Ashlock v. Sunwest Bank of Roswell, N.A., No. 17068

• Docket Nº: No. 17068
• Citation: 1988 NMSC 26, 753 P.2d 346, 107 N.M. 100
• Case Date: March 22, 1988
• Court: Supreme Court of New Mexico

Page 346

753 P.2d 346 107 N.M. 100 George H. ASHLOCK, Plaintiff-Appellee,
v.
SUNWEST BANK OF ROSWELL, N.A., Defendant-Appellant. No. 17068. Supreme Court of New Mexico. March 22, 1988.
Rehearing Denied May 5, 1988.

[107 NM 100] Atwood, Malone, Mann & Turner, P.A., Rod M. Schumacher, Roswell, for defendant-appellant.

Bozarth, Craig & Vickers, P.C., Marion J. Craig, III, Roswell, for plaintiff-appellee.

OPINION

WALTERS, Justice.

Defendant Sunwest Bank of Roswell (Bank) appeals the trial court's award to plaintiff George H. Ashlock of $20,081.98 in actual damages and $2,962.88 in costs and attorney fees. Ashlock alleged in part, and the trial court so held, that the Bank violated the New Mexico Unfair Practices Act. The Bank's argument on appeal is that the trial court's decision is supported neither by the facts nor the findings. We disagree and affirm the trial court.

In 1981, Ashlock received a mail solicitation from the Bank inviting him to open a

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[107 NM 101] new kind of high interest-bearing checking account. Upon making inquiries at the Bank, Ashlock transferred $27,324 from his savings account to the new interest-bearing account. At that time Ashlock believed he had an agreement with the Bank whereby interest would be paid regularly on the funds in the new account. Because of an error at the Bank, however, no interest was paid on or credited to Ashlock's account. The non-payment came to Ashlock's attention in 1986 when he went to the Bank on another matter and a bank employee then discovered that his account had never drawn interest. The employee assured Ashlock that the account would start to draw interest that night, and Ashlock, dissatisfied, met several times thereafter with Bank officials attempting to persuade them to pay back interest due on his account. Those efforts failed; Ashlock's suit against the Bank followed.

According to the Bank, the trial court failed to enter necessary findings of fact to sustain the judgment. We have said that "findings are to be liberally construed in support of a judgment, and such findings are sufficient if a fair consideration of all of them taken together justifies the trial court's judgment." State ex rel. Goodmans Office Furnishings, Inc. v. Page & Wirtz Constr. Co., 102 N.M. 22, 24, 690 P.2d 1016, 1018 (1984). Here, the trial court found that the Bank advertised its interest-bearing checking account and suggested that savings funds be transferred to such accounts; Ashlock directed the Bank to so transfer his funds; the transfer of $27,324 was completed, but the Bank failed to transfer the sum to an interest-bearing checking account; no interest was paid until the error was discovered in January 1986; the Bank did not advise Ashlock that his new account would not bear interest although the Bank knew that Ashlock believed that it would; the account would have earned an additional $20,081.98 if interest had been paid and kept in the account; the Bank refused to pay Ashlock the back interest on his account.

Four elements must be established to invoke the Unfair Practices Act. First, the complaining party must show that the party charged made an "oral or written statement, visual description or other representation * * * " that was either false or misleading. Second, the false or misleading representation must have been "knowingly made in connection with the sale, lease, rental or loan of goods or services in the extension of credit or ... collection of debts * * *." Third, the conduct complained of must have occurred in the regular course of the representers trade or commerce. And, fourth, the representation must have been of the type that "may, tends to or does, deceive or mislead any person." NMSA 1978, Sec. 57-12-2(C) (Repl.Pamp.1987). Descriptions of unfair or deceptive trade practices include "failure to deliver the quality * * * of * * * services contracted for." Id. Sec. 57-12-2(C)(17). (Emphasis added.)

The Bank argues that the statute requires the statement to be made with the intent to mislead. Such an interpretation imposes an element not provided for by the legislature. Had the legislature wished intent to deceive to be an essential element of the offense, it would have so specified. Richardson Ford Sales, Inc. v. Johnson, 100 N.M. 779, 676 P.2d 1344 (Ct.App.1984). We may infer from the language of the statute that the legislature did not enact such a requirement of intent, because it clearly provides that "[w]here the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages * *...