Bigelow v. Larry H. Miller Corp. ( 2022 )

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-38562
LINDA BIGELOW,
Plaintiff-Appellant,
v.
LARRY H. MILLER CORPORATION-
ALBUQUERQUE, NUSENDA FEDERAL
CREDIT UNION, and FCA US LLC,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge
Sid Childress
Santa Fe, NM
for Appellant
Guebert Gentile & Piazza, P.C.
Robert F. Gentile
Alexander J. Ospino
RaMona G. Bootes
Albuquerque, NM
Beatty Navarre Strama PC
Matthew R. Beatty
Austin, TX
for Appellees Larry H. Miller Corporation-Albuquerque and FCA US LLC
Tiffany & Bosco, P.A.
Lance R. Broberg
Phoenix, AZ
for Appellee Nusenda Federal Credit Union
MEMORANDUM OPINION
HENDERSON, Judge.
{1} Plaintiff Linda Bigelow initiated this lawsuit asserting multiple claims against
Defendants Larry H. Miller Corporation-Albuquerque (LHM), FCA US LLC, and
Nusenda Federal Credit Union. A jury found in favor of Plaintiff only on her claim that
LHM committed unfair trade practices in violation of NMSA 1978, Section 57-12-
2(D)(17) (2009, amended 2019) of the Unfair Practices Act (the UPA).1 LHM
subsequently moved for judgment as a matter of law pursuant to Rule 1-050(B) NMRA.
The district court granted LHM’s motion and entered judgment in favor of LHM, despite
the jury’s verdict, and denied Plaintiff’s motion for attorney fees as moot. This appeal
followed.2 We affirm. Because this nonprecedential memorandum opinion is issued
solely for the benefit of the parties, we do not provide a general background of the case.
DISCUSSION
I. Standard of Review
{2} We review a district court’s ruling on a motion for judgment as a matter of law
under Rule 1-050(B) de novo, “resolving all conflicts in the evidence in the nonmoving
party’s favor.” Goodman v. OS Rest. Servs. LLC, 2020-NMCA-019, ¶ 25, 461 P.3d 906.
{3} Judgment as a matter of law after a verdict “is proper only when it can be said
that there is neither evidence nor inference from which the jury could have arrived at its
verdict.” Flanary v. Transp. Trucking Stop, 1968-NMCA-010, ¶ 2, 78 N.M. 797, 438 P.2d
637. A motion for judgment as a matter of law “is an objection to the sufficiency of the
evidence to support the jury’s verdict.” Perez v. City of Albuquerque, 2012-NMCA-040,
¶ 11, 276 P.3d 973 (internal quotation marks and citation omitted). “The sufficiency of
evidence presented to support a legal claim or defense is a question of law for the
[district] court to decide.” Sunwest Bank of Clovis, N.A. v. Garrett, 1992-NMSC-002, ¶ 9,
113 N.M. 112, 823 P.2d 912. “The right to a jury trial disappears if the evidence fails to
present or support an issue essential to the legal sufficiency of an asserted claim.”
Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, ¶ 18, 112 N.M. 97, 811 P.2d 1308.
On review, “jury instructions become the law of the case against which sufficiency of the
1This section of the UPA was amended in 2019, after Plaintiff initiated her lawsuit. Therefore, the 2009
amendment controls. See Cmty. Pub. Serv. Co. v. N.M. Pub. Serv. Comm’n, 1983-NMSC-026, ¶ 14, 99
N.M. 493, 660 P.2d 583 (“[W]e must apply the statute in effect at the time the events occurred in this
case.”).
2Plaintiff also appeals the district court’s order entering judgment in favor of Nusenda Federal Credit
Union. However, she offers no points of error in her brief in chief for this Court to address. Issues not
briefed on appeal are deemed abandoned. Hopkins v. Guin, 1986-NMCA-097, ¶ 27, 105 N.M. 459, 734
P.2d 237.
evidence is to be measured.” Goodman, 2020-NMCA-019, ¶ 16 (alteration, internal
quotation marks, and citation omitted).
II. Motion for Judgment as a Matter of Law
{4} Plaintiff claimed that LHM committed an unfair trade practice in violation of
Section 57-12-2(D)(17) of the UPA, alleging that it “knowingly failed to deliver the quality
or quantity of goods or services contracted for.” The jury was accordingly instructed that
[a]n unfair or deceptive trade practice is a false or misleading oral or
written statement or other representation of any kind knowingly made in
connection with the sale of goods or services by a person in the regular
course of his trade or commerce, which may, tends to or does deceive or
mislead any person. Plaintiff contends that LHM engaged in the following
prohibited practices: failure to deliver the quality or quantity of goods or
services contracted for.
See UJI 13-1707 NMRA.
{5} No party disputes the propriety of this instruction. Based on the instruction, in
accordance with our case law, Plaintiff was required to present the following evidence:
(1) LHM made a false or misleading representation; (2) LHM made the representation in
connection with the sale of goods or services knowing it was false or misleading; (3)
LHM made the representation in the regular course of trade or commerce; and (4)
LHM’s representation “may, tends to or does, deceive or mislead any person.” See
Stevenson, 1991-NMSC-051, ¶ 13 (internal quotation marks and citation omitted). In
addition, because Plaintiff’s claim was made under Section 57-12-2(D)(17) of the UPA,
these elements must exist in conjunction with a contract under which LHM has some
obligation to provide goods or services. See Stevenson, 1991-NMSC-051, ¶¶ 15, 17-18;
see also Jones v. Gen. Motors Corp., 1998-NMCA-020, ¶ 21, 124 N.M. 606, 953 P.2d
1104 (“A failure to deliver the quality or quantity of goods or services contracted for,
knowingly done, is a violation of the UPA when coupled with the other criteria of Section
57-12-2(D).” (internal quotation marks and citation omitted)). Indeed, the district court
specifically instructed the jury that Plaintiff’s burden of proof included “any failure to
deliver the quality or quantity of goods or services contracted for and whether they did
so willfully.”
{6} Plaintiff provides multiple theories on which she claims the evidence was
sufficient to meet the elements necessary to succeed under her UPA claim, which we
discuss below. Whether any of those theories may fairly support the jury’s verdict
requires an evaluation of the verdict itself. “Under the ‘general verdict rule,’ a general
verdict may be affirmed under any theory supported by evidence unless an erroneous
jury instruction was given.” Christopherson v. St. Vincent Hosp., 2016-NMCA-097, ¶ 25,
384 P.3d 1098 (alteration, internal quotation marks, and citation omitted). The general
verdict rule may also apply to special verdicts that are general in nature. See id. ¶ 23
(concluding that the general verdict rule applied to a special verdict form when it was
“very general”).
{7} The verdict form provided to the jury here asked generally: “Did Larry H. Miller
Corporation-Albuquerque (“LHM”) engage in an unfair or deceptive trade practice
against Plaintiff?” The jury simply responded “yes.” Although Plaintiff refers to this as a
special interrogatory, we treat this verdict as a general verdict. See id. ¶¶ 23-24 (holding
that the question, “Were either [of the defendants] negligent,” sufficiently general to
apply the general verdict rule). Accordingly, we review whether any of the theories
advanced by Plaintiff at trial, that were supported by substantial evidence, meet the
elements laid out in the jury instructions above.3
A. Failure to Deliver Services
{8} At trial, Plaintiff’s “primary contention was that LHM failed to properly service” the
truck she bought from it, and she argues on appeal there was sufficient evidence for the
jury to agree with her. To support this contention Plaintiff points to three asserted
contracts under which she claims LHM owed her “diagnostic services.” First, a warranty
agreement between Plaintiff and her truck’s manufacturer; second, an extended
warranty agreement between Plaintiff and a third party; and third, testimony from an
LHM representative explaining that, in a hypothetical scenario where a customer arrives
at the dealership complaining that their vehicle’s engine will not start, LHM could not tell
the customer to leave with the vehicle.
{9} On appeal, the parties expend significant effort, as they did at trial, arguing about
whether any of these asserted contracts were with LHM or created any obligation on its
behalf. We need not address those issues because we conclude that even if we were to
assume, without deciding, that LHM had some obligation under any of the asserted
contracts with Plaintiff, there is no evidence that LHM knowingly made
misrepresentations concerning such an obligation. “Our Supreme Court has said that a
knowingly made statement is made when the party was actually aware that the
statement was false or misleading when made, or in the exercise of reasonable
diligence should have been aware that the statement was false or misleading.” Robey v.
Parnell, 2017-NMCA-038, ¶ 48, 392 P.3d 642 (internal quotation marks and citation
omitted). “Under our case law, knowingly made is an integral part of all UPA claims and
3We do not review certain arguments Plaintiff offers against the district court granting LHM’s motion for
judgment as a matter of law, such as LHM waiving its ability to contest the verdict, or that LHM cannot
argue that its conduct did not violate the UPA because it only contested the existence of that conduct. But
see TexasFile LLC v. Bd. of Cnty. Comm’rs, 2019-NMCA-038, ¶ 10, 446 P.3d 1173 (“[A]n appellee
generally need not preserve any specific issues for review and may offer even unpreserved grounds for
affirmance on appeal.”). Plaintiff has not supported these points with any relevant law or clear reasoning,
and so we decline to address them. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137
N.M. 339, 110 P.3d 1076 (refusing to address an argument that was unclear); ITT Educ. Servs., Inc. v.
Tax’n & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (refusing to consider
propositions unsupported by pertinent authority).
must be the subject of actual proof.” Id. (omission, internal quotation marks, and citation
omitted).
{10} Whether LHM knowingly misrepresented to Plaintiff that it would provide her with
“diagnostic services” under any contract depends on what that alleged obligation
entails. Plaintiff never explains what she means when she states she was owed
“diagnostic services.” It does not appear from the record that this term was explained to
the jury either. In her briefing, Plaintiff suggests this term means LHM was obligated to
actually repair her truck or otherwise accurately diagnose defects when she had a
complaint. No evidence was presented indicating that LHM ever represented that it
could always repair Plaintiff’s truck, and as a consequence, always diagnose the
problem, let alone that it knowingly misrepresented that it could. Cf. Eisert v.
Archdiocese of Santa Fe, 2009-NMCA-042, ¶ 27, 146 N.M. 179, 207 P.3d 1156(upholding summary judgment against the plaintiff where she did “not point to any
evidence that would suggest that the [defendants] knowingly made a misrepresentation
of fact”).
{11} Plaintiff also asserts that LHM was obligated to attempt to repair her truck by
examining it when she had a complaint. As support for the jury’s verdict in this regard,
Plaintiff argues that there is evidence she was dissatisfied with LHM’s service work, and
that a third party was able to resolve her complaints more quickly. In doing so, she
appears to imply that it would be reasonable for the jury to infer that LHM was never
actually attempting to resolve her complaints.
{12} However, at no point during trial did Plaintiff present evidence, testimony, or
otherwise that LHM failed to attempt to repair her truck, let alone knowingly
misrepresented its efforts or obligation to do so. To the contrary, all evidence indicates
that LHM expended significant time examining her truck, discussing her concerns with
the manufacturer, suggesting solutions, attempting to replicate her concerns, and
replacing parts. Plaintiff also testified that even though she “showed up a lot
unannounced,” LHM would still look at her truck, sometimes for days trying to replicate
her complaints. Although there was testimony from Plaintiff that she was dissatisfied
with LHM’s inability to repair her truck, her personal satisfaction has no bearing on
whether LHM knowingly misrepresented the repair services it would attempt. The same
can be said for her allusion that the problems were easily fixable by a third party; it
would be unreasonable for a jury to find that LHM was simply holding Plaintiff’s truck for
days on end without working on it when uncontroverted evidence demonstrates that
LHM worked on her truck until she chose to go to a different dealership. See UJI 13-
2005 NMRA (providing that the jury’s “verdict should not be based on speculation,
guess or conjecture”).
{13} As a final point, Plaintiff repeatedly references LHM’s apparent failure to ask
whether she had installed any aftermarket parts on her truck, seemingly alluding to this
failure as a violation of the UPA. Plaintiff has failed to develop this argument, however.
She has not pointed us to any pertinent case law on the issue nor cogently presented
the matter for us to adequately evaluate it. We accordingly decline to address whether
LHM’s failure to ask about aftermarket parts has any bearing on Plaintiff’s UPA claim.
See Headley, 2005-NMCA-045, ¶ 15; ITT Educ. Servs., Inc., 1998-NMCA-078, ¶ 10.
{14} In sum, regardless of the contractual basis Plaintiff asserts, she did not present
evidence on which the jury could find that LHM misrepresented any obligation to provide
her with “diagnostic services,” let alone having done so knowingly. See Stevenson,
1991-NMSC-051, ¶ 18 (concluding it was error to deny judgment as a matter of law in
favor of the defendant where “evidence was never presented that [the defendant]
knowingly made any false or misleading statement of any kind in connection with the
negotiation or the oral agreement”). Because we conclude that Plaintiff lacked proof of
an essential element of her claim, we need not discuss the parties’ arguments
pertaining to the other elements.
B. Failure to Deliver Goods
{15} Beyond an asserted failure to deliver services, Plaintiff argues that the jury’s
verdict is supported by evidence that LHM failed to timely deliver the truck to her
pursuant to her contract with LHM. In support of this argument, she directs our attention
to her purchase agreement, which incorporated a “Spot Delivery Agreement” that
promised delivery of her truck on February 8, 2017. Plaintiff testified at trial that she did
not receive the truck until February 10, 2017. Plaintiff also points to an asserted oral
agreement between her and LHM, which she claims required LHM to deliver her truck
with an auto-start accessory installed, which LHM failed to do. Finally, Plaintiff generally
asserts that the truck she received from LHM was defective, and that the jury could
accordingly find that LHM violated the UPA by delivering it in such a condition.
{16} None of these theories support the jury’s verdict. First, LHM was under no
obligation to deliver her truck on February 8, 2017, as the only contract creating such an
obligation was voluntarily rescinded by the parties. See Meech v. Gallegos, 1974-
NMSC-015, ¶ 6, 86 N.M. 28, 519 P.2d 124 (citing 17 Am. Jur. 2d Contracts, § 512
(1964)) (stating the general rule that rescission places parties in the status quo before
the contract was formed); see also 17 Am. Jur. 2d Contracts, § 571 (2022) (“Generally
speaking, the effect of a rescission is to extinguish the contract and to annihilate it so
effectually that, in contemplation of law, it has never had any existence, even for the
purpose of being broken.” (footnote omitted)). Second, no evidence was presented
indicating that LHM promised to install an auto-start accessory knowing that it would
not, even if such a contract did exist. Third, there was no evidence that LHM knew the
truck was defective when it was sold to Plaintiff. The only testimony concerning the
state of the truck before it was sold relates to LHM’s salesperson not being able to
unlock it due to the battery having died. It was explained at trial that vehicle batteries
often discharge while sitting on the lot awaiting sale, and doing so is in no way a defect.
Based on the foregoing, the evidence does not support the jury’s verdict insofar as
Plaintiff asserts that LHM violated the UPA by failing to deliver goods contracted for.
{17} Plaintiff argues that the jury’s verdict can be supported even absent evidence of
a contract for LHM to provide goods or services. She specifically points to Section 57-
12-2(D)(5), (7), (14), and (15), and asserts that the district court erred by confining its
evaluation of the evidence to Section 57-12-2(D)(17). Each of the subsections under
Section 57-12-2(D) indicate different conduct that could rise to a violation of the UPA,
and require different facts to be pled and proven. Compare, e.g., § 57-12-2(D)(5)
(requiring representations “that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that they do not have or that a
person has a sponsorship, approval, status, affiliation or connection that the person
does not have”), with § 57-12-2(D)(14) (requiring “exaggeration, innuendo or ambiguity
as to a material fact or failing to state a material fact if doing so deceives or tends to
deceive”). Yet despite differences within each subsection, the jury was not instructed on
any of the subsections Plaintiff now claims apply. Upon review, she never pled or
argued they applied below—instead pleading much more narrowly that LHM “knowingly
failed to deliver the quality or quantity of goods or services contracted for.” Indeed, the
jury was instructed that Plaintiff had the burden of proving “any failure to deliver the
quality or quantity of goods or services contracted for and whether they did so willfully.”
Although the jury’s general verdict may be supported by any theory advanced by a party
at trial, the jury’s verdict necessarily could not be based on theories not presented or
instructed on. We accordingly decline to reframe the evidence to support Plaintiff’s new
theories on appeal. See Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-
131, ¶ 12, 125 N.M. 691, 964 P.2d 855. (“This Court reviews the case litigated below,
not the case that is fleshed out for the first time on appeal.” (alteration, internal quotation
marks, and citation omitted)); see also State v. Leon, 2013-NMCA-011, ¶ 33, 292 P.3d
493 (“We generally do not consider issues on appeal that are not preserved below.”
(internal quotation marks and citation omitted)).
III. Order Denying Attorney Fees
{18} Plaintiff asserts that the district court erred by denying her motion for attorney
fees as moot after entering judgment in favor of LHM. The UPA permits a successful
party to recover their attorney fees and costs. See NMSA 1978, § 57-12-10(C) (2005)
(“The court shall award attorney fees and costs to the party complaining of an unfair or
deceptive trade practice or unconscionable trade practice if the party prevails.”).
However, because Plaintiff did not present evidence sufficient to support the jury’s
verdict on her UPA claim, she was not the prevailing party and therefore is not entitled
to fees and costs under Section 57-12-10(C). She has not pointed us to any other
grounds for awarding attorney fees. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031,
¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an argument, we may
assume no such authority exists.”); see generally N.M. Right to Choose/NARAL v.
Johnson, 1999-NMSC-028, ¶ 9, 127 N.M. 654, 986 P.2d 450 (“New Mexico adheres to
the so-called American rule that, absent statutory or other authority, litigants are
responsible for their own attorney[] fees.” (internal quotation marks and citation
omitted)). Accordingly, the district court did not err in denying her motion for attorney
fees.
CONCLUSION
{19} For the foregoing reasons, we affirm the district court’s grant of LHM’s motion for
judgment as a matter of law and denial of Plaintiff’s motion for attorney fees.
{20} IT IS SO ORDERED.
SHAMMARA H. HENDERSON, Judge
WE CONCUR:
JENNIFER L. ATTREP, Judge
JANE B. YOHALEM, Judge