This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 LESLIE W. GOLLIHEAIR, 2 Plaintiff-Appellant, 3

v. NO. 34,460 4 KRISTY FRANCHINI, individually and as an 5 Employee of the STATE OF NEW MEXICO and 6 PROGRESSIVE INSURANCE COMPANY 7 DIRECT and TITAN INDEMNITY COMPANY, 8 Defendants-Appellees. 9 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 10 David P. Reeb, Jr., District Judge 11 Jane Rocha De Gandara 12 Los Lunas, NM 13 for Appellant 14 Atwood, Malone, Turner & Sabin, P.A. 15 Bryan D. Evans 16 Roswell, NM 17 for Appellee Kristy Franchini 18 Doughty, Alcaraz & deGraauw, P.A. 19 J. Andrew deGraauw 20 Amye G. Green 21 Albuquerque, NM 222 for Appellee Progressive Insurance Company 1 Beall & Biehler, P.A. 2 Gregory L. Biehler 3 Albuquerque, NM 4 for Appellee Titan Indemnity Company 5 MEMORANDUM OPINION 6 HANISEE, Judge. 7
{1} Plaintiff appeals the district court’s order dismissing Plaintiff’s lawsuit for 8 discovery violations and failure to complywith court orders. We issued a notice of 9 proposed disposition proposing to affirm , and Plaintiff has responded with a 10 memorandum in opposition, while Defendant Progressive Insurance Company has 11 filed a memorandum supporting summary affirm ance. We have carefully considered 12 the arguments raised in Plaintiff’s memo randum; however, for the reasons stated in 13 the notice of proposed disposition and be low, we continue to believe summary 14 affirmance is appropriate in this case. We th erefore affirm the district court’s decision. 15
{2} The district court’s dismissal came only after Plaintiff, through his then16 attorney, failed to provide discovery materi als after being ordered to do so in two 17 separate hearings and orders, despite assurances that the materials would be 18 forthcoming. Plaintiff, again through c ounsel, did not respond to the motion for 193 sanctions eventually filed by Defendants, and did not appear at the hearing held on 1 that motion. After the lawsuit was dismisse d Plaintiff retained new counsel, who filed 2 a motion to reconsider the dismissal that was denied after full briefing. [RP 181, 206] 3
{3} In the notice of proposed disposition we poi nted out that in civil cases, a client 4 is generally held responsible fo r the actions of his attorney. See Marchman v. NCNB 5 Texas Nat’l Bank , 1995-NMSC-041, ¶¶ 55-56, 120 N.M. 74, 898 P.2d 709. We also 6 noted that this rule has been applied even when the sanction imposed for the 7 attorney’s conduct is the extreme sanction of dismissal of a case. See Padilla v. Estate 8 of Griego , 1992-NMCA-021, ¶¶ 17-18, 113 N.M. 660, 830 P.2d 1348. A district 9 court’s decision to dismiss will only be overturned on appeal if the ruling is clearly 10 untenable, is contrary to logic and reas on, or in some other manner constitutes an 11 abuse of discretion. See Lewis ex rel. Lewis v. Samson , 2001-NMSC-035, ¶ 13, 131 12 N.M. 317, 35 P.3d 972. In support of our proposalto find that the district court did not 13 abuse its discretion, we discussed the fact that Plaintiff’s explanation of his then14 attorney’s unspecified medical condition lackedany facts or analysis as to when the 15 condition began to affect the attorney, howthe condition caused the attorney to fail 16 to perform the simple act of mailing a thumb drive to opposing counsel even after he 17 directly agreed to do so in open court, and whether the contents of the thumb drive 18 fully complied with the discovery re quests submitted by Defendants. We also 194 discussed Plaintiff’s initial resistance to providing the financial information sought by 1 Defendants, despite the fact that the info rmation was clearly relevant to Plaintiff’s 2 claim for damages in the form of lost income. 3
{4} Plaintiff’s memorandum in opposition presents essentially two main arguments: 4 first, that a lesser sanction such as a monetary sanction or exclusion of evidence would 5 have been more appropriate in this case; and second, that the conduct of Plaintiff’s 6 counsel was grossly negligent and Plainti ff should therefore not be held responsible 7 for that conduct. [MIO unnumbered pp. 3-4] 8
{5} In support of the first argument Plain tiff cites several cas es in which the 9 sanction imposed for discovery violations was not dismissal, but a less serious 10 sanction such as exclusion of a witness, see Lewis, 2001-NMSC-035, ¶ 17, or an 11 award of attorney fees. See also Weiss v. THI of N.M. at Valle Norte, LLC , 2013- 12 NMCA-054, ¶¶ 21-22, 301 P.3d 875. Plaintiff c ontends the facts of those cases were 13 more egregious than the facts of this cas e, making the severe sanction of dismissal 14 inappropriate in this case. However, the factthat district courts involved in other cases 15 did not choose the most severe sanction available does not mean the district court in 16 this case committed an abuse of discretion by imposing the sanction of dismissal. 17 Plaintiff was initially ordered to produce the discovery within thirty days of November 18 13, 2013 [RP 118]; the materials were not fo rthcoming despite requests from defense 195 counsel directed at Plaintiff’s attorn ey [RP 143]; at a hearing held on May 27 1 Plaintiff’s attorney represented that he had a thumb drive containing the information 2 and would provide it within ten days [RP 130]; Plaintiff was ordered to do so on June 3 12 [RP 134] but did not comply with that order either; and finally Plaintiff did not file 4 a response to the motion for sanctions or appear at the hearing held on that motion. 5 [RP 173] 6
{6} Thus, Plaintiff (through counsel) directly disobeyed two differe nt orders of the 7 district court, completely failed to produce the ordered disc overy, and provided no 8 explanation to the district court for his failure. Under these circumstances, the district 9 court did not abuse its discretion in choosi ng the most serious sanction of dismissal 10 of the case; based on the information before it at the time, the district court could have 11 determined that its orders were being di rectly disobeyed and that Defendants would 12 not be provided the information theyneeded to prepare for trial. See United Nuclear 13 Corp. v. Gen. Atomic Co. , 1980-NMSC-094, ¶ 397, 96 N.M. 155, 629 P.2d 231 14 (“When a party has displayed a willful, bad faith approach to discovery, it is not only 15 proper, but imperative, that severe sanctions be imposed to preserve the integrity of 16 the judicial process and the due process rights of the other litigants.”); see also Allred 17 ex rel. Allred v. Bd. of Regents of the Univ. of N.M. , 1997-NMCA-070, ¶ 34, 123 N.M. 18 545, 943 P.2d 579 (“Although dismissal under Rule 1-037 is an extreme sanction, 196 district courts have a duty to enforce co mpliance with rules of discovery, and they 1 should not shirk from imposition of the sanc tion of dismissal.” (alteration, internal 2 quotation marks, and citation omitted)). 3
{7} The fact that dismissal was an accepta ble sanction does not end the inquiry in 4 this case; as we discussed above, Plainti ff also argues that heshould not be held 5 responsible for the failings of his attorney because those failings constituted gross 6 negligence. It is true that New Mexico’s case law has suggested that there could be an 7 exception to general rule that a client is liable for the actions of his attorney. This 8 exception may apply if the attorney’s c onduct amounts to gross negligence and the 9 client has been diligent in attempting tostay abreast of the court proceedings. See 10 Resolution Trust Corp. v. Ferri , 1995-NMSC-055, ¶¶ 18-20, 120 N.M. 320, 901 P.2d 11 738; see also Adams v. Para-Chem S., Inc. , 1998-NMCA-161, ¶ 15, 126 N.M. 189, 12 967 P.2d 864 (construing Ferrito mean that a client must demonstrate personal 13 diligence that was thwarted by the client ’s attorney, in order to escape the 14 consequences of the attorney’s gross failures). 15
{8} We have no problem determining that Plaintiff’s former counsel committed 16 gross negligence in ignoring informal requests from Defendants as well as two 17 different court orders, failing to respond to the motion for sanctions, and failing to 18 appear for the hearing held on that moti on. The question therefore becomes whether 197 Plaintiff presented enough information to the district court about his own efforts to 1 stay on top of the case, as we ll as the way in which his attorney thwarted those efforts, 2 to demonstrate that the di strict court abused its discretion in holding Plaintiff 3 responsible for his attorney’s conduct. Plainti ff informed the district court that he gave 4 a thumb drive to his attorney shortly after the October 2013 hearing at which he was 5 ordered to produce the requested discovery materials. [RP 186] He also claimed that 6 he “diligently” contacted his attorney’s o ffice on a “regular basis” to check on the 7 status of the case, and that his attorneycommunicated to him “on several occasions” 8 that the case was “ongoing.” [RP 187] Plaintiff averred that he received no 9 correspondence from his attorney, or notices of hearing, and was unaware the case had 10 been dismissed until he was contacted by current counsel. [Id.] 11
{9} We note, first, that in the district c ourt Plaintiff did not clearly argue for a Ferri

12 type exception to the general rule that a client is responsible for the conduct of his 13 attorney. In the motion to reconsider Plaintiff relied heavily on the concept of 14 ineffective assistance of counsel, which is applicable in criminal cases but not civil 15 cases such as this one. [RP 183-84] When Defendants pointed that out in their 16 response, Plaintiff filed a reply that did not cite Ferriand vaguely mentioned 17 Plaintiff’s “relationship with his counsel” without attempting to demonstrate 18 Plaintiff’s diligence in attempting to stay in formed about the status of his case. [RP 198 199] It is difficult to find an abuse of disc retion by the district court on the basis of a 1 legal theory that was not clearly argued to that court. 2
{10} In addition, as we discussed in the no tice of proposed disposition, the factual 3 information presented to the district court was extremely general and lacking 4 important detail. There was no explanati on of former counsel’s medical condition, 5 such as the nature and duration of the condition, that would have allowed the district 6 court to discern the cause of the attorney’s failings. In addition, Plaintiff indicated in 7 conclusory fashion only that he had contacted his attorney “regularly” and was told 8 the case was “ongoing” with no detail about how exactly it was “ongoing” and how 9 regularly he contacted his attorney. Plaintiff supplied the thumb drive to his attorney 10 in October 2013, and the case was not dismisse d until eleven months later; the district 11 court could have concluded, if it was even presented with the issue, that Plaintiff was 12 not diligent in accepting vague assurances from his attorney that the case was 13 “ongoing” with apparently no activity of any kind for eleven months. An abuse of 14 discretion is committed only when the district court’s decision is contrary to logic and 15 reason or is untenable, see Lewis , 2001-NMSC-035, ¶ 13, and wh en the district court 16 is not clearly informed of specific facts and law demanding an opposite result, its 17 decision cannot be considered contrary to logic or untenable. We therefore determine 18 that no abuse of discretion was committed in this case. 199 CONCLUSION 1
{11} Based on the foregoing as well as the discussion in the notice of proposed 2 disposition, we affirm the district court’s decision in this case. 3
{12} IT IS SO ORDERED. 4

5 J. MILES HANISEE, Judge 6 WE CONCUR: 7

8 MICHAEL D. BUSTAMANTE, Judge 9

10 LINDA M. VANZI, Judge 11