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Andrews v. Saylor9/25/2003
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.
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."
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."
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 reversed, but I think had he ruled according to the law, that my interpretation is there would have been no damages.
Plaintiff filed a timely notice of appeal.
DISCUSSION
1. Who Determines Proximate Cause in a Legal Malpractice Case?
"With few exceptions, proximate cause is a question of fact to be determined by the factfinder." Lerma v. State Highway Dep't, 117 N.M. 782, 784-85, 877 P.2d 1085, 1087-88 (1994). Defendants argue that Plaintiff's failure to appeal from the April 15, 1998, order was the proximate cause of Plaintiff's loss of her community share of retirement benefits from PERA because, according to Defendants, in a hypothetical past in which Plaintiff pursued an appeal, Plaintiff necessarily would have prevailed. Defendants argue that it would be improper to allow a jury to reconstruct this hypothetical past because, in doing so, the jury must decide the appeal, a task that in an actual appeal is the function of judges. Thus, Defendants ask us to create a legal-malpractice exception to the general rule that proximate cause is a question of fact to be determined by the factfinder.
In a legal malpractice action involving a failure to appeal, proximate cause ultimately reduces to a prediction as to what the outcome of a hypothetical appeal would have been. Significantly, under the preponderance-of-the-evidence standard applicable to legal malpractice actions, complete certainty as to the outcome of the hypothetical appeal is not required: the party bearing the burden of proof need only persuade the jury that the likelihood of a favorable outcome in the hypothetical appeal was greater than even. See UJI 13-304 NMRA 2003. Unlike an actual appellate
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