CHAVARRIA V. FLEETWOOD RETAIL CORP. OF
N.M., 2005-NMCA-082, 137 N.M. 783, 115 P.3d 799
CASE HISTORY ALERT: affected by
2006-NMSC-046
RODDIE CHAVARRIA and
NORMA CASTANEDA,
Plaintiffs-Appellees/Cross-Appellants,
v.
FLEETWOOD RETAIL CORPORATION
OF NEW MEXICO,
Defendant-Appellant/Cross-Appellee.
Docket Nos. 23,874 and 24,444
(consolidated)
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-082, 137 N.M. 783, 115 P.3d 799
APPEAL FROM THE DISTRICT COURT OF DOÑA
ANA COUNTY, Robert E. Robles, District Judge.
Certiorari Granted, No. 29,246, June
27, 2005. Released for Publication July 12, 2005.
Kyle W. Gesswein, Las Cruces, NM, Richard
N. Feferman, Albuquerque, NM, Janet Santillanes, Albuquerque, NM, for
Appellees/Cross-Appellants.
Edward Ricco, Jeffrey M. Croasdell,
Rodey, Dickason, Sloan, Akin, & Robb, P.A., Albuquerque, NM, for
Appellant/Cross-Appellee.
RODERICK T. KENNEDY, Judge. WE CONCUR:
CYNTHIA A. FRY, Judge, CELIA FOY CASTILLO, Judge.
AUTHOR: RODERICK T. KENNEDY.
{1} Defendant appeals
from a judgment awarding compensatory and punitive damages to Plaintiffs on
their claims arising from the purchase of a mobile home, and from an order
awarding attorney fees to Plaintiffs. Defendant challenges the trial court's
(1) award of compensatory damages to Plaintiffs for fraud, conversion, and
violation of the Unfair Practices Act (UPA), NMSA 1978, '' 57-12-1 to -24
(1967, as amended through 2003); (2) award of punitive damages; (3) dismissal
of Defendant's counterclaim without prejudice; and (4) award of attorney fees
to Plaintiffs under the UPA and the Insurance Code. On cross-appeal Plaintiffs
challenge the trial court's reduction of punitive damages and refusal to
dismiss Defendant's counterclaim with prejudice. We affirm in part, reverse in
part, and remand for further proceedings consistent with this opinion. In light
of our disposition, we need not address the cross-appeal.
{2} Plaintiffs purchased a
mobile home from Defendant through its Las Cruces sales office. Devin Pike and
Bob Lancaster were, respectively, the sales agent and the sales manager of the
Las Cruces office who conducted the sale of a three-bedroom mobile home to
Plaintiffs. Although GreenPoint Credit (Lender) initially qualified Plaintiffs
for a loan to buy a four-bedroom mobile home, Defendant told Plaintiffs that
their loan application had been declined by Lender. Defendant then negotiated
the sale of a three-bedroom mobile home to Plaintiffs. Pike and Lancaster falsified
Plaintiffs' income and employment information in order to qualify them for a
higher loan on the three-bedroom home, also forging Plaintiffs' signatures on a
credit application and another loan document. The amount of the loan for the
three-bedroom mobile home was virtually the same as the amount of the loan for
the four-bedroom mobile home. Pike and Lancaster inflated the value of
Plaintiffs' existing mobile home and agreed to accept the trade-in as a 10%
down payment on the purchase. They included in the loan amount the cost of
constructing a garage and decks that were never provided to Plaintiffs but were
falsely certified to Lender as having been constructed. They misrepresented
certain features to be included in the mobile home. The mobile home was delivered
to Plaintiffs with numerous defects that were never remedied by Defendant.
{3} Plaintiffs filed an
action against Defendant in district court, alleging fraud, conversion,
violation of the UPA, breach of warranty, excessive charges on interim construction
loans in violation of NMSA 1978, §
56-8-9 (1980), and unlicensed sale of
insurance in violation of the Insurance Code. Defendant counterclaimed to
collect on the promissory note executed by Plaintiffs. The case was tried to
the court. Following a three-day trial, the trial court found in favor of
Plaintiffs on their claims, dismissed Defendant's counterclaim without
prejudice, and entered a judgment awarding Plaintiffs compensatory and punitive
damages and other relief. The trial court also awarded attorney fees of almost
$80,000 to Plaintiffs. Defendant's two appeals and Plaintiffs' cross-appeal
followed, and have been consolidated.
{4} The trial court entered a judgment awarding
damages to Plaintiffs under three alternative theories of liability: fraud,
conversion, and violation of the UPA. The judgment states in pertinent part:
IT IS HEREBY
ADJUDGED AND ORDERED:
1. Plaintiffs
are awarded $9,500.00 in actual damages for Defendant's misrepresentations
regarding the garage and decks, under the New Mexico [UPA]. Plaintiffs are
awarded $17,900.00 in actual damages for fraud, regarding the garage, decks and
trade-in. Plaintiffs are awarded $17,000.00 in actual damages for conversion,
regarding the garage, decks and trade-in. After
passage of time for appeal, or when an appeal concludes, plaintiffs must elect
a remedy and choose which one of these three damage awards to accept.
3. Plaintiffs
are awarded $150,000.00 in punitive damages for Defendant's fraud and
$150,000.00 in punitive damages for Defendant's conversion, and $31,440.00
additional damages for Defendant's willful violations of the New Mexico [UPA]. After passage of time for appeal, or when an appeal
concludes, Plaintiffs must elect a remedy and choose whether to accept the
additional damages for unfair trade practices, or to accept the punitive
damages for fraud or the punitive damages for conversion.
(Emphasis added.) The judgment therefore awards Plaintiffs
alternative relief, subject to their election, following the conclusion of this
appeal.
{5} On its face, the judgment
does not appear final because as framed it leaves open the final remedy to be
chosen by Plaintiffs. Generally, "an order or judgment is not considered
final unless all issues of law and fact have been determined and the case
disposed of by the trial court to the fullest extent possible."
Kelly Inn No. 102, Inc. v. Kapnison,
113 N.M.
231, 236,
824 P.2d 1033, 1038 (1992) (internal quotation marks and citation
omitted). "Where a judgment declares the rights and liabilities of the
parties to the underlying controversy, a question remaining to be decided
thereafter will not prevent the judgment from being final if resolution of that
question will not alter the judgment or moot or revise decisions embodied
therein."
Id. at 238, 824 P.2d at
1040. In this case, an election made following the appeal would appear to
"moot" decisions embodied in the judgment on the alternative grounds
of recovery not pursued to satisfaction by Plaintiffs. In addition, because an
election would require Plaintiffs to decide which substantive theory it
ultimately relies on for recovery, we would hesitate to construe it as a purely
ministerial act.
See State v. Candy L.,
2003-NMCA-109, ¶ 6,
134 N.M.
213,
75 P.3d 429 (recognizing that outstanding ministerial acts, involving no
substantive determinations, do not defeat finality). Thus, due to our
jurisdictional concerns, we requested supplemental briefing on the question of
whether the judgment in this case is final and appealable.
See Khalsa v.
Levinson,
1998-NMCA-110, ¶ 12,
125 N.M. 680,
964 P.2d 844.
{6} We agree with the parties
that this case does not present a typical election of remedies problem.
"The essence of the doctrine of election of remedies is the conscious
choice, with full knowledge of the facts, of one of two or more inconsistent
remedies."
Naranjo v. Paull,
111 N.M.
165, 169,
803 P.2d 254, 258 (Ct. App. 1990) (internal quotation marks and
citation omitted). The doctrine exists to prevent double recovery for a single
wrong.
See Liddle
v. A.F. Dozer, Inc., 777 So. 2d 421, 422 (Fla. Dist. Ct. App. 2000).
Thus, when one remedy depends on affirming a contract and another on
repudiating the contract, the remedies are mutually exclusive, and the party seeking
relief must elect one of them.
See Smith v. Galio,
95 N.M. 4, 8,
617 P.2d 1325,
1329 (Ct. App. 1980). The election of remedies doctrine does not apply when
remedies are merely cumulative.
Williams v. Selby,
37 N.M. 474, 476,
24 P.2d 728, 729 (1933). In this case, Plaintiffs were
awarded alternative or concurrent damages, not inconsistent remedies. The
judgment, by its terms, precludes double recovery because Plaintiffs must
choose between alternative remedies and are entitled to but one satisfaction for
their injuries. Therefore, the doctrine of election of remedies does not
presently apply to this case.
{7} We further acknowledge
that the judgment in this case is not one that adjudicates liability but leaves
undecided the question of damages. Our courts have firmly held that such
judgments are not final and appealable.
See, e.g.,
Valley Improvement Ass'n v. Hartford Accident
& Indem. Co.,
116 N.M. 426, 429,
863 P.2d 1047, 1050 (1993);
Principal Mut. Life Ins. Co. v. Straus,
116 N.M.
412, 413-14,
863 P.2d 447, 448-49 (1993). Here, the judgment finally
adjudicates the rights and liabilities of the parties and assesses damages
against Defendant, which are quantified in the judgment.
See id.
(determining that a judgment that awards damages but fails to quantify them is
not final). Thus, the judgment does not fall under the category of non-final
judgments that leaves the award of damages unresolved.
{8} The judgment, however,
does impose an election upon Plaintiffs that has yet to be exercised, thus
making the judgment seemingly inconclusive. Some courts have held that a
judgment awarding alternative or conditional relief subject to an election by
the prevailing party is not final until an election has been made.
See, e.g.,
McKinney
v. Gannett Co., 694 F.2d 1240, 1248-49 (10th Cir. 1982);
Mid-State Homes, Inc. v. Beverly, 727 S.W.2d
142, 143 (Ark. Ct. App. 1987). However, as Defendant notes, this approach has
been criticized by the authors of one prominent treatise as "unfortunately
formalistic," 15B Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper,
Federal Practice & Procedure §
3915.3, at 292 n.14 (2d ed. 1992), since it ignores whether requiring an
immediate election would "deflect an appeal, provide a better basis for
appellate decision, or reduce the risk of further proceedings after
appeal."
Id. at 291.
{9} In this case, both
parties argue that the judgment should be treated as final for purposes of
appeal because doing so would promote the policies of avoiding piecemeal
appeals and facilitating meaningful review of the appellate issues.
See Kelly Inn No.
102, Inc., 113 N.M. at 239-40, 824 P.2d at 1041-42. Plaintiffs explain
that the trial court entered the judgment as it did to allow Plaintiffs full
recovery while also permitting Defendant to raise all of its arguments on
appeal. On appeal, Defendant challenges the trial court's compensatory damages
awards under all three theories and also attacks the basis of the punitive
damages award. On cross-appeal, Plaintiffs claim that the trial court erred in
reducing the amount of punitive damages. According to Plaintiffs, if a formal
election of remedies were mandated by this Court prior to a consideration of
the merits of the appeal, piecemeal appeals from multiple, successive judgments
might result because Plaintiffs would be entitled to continue pursuing all
remaining avenues of recovery until satisfaction of judgment is obtained.
See Uptegraft v.
Dome Petroleum Corp., 764 P.2d 1350, 1355 (Okla. 1988) ("Where the
remedies are alternate or concurrent there is no bar until satisfaction of the
judgment has been obtained. The plaintiff may pursue concurrent remedies at the
same time until there is satisfaction of the judgment.").
{10} Defendant also points
out that, aside from its elective nature, "the judgment in this case is
not materially different from a judgment awarding relief to claimants who have
prevailed on multiple, alternative theories allowing different amounts of
monetary recovery." Defendant explains that the trial court "would
ordinarily award judgment for the largest amount recoverable based on the most
favorable theory on which the claimants had succeeded." The party
appealing would then challenge the award under that theory, and the claimants
would not only defend recovery on that basis but would argue that the award is
affirmable under any theory of recovery considered below.
See Manouchehri v.
Heim,
1997-NMCA-052, ¶ 13,
123 N.M. 439,
941 P.2d 978. Thus, according
to Defendant, because all the same issues would come before the reviewing court
in any event, remand for a formal election would serve no purpose and would
only delay resolution of the issues on appeal.
{11} We appreciate the
procedural complexities and the undue delay that remand for a formal election
would likely cause in this case. Accepting the judgment as final would serve
the purposes of preventing piecemeal appeals, promoting judicial economy, and
facilitating meaningful review of the issues.
See
Executive Sports Club, Inc. v. First Plaza Trust,
1998-NMSC-008, ¶ 11,
125 N.M. 78,
957 P.2d 63. Because the concept of finality
is "given a practical, rather than a technical, construction,"
Kelly Inn No. 102, Inc., 113 N.M. at 236, 824
P.2d at 1038, we hold that the judgment in this case, while unorthodox in form
and reserving a formal election until after appeal, is sufficiently final for
purposes of appeal.
Cf. Cusumano v. Microsoft Corp., 162 F.3d 708, 712 (1st
Cir. 1998) (discussing that "a court's retention of jurisdiction in order
to facilitate the consideration of possible future relief does not undermine
the finality of an otherwise appealable order"). In so holding, however,
we express no opinion or preference regarding when an election between
alternative but concurrent remedies should be made by a prevailing party. Our
holding is limited solely to the particular judgment and the unusual
circumstances in the case before us. We therefore turn to the merits of the
appeal.
Compensatory Damages for Fraud
{12} The trial court awarded
to Plaintiffs compensatory damages of $17,900 for fraud. This award was based
on the trial court's findings that Defendant (1) fraudulently obtained the
disbursement of $9,500 from Plaintiffs' loan by falsely certifying the
construction of nonexistent garage and decks, and (2) fraudulently induced
Plaintiffs to trade in their existing mobile home for a credit of $8,400, for
which they received no value.
{13} Defendant does not
challenge the trial court's finding that two of its employees committed fraud
in the sale of the mobile home to Plaintiffs. Defendant, however, claims that
Plaintiffs are not entitled to actual damages for fraud because they have made
no payment on the promissory note held by Defendant, and thus have sustained no
present financial injury. We disagree.
{14} As a result of Pike's
and Lancaster's misrepresentations, Plaintiffs executed a promissory note in
the principal amount of $82,688.75, covering the purchase price of the mobile
home, the lot, the garage, the decks, and related expenses. Plaintiffs also
signed a security agreement and mortgage to secure payment of the note. By
signing the note, security agreement, and mortgage, Plaintiffs incurred a legal
obligation in the amount of $82,688.75, plus interest. The note, security
agreement, and mortgage were assigned by Lender to Defendant pursuant to a
recourse agreement. Defendant has sought to enforce Plaintiffs' financial
obligation and filed a counterclaim in this action to collect on the note and
foreclose the mortgage. Plaintiffs have been forced to defend the counterclaim,
incurring legal expenses. By suing Defendant for fraud and seeking damages,
Plaintiffs have opted to affirm, rather than rescind, the sale.
See Everett v.
Gilliland,
47 N.M. 269, 275,
141 P.2d 326, 330 (1943) ("It was the
privilege of the plaintiff, thinking himself to have been defrauded, to
determine his course of action. He could either bring an action to rescind the
contract or affirm and sue for damages.").
{15} Thus, even though
Plaintiffs have not yet paid on the promissory note, by signing the note and
affirming the sale, they incurred an enforceable legal obligation and thus have
sustained actionable damage for fraud.
See
Anderson, Greenwood & Co. v. Martin,
44 S.W.3d 200, 212 (Tex. Ct. App. 2001) ("The word `damage' should not be
restricted to a monetary loss; that is, it need not be measured in money, but
it is sufficient if the defrauded party has been induced to incur legal
liabilities or obligations different from that represented or contracted
for."); 37 Am. Jur. 2d
Fraud and Deceit
§ 275 (2001) (recognizing that a "false statement that results in actual
damage to the plaintiff's economic or legal relationships will support an
action for fraud"); 37 C.J.S.
Fraud §
55, at 242-43 (1997) (explaining that "the fact that actual monetary loss
has not yet occurred will not preclude recovery for fraud if such loss is
inevitable, as where the defrauded party has incurred a binding legal
obligation");
cf. Sharts v. Natelson,
118 N.M. 721, 725,
885 P.2d
642, 646 (1994) (defining "actual injury," for the purpose of
determining when cause of action for attorney malpractice accrues, as "the
loss of a right, remedy, or interest, or . . . the imposition of a
liability" and noting that it is immaterial "whether future events
may affect the permanency of the injury or the amount of monetary damages
eventually incurred" (internal quotation marks and citation omitted)).
Moreover, Defendant has taken affirmative action to collect on the note,
causing legal injury to Plaintiffs.
Cf. Daniels v. Coleman, 169 S.E.2d 593, 597 (S.C.
1969) (holding that there is no legal injury or damage where the evidence
established that the appellant had not sought to recover on the note and
mortgage, and the note and the mortgage were returned to the appellees, but
refused).
{16} Defendant further
contends that the award of compensatory damages for fraud is premature because
Defendant's counterclaim was dismissed without prejudice, and Plaintiffs'
liability on the note now remains unresolved in another proceeding. Defendant
claims that Plaintiffs' damages cannot be ascertained until their liability on
the note is adjudicated. We note that Defendant has not informed us how this
argument was preserved in the trial court.
See
Rule
12-216(A) NMRA;
Young v. Van Duyne,
2004-NMCA-074, ¶ 9,
135 N.M. 695,
92 P.3d 1269 ("We are under no
obligation to search the record to locate information in order to save a party
from lack of preservation of issues.");
Woolwine
v. Furr's, Inc.,
106 N.M. 492, 496,
745 P.2d 717, 721 (Ct. App. 1987).
However, even assuming that the issue was preserved, we conclude that
Plaintiffs are entitled to recover damages for fraud even if the claim on the
promissory note has not yet been determined. As we explained above, Plaintiffs
sustained actual injury when they incurred the legal obligation on the note.
Moreover, as Plaintiffs point out, the general rule is that damages for fraud
are measured at the time of the transaction.
See
Indus. Supply Co. v. Goen,
58 N.M. 738,
741,
276 P.2d 509, 511 (1954) (explaining that New Mexico "adopts the
general rule that the defrauded purchaser may recover the difference between
the real and represented values of the property
at
the time of the transaction" (emphasis added));
see generally 37 Am. Jur. 2d
Fraud and Deceit § 275. When fraud is
established, courts generally award the defrauded party the benefit of the
bargain or "the difference between the real and the represented value of
the property, regardless of the fact that the actual loss suffered might have
been less."
Stewart v. Potter,
44
N.M. 460, 464,
104 P.2d 736, 739 (1940). The purpose of benefit of the bargain
damages is to compensate the defrauded party for amounts that would have been
received if the situation had been as the defrauding party represented. In this
case those damages can be ascertained or measured with reasonable certainty
without considering Plaintiffs' liability on the promissory note. Although the
damages awarded to Plaintiffs for fraud may ultimately be offset by the amount
found to be owed on the promissory note, the unresolved claim on the note does
not in any way preclude Plaintiffs' instant recovery of damages for fraud.
{17} Defendant additionally
claims that the trial court erred in awarding compensatory damages of $8,400
for the loss of Plaintiffs' trade-in. Defendant claims that Plaintiffs are not
entitled to damages for the trade-in because they received a credit of $8,400
for the trade-in, which was accepted as a down payment on the purchase.
Plaintiffs, however, contend that because Defendant inflated the purchase price
of the mobile home to obtain additional financing from Lender, they did not
receive any value for the trade-in because that amount was offset by the
inflated and fraudulent charges to Plaintiffs. Defendant counters that, insofar
as the purchase price was inflated, it was done so by $9,500, the cost of the
nonexistent garage and decks, for which Plaintiffs have already been
compensated, and therefore the award of $8,400 constitutes double recovery. We
agree that the additional award for the trade-in is duplicative of the award
for the fraudulent inclusion of the garage and decks. We therefore reverse the
award of $8,400 for the loss of the trade-in.
See
generally Hale v. Basin Motor Co.,
110 N.M. 314, 320,
795 P.2d 1006, 1012 (1990) ("New Mexico does not allow
duplication of damages or double recovery for injuries received.").
{18} On appeal, we review the
trial court's findings of damages to determine whether they are supported by
substantial evidence.
Moody v. Stribling,
1999-NMCA-094,
¶ 37,
127 N.M. 630,
985 P.2d 1210. "Substantial evidence is such relevant
evidence that a reasonable mind would find adequate to support a
conclusion."
Landavazo v. Sanchez,
111 N.M. 137, 138,
802 P.2d 1283, 1284 (1990). "When determining whether a
finding of fact is supported by substantial evidence, we review the evidence in
the light most favorable to upholding the finding and indulge all reasonable
inferences in support of the trial court's decision."
Robertson v. Carmel Builders Real Estate,
2004-NMCA-056, ¶ 20,
135 N.M. 641,
92 P.3d 653.
{19} In arguing that
substantial evidence supports the award of $8,400, Plaintiffs rely on three
exhibits: a series of advance calculation sheets prepared by Defendant in the
course of negotiating the sale of a mobile home to Plaintiffs. The first of the
exhibits pertains to the four-bedroom mobile home Plaintiffs originally sought
to buy, and the other two exhibits pertain to two different three-bedroom
mobile homes, including the one that Plaintiffs ultimately bought. Plaintiffs
point out that the loan amount for all three proposals was roughly the same,
approximately $82,400, although the adjusted invoice amount and the selling
price on each one varied, thus establishing that Defendant sold Plaintiffs the
three-bedroom home for essentially the same price as the four-bedroom home.
Plaintiffs claim that Defendant should have charged Plaintiffs $18,000 less for
the three-bedroom home they purchased, since the adjusted invoice amount of the
three-bedroom home was $24,064, as compared to $42,090 for the four-bedroom
home. Plaintiffs argue that Defendant "could not make up that $18,000
difference with the $7,500 garage alone; they had to pad the deal to make it
look like they were giving the $8,[4]00 trade-in value they promised when, in
truth, Plaintiffs did not receive any actual value for the trade-in." They
also argue that the fraud related to the trade-in was entirely independent of
the fraud related to the garage.
{20} Plaintiffs, however, do
not point to any testimony to support their view that Defendant inflated the
price of the three-bedroom home by $18,000, and that the fraud related to the
trade-in is distinct from the fraud related to the garage. Our review of the
uncontradicted testimony at trial indicates that Defendant artificially
inflated the trade-in allowance to induce Plaintiffs to purchase the home and
then attempted to recoup the difference by fraudulently including in the amount
of the loan the cost of the fictitious garage. In other words, the evidence
establishes that the fraud related to the trade-in and the fraud related to the
garage are part of a single interconnected scheme.
{21} Because Plaintiffs did
not have the cash to make the 10% down payment, they were allowed to trade in
their existing mobile home and received a credit of $8,400 which was accepted
as a down payment. Defendant assigned the NADA book value of $11,349 to the
trade-in and subtracted the almost $3,000 that Plaintiffs still owed on the
mobile home to arrive at the net amount of $8,400. However, the value assigned
to the trade-in was substantially inflated because Defendant subsequently
resold the mobile home for only about $1,500. According to the uncontradicted
testimony of the district manager, William Kasprzyk, there was a "[d]irect
correlation" between the allowance on the trade-in and the inclusion of
the garage in the loan. He testified that to make up for the loss of profit on
the trade-in, Defendant improperly generated additional funds by including in
the amount of the loan the cost of constructing a fictitious garage on
Plaintiffs' property.
{22} The trial court's
findings of fact reflect that it accepted the evidence concerning the
interrelationship between the trade-in and the garage. In particular, the trial
court found that (1) Defendant inflated or misrepresented the value allocated
to the trade-in; (2) Defendant "used the value and money from [the]
non-existent, falsely-certified-as-completed garage to make up the difference
between the value [Defendant] allocated to [Plaintiffs'] 1980 Melody trailer
and the value [Defendant] reported to [Plaintiffs] and [Lender];" and (3)
when Plaintiffs traded in their mobile home, Defendant intended to deprive them
of $7,500 of the value of the mobile home, which was the same amount that the
nonexistent garage cost. "Unless the district court makes findings of
fact, or rejects specific uncontradicted testimony with reasons on the record,
we presume the district court believed the uncontradicted evidence."
State v. Zamora,
2005-NMCA-039, ¶ 8,
137 N.M.
301,
110 P.3d 517 [No. 23,436, filed February 11, 2005], cert. granted,
2005-NMCERT-004. Moreover, "when a trial court makes specific written
findings of fact that are supported by substantial evidence, those findings prevail
over any inconsistent conclusions of law or an inconsistent judgment."
State v. Walker,
1998-NMCA-117, ¶ 7,
125 N.M.
603,
964 P.2d 164;
see also El Paso Field Servs. Co. v. Montoya Sheep & Cattle
Co.,
2003-NMCA-113, ¶ 14,
134 N.M. 375,
77 P.3d 279. Therefore, because
the trial court recognized the connection between the trade-in and the garage,
and awarded Plaintiffs compensatory damages for the fraudulent inclusion of the
garage and the decks, we conclude that the additional award for the loss of the
trade-in amounts to double recovery.
See Cent. Sec. & Alarm Co. v. Mehler,
1996-NMCA-060, ¶ 11,
121 N.M. 840,
918 P.2d 1340 ("The purpose of
compensatory damages is to make the injured party whole by compensating it for
losses."). Thus, we reverse the award of $8,400, but affirm the award of
$9,500 under the benefit of the bargain measure of damages for fraud.
Compensatory Damages for Conversion
{23} Defendant further claims
that the trial court erred in awarding to Plaintiffs compensatory damages for
conversion. Because Plaintiffs would be entitled to no more than $9,500 in
compensatory damages for conversion, even assuming that the claim was
established, we need not address Defendant's conversion arguments. This is
because the same double recovery limitation that was discussed in connection
with fraud also applies to compensatory damages for conversion.
{24} The trial court awarded
$1,720 to Plaintiffs as actual damages for Defendant's unlicensed sale of
property damage insurance to Plaintiffs. The award was made pursuant to the UPA
and therefore was also subject to trebling. Defendant acknowledges that Pike
and Lancaster were not licensed to sell insurance to Plaintiffs, in violation
of NMSA 1978, §
59A-12-6(D) (1984), but claims there was no evidence connecting
the unlawful insurance practice to the damages awarded to Plaintiffs. We agree.
{25} Section 57-12-10(B) of
the UPA provides that any claimant "who suffers any loss of money or
property, real or personal,
as a result of
any employment by another person of a method, act or practice declared unlawful
by the [UPA] may bring an action to recover
actual
damages or the sum of one hundred dollars ($100), whichever is
greater." (Emphasis added.) Thus, to obtain financial recovery under the
UPA, Defendant's deceptive trade practice must have caused Plaintiffs to suffer
actual damages.
See UJI
13-1707 NMRA
(instructing that plaintiffs "may recover damages proximately caused by
the deception");
see also Bogle v. Summit Inv. Co.,
2005-NMCA-024, ¶ 36,
137 N.M. 80,
107 P.3d 520 (stating that "any person who suffers a
financial loss as the result of another willfully engaging in an unfair trade
practice may recover treble damages" under the UPA). However, as Defendant
points out, the evidence presented at trial established that (1) property
damage or hazard insurance was a requirement of the loan, as disclosed in the
promissory note; (2) Plaintiffs wished to purchase the insurance from
Defendant; (3) the price of the insurance was accurately disclosed to them; and
(4) they received the policy for which they were charged. Plaintiffs do not
directly respond to Defendant's claim of lack of causation or actual injury,
asserting only that "Defendant cannot be allowed to profit from its own
wrongdoing." We hold that the evidence is insufficient to establish that
Plaintiffs sustained any actual injury as a result of the deceptive practice in
question, and therefore reverse the award of damages for the sale of insurance.
{26} Defendant also
challenges the award of damages under the UPA for additional utility charges,
inconvenience, and aggravation arising from the defects in the mobile home.
During trial, Plaintiffs stipulated, for purposes of resolving an evidentiary
dispute, that their breach of warranty claim based on defects in the mobile
home was separate from their UPA claim concerning the sales transaction itself.
Moreover, when introducing testimony concerning the damages resulting from the
defects in the mobile home, counsel for Plaintiffs argued that it was relevant
to their breach of warranty claim. The trial court, however, awarded only
equitable relief on Plaintiffs' breach of warranty claim. In light of
Plaintiffs' stipulation during trial that their breach of warranty claim is in
no way "subsumed into the [UPA]," we hold that the trial court erred
in awarding damages under the UPA for the additional utility charges,
inconvenience, and aggravation arising from the defects in the home. We,
however, note that the award of UPA damages for Defendant's failure to deliver
a home with certain custom features ordered by Plaintiffs remains unaffected,
as those damages appear to relate to promises made by Defendant during the sale
itself and thus are properly awarded under the UPA. Thus, we reverse the award
of actual and treble damages related to the sale of insurance, and the award of
actual and treble damages related to the additional utility charges,
inconvenience, and aggravation.
{27} The purpose of punitive
damages is to punish and deter wrongful conduct and thus requires evidence of a
culpable mental state, combined with conduct that is willful, wanton,
malicious, reckless, oppressive, or fraudulent.
Enriquez
v. Cochran,
1998-NMCA-157, ¶ 121,
126 N.M. 196,
967 P.2d 1136. In New
Mexico, a principal may be held vicariously liable for punitive damages when it
"has in some way authorized, ratified, or participated in the wanton,
oppressive, malicious, fraudulent, or criminal acts of its agent."
Albuquerque Concrete Coring Co. v. Pan Am World Servs.,
Inc.,
118 N.M. 140, 143,
879 P.2d 772, 775 (1994). "A corporation
can ratify the acts of its agents by acquiescence in or acceptance of the
unauthorized acts."
Id. at 144, 879
P.2d at 776. However, the ratification must be accompanied by the principal's
knowledge of the circumstances surrounding the agent's misconduct.
Id.;
see also
Beneficial Fin. Co. of N.M. v. Alarcon,
112 N.M. 420, 424,
816 P.2d 489, 493 (1991) ("A party held to a
ratification shall have had full knowledge of all the material facts concerning
the transaction.");
Romero v. Bank of the
S.W.,
2003-NMCA-124, ¶ 19,
135 N.M. 1,
83 P.3d 288 (explaining that
ratification occurs only when there is "full knowledge of all the material
facts" and an "intent to ratify" the transaction, "either
expressly or by conduct").
{28} Defendant claims that
the trial court erred in imposing punitive damages because the evidence was
inadequate to prove corporate misconduct by Defendant. The trial court awarded
punitive damages on the basis that Defendant ratified the actions of Pike and
Lancaster. The trial court found that Defendant ratified their conduct by (1)
paying Pike his full commission on the sale of the mobile home to Plaintiffs,
(2) not immediately terminating Lancaster upon discovering his and Pike's
misconduct, (3) authorizing the construction of a fence in place of a garage on
Plaintiffs' property without Plaintiffs' permission, and (4) advancing
positions in the lawsuit that deny wrongdoing or responsibility.
{29} We conclude that the
evidence upon which the trial court relied does not support ratification of
Pike's and Lancaster's misconduct by Defendant. In urging us to affirm the
trial court's award, Plaintiffs point to evidence that the paperwork submitted
by the local sales representative and manager contained discrepancies and
irregularities that should have been detected and investigated by Defendant,
but were not. However, as a matter of law, inaction alone is not sufficient to
establish ratification of an agent's conduct; ratification must be founded on
knowledge of all facts material to the agent's unauthorized action, and not on
negligence in failing to discover them.
See
Albuquerque Concrete Coring Co., 118 N.M.
at 144, 879 P.2d at 776 (explaining that something more than the defendant's
"receipt of a document which supposedly represents culpable conduct must
be shown to establish corporate complicity through authorization, ratification,
or participation");
Beneficial Fin. Co. of
N.M., 112 N.M. at 424, 816 P.2d at 493;
Romero,
2003-NMCA-124, ¶ 19. In this case, there is no evidence that Defendant had any
knowledge of the circumstances surrounding the agents' fraud when the
documentation in question was submitted and reviewed by the Albuquerque and
Houston offices, or when the sales commission was paid to Pike.
{30} In support of
ratification, Plaintiffs also rely on evidence that Defendant was aware of the
problem of falsification in the mobile home industry, but ignored warnings by
the Albuquerque zone office that local sales offices should not be allowed to
submit financing documents directly to lenders, but should be required to have
them reviewed and verified by the zone office. Although Defendant did not adopt
the recommendation of the Albuquerque zone office, it is undisputed that
Defendant instituted an alternative method of verification of sales information
through a central finance office in Portland. Moreover, in response to the
problems in the mobile home industry, Defendant had adopted a corporate policy
expressly prohibiting dishonest acts by sales personnel, and in 1999 convened a
nationwide "Call to Integrity" meeting of managers to specifically
address the problem of fraud in the industry. In light of this evidence in the
record, which appears to be undisputed, we conclude that Defendant's decision
not to adopt the particular policy recommended by the Albuquerque zone office
does not rise to the level of corporate indifference necessary to justify an
award of punitive damages.
See McNeill v. Rice Eng'g & Operating, Inc.,
2003-NMCA-078, ¶ 40,
133 N.M. 804,
70 P.3d 794 ("We know of no precedent,
and Plaintiffs cite none, which requires companies to take every means
available, no matter how costly or how feasible to avoid any potential economic
injury, even if it knows or has reason to know such may be the
consequence.");
cf. Clay v. Ferrellgas, Inc.,
118 N.M. 266, 269-70,
881 P.2d 11, 14-15 (1994) (affirming award of punitive damages where company's
negligent installation of propane conversion system in car, together with pattern
of safety regulation violations by company, in the face of serious risks of
danger, amounted to corporate indifference and reckless conduct).
{31} The trial court also
based ratification on its finding that, when the fraud in the transaction was
revealed to Defendant, the district manager directed the local sales manager to
have a fence, instead of a garage, built on Plaintiffs' property without their
permission. However, we are unable to find support in the record for the trial
court's finding. Our review of the record indicates as follows. When Plaintiffs
reported the defects in the home to Defendant, it sent district manager
Kasprzyk to Las Cruces to investigate. Upon inspecting Plaintiffs' home,
Kasprzyk acknowledged the defects and poor condition of the home and arranged
for repairs, which were apparently never done. Then when the falsification of
Plaintiffs' loan first came to light, Kasprzyk again went to Las Cruces and saw
that, contrary to the loan documents, there was no garage on Plaintiffs'
property, which was too small to even fit a garage. After being apprised of the
situation, the zone vice-president, Jim Gifford, asked Kasprzyk to find out
what Plaintiffs wanted instead of the garage. Kasprzyk relied on Lancaster, as
the local manager, to address the matter with Plaintiffs. During that meeting,
Plaintiffs expressed a desire to use the money allocated to the garage to build
a concrete slab, porch, and fence on the property instead. Without obtaining
Plaintiffs' permission, Lancaster arranged to have a fence, which was worth
less than $1,000, built on Plaintiffs' property. There is no evidence in the
record, however, that this unauthorized act was done at Kasprzyk's direction.
Rather, Kasprzyk believed that an agreement had been reached with Plaintiffs to
substitute the fence for the garage. Where the district manager and the zone
vice-president had no knowledge of the unilateral actions of Lancaster, and
sought only to settle the controversy with Plaintiffs, we cannot conclude that
it was reasonable to find ratification.
See
Albuquerque Concrete Coring Co., 118 N.M.
at 143, 879 P.2d at 775.
{32} The trial court also
found that Defendant's failure to immediately terminate Pike and Lancaster
amounted to ratification. However, it is undisputed that Pike was terminated by
Defendant approximately two months later based upon similar misconduct in
another sale, and that Gifford ordered that Lancaster be terminated after an
investigation of his misconduct in this transaction, but Lancaster resigned before
he could be fired. Thus, the cumulative conduct of employees in this case does
not support a finding of ratification by Defendant.
See Clay,
118 N.M. at 270, 881 P.2d at 15 (recognizing that culpable mental state
required for award of punitive damages may be based on the cumulative conduct
of employees). Rather, the evidence in the record supports Defendant's
description of Pike and Lancaster as "renegade employees" whose
egregious actions were neither ratified nor condoned by Defendant, but once
discovered and investigated, were reasonably dealt with by their supervisors.
See Gillingham v.
Reliable Chevrolet,
1998-NMCA-143, ¶ 20,
126 N.M. 30,
966 P.2d 197
(explaining that "in order to impose punitive damages against an employer,
its conduct must be found to be willful, reckless, or wanton,
apart from the conduct of its employee"
(emphasis added));
cf. Coates v. Wal-Mart Stores, Inc.,
1999-NMSC-013,
¶ 48,
127 N.M. 47,
976 P.2d 999 (upholding award of punitive damages against
employer for intentional infliction of emotional distress where the conduct of
one employee was witnessed and condoned "by high level supervisory
personnel").
{33} In imposing punitive
damages, the trial court also relied on Defendant's litigation conduct or
defense of this lawsuit. New Mexico case law, however, does not appear to
recognize a principal's litigation conduct as a basis for ratification for
purposes of determining punitive damages.
See
Albuquerque Concrete Coring Co., 118 N.M.
at 144, 879 P.2d at 776 (refusing to recognize breach of contract and party's
defense of contract claim "to the very end" as basis for punitive
damages);
Burguete v. G. W. Bond & Bro.
Mercantile Co.,
43 N.M. 97, 105,
85 P.2d 749, 754-55 (1938) (indicating
that opposing party's claims in litigation did not establish ratification since
unresolved factual issues were for the court to decide);
In re Estate of Duncan,
2002-NMCA-069, ¶ 25,
132
N.M. 426,
50 P.3d 175 (stating that the personal representative's decision to
litigate issues in estate matter did not amount to ratification of lease since
litigation itself was intended to sort out respective interests of the
parties),
rev'd on other grounds,
In re Estate of Duncan,
2003-NMSC-013, ¶¶ 1, 24,
133 N.M. 821,
70 P.3d 1260. Thus, we decline to treat Defendant's position in
this lawsuit as a basis for finding ratification by Defendant.
{34} Finally, Plaintiffs
argue that the award of punitive damages should be affirmed because Lancaster,
as local sales manager, was employed in a managerial capacity. In New Mexico,
punitive damages may be imposed upon a principal if "the agent was
employed in a managerial capacity and was acting in the scope of
employment."
Albuquerque Concrete Coring Co.,
118 N.M. at 145, 879 P.2d at 777 (internal quotation marks and citations
omitted). This theory, however, was not specifically included in Plaintiffs'
requested findings and conclusions, and was not clearly raised by Plaintiffs
until their response to Defendant's motion to amend judgment.
See Famiglietta v.
Ivie-Miller Enters.,
1998-NMCA-155, ¶ 21,
126 N.M. 69,
966 P.2d 777
(declining to review argument not made below). In imposing punitive damages,
the trial court explicitly relied on Defendant's ratification of its employees'
misconduct, and not the managerial capacity rule. An appellate court will not
affirm the ruling of the trial court on a ground not relied upon by the trial
court if doing so would be unfair to the appellant.
Meiboom v. Watson,
2000-NMSC-004, ¶ 20,
128 N.M.
536,
994 P.2d 1154;
Pinnell v. Bd. of County Comm'rs
of Santa Fe County,
1999-NMCA-074, ¶ 14,
127 N.M. 452,
982 P.2d 503
(explaining that an appellate court will not assume the role of the trial court
and delve into fact-dependent inquiries when opposing party has not had an
opportunity to develop record in response and would therefore be prejudiced).
Thus, we decline to address whether the managerial capacity rule applies under
the facts of this case.
{35} We reverse the trial
court's award of punitive damages against Defendant based on insufficiency of
the evidence to support a finding of ratification by Defendant. Although an
appellate court is required to view the evidence in the light most favorable to
the prevailing party and indulge all reasonable inferences in support of the
judgment,
Sunwest Bank of Albuquerque, N.A. v.
Daskalos,
120 N.M. 637, 639,
904 P.2d 1062, 1064 (Ct. App. 1995), we
conclude that no reasonable view of the evidence in this case supports a
finding of ratification by Defendant. In light of our reversal of the punitive
damages award, we do not address Plaintiffs' claim on cross-appeal that the
trial court erred in reducing the award.
Dismissal of Defendant's Counterclaim Without
Prejudice
{36} Defendant argues that
the trial court erred in dismissing, without prejudice, its counterclaim to
collect on the promissory note signed by Plaintiffs. At the close of the
evidence, Plaintiffs moved for judgment on the counterclaim on the ground that
Defendant failed to produce the original note and thus did not satisfy its
burden of proof on the counterclaim.
See
NMSA 1978, §
55-3-308(a) (1992). They argued that because Defendant was not the
original holder of the note, it was required to prove possession of the
original note in order to collect payment, relying on the Arkansas case of
McKay v. Capital Resources Co., 940 S.W.2d 869,
871 (Ark. 1997). Defendant argued below, and continues to argue on appeal, that
Plaintiffs waived objection to the failure to produce the original note because
the issue was not raised until the close of trial, and Plaintiffs had
previously stipulated to the admissibility of all exhibits, including a copy of
the note. Although Defendant admitted that it did not have the original note at
trial, it allegedly obtained possession of the original note from Lender when
it later moved for reconsideration. We agree that Plaintiffs waived any
objection to the non-production of the original note at trial.
{37} Plaintiffs do not
respond directly to Defendant's claim of waiver, but argue only that Defendant
failed to meet its evidentiary burden under the Uniform Commercial Code.
However, in a collection action, the failure to produce the original note or
instrument may be waived or excused by stipulation or admission of the parties.
Recreation Servs., Inc. Defined Benefit Plan v.
Utah Mortgage Co., 720 F. Supp. 124, 125 (N.D. Ill. 1989);
see also Tassock
v. Hogan, 538 P.2d 910, 912 (Or. 1975).
{38} In this case, Plaintiffs
admitted in their answer to the counterclaim that they signed the note. They
admitted that the note was assigned to Defendant and that Defendant was the
current owner of the note. The pretrial order does not indicate that Plaintiffs
challenged Defendant's status as the owner or holder of the note. Moreover,
unlike the situation in
McKay, 940 S.W.2d
at 869-70, Plaintiffs in this case stipulated to the introduction and use of
the copy of the note in evidence at the start of the trial, acknowledging that
it was an "original exhibit." When Plaintiffs moved for dismissal of
the counterclaim at the close of evidence, Defendant and even the trial judge
were surprised by Plaintiffs' objection. Under these circumstances, we conclude
that Plaintiffs waived any challenge to Defendant's failure to produce the
original promissory note.
See Recreation Servs., Inc. Defined Benefit Plan,
720 F. Supp. at 125;
Tassock, 538 P.2d at
912;
cf. Apodaca
v. AAA Gas Co.,
2003-NMCA-085, & 58,
134 N.M. 77,
73 P.3d 215
(noting that party's contention on appeal that the opposing party failed to
authenticate the file introduced into evidence ignores the fact that the party
stipulated to the file's authenticity). We therefore reverse and remand for
further proceedings on Defendant's counterclaim.
{39} Because we reverse on
the basis of waiver, we need not address Defendant's remaining challenge to the
dismissal of the counterclaim, which was admittedly not preserved below. We
note that Defendant further argues that the trial court erred in ruling,
following the dismissal of the counterclaim, that Defendant forfeited interest
on the promissory note pursuant to NMSA 1978, §
56-8-9(D) (1980). Defendant
admits that this issue was not raised below, but argues that it is an issue of
general public interest which may be excluded from the preservation
requirement. We disagree. Defendant's issue, which pertains to the particular
terms of the financing in this case, is not likely to affect the public at
large or a great number of cases and litigants in the near future.
See Azar v.
Prudential Ins. Co. of Am.,
2003-NMCA-062, ¶ 28,
133 N.M. 669,
68 P.3d
909. Thus, the public interest exception does not apply, and we decline to
reach Defendant's argument raised for the first time on appeal. Finally,
because we reverse and remand on Defendant's counterclaim, we need not address
Plaintiffs' contention on cross-appeal that the counterclaim should have been
dismissed with prejudice.
{40} Defendant argues that
the trial court erred in determining the amount of attorney fees to award to
Plaintiffs under the UPA and the Insurance Code. The trial court awarded fees
of approximately $80,000 to Plaintiffs. Defendant claims that the trial court
failed to adequately apportion counsel's efforts between Plaintiffs' UPA claim
and their other, non-fee generating claims. Specifically, Defendant contends
that the trial court improperly awarded Plaintiffs attorney fees for their
claims related to (1) the unlicensed sale of insurance under the Insurance
Code, (2) the violation of statutory limits on interim construction loan
charges, and (3) punitive damages against Defendant. Defendant acknowledges
that it did not raise below its argument that Plaintiffs are not entitled to
attorney fees under the Insurance Code. Because this issue was not preserved
for review, we do not consider whether attorney fees were improperly awarded
under the Insurance Code.
See Rule
12-216(A);
Woolwine, 106 N.M. at 496, 745
P.2d at 721 ("To preserve an issue for review on appeal, it must appear
that [the] appellant fairly invoked a ruling of the trial court on the same
grounds argued in the appellate court.").
{41} "The trial court
has broad discretion in setting attorney fees, and an award will not be
reversed unless there is an abuse of discretion."
Robertson,
2004-NMCA-056, ¶ 48. "A trial
court abuses its discretion when its decision is contrary to logic and reason."
Roselli v. Rio Cmtys. Serv. Station, Inc.,
109 N.M. 509, 512,
787 P.2d 428, 431 (1990).
{42} In awarding attorney
fees to Plaintiffs, the trial court entered, in part, the following findings:
5. The litigation of this entire
case centered around [Defendant's] misrepresentations.
6. The same conduct which pertained
to the fraud claims also was the conduct that violated the [UPA].
7. All of the time and work
performed by Plaintiffs' attorneys proving their fraud claim also was performed
in proving the [UPA] claim.
8. The time and work performed by
Plaintiffs' attorneys, proving entitlement to punitive damages under the fraud
claim, also was performed in proving the entitlement to treble damages for
willful [UPA] claim.
9. The time and work Plaintiffs'
counsel spent litigating the arbitration issue pertained to all claims,
including the [UPA] claim.
10. No additional time was spent on
the arbitration issue that did not include the work spent on the [UPA] claim.
11. In their fee application,
Plaintiffs' counsel already deleted the time they spent working on the breach
of warranty claim, which was not compensable.
12. The commission of unfair trade
practices was an element of the usury claim that required presentation of
evidence at trial. Plaintiffs' success in proving the violations of the [UPA]
was directly related to their success in prevailing under the New Mexico usury
statute.
13. A portion of the work of
Plaintiffs' counsel on their usury claim, primarily their work on the legal
issues, is not compensable.
14. The portion of the work of
Plaintiffs' counsel, on the Truth in Lending Act claim in the original
complaint, is not compensable.
{43} When a plaintiff asserts
a UPA claim along with a number of other distinct claims, the trial court must
"separate the claims and determine the amount of time spent on each."
Jaramillo v. Gonzales,
2002-NMCA-072, ¶
41,
132 N.M. 459,
50 P.3d 554. Even when "some facts are common to all the
claims," the trial court must still "separate the claims and the proofs
required for each" to the extent possible.
Id.
¶ 40. Thus,
when the attorney's services are
rendered in pursuit of multiple objectives, some of which permit an award of
fees and some of which do not, the court must make a reasoned estimate, based
either on evidence or on its familiarity with the case at trial, of the
proportion or quantum of services that are compensable and award fees only for
those services.
{44} We conclude that the
trial court met its obligation of separating the claims and estimating with
reason the proportion of services compensable under the UPA based on the
evidence submitted and its familiarity with the case. Defendant claims that the
trial court erred in awarding fees related to work done under the UPA that promoted
the success of Plaintiffs' usury claim, which is not compensable. The trial
court, however, may properly award fees for UPA work that overlaps factually
with another claim.
See Jaramillo,
2002-NMCA-072, ¶ 40. Here, the trial
court found that proof of an unfair trade practice "was an element of the
usury claim that required presentation of evidence at trial" and deducted
from its fee determination a portion of the time spent on other aspects or
legal issues related to the usury claim. We defer to the trial court's reasoned
estimate of the amount of work attributable to the UPA in this regard.
{45} Defendant also argues
that the trial court erred in finding that the proof required for punitive
damages under common law fraud is the same as the proof required for treble
damages under the UPA. According to Defendant, because entitlement to punitive
damages requires an additional showing of Defendant's vicarious liability, the
trial court's award of fees under the UPA should be reduced accordingly. We, however,
have difficulty discerning any appreciable difference in the levels of proof
between the two claims in this case, particularly in light of our determination
that the evidence of Defendant's ratification is insufficient. Moreover, as
this Court has pointed out in the past, "the same conduct that violates
the UPA may also form the basis of another cause of action that permits an
award of punitive damages."
McLelland v.
United Wisconsin Life Ins. Co.,
1999-NMCA-055, ¶ 11,
127 N.M. 303,
980
P.2d 86. Thus, we cannot say that the trial court's finding was "contrary
to logic or reason."
Roselli, 109
N.M. at 512, 787 P.2d at 431. We therefore affirm the award of attorney fees.
{46} Nonetheless, because we
reverse the award of certain damages under the UPA as discussed above, we
remand to the trial court with instructions to redetermine the amount of
attorney fees to be awarded Plaintiffs without counting any time and work
required of counsel on the unsuccessful portions of the UPA claim.
See Klinksiek v.
Klinksiek,
2005-NMCA-008, ¶ 29,
136 N.M. 693,
104 P.3d 559 (recognizing
that remand for reconsideration of attorney fee award is appropriate when the
trial court's order is reversed in part);
Rabie
v. Ogaki,
116 N.M. 143, 149,
860 P.2d 785, 791 (Ct. App. 1993). The
parties have apparently stipulated that remand is appropriate in such an event.
Finally, in light of our reversal in part of the UPA claim, we deny Plaintiffs'
request for appellate attorney fees.
{47} The judgment and orders
of the trial court are affirmed in part and reversed in part, and the case is
remanded for further proceedings in accordance with our opinion.
RODERICK T. KENNEDY, Judge
CELIA FOY CASTILLO, Judge