Chavarria v. Fleetwood Retail Corp.

Decision Date06 May 2005
Docket NumberNo. 23,874.,No. 24,444.,23,874.,24,444.
Citation2005 NMCA 082,115 P.3d 799
PartiesRoddie CHAVARRIA and Norma Castaneda, Plaintiffs-Appellees/Cross-Appellants, v. FLEETWOOD RETAIL CORPORATION OF NEW MEXICO, Defendant-Appellant/Cross-Appellee.
CourtNew Mexico Supreme Court

Kyle W. Gesswein, Las Cruces, NM, Richard N. Feferman, 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.

OPINION

KENNEDY, Judge.

{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.

BACKGROUND

{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.

DISCUSSION
Finality of Judgment

{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, 20 Ark.App. 213, 727 S.W.2d 142, 143 (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...

To continue reading

Request your trial
12 cases
  • Peshlakai v. Ruiz
    • United States
    • U.S. District Court — District of New Mexico
    • August 8, 2014
    ... ... Guest Report Reply at 2 (citing Bhandari v. VHA Sw. Cmty. Health Corp., 778 F.Supp.2d 1155, 1168 (D.N.M.2011) (Browning, J.)). AmRest, LLC ... Nat'l Prop. & Cas. Co., 408 Fed.Appx. 162 (10th Cir.2011) ; Chavarria v. Fleetwood Retail Corp. of N.M., 2005NMCA082, 137 N.M. 783, 115 P.3d ... ...
  • State ex rel. Foy v. Austin Capital Mgmt., Ltd.
    • United States
    • Court of Appeals of New Mexico
    • March 15, 2013
    ... ... AUSTIN CAPITAL MANAGEMENT, LTD.; Austin Capital Management GP Corp.; Charles W. Riley; Brent A. Martin; David E. Friedman; Will Jason ... ancient statute of Gloucester punishing a tenant for waste); Chavarria v. Fleetwood Retail Corp., 2005NMCA082, 45, 137 N.M. 783, 115 P.3d 799 ... ...
  • Llc v. Dentsply Int'l Inc. a Del. Bus. Corp.
    • United States
    • U.S. District Court — District of New Mexico
    • July 1, 2010
    ... ... See Chavarria v. Fleetwood Retail Corp., 137 N.M. 783, 789, 115 P.3d 799, 805 (Ct.App.2005) ("Plaintiffs must ... ...
  • Morris v. Giant Four Corners, Inc.
    • United States
    • U.S. District Court — District of New Mexico
    • March 27, 2019
    ... ... "exists to prevent double recovery for a single wrong." Chavarria v. Fleetwood Retail Corp. of New Mexico , 2005-NMCA-082, 6, 137 N.M ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT