This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LESLIE W. GOLLIHEAIR,
3 Plaintiff-Appellant,
4 v. NO. 34,460
5 KRISTY FRANCHINI, individually and as an 6 Employee of the STATE OF NEW MEXICO and 7 PROGRESSIVE INSURANCE COMPANY 8 DIRECT and TITAN INDEMNITY COMPANY,
9 Defendants-Appellees.
10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 11 David P. Reeb, Jr., District Judge
12 Jane Rocha De Gandara 13 Los Lunas, NM
14 for Appellant
15 Atwood, Malone, Turner & Sabin, P.A. 16 Bryan D. Evans 17 Roswell, NM
18 for Appellee Kristy Franchini
19 Doughty, Alcaraz & deGraauw, P.A. 20 J. Andrew deGraauw 21 Amye G. Green 22 Albuquerque, NM 1 for Appellee Progressive Insurance Company
2 Beall & Biehler, P.A. 3 Gregory L. Biehler 4 Albuquerque, NM
5 for Appellee Titan Indemnity Company
6 MEMORANDUM OPINION
7 HANISEE, Judge.
8 {1} Plaintiff appeals the district court’s order dismissing Plaintiff’s lawsuit for
9 discovery violations and failure to comply with court orders. We issued a notice of
10 proposed disposition proposing to affirm, and Plaintiff has responded with a
11 memorandum in opposition, while Defendant Progressive Insurance Company has
12 filed a memorandum supporting summary affirmance. We have carefully considered
13 the arguments raised in Plaintiff’s memorandum; however, for the reasons stated in
14 the notice of proposed disposition and below, we continue to believe summary
15 affirmance is appropriate in this case. We therefore affirm the district court’s decision.
16 {2} The district court’s dismissal came only after Plaintiff, through his then-
17 attorney, failed to provide discovery materials after being ordered to do so in two
18 separate hearings and orders, despite assurances that the materials would be
19 forthcoming. Plaintiff, again through counsel, did not respond to the motion for
2 1 sanctions eventually filed by Defendants, and did not appear at the hearing held on
2 that motion. After the lawsuit was dismissed Plaintiff retained new counsel, who filed
3 a motion to reconsider the dismissal that was denied after full briefing. [RP 181, 206]
4 {3} In the notice of proposed disposition we pointed out that in civil cases, a client
5 is generally held responsible for the actions of his attorney. See Marchman v. NCNB
6 Texas Nat’l Bank, 1995-NMSC-041, ¶¶ 55-56, 120 N.M. 74, 898 P.2d 709. We also
7 noted that this rule has been applied even when the sanction imposed for the
8 attorney’s conduct is the extreme sanction of dismissal of a case. See Padilla v. Estate
9 of Griego, 1992-NMCA-021, ¶¶ 17-18, 113 N.M. 660, 830 P.2d 1348. A district
10 court’s decision to dismiss will only be overturned on appeal if the ruling is clearly
11 untenable, is contrary to logic and reason, or in some other manner constitutes an
12 abuse of discretion. See Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 13, 131
13 N.M. 317, 35 P.3d 972. In support of our proposal to find that the district court did not
14 abuse its discretion, we discussed the fact that Plaintiff’s explanation of his then-
15 attorney’s unspecified medical condition lacked any facts or analysis as to when the
16 condition began to affect the attorney, how the condition caused the attorney to fail
17 to perform the simple act of mailing a thumb drive to opposing counsel even after he
18 directly agreed to do so in open court, and whether the contents of the thumb drive
19 fully complied with the discovery requests submitted by Defendants. We also
3 1 discussed Plaintiff’s initial resistance to providing the financial information sought by
2 Defendants, despite the fact that the information was clearly relevant to Plaintiff’s
3 claim for damages in the form of lost income.
4 {4} Plaintiff’s memorandum in opposition presents essentially two main arguments:
5 first, that a lesser sanction such as a monetary sanction or exclusion of evidence would
6 have been more appropriate in this case; and second, that the conduct of Plaintiff’s
7 counsel was grossly negligent and Plaintiff should therefore not be held responsible
8 for that conduct. [MIO unnumbered pp. 3-4]
9 {5} In support of the first argument Plaintiff cites several cases in which the
10 sanction imposed for discovery violations was not dismissal, but a less serious
11 sanction such as exclusion of a witness, see Lewis, 2001-NMSC-035, ¶ 17, or an
12 award of attorney fees. See also Weiss v. THI of N.M. at Valle Norte, LLC, 2013-
13 NMCA-054, ¶¶ 21-22, 301 P.3d 875. Plaintiff contends the facts of those cases were
14 more egregious than the facts of this case, making the severe sanction of dismissal
15 inappropriate in this case. However, the fact that district courts involved in other cases
16 did not choose the most severe sanction available does not mean the district court in
17 this case committed an abuse of discretion by imposing the sanction of dismissal.
18 Plaintiff was initially ordered to produce the discovery within thirty days of November
19 13, 2013 [RP 118]; the materials were not forthcoming despite requests from defense
4 1 counsel directed at Plaintiff’s attorney [RP 143]; at a hearing held on May 27
2 Plaintiff’s attorney represented that he had a thumb drive containing the information
3 and would provide it within ten days [RP 130]; Plaintiff was ordered to do so on June
4 12 [RP 134] but did not comply with that order either; and finally Plaintiff did not file
5 a response to the motion for sanctions or appear at the hearing held on that motion.
6 [RP 173]
7 {6} Thus, Plaintiff (through counsel) directly disobeyed two different orders of the
8 district court, completely failed to produce the ordered discovery, and provided no
9 explanation to the district court for his failure. Under these circumstances, the district
10 court did not abuse its discretion in choosing the most serious sanction of dismissal
11 of the case; based on the information before it at the time, the district court could have
12 determined that its orders were being directly disobeyed and that Defendants would
13 not be provided the information they needed to prepare for trial. See United Nuclear
14 Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 397, 96 N.M. 155, 629 P.2d 231
15 (“When a party has displayed a willful, bad faith approach to discovery, it is not only
16 proper, but imperative, that severe sanctions be imposed to preserve the integrity of
17 the judicial process and the due process rights of the other litigants.”); see also Allred
18 ex rel. Allred v. Bd. of Regents of the Univ. of N.M., 1997-NMCA-070, ¶ 34, 123 N.M.
19 545, 943 P.2d 579
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LESLIE W. GOLLIHEAIR,
3 Plaintiff-Appellant,
4 v. NO. 34,460
5 KRISTY FRANCHINI, individually and as an 6 Employee of the STATE OF NEW MEXICO and 7 PROGRESSIVE INSURANCE COMPANY 8 DIRECT and TITAN INDEMNITY COMPANY,
9 Defendants-Appellees.
10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 11 David P. Reeb, Jr., District Judge
12 Jane Rocha De Gandara 13 Los Lunas, NM
14 for Appellant
15 Atwood, Malone, Turner & Sabin, P.A. 16 Bryan D. Evans 17 Roswell, NM
18 for Appellee Kristy Franchini
19 Doughty, Alcaraz & deGraauw, P.A. 20 J. Andrew deGraauw 21 Amye G. Green 22 Albuquerque, NM 1 for Appellee Progressive Insurance Company
2 Beall & Biehler, P.A. 3 Gregory L. Biehler 4 Albuquerque, NM
5 for Appellee Titan Indemnity Company
6 MEMORANDUM OPINION
7 HANISEE, Judge.
8 {1} Plaintiff appeals the district court’s order dismissing Plaintiff’s lawsuit for
9 discovery violations and failure to comply with court orders. We issued a notice of
10 proposed disposition proposing to affirm, and Plaintiff has responded with a
11 memorandum in opposition, while Defendant Progressive Insurance Company has
12 filed a memorandum supporting summary affirmance. We have carefully considered
13 the arguments raised in Plaintiff’s memorandum; however, for the reasons stated in
14 the notice of proposed disposition and below, we continue to believe summary
15 affirmance is appropriate in this case. We therefore affirm the district court’s decision.
16 {2} The district court’s dismissal came only after Plaintiff, through his then-
17 attorney, failed to provide discovery materials after being ordered to do so in two
18 separate hearings and orders, despite assurances that the materials would be
19 forthcoming. Plaintiff, again through counsel, did not respond to the motion for
2 1 sanctions eventually filed by Defendants, and did not appear at the hearing held on
2 that motion. After the lawsuit was dismissed Plaintiff retained new counsel, who filed
3 a motion to reconsider the dismissal that was denied after full briefing. [RP 181, 206]
4 {3} In the notice of proposed disposition we pointed out that in civil cases, a client
5 is generally held responsible for the actions of his attorney. See Marchman v. NCNB
6 Texas Nat’l Bank, 1995-NMSC-041, ¶¶ 55-56, 120 N.M. 74, 898 P.2d 709. We also
7 noted that this rule has been applied even when the sanction imposed for the
8 attorney’s conduct is the extreme sanction of dismissal of a case. See Padilla v. Estate
9 of Griego, 1992-NMCA-021, ¶¶ 17-18, 113 N.M. 660, 830 P.2d 1348. A district
10 court’s decision to dismiss will only be overturned on appeal if the ruling is clearly
11 untenable, is contrary to logic and reason, or in some other manner constitutes an
12 abuse of discretion. See Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 13, 131
13 N.M. 317, 35 P.3d 972. In support of our proposal to find that the district court did not
14 abuse its discretion, we discussed the fact that Plaintiff’s explanation of his then-
15 attorney’s unspecified medical condition lacked any facts or analysis as to when the
16 condition began to affect the attorney, how the condition caused the attorney to fail
17 to perform the simple act of mailing a thumb drive to opposing counsel even after he
18 directly agreed to do so in open court, and whether the contents of the thumb drive
19 fully complied with the discovery requests submitted by Defendants. We also
3 1 discussed Plaintiff’s initial resistance to providing the financial information sought by
2 Defendants, despite the fact that the information was clearly relevant to Plaintiff’s
3 claim for damages in the form of lost income.
4 {4} Plaintiff’s memorandum in opposition presents essentially two main arguments:
5 first, that a lesser sanction such as a monetary sanction or exclusion of evidence would
6 have been more appropriate in this case; and second, that the conduct of Plaintiff’s
7 counsel was grossly negligent and Plaintiff should therefore not be held responsible
8 for that conduct. [MIO unnumbered pp. 3-4]
9 {5} In support of the first argument Plaintiff cites several cases in which the
10 sanction imposed for discovery violations was not dismissal, but a less serious
11 sanction such as exclusion of a witness, see Lewis, 2001-NMSC-035, ¶ 17, or an
12 award of attorney fees. See also Weiss v. THI of N.M. at Valle Norte, LLC, 2013-
13 NMCA-054, ¶¶ 21-22, 301 P.3d 875. Plaintiff contends the facts of those cases were
14 more egregious than the facts of this case, making the severe sanction of dismissal
15 inappropriate in this case. However, the fact that district courts involved in other cases
16 did not choose the most severe sanction available does not mean the district court in
17 this case committed an abuse of discretion by imposing the sanction of dismissal.
18 Plaintiff was initially ordered to produce the discovery within thirty days of November
19 13, 2013 [RP 118]; the materials were not forthcoming despite requests from defense
4 1 counsel directed at Plaintiff’s attorney [RP 143]; at a hearing held on May 27
2 Plaintiff’s attorney represented that he had a thumb drive containing the information
3 and would provide it within ten days [RP 130]; Plaintiff was ordered to do so on June
4 12 [RP 134] but did not comply with that order either; and finally Plaintiff did not file
5 a response to the motion for sanctions or appear at the hearing held on that motion.
6 [RP 173]
7 {6} Thus, Plaintiff (through counsel) directly disobeyed two different orders of the
8 district court, completely failed to produce the ordered discovery, and provided no
9 explanation to the district court for his failure. Under these circumstances, the district
10 court did not abuse its discretion in choosing the most serious sanction of dismissal
11 of the case; based on the information before it at the time, the district court could have
12 determined that its orders were being directly disobeyed and that Defendants would
13 not be provided the information they needed to prepare for trial. See United Nuclear
14 Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 397, 96 N.M. 155, 629 P.2d 231
15 (“When a party has displayed a willful, bad faith approach to discovery, it is not only
16 proper, but imperative, that severe sanctions be imposed to preserve the integrity of
17 the judicial process and the due process rights of the other litigants.”); see also Allred
18 ex rel. Allred v. Bd. of Regents of the Univ. of N.M., 1997-NMCA-070, ¶ 34, 123 N.M.
19 545, 943 P.2d 579 (“Although dismissal under Rule 1-037 is an extreme sanction,
5 1 district courts have a duty to enforce compliance with rules of discovery, and they
2 should not shirk from imposition of the sanction of dismissal.” (alteration, internal
3 quotation marks, and citation omitted)).
4 {7} The fact that dismissal was an acceptable sanction does not end the inquiry in
5 this case; as we discussed above, Plaintiff also argues that he should not be held
6 responsible for the failings of his attorney because those failings constituted gross
7 negligence. It is true that New Mexico’s case law has suggested that there could be an
8 exception to general rule that a client is liable for the actions of his attorney. This
9 exception may apply if the attorney’s conduct amounts to gross negligence and the
10 client has been diligent in attempting to stay abreast of the court proceedings. See
11 Resolution Trust Corp. v. Ferri, 1995-NMSC-055, ¶¶ 18-20, 120 N.M. 320, 901 P.2d
12 738; see also Adams v. Para-Chem S., Inc., 1998-NMCA-161, ¶ 15, 126 N.M. 189,
13 967 P.2d 864 (construing Ferri to mean that a client must demonstrate personal
14 diligence that was thwarted by the client’s attorney, in order to escape the
15 consequences of the attorney’s gross failures).
16 {8} We have no problem determining that Plaintiff’s former counsel committed
17 gross negligence in ignoring informal requests from Defendants as well as two
18 different court orders, failing to respond to the motion for sanctions, and failing to
19 appear for the hearing held on that motion. The question therefore becomes whether
6 1 Plaintiff presented enough information to the district court about his own efforts to
2 stay on top of the case, as well as the way in which his attorney thwarted those efforts,
3 to demonstrate that the district court abused its discretion in holding Plaintiff
4 responsible for his attorney’s conduct. Plaintiff informed the district court that he gave
5 a thumb drive to his attorney shortly after the October 2013 hearing at which he was
6 ordered to produce the requested discovery materials. [RP 186] He also claimed that
7 he “diligently” contacted his attorney’s office on a “regular basis” to check on the
8 status of the case, and that his attorney communicated to him “on several occasions”
9 that the case was “ongoing.” [RP 187] Plaintiff averred that he received no
10 correspondence from his attorney, or notices of hearing, and was unaware the case had
11 been dismissed until he was contacted by current counsel. [Id.]
12 {9} We note, first, that in the district court Plaintiff did not clearly argue for a Ferri-
13 type exception to the general rule that a client is responsible for the conduct of his
14 attorney. In the motion to reconsider Plaintiff relied heavily on the concept of
15 ineffective assistance of counsel, which is applicable in criminal cases but not civil
16 cases such as this one. [RP 183-84] When Defendants pointed that out in their
17 response, Plaintiff filed a reply that did not cite Ferri and vaguely mentioned
18 Plaintiff’s “relationship with his counsel” without attempting to demonstrate
19 Plaintiff’s diligence in attempting to stay informed about the status of his case. [RP
7 1 199] It is difficult to find an abuse of discretion by the district court on the basis of a
2 legal theory that was not clearly argued to that court.
3 {10} In addition, as we discussed in the notice of proposed disposition, the factual
4 information presented to the district court was extremely general and lacking
5 important detail. There was no explanation of former counsel’s medical condition,
6 such as the nature and duration of the condition, that would have allowed the district
7 court to discern the cause of the attorney’s failings. In addition, Plaintiff indicated in
8 conclusory fashion only that he had contacted his attorney “regularly” and was told
9 the case was “ongoing” with no detail about how exactly it was “ongoing” and how
10 regularly he contacted his attorney. Plaintiff supplied the thumb drive to his attorney
11 in October 2013, and the case was not dismissed until eleven months later; the district
12 court could have concluded, if it was even presented with the issue, that Plaintiff was
13 not diligent in accepting vague assurances from his attorney that the case was
14 “ongoing” with apparently no activity of any kind for eleven months. An abuse of
15 discretion is committed only when the district court’s decision is contrary to logic and
16 reason or is untenable, see Lewis, 2001-NMSC-035, ¶ 13, and when the district court
17 is not clearly informed of specific facts and law demanding an opposite result, its
18 decision cannot be considered contrary to logic or untenable. We therefore determine
19 that no abuse of discretion was committed in this case.
8 1 CONCLUSION
2 {11} Based on the foregoing as well as the discussion in the notice of proposed
3 disposition, we affirm the district court’s decision in this case.
4 {12} IT IS SO ORDERED.
5 6 J. MILES HANISEE, Judge
7 WE CONCUR:
8 9 MICHAEL D. BUSTAMANTE, Judge
10 11 LINDA M. VANZI, Judge