 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   NATIONAL CLINICAL TECH., INC.,
 3   and SPINE AND MUSCLE REHAB., INC.,
 4   a wholly owned subsidiary of NATIONAL
 5   CLINICAL TECH. INC.,

 6        Plaintiffs-Appellees/
 7        Counter-Defendants,

 8 v.                                               NO. 29,347

 9   CHRISTY VALDEZ f/k/a CHRISTY
10   ROGERS, SPINE AND MUSCLE
11   TREATMENT CTR. OF NEW MEXICO,
12   INC., AMY MIRANDA FLYNN, JANA L.
13   HORVATH, JULIET A. RICCI, JOSH
14   WHITE, LISA MARIE JACOBS, MICHELLE
15   DUGGINS, MAURA C. FITZPATRICK, and
16   VALERIE ALVARADO,

17        Defendants-Appellants/
18        Counter-Plaintiffs/
19        Third-Party Plaintiffs-Appellants,

20 v.

21 LOUIS H. SANDERS, ALLAN L. WAINWRIGHT,
22 TRINA KNISKERN, TIARA QUERING, and KEN
23 ABBOTT,

24        Third-Party Defendants-Appellees.

25 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
26 William F. Lang, District Judge


27 Allan L. Wainwright
 1 Albuquerque, NM

 2 for Plaintiffs-Appellee/
 3 Counter-Defendants

 4 Peter Everett
 5 Albuquerque, NM

 6 for Defendants-Appellants/
 7 Counter-Plaintiffs/Third-Party
 8 Plaintiffs-Appellants

 9 John M. Brant
10 Albuquerque, NM

11 for Third-Party Defendants-Appellees


12                            MEMORANDUM OPINION

13 KENNEDY, Judge.

14        Third-party plaintiffs-appellants Christy Valdez, et al. (collectively, Valdez)

15 appeal the district court’s dismissal of their complaint against third-party defendant-

16 appellee Allan Wainwright.       This Court’s calendar notice proposed summary

17 affirmance of the district court. Wainwright filed a memorandum in support of our

18 proposed summary disposition and Valdez filed a memorandum in opposition, which

19 we have duly considered. We affirm the district court’s dismissal of the third-party

20 complaint against Wainwright.

21        Issue: In the course of a lawsuit related to business agreements between


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 1 plaintiffs National Clinical Technology, Inc., et al., (NCT) and defendants Valdez,

 2 Valdez filed a third-party complaint against attorney Allan Wainwright and four other

 3 named individuals. [RP 212-235] Wainwright is the attorney who filed the original

 4 complaint against Valdez on behalf of NCT in litigation that is ongoing. [RP 7] The

 5 third-party complaint alleges eight counts: (1) malicious abuse of process, (2) business

 6 interference, (3) fraud, (4) defamation, (5) promissory estoppel, (6) malicious bad

 7 faith breach of contract, (7) perjury, and (8) theft and exploitation of intellectual

 8 property. [RP 224-35] Wainwright moved to dismiss the third-party complaint as to

 9 him on the basis of Rules 1-012(B)(4) and 1-012(B)(6) NMRA. [RP 304-07] The

10 district court granted the motion but did not elaborate on its reasons for doing so. [RP

11 345-46] As we lack information to determine whether service of process was

12 insufficient as alleged by Wainwright, we do not rely on Rule 1-012(B)(4).

13 Accordingly, we consider whether dismissal was proper under Rule 1-012(B)(6).

14        A Rule 1-012(B)(6) defense asserts that the plaintiff has failed to assert a claim

15 upon which relief can be granted. “A motion to dismiss for failure to state a claim

16 under Rule 1-012(B)(6) tests the legal sufficiency of the complaint, accepting all

17 well-pleaded factual allegations as true.” Ruegsegger v. Western N.M. Univ. Bd. Of

18 Regents, 2007-NMCA-030, ¶ 11, 141 N.M. 306, 154 P.3d 681 (internal quotation

19 marks and citation omitted). “The motion will only be granted if the law does not


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 1 support a plaintiff's claim under any set of facts subject to proof.” Id. (internal

 2 quotation marks and citation omitted). We review rulings on Rule 1-012(B)(6)

 3 motions de novo. Id.

 4        We agree with Wainwright’s assertion in his motion to dismiss that counts 5,

 5 6, and 7 are not directed at him, as they specifically refer to one of the other third-

 6 party defendants (Louis Sanders) and NCT. [RP 306, ¶ E] Thus, we conclude that the

 7 district court correctly dismissed those counts.

 8        As for the other counts, we first observe that the third-party complaint refers to

 9 Wainwright as Louis Sanders’s attorney. [RP 228, ¶ 6] Further, the district court had

10 before it information that Wainwright was attorney for NCT, plaintiffs in the main

11 action. [RP 7] Nothing in the docketing statement or that we have found in the record

12 proper indicates that Wainwright should be treated in any other capacity with respect

13 to the third-party action. That is, there is no assertion that Wainwright has any

14 partnership, ownership, managerial, or other status with respect to the other third-party

15 defendants or NCT. Valdez’s assertion in the memorandum in opposition that some

16 such interest may be shown in the future [MIO 7-8] is of no avail, as we base our

17 analysis on the well-pleaded factual allegations in the third-party complaint. We

18 analyze dismissal of the remaining counts keeping in mind that Wainwright’s

19 involvement in this action is as an attorney advocating for his clients.


                                               4
 1        Count I alleges malicious abuse of process. The elements malicious abuse of

 2 process are: (1) the use of process in a judicial proceeding that would be improper in

 3 the regular prosecution or defense of a claim or charge; (2) a primary motive in the

 4 use of process to accomplish an illegitimate end; and (3) damages. Durham v. Guest,

 5 2009-NMSC-007, ¶ 29, 145 N.M. 694, 204 P.3d 19. “[W]e emphasize that the tort of

 6 malicious abuse of process should be construed narrowly in order to protect the right

 7 of access to the courts.” Id. Valdez’s malicious abuse of process claim appears to be

 8 based on Wainwright’s filing of the main action in the present case. [RP 226-28] We

 9 understand that certain injunctive relief has been granted in the main action, and that

10 this action is otherwise ongoing in the district court. In these circumstances, there is

11 not yet any basis for determining whether the motive for use of process was “to

12 accomplish an illegitimate end.” Accordingly, we conclude that dismissal of this

13 count was proper.

14        New Mexico cases have held that an attorney has no duty toward his or her

15 client’s opponent in an action. See, e.g., Garcia v. Rodey, Dickason, Sloan, Akin &

16 Robb, 106 N.M. 757, 761, 750 P.2d 118, 122 (1988) (stating, in a negligence context,

17 “An attorney has no duty however to protect the interests of a non-client adverse party

18 for the obvious reasons that the adverse party is not the intended beneficiary of the

19 attorney's services and that the attorney's undivided loyalty belongs to the client.”).


                                              5
 1 In Garcia, we further stated, “Historically, our court system has always been

 2 adversarial in nature. The role of the attorney therein is to represent and advocate a

 3 client’s cause of action as vigorously as the rules of law and professional ethics will

 4 permit.” Id.

 5        The remaining causes of action in the third-party complaint—business

 6 interference, fraud, defamation, and theft and exploitation of intellectual

 7 property—are not ones that require a duty on the part of a defendant with respect to

 8 a plaintiff, but the general principle stated in Garcia requires dismissal of these four

 9 counts as well. The conduct alleged against the individuals named in the third-party

10 complaint appears to be closely related to the conduct alleged against NCT in the

11 counterclaim, which is part of the same filing and specifies the same eight counts. As

12 noted, Wainwright represents NCT. The merits of the counterclaim against NCT have

13 not yet been determined. We conclude that allowing claims against an opposing

14 party’s attorney in the same action in which the attorney represents the opponent

15 would have a chilling effect on that attorney’s “represent[ing] and advocat[ing] a

16 client’s cause of action as vigorously as the rules of law and professional ethics will

17 permit.” Id.

18        For the reasons stated above, we affirm the district court’s dismissal with

19 prejudice of the third-party claims against Allan Wainwright.


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1      IT IS SO ORDERED.

2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 ___________________________
6 JAMES J. WECHSLER, Judge



7 ___________________________
8 JONATHAN B. SUTIN, Judge




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