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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: 

3 Filing Date: September 23, 2013

4 No. 31,595

5 JEFFERY POTTER, 

6 Plaintiff-Appellant,

7 v.

8 CHRIS PIERCE, WILLIAM DAVIS, 

9 DAVIS & PIERCE, P.C., and JOHN DOE LAW FIRM,

10 Defendants-Appellees.

11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

12 Carl J. Butkus, District Judge

13 William G. Gilstrap, P.C.

14 William G. Gilstrap

15 Albuquerque, NM

16 Law Offices of Daymon B. Ely

17 Daymon B. Ely

18 Albuquerque, NM

19 for Appellants
1 Domenici Law Firm

2 Pete V. Domenici, Jr.

3 Lorraine Hollingsworth

4 Albuquerque, NM

5 for Appellees

6 OPINION

7 HANISEE, J. 

8 {1} In this case we examine whether Jeffery Potter (Plaintiff) may bring a

9 malpractice action against his former bankruptcy attorneys (Defendants) after Plaintiff

10 objected to Defendants’ fee applications with allegations of malpractice and the

11 bankruptcy court awarded fees in a final order. The district court dismissed the

12 malpractice claim on the ground that it was barred by the principles of claim

13 preclusion because Plaintiff did or could have brought the malpractice claim in

14 response to Defendants’ fee applications. We agree that Plaintiff’s claim is barred

15 because the elements of claim preclusion are met, and Plaintiff had a full and fair

16 opportunity to litigate the malpractice claim but failed to successfully do so. We

17 affirm.

18 I. BACKGROUND

19 {2} With Defendant Chris Pierce as his lead attorney, Plaintiff filed for bankruptcy

20 under Chapter 11 of the Federal Bankruptcy Code. The action was later converted to

21 a Chapter 7 bankruptcy. During the proceedings, Plaintiff purchased at auction any
2

1 malpractice and related claims he might have against Defendants.

2 {3} Pierce represented Plaintiff in the bankruptcy proceedings for approximately

3 one year. Plaintiff also employed Martin Friedlander, a California attorney, to

4 represent him in all matters other than the bankruptcy. Eventually, citing “a

5 fundamental disagreement” with Plaintiff, Defendants, including Pierce, filed a

6 motion to withdraw as Plaintiff’s counsel, which was granted. Defendants then filed

7 two applications for attorney fees with the bankruptcy court.

8 {4} Before the fee application hearing, Plaintiff, acting pro se, filed objections to

9 the fee application within which Plaintiff accused Defendants of malpractice. At the

10 hearing, Plaintiff was represented by replacement counsel and Friedlander appeared

11 at the hearing as a creditor. Pierce testified with respect to the fee applications, and

12 Friedlander questioned Pierce about alleged failures in his representation of Plaintiff.

13 Plaintiff elected not to cross-examine Pierce on any topic, including the pertinent basis

14 on which he countered Defendants’ fee applications: Pierce’s malpractice. Following

15 the hearing, the bankruptcy court allowed some fees, but disallowed others that the

16 court concluded were premised on work that was duplicative, administrative,

17 excessive, or not beneficial to the bankruptcy. The bankruptcy court made no express

18 findings or conclusions related to Plaintiff’s malpractice allegations. Plaintiff’s

19 bankruptcy was ultimately denied.
1 13 We recognize that the term “res judicata” encompasses both claim and issue

14 preclusion. See 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

15 Federal Practice & Procedure § 4402 (2d ed. 2002). We also acknowledge that New

16 Mexico and federal cases sometimes use the terms “res judicata” and “claim

17 preclusion” interchangeably. See, e.g., Petromanagement Corp. v. Acme-Thomas

18 Joint Venture, 835 F.2d 1329, 1335 (10th Cir. 1988); Computer One, Inc. v. Grisham

19 & Lawless, P.A., 2008-NMSC-038, ¶ 30, 144 N.M. 424, 188 P.3d 1175. For clarity,

20 we use the term “claim preclusion” when possible to signify application to a claim that

21 has been fairly and fully litigated. When used in quotations, the term “res judicata”

22 “refers to the effect of a judgment in foreclosing litigation of a matter that never has

23 been litigated, because of a determination that it should have been advanced in an

24 earlier suit.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1

25 (1984).

3

1 {5} Almost ten months following this denial, Plaintiff filed the malpractice claim

2 that is the subject of this appeal. The district court granted Defendants’ motion for

summary judgment on the ground that the claim was barred by claim preclusion1 3

4 because the bankruptcy court’s grant of fees constituted a final order on Defendants’

5 fee applications and the bankruptcy court’s decision necessarily incorporated that

6 court’s assessment of Defendants’ representation of Plaintiff. Plaintiff now appeals.

7 II. DISCUSSION

8 {6} On appeal, Plaintiff argues that the district court erred in concluding that his

9 malpractice claim was precluded, and instead maintains that the court should have

10 proceeded to the merits of the case. “Summary judgment is appropriate where there

11 are no genuine issues of material fact and the movant is entitled to judgment as a

12 matter of law. . . .We review . . . legal questions de novo.” Self v. United Parcel Serv.,
4

1 Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (citation omitted); Rosette,

2 Inc. v. U.S. Dep’t of the Interior, 2007-NMCA-136, ¶ 31, 142 N.M. 717, 169 P.3d 704

3 (“When the facts are not in dispute, the preclusive effect of a prior judgment is a

4 question of law reviewed de novo.”). 

5 A. The Elements of Claim Preclusion Have Been Satisfied

6 {7} In general, “[t]he purpose of our application of res judicata is to protect

7 individuals from multiple lawsuits, to promote judicial economy, and to minimize the

8 possibility of inconsistent judgments.” Moffat v. Branch, 2002-NMCA-067, ¶ 14, 132

9 N.M. 412, 49 P.3d 673. “Res judicata applies if three elements are met: (1) a final

10 judgment on the merits in an earlier action, (2) identity of parties or privies in the two

11 suits, and (3) identity of the cause of action in both suits.” Rosette, Inc., 2007-

12 NMCA-136, ¶ 33. At the outset, we note that the requirements for res judicata are the

13 same under both New Mexico and federal law. See Edwards v. First Fed. Sav. &

14 Loan Ass’n, 1985-NMCA-015, ¶ 40, 102 N.M. 396, 696 P.2d 484 (“Unless obliged

15 to follow a contrary decision of our [S]upreme [C]ourt,” we apply federal law to

16 “determin[e] the preclusive effect of a Federal court’s judgment[.]”). 

17 {8} With regard to the third element, both New Mexico and the Court of Appeals

18 for the Tenth Circuit have adopted the “transactional approach” set out in the

19 Restatement (Second) of Judgments §§ 24-25 (1982) for determining whether a later
5

1 cause of action is the same as an earlier one. Petromanagement Corp., 835 F.2d at

2 1335 (adopted in the Tenth Circuit); Computer One, Inc., 2008-NMSC-038, ¶ 31

3 (adopted in New Mexico). Under this approach, two issues are the “same claim” for

4 purposes of claim preclusion when “they involve a common nucleus of operative

5 facts.” Rosette, Inc., 2007-NMCA-136, ¶¶ 23, 33 (internal quotation marks and

6 citation omitted). A common nucleus might be identified by examining “(1) how the

7 facts relate in time, space, origin, or motivation; (2) whether, taken together, the facts

8 form a convenient trial unit; and (3) whether treatment of the facts as a single unit

9 conforms to the parties’ expectations, or business understanding or usage.” Chavez

10 v. City of Albuquerque, 1998-NMCA-004, ¶ 23, 124 N.M. 479, 952 P.2d 474. 

11 {9} Notably, claim preclusion applies only when “the claimant [has] had a full and

12 fair opportunity to litigate the claim in the original action.” Moffat, 2002-NMCA-067,

13 ¶ 17; see Grausz v. Englander, 321 F.3d 467, 474 (4th Cir. 2003) (considering

14 “whether [a] fee proceeding in bankruptcy court provided [the plaintiff] with an

15 effective opportunity to litigate his malpractice claim”). Finally, “[r]es judicata bars

16 not only claims that were raised in the prior proceeding, but also claims that could

17 have been raised.” City of Sunland Park v. Macias, 2003-NMCA-098, ¶ 18, 134 N.M.

18 216, 75 P.3d 816; Grausz, 321 F.3d at 473-74 (considering whether the plaintiff

19 “knew or should have known” of his malpractice claim at the time of a fee
6

1 adjudication in bankruptcy court).

2 {10} At issue in this case is whether the district court correctly found that the

3 elements of claim preclusion were satisfied. Under de novo review, we consider each

4 element in turn. The first element of our analysis is whether there was a final

5 judgment on the merits in the earlier proceedings. Rosette, Inc., 2007-NMCA-136,

6 ¶ 33. Although “an interim award of attorney[] fees . . . is not final because [it] . . .

7 leav[es] open the possibility that the claim will later be enlarged through future fee

8 applications[,] . . . a[n] award that determines all of the compensation owed to an

9 attorney . . . [is] final.” In re Iannochino, 242 F.3d 36, 44 (1st Cir. 2001) (internal

10 quotation marks and citation omitted). Here, Defendants’ fee applications were

11 adjudicated after Defendants had withdrawn from representation of Plaintiff on May

12 22, 2006. The second and final fee application covered the period from May 25, 2005

13 through May 18, 2006. Thus, there was no possibility of further fee applications. The

14 fee award was a final order. 

15 {11} The second question in the claim preclusion analysis is whether the parties in

16 the two suits are identical. Rosette, Inc., 2007-NMCA-136, ¶ 33. This element is

17 satisfied because Plaintiff is both a party to the malpractice claim and a party in

18 interest to the fee proceedings. See 11 U.S.C. § 1109(b) (2006) (including “the

19 debtor” among a list of parties in interest); 11 U.S.C. § 1121(c) (2006) (same); In re
7

1 Alpex Computer Corp., 71 F.3d 353, 356 (10th Cir. 1995) (stating that party in interest

2 is “generally understood to include all persons whose pecuniary interests are[] directly

3 affected by the bankruptcy proceedings” (internal quotation marks and citation

4 omitted)); Grausz, 321 F.3d at 473 (holding that the plaintiff was a party in interest

5 to fee proceedings because he “had a pecuniary interest in the outcome of the fee

6 applications”).

7 {12} Most vigorously disputed by the parties is whether the third element of claim

8 preclusion was satisfied, i.e. whether the district court correctly determined that the

9 dispute over attorney fees and malpractice in bankruptcy court was the “same claim”

10 as Plaintiff’s subsequent malpractice claim in state court. This particular fact pattern

11 has yet to be addressed by New Mexico appellate courts. Nonetheless, we find helpful

12 cases from the Courts of Appeals for the First, Fourth, Fifth, and D.C. Circuits, which

13 addressed fact patterns congruent to the legally operative facts in this case, and found

14 that claim preclusion bars malpractice claims following fee adjudications in

15 bankruptcy court. See, e.g., Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman,

16 LLC, 569 F.3d 485, 491-93 (D.C. Cir. 2009); Grausz, 321 F.3d at 475-76; In re

17 Intelogic Trace, Inc., 200 F.3d 382, 391 (5th Cir. 2000); In re Iannochino, 242 F.3d

18 at 41-49.

19 {13} In Grausz, the plaintiff filed for bankruptcy with the assistance of his counsel.
8

1 321 F.3d at 469. Counsel later withdrew and filed two fee applications; both were

2 approved without objection from the plaintiff. Id. at 470. Subsequently, the

3 plaintiff’s bankruptcy discharge was denied and the plaintiff filed a malpractice claim

4 against his counsel. Id. at 471. The Fourth Circuit held that the plaintiff’s malpractice

5 claims were precluded because approval of the fee applications was a final order. Id.

6 at 472. The plaintiff was a “party in interest” to the fee dispute since he “ha[d] a

7 pecuniary interest in the distribution of assets to creditors[,]” id. at 472-73, and “[t]he

8 core of operative facts in the . . . fee application proceeding and the malpractice action

9 . . . are the same. Id. at 473. Both actions relate[d] to the nature and quality of legal

10 services the [firm] provided to [the plaintiff] in connection with the bankruptcy

11 proceeding.” Id. (internal quotation marks and citation omitted). 

12 {14} The Court recognized that the bankruptcy code “necessarily included an inquiry

13 by the bankruptcy court into the quality of professional services rendered by the

14 [firm].” Id. at 473 (citing 11 U.S.C. § 330(a)(3) (2003)). “By granting [the] firm’s

15 . . . fee application[s], the bankruptcy court impliedly found that the firm’s services

16 were acceptable throughout its representation of [the plaintiff].” Id. Having

17 determined that the bankruptcy court had jurisdiction over the malpractice claim under

18 28 U.S.C. § 1334 (2005), because it “arose in” the bankruptcy case, the Court

19 determined that “[p]rocedural mechanisms were . . . available [in bankruptcy court]
2 15 Rule 3007 of the Federal Rules of Bankruptcy Procedure was amended in

16 2007, altering the procedures related to adversary proceedings like fee applications.

17 Fed. R. Bankr. P. 3007 advisory committee’s notes; Fed. R. Bankr. P. 7001 (defining

18 claims that initiate adversary proceedings); 10 Collier on Bankruptcy ¶ 7001.01 (Alan

19 N. Resnick & Henry J. Sommer eds., 16th ed.); Fed. R. Bankr. P. 7042. Although the

20 procedures under Rule 3007 have changed, the fundamental point in Grausz—that the

21 bankruptcy court has mechanisms for adjudicating malpractice claims—remains true.

22 See 9 Collier on Bankruptcy ¶ 3007.02 (Alan N. Resnick & Henry J. Sommer eds.,

23 16th ed.) (“The effect of the [amendment] in substitution for the predecessor language

24 does not appear to be significant.”). 

9

1 for [the plaintiff] to raise his malpractice claim in connection with the fee proceeding”

2 under Bankruptcy Rule 3007. Grausz, 321 F.3d at 469, 474; see Fed. R. Bankr. P.

3007(b) (stating procedures for adversarial proceedings)2 3 . The Court also determined

4 that the plaintiff “knew or should have known there was a real likelihood that he had

5 a malpractice claim against . . . firm.” Id. at 474. 

6 {15} The same conclusion was reached by the First, Fifth, and D.C. Circuits. See

7 In re Iannochino, 242 F.3d at 47-49 (concluding that (1) “the central factual question

8 in both claims is the same: What advice did the defendants give to the [the plaintiffs]

9 during the bankruptcy, and what was the quality and value of that advice?”; (2) there

10 was “substantial overlap of the . . . proofs required to determine the essential issue in

11 both claims[;]” and (3) “the [plaintiffs] knew all the facts necessary for bringing their

12 malpractice claim at the time of the fee application, and we think it reasonable for [the

13 defendants] to expect that all concerns about the quality of their services would have

14 been raised in response to the fee application” (internal quotation marks and citation
10

1 omitted)); In re Intelogic Trace Inc., 200 F.3d at 388 (holding that “the award of

2 professional fees and the . . . malpractice claims concern the same nucleus of operative

3 facts and meet the transactional test,” because the bankruptcy court considered the

4 quality and nature of counsel’s services in the fee adjudication (internal quotation

5 marks and citation omitted)); Capitol Hill Grp., 569 F.3d 485, 490-93 (same).

6 {16} Notably, in each of the aforementioned cases, each court found that the

7 “identity of claims” element of the claim preclusion test was met because the

8 questions presented to the bankruptcy court in a fee proceeding inherently involve an

9 assessment of the quality of the professionals’ work similar to the assessment required

10 in a malpractice action. See Capitol Hill Grp., 569 F.3d at 491 (stating that “the

11 bankruptcy court was in a position to judge the quality of [the attorneys’] services”);

12 Grausz, 321 F.3d at 473; In re Intelogic Trace, Inc., 200 F.3d at 388; In re

13 Iannochino, 242 F.3d at 47 (citing 11 U.S.C. § 330(a)(3)(A) as requiring the

14 bankruptcy court to “undertake a comprehensive evaluation of the services listed in

15 a fee application”). In addition, each court relied on the facts of the case to determine

16 that the plaintiffs were sufficiently aware of their malpractice claims at the time of the

17 fee proceedings to have then raised those claims. See Capitol Hill Grp., 569 F.3d at

18 491; Grausz, 321 F.3d at 474; In re Intelogic Trace, Inc., 200 F.3d at 389; In re

19 Iannochino, 242 F.3d at 49. Finally, each of these cases either explicitly or implicitly
11

1 relied on the ability of the bankruptcy court to hear the malpractice claim through an

2 adversary proceeding. See Capitol Hill Grp., 569 F.3d at 492; Grausz, 321 F.3d at

3 474-75; In re Intelogic Trace, Inc., 200 F.3d at 389-90; In re Iannochino, 242 F.3d at

4 48. 

5 {17} We likewise conclude that the cause of action within each proceeding at issue

6 in this case arises from the same “nucleus of operative facts.” Rosette, 2007-NMCA7 136, ¶ 33. Both the fee proceedings and malpractice claim address the same conduct

8 during the same period of representation. In addition, under 11 U.S.C. § 330, the

9 bankruptcy court was required to consider the quality of Defendants’ professional

10 services in order to determine whether the fees requested were appropriate. See

11 Grausz, 321 F.3d at 473. Similarly, adjudication of malpractice claims requires an

12 assessment of whether Defendants’ services were rendered “with the skill, prudence,

13 and diligence that an ordinary and reasonable lawyer would use under similar

14 circumstances.” Black’s Law Dictionary 1044 (9th ed. 2009) (defining legal

15 malpractice). The bankruptcy court’s rejection of Plaintiff’s allegations of malpractice

16 is implicit in its approval of Defendants’ fee request.

17 {18} We agree with the district court that the “practical considerations” addressed

18 in Grausz and In re Intelogic Trace, Inc. also support preclusion of Plaintiff’s claim.

19 See Grausz, 321 F.3d at 473-74; In re Intelogic Trace, 200 F.3d at 388-89. In addition
12

1 to establishing the elements of claim preclusion, which we have determined were met,

2 these considerations address whether Plaintiff had a full and fair opportunity to litigate

3 his malpractice claim. As discussed above, Plaintiff could have brought and pursued

4 his malpractice claim in an adversarial proceeding in the bankruptcy court, where a

5 final judgment was reached between these parties that provided a determinative

6 finding regarding the Defendants’ quality of representation. In sum, we conclude that

7 all of the elements of claim preclusion are satisfied here. 

8 B. Computer One Does Not Bar Claim Preclusion in this Case

9 {19} Plaintiff makes several arguments as to why his malpractice claim should not

10 be precluded. Plaintiff first argues that Computer One, Inc., 2008-NMSC-038, stands

11 for the proposition that “[claim preclusion] . . . cannot be based on an application for

12 fees by way of an attorney charging lien or motion for fees as occurred in [his]

13 bankruptcy case[,]” and that “approval [of attorney fees] cannot operate [to preclude]

14 a later malpractice claim.” For reasons explained below, we disagree.

15 {20} Our Supreme Court in Computer One, Inc. relied on the same basic claim

16 preclusion test stated above to conclude that the malpractice claim before it differed

17 from the issues addressed in the charging lien that proceeded it. Notably, the

18 Computer One Court assumed that the first two claim preclusion elements—a final

19 order and identity of parties—were met. See 2008-NMSC-038, ¶¶ 31-36 (not
13

1 addressing those elements). It then focused on the facts of the case as they related to

2 the third element: whether the claims were identical. Id.

3 {21} In that case, Computer One filed suit against Sandia Corporation for breach of

4 contract and misrepresentation. Computer One, 2008-NMSC-038, ¶ 2. Computer

5 One was represented by Grisham & Lawless, P.A. (the Firm) Id. ¶ 3. The Firm

6 entered into a settlement agreement with Sandia Corporation, but Computer One

7 maintained that the absence of its own ratification of the agreement meant that the

8 settlement was unauthorized. Id. The Firm withdrew as counsel for Computer One

9 and filed notice of an attorney charging lien against the settlement proceeds, id., which

10 the district court enforced. Id. ¶ 4. After a series of proceedings in which Computer

11 One filed objections to the charging lien, the “[district] court ordered disbursement of

12 the settlement funds including payment of the Firm’s charging lien.” Id. ¶ 7. 

13 {22} Over a year later, Computer One filed a legal malpractice claim against the Firm

14 “arguing that the Firm had been negligent in the manner in which it had evaluated

15 Computer One’s claims against Sandia [Corporation] and their potential settlement

16 value.” Id. ¶ 8. The Firm moved for summary judgment on the ground that Computer

17 One’s claims were barred because they were compulsory counterclaims to the Firm’s

18 motion for a charging lien under Rule 1-013(A) NMRA and because claim preclusion

19 applied. Computer One, Inc., 2008-NMSC-038 ¶¶ 9-10. The district court agreed and
14

1 granted the motion, id., and this Court affirmed that the claim was a compulsory

2 counterclaim. Id. ¶ 1. 

3 {23} Our Supreme Court reversed on both grounds. Id. ¶ 38. Relying on Bennett v.

4 Kisluk, 1991-NMSC-060, 112 N.M. 221, 814 P.2d 89, and Rule 1-013(A) (stating the

5 elements of a compulsory counterclaim), it first determined that Computer One’s

6 malpractice claim was not a compulsory counterclaim to the Firm’s motion for a

7 charging lien because there was no adversarial relationship between Computer One

8 and the Firm sufficient “to impose upon the client the preclusive effect of Rule 1-

9 013(A).” Computer One, Inc., 2008-NMSC-038 ¶¶ 20, 25, 28. The Court reasoned

10 that Rule 1-013(A)’s requirement that the parties be “opposing part[ies]” rests on a

11 “notion of fair notice.” Computer One, Inc., 2008-NMSC-038 ¶ 25. “Without an

12 adversarial relationship, a party would not be on notice and would not necessarily

13 know that he or she would have to assert all defenses or claims against a party who

14 has filed a motion.” Id. ¶ 23 (internal quotation marks and citation omitted). 

15 {24} Indeed, “[t]he preclusive effect of Rule 1-013(A) is premised on the formality

16 of an opposing party, because that very status fairly alerts litigants that all claims and

17 counterclaims arising out of the transaction or occurrence must be brought at one time

18 under penalty of waiver.” Id. ¶ 24 (alteration, internal quotation marks, and citation

19 omitted). Our Supreme Court held “one must first be a ‘party’ before one can be an
3 18 The parties here appear to agree that Plaintiff’s claim was not a compulsory

19 counterclaim to Defendants’ fee applications. We discuss this aspect of Computer

20 One, Inc. in order to highlight the distinction between the application of Rule 1-

21 013(A) and claim preclusion principles. 

15

1 ‘opposing party[,]’” and that “an attorney does not transform his former client into

2 either, merely by taking steps to secure attorney fees in the same underlying

3 proceeding.” Id. ¶ 25; see Bennett, 1991-NMSC-060, ¶ 10 (“An ‘opposing party’

4 must be one who asserts a claim against the prospective counterclaimant in the first

5 instance.”). In sum, the Court concluded that “the compulsory counterclaim rule does

6 not apply to an attorney’s charging lien,” and as such, would not apply to bar a later

malpractice claim. Computer One, Inc., 2008-NMSC-038 ¶ 28. 3 7

8 {25} Our Supreme Court next examined whether Computer One’s claim was barred

9 by claim preclusion “[i]ndependent of any preclusive effects of Rule 1-013(A).” Id.

10 ¶ 30; see Adams v. Key, 2008-NMCA-135, ¶ 15, 145 N.M. 52, 193 P.3d 599

11 (distinguishing between compulsory counterclaims under Rule 1-013(A) and claim

12 preclusion principles). The relevant dispute was over the third prong of claim

13 preclusion: whether the malpractice claim was the “same claim” as the fee request.

14 Computer One, Inc., 2008-NMSC-038, ¶¶ 32-36. The Court’s analysis focused

15 chiefly on whether Computer One had a full and fair opportunity to litigate its claim.

16 See id. ¶¶ 32-35. It noted that a motion for a charging lien invokes the equitable

17 powers of the court and does not limit an attorney from “assert[ing] all claims the
16

1 attorney may have against the client” at law. Id. ¶¶ 14, 16. The Court compared

2 Computer One’s argument against the charging lien with that asserted in the

3 malpractice claim, id. ¶¶ 33, 34, and concluded that “Computer One’s objections to

4 the charging lien reflect the limited nature of such a lien.” Id. ¶ 35. Ultimately,

5 “[b]ecause the objections to the charging lien were distinct from the claim asserted in

6 Computer One’s malpractice lawsuit, [our Supreme Court] reject[ed] the Firm’s

7 argument that the issues in Computer One’s malpractice claim were necessarily

8 litigated below.” Id.

9 {26} Furthermore, the Court relied on the facts of that case to determine that even if

10 Computer One could have raised the malpractice claim in the context of the charging

11 lien motion, it “would not change our result in this particular case.” Id. ¶ 36. Because

12 the Firm had “affirmatively acknowledg[ed] that the charging lien was not related to

13 the malpractice claim, [it could not] change course and claim an opportunity for

14 Computer One to do the very thing it urged Computer One not to do below.” Id.;

15 seeCity of Sunland Park, 2003-NMCA-098, ¶ 18 (stating claim preclusion bars claims

16 that could have been brought in prior proceedings). 

17 {27} Thus, Computer One, Inc. rests in part on claim preclusion and in part on

18 principles of equity. It concluded that because the malpractice claim sought damages

19 amounting to the difference between the actual settlement amount and the potential
17

1 settlement had the Firm’s representation been more effective, rather than recovery of

2 fees awarded, the malpractice claim was “distinct” from Computer One’s objections

3 to the charging lien. 2008-NMSC-038, ¶¶ 34-35. Much of this analysis rests on “the

4 limited nature of . . . a [charging] lien.” Id. ¶ 35. There is no clear statement that

5 claim preclusion never applies to bar malpractice claims after adjudication of broader

6 fee applications. 

7 {28} In sum, contrary to Plaintiff’s argument, Computer One, Inc. does not stand for

8 the proposition that malpractice claims are never barred by adjudication of fee

9 applications. Rather, we conclude that when a plaintiff actually argues or could have

10 argued, or asserted but did not substantively pursue malpractice as a defense to a fee

11 application or as a separate claim, claim preclusion may apply to bar later malpractice

12 claims. As the district court noted, this holding is not inconsistent with federal law.

13 {29} Moreover, Computer One, Inc. is specific to the facts and circumstances of that

14 case. For instance, the Court grounded its holding in the context of charging liens.

15 See id. ¶ 12 (“We begin our discussion with . . . the history of attorney charging liens,

16 because the resolution of the issue presented here becomes clear when the historical

17 basis for the charging lien is considered.” (alteration, internal quotation marks, and

18 citation omitted)). New Mexico cases have recognized that a charging lien “is a

19 peculiar lien, to be enforced by peculiar methods.” Prichard v. Fulmer, 1916-NMSC-
18

1 046, ¶ 29, 22 N.M. 134, 159 P. 39 (internal quotation marks and citation omitted); see

2 Sowder v. Sowder, 1999-NMCA-058, ¶ 8, 127 N.M. 114, 977 P.2d 1034 (calling a

3 charging lien “a unique method of protecting attorneys” and stating that “an attorney

4 charging lien functions in a very limited manner”). The fees in question here were not

5 sought through a charging lien. Finally, to the extent that Computer One relied on the

6 fact that the damages sought by Computer One were not related to the fees paid to the

7 attorneys, that case is further distinguishable because here Plaintiff specifically seeks

8 “disgorgement of [attorney] fees.” See Computer One, 2008-NMSC-038, ¶ 34

9 (stating, “[s]ignificantly, in [its] complaint Computer One [did] not . . . seek to recover

10 its fees paid to the Firm”).

11 {30} Finally, Computer One, Inc. does not in any way address the preclusive effect

12 of fee adjudications in bankruptcy court. The requirements and capabilities of

13 bankruptcy courts make Computer One, Inc. inapposite in at least two ways. First,

14 unlike analysis of charging liens, analysis of fee applications in bankruptcy

15 proceedings “necessarily include[s] an inquiry . . . into the quality of professional

16 services rendered.” Grausz, 321 F.3d at 473; 11 U.S.C. § 330(a)(3)(C), (D), (E)

17 (stating some of the factors the bankruptcy court may consider in determining fees).

18 Second, Computer One, Inc. relies in significant part on the Court’s doubt that a

19 malpractice claim could be addressed in the context of a charging lien. 2008-NMSC-
19

1 038, ¶ 36. In stark contrast, the rules governing bankruptcy proceedings permit a

2 claim for malpractice to be brought as an adversary proceeding. See Fed. R. Bankr.

3 P. 3007; Grausz, 321 F.3d at 474. Thus, unlike in Computer One, Inc., in this case

4 there were readily available avenues for Plaintiff to pursue his malpractice contention

5 in bankruptcy court. 

6 {31} Computer One Inc.’s only categorical statement is that a fee adjudication does

7 not make an attorney and his or her client (or former client) into “opposing parties”

8 such that malpractice claims related to the attorney’s representation of the client are

9 compulsory under Rule 1-013(A) NMRA. Although Computer One, Inc. held that the

10 plaintiff’s malpractice claim was not barred by claim preclusion, its holding was

11 specific to the facts and circumstances of that case, and in our view, not a blanket

12 directive regarding the preclusive effects of fee adjudications. We conclude that the

13 present case is analogous to the federal cases we discussed above, and for reasons

14 explained in the previous section of this Opinion, all of the elements of claim

15 preclusion have been met. Computer One does not change the outcome of this case.

16 C. Plaintiff’s Remaining Arguments Regarding the Elements of Claim

17 Preclusion Fail

18 {32} Plaintiff additionally argues that he could not have brought his malpractice

19 claim at the time of the fee proceeding because at that juncture his bankruptcy petition

20 had not yet been denied, citing Sharts v. Natelson, 1994-NMSC-114, 118 N.M. 721,
20

1 885 P.2d 642. The district court rejected this argument, stating that it “fails on the

2 facts.” We agree that this argument is unavailing. Plaintiff’s reliance on Sharts is

3 misplaced. In that case, our Supreme Court considered the statute of limitations for

4 attorney malpractice claims. Id. ¶ 10. It stated that “a cause of action for legal

5 malpractice does not accrue until the client discovers, or through reasonable diligence

6 should discover, the facts essential to the client’s claim.” Id. ¶ 15. 

7 {33} Plaintiff contends that the Sharts holding means that “a cause of action for legal

8 malpractie can only exist when the plaintiff suffers damages.” While the Sharts Court

9 held that “the ‘actual injury’ standard . . . accurately describes the nature of the harm

10 the client must suffer before the statute of limitations begins to run[,]” it also stated

11 that “the focus . . . should be on discovery of the fact of damage, not the amount.” Id.

12 ¶¶ 11, 12 (internal quotation marks and citation omitted). The Court expressly

13 rejected the position that a malpractice claim did not accrue “until [the client’s] rights

14 were fixed by entry of [an] adverse . . . judgment.” Id. ¶ 14. It is clear here that

15 Plaintiff had discovered the fact of his damage and knew before the fee proceedings

16 that he might have a claim for malpractice. In fact, he alleged malpractice multiple

17 times in his objections to the fee applications, asserting that Pierce had forged his

18 signature on documents, failed to prosecute a suit, and facilitated a fraudulent

19 conveyance. Plaintiff stated, “[t]he damages attributable to this malpractice greatly
4 17 The district court noted that “New Mexico has not ruled on the validity or

18 invalidity of the assignment of a legal malpractice claim” and that it would

19 “approach[] this case from the apparent perspective of the parties that the purchase at

20 auction of the malpractice claims . . . was valid.” Since neither party challenges the

21 validity of the sale on appeal, we too do not address that issue. 

21

1 exceed the fees that [Defendants are] seeking in [the] [m]otion for [f]ees.” Thus, at

2 the time of the fee proceedings Plaintiff was aware of both the conduct he later

3 complained of and the potential impact of that conduct. See Grausz, 321 F.3d at 474

4 (rejecting Grausz’s argument that “he could not have understood that he would have

5 a malpractice claim against [his attorneys] before the final fee order was entered”).

6 {34} Plaintiff also argues that the fact that he purchased the malpractice claim at

auction militates against application of claim preclusion.4 7 This argument is unavailing

8 because the right Plaintiff purchased at auction––his right to litigate his malpractice

9 claim—has not been impeded. Plaintiff in fact filed a complaint, initiating the present

10 suit. Defendants raised a legitimate defense to the complaint consistent with the terms

11 of the sale that reserved to them “all rights, defenses, counterclaims, crossclaims, and

12 other rights or claims of any kind whatsoever arising out of or related to any

13 malpractice claims against them.” As the district court noted, it was Plaintiff’s

14 obligation to be aware of any “negative baggage [that] might . . . be attached to the

15 claims” including possible defenses to them. The fact of the sale of the malpractice

16 claim presents no barrier to Defendants’ assertion of claim preclusion, nor does the
22

1 purchase of something valueless bestow worth. 

2 {35} Therefore, we conclude that all of the elements of claim preclusion have been

3 satisfied and Plaintiff was sufficiently aware of the facts of his claim at the time of the

4 fee adjudication such that preclusion of them in later proceedings is fair. We thus

5 affirm the district court.

6 CONCLUSION

7 {36} For the foregoing reasons, we affirm the grant of summary judgment in favor

8 of Defendants. 

9 {37} IT IS SO ORDERED. 

10 ________________________

11 J. MILES HANISEE, Judge

12 WE CONCUR:

13 

14 JAMES J. WECHSLER, Judge

15 

16 MICHAEL D. BUSTAMANTE, Judge