On appeal the Court of Appeals held that the attorneys did not owe a duty directly to Phillip LeRoy to ensure that he receive the settlement proceeds. Leyba v. Whitley, 118 N.M. 435, 438-40, 882 P.2d 26, 29-31 (Ct. App. 1994). The Court also held, however, that Whitley and Shapiro did owe a duty to their client Corrine to inform her that the money did not belong to her and that she had a fiduciary duty to distribute it to the child.
Therefore, they argue, any claim against Beauvais associated with the filing of the lis pendens would be dismissed under New Mexico law. In support of this proposition, their motion to dismiss cites Garcia v. Rodey, Dickason, Sloan, Akin Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988) and Leyba v. Whitley, 118 N.M. 435, 882 P.2d 26 (N.M.App. 1995). As Defendants correctly note, the New Mexico Court of Appeals in the Leyba case declined to impose a "duty" on an attorney under the circumstances of that case, holding that a "lawyer for a trustee is [not] liable to the beneficiary of the trust solely on the ground that the lawyer did not protect the beneficiary against misconduct by the trustee."
17. The parents both understand that the settlement funds belong to the minor children and may only be used for their benefit. Plaintiffs' counsel advised both parents of the requirements of Leyba v. Whitley, 118 N.M. 435, 882 P.2d 26 (Ct. App. 1994), reversed on other grounds, 120 N.M. 768, 907 P.2d 172 (1995), to the effect that the settlement on behalf of their minor children is the property of the children and can only be used for their benefit. 18. The annuities will be purchased from Prudential Insurance Company. The Court finds that Prudential is a highly rated company, and the minor children face no unnecessary risk of loss with their annuities.
Having resolved the indemnity question against Defendant, we also hold that there is no reason to require Plaintiff to proceed against both Defendant and the City, when Defendant is ultimately responsible for the entirety of Plaintiff's damages. Cf. Leyba v. Whitley, 118 N.M. 435, 445, 882 P.2d 26, 36 (Ct.App.) (procedure under which child would sue trustee, and trustee would then sue her attorneys for indemnity or contribution, would be unduly complicated), cert. granted, 118 N.M. 430, 882 P.2d 21 (1994). For these reasons, we hold that sound public policy requires that Defendant be liable to Plaintiff for the entire amount of Plaintiff's damages.
Whether to believe Eldin's testimony or find that it was fabricated in a tardy attempt to cover up a fraud is a question for the fact finder to decide. See Leyba v. Whitley, 118 N.M. 435, 437, 882 P.2d 26, 37 (Ct.App. 1994), cert. granted, 118 N.M. 430, 882 P.2d 21 (1994); Maxey v. Quintana, 84 N.M. 38, 42, 499 P.2d 356, 360 (Ct.App.) (intent element of fraud is a question for the jury where its determination depends on credibility of the witnesses), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972). Consequently, because the jury should decide whether Insureds intended to defraud Farmers, summary judgment was improper with respect to Farmers' claim that the policy can be avoided on the basis of Insureds' fraud.