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Sharts v. Natelson6/30/1993
but conflicting inferences can be drawn from the facts in favor of the party opposing summary judgment." .
In this appeal, the basic facts (that Plaintiff sent Defendant a threatening letter, that Defendant knew of the dispute over the proper interpretation of the covenants, and that Defendant's new counsel entered an appearance exactly four years before the malpractice suit was filed) are undisputed. However, I believe that these facts lead to different but equally plausible inferences, one of which is that, if Plaintiff is believed, he did not ascertain or discover the malpractice before his new counsel entered his appearance. Even if Plaintiff did consult and retain his new counsel before that counsel entered an appearance on Plaintiffs behalf, I do not believe that, as a matter of law, the limitations period began running at that time, as suggested by the Dissent. . Additionally, I agree with Plaintiff that, under Jaramillo, the relevant date is when Plaintiffs new counsel entered an appearance, not when Defendant's representation ceased. See id. For these reasons, I conclude that there is an issue of fact concerning when the statute of limitations began to run. Consequently, I agree that summary judgment was properly denied.
RUDY S. APODACA, Judge
HARTZ, Judge (Dissenting).
I would reverse and remand to require the district court to enter judgment on behalf of Natelson.
I should begin by noting that the lead opinion does not represent the views of the majority of the panel. Both Judge Apodaca and I disagree with the analysis in that opinion. Indeed, although Judge Apodaca and I disagree with respect to the result, we generally agree on the appropriate legal analysis. Our disagreement is largely confined to the application of the continuous representation rule to this case.
Turning to the merits, , held that a cause of action for attorney malpractice accrues once the malpractice has caused actual loss or damage and the facts necessary to sustain the claim are ascertainable and discoverable by the injured person. Both conditions were satisfied in this case more than four years before the complaint was filed. Therefore, the complaint was barred by the applicable statute of limitations, NMSA 1978, ยง 37-1-4 (Repl. Pamp. 1990). Even were New Mexico to recognize that accrual of a cause of action for attorney malpractice could be delayed under (1) what I shall call the predicate-litigation rule or (2) the continuous representation rule, Sharts would not benefit from either rule unless we were to construe the rule in a manner that departs from its customary application and violates its underlying rationale.
I. HARM
A. New Mexico Precedents
Judge Alarid's lead opinion rests its Conclusion on the position that there was no harm or loss until the time of the adverse declaratory judgment ruling by the district court. That view is contrary to our Supreme Court's holding in Jaramillo. In that opinion our Supreme Court upheld summary judgment in favor of an attorney sued for alleged negligence in the preparation of a will. The Supreme Court opinion notes a number of potentially significant dates. It mentions that the attorney was employed to prepare a will on April 22, 1967; that the decedent died on October 6, 1967; that the will was admitted to probate on November 22, 1967; that the order admitting the will to probate was set aside nunc pro tunc on April 14, 1969; that the will was denied probate on May 28, 1974; and that the complaint for malpractice was filed on May 20, 1977. Only one date was held to be relevant to the determination of loss or damage. The Court ruled that
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