UPA claim in New Mexico

2021See Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 41 , 132 N.M. 459 , 50 P.3d 554 (“Because the UPA claim was the only claim for which [the p]laintiffs could be awarded attorney fees, the trial court was obligated to separate the claims and determine the amount of time spent on each.”); see also Dean, 2010-NMCA-076, ¶ 16 (“[I]t has long been the rule in New Mexico that a party is only entitled to those fees resulting from the cause of action for which there is authority to award attorney fees.”). {34} Finally, we reject Autovest’s contention that the Agostos have waived any challenge to the reasonab

2021See Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 41 , 132 N.M. 459 , 50 P.3d 554 (“Because the UPA claim was the only claim for which [the p]laintiffs could be awarded attorney fees, the trial court was obligated to separate the claims and determine the amount of time spent on each.”); see also Dean, 2010-NMCA-076, ¶ 16 (“[I]t has long been the rule in New Mexico that a party is only entitled to those fees resulting from the cause of action for which there is authority to award attorney fees.”). {34} Finally, we reject Autovest’s contention that the Agostos have waived any challenge to the reasonab

2022See Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 17 , 125 N.M. 748 , 965 P.2d 332 (describing the “gravamen” of a UPA claim).

2022See Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 17 , 125 N.M. 748 , 965 P.2d 332 (describing the “gravamen” of a UPA claim).

2021See Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 41 , 132 N.M. 459 , 50 P.3d 554 (“Because the UPA claim was the only claim for which [the p]laintiffs could be awarded attorney fees, the trial court was obligated to separate the claims and determine the amount of time spent on each.”); see also Dean, 2010-NMCA-076, ¶ 16 (“[I]t has long been the rule in New Mexico that a party is only entitled to those fees resulting from the cause of action for which there is authority to award attorney fees.”). {34} Finally, we reject Autovest’s contention that the Agostos have waived any challenge to the reasonab

2021See Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 41 , 132 N.M. 459 , 50 P.3d 554 (“Because the UPA claim was the only claim for which [the p]laintiffs could be awarded attorney fees, the trial court was obligated to separate the claims and determine the amount of time spent on each.”); see also Dean, 2010-NMCA-076, ¶ 16 (“[I]t has long been the rule in New Mexico that a party is only entitled to those fees resulting from the cause of action for which there is authority to award attorney fees.”). {34} Finally, we reject Autovest’s contention that the Agostos have waived any challenge to the reasonab

2024In Gandydancer, 2019-NMSC-021, ¶¶ 25-28 , we explained that construing the UPA to permit the construction company’s recovery for competitive injury would conflict with another statute providing a remedy to consumers of unlicensed contracting services, as a defendant could essentially be “rendered bankrupt or judgment proof” and a consumer “could be effectively precluded from recovering damages” for the defendant’s unlicensed construction services.

2024In Gandydancer, 2019-NMSC-021, ¶¶ 25-28 , we explained that construing the UPA to permit the construction company’s recovery for competitive injury would conflict with another statute providing a remedy to consumers of unlicensed contracting services, as a defendant could essentially be “rendered bankrupt or judgment proof” and a consumer “could be effectively precluded from recovering damages” for the defendant’s unlicensed construction services.

2024“We review the award of attorney fees for 15 abuse of discretion, but we review de novo whether” the district court based these 16 decisions “on a misapprehension of the law.” Atherton v. Gopin, 2012-NMCA-023 , 17 ¶ 5, 272 P.3d 700 . 18 A. Defendant’s Motion for Attorney Fees and Costs 19 {23} “Under the UPA, a party who successfully defends against a UPA claim is 20 entitled to an award of attorney fees if the district court finds that the party 16 1 complaining of such trade practice brought an action that was groundless.” Autovest, 2 L.L.C. v. Agosto, 2021-NMCA-053, ¶ 30 , 497 P.3d 642 (emp

2024“We review the award of attorney fees for 15 abuse of discretion, but we review de novo whether” the district court based these 16 decisions “on a misapprehension of the law.” Atherton v. Gopin, 2012-NMCA-023 , 17 ¶ 5, 272 P.3d 700 . 18 A. Defendant’s Motion for Attorney Fees and Costs 19 {23} “Under the UPA, a party who successfully defends against a UPA claim is 20 entitled to an award of attorney fees if the district court finds that the party 16 1 complaining of such trade practice brought an action that was groundless.” Autovest, 2 L.L.C. v. Agosto, 2021-NMCA-053, ¶ 30 , 497 P.3d 642 (emp

2024Co., 2004-NMCA-027, ¶¶ 2, 19-23 , 135 N.M. 265 , 87 P.3d 545 (stating that detrimental reliance is not an essential element of a UPA claim). {42} For all of these reasons, I respectfully dissent from the majority opinion’s resolution of Defendant’s UPA counterclaim and would have remanded the matter to the district court for trial on the merits.

2024Co., 2004-NMCA-027, ¶¶ 2, 19-23 , 135 N.M. 265 , 87 P.3d 545 (stating that detrimental reliance is not an essential element of a UPA claim). {42} For all of these reasons, I respectfully dissent from the majority opinion’s resolution of Defendant’s UPA counterclaim and would have remanded the matter to the district court for trial on the merits.

2024See Dean v. Brizuela, 2010-NMCA-076, ¶ 17 , 148 N.M. 548 , 238 P.3d 917 (explaining that generally, recoverable fees under the UPA must be separated from nonrecoverable fees “to ensure that only those fees for which there is authority to award attorney fees are in fact awarded”).

2024See Dean v. Brizuela, 2010-NMCA-076, ¶ 17 , 148 N.M. 548 , 238 2 P.3d 917 (explaining that generally, recoverable fees under the UPA must be 3 separated from nonrecoverable fees “to ensure that only those fees for which there 4 is authority to award attorney fees are in fact awarded”).

2024As in this case, we have found occasion to reject constraints imposed by gender, biology, and family structure that might undermine the UPA’s primary purpose of ensuring that children have parents who care for and support them. 12 {24} In Chatterjee, for example, we concluded that a broad, gender-neutral definition of parentage served the best interest of the child, holding that a woman asserting parentage could rely on a UPA presumption of paternity that was seemingly afforded (on the plain language of the statute) to a man that holds out a child as his own. 2012-NMSC-019, ¶¶ 9, 18, 20, 48 .

2024As in this case, we have found occasion to reject constraints imposed by gender, biology, and family structure that might undermine the UPA’s primary purpose of ensuring that children have parents who care for and support them. 12 {24} In Chatterjee, for example, we concluded that a broad, gender-neutral definition of parentage served the best interest of the child, holding that a woman asserting parentage could rely on a UPA presumption of paternity that was seemingly afforded (on the plain language of the statute) to a man that holds out a child as his own. 2012-NMSC-019, ¶¶ 9, 18, 20, 48 .

2022See Calderon v. Navarette, 1990-NMSC-098 , ¶ 13, 111 N.M. 1 , 800 8 P.2d 1058 (“The district court should award a fee based upon the benefits actually 9 provided to the client.”); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting 10 that in assessing a reasonable attorney fee “[c]ounsel for the prevailing party should 11 make a good faith effort to exclude from a fee request hours that are excessive, 12 redundant, or otherwise unnecessary” (emphasis added)).

2022See Calderon v. Navarette, 1990-NMSC-098 , ¶ 13, 111 N.M. 1 , 800 P.2d 1058 (“The district court should award a fee based upon the benefits actually provided to the client.”); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting that in assessing a reasonable attorney fee “[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary” (emphasis added)).

2022See Calderon v. Navarette, 1990-NMSC-098 , ¶ 13, 111 N.M. 1 , 800 8 P.2d 1058 (“The district court should award a fee based upon the benefits actually 9 provided to the client.”); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting 10 that in assessing a reasonable attorney fee “[c]ounsel for the prevailing party should 11 make a good faith effort to exclude from a fee request hours that are excessive, 12 redundant, or otherwise unnecessary” (emphasis added)).

2022See Calderon v. Navarette, 1990-NMSC-098 , ¶ 13, 111 N.M. 1 , 800 P.2d 1058 (“The district court should award a fee based upon the benefits actually provided to the client.”); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting that in assessing a reasonable attorney fee “[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary” (emphasis added)).

2020Motors Corp., 1998-NMCA-020, ¶¶ 2, 22 , 124 N.M. 606 , 953 P.2d 1104 (discussing a plaintiff’s UPA claim against a car manufacturer based on allegations that he detrimentally relied on its representations of quality when he bought a car that failed to meet the quality of goods represented).

2020Motors Corp., 1998-NMCA-020, ¶¶ 2, 22 , 124 N.M. 606 , 953 P.2d 1104 (discussing a plaintiff’s UPA claim against a car manufacturer based on allegations that he detrimentally relied on its representations of quality when he bought a car that failed to meet the quality of goods represented).

2019See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 1992- 21 1 NMSC-044, ¶ 11, 114 N.M. 103 , 835 P.2d 819 (an appellate court will not review 2 issues raised in appellate briefs and unsupported by cited authority); Muse v. Muse, 3 2009-NMCA-003, ¶ 72 , 145 N.M. 451 , 200 P.3d 104 (“We will not search the 4 record for facts, arguments, and rulings in order to support generalized 5 arguments.”). 6 C.

2019See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 1992- 21 1 NMSC-044, ¶ 11, 114 N.M. 103 , 835 P.2d 819 (an appellate court will not review 2 issues raised in appellate briefs and unsupported by cited authority); Muse v. Muse, 3 2009-NMCA-003, ¶ 72 , 145 N.M. 451 , 200 P.3d 104 (“We will not search the 4 record for facts, arguments, and rulings in order to support generalized 5 arguments.”). 6 C.

2012Romero, 2009-NMCA-022, ¶ 12 (“An issue of fact is genuine if the evidence before the court considering a motion for summary judgment would allow a hypothetical fair-minded fact[]finder to return a verdict favorable to the non-movant on that particular issue of fact.” (internal quotation marks and citation omitted)).

2012Romero, 2009-NMCA-022, ¶ 12 (“An issue of fact is genuine if the evidence before the court considering a motion for summary judgment would allow a hypothetical fair-minded fact[]finder to return a verdict favorable to the non-movant on that particular issue of fact.” (internal quotation marks and citation omitted)).

2011Fiser, 2008-NMSC-046, ¶¶ 2, 5 , 144 N.M. 464 , 188 P.3d 1215 .

2011Fiser, 2008-NMSC-046, ¶¶ 2, 5 , 144 N.M. 464 , 188 P.3d 1215 .

2019Gandydancer concluded that Lohman supported a competitive injury claim in the UPA because “‘both the plain language of the act and the underlying policies suggest that a commercial transaction between a claimant and a defendant need not be alleged in order to sustain a UPA claim.’” 2018- NMCA-064, ¶ 13 (quoting Lohman, 2007-NMCA-100, ¶ 33 ). {32} Deriving a competitive injury cause of action from the language of Lohman ignores the context of that case.

2019Gandydancer concluded that Lohman supported a competitive injury claim in the UPA because “‘both the plain language of the act and the underlying policies suggest that a commercial transaction between a claimant and a defendant need not be alleged in order to sustain a UPA claim.’” 2018- NMCA-064, ¶ 13 (quoting Lohman, 2007-NMCA-100, ¶ 33 ). {32} Deriving a competitive injury cause of action from the language of Lohman ignores the context of that case.

2023Seipert v. Johnson, 2003-NMCA-119, ¶ 26 , 134 N.M. 394 , 77 P.3d 298 . {15} To prove a UPA violation, a plaintiff must show: (1) the defendant made an “oral or written statement . . . that was either false or misleading”; (2) “the false or misleading representation must have been knowingly made in connection with the sale . . . of goods or services”; (3) “the conduct complained of must have occurred in the regular course of the [defendant’s] trade or commerce”; and (4) “the representation must have been of the type that may, tends to or does, deceive or mislead any person.” Ashlock v. Sunwest

2023Seipert v. Johnson, 2003-NMCA-119, ¶ 26 , 134 N.M. 394 , 77 P.3d 298 . {15} To prove a UPA violation, a plaintiff must show: (1) the defendant made an “oral or written statement . . . that was either false or misleading”; (2) “the false or misleading representation must have been knowingly made in connection with the sale . . . of goods or services”; (3) “the conduct complained of must have occurred in the regular course of the [defendant’s] trade or commerce”; and (4) “the representation must have been of the type that may, tends to or does, deceive or mislead any person.” Ashlock v. Sunwest

2015See Dean, 2010-NMCA-076 , 6 ¶ 17; Jaramillo, 2002-NMCA-072, ¶ 41 (stating that when a UPA claim is “the only 7 claim for which [the p]laintiff could be awarded attorney fees, the trial court [is] 8 obligated to separate the claims and determine the amount of time spent on each”). 9 While work on some of the fee-authorizing and non-fee-authorizing claims may be 10 “inextricably intertwined,” the court should “attempt to distinguish between the two 11 types of work to the extent possible.” Hinkle, Cox, Eaton, Coffield & Hensley v. 12 Cadle Co. of Ohio, 1993-NMSC-010 , ¶ 32, 115 N.M. 152 , 848 P.

2015See Dean, 2010-NMCA-076 , 6 ¶ 17; Jaramillo, 2002-NMCA-072, ¶ 41 (stating that when a UPA claim is “the only 7 claim for which [the p]laintiff could be awarded attorney fees, the trial court [is] 8 obligated to separate the claims and determine the amount of time spent on each”). 9 While work on some of the fee-authorizing and non-fee-authorizing claims may be 10 “inextricably intertwined,” the court should “attempt to distinguish between the two 11 types of work to the extent possible.” Hinkle, Cox, Eaton, Coffield & Hensley v. 12 Cadle Co. of Ohio, 1993-NMSC-010 , ¶ 32, 115 N.M. 152 , 848 P.