Veigel v. Keleher & McLeod, P.A.

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STEVE VEIGEL, ROBERT VEIGEL, and ELLA MARIE VEIGEL, Plaintiffs-Appellants, v. KELEHER & MCLEOD, P.A.; THOMAS C. BIRD; JUSTIN B. BREEN; JEFFERY A. DAHL; JULIA L. MACCINI; and JAMES L. RASMUSSEN, Defendants-Appellees.

No. A-1-CA-41223

Court of Appeals of New Mexico

August 15, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY Albert J. Mitchell Jr., District Court Judge.

Steve Veigel Robert Veigel Ella Marie Veigel Hereford, TX Pro Se Appellants.

Brant and Hunt, Attorneys John M. Brant Jeannie Hunt Albuquerque NM for Appellees.

MEMORANDUM OPINION

KRISTINA BOGARDUS, Judge.

{¶1} Plaintiffs appeal the district court's summary judgment as well as its order denying their motion for sanctions against Defendants. In our notice of proposed summary disposition, we proposed to affirm. Plaintiffs have filed a memorandum in opposition, as well as three supplements to their memorandum in opposition, and Defendants have filed a memorandum in support, all of which we have duly considered. As we are not persuaded by Plaintiffs' arguments, we affirm.

{¶2} In their memorandum and supplements, Plaintiffs continue to contend that the district court erred in granting summary judgment on the basis that their complaint was untimely filed under the statute of limitations. [MIO 2-13, 22] In particular, Plaintiffs emphasize that application of the continuous representation doctrine would toll the statute of limitations through the conclusion of the attorney-client relationship, potentially making their complaint timely. See Sharts v. Natelson, 1994-NMSC-114, ¶ 19, 118 N.M. 721, 885 P.2d 642 (explaining that "[u]nder the continuous representation doctrine, running of the statute of limitations is tolled until the representation terminates with respect to the matters that underlie the malpractice action."); see also LaMure v. Peters, 1996-NMCA-099, ¶ 31, 122 N.M. 367, 924 P.2d 1379 (noting that "[t]he continuous representation doctrine protects the integrity of the professional relationship, permits the allegedly negligent professional to attempt to cure the malpractice, and provides for uninterrupted service to the client"). [MIO 2-9]

{¶3} We note that our Supreme Court and this Court have continuously declined to adopt the continuous representation doctrine in New Mexico. See Sharts, 1994-NMSC-114, ¶ 18 (noting that "[w]e are not inclined to adopt the [continuous representation] doctrine at this time"); LaMure, 1996-NMCA-099, ¶¶ 28, 34 (stating that "New Mexico has considered, but has not applied, the continuous representation doctrine in attorney malpractice cases" before concluding that "[t]hus, even if we were free to question the Supreme Court's recent, express disinclination to adopt the continuous relationship exception, we would not do so in this case" (citation omitted)); Martinez-Sandoval v. Kirsch, 1994-NMCA-115, ¶ 26, 118 N.M. 616, 884 P.2d 507 (noting that while other jurisdictions have adopted the continuous representation doctrine, New Mexico authorities establish that "the statute begins to run once [a plaintiff] knows or should know sufficient facts to constitute a cause of action").

{¶4} As our notice explained, "[u]nder New Mexico law, the statute of limitations for legal malpractice begins to run when the client discovers, or should have discovered, 'that he or she has suffered a loss and that the loss may have been caused by the attorney's wrongful act or omission.'" Day-Peck v. Little, 2021-NMCA-034, ¶ 47, 493 P.3d 477 (quoting Sharts, 1994-NMSC-114, ¶ 10). [CN 5-6] In other words, commencement of the statute of limitations is not bound to the period of representation, but rather when the client discovers or should have discovered the purportedly deficient representation. To the extent that Plaintiffs contend they did not know the facts necessary to successfully prosecute their claims until after June 14, 2017, we note that "[c]ertainty that the attorney breached the duty of care is not required; it is enough for the client to know 'there may have been serious errors in the attorney's work' which resulted in injury." Day-Peck, 2021-NMCA-034, ¶ 47 (quoting LaMure, 1996-NMCA-099, ¶ 22). [MIO 17-22] Further, "a plaintiff need not know that the injury constitutes a breach of the legal standard of care; it is sufficient if [the] plaintiff is on notice of the facts constituting the cause of action." LaMure, 1996-NMCA-099, ¶ 27.

{¶5} With regard to our analysis regarding the running of the statute of limitations, as well as the remaining contentions included in their memorandum and supplements, Plaintiffs do not provide any new facts or authorities that persuade us that our proposed summary disposition was in error. "Our courts have repeatedly held that, in summary calendar cases the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law." Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683; see also State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary calendar notice must come forward and specifically point out errors of law and fact and the...