807 F. Supp. 2d 1059
D.N.M.2011Background
- D.N.M. action by Two Old Hippies, LLC against Catch the Bus, LLC and owners Gary and Fallon Mack for breach of contract, breach of warranty, NM Dealers Franchising Act, NM Unfair Practices Act, Colorado CPA, negligent misrepresentation, and rescission.
- Catch the Bus failed to respond to Two Old Hippies' summary judgment motion; default judgment was entered on liability against Catch the Bus.
- Two Old Hippies purchased Bus #1 in July 2009 for a stated amount (complaint cites $41,424; invoices show similar figure) and Bus #2 in October 2009 for about $33,624.00; total claimed purchase price around $75,048.00.
- Bus #1 had numerous mechanical/physical defects and was not safely operable; Bus #2 was not operable after delivery; both buses allegedly had value and usefulness destroyed.
- Two Old Hippies incurred additional damages including $3,240.68 for Bus #1 repairs, $1,627.00 for transportation of Bus #2 to a contest winner, $2,779.34 for design/graphics on Bus #1, and $21,910.00 advertising expense for Bus #2; later, Bus #2 was reacquired for $33,624, bringing total cash outlay higher.
- Court grants in part the summary judgment, awarding compensatory damages but denying treble NMUPA damages on the record, and scheduling a hearing to resolve statutory damages and attorney’s fees; court requires itemized billing for fees and separation of hours related to unsuccessful claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Two Old Hippies is entitled to compensatory damages and the amount. | Two Old Hippies seeks compensatory damages totaling at least $138,728.14, offset by a portion CTB paid for Bus #1 repairs. | CTB did not contest; but the court must determine precise amount and reduce for any offsets. | Compensatory damages awarded: $113,596.54 after offset; then clarified as $116,818.14 in the final ruling due to certain adjustments. |
| Whether Two Old Hippies is entitled to treble damages under NMUPA and MVFDA. | NMUPA allows up to triple actual damages for willful unfair practices; MVFDA allows treble damages for willful conduct. | No clear evidence of willful conduct sufficient for treble damages on record; treble damages not warranted. | No treble damages awarded on the current record; treble damages to be resolved at a hearing if additional evidence is provided. |
| Whether Two Old Hippies is entitled to reasonable attorneys' fees. | Fees sought based on $24,427.90; contends fees arising from MVFDA and NMUPA claims. | No detailed time records or segregation of work relating to unsuccessful claims; fees cannot be determined from current affidavit. | Court will award fees but requires detailed billing records separating work on successful vs. unsuccessful claims; hearing to decide amount. |
| Whether the court should award statutory damages and the amount of such damages. | NMUPA statutory damages may be awarded up to three times actual damages if willful; seeks statutory damages. | Record insufficient to determine statutory damages amount; discretionary nature acknowledged. | Court will hold a hearing to determine whether statutory damages are warranted and, if so, amount. |
| Whether the court should amend the default judgment to include damages for design/graphics and advertising. | Requests addition of Bus #1 design/graphics cost and Bus #2 advertising costs. | Advertising costs not proven to have diminished advertising value; design/graphics disputed. | Design/graphics award allowed for summary judgment; advertising costs denied; damages recalibrated accordingly. |
Key Cases Cited
- Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145 (10th Cir. 1985) (attorney fees cannot be awarded without a hearing on amount)
- Flaks v. Koegel, 504 F.2d 707 (2d Cir. 1974) (damages from default judgments may be limited to liquidated or easily computable sums)
- Rainey v. Diamond State Port Corp., 354 F. App'x 722 (3d Cir. 2009) (damages in default judgments require proof or hearing for non-liquidated amounts)
- Ashlock v. Sunwest Bank of Roswell, N.A., 107 N.M. 100, 753 P.2d 346 (N.M. 1988) (NMUPA treble damages discretionary; not automatic in all cases)
- Teague-Strebeck Motors, Inc. v. Chrysler Ins. Co., 127 N.M. 603, 985 P.2d 1183 (N.M. Ct. App. 1999) (treble damages under NMUPA discretionary; factors guide discretion)