## Facts

- Deborah Andrews and Stephen Andrews divorced in 1986 after a long marriage.
- During the marriage, Stephen worked for the Bernalillo County Fire Department and contributed to a pension under the New Mexico Public Employees Retirement Act (PERA), and Deborah knew of the PERA contributions.
- The final divorce decree (prepared by Susan J. Scarborough, an attorney employed by the defendant law firms) generally divided property and included catch-all language awarding each party other property in their possession.
- The decree did not expressly address Stephen’s PERA pension.
- In 1996, Deborah learned she might be entitled to part of the pension and filed a petition in the divorce case to divide it.
- The district court denied the petition, reasoning the decree’s catch-all language had implicitly divided the pension.
- Deborah consulted other attorneys about appealing the denial; no appeal was filed.
- Deborah then sued Scarborough’s estate and the related law firms for legal malpractice based on failure to identify and explicitly divide the PERA pension in the divorce decree.
- In the malpractice case, the district court granted defendants summary judgment, reasoning that successor counsel’s failure to appeal was the proximate cause of Deborah’s loss.

## Issues

1. Whether proximate cause in a legal malpractice action involving an alleged failure to appeal is for the judge or the jury to decide.
2. Whether alleged negligence by successor attorneys is a superseding cause that, as a matter of law, cuts off liability for the original attorney’s alleged negligence.
3. Whether comparative fault applies in legal malpractice actions involving multiple attorneys, or whether a special exception prevents apportionment.

## Decision

- The New Mexico Court of Appeals reversed the summary judgment and remanded for further proceedings.
- The court held proximate cause in legal malpractice actions is ordinarily a factual question for the factfinder, including when the alleged negligence involves a failure to appeal.
- The court held successor attorney malpractice may be a foreseeable consequence of the original attorney’s malpractice and does not automatically break the chain of causation as a matter of law.
- The court rejected a legal-malpractice-specific exception to comparative fault and held that fault may be apportioned among multiple negligent actors, including multiple attorneys.

## Legal Principles

- Proximate cause in legal malpractice cases is generally a question of fact for the jury, and summary judgment is improper where reasonable factfinders could differ on causation.
- An intervening act by successor counsel is not automatically a superseding cause; if foreseeable, it may be concurrent with the original negligence, leaving causation to the jury.
- Comparative fault applies to legal malpractice claims, permitting allocation of responsibility among all negligent actors, including sequential attorneys and, where supported by evidence, the client.

## Conclusion

The court held that causation and the effect of successor counsel’s alleged failure to appeal could not be resolved as a matter of law on summary judgment; instead, a jury must decide proximate cause, foreseeability, and comparative fault among potentially responsible actors.


Andrews v. Saylor, 80 P.3d 482 (N.M. Ct. App. 2003)