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Leyba v. Whitley6/30/1994
yba against the lawyers and Corrine. See id. at 1404-05 (allowing owner to sue subcontractor as beneficiary of contract between solvent prime contractor and subcontractor may conflict with prime contractor's administration of its contracts with subcontractors).
In sum, we conclude that Whitley and Shapiro may be liable to the Child for failing to inform Corrine that she held the settlement proceeds solely for the benefit of the Child.
Of course, the lawyers are liable only if they failed to perform this duty. They argue on appeal that they were entitled to summary judgment because the record compels the Conclusion that they in fact advised Corrine that the settlement proceeds were to be held for the benefit of the Child. They contend that Corrine's testimony to the contrary is simply not credible. Although they refer to a great deal of evidence that could convince a jury of their contention, this Court cannot afford them the relief they seek. Corrine's testimony did not contradict any law of nature of other uncontrovertible fact of which we could take judicial notice. See (when physical facts and conditions leave no room for a contrary Conclusion, sworn testimony to the contrary is not substantial evidence); ), cert. denied, 108 N.M. 681, 777 P.2d 1325 (1989). Moreover, the provisions of the mobile-home purchase contract that Whitley drafted support Corrine's testimony; a fact finder could disbelieve Whitley's explanation of those provisions. Matter of credibility are for the jury to decide; they are not to be decided on motions for summary judgment. See . Therefore, we must reverse the summary judgment and remand for further proceedings.
V. CONCLUSION
The district court properly granted the lawyer's motion for summary judgment to the extent that Leyba claims that the lawyers violated a duty to distribute the settlement proceeds to a conservator for the Child or to oversee the distribution of funds by Corrine. Summary judgment was improper, however, because there is a genuine issue of material fact regarding the lawyers' potential liability to the Child predicated on their failure to inform Corrine of her status as a fiduciary. We remand for further proceedings consistent with this opinion.
IT IS SO ORDERED
HARRIS L HARTZ, Judge
WE CONCUR:
LYNN PICKARD, Judge
BENNY E. FLORES, Judge
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