Encinias v. Whitener Law Firm, P.A.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 17:24:50 2013.01.11
Certiorari Granted, December 6, 2012, No. 33,874

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-003

Filing Date: September 20, 2012

Docket No. 30,106

JOE ROBERT ENCINIAS,

Plaintiff-Appellant,

v.

WHITENER LAW FIRM, P.A.
and RUSSELL WHITENER,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Eugenio S. Mathis, District Judge

Will Ferguson & Associates
Roger V. Eaton
David M. Houliston
Albuquerque, NM

Sanders & Westbrook, P.C.
Maureen A. Sanders
Albuquerque, NM

for Appellant

Tax, Estate & Business Law, Ltd.
James T. Reist
Barry D. Williams
Albuquerque, NM

for Appellees

OPINION

1
KENNEDY, Judge.

{1} In 2006, the parents of Plaintiff Joe Robert Encinias met personally with Defendants
Whitener Law Firm, P.A. and Russell Whitener (collectively, Whitener) to pursue a lawsuit
against Encinias’s school district for a brutal beating that Encinias suffered at the hands of
two students during school hours. There is no dispute that Whitener took on the case and
failed to file the case within the statute of limitations. When Encinias inquired about the
status of the case, Whitener scurried to mend the situation by improperly filing the case with
the district court in order to show Encinias that it “would do what [it] could.” Whitener
voluntarily dismissed the lawsuit in the face of sanctions. When sued for malpractice,
misrepresentation, and violating the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1
to -26 (1967, as amended through 2009), Whitener ran for the cover of our malpractice case
law that holds that a case for legal malpractice cannot lie where the underlying action would
not be viable. See Richardson v. Glass, 114 N.M. 119, 122, 835 P.2d 835, 838 (1992). The
district court granted summary judgment on all three causes of action against Whitener.

{2} The liability of a school for a student’s injuries under the New Mexico Tort Claims
Act (TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2010), has not been
the most clearly delineated of legal principles, and it is that very pool of murky law into
which we must dive to assess whether Encinias had a claim that could have succeeded
against the school district. Thus, this case is as much about the TCA’s application to
schools, as it is about Whitener in handling Encinias’s case. As we explain further below,
we hold that the seemingly broad rule about school immunity stated in Upton v. Clovis Mun.
School Dist., 2006-NMSC-040, 140 N.M. 205, 141 P. 3d 1259, does not extend so far as to
provide relief to Encinias in this case. We also determine that his claims for
misrepresentation and unfair trade practices must fail as well. We affirm the district court’s
orders granting summary judgment to Whitener on all claims.

I. BACKGROUND

{3} In September 2004, Encinias was attacked during the lunch period at his high school
in Las Vegas, New Mexico, by one or two fellow students. The attack occurred on a street
adjacent to the school that was roped off by the school for lunch vendors to provide food to
the students. As a result of the attack, Encinias suffered serious injuries that required him
to be airlifted to Albuquerque for medical treatment. No school faculty or security was
monitoring that area at the time of the attack. It is disputed whether, pursuant to a school
safety policy, a member of the school personnel was supposed to be watching the area where
the attack occurred during the lunch period.

{4} In January 2006, Encinias contacted Whitener to represent him in a suit against the
high school after seeing advertisements on television and in a phone book for the firm.
Whitener agreed to represent Encinias, but then failed to bring suit within the statute of
limitations. Encinias contends that Whitener “engaged in a series of misrepresentations
about the case’s merits, its status, and the missed statute of limitations for filing the case.”

2
Subsequently, Encinias sued under several causes of action, three of which are before us
today—malpractice, violations of the UPA, and misrepresentation. Whitener moved for
summary judgment on each claim. The district court granted summary judgment on all
claims. Encinias now appeals from orders granting summary judgment on the UPA claim,
the misrepresentation claim, and the underlying case.

II. STANDARD OF REVIEW

{5} “We are mindful that summary judgment is a drastic remedial tool which demands
the exercise of caution in its application, and we review the record in the light most
favorable to support a trial on the merits.” Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145
N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted). “Summary
judgment is appropriate where there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-
046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review these legal questions de novo.” Id. “We
also review the applicability of the TCA de novo.” Upton, 2006-NMSC-040, ¶ 7.

{6} We consider an issue of fact to be genuine “if the evidence before the court
considering a motion for summary judgment would allow a hypothetical fair-minded
fact[]finder to return a verdict favorable to the non-movant on that particular issue of fact.”
Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d 873, rev’d
on other grounds, 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280. We consider an issue of
fact to be “material if the existence (or non-existence) of the fact is of consequence under
the substantive rules of law governing the parties’ dispute.” 2009-NMCA-022, ¶ 12 (internal
quotation marks omitted). “[T]he party opposing summary judgment has the burden to show
at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue
of fact.” Eisert v. Archdiocese of Santa Fe, 2009-NMCA-042, ¶ 10, 146 N.M. 179, 207 P.3d
1156 (internal quotation marks and citation omitted).

III. DISCUSSION

A. The School Did Not Waive Its Immunity Under the TCA

{7} The district court granted Whitener’s motion for summary judgment, holding that
Encinias’s malpractice claim must fail because the underlying claim was barred by the
school’s immunity from suit. See Richardson, 114 N.M. at 122, 835 P.2d at 838 (“[The
p]laintiff ha[s] the burden of not only proving her counsel’s negligence, but also that she
would have recovered at trial in the underlying action.”). The district court concluded that
“while . . . parents rely on school officials to protect their children, and schools develop
policies in an attempt to achieve this end, schools like other governmental agencies do not
have a duty to do everything that might or could have been done.” See Cobos v. Doña Ana
Cnty. Hous. Auth., 1998-NMSC-049, ¶ 6, 126 N.M. 418, 970 P.2d 1143 (quoting the
legislative purpose of the TCA that “government should not have the duty to do everything
that might be done”); § 41-4-2(A). Thus, the first issue before us is whether the claim

3
Encinias sought to bring against the school was barred as a matter of law by immunity under
the TCA, thereby foreclosing Encinias’s claim for malpractice.

{8} The State is generally granted immunity from suit, but the TCA waives that immunity
in “certain defined circumstances.” Cobos, 1998-NMSC-049, ¶ 6. “Generally, the [TCA]
provides governmental entities and public employees acting in their official capacities with
immunity from tort suits unless the Act sets out a specific waiver of that immunity.”
Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t, 2010-NMCA-021, ¶ 18, 147 N.M. 720, 228
P.3d 504 (internal quotation marks and citation omitted), aff’d, 2011-NMSC-039, 150 N.M.
650, 265 P.3d 701; see § 41-4-4(A) (providing that, with few statutory exceptions, “[a]
governmental entity and any public employee while acting within the scope of duty are
granted immunity from liability for any tort”). Section 41-4-6(A) is one such waiver, and
it provides that the “immunity granted pursuant to Subsection A of Section 41-4-4 . . . does
not apply to liability for damages resulting from bodily injury . . . caused by the negligence
of public employees while acting within the scope of their duties in the operation or
maintenance of any building[.]” (Emphasis added.) The central question is whether the
negligent operation or maintenance of a building creates a “dangerous condition that
threatens the general public or a class of users of the building.” Upton, 2006-NMSC-040,
¶ 8. Contrary to Encinias’s arguments, Upton is distinguishable from this case and does not
compel us to conclude that the school is subject to the limited waiver of immunity to be
liable for his injuries.

{9} Encinias argues that he “had a claim that on the day he was beaten, school personnel
were negligent while they were acting within the scope of their duties in the operation or
maintenance of the school [and thus,] the school district did not have a defense of immunity
to the claims.” More specifically, Encinias argues that the school’s negligent execution of
its safety policies for patrolling the campus during the lunch period, and the school’s failure
to keep a suspended student off campus, resulted in his injuries. Evidence proffered below
indicates that it may have been the responsibility of a security guard or faculty member to
patrol the food vendor area and that no one patrolled that area at the time of the attack.
Encinias contends that he was first hit by fellow student and friend, Michael Salazar, and
then by a second assailant, Chris Chavez, who had been suspended from school on the
morning of the attack, but entered the campus area for no apparent reason but to attack
Encinias. Salazar attested in his affidavit that a security guard or teacher usually patrolled
the food vendor area, but neither was present at the time of the attack. In an affidavit, the
assistant principal stated that the location of the attack near the food vendors was a known
“[h]ot zone” for student violence and that a security guard was supposed to patrol that area
during the lunch period.

{10} Encinias relies in part upon Upton to argue that the school’s immunity was waived
by its negligence. See id. ¶ 9. In Upton, a student had been allowed to limit her participation
in a mandatory physical education class owing to her asthma. Id. ¶ 2. Her condition was
also noted in an “Individualized Education Plan . . . , an agreement between parents of
children with special needs and educators specifying certain educational goals and the

4
special services their child would require.” Id. Subsequently, a substitute teacher, who was
not informed of the waiver, required the student to engage in strenuous exercise during gym
class and would not let her take a break from it when she became uncomfortable. Id. ¶¶ 3,
10. When the student suffered an asthma attack as a result of the exercise, the school
responded slowly and inappropriately to the situation, resulting in the student’s death. Id.
¶¶ 4-5. The New Mexico Supreme Court concluded that the school was not immune from
suit under the TCA because it was negligent in administering its safety procedures in
operation of the school building. Id. ¶ 25. The Supreme Court explained that “[j]ust as
schools generally have safety procedures in place for various kinds of emergencies, a school
simply cannot operate in a safe, reasonable, and prudent manner without affording, at the
very least, the health and safety services that students have been promised, and upon which
parents have relied.” Id. ¶ 13. Encinias contends that, in this case, the school’s negligent
failure to follow its own safety procedures endangered all of the students in the food vendor
area and resulted in his injury, thus waiving the school’s immunity from suit under the TCA.
We disagree with Encinias and conclude that Upton represents a different set of
circumstances that falls outside one of the exceptions that would waive immunity under the
TCA. See id. ¶ 9.

{11} Whitener asserts that Encinias’s underlying claim against the school differs from
Upton because his claim is fundamentally about negligent supervision “that [the school]
failed to have security guards or other personnel physically in place at the precise time and
location of the assault[.]” Case law has established that “it is not enough to show that public
employees negligently supervised persons in their care and that the resulting injury occurred
on public property.” Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 7, 123 N.M. 353, 940
P.2d 459. In Pemberton v. Cordova, a student struck and injured another student on campus.
105 N.M. 476, 477, 734 P.2d 254, 255 (Ct. App. 1987). The injured student sued the school,
arguing the school waived its TCA immunity under the Section 41-4-6(A) building waiver.
Id. at 477-78, 734 P.2d at 255-56. On appeal, this Court concluded that, under the TCA, a
school could not waive its immunity under a theory of negligent supervision because
negligent supervision was not a specified exception to the general grant of immunity, so as
to establish a waiver under the TCA. Id. at 478, 734 P.2d at 256.

{12} The Supreme Court reiterated this principle in Espinoza v. Town of Taos, where a
child was injured on a public playground after falling from a slide while participating in a
city-sponsored day camp. 120 N.M. 680, 681-82, 905 P.2d 718, 719-20 (1995). The
Supreme Court concluded that the city’s immunity had not been waived under Section 41-4-
6 because the child’s parents solely argued that the city camp negligently supervised their
child. Id. at 682-83, 905 P.2d at 720-21. The Supreme Court concluded that the playground
slide was not a condition of the premises that would be dangerous without supervision. Id.
at 682-84, 905 P.2d at 720-22.

{13} We agree with Whitener that Encinias’s claim, although couched in terms of a failure
to follow a safety policy, is solely a claim for negligent supervision. The school’s
procedures would have done no more than require the presence of a teacher or security guard

5
in a specific area to watch students. The only negligence alleged is the failure to supervise.
Encinias cites to Upton, which offers guidance in making this distinction. In Upton, the
Supreme Court restated the principle that immunity cannot be waived by negligent
supervision alone. 2006-NMSC-040, ¶ 16. The Court explained that for the plaintiff to
succeed in waiving immunity under a theory of negligent supervision, the negligent
supervision must be directly tied to the operation and maintenance of the building. Id. As
an example, the Court analyzed Espinoza, concluding that “[t]he key point in [that case] is
that the negligence must be of a kind which makes the premises dangerous, or potentially
so, to the affected public, the consumers of the service[,] or the users of the building” to
waive immunity. Upton, 2006-NMSC-040, ¶ 23. The Upton Court explained that, “[i]f the
only alleged misconduct toward [the student] had been the substitute . . . teacher failing to
watch her while she participated in physical exercise, . . . Upton’s claim would be . . .
practically identical to the single claim of negligent supervision we found inadequate in
Espinoza.” Upton, 2006-NMSC-040, ¶ 21.

{14} In the case before us, the alleged negligence is based upon the failure of a security
guard or faculty member to monitor an area of the school. The negligence in Upton was far
broader and greater than what is present here. In Upton, the school’s failure to appropriately
respond to an existing medical emergency generally “created a dangerous condition . . . for
every student at the school[,]” and the school’s subsequent indifference to the child’s special
needs when unable to breathe made it likely that all similarly situated students were at risk
as well. Id. ¶ 24. In the present case, no evidence was presented to show that the failure to
monitor the vendor area created a dangerous condition to the students in that area.

{15} We note that this same principle—that the negligence must make the premises
dangerous—has been applied in the other cases that Encinias relies on to argue that the
school’s negligence was the type that would result in waiver of immunity. See Williams v.
Cent. Consol. Sch. Dist., 1998-NMCA-006, ¶ 17, 124 N.M. 488, 952 P.2d 978 (holding that
the school district’s immunity was waived because of the negligence of its own employees
in failing to deal with a design defect in the windows of the school building); Leithead,
1997-NMCA-041, ¶¶ 15-16 (waiving immunity where the lifeguard’s negligence made the
pool dangerous and resulted in the drowning of a child because lifeguard supervision was
essential to the nature of a safe public pool); see also Bober v. N.M. State Fair, 111 N.M.
644, 652-53, 808 P.2d 614, 622-23 (1991) (holding that the State Fair was not immune from
liability under the TCA when the location of entrances and traffic flow into the State Fair
created unsafe conditions for motorists); Castillo v. Santa Fe Cnty., 107 N.M. 204, 206-07,
755 P.2d 48, 50-51 (1988) (waiving the county’s immunity with regard to a county-owned
and operated public housing project when a loose dog bit an invitee and remanding for
factual development regarding whether the county knew of dogs running loose within the
project, which posed an obvious danger to all residents and visitors).

{16} In this case, Encinias alleges that a security guard or teacher failed to patrol the area
in accordance with stated policies and procedures. This failure does not consequently make
the premises dangerous or potentially dangerous to the affected public. Although we could

6
imagine a situation where an area on campus was so inherently dangerous as to require
supervision to make the area safe, Encinias failed to provide any evidence that this was the
case. No other duties for active supervision to implement policies against fighting in this
context are shown, nor is the failure of any policy to actively exclude a suspended student
from the premises after he is sent home. The school’s immunity is a threshold legal
determination as to whether there was building waiver. See Cobos, 1998-NMSC-049, ¶ 5;
Williams, 1998-NMCA-006, ¶ 8. In response to Whitener’s motion for summary judgment,
Encinias had the burden of producing sufficient evidence to support a determination that the
building waiver applied; i.e., that some condition of the property made the area so inherently
dangerous that supervision was necessary to make it safe. See Dow v. Chilili Coop. Ass’n,
105 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986) (explaining that a party opposing
summary judgment may not simply argue that evidentiary facts requiring a trial on the merits
may exist).

{17} Here, Encinias relies entirely on a statement from a former assistant principal that the
area was “considered to be a ‘hot zone’ for potential trouble around the school” to support
the dangerous condition aspect of his building waiver argument. In her affidavit, the former
assistant principal stated that “[h]ot zones were locations where students congregate and
where there has been a history of problems that exist such as fights.” No other evidence
supported Encinias’s contention that the area was inherently dangerous. Not only does the
former assistant principal’s statement amount to a legal conclusion that a dangerous
condition existed, but it is insufficient to support a conclusion that supervision was
necessary. We know nothing about the frequency of student violence in the area, or why the
violence would occur in this area, so as to require supervision to make it safe. Even viewing
the evidence in the light most favorable to Encinias, a mere statement that the area was a
“hot zone for trouble,” without more, is insufficient to support a conclusion that a condition
existed on the premises, so as to require supervision to make it safe.

{18} Thus, supervision alone will not be enough to waive immunity. To the extent that
Encinias argues that safety policies were not followed to prevent a suspended student from
accessing a street adjacent to an open campus where food trucks were parked at lunch and
students could come and go at will, we conclude that this also amounts to negligent
supervision. The negligent act at issue with regard to the suspended student rests entirely
on the security guard’s or faculty member’s absence in supervising the area where the attack
occurred.

{19} Furthermore, to the extent that the Dissent relies on aspirational goals, specifically
the “benchmarks” stated in the school’s report card as establishing safety policies, such goals
are irrelevant. Encinias sought to prove that the school failed to follow the specific policy
of having personnel patrol the lunch truck area and that such a failure waived immunity.
Even assuming it was a safety policy and that the school failed to implement the policy,
Encinias failed to show that supervision was necessary to keep the area safe. As stated
above, failure to patrol amounts to inadequate supervision, which, alone, is insufficient to
waive immunity.

7
{20} In addition, the Dissent fails to explain why “the case now before us should stand or
fall as a negligent operation or maintenance case, not a negligent supervision case.” Dissent
¶ 40. The Dissent cites generally to Callaway v. New Mexico Dep’t. of Corr., 117 N.M. 637,
875 P.2d 393 (Ct. App. 1994), and Castillo v. Cnty. of Santa Fe, 107 N.M. 204, 755 P.2d 48
(1988) for support. These cases are plainly distinguishable to the case at bar.

{21} In Callaway, the plaintiff prisoner was attacked by three inmates, who were known
and dangerous gang members, who had been allowed inside a recreational room of the
prison, which had potential weapons, blind spots, and only two prison guards. This Court
explained:

The structural design and layout of the recreation room added to the danger
of the situation in that the room [had] blind corners, a stair well, and other
areas which [were] shielded from direct observation by the recreation
officers. In addition, potential weapons such as weight bars and pool cues
[were] located in the recreation area.

117 N.M. at 639, 875 P.2d at 395. We concluded that “[the d]efendants knew or should have
known that roaming gang members with a known propensity for violence had access to
potential weapons in the recreation area, that such gang members created a dangerous
condition on the premises of the penitentiary, and that the danger to other inmates was
foreseeable.” Id. at 643, 875 P.2d at 399.

{22} In contrast to the case at bar, the evidence in Callaway clearly supported a conclusion
that an inherently dangerous condition existed. In operating the prison, the defendants
corralled convicted felons, who were also known gang members, in a room where they had
the means and opportunity to assault fellow prisoners. Callaway dealt with more than mere
supervision because the operation of the prison necessarily involved the containment and
restraint of potentially dangerous persons and their access to weapons and new inmates.
Nonetheless, to the extent that it could be construed as a supervision case, supervision was
obviously necessary to make the recreation room safe under these circumstances. No such
facts in the present case allow us to reach a similar conclusion that there is a dangerous
condition requiring supervision within the food truck area.

{23} Furthermore, Castillo, which is not a supervision case, presents facts that
demonstrate the existence of a known dangerous condition. In Castillo, a three-year-old
child was severely bitten by a dog roaming loose on the grounds of the county’s public
housing project. 107 N.M. at 205, 755 P.2d at 49. Under the more deferential standard of
a motion to dismiss, our Supreme Court concluded that allegations that the defendant had
knowledge of “the unsafe condition represented by dogs running loose within the project”
was sufficient to state a claim for waiver of immunity. Id. at 207, 755 P.2d at 51. Unlike
Castillo, the case at bar comes before us on a motion for summary judgment and, thus,
Encinias had the burden to produce evidence sufficient to prove waiver. Mere allegations
and legal conclusions are insufficient. In addition, the facts provided in Castillo demonstrate

8
a dangerous condition that the defendant knew about and had a duty to address. The
negligent act alleged in Castillo is much more than the mere supervision we address in the
present case.

{24} Therefore, we conclude that the school did not waive its immunity under the TCA
because Encinias solely alleged negligent supervision and failed to provide sufficient
evidence of a dangerous condition requiring supervision. The district court did not err in
granting summary judgment on this claim.

B. Encinias Failed to Make a Prima Facie Case for a Claim Under the UPA

{25} Encinias appeals the district court’s order granting summary judgment with regard
to his UPA claim. At trial, the district court found that the UPA did not apply to attorneys,
and “there [wa]s no genuine issue of material fact that the advertising at issue was false and
misleading under the [UPA,] and [Encinias] has failed to establish a prima facie claim.”
Assuming, without deciding, that the UPA applies to attorneys and their advertising, we
conclude that the district court properly granted summary judgment on Encinias’s UPA
claim against Whitener.

In order to state a claim under the UPA, a complaint must contain allegations
to the effect that[] (1) the defendant made an oral or written statement, a
visual description or a representation of any kind that was either false or
misleading; (2) the false or misleading representation was knowingly made
in connection with the sale, lease, rental, or loan of goods or services in the
regular course of the defendant’s business; and (3) the representation was of
the type that may, tends to, or does deceive or mislead any person.

Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166 P.3d 1091.
“The subjective belief of the party receiving the information is not sufficient to establish a
violation of the Act.” Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017,
¶ 60, 124 N.M. 549, 953 P.2d 722.

{26} At trial, Encinias based his UPA claim upon allegedly misleading advertisements
about the firm’s abilities made on a magnet in a phone book and in a television commercial
by Whitener. To the extent Encinias argues on appeal that acts other than the advertisements
constitute a violation of the UPA, or that he interpreted the advertisements to indicate that
Russell Whitener was going to personally represent him, we will not address these
arguments, as they were not made below. Builders Contract Interiors, Inc. v. Hi-Lo Indus.,
Inc., 2006-NMCA-053, ¶ 5, 139 N.M. 508, 134 P.3d 795 (declining to address an argument
made for the first time on appeal).

{27} In this case, the television commercial at issue featured Russell Whitener
saying—“don’t accept a quick check until you check with me”—and mentioned car
accidents. The phone book magnet basically had the same language printed on it and listed

9
the firm’s areas of practice as “serious injuries[,] auto accidents[, and] wrongful death.”
(Emphasis omitted.) At the hearing on the motion for summary judgment, Encinias argued
that these advertisements were misleading because Russell Whitener said that the “Whitener
[Law Firm] would act as attorneys, [but] they didn’t.” Encinias repeatedly argued that the
misleading aspect of the advertisements rested entirely on Whitener’s failure to act as
attorneys in accordance with what was asserted in the advertising. In response, the court
pointed out that Encinias’s whole argument about Whitener’s failure to act as attorneys
rested on a missed deadline. The court subsequently indicated that it did not find the
advertisements misleading or false and that Encinias failed to establish a prima facie case
for his UPA claim.

{28} We likewise reason that no hypothetical fair-minded fact finder would find these
advertisements misleading or false. Romero, 2009-NMCA-022, ¶ 12 (“An issue of fact is
genuine if the evidence before the court considering a motion for summary judgment would
allow a hypothetical fair-minded fact[]finder to return a verdict favorable to the non-movant
on that particular issue of fact.” (internal quotation marks and citation omitted)). The
advertisements simply indicate Whitener’s area of practice—personal injury
lawsuits—which appears to be accurate. The advertisements do not deceive the audience
with guarantees or promises. Although failing to file a case within the applicable statute of
limitations falls below the standard of practice generally expected of attorneys, we conclude
that no genuine disputed material fact existed as to whether the advertisements were
misleading or false. See In re Reid, 116 N.M. 38, 39-40, 859 P.2d 1065, 1066-67 (1993) (per
curiam) (determining that there was professional misconduct where an attorney delayed three
years before filing a lawsuit, failed to keep the client reasonably informed of the true status
of the matter, and failed to investigate factual and legal basis of the client’s case). Because
Encinias could not establish the first requirement of his UPA claim, summary judgment was
properly granted.

C. Misrepresentation Claim

{29} Lastly, Encinias argues that the district court also improperly granted summary
judgment of his claim for misrepresentation. In addition to renewing his argument with
regard to the advertisement in the form of a misrepresentation claim, Encinias contends that
Whitener made misrepresentations by (1) failing to disclose information about the status of
the case against the school district, (2) misrepresenting the statute of limitations, and (3)
concealing Whitener’s failure to file the case within the statute of limitations. Although
from the exhibits in the record it appears that Whitener withheld information from Encinias
and that such behavior could be found negligent, we nonetheless conclude that the district
court properly granted summary judgment because Encinias failed to establish that he was
damaged by these acts.

{30} Both negligent and intentional fraudulent misrepresentation require that Encinias
suffer damages as a result of the misrepresentation. See UJI 13-1632 NMRA; UJI 13-1633
NMRA; UJI 13-1631 NMRA; Williams v. Stewart, 2005-NMCA-061, ¶ 34, 137 N.M. 420,

10
112 P.3d 281 (“[A] plaintiff alleging fraud may recover such damages as are the direct and
natural consequences of the reliance on a fraudulent representation.” (internal quotation
marks and citation omitted)); Charter Servs., Inc. v. Principal Mut. Life Ins. Co., 117 N.M.
82, 86, 868 P.2d 1307, 1311 (Ct. App. 1994) (“Damages for negligent misrepresentation are
those proximately caused by the misrepresentation.”). In his brief, complaint, and
memorandum in opposition to Whitener’s motion for summary judgment on the
misrepresentation claim, Encinias makes it clear that the only damages he incurred from the
misrepresentation resulted from his inability to change his representation in order to file his
case against the school district in a timely manner. Encinias did not argue nominal or
punitive damages on appeal or below. Since Encinias cannot succeed on his underlying
claim because of the school district’s immunity under the TCA, he was not damaged by
Whitener’s misrepresentations, and the district court properly dismissed Encinias’s
misrepresentation claim.

IV. CONCLUSION

{31} For the reasons stated above, we conclude the district court did not err in granting
summary judgment to Whitener, and we affirm its judgment.

{32} IT IS SO ORDERED.

____________________________________
RODERICK T. KENNEDY, Judge

I CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

JONATHAN B. SUTIN, Judge (dissenting).

SUTIN, Judge (dissenting).

{33} I respectfully dissent.

{34} The Majority Opinion acknowledges that “[t]he central question is whether the
negligent operation or maintenance of a building creates a ‘dangerous condition that
threatens the general public or a class of users of the building.’” Majority Opinion, ¶ 8. The
Opinion cites and discusses Upton, 2006-NMSC-040, as though Upton is the case on which
Encinias places his main reliance. Majority Opinion, ¶¶ 2, 8, 10-11, 13-14. The Opinion
holds “that the seemingly broad rule about school immunity stated in Upton . . . does not
extend so far as to provide relief to Encinias in this case.” Majority Opinion, ¶ 2. Yet the
Opinion acknowledges that “[e]vidence proffered below indicates that it may have been the
responsibility of a security guard or faculty member to patrol the food vendor area and that

11
no one patrolled that area at the time of the attack.” Id. ¶ 9. The Opinion acknowledges that
“[i]n an affidavit, the assistant principal stated that the location of the attack near the food
vendors was a known ‘hot zone’ for student violence and that a security guard was supposed
to patrol that area during the lunch period[,]” and further that “‘hot zones were locations
where students congregate and where there has been a history of problems that exist such
as fights.’” Id. ¶¶ 9, 17 (alterations omitted). The Opinion acknowledges that, in another
affidavit, an affiant stated that “a security guard or teacher usually patrolled the food vendor
area, but neither was present at the time of the attack.” Id. ¶ 9. The Opinion acknowledges
that Encinias’s claim is “couched in terms of a failure to follow a safety policy[.]” Id. ¶ 13.
And the Opinion acknowledges that “Encinias alleges that a security guard or teacher failed
to patrol the area in accordance with stated policies and procedures.” Id. ¶ 16.

{35} The Majority Opinion appears to acknowledge the existence of the school’s printed
“report card[.]” Majority Opinion, ¶ 19. The report card states, “[e]ach year, every New
Mexico school district is required to collect and report to its community a variety of
information about the district and its schools” and also states that “[t]his report card includes
data for the five required statewide indicators[,]” listing “School Safety” as one of the five
indicators. The report card explains that “[t]o demonstrate school safety, schools are asked
to report” such matters as:

• an accepted school-level safety plan;
...
• a plan for staff development in the area of school safety;
• identified goals and benchmarks for progress toward school safety”;

and, under “Benchmarks,” that

2. Local school district plans for safe schools will be developed and
implemented to assure the safety of all students and staff at school.
....
5. School staff will not tolerate harassment of anyone in any form at
school. . . .
....
10. School district will ensure that school buildings and grounds are
designed or adapted to promote security.

And, last, the report card states:

The safety of students and staff is a primary concern of the current [school]
administration. We have implemented a program to review and address all
of our policies and procedures in our school safety handbook. A district
consortium of school personnel, law enforcement, and fire department
officials has been assembled to review all aspects of school safety at all the
school sites including [Robertson High School]. As part of that program, we

12
 are conducting extensive drills to insure the safety of all staff and students in
our care. Additionally, the [school] campus has been undergoing extensive
remodeling to its building to ensure the safety codes outlined by state and
local authorities are being met.

Concerning the Number of Police Reported Incidents, the administration
believes that our numbers are well below [s]tate averages. However, we also
believe that any criminal activity on school grounds is unacceptable. We
have initiated a number of procedures to help reduce criminal activity at [the
school] including the following: we have brought drug dogs to search the
entire campus; we have two security guards to patrol our campus daily; we
have a mediation program consisting of school counselors to conduct
mediations whenever there is a conflict with [the school’s] students; and we
have placed security cameras throughout the campus to better enable the
policing of our campus.

We take the safety of all of [the] students and staff very seriously at [the
school,] and we are implementing policies and programs to ensure
everyone’s safety.

This report card document evidences a definite safety policy with respect to safety of
students and implementation of the policy, as well as implementation of programs to ensure
safety.

{36} The affidavit of a security guard at the school stated that, of two guards, one “would
be at an area where the students congregated for the lunch period.” “One of the specific
areas” mentioned in this affidavit is the location in question, namely, “the location of the
vendor trucks on [Fifth] Street in front of the Administration Building.” This affidavit at the
very least raises a reasonable inference that a guard was to be stationed at the area where
Encinias was attacked, pursuant to the policies and programs of the school to ensure the
security and safety of students.

{37} The assistant principal’s affidavit stated that “[t]he area where the vendor trucks
parked was considered to be a ‘hot zone’ for potential trouble around the school.” She stated
that a security guard “was responsible for watching that area.” She defined “hot zones” as
“locations where students congregate and where there has been a history of problems that
exist such as fights.” This evidence imputes knowledge on the part of the school that the
area where Encinias was attacked was an unsafe area requiring security. Further, the
affidavit stated that at least a portion of the duty of the assistant principal during the lunch
period was to patrol this area.

{38} In deposition testimony, Encinias’s expert (Blauvelt) testified that it was his opinion
that “[s]chool administration has a duty to protect students in the identified danger zone.”

13
The witness further stated that the school had identified the vendor area as a danger zone in
the school’s “Emergency Procedures[.]”

{39} Our case law solidly holds that, in the context of Section 41-4-6, the phrase
“operation or maintenance” must be interpreted broadly. See Williams, 1998-NMCA-006,
¶ 10 (“We . . . observe that on several occasions our Supreme Court has rejected a narrow
view of ‘operation or maintenance’ with respect to public buildings, in favor of a broad
interpretation of Section 41-4-6[.]”). Under a broad interpretation, Section 41-4-6 includes
a duty “to exercise reasonable care to prevent or correct dangerous conditions on public
property.” Williams, 1998-NMCA-006, ¶ 10.

{40} The Majority Opinion changes from analysis of the reach of negligent operation or
maintenance to the concept of negligent supervision, focusing on a view that Encinias’s
allegation “is solely a claim for negligent supervision.” Majority Opinion, ¶¶ 11-13, 17-18.
When the issue is whether the negligence is that of supervision or that of operation or
maintenance, the development of the still mushy, or as the Majority characterizes it,
“murky,” law of immunity waiver still has a way to go. The Majority Opinion does not
advance the development. It is not helpful to hold as the Majority does that the
circumstances as a matter of law constitute negligent supervision by relying on fully
distinguishable negligent supervision cases. Nor is it helpful to distinguish Upton, an
operation and maintenance case far different from this case. Encinias actually places little
reliance on Upton. It seems to me that the case now before us should stand or fall as a
negligent operation or maintenance case, not a negligent supervision case.

{41} As indicated in the Majority Opinion, Whitener sought, and the district court granted,
the cover of malpractice case law precluding malpractice relief where it is obvious that the
state (here the school or school district) was immune from tort liability if it were sued in an
action and therefore obvious that the underlying claim would not be viable. Majority
Opinion, ¶ 1. Whether an action is viable depends on whether it states a claim of breach of
a duty “to exercise reasonable care to prevent or correct dangerous conditions on public
property.” Williams, 1998-NMCA-006, ¶ 10. In this case, the evidence presented on the
issue of negligent operation or maintenance of public property included the known existence
of a danger zone for violence at a particular location and during a particular segment of time
that students congregated. From evidence presented, a reasonable inference could be drawn
that the school had implemented a safety policy by requiring a security guard to be at the
danger zone and by having a faculty member patrol at the area during the danger period.

{42} The failure of security and safety under these circumstances could constitute the
creation of a dangerous condition that threatened students congregating in the area. In my
view, this comes closer to the Section 41-4-6 building and grounds immunity waiver cases
than to those hinged on negligent supervision. See Cobos, 1998-NMSC-049, ¶ 18 (imposing,
based on “the relationships of the actors[,] . . . at least limited duties of operation or
maintenance”); Bober, 111 N.M. at 653, 808 P.2d at 623 (adopting the “broader view”
articulated in Castillo that Section 41-4-6 contemplated immunity waiver with respect to

14
negligent injury “aris[ing] from an unsafe, dangerous, or defective condition on property”
and permitting an action under that section where the State Fair failed to install traffic
control devices); Castillo, 107 N.M. at 207, 755 P.2d at 51 (holding a waiver of immunity
if the Housing Authority had knowledge “of the unsafe condition represented by dogs
running loose within the project”); Williams, 1998-NMCA-006, ¶¶ 1-2, 17 (permitting an
action under Section 41-4-6 for a school’s negligence in failing to place safety glass in a
window and with no protective device to shield it); Leithead, 1997-NMCA-041, ¶¶ 1, 12
(permitting an action under Section 41-4-6 for negligent provision of lifeguard services at
a public swimming pool “even though it may also involve elements of negligent supervision
of children”); Callaway, 117 N.M. at 643, 875 P.2d at 399 (holding that the plaintiff stated
a claim under Section 41-4-6 for “allowing the known and dangerous gang members loose
to victimize the general prison population”).

____________________________________
JONATHAN B. SUTIN, Judge

Topic Index for Encinias v. Whitener Law Firm, P.A., No. 30,106

APPEAL AND ERROR
Standard of Review

ATTORNEYS
Legal Malpractice

CIVIL PROCEDURE
Limitation of Actions
Summary Judgment
Waiver

GOVERNMENT
Education and Schools
Sovereign Immunity

MISCELLANEOUS STATUTES
Unfair Practices Act

TORTS
Legal Malpractice
Negligence
Premises Liability
Tort Claims Act

15