September 20, 2012 – Joe Robert Encinias v. Whitener Law Firm, P.A. and Russell Whitener, No. 30,106

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_________________
Filing Date: 	September 20, 2012
NO. 30,106
JOE ROBERT ENCINIAS,
Plaintiff-Appellant,
v.
WHITENER LAW FIRM, P.A.
and RUSSELL WHITENER,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Eugenio S. Mathis, District Judge
Will Ferguson & Associates
Roger V. Eaton
David M. Houliston
Albuquerque, NM
Sanders & Westbrook, P.C.
Maureen A. Sanders
Albuquerque, NM
for Appellant

Tax, Estate & Business Law, Ltd.
James T. Reist
Barry D. Williams
Albuquerque, NM
for Appellees

OPINION
KENNEDY, Judge.
{1} 	In 2006, the parents of Plaintiff Joe Robert Encinias met personally with
Defendants Whitener Law Firm, P.A. and Russell Whitener (collectively, Whitener)
to pursue a lawsuit against Encinias’s school district for a brutal beating that Encinias
suffered at the hands of two students during school hours. There is no dispute that
Whitener took on the case and failed to file the case within the statute of limitations.
When Encinias inquired about the status of the case, Whitener scurried to mend the
situation by improperly filing the case with the district court in order to show Encinias
that it “would do what [it] could.” Whitener voluntarily dismissed the lawsuit in the
face of sanctions. When sued for malpractice, misrepresentation, and violating the
Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended
through 2009), Whitener ran for the cover of our malpractice case law that holds that
a case for legal malpractice cannot lie where the underlying action would not be
viable. See Richardson v. Glass, 114 N.M. 119, 122, 835 P.2d 835, 838 (1992). The
district court granted summary judgment on all three causes of action against
Whitener.
{2} 	The liability of a school for a student’s injuries under the New Mexico Tort
Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2010),

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has not been the most clearly delineated of legal principles, and it is that very pool of
murky law into which we must dive to assess whether Encinias had a claim that could
have succeeded against the school district. Thus, this case is as much about the TCA’s
application to schools, as it is about Whitener in handling Encinias’s case. 	As we
explain further below, we hold that the seemingly broad rule about school immunity
stated in Upton v. Clovis Municipal School District, 2006-NMSC-040, 140 N.M. 205,
141 P. 3d 1259, does not extend so far as to provide relief to Encinias in this case. We
also determine that his claims for misrepresentation and unfair trade practices must
fail as well. 	We affirm the district court’s orders granting summary judgment to
Whitener on all claims.
I. 	BACKGROUND
{3} 	In September 2004, Encinias was attacked during the lunch period at his high
school in Las Vegas, New Mexico, by one or two fellow students. 	The attack
occurred on a street adjacent to the school that was roped off by the school for lunch
vendors to provide food to the students. As a result of the attack, Encinias suffered
serious injuries that required him to be airlifted to Albuquerque for medical treatment.
No school faculty or security was monitoring that area at the time of the attack. It is
disputed whether, pursuant to a school safety policy, a member of the school

3
personnel was supposed to be watching the area where the attack occurred during the
lunch period.
{4} 	In January 2006, Encinias contacted Whitener to represent him in a suit against
the high school after seeing advertisements on television and in a phone book for the
firm. Whitener agreed to represent Encinias, but then failed to bring suit within the
statute of limitations. 	Encinias contends that Whitener “engaged in a series of
misrepresentations about the case’s merits, its status, and the missed statute of
limitations for filing the case.” Subsequently, Encinias sued under several causes of
action, three of which are before us today—malpractice, violations of the UPA, and
misrepresentation. 	Whitener moved for summary judgment on each claim. 	The
district court granted summary judgment on all claims. Encinias now appeals from
orders granting summary judgment on the UPA claim, the misrepresentation claim,
and the underlying case.
II. 	STANDARD OF REVIEW
{5} 	“We are mindful that summary judgment is a drastic remedial tool which
demands the exercise of caution in its application, and we review the record in the
light most favorable to support a trial on the merits.” 	Woodhull v. Meinel, 2009-
NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation
omitted). “Summary judgment is appropriate where there are no genuine issues of

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material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review
these legal questions de novo.” Id. “We also review the applicability of the TCA de
novo.” Upton, 2006-NMSC-040, ¶ 7.
{6} 	We consider an issue of fact to be genuine “if the evidence before the court
considering a motion for summary judgment would allow a hypothetical fair-minded
fact[]finder to return a verdict favorable to the non-movant on that particular issue of
fact.” Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶ 12, 145 N.M. 658, 203 P.3d
873, rev’d on other grounds, 2010-NMSC-035, 148 N.M. 713, 242 P.3d 280. We
consider an issue of fact to be “material if the existence (or non-existence) of the fact
is of consequence under the substantive rules of law governing the parties’ dispute.”
2009-NMCA-022, ¶ 12 (internal quotation marks omitted). 	“[T]he party opposing
summary judgment has the burden to show at least a reasonable doubt, rather than a
slight doubt, as to the existence of a genuine issue of fact.” Eisert v. Archdiocese of
Santa Fe, 2009-NMCA-042, ¶ 10, 146 N.M. 179, 207 P.3d 1156 (internal quotation
marks and citation omitted).

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III. 	DISCUSSION
A. 	The School Did Not Waive Its Immunity Under the TCA
{7} 	The district court granted Whitener’s motion for summary judgment, holding
that Encinias’s malpractice claim must fail because the underlying claim was barred
by the school’s immunity from suit. See Richardson, 114 N.M. at 122, 835 P.2d at
838 (“[The p]laintiff ha[s] the burden of not only proving her counsel’s negligence,
but also that she would have recovered at trial in the underlying action.”). The district
court concluded that “while . . . parents rely on school officials to protect their
children, and schools develop policies in an attempt to achieve this end, schools like
other governmental agencies do not have a duty to do everything that might or could
have been done.” See Cobos v. Doña Ana Cnty. Hous. Auth., 1998-NMSC-049, ¶ 6,
126 N.M. 418, 970 P.2d 1143 (quoting the legislative purpose of the TCA that
“government should not have the duty to do everything that might be done”); § 41-4-
2(A). Thus, the first issue before us is whether the claim Encinias sought to bring
against the school was barred as a matter of law by immunity under the TCA, thereby
foreclosing Encinias’s claim for malpractice.
{8} 	The State is generally granted immunity from suit, but the TCA waives that
immunity in “certain defined circumstances.” 	Cobos, 1998-NMSC-049, ¶ 6.
“Generally, the [TCA] provides governmental entities and public employees acting

6
in their official capacities with immunity from tort suits unless the Act sets out a
specific waiver of that immunity.” 	Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t,
2010-NMCA-021, ¶ 18, 147 N.M. 720, 228 P.3d 504 (internal quotation marks and
citation omitted), aff’d, 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701; see § 41-4-
4(A) (providing that, with few statutory exceptions, “[a] governmental entity and any
public employee while acting within the scope of duty are granted immunity from
liability for any tort”). Section 41-4-6(A) is one such waiver, and it provides that the
“immunity granted pursuant to Subsection A of Section 41-4-4 . . . does not apply to
liability for damages resulting from bodily injury . . . caused by the negligence of
public employees while acting within the scope of their duties in the operation or
maintenance of any building[.]” (Emphasis added.) The central question is whether
the negligent operation or maintenance of a building creates a “dangerous condition
that threatens the general public or a class of users of the building.” 	Upton, 2006-
NMSC-040, ¶ 8. Contrary to Encinias’s arguments, Upton is distinguishable from this
case and does not compel us to conclude that the school is subject to the limited
waiver of immunity to be liable for his injuries.
{9} 	Encinias argues that he “had a claim that on the day he was beaten, school
personnel were negligent while they were acting within the scope of their duties in the
operation or maintenance of the school [and thus,] the school district did not have a

7
defense of immunity to the claims.” 	More specifically, Encinias argues that the
school’s negligent execution of its safety policies for patrolling the campus during the
lunch period, and the school’s failure to keep a suspended student off campus, resulted
in his injuries. 	Evidence proffered below indicates that it may have been the
responsibility of a security guard or faculty member to patrol the food vendor area
and that no one patrolled that area at the time of the attack. Encinias contends that he
was first hit by fellow student and friend, Michael Salazar, and then by a second
assailant, Chris Chavez, who had been suspended from school on the morning of the
attack, but entered the campus area for no apparent reason but to attack Encinias.
Salazar attested in his affidavit that a security guard or teacher usually patrolled the
food vendor area, but neither was present at the time of the attack. In an affidavit, the
assistant principal stated that the location of the attack near the food vendors was a
known “[h]ot zone” for student violence and that a security guard was supposed to
patrol that area during the lunch period.
{10} 	Encinias relies in part upon Upton to argue that the school’s immunity was
waived by its negligence. See id. ¶ 9. In Upton, a student had been allowed to limit
her participation in a mandatory physical education class owing to her asthma. Id. ¶ 2.
Her condition was also noted in an “Individualized Education Plan . . . , an agreement
between parents of children with special needs and educators specifying certain

8
educational 	goals 	and 	the 	special 	services 	their 	child 	would 	require.” 	Id.
Subsequently, a substitute teacher, who was not informed of the waiver, required the
student to engage in strenuous exercise during gym class and would not let her take
a break from it when she became uncomfortable. 	Id. ¶¶ 3, 10. 	When the student
suffered an asthma attack as a result of the exercise, the school responded slowly and
inappropriately to the situation, resulting in the student’s death. Id. ¶¶ 4-5. The New
Mexico Supreme Court concluded that the school was not immune from suit under the
TCA because it was negligent in administering its safety procedures in operation of
the school building. 	Id. ¶ 25. The Supreme Court explained that “[j]ust as schools
generally have safety procedures in place for various kinds of emergencies, a school
simply cannot operate in a safe, reasonable, and prudent manner without affording,
at the very least, the health and safety services that students have been promised, and
upon which parents have relied.” 	Id. ¶ 13. Encinias contends that, in this case, the
school’s negligent failure to follow its own safety procedures endangered all of the
students in the food vendor area and resulted in his injury, thus waiving the school’s
immunity from suit under the TCA. 	We disagree with Encinias and conclude that
Upton represents a different set of circumstances that falls outside one of the
exceptions that would waive immunity under the TCA. See id. ¶ 9.

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{11} 	Whitener asserts that Encinias’s underlying claim against the school differs
from Upton because his claim is fundamentally about negligent supervision “that [the
school] failed to have security guards or other personnel physically in place at the
precise time and location of the assault[.]” Case law has established that “it is not
enough to show that public employees negligently supervised persons in their care and
that the resulting injury occurred on public property.” Leithead v. City of Santa Fe,
1997-NMCA-041, ¶ 7, 123 N.M. 353, 940 P.2d 459. 	In Pemberton v. Cordova, a
student struck and injured another student on campus. 105 N.M. 476, 477, 734 P.2d
254, 255 (Ct. App. 1987). The injured student sued the school, arguing the school
waived its TCA immunity under the Section 41-4-6(A) building waiver. Id. at 477-78,
734 P.2d at 255-56. On appeal, this Court concluded that, under the TCA, a school
could not waive its immunity under a theory of negligent supervision because
negligent supervision was not a specified exception to the general grant of immunity,
so as to establish a waiver under the TCA. Id. at 478, 734 P.2d at 256.
{12} 	The Supreme Court reiterated this principle in Espinoza v. Town of Taos, where
a child was injured on a public playground after falling from a slide while
participating in a city-sponsored day camp. 120 N.M. 680, 681-82, 905 P.2d 718,
719-20 (1995). The Supreme Court concluded that the city’s immunity had not been
waived under Section 41-4-6 because the child’s parents solely argued that the city

10
camp negligently supervised their child. 	Id. at 682-83, 905 P.2d at 720-21. 	The
Supreme Court concluded that the playground slide was not a condition of the
premises that would be dangerous without supervision. 	Id. at 682-84, 905 P.2d at
720-22.
{13} 	We agree with Whitener that Encinias’s claim, although couched in terms of a
failure to follow a safety policy, is solely a claim for negligent supervision. 	The
school’s procedures would have done no more than require the presence of a teacher
or security guard in a specific area to watch students. The only negligence alleged is
the failure to supervise. Encinias cites to Upton, which offers guidance in making this
distinction. In Upton, the Supreme Court restated the principle that immunity cannot
be waived by negligent supervision alone. 	2006-NMSC-040, ¶ 16. 	The Court
explained that for the plaintiff to succeed in waiving immunity under a theory of
negligent supervision, the negligent supervision must be directly tied to the operation
and maintenance of the building. Id. As an example, the Court analyzed Espinoza,
concluding that “[t]he key point in [that case] is that the negligence must be of a kind
which makes the premises dangerous, or potentially so, to the affected public, the
consumers of the service[,] or the users of the building” to waive immunity. Upton,
2006-NMSC-040, ¶ 23. 	The Upton Court explained that, “[i]f the only alleged
misconduct toward [the student] had been the substitute . . . teacher failing to watch

11
her while she participated in physical exercise, . . . Upton’s claim would be . . .
practically identical to the single claim of negligent supervision we found inadequate
in Espinoza.” Upton, 2006-NMSC-040, ¶ 21.
{14} 	In the case before us, the alleged negligence is based upon the failure of a
security guard or faculty member to monitor an area of the school. The negligence in
Upton was far broader and greater than what is present here. In Upton, the school’s
failure to appropriately respond to an existing medical emergency generally “created
a dangerous condition . . . for every student at the school[,]” and the school’s
subsequent indifference to the child’s special needs when unable to breathe made it
likely that all similarly situated students were at risk as well. Id. ¶ 24. In the present
case, no evidence was presented to show that the failure to monitor the vendor area
created a dangerous condition to the students in that area.
{15} 	We note that this same principle—that the negligence must make the premises
dangerous—has been applied in the other cases that Encinias relies on to argue that
the school’s negligence was the type that would result in waiver of immunity. 	See
Williams v. Cent. Consol. Sch. Dist., 1998-NMCA-006, ¶ 17, 124 N.M. 488, 952 P.2d
978 (holding that the school district’s immunity was waived because of the negligence
of its own employees in failing to deal with a design defect in the windows of the
school building); Leithead, 1997-NMCA-041, ¶¶ 15-16 (waiving immunity where the

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lifeguard’s negligence made the pool dangerous and resulted in the drowning of a
child because lifeguard supervision was essential to the nature of a safe public pool);
see also Bober v. N.M. State Fair, 111 N.M. 644, 652-53, 808 P.2d 614, 622-23
(1991) (holding that the State Fair was not immune from liability under the TCA when
the location of entrances and traffic flow into the State Fair created unsafe conditions
for motorists); Castillo v. Santa Fe Cnty., 107 N.M. 204, 206-07, 755 P.2d 48, 50-51
(1988) (waiving the county’s immunity with regard to a county-owned and operated
public housing project when a loose dog bit an invitee and remanding for factual
development regarding whether the county knew of dogs running loose within the
project, which posed an obvious danger to all residents and visitors).
{16} 	In this case, Encinias alleges that a security guard or teacher failed to patrol the
area in accordance with stated policies and procedures. 	This failure does not
consequently make the premises dangerous or potentially dangerous to the affected
public. 	Although we could imagine a situation where an area on campus was so
inherently dangerous as to require supervision to make the area safe, Encinias failed
to provide any evidence that this was the case. No other duties for active supervision
to implement policies against fighting in this context are shown, nor is the failure of
any policy to actively exclude a suspended student from the premises after he is sent
home. The school’s immunity is a threshold legal determination as to whether there

13
was building waiver. See Cobos, 1998-NMSC-049, ¶ 5; Williams, 1998-NMCA-006,
¶ 8. 	In response to Whitener’s motion for summary judgment, Encinias had the
burden of producing sufficient evidence to support a determination that the building
waiver applied, i.e., that some condition of the property made the area so inherently
dangerous that supervision was necessary to make it safe. 	See Dow v. Chilili Coop.
Ass’n, 105 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986) (explaining that a party
opposing summary judgment may not simply argue that evidentiary facts requiring a
trial on the merits may exist).
{17} 	Here, Encinias relies entirely on a statement from a former assistant principal
that the area was “considered to be a ‘hot zone’ for potential trouble around the
school” to support the dangerous condition aspect of his building waiver argument.
In her affidavit, the former assistant principal stated that “[h]ot zones were locations
where students congregate and where there has been a history of problems that exist
such as fights.” No other evidence supported Encinias’s contention that the area was
inherently dangerous. Not only does the former assistant principal’s statement amount
to a legal conclusion that a dangerous condition existed, but it is insufficient to
support a conclusion that supervision was necessary. 	We know nothing about the
frequency of student violence in the area, or why the violence would occur in this
area, so as to require supervision to make it safe. Even viewing the evidence in the

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light most favorable to Encinias, a mere statement that the area was a “hot zone for
trouble,” without more, is insufficient to support a conclusion that a condition existed
on the premises, so as to require supervision to make it safe.
{18} 	Thus, supervision alone will not be enough to waive immunity. To the extent
that Encinias argues that safety policies were not followed to prevent a suspended
student from accessing a street adjacent to an open campus where food trucks were
parked at lunch and students could come and go at will, we conclude that this also
amounts to negligent supervision. 	The negligent act at issue with regard to the
suspended student rests entirely on the security guard’s or faculty member’s absence
in supervising the area where the attack occurred.
{19} 	Furthermore, to the extent that the Dissent relies on aspirational goals,
specifically the “benchmarks” stated in the school’s report card as establishing safety
policies, such goals are irrelevant. Encinias sought to prove that the school failed to
follow the specific policy of having personnel patrol the lunch truck area and that such
a failure waived immunity. Even assuming it was a safety policy and that the school
failed to implement the policy, Encinias failed to show that supervision was necessary
to keep the area safe. 	As stated above, failure to patrol amounts to inadequate
supervision, which, alone, is insufficient to waive immunity.

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{20} 	In addition, the Dissent fails to explain why “the case now before us should
stand or fall as a negligent operation or maintenance case, not a negligent supervision
case.” 	Dissent ¶ 40. 	The Dissent cites generally to Callaway v. New Mexico
Department of Corrections, 117 N.M. 637, 875 P.2d 393 (Ct. App. 1994), and Castillo
v. County of Santa Fe, 107 N.M. 204, 755 P.2d 48 (1988) for support. These cases
are plainly distinguishable to the case at bar.
{21} 	In Callaway, the plaintiff prisoner was attacked by three inmates, who were
known and dangerous gang members, who had been allowed inside a recreational
room of the prison, which had potential weapons, blind spots, and only two prison
guards. This Court explained:
The structural design and layout of the recreation room added to the
danger of the situation in that the room [had] blind corners, a stair well,
and other areas which [were] shielded from direct observation by the
recreation officers. In addition, potential weapons such as weight bars
and pool cues [were] located in the recreation area.
117 N.M. at 639, 875 P.2d at 395. 	We concluded that “[the d]efendants knew or
should have known that roaming gang members with a known propensity for violence
had access to potential weapons in the recreation area, that such gang members created
a dangerous condition on the premises of the penitentiary, and that the danger to other
inmates was foreseeable.” Id. at 643, 875 P.2d at 399.

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{22} 	In contrast to the case at bar, the evidence in Callaway clearly supported a
conclusion that an inherently dangerous condition existed. In operating the prison, the
defendants corralled convicted felons, who were also known gang members, in a room
where they had the means and opportunity to assault fellow prisoners. Callaway dealt
with more than mere supervision because the operation of the prison necessarily
involved the containment and restraint of potentially dangerous persons and their
access to weapons and new inmates. 	Nonetheless, to the extent that it could be
construed as a supervision case, supervision was obviously necessary to make the
recreation room safe under these circumstances. 	No such facts in the present case
allow us to reach a similar conclusion that there is a dangerous condition requiring
supervision within the food truck area.
{23} 	Furthermore, Castillo, which is not a supervision case, presents facts that
demonstrate the existence of a known dangerous condition. In Castillo, a three-year-
old child was severely bitten by a dog roaming loose on the grounds of the county’s
public housing project. 107 N.M. at 205, 755 P.2d at 49. Under the more deferential
standard of a motion to dismiss, our Supreme Court concluded that allegations that the
defendant had knowledge of “the unsafe condition represented by dogs running loose
within the project” was sufficient to state a claim for waiver of immunity. Id. at 207,
755 P.2d at 51. 	Unlike Castillo, the case at bar comes before us on a motion for

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summary judgment and, thus, Encinias had the burden to produce evidence sufficient
to prove waiver. Mere allegations and legal conclusions are insufficient. In addition,
the facts provided in Castillo demonstrate a dangerous condition that the defendant
knew about and had a duty to address. The negligent act alleged in Castillo is much
more than the mere supervision we address in the present case.
{24} 	Therefore, we conclude that the school did not waive its immunity under the
TCA because Encinias solely alleged negligent supervision and failed to provide
sufficient evidence of a dangerous condition requiring supervision. The district court
did not err in granting summary judgment on this claim.
B. 	Encinias Failed to Make a Prima Facie Case for a Claim Under the UPA
{25} 	Encinias appeals the district court’s order granting summary judgment with
regard to his UPA claim. At trial, the district court found that the UPA did not apply
to attorneys, and “there [wa]s no genuine issue of material fact that the advertising at
issue was false and misleading under the [UPA,] and [Encinias] has failed to establish
a prima facie claim.” Assuming, without deciding, that the UPA applies to attorneys
and their advertising, we conclude that the district court properly granted summary
judgment on Encinias’s UPA claim against Whitener.
In order to state a claim under the UPA, a complaint must contain
allegations to the effect that[] (1) the defendant made an oral or written
statement, a visual description or a representation of any kind that was
either false or misleading; (2) the false or misleading representation was

18
knowingly made in connection with the sale, lease, rental, or loan of
goods or services in the regular course of the defendant’s business; and
(3) the representation was of the type that may, tends to, or does deceive
or mislead any person.
Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166 P.3d
1091. “The subjective belief of the party receiving the information is not sufficient
to establish a violation of the Act.” Eckhardt v. Charter Hosp. of Albuquerque, Inc.,
1998-NMCA-017, ¶ 60, 124 N.M. 549, 953 P.2d 722.
{26} 	At 	trial, 	Encinias 	based 	his 	UPA 	claim 	upon 	allegedly 	misleading
advertisements about the firm’s abilities made on a magnet in a phone book and in a
television commercial by Whitener. To the extent Encinias argues on appeal that acts
other than the advertisements constitute a violation of the UPA, or that he interpreted
the advertisements to indicate that Russell Whitener was going to personally represent
him, we will not address these arguments, as they were not made below. 	Builders
Contract Interiors, Inc. v. Hi-Lo Indus., Inc., 2006-NMCA-053, ¶ 5, 139 N.M. 508,
134 P.3d 795 (declining to address an argument made for the first time on appeal).
{27} 	In this case, the television commercial at issue featured Russell Whitener
saying—“don’t accept a quick check until you check with me”—and mentioned car
accidents. The phone book magnet basically had the same language printed on it and
listed the firm’s areas of practice as “serious injuries[,] auto accidents[, and] wrongful
death.” (Emphasis omitted.) At the hearing on the motion for summary judgment,

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Encinias argued that these advertisements were misleading because Russell Whitener
said that the “Whitener [Law Firm] would act as attorneys, [but] they didn’t.”
Encinias repeatedly argued that the misleading aspect of the advertisements rested
entirely on Whitener’s failure to act as attorneys in accordance with what was asserted
in the advertising. In response, the court pointed out that Encinias’s whole argument
about Whitener’s failure to act as attorneys rested on a missed deadline. The court
subsequently indicated that it did not find the advertisements misleading or false and
that Encinias failed to establish a prima facie case for his UPA claim.
{28} 	We likewise reason that no hypothetical fair-minded fact finder would find
these advertisements misleading or false. Romero, 2009-NMCA-022, ¶ 12 (“An issue
of fact is genuine if the evidence before the court considering a motion for summary
judgment would allow a hypothetical fair-minded fact[]finder to return a verdict
favorable to the non-movant on that particular issue of fact.” 	(internal quotation
marks and citation omitted)). The advertisements simply indicate Whitener’s area of
practice—personal 	injury 	lawsuits—which 	appears 	to 	be 	accurate. 	The
advertisements do not deceive the audience with guarantees or promises. Although
failing to file a case within the applicable statute of limitations falls below the
standard of practice generally expected of attorneys, we conclude that no genuine
disputed material fact existed as to whether the advertisements were misleading or

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false. 	See In re Reid, 116 N.M. 38, 39-40, 859 P.2d 1065, 1066-67 (1993) (per
curiam) (determining that there was professional misconduct where an attorney
delayed three years before filing a lawsuit, failed to keep the client reasonably
informed of the true status of the matter, and failed to investigate factual and legal
basis of the client’s case). Because Encinias could not establish the first requirement
of his UPA claim, summary judgment was properly granted.
C. 	Misrepresentation Claim
{29} 	Lastly, Encinias argues that the district court also improperly granted summary
judgment of his claim for misrepresentation. In addition to renewing his argument
with regard to the advertisement in the form of a misrepresentation claim, Encinias
contends that Whitener made misrepresentations by (1) failing to disclose information
about the status of the case against the school district, (2) misrepresenting the statute
of limitations, and (3) concealing Whitener’s failure to file the case within the statute
of limitations. 	Although from the exhibits in the record it appears that Whitener
withheld information from Encinias and that such behavior could be found negligent,
we nonetheless conclude that the district court properly granted summary judgment
because Encinias failed to establish that he was damaged by these acts.
{30} 	Both negligent and intentional fraudulent misrepresentation require that
Encinias suffer damages as a result of the misrepresentation. 	See UJI 13-1632

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NMRA; 	UJI 	13-1633 	NMRA; 	UJI 	13-1631 	NMRA; 	Williams 	v. 	Stewart,
2005-NMCA-061, ¶ 34, 137 N.M. 420, 112 P.3d 281 (“[A] plaintiff alleging fraud
may recover such damages as are the direct and natural consequences of the reliance
on a fraudulent representation.” (internal quotation marks and citation omitted));
Charter Servs., Inc. v. Principal Mut. Life Ins. Co., 117 N.M. 82, 86, 868 P.2d 1307,
1311 	(Ct. 	App. 	1994) 	(“Damages 	for 	negligent 	misrepresentation 	are 	those
proximately caused by the misrepresentation.”). 	In his brief, complaint, and
memorandum in opposition to Whitener’s motion for summary judgment on the
misrepresentation claim, Encinias makes it clear that the only damages he incurred
from the misrepresentation resulted from his inability to change his representation in
order to file his case against the school district in a timely manner. Encinias did not
argue nominal or punitive damages on appeal or below. 	Since Encinias cannot
succeed on his underlying claim because of the school district’s immunity under the
TCA, he was not damaged by Whitener’s misrepresentations, and the district court
properly dismissed Encinias’s misrepresentation claim.

22
IV. 	CONCLUSION
{31} 	For the reasons stated above, we conclude the district court did not err in
granting summary judgment to Whitener, and we affirm its judgment.
{32} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge
I CONCUR:
___________________________
JAMES J. WECHSLER, Judge
JONATHAN B. SUTIN, Judge (dissenting).

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SUTIN, Judge (dissenting).
{33} 	I respectfully dissent.
{34} 	The Majority Opinion acknowledges that “[t]he central question is whether the
negligent operation or maintenance of a building creates a ‘dangerous condition that
threatens the general public or a class of users of the building.’” Majority Opinion,
¶ 8. The Opinion cites and discusses Upton, 2006-NMSC-040, as though Upton is the
case on which Encinias places his main reliance. Majority Opinion, ¶¶ 2, 8, 10-11,
13-14. 	The Opinion holds “that the seemingly broad rule about school immunity
stated in Upton . . . does not extend so far as to provide relief to Encinias in this case.”
Majority Opinion, ¶ 2. 	Yet the Opinion acknowledges that “[e]vidence proffered
below indicates that it may have been the responsibility of a security guard or faculty
member to patrol the food vendor area and that no one patrolled that area at the time
of the attack.” Id. ¶ 9. The Opinion acknowledges that “[i]n an affidavit, the assistant
principal stated that the location of the attack near the food vendors was a known ‘hot
zone’ for student violence and that a security guard was supposed to patrol that area
during the lunch period[,]” and further that “‘hot zones were locations where students
congregate and where there has been a history of problems that exist such as fights.’”
Id. ¶¶ 9, 17 (alterations omitted). 	The Opinion acknowledges that, in another
affidavit, an affiant stated that “a security guard or teacher usually patrolled the food

24
vendor area, but neither was present at the time of the attack.” Id. ¶ 9. The Opinion
acknowledges that Encinias’s claim is “couched in terms of a failure to follow a safety
policy[.]” 	Id. ¶ 13. 	And the Opinion acknowledges that “Encinias alleges that a
security guard or teacher failed to patrol the area in accordance with stated policies
and procedures.” Id. ¶ 16.
{35} 	The Majority Opinion appears to acknowledge the existence of the school’s
printed “report card[.]” Majority Opinion, ¶ 19. The report card states, “[e]ach year,
every New Mexico school district is required to collect and report to its community
a variety of information about the district and its schools” and also states that “[t]his
report card includes data for the five required statewide indicators[,]” listing “School
Safety” as one of the five indicators. The report card explains that “[t]o demonstrate
school safety, schools are asked to report” such matters as:
— 	an accepted school-level safety plan;
. . .
— 	a plan for staff development in the area of school safety;
— 	identified goals and benchmarks for progress toward school
safety”;
and, under “Benchmarks,” that

25
2. 	Local school district plans for safe schools will be developed and
implemented to assure the safety of all students and staff at
school.
. . . .
5. 	School staff will not tolerate harassment of anyone in any form at
school. . . .
. . . .
10. 	School district will ensure that school buildings and grounds are
designed or adapted to promote security.
And, last, the report card states:
The safety of students and staff is a primary concern of the current
[school] administration. We have implemented a program to review and
address all of our policies and procedures in our school safety handbook.
A district consortium of school personnel, law enforcement, and fire
department officials has been assembled to review all aspects of school
safety at all the school sites including [Robertson High School]. As part
of that program, we are conducting extensive drills to insure the safety
of all staff and students in our care. Additionally, the [school] campus
has been undergoing extensive remodeling to its building to ensure the
safety codes outlined by state and local authorities are being met.
Concerning the Number of Police Reported Incidents, the administration
believes that our numbers are well below [s]tate averages. However, we
also believe that any criminal activity on school grounds is unacceptable.
We have initiated a number of procedures to help reduce criminal
activity at [the school] including the following: we have brought drug
dogs to search the entire campus; we have two security guards to patrol
our campus daily; we have a mediation program consisting of school
counselors to conduct mediations whenever there is a conflict with [the

26
school’s] students; and we have placed security cameras throughout the
campus to better enable the policing of our campus.
We take the safety of all of [the] students and staff very seriously at [the
school,] and we are implementing policies and programs to ensure
everyone’s safety.
This report card document evidences a definite safety policy with respect to safety of
students and implementation of the policy, as well as implementation of programs to
ensure safety.
{36} 	The affidavit of a security guard at the school stated that, of two guards, one
“would be at an area where the students congregated for the lunch period.” “One of
the specific areas” mentioned in this affidavit is the location in question, namely, “the
location of the vendor trucks on [Fifth] Street in front of the Administration Building.”
This affidavit at the very least raises a reasonable inference that a guard was to be
stationed at the area where Encinias was attacked, pursuant to the policies and
programs of the school to ensure the security and safety of students.
{37} 	The assistant principal’s affidavit stated that “[t]he area where the vendor trucks
parked was considered to be a ‘hot zone’ for potential trouble around the school.” She
stated that a security guard “was responsible for watching that area.” She defined “hot
zones” as “locations where students congregate and where there has been a history of
problems that exist such as fights.” This evidence imputes knowledge on the part of
the school that the area where Encinias was attacked was an unsafe area requiring

27
security. Further, the affidavit stated that at least a portion of the duty of the assistant
principal during the lunch period was to patrol this area.
{38} 	In deposition testimony, Encinias’s expert (Blauvelt) testified that it was his
opinion that “[s]chool administration has a duty to protect students in the identified
danger zone.” The witness further stated that the school had identified the vendor area
as a danger zone in the school’s “Emergency Procedures[.]”
{39} 	Our case law solidly holds that, in the context of Section 41-4-6, the phrase
“operation or maintenance” must be interpreted broadly. See Williams, 1998-NMCA-
006, ¶ 10 (“We . . . observe that on several occasions our Supreme Court has rejected
a narrow view of ‘operation or maintenance’ with respect to public buildings, in favor
of a broad interpretation of Section 41-4-6[.]”). Under a broad interpretation, Section
41-4-6 includes a duty “to exercise reasonable care to prevent or correct dangerous
conditions on public property.” Williams, 1998-NMCA-006, ¶ 10.
{40} 	The Majority Opinion changes from analysis of the reach of negligent operation
or maintenance to the concept of negligent supervision, focusing on a view that
Encinias’s allegation “is solely a claim for negligent supervision.” Majority Opinion,
¶¶ 11-13, 17-18. When the issue is whether the negligence is that of supervision or
that of operation or maintenance, the development of the still mushy, or as the
Majority characterizes it, “murky,” law of immunity waiver still has a way to go. The

28
Majority Opinion does not advance the development. It is not helpful to hold as the
Majority does that the circumstances as a matter of law constitute negligent
supervision by relying on fully distinguishable negligent supervision cases. Nor is it
helpful to distinguish Upton, an operation and maintenance case far different from this
case. Encinias actually places little reliance on Upton. It seems to me that the case
now before us should stand or fall as a negligent operation or maintenance case, not
a negligent supervision case.
{41} 	As indicated in the Majority Opinion, Whitener sought, and the district court
granted, the cover of malpractice case law precluding malpractice relief where it is
obvious that the state (here the school or school district) was immune from tort
liability if it were sued in an action and therefore obvious that the underlying claim
would not be viable. Majority Opinion, ¶ 1. Whether an action is viable depends on
whether it states a claim of breach of a duty “to exercise reasonable care to prevent or
correct dangerous conditions on public property.” Williams, 1998-NMCA-006, ¶ 10.
In this case, the evidence presented on the issue of negligent operation or
maintenance of public property included the known existence of a danger zone for
violence at a particular location and during a particular segment of time that students
congregated. From evidence presented, a reasonable inference could be drawn that
the school had and implemented a safety policy by requiring a security guard to be at

29
the danger zone and to have a faculty member patrol at the area during the danger
period.
{42} 	The failure of security and safety under these circumstances could constitute the
creation of a dangerous condition that threatened students congregating in the area.
In my view, this comes closer to the Section 41-4-6 building and grounds immunity
waiver cases than to those hinged on negligent supervision. See Cobos, 1998-NMSC-
049, ¶ 18 (imposing, based on “the relationships of the actors[,] . . . at least limited
duties of operation or maintenance”); Bober, 111 N.M. at 653, 808 P.2d at 623
(adopting the “broader view” articulated in Castillo that Section 41-4-6 contemplated
immunity waiver with respect to negligent injury “aris[ing] from an unsafe,
dangerous, or defective condition on property” and permitting an action under that
section where the State Fair failed to install traffic control devices); Castillo, 107
N.M. at 207, 755 P.2d at 51 (holding a waiver of immunity if the Housing Authority
had knowledge “of the unsafe condition represented by dogs running loose within the
project”); Williams, 1998-NMCA-006, ¶¶ 1-2, 17 (permitting an action under Section
41-4-6 for a school’s negligence in failing to place safety glass in a window and with
no protective device to shield it); Leithead, 1997-NMCA-041, ¶¶ 1, 12 (permitting an
action under Section 41-4-6 for negligent provision of lifeguard services at a public
swimming pool “even though it may also involve elements of negligent supervision

30
of children”); Callaway, 117 N.M. at 643, 875 P.2d at 399 (holding that the plaintiff
stated a claim under Section 41-4-6 for “allowing the known and dangerous gang
members loose to victimize the general prison population”).
__________________________________
JONATHAN B. SUTIN, Judge