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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
2

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 then17 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
3

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 then15 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
4

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
5

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,
6

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
7

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 Ferri13 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
8

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.
9

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