280 P.3d 304
N.M. Ct. App.2012Background
- Mary Jane Hicks, as personal representative of her mother's estate, sought appraisal/t价值 from Eller, who instead purchased two Dunton paintings from Hicks.
- Eller later sold the Duntons through intermediaries and ultimately at auction for about $600,000, while Hicks had sold them to Eller for $4,500.
- Hicks sued Eller for fraud, dispossession, conversion, negligent misrepresentation, UPA violation, and professional negligence.
- At trial, the court denied Hicks's UPA claim, instructed the jury on fraudulent and negligent misrepresentation, and allowed a comparative negligence defense.
- Jury found Eller 73% liable and Hicks 27% liable for negligent misrepresentation, awarding Hicks $20,000; court reduced to $14,600 for comparative negligence and Hicks moved for additur/new trial.
- The district court denied additur; Hicks appealed, challenging UPA viability, comparative negligence, and additur denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UPA viability against purchaser | Hicks contends UPA may cover sale of goods via purchaser. | Eller argues no privity and Hicks did not purchase services, so UPA inapplicable. | UPA claim improper; no sufficient evidence of a sale of goods/services between Hicks and Eller. |
| Comparative negligence as a defense to negligent misrepresentation | Hicks argues comparative fault should not apply to negligent misrepresentation. | Eller argues comparative negligence should apply and was properly instructed. | Comparative negligence is a defense to negligent misrepresentation; instruction proper. |
| Additur denial | Damages were insufficient; additur warranted based on expert value evidence. | Jury award supported by evidence; additur not warranted. | District court did not abuse discretion; additur denied. |
Key Cases Cited
- Hedicke v. Gunville, 133 P.3d 1217 (N.M. Ct. App. 2003) (directed verdict standard; review de novo for legal sufficiency)
- Otero v. Jordan Restaurant Enters., 922 P.2d 569 (N.M. 1996) (comparative negligence not a defense to fraud)
- Neff v. Bud Lewis Co., 548 P.2d 107 (N.M. Ct. App. 1976) (fiduciary context; reliance and misrepresentation)
- Estate of Braswell ex rel. Braswell v. People’s Credit Union, 602 A.2d 510 (R.I. 1992) (majority view supporting comparative negligence in negligent misrepresentation)
- Reichert v. Atler, 875 P.2d 379 (N.M. 1994) (public policy and application of comparative fault in negligence actions)