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Sharts v. Natelson6/30/1993
ions from the purchasers of lots in Tract One. However, Sharts continued to rely on Natelson's assurances and advice that a solution to this problem could be found. We think this the better course. Our cases do not require, nor does it seem prudent, to encourage the filing of provisional, preemptory legal malpractice actions. See id. cmt. (c) at 335 (where litigant seeks declaratory judgment rather than coercive remedy, factual inference may arise that litigant is in quandary as to what his rights are and how to secure their adjudication).
Third, we also note that had Sharts brought his malpractice suit prior to the completion of the declaratory judgment action, he would be in the unenviable position of maintaining in one suit (the declaratory judgment action) that the covenants had been properly drafted, while in the other suit (the malpractice action) that the covenants had been negligently drafted, contrary to his intention and that they did not mean what he had intended. Such sworn testimony could create a legitimate credibility issue precluding summary judgment. See Charles A. Wright, et al., Federal Practice & Procedure Civil 2d ยง 2726, at 113 (1983) (where evidence produced in support of motion for summary judgment creates a credibility issue, summary judgment inappropriate); see also United States Nat'l Bank of Oregon v. Davies, 274 Ore. 663, 548 P.2d 966 (1976); St. Paul Fire & Marine Ins. v. Speerstra, 63 Ore. App. 533, 666 P.2d 255 (Or. App. 1983) (inconsistent positions to be avoided).
Accordingly, we hold that until the time of the adverse declaratory judgment ruling in the trial court, whatever costs and delays were incurred as a result of the language in the covenants were insufficient to satisfy the harm or loss in fact prong of the Jaramillo analysis as a matter of law.
V. CONCLUSION
New Mexico cases have long noted the law favors the right of action over the privilege of limitation. See . This is particularly so where a statutory bar is invoked on a motion for summary judgment. See ); ), cert. denied Rupert v. Sanders 83 N.M. 698, 496 P.2d 1094 (1972). Further, we take this opportunity to relay the trial Judge's comments given at the close of the motion for summary judgment hearing with which we concur:
I think to interpret [Jaramillo ] as [Natelson] urges would be fostering a policy of requiring an individual to obtain other counsel, file an early lawsuit in order to protect [the individual's] rights. I think we need to have a policy which is reflected in interpreting [Jaramillo ] whereby an attorney is encouraged to take curative actions to try to avoid any damages. So I'm going to deny the motion for summary judgment because I think there is a genuine question of fact as to whether or not ascertainable damages existed prior to the rendition of the declaratory judgment.
Therefore, we decline to find this cause of action barred by the statute of limitations and affirm the trial court's ruling denying the motion for summary judgment.
IT IS SO ORDERED.
A. JOSEPH ALARID, Judge
RUDY S. APODACA, Judge (Specially Concurring)
HARRIS L HARTZ, Judge (Dissenting)
SPECIAL CONCURRENCE
APODACA, Judge, specially Concurring.
I concur in the result of Judge Alarid's opinion. However, I respectfully disagree with the opinion's proposed analysis of , and concur with the Dissent's analysis on that point. However, unlike the Dissent, I conclude that the latest date on which the statute of limitations could have begun running as a matter of law was the date on which Plaintiffs new attorney filed his notice of appearance.
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