Aguilera v. Palm Harbor Homes, Inc.

• Decision Date: 06 August 2004
• Docket Number: No. 23,821.,23,821.
• Citation: 99 P.3d 672,136 N.M. 422
• Parties: Rosalina AGUILERA, Petitioner-Appellant, v. PALM HARBOR HOMES, INC., d/b/a Masterpiece Housing, Newco Homes, L.P., d/b/a C & S Magnahomes, Palm Harbor Homes, L.P., Masterpiece Housing, and Newco Homes, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

99 P.3d 672

136 N.M. 422

Rosalina AGUILERA, Petitioner-Appellant, v. PALM HARBOR HOMES, INC., d/b/a Masterpiece Housing, Newco Homes, L.P., d/b/a C & S Magnahomes, Palm Harbor Homes, L.P., Masterpiece Housing, and Newco Homes, Respondents-Appellees.

No. 23,821.

Court of Appeals of New Mexico.

August 6, 2004.

Certiorari Denied October 5, 2004.

J.C. Robinson, W.J. Perkins, Robinson & Lopez, P.C., Silver City, NM, for Appellant.

Thomas L. Murphy, Rosenfelt, Buffington & Borg, P.A., Gallup, NM, for Appellees.

Certiorari Denied, No. 28,869, October 5, 2004.

OPINION

FRY, Judge.

{1} Rosalina Aguilera appeals the district court's refusal to award attorney fees on appeal for her claims under the Unfair Practices Act (UPA). NMSA 1978, §§ 57-12-1 through -22 (1967, as amended through 2003). Aguilera prevailed in arbitration of the underlying dispute, in which she was awarded money damages from Palm Harbor Homes, Inc. (Palm Harbor), a seller of mobile homes. The district court confirmed the award. The parties' subsequent appeals resulted in two published opinions, Aguilera v. Palm Harbor Homes, Inc., 2002-NMSC-029, 132 N.M. 715, 54 P.3d 993, aff'g in part and rev'g in part, 2001-NMCA-091, 131 N.M. 228, 34 P.3d 617, but neither addressed the issue of attorney fees on appeal. We now conclude that Aguilera is entitled to appellate attorney fees. We further conclude that in keeping with the Supreme Court's decision in Dennison v. Marlowe, 108 N.M. 524, 775 P.2d 726 (1989), Aguilera was not precluded from seeking those fees in the district court, after the Supreme Court's resolution, even though she could have sought fees through a motion in the Supreme Court. Because Aguilera is entitled to attorney fees on appeal as a matter of statutory law, we reverse the district court and remand for an award of fees consistent with this opinion.

BACKGROUND

{2} In arbitration before a three-member panel, Aguilera obtained an award that included a refund for money paid on a sales contract that the panel found she had effectively revoked, compensatory damages for emotional distress and out of pocket expenses, and punitive damages. Exclusive of interest, the compensatory award was in excess of $91,000, and the punitive award was for $100,000. The arbitration panel based this award on violations of the Manufactured Housing Act, NMSA 1978, §§ 60-14-1 through -20 (1975, as amended through 2000), and the panel further specified that Aguilera was entitled to the relief provided in the UPA.

{3} Aguilera applied to the district court for confirmation of the award. As part of her application, Aguilera requested attorney fees. In confirming the award, the district court granted attorney fees for work done during arbitration, and it also awarded supplemental fees for work provided after arbitration. Palm Harbor objected to the fees for post-arbitration legal services provided in the district court, and Aguilera ultimately agreed that she was not entitled to those fees. {4} Palm Harbor appealed the district court's confirmation of the arbitration award and the award of attorney fees to this Court and then to the Supreme Court. The two resulting opinions largely focus on punitive damages. However, because the parties agreed that Aguilera was not entitled to attorney fees incurred in the district court, we vacated that portion of the fee award without ruling on the merits of whether the district court had the authority to award such fees. Aguilera, 2001-NMCA-091, ¶ 27, 131 N.M. 228, 34 P.3d 617. On the issue of fees for work performed during the appeals to this Court and to the Supreme Court, although Aguilera in her briefs requested attorney fees on appeal, neither this Court nor the Supreme Court addressed her requests.

{5} After the Supreme Court decision finding in favor of Aguilera on the issue of punitive damages, Aguilera did not file a motion in that Court requesting resolution of the issue of appellate attorney fees. However, about two months after the Supreme Court decision, Aguilera returned to the district court and filed a motion for attorney fees on appeal. The district court denied this motion because (1) the Arbitration Act does not provide for attorney fees on appeal, and (2) Aguilera's prior concession regarding attorney fees precluded her from raising the issue of fees on appeal. Aguilera appeals the denial of her motion.

DISCUSSION

{6} This dispute requires us to determine the correct application of the UPA as well as the effect of the Uniform Arbitration Act on Aguilera's UPA claims. These are questions of statutory interpretation subject to de novo review. See State v. Cleve, 1999-NMSC-017, ¶ 7, 127 N.M. 240, 980 P.2d 23. We must also decide whether the silence of this Court and the Supreme Court precludes a later claim for fees on appeal; this, too, is a legal question that we review de novo. See United Props. Ltd. v. Walgreen Props., Inc., 2003-NMCA-140, ¶ 6, 134 N.M. 725, 82 P.3d 535. Finally, we must resolve whether Aguilera's concessions regarding fees incurred in the district court preclude her claims for fees for her subsequent appeals. Because the facts relating to the concession are undisputed, we review the district court's application of the law to these facts de novo. See Paradiso v. Tipps Equip., 2004-NMCA-009, ¶ 23, 134 N.M. 814, 82 P.3d 985.

The UPA Provides for Fees on Appeal

{7} Section 57-12-10(C) provides in part that "[t]he court shall award attorneys' fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if he prevails." Case law is clear: this requirement applies to fees on appeal as well as fees at the district court level. Hale v. Basin Motor Co., 110 N.M. 314, 321-22, 795 P.2d 1006, 1013-14 (1990). Palm Harbor's arguments to the contrary are unpersuasive.

{8} According to Palm Harbor, Hale has been superseded by portions of Rule 12-403 NMRA 2004, which is the general rule governing the recovery of costs on appeal. As we understand Palm Harbor's argument, it contends that because the rule was adopted after Hale, the procedure in the rule supersedes Hale. This argument fails for two reasons. First, the rule was actually adopted in 1986, prior to the decision in Hale. See Rules of Appellate Procedure effective dates. The 1993 amendment to the rule had no effect on the provision that "allowable costs" to be awarded to the prevailing party shall include reasonable attorney fees for services rendered on appeal, when such fees are permitted by law. Second, we do not agree with Palm Harbor's view that Rule 12-403 and Section 57-12-10(C) are mutually exclusive. Section 57-12-10(C) allows the award of attorney fees in UPA cases, and Rule 12-403 simply provides a procedure for requesting the appellate portion of those allowable fees. Cf., e.g., Cent. Sec. & Alarm Co. v. Mehler, 1998-NMCA-096, ¶¶ 22, 29, 125 N.M. 438, 963 P.2d 515 (awarding, pursuant to a request under Rule 12-403, attorney fees incurred on appeal where such fees were permitted by garnishment statute).

{9} Palm Harbor also argues that this case is distinguishable from Hale because in Hale the Supreme Court directed the district court to award fees, whereas in this case the Supreme Court's decision did not include a similar "mandate." However, Palm Harbor fails to explain how the absence of an explicit mandate from an appellate court negates the statutory provision that a party who prevails on claims under the UPA shall be awarded attorney fees. See § 57-12-10(C). To the extent that this argument by Palm Harbor is a variation on the theme that Aguilera cannot bring claims under the UPA because she agreed to arbitration, we address this erroneous theory in more detail below.

{10} Finally, we agree with Aguilera that an award of fees on appeal furthers the public policies of encouraging individuals to pursue their UPA claims and reimbursing plaintiffs and their counsel for enforcing the UPA. See Jones v. Gen. Motors Corp., 1998-NMCA-020, ¶ 25, 124 N.M. 606, 953 P.2d 1104. Where a plaintiff is defending a relatively small judgment, attorney fees on appeal could very well exceed the size of the judgment. Thus, even on appeal the UPA's attorney fees provision serves the goal of encouraging plaintiffs to pursue justice even where the damages are minor in nature. See Hale, 110 N.M. at 322, 795 P.2d at 1014.

{11} Palm Harbor argues that we should not consider the public policy interests that the UPA protects because the only claim Aguilera was defending in the prior appeals was the award of punitive damages, and there is no reason to assume that the punitive damages award was made pursuant to the UPA. We are not persuaded. There is no question that the arbitration panel specifically awarded Aguilera the remedies provided in the UPA, the Supreme Court's opinion recognized that the punitive damages were within the treble-damage limitation of the UPA, Aguilera, 2002-NMSC-029, ¶ 5, 132 N.M. 715, 54 P.3d 993, and there is no reason for us to speculate that the punitive damages were awarded under some other theory.

The Previous Version of the Arbitration Act Does Not Preclude Fees on Appeal

{12} In denying attorney fees on appeal, the district court recognized that Aguilera's claim was based on the UPA, and yet the court denied the fees because the arbitration act in effect at that time did not provide for fees. In this appeal, Palm Harbor argues that the availability of fees is determined solely by the applicable arbitration act provisions, and further contends that we should not consider this to be a UPA claim. Aguilera argues that both the district court and Palm Harbor misconstrue the effect of the arbitration act. We agree with Aguilera.

{13} At the outset, we recognize that the arbitration act has changed since the arbitration of this dispute. The current arbitration act expressly provides that the arbitrator may award reasonable attorney fees "if such an award is...