United States District Court, D. New Mexico
FRANKLIN D. AZAR & ASSOCIATES, P.C., Plaintiff,
KEVIN EGAN, Defendant.
MEMORANDUM OPINION AND ORDER
August 24, 2017, Plaintiff Franklin D. Azar & Associates
(Plaintiff) filed suit against Defendant Kevin Egan
(Defendant) for intentional interference with contract and
prima facie tort. Defendant filed a Motion for summary
judgment, which is fully briefed. Because Plaintiff has failed
to refute Defendant's evidence negating an essential
element of its claims, the Court will grant the Motion.
a Colorado law firm, alleges that Defendant committed
tortious interference and prima facie tort by inducing its
client Veronica Loya (Ms. Loya) to terminate Plaintiff's
representation of her interests and obtain new counsel.
Compl. ¶¶ 1, 8, 12-13, 18-29. In December 2010, Ms.
Loya retained Plaintiff to represent her and her family on a
contingency fee basis in a personal injury case arising out
of injuries suffered by Ms. Loya's husband, Fidencio
Loya, in a workplace accident. Statement of Undisputed
Material Facts (UMF) ¶¶ 1, 5-6. However, Ms. Loya
became unhappy with the way Plaintiff had been representing
her because she felt that it had “taken too long and
nothing had been resolved.” Id. ¶ 10. In
May 2012, Ms. Loya began to feel “unsafe” after
the primary attorney who had been working on her case left
Plaintiff's employment, and she wanted to find new legal
counsel. Id. ¶ 12. One of the attorneys
handling Fidencio Loya's workers' compensation case
gave Ms. Loya a recommendation for another attorney.
Id. ¶ 15. Defendant also helped Ms. Loya find
referrals for other attorneys. Id. ¶ 18.
has known Ms. Loya and her parents for approximately fifteen
years. UMF ¶¶ 1-2. He employs Ms. Loya as a
housekeeper, and he has employed her father to perform
household tasks. Id. Defendant views himself as a
friend and advisor to Ms. Loya and her family, and Ms. Loya
also considers him to be a friend. Id. ¶¶
3-4. Defendant testified that his goal in assisting Ms. Loya
to find substitute counsel was to get her case in “good
hands.” Id. ¶ 19. He did not feel that he
could “in good conscience recommend” that Ms.
Loya “spend one more minute with anybody from
[Plaintiff.]” Id. Defendant ultimately
recommended two attorneys to Ms. Loya based on their
experience in medical and personal injury cases and their
trial experience. Id. ¶ 20. On June 22, 2012,
Ms. Loya signed a contingency fee agreement with these two
attorneys and terminated her attorney-client relationship
with Plaintiff. Id. ¶¶ 21-22.
Ms. Loya's substitute counsel successfully negotiated a
settlement on her behalf, Plaintiff brought a fee allocation
proceeding against them to recover the reasonable value of
its services. Id. ¶ 23. Plaintiff also pursued
tort claims against the substitute counsel in a separate
suit, arguing that it was entitled to recover all of the fees
that it would have been paid had it not been discharged.
Resp. at 3. During discovery in these lawsuits, Plaintiff
deposed Ms. Loya and Defendant. Id. at 3-4.
Plaintiff asserts that it needs to conduct another deposition
of Defendant before it can properly respond to
Defendant's Motion because at the time of the earlier
depositions it was not contemplating any claims against
Defendant and it had no reason to fully explore the reasons
for Defendant's recommendation that Ms. Loya hire new
counsel. Resp. at 4. However, one of the deposition
transcripts reveals that Plaintiff has deposed Defendant
multiple times, during the depositions Plaintiff inquired
into Defendant's role in Ms. Loya's decision to
terminate Plaintiff's representation, and Plaintiff had
informed Defendant at the time of the depositions that it was
considering suit against him. Reply Ex. C, Egan Depo. at
349:19-22, 350:5-15. Plaintiff settled both of its suits
against Ms. Loya's replacement counsel, see
Resp. at 3, but then brought this suit against Defendant in a
third attempt to recover legal fees that it contends it
should have received on Ms. Loya's case, see
Compl. ¶¶ 21-22. Defendant has moved for summary
judgment, asserting that Plaintiff's claims fail as a
matter of law.
Court has subject matter jurisdiction over this case under 28
U.S.C. § 1332(a)(1) because the parties are of diverse
citizenship and the amount in controversy is over $75, 000.
Since the harm alleged occurred in New Mexico, the
substantive law of New Mexico will apply. See Horizon
AG-Prods. v. Precision Sys. Eng'g, Inc., No. CIV
09-1109 JB/DJS, 2010 WL 4054131, *4-5 (D.N.M. Sept. 28,
Court will grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When applying this standard, the Court
“‘view[s] all evidence and any reasonable
inferences that might be drawn therefrom in the light most
favorable to the non-moving party.'” Riser v.
QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015)
(quoting Croy v. Cobe Labs. Inc., 345 F.3d 1199,
1201 (10th Cir. 2003). A “material” fact is one
that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “A dispute over a
material fact is ‘genuine' if a rational jury could
find in favor of the nonmoving party on the evidence
presented.” E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). When the
moving party would not bear the burden of persuasion at
trial, it may demonstrate that summary judgment is
appropriate “either by producing affirmative evidence
negating an essential element of the non-moving party's
claim, or by showing that the nonmoving party does not have
enough evidence to carry its burden of persuasion at
trial.” Trainor v. Apollo Metal Specialties,
Inc., 318 F.3d 976, 979 (10th Cir. 2002). The party
opposing a motion for summary judgment must “set forth
specific facts showing that there is a genuine issue for
trial as to those dispositive matters for which it carries
the burden of proof.” Applied Genetics Int'l,
Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241
(10th Cir. 1990).
Intentional Interference with Contract
Mexico law recognizes the tort of interference with contract,
but it draws a distinction between interference with existing
contracts and with prospective contracts. Fikes v.
Furst, 2003-NMSC-033, ¶¶ 21-22, 134 N.M. 602,
81 P.3d 545. An at-will contract, such as an attorney-client
retainer agreement, is considered the equivalent of a
prospective contract. See id.; Guest v. Allstate
Ins. Co., 2010-NMSC-047, ¶ 46, 149 N.M. 74, 244
P.3d 342. The parties agree that the standard applicable to
prospective contracts governs Plaintiff's claim.
See Mot. at 9; Resp. at 13.
prove a claim for tortious interference with an at-will
contract, the plaintiff must demonstrate that (1) there was
an actual prospective contract between the plaintiff and a
third party; (2) the defendant interfered with that contract
with an improper motive or through improper means; and (3)
but for the defendant's interference, the contract would
not have been terminated. See Horizon AG-Prods., No.
CIV 09-1109 JB/DJS, 2010 WL 4054131 at *7. Plaintiff has not
alleged that Defendant acted through any improper means.
Under the improper motive theory, the plaintiff must also
show that a desire to harm the plaintiff was the
defendant's sole motive for the interference.
Id.; see also Fikes, 2003-NMSC-033, ¶
first argues that Plaintiff is unable to prove an improper
motive because it lacks evidence refuting Defendant's
asserted motivation to help Ms. Loya out of friendship.
Plaintiff insists that Defendant was motivated to induce Ms.
Loya to terminate Plaintiff's representation of her
interests only by his animosity towards Plaintiff due to
Defendant's dislike of Plaintiff's advertisements.
Defendant does not dispute his distaste for Plaintiff's
advertising, but Plaintiff has presented no evidence that
supports its theory that this dislike motivated Defendant to
harm Plaintiff. More importantly, Plaintiff has not presented
any evidence that refutes Defendant's evidence as to his
motivations. Plaintiff argues that it needs further discovery
to properly support its claims, but Plaintiff has already
deposed Defendant three times, has inquired during the
depositions about the issues in this case, and was
considering filing suit against Defendant at the time the
earlier depositions were taken. See Ex. C, Egan
Depo. at 349:19-22, 350:5-15. Consequently, the Court finds
that delaying resolution of Defendant's Motion to allow
Plaintiff to depose Defendant a fourth time is not justified.
Defendant has presented undisputed evidence of his lengthy
relationship with Ms. Loya and her family, his concern that
she receive good legal representation, his offers to assist
her with legal fees or other costs, and his lack of any
financial or personal benefit from Ms. Loya's decision to
retain new counsel. Plaintiff has therefore failed to present
any evidence creating a genuine issue of material fact as to
whether Defendant's sole motivation was to harm
Defendant argues that Plaintiff cannot prove that Ms. Loya
would not have terminated her agreement with Plaintiff
without Defendant's involvement. The undisputed evidence
demonstrates that Ms. Loya was unhappy with Plaintiff's
legal representation and was seeking new counsel. In addition
to asking Defendant for assistance, Ms. Loya also spoke with
her husband's workers' compensation attorneys about
referrals for substitute counsel. One of the new attorneys
ultimately hired by Ms. Loya was first suggested by one of
the workers' compensation attorneys. It was Ms. Loya who
made the decision to terminate her representation by
Plaintiff in favor of the substitute counsel. Plaintiff has
failed to present evidence creating a genuine issue of
material fact as to whether Defendant's actions were the
but-for cause of Ms. Loya's decision to terminate her
agreement with Plaintiff. Consequently, the Court will grant
summary judgment in favor of Defendant on Plaintiff's
claim of intentional interference with contract.