specially concurring.
I concur in the result of Judge Alarid’s opinion. However, I respectfully disagree with the opinion’s proposed analysis of Jaramillo v. Hood, 93 N.M. 433, 601 P.2d 66 (1979), 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. See id. at 434, 601 P.2d at 67 (malpractice reasonably ascertainable each time appellant’s new attorneys entered appearances). This date was exactly four years before the date Plaintiffs malpractice suit was filed. If the trier of fact determined this date to be when Plaintiff ascertained the harm stemming from the alleged act of negligence, Plaintiffs cause of action would be deemed filed within the limitations period. However, Plaintiff may have been able to ascertain the harm earlier, and the trier of fact could so determine. For this reason, I conclude that whether the statute of limitations began running more than four years before the malpractice suit was filed is a question of fact. I thus agree that the trial court’s order denying summary judgment should be affirmed.
The opinion holds that Plaintiff was harmed and the statute of limitations did not begin to run until the trial court rendered its decision in the declaratory judgment action. I believe that the opinion’s focus on this event is incorrect. The parties, for example, focus their argument on when the harm was discoverable or ascertainable. I also generally agree with the dissent’s conclusion that the harm occurred when the first lot was sold and the restrictive covenants could no longer be redrafted, not when the trial court rendered its decision. Cf. id. (harm occurred at the time the testatrix died). I also agree that Plaintiff began to incur damages as soon as the proposed development was hindered and Plaintiff incurred expenses trying to clear the cloud on the title. For these reasons, I agree with the dissent’s conclusion that the harm could have been discovered or ascertained before the trial court rendered its decision in the declaratory judgment action.
Two other important policy considerations also militate against holding that Plaintiff did not have a cause of action for malpractice until the trial court rendered its adverse decision. First, because there is always the possibility that the decision will be appealed to this Court and then a petition for certiorari to our Supreme Court applied for, an adverse decision is arguably not final until all appellate remedies have been exhausted. This could take considerable time. Second, I believe that a plaintiff could conceivably have a valid cause of action for malpractice (if an attorney has committed an error) even if the underlying litigation was eventually resolved satisfactorily to the plaintiff, even at the trial court level. This would be so because, regardless of the result or disposition of the underlying litigation, the plaintiff would necessarily have had to expend money, time, and effort correcting the problem. In other words, even if the court had ruled in favor of Plaintiff in the original suit, it would not necessarily obviate the fact that the drafting attorney’s negligence caused the filing of the lawsuit to clear up the cloud on the title.
However, the dissent would hold that Plaintiffs harm was ascertainable as a matter of law more than four years before Plaintiff filed his malpractice suit. The dissent rests this conclusion on: (1) the fact that Plaintiff admitted retaining his new counsel several days before his new counsel entered an appearance; and (2) the rejection of Plaintiffs argument that the pertinent date is the date new counsel was retained, rather than the date Defendant ceased representing Plaintiff on this matter. I disagree.
“Determination of the timeliness of a claim as a matter of law is only proper if, under the undisputed facts, there is no room for a reasonable difference of opinion.” City of Roswell v. Chavez, 108 N.M. 608, 611, 775 P.2d 1325, 1328 (Ct.App.), cert. denied, 108 N.M. 624, 776 P.2d 846 (1989). Even if the facts are undisputed, “summary judgment should be denied if equally logical but conflicting inferences can be drawn from the facts in favor of the party opposing summary judgment.” Hutcherson v. Dawn Trucking Co., 107 N.M. 358, 360, 758 P.2d 308, 310 (Ct.App.1988).
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 Plaintiff’s behalf, I do not believe that, as a matter of law, the limitations period began running at that time, as suggested by the dissent. See Jaramillo, 93 N.M. at 434, 601 P.2d at 67. 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.