1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 P.J. MILETA and WENDY MILETA,
8 Plaintiffs-Appellants,
9 v. NO. 28,918
10 ROBERT R. JEFFRYES,
11 Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 13 Sam B. Sanchez, District Judge
14 Kelley Law Offices 15 Cody K. Kelley 16 Charlotte L. Itoh 17 Albuquerque, NM
18 L. Helen Bennett 19 Albuquerque, NM
20 for Appellants
21 Robin C. Blair 22 Raton, NM
23 for Appellee
24 MEMORANDUM OPINION
25 VANZI, Judge. 1 P.J. and Wendy Mileta (Plaintiffs) appeal from the district court’s judgment
2 granting a directed verdict in favor of Robert Jeffryes (Defendant) on Plaintiffs’
3 claims and in favor of Defendant on his counterclaim. Plaintiffs also appeal the
4 district court’s entry of a decree of foreclosure, when the junior lienholders and
5 mortgagees had not received notice of the foreclosure, and the district court’s award
6 of attorney fees to Defendant. We affirm in part and reverse in part.
7 BACKGROUND
8 This matter arises out of a dispute concerning the construction of Plaintiffs’
9 home by Defendant. The parties agree on the following facts. In September 2004,
10 Plaintiffs entered into an oral contract with Defendant for the building of their
11 residence on property that Plaintiffs owned in Raton, New Mexico. Defendant has
12 been a licensed general contractor in New Mexico for about 32 years. Defendant
13 started construction on Plaintiffs’ home on or about October 14, 2004. Plaintiffs
14 obtained a construction loan and made payments to Defendant during the period of
15 October 2004 to March 2005. Defendant stopped working on the house and left the
16 project unfinished in early 2006 when Plaintiffs failed to pay Defendant additional
17 money Defendant claimed was due and owing. Defendant then filed a materialmen’s
18 lien on the property in February 2006.
2 1 Approximately a year later, in March 2007, Plaintiffs filed their complaint in
2 this matter against Defendant alleging fraud, breach of contract, breach of the duty of
3 good faith and fair dealing, violations of the Unfair Practices Act (UPA), and prima
4 facie tort. Defendant filed an answer and counterclaimed for breach of contract and
5 foreclosure of lien, as well as for “assumpsit on quantum meruit” and promissory
6 estoppel.
7 A jury trial in this case began on March 3, 2008. Plaintiffs called five
8 witnesses, including Defendant and both Plaintiffs, to testify. At the close of
9 Plaintiffs’ case, Defendant’s counsel made an oral motion for judgment as a matter of
10 law on each of Plaintiffs’ claims pursuant to Rule 1-050(A)(1) NMRA. The district
11 court granted Defendant’s motion for directed verdict on all counts, awarded judgment
12 to Defendant in the amount of $38,576.96 and told Defendant’s counsel to submit his
13 affidavit for attorney fees. No other evidence was presented. The final judgment and
14 decree of foreclosure was filed on July 23, 2008. In that order, the district court
15 dismissed Plaintiffs’ claims and granted directed verdict on Defendant’s counterclaim
16 for a decree foreclosing his mechanic’s lien. In addition, the district court awarded
17 all fees and costs requested by Defendant, including fees incurred in defending against
18 Plaintiffs’ claims.
3 1 On appeal, Plaintiffs contend that the district court erred by (1) granting a
2 directed verdict on all Plaintiffs’ claims, (2) granting judgment as a matter of law on
3 Defendant’s counterclaim, (3) awarding Defendant attorney fees, and (4) entering a
4 decree of foreclosure when junior lienholders and mortgagees on the property had not
5 received notice of the foreclosure.
6 DISCUSSION
7 The District Court’s Directed Verdict on Plaintiffs’ Claims
8 We review de novo the district court’s decision on a motion for a directed
9 verdict. McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M.
10 740, 182 P.3d 121. “A directed verdict is appropriate only when there are no true
11 issues of fact to be presented to a jury.” Sunwest Bank of Clovis, N.A. v. Garrett, 113
12 N.M. 112, 115, 823 P.2d 912, 915 (1992). “Directed verdicts are not favored and
13 should only be granted when a jury could not logically and reasonably reach any other
14 conclusion.” In re Estate of Kimble, 117 N.M. 258, 260, 871 P.2d 22, 24 (Ct. App.
15 1994). A reviewing court must consider all evidence, and any conflicts in the
16 evidence or reasonable interpretations of the evidence are to be viewed in favor of the
17 party resisting the directed verdict. Garrett, 113 N.M. at 115, 823 P.2d at 915.
18 Therefore, “if reasonable minds can differ on the conclusion to be reached under the
19 evidence or the permissible inferences to be drawn therefrom, the question is one for
4 1 the jury and it is error to direct a verdict.” Melnick v. State Farm Mut. Auto. Ins. Co.,
2 106 N.M. 726, 728, 749 P.2d 1105, 1007 (1988).
3 Plaintiffs contend that the district court improperly directed a verdict on their
4 claims for breach of contract, duty of good faith and fair dealing, fraud, and UPA. We
5 address the district court’s ruling as to each claim.
6 Breach of Contract
7 Although the district court in this case expressed concern regarding whether the
8 parties entered into a valid contract, the parties conceded at trial that an agreement
9 existed between them for Defendant to build Plaintiffs’ home. Indeed, both Plaintiffs
10 and Defendant advanced claims for breach of an oral contract in the complaint and
11 counterclaim. At issue, therefore, was the parties’ understanding about the terms and
12 duties of performance under the contract and whether the contract was breached.
13 Defendant does not dispute that the question of a breach of contract is a
14 question of fact. Rather, he argues that the district court properly directed a verdict
15 on Plaintiffs’ breach of contract claim because there were no specifications or
16 allowances, there was no way he could know how much it would cost to build the
17 house, and because he was not in control of the costs. Defendant asserts that he
18 performed in accordance with Plaintiffs’ requests until they refused to pay him, and
19 he then stopped working. Notwithstanding Defendant’s version of the facts, however,
5 1 we must view a directed verdict as appropriate only when there are no issues of fact
2 to be presented to the jury, and we view all evidence in favor of the party resisting the
3 motion. Garrett, 113 N.M. at 115, 823 P.2d at 915.
4 The crux of the issue here is whether the oral agreement that the parties entered
5 into was a cost plus ten percent contract or a fixed-fee contract. At trial, Defendant
6 testified that he was entering into an oral agreement and stated that the agreement was
7 a cost plus ten percent, fixed-fee contract. He later clarified that he had in fact entered
8 into a cost plus ten percent contract, which is different from a fixed-fee contract.
9 Defendant usually used written contracts for large construction projects, but he did
10 not use one in this case in part because he had had negative experiences with such
11 contracts in the past.
12 Plaintiffs testified that they entered into an oral agreement with Defendant, and
13 they further testified that Defendant agreed to build the house for $282,000 and that
14 the house would not cost more than $300,000. Defendant provided Plaintiffs with
15 cost breakdowns of $252,000 and $282,000 for the construction of the home.
16 According to Plaintiff P.J. Mileta, Defendant never had any conversation with
17 Plaintiffs concerning a cost plus ten percent contract.
18 The evidence presented at trial concerning the history of the parties’
19 relationship with respect to the construction of the home and the formation of the
6 1 contract follows. P.J. Mileta testified that shortly after he purchased the lot, he started
2 having conversations with Defendant about construction of the home. Plaintiffs met
3 with Defendant numerous times before they asked him to build the house, and they
4 “basically talked about everything from pre-fabricated homes to this concrete
5 block[-]type construction.” Defendant helped with part of the design of the house.
6 Eventually, Plaintiffs had an architectural group draw up plans for the house, which
7 they showed to Defendant. Defendant went with Plaintiffs to at least one meeting
8 with the architect in Colorado.
9 Before asking Defendant to build their house, Plaintiffs received several
10 estimates from Defendant, and each included a contractor fee of roughly ten percent
11 of the total construction cost, which varied from $214,000 to $268,000. Defendant
12 finally agreed that he would build the house for $282,000, and with that
13 understanding, P.J. Mileta testified that he went to the bank and secured a construction
14 loan for $228,000, although he never expected to build the house for that amount. In
15 March 2005, Plaintiffs increased the loan amount. Plaintiffs made a total of ten
16 payments to Defendant. The last payment in the amount of $10,000 was made on
17 October 4, 2005. The total amount paid to Defendant was $294,278. In about the
18 spring of 2005, Plaintiffs became aware that they would not have sufficient funds to
7 1 finish the construction of the home, and at the end of 2005, Defendant stopped
2 working.
3 As we have noted, Defendant is a licensed contractor with 32 years experience
4 in construction. Neither of the Plaintiffs are licensed contractors, and Ms. Mileta has
5 no construction experience at all. Although Defendant testified that he entered into
6 a cost plus ten percent contract with Plaintiffs, he also testified that he did not always
7 submit the costs or invoices to Plaintiffs, and he did not add the ten percent on the
8 invoices he did submit to them. Further, Defendant never explained to Plaintiffs how
9 the costs would be determined, including with respect to labor. According to
10 Plaintiffs, Defendant never had a conversation with them concerning a cost plus ten
11 percent contract. Rather, he agreed to build their house for a fixed fee of $282,000.
12 Based on the evidence presented, we conclude that the testimony of Plaintiffs
13 raises a sufficient question of fact as to their understanding of the agreement with
14 Defendant. If the jury believed that Defendant agreed to build Plaintiffs home for
15 $282,000, and not more than $300,000, that he was paid $294,278, and that he did not
16 complete the construction for the amount agreed upon, it could have found that
17 Defendant breached the contract. We therefore hold that the district court erred in
18 granting a directed verdict on this issue, and we remand for a retrial on the merits of
19 Plaintiffs’ breach of contract claim.
8 1 Duty of Good Faith and Fair Dealing
2 Plaintiffs contend that the district court erred by directing a verdict on their
3 claim for breach of the duty of good faith and fair dealing. Our courts have long
4 recognized that “every contract imposes upon the parties a duty of good faith and fair
5 dealing in its performance and enforcement.” Watson Truck & Supply Co. v. Males,
6 111 N.M. 57, 60, 801 P.2d 639, 642 (1990). “[T]he implied covenant of good faith
7 and fair dealing requires that neither party do anything that will injure the rights of the
8 other to receive the benefit of their agreement. Denying a party its rights to those
9 benefits will breach the duty of good faith implicit in the contract.” Bourgeous v.
10 Horizon Healthcare Corp., 117 N.M. 434, 438, 872 P.2d 852, 856 (1994) (citation
11 omitted). Whether there has been a breach of the covenant of good faith and fair
12 dealing is a factual inquiry that focuses on the contract and what the parties agreed to.
13 See id. at 439, 872 P.2d at 857.
14 Having reversed the district court’s directed verdict on the breach of contract
15 claim, and because claims for breach of contract and good faith and fair dealing are
16 closely intertwined, it follows that we must reverse and remand for a jury trial on this
17 issue as well.
9 1 Fraud
2 Plaintiffs contend that the district court erred by granting a directed verdict
3 dismissing their claim that Defendant committed fraud by making a false
4 representation that the house would not cost more than $300,000 to build and that
5 Defendant never disclosed “what his costs would entail in a meaningful fashion.”
6 An actionable claim of fraud requires proof of a false statement made with an
7 intent to deceive and to induce reliance on the misrepresentation. See UJI 13-1633
8 NMRA (describing the elements of fraud); Cain v. Champion Window Co. of
9 Albuquerque, LLC, 2007-NMCA-085, ¶ 22, 142 N.M. 209, 164 P.3d 90 (stating that,
10 to recover in fraud, a claimant must establish that he or she suffered damages that
11 were proximately caused by justifiable reliance on a misrepresentation). Further,
12 unlike most cases which involve a “preponderance of the evidence” standard, fraud
13 claims require proof by “clear and convincing evidence.” UJI 13-1633; see, e.g.,
14 NMSA 1978, § 7-1-53(B) (2003); NMSA 1978 § 22-10A-25(J) (2003). “When the
15 standard is clear and convincing evidence, the question for the trial judge is whether
16 there is sufficient evidence introduced from which a reasonable juror could reach an
17 ‘abiding conviction’ as to the truth of the plaintiff’s claim.” Chavez v. Manville Prod.
18 Corp., 108 N.M. 643, 648, 777 P.2d 371, 376 (1989).
10 1 In this case, we believe that the evidence presented by Plaintiffs did not meet
2 this threshold standard and, therefore, entry of a directed verdict against them was not
3 in error. We recognize that clear and convincing evidence may be circumstantial in
4 nature. See Ledbetter v. Webb, 103 N.M. 597, 601, 711 P.2d 874, 878 (1985); Sauter
5 v. St. Michael’s Coll., 70 N.M. 380, 385, 374 P.2d 134, 138 (1962). However, for the
6 reasons that follow, Plaintiffs have not provided either direct or circumstantial
7 evidence in support of their claim.
8 Plaintiffs essentially make two assertions in support of their fraud claim. First,
9 Plaintiffs contend that Defendant said the construction of their house would cost
10 $282,000 and not more than $300,000. They allege that whether Defendant made this
11 statement is a question of fact, and whether this statement was true or false is for the
12 jury to decide. Second, Plaintiffs argue that Defendant used the money he was paid
13 to pay bills and fund projects other than the building of their home and that this is
14 circumstantial evidence of their fraud claim. We are unpersuaded.
15 The facts show that even if Defendant’s statement concerning the cost of
16 building the home was inaccurate and the falsity of the representation was known to
17 Defendant, thereby meeting the first two prongs of a fraud claim, there was no
18 evidence presented at trial that Defendant told Plaintiffs he could build their house for
19 under $300,000 with the intent to deceive them. Plaintiffs assert that the evidence
11 1 showing that Defendant commingled the monies Plaintiffs paid him in his personal
2 account and that he used those monies to pay personal bills and for projects unrelated
3 to Plaintiffs’ home provides circumstantial evidence that Defendant intended to
4 deceive Plaintiffs. As an initial matter, we note that Plaintiffs’ evidence relating to
5 Defendant’s use of Plaintiffs’ money to pay bills is based, for the most part, on
6 exhibits which are not part of the record on appeal. It is the duty of the appellant to
7 provide a record adequate to review the issues on appeal. Dillard v. Dillard, 104
8 N.M. 763, 765, 727 P.2d 71, 73 (Ct. App. 1986). “Upon a doubtful or deficient
9 record, every presumption is indulged in favor of the correctness and regularity of the
10 trial court’s decision, and the appellate court will indulge in reasonable presumptions
11 in support of the order entered.” Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d
12 75, 80 (Ct. App. 1988). Notwithstanding the deficient record, however, Plaintiffs did
13 not offer any evidence that the parties ever agreed that Defendant would keep a
14 separate account for the construction of the house, nor have they pointed to any legal
15 duty requiring Defendant to do so. Plaintiffs here did not introduce a minimum
16 quantum of evidence from which the jury could reasonably find in their favor under
17 the applicable standard of proof. We affirm the district court’s grant of directed
18 verdict on Plaintiffs’ fraud claim.
12 1 Unfair Practices Act
2 Plaintiffs also argue that the district court erred by granting a directed verdict
3 dismissing their claim that Defendant violated the UPA, NMSA 1978, §§ 57-12-1
4 through -22 (1967, as amended through 2009). We have said that “[g]enerally, the
5 [UPA] is intended to provide a private remedy for individuals who suffer pecuniary
6 harm for conduct involving either misleading identification of a business or goods, or
7 false or deceptive advertising.” Parker v. E.I. Du Pont de Nemours & Co., 121 N.M.
8 120, 132, 909 P.2d 1, 13 (Ct. App. 1995). Plaintiffs here allege that the evidence at
9 trial supported each element of their UPA claim, which requires that a defendant (1)
10 issued a false statement, (2) made the statement in connection with the sale of services
11 and knowing the statement was false, (3) made the statement in the regular course of
12 trade or commerce, and (4) the statement is one that may, tend to, or did deceive or
13 mislead any person. Section 57-12-2(D). [BIC 17-18] We disagree for two reasons.
14 First, an essential element of Plaintiffs’ claim regarding an “unfair or deceptive
15 trade practice” under the UPA is that a false or misleading oral or written statement
16 was made in connection with the sale of services. Id.; see also Ashlock v. Sunwest
17 Bank of Roswell, N.A., 107 N.M. 100, 101, 753 P.2d 346, 347 (1988), overruled on
18 other grounds by Gonzales v. Surgidev Corp., 120 N.M. 133, 140, 899 P.2d 576, 583
19 (1995). The subjective belief of the party receiving the information is not sufficient
13 1 to establish a violation of the UPA. See Page & Wirtz Constr. Co. v. Solomon, 110
2 N.M. 206, 210, 794 P.2d 349, 353 (1990). The only evidence concerning the false or
3 misleading statement is Plaintiffs’ assertion that “[t]he evidence outlined above,
4 derived from [Defendant’s] own testimony . . . as well as that of both Wendy Mileta
5 . . . and P.J. Mileta . . . supports each element of . . . Plaintiffs’ UPA claim.” [BIC 18]
6 Plaintiffs have failed to recite the specific evidence bearing on this issue, and we do
7 not search the record to determine if there is sufficient evidence to support their claim.
8 See Doe v. City of Albuquerque, 96 N.M. 433, 437, 631 P.2d 728, 732 (Ct. App.
9 1981). Moreover, our cursory review of the record does not indicate that the district
10 court’s decision to grant a directed verdict on this claim was in error.
11 Second, we turn to Defendant’s argument that the district court properly granted
12 a directed verdict because the UPA does not apply in this case. Defendant cites to
13 McElhannon v. Ford, 2003-NMCA-091, ¶¶ 16-17, 134 N.M. 124, 73 P.3d 827, where
14 we held that the UPA does not apply to cases where goods and services are combined
15 to create a structure that is permanently affixed realty. Plaintiffs concede that if
16 McElhannon is applied in this case, their claim would necessarily fail. They appear
17 to argue, however, that because this case did not involve the sale of a finished house,
18 but materials to build the home, and because Defendant did not complete the project,
19 McElhannon does not apply. Although Plaintiffs say McElhannon is distinguishable,
14 1 they fail to develop their argument or provide any authority to support the proposition
2 that purchase of materials and failure to complete a construction project can constitute
3 a claim under the UPA. As a result, we decline to review this argument further. See
4 Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
5 1076 (reasoning that this Court will not review undeveloped and unclear arguments
6 on appeal). We therefore conclude that the district court did not err in granting a
7 directed verdict on Plaintiffs’ UPA claim.
8 Because we decide that the directed verdict was properly granted as a matter of
9 law, we do not reach Plaintiffs’ argument that the district court’s decision denying
10 them the opportunity to present evidence of Defendant’s conduct on other
11 construction projects was an abuse of discretion.
12 Prima Facie Tort
13 To survive a motion for directed verdict on a prima facie tort claim, Plaintiffs
14 must submit evidence from which a jury could find that (1) Defendant committed an
15 intentional, lawful act; (2) Defendant committed the act with an intent to injure
16 Plaintiffs; (3) Plaintiffs actually suffered an injury; and (4) there was an absence of
17 justification for Defendant’s acts. See Schmitz v. Smentowski, 109 N.M. 386, 394, 785
18 P.2d 726, 734 (1990).
15 1 According to Plaintiffs, sufficient evidence was introduced at trial that
2 Defendant “charged significantly more than was justified by either the labor or the
3 materials put into the home, contrary to the parties’ oral agreement, used monies paid
4 by [Plaintiffs] to pay other bills and projects, and failed to provide revised estimates
5 and accounting in a timely manner.” This evidence, Plaintiffs argue, is sufficient to
6 raise reasonable inferences regarding Defendant’s intent to injure Plaintiffs’ interest
7 in building their home as cost-effectively as possible. We disagree and conclude that
8 the district court’s entry of a directed verdict was appropriate on this claim.
9 Plaintiffs have not cited to any part of the record, nor have they provided any
10 evidentiary basis from which a reasonable jury could find that Defendant “charged
11 significantly more than was justified.” In addition, Plaintiffs have failed to cite to any
12 portion of the record that establishes that Defendant improperly used monies and
13 failed to provide revised estimates in contravention of an agreement or requirement
14 to do so. Where a party fails to cite any portion of the record to support its factual
15 allegations, this Court need not consider its argument on appeal. See Santa Fe
16 Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824
17 (1992). The prima facie tort claim was properly dismissed.
16 1 Defendant’s Counterclaim, Attorney Fees, and Decree of Foreclosure
2 Defendant contends that once Plaintiffs’ legal claims were dismissed, the
3 district court properly awarded judgment in favor of Defendant on the equitable issues
4 set forth in his counterclaims. However, because we reverse and remand for a trial on
5 Plaintiffs’ claims for breach of contract and good faith and fair dealing, we must
6 reverse the district court’s order granting Defendant’s motion for judgment as a matter
7 of law in favor of Defendant on Defendant’s counterclaims as well. Defendant’s
8 counterclaim on the equitable issues can be decided by the court after the jury’s
9 verdict on Plaintiffs’ claims. Similarly, we reverse the district court’s award of
10 attorney fees and judgment regarding costs, as well as its order entering the decree of
11 foreclosure on the ground that it is also premature to address these issues pending a
12 verdict on Plaintiffs’ claims for breach of contract and breach of the duty of good faith
13 and fair dealing.
14 CONCLUSION
15 For the foregoing reasons, we reverse the district court’s grant of directed
16 verdict on Plaintiffs’ breach of contract and breach of good faith and fair dealing
17 claims. We also reverse the district court’s grant of judgment as a matter of law on
18 Defendant’s counterclaim, as well as the award of Defendant’s attorney fees and the
17 1 entry of the decree of foreclosure. We affirm the district court’s entry of directed
2 verdict on Plaintiffs’ claims for fraud, violations of the UPA, and prima facie tort.
3 IT IS SO ORDERED.
4 __________________________________ 5 LINDA M. VANZI, Judge
6 WE CONCUR:
7 _________________________________ 8 JAMES J. WECHSLER, Judge
9 _________________________________ 10 TIMOTHY L. GARCIA, Judge