, loss to the client. Under New Mexico law, the plaintiff in a legal malpractice suit must prove this loss by demonstrating by a preponderance of the evidence that he or she would have prevailed on the underlying claim. Richardson v. Glass, 1992–NMSC–046, ¶ 10, 114 N.M. 119, 835 P.2d 835 (“Plaintiff had the burden of not only proving her counsel's negligence, but also that she would have recovered at trial in the underlying action.”); George v. Caton, 1979–NMCA–028, ¶¶ 46–47, 93 N.M. 370, 600 P.2d 822 (“In a malpractice action ... the measure of damages is the value of the lost claims, i.e., the amount that would have been recovered by the client except for the attorney's negligence.”); see also Andrews v. Saylor, 2003–NMCA–132, ¶ 15, 134 N.M. 545, 80 P.3d 482 (stating that the preponderance-of-the-evidence standard is applicable to legal actions). In this case, the Court of Appeals held that because sovereign immunity would have barred the underlying claim, the loss of the claim did not damage Encinias. See Encinias, 2013–NMCA–003, ¶ 24, 294 P.3d 1245 (holding that school did not waive its immunity and affirming summary judgment in favor of Whitener).

{9} In general, the state is immune from tort suits. Section 41–4–4(A). The exceptions to this rule are the specific waivers of immunity contained in the TCA. Id. The provision of the TCA at issue in this case is Section 41–4–6(A), which waives the state's immunity for injury “caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.” We have stated that this section “may appropriately be termed a ‘premises liability’ statute.” Bober v. N.M. State Fair, 1991–NMSC–031, ¶ 27, 111 N.M. 644, 808 P.2d 614. The Legislature has declared that “[l]iability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty,” § 41–4–2(B), so we infer that the waiver of liability in Section 41–4–6(A) incorporates the concepts of premises liability found in our case law.

{10} Like common-law premises liability, the waiver in Section 41–4–6(A) is not limited to injuries occurring on the defendant's property. Bober, 1991–NMSC–031, ¶ 27, 111 N.M. 644, 808 P.2d 614;see also Stetz v. Skaggs Drug Ctrs., Inc., 1992–NMCA–104, ¶ 9, 114 N.M. 465, 840 P.2d 612 (“[Bober ] merely applied the traditional rule that on[e] who owns or controls property has a duty to refrain from creating or permitting conditions on such property that will foreseeably lead to an unreasonable risk of harm to others beyond the property's borders.”). Also like common-law premises liability, the waiver is not limited to injuries resulting from a physical defect on the premises. Bober, 1991–NMSC–031, ¶¶ 26–27, 111 N.M. 644, 808 P.2d 614;Callaway v. N.M. Dep't of Corr., 1994–NMCA–049, ¶ 17, 117 N.M. 637, 875 P.2d 393 (noting this Court's rejection of a narrow “physical defect” standard); see also Coca v. Arceo, 1962–NMSC–169, ¶ 2, 19, 71 N.M. 186, 376 P.2d 970 (reversing summary judgment for the defendant where the plaintiff alleged that the owners of the bar should have protected the plaintiff from battery by another patron). Instead, we interpret Section 41–4–6(...