Hicks v. Eller
2012 NMCA 061
N.M. Ct. App.2012Background
- Mary Jane Hicks, as personal representative of her mother’s estate, engaged Eller to assist in valuing estate art.
- Eller purchased two Dunton paintings from Hicks for $4,500 and later sold them for $35,000 to a dealer who sold to an Texas collector; the collector’s auction fetched about $600,000.
- Hicks sued Eller for fraud, dispossession, conversion, negligent misrepresentation, UPA violation, and professional negligence; trial issued verdict after reductions for comparative negligence.
- Jury found no fraudulent misrepresentation but found negligent misrepresentation; Hicks received $20,000 with Eller 73% at fault and Hicks 27% at fault; post-trial reduction brought judgment to $14,600.
- District court refused Hicks’s additur request; Hicks appealed arguing UPA error, improper comparative negligence instruction, and additur denial.
- This appeal affirms on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UPA claim viability | Hicks asserts UPA may apply to purchase of art goods via Eller as seller-buyer chain. | Eller contends no privity or sale of goods/services to Hicks occurred; UPA claim fails as to a seller. | UPA claim rejected; no sale/consumption of services by Hicks from Eller; directed verdict appropriate. |
| Comparative negligence as defense to negligent misrepresentation | Comparative negligence should not be a defense to negligent misrepresentation; should not be allowed to dilute damages. | Comparative fault applies to negligence claims, including negligent misrepresentation; testimony supports apportionment. | Comparative negligence adopted as defense to negligent misrepresentation; permissible. |
| Additur propriety | Judgment undervalued Hicks’s damages given expert testimony and actual sales proceeds. | Jury award reasonably supported by evidence; additur inappropriate. | District court did not err in denying additur. |
Key Cases Cited
- Lohman v. Daimler-Chrysler Corp., 142 N.M. 437, 166 P.3d 1091 (N.M. 2007) (three essential UPA elements; 'in connection with' broad interpretation)
- Reichert v. Atler, 117 N.M. 623, 875 P.2d 379 (N.M. 1994) (comparative fault generally applies to negligence absent policy barriers)
- Otero v. Jordan Rest. Enter., 122 N.M. 187, 922 P.2d 569 (N.M. 1996) (fraud not subject to comparative negligence as justification; distinguishable)
- Neff v. Bud Lewis Co., 89 N.M. 145, 548 P.2d 107 (N.M. Ct. App. 1976) (fiduciary context; reliance protections in negligent misrepresentation)
- Estate of Braswell ex rel. Braswell v. People’s Credit Union, 602 A.2d 510 (R.I. 1992) (majority view supports comparative negligence for negligent misrepresentation)