Atherton v. Gopin

                                                      I attest to the accuracy and
                                                       integrity of this document
                                                         New Mexico Compilation
                                                       Commission, Santa Fe, NM
                                                      '00'05- 09:26:13 2015.01.14
Certiorari Granted, December 19, 2014, No. 34,978

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 15, 2014

Docket No. 32,028

UTTI ATHERTON, LAURA JARAMILLO,
JOHN DOE 1-99, and JANE DOE 1-99,

       Plaintiffs-Appellees,

and

STATE OF NEW MEXICO, ex rel.,
GARY K. KING, Attorney General,

       Plaintiff-Appellee,

v.

MICHAEL J. GOPIN, d/b/a LAW OFFICES
OF MICHAEL J. GOPIN,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Judge

Robert (Tito) Meyer
Las Cruces, NM

Kenneth L. Beal
Las Cruces, NM

for Appellees

Gary K. King, Attorney General
Santa Fe, NM
Tonya Noonan Herring, Special Assistant Attorney General
Rebecca C. Branch, Special Assistant Attorney General

                                         1
Ismael L. Camacho, Special Assistant Attorney General
Albuquerque, NM

for Appellee Attorney General

Caren I. Friedman
Santa Fe, NM

Gorence & Oliveros, P.C.
Robert J. Gorence
Albuquerque, NM

for Appellant

                                          OPINION

BUSTAMANTE, Judge.

{1}    We are presented with a legal Gordian knot that has defied all attempts to neatly
unravel. As we will explain, certain aspects of the case tempted us to simply slice through
the knot and affirm. Other aspects suggested that reversal was more appropriate. We
conclude that reversal is required.

{2}      Michael J. Gopin appeals from a judgment entered against him under the New
Mexico Unfair Practices Act (UPA). NMSA 1978, §§ 57-12-1 to -26 (1967, as amended
through 2009). The judgment included treble damage awards in favor of twelve individual
Plaintiffs totaling $216,222.57, $757,358.56 in favor of the New Mexico Attorney General
as restitution for 110 consumers, and $1,570,000 in civil penalties in favor of the Attorney
General. Gopin asserts four broad theories of error: (1) that the district court improperly
granted a partial summary judgment against him early in the litigation after it refused to
allow him to file a late factual response to Plaintiffs’ motion; (2) that the district court
compounded its initial error by applying the partial summary judgment in favor of Plaintiffs
who were later allowed to join the litigation; (3) that the district court erred in deciding that
Gopin violated the UPA and that it applied an improperly low standard of conduct when it
concluded that Gopin’s violations were willful; and (4) that the awards of civil penalties and
restitution are excessive and thus arbitrary.

{3}      We conclude that the district court did err when it refused to allow Gopin to file a
factual response to the early motion for partial summary judgment. Its error stemmed from
a misreading of our opinion in Lujan v. City of Albuquerque, 

, 

, 

. The partial summary judgment thus entered materially influenced the
litigation as it progressed because it settled the question of basic UPA violations and other
substantive contractual issues for the remainder of the litigation. Once the partial summary
judgment was entered and then applied in favor of all later-joined parties, the only issue left

                                               2
to be litigated was whether the violations were willful within the meaning of the UPA.

{4}     We reverse the finding of willfulness in favor of the Attorney General because it is
not clear what the legal standard of conduct is or what standard the district court applied.
We also conclude that—in any event—it was error for the district court to grant the Attorney
General summary judgment on the issue. We reverse the judgment for treble damages in
favor of the individual Plaintiffs because it is reliant on the initial improper summary
judgment and because, again, it is not apparent what standard of conduct the district court
applied.

PROCEDURAL BACKGROUND

{5}     Gopin—a lawyer licensed to practice only in Texas—is the sole owner of the Law
Offices of Michael J. Gopin, a personal injury law firm with offices in El Paso, Texas. In
late 2004, Gopin opened an office in Las Cruces, New Mexico. Gopin ran the practice at all
applicable times as a sole proprietorship. Though he was not licensed in New Mexico,
Gopin employed attorneys who were licensed in New Mexico to help staff the Las Cruces
office.

{6}     On December 4, 2007, two of Gopin’s former clients filed a complaint for damages
against him asserting violations of the UPA and asserting generally that Gopin’s advertising
was misleading because legal services were improperly being provided by non-lawyer staff
contrary to Section 57-12-2(D)(5), (7), (9), and (17). The complaint also asserted that Gopin
was engaged in the unauthorized practice of law. The complaint purported to be filed on
behalf of John and Jane Does 1-99 and named the Attorney General as an involuntary
Plaintiff. The complaint and first round of discovery requests were served on December 5,
2007. Gopin answered the complaint with a general denial on January 7, 2008. The answer
was signed by an attorney/employee of the Las Cruces office. The record does not reveal
whether Gopin responded to the discovery requests at that point.

{7}     Two months later, Plaintiffs filed a motion for partial summary judgment as to four
specific propositions:

       I.      Declaring having non-attorneys interview and contract with clients
               for legal services constitutes the unauthorized practice of law and
               Plaintiffs’ contracts and all such similar contracts are void; and

       II.     Declaring . . . Gopin’s practice of taking assignment of an undivided
               interest in Plaintiffs’ causes of action violates the [r]ules of
               [p]rofessional [c]onduct for the legal practice in New Mexico and
               Plaintiffs’ contracts and all such contracts are void; and

       III.    Declaring . . . Gopin’s practice of charging a contingent fee for
               collecting personal injury protection (PIP)/med pay insurance

                                             3
               benefits in Plaintiffs’ causes of action violates the [r]ules of
               [p]rofessional [c]onduct for the legal practice in New Mexico and
               Plaintiffs’ contracts and all such contracts are void[; and]

       IV.     Declaring . . . Gopin’s advertising of his law practice and the
               operation of his law practice in New Mexico is in violation of the
               [UPA].

We note that propositions II and III were not mentioned in the complaint. The motion was
served on Gopin on March 3, 2008. Gopin did not respond to the motion within the fifteen-
day period set by Rule 1-056(D)(2) NMRA. On April 4, Plaintiffs filed a motion for entry
of judgment based on Gopin’s failure to respond.

{8}     On April 22, Gopin filed a motion seeking an extension of time to respond to the
motion for partial summary judgment. His rationale was that he had been seeking counsel
and insurance coverage and had just determined that his insurance carriers were not going
to extend coverage to the case. He had hired private counsel who entered his appearance a
few days before. Gopin also asserted that he had been in contact with Plaintiffs’ counsel and
had been under the impression that the matter might be dismissed because Gopin did have
New Mexico-licensed attorneys in the Las Cruces office. After a hearing, the district court
allowed Gopin to file a response on “legal issues only” but did not permit him to respond to
any factual assertions. Rather, “all material facts asserted and properly supported in the
summary judgment motion” were accepted as true.

{9}     Gopin’s memorandum in opposition to the motion for partial summary judgment
conceded, per the district court’s prior ruling, that he was bound by the facts properly
supported in the motion, but he argued that certain of the facts were not supported by
evidence. In particular, he argued that his advertising did not indicate that he was licensed
in New Mexico. He also argued that there were no facts to support the notion that his fee
structure was different or higher than other attorneys. Interestingly, Gopin attached an
affidavit signed by his Las Cruces staff attorney addressing the form of retainer contract used
by the Gopin firm in New Mexico as well as the way the Las Cruces office was organized
and operated. The affidavit could be read to confirm at least some of the factual assertions
of the motion for summary judgment.

{10} The district court held what turned out to be a pro forma hearing on the motion—pro
forma because the parties relied on their briefs with no elaboration. Gopin did, however,
point out that Plaintiffs’ reliance on the attorney code of professional conduct was improper
given the caution in the code’s commentary that “[v]iolation of a rule should not itself give
rise to a cause of action against a lawyer nor should it create any presumption in such a case
that a legal duty has been breached.” Rules of Professional Conduct Scope cmt. NMRA.

{11} The district court nonetheless granted the motion for partial summary judgment. The
order in fact attached the motion as an exhibit. Thus, Gopin’s retainer agreement was voided

                                              4
as of June 2008. In addition, his advertising and operation of his law practice were held to
be in violation of the UPA.

{12} After entry of the order granting partial summary judgment, Gopin settled with the
original named plaintiffs, with the exception of the issue of attorney fees, and they were
dismissed from the action as of May 2009.

{13} Regardless of their dismissal, the suit continued, first in the person of the Attorney
General and later by twelve individuals who were allowed to intervene. By stipulation, the
Attorney General was allowed to become a full Plaintiff in May 2008, and he filed his own
complaint at that time. The Attorney General’s complaint tracked the original complaint to
the extent that it relied on Gopin’s advertising to support its assertion that Gopin
misrepresented his licensure status. The Attorney General’s complaint added two
allegations. It alleged that Gopin had an arrangement with a local chiropractor for soliciting
clients that violated NMSA 1978, Section 36-2-29 (1949). The Attorney General alleged
that the retainer agreements thus generated were void pursuant to NMSA 1978, Section 36-
2-35 (1949). In addition, the Attorney General’s complaint explicitly alleged that Gopin’s
retainer agreement was void as an unconscionable trade practice because it was presented
to clients by non-lawyer staff and because it gave Gopin an ownership in the case rather than
a lien on the proceeds of any recovery. A few months later, the Attorney General was
allowed to amend his complaint to add an explicit request for restitution as a remedy. The
claim for restitution was premised on the partial summary judgment previously entered in
favor of the now- dismissed original plaintiffs.

{14} As the Attorney General’s claims were being litigated, twelve individuals sought to
intervene as substitutes for the Jane and John Does. The district court allowed them to
intervene over Gopin’s objection. The order allowing the individuals to intervene provided
that “all of the [o]rders and [j]udgments entered in this matter should be binding on all of the
parties to the case, including movants.” Thus, all active Plaintiffs were provided the benefit
of the partial summary judgment entered in favor of the now-dismissed original plaintiffs.

{15} Explicitly relying on the previously entered partial summary judgment and its finding
of a UPA violation, the individual Plaintiffs and the Attorney General moved for summary
judgment on the issue of willfulness under the UPA. After a combined oral argument on the
motions, the district court denied the individual Plaintiffs’ motion but granted the Attorney
General’s motion. It is unclear how the district court differentiated between the motions.
It appears likely it concluded that the standard of willfulness under the UPA for civil
penalties sought by the Attorney General differed from the standard required for treble
damages sought by the individuals.

{16} Immediately upon granting the Attorney General’s motion, the district court imposed
the maximum civil penalty allowed under the UPA—$5,000—per “violation.” On inquiry,
the district court clarified that the penalty was per client. The district court did not elaborate
at the hearing on the basis for its decision to impose the maximum penalty. The order

                                                5
entered after the hearing similarly does not explain the basis for the finding of willfulness
or imposition of the maximum penalty. The order simply relies on the earlier partial
summary judgment.

{17} The parties proceeded to a bench trial on the issue of willfulness only as to the
individual Plaintiffs. The pretrial order recognized willfulness as the only issue and noted
the 2008 partial summary judgment. With regard to the Attorney General, the sole issue was
the amount of restitution payable to the 110 clients who responded to the Attorney General’s
letters informing all of Gopin’s former clients of the existence of the action. At the close of
testimony, the district court dictated findings of fact from the bench, which largely reflect
the written findings he later entered. The district court started its oral findings by stating:
“First, I will adopt as findings of fact all of the undisputed facts from the March 13th, 2008
summary judgment order.” This appeal followed.

DISCUSSION

A.     The 2008 Summary Judgment

1.     Standard of Review

{18} Gopin argues that the district court erred when it refused to allow him to respond to
the factual assertions in the partial summary judgment motion because he demonstrated
excusable neglect. We review the argument under our abuse of discretion standard. State
v. Moreland, 

, 

, 

 (“An abuse of discretion
occurs when the ruling is clearly against the logic and effect of the facts and circumstances
of the case.” (internal quotation marks and citation omitted)). But our case law is also clear
that “we may characterize as an abuse of discretion a discretionary decision that ‘is premised
on a misapprehension of the law.’ ” N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-
028, ¶ 7, 

, 

 (alteration and citation omitted).

2.     The 2008 Partial Summary Judgment is Appealable

{19} Before we address the merits of the issue, we must address Plaintiffs’ argument that
Gopin’s appeal is untimely. Plaintiffs maintain that the June 2008 partial summary judgment
was final enough when it was entered that Gopin should have appealed then. Plaintiffs
recognize that their argument may be contrary to our well-grounded antipathy to piecemeal
appeals. Citing Kelly Inn No. 102, Inc. v. Kapnison, 

, ¶ 26, 

,

, they acknowledge our strong preference that all issues of law and fact be
determined to the fullest extent possible in the district court. Plaintiffs argue that an
exception should be made in this case because the partial summary judgment became the
final word on basic UPA violations and “[was] determinative of the remaining issues in the
case.” Plaintiffs also note that this Court treated the 2008 order as final in a prior appeal
stemming from this action. See Atherton v. Gopin, 

, 

.


                                              6
{20} We disagree with Plaintiffs that the 2008 order was final enough to require an appeal
from it then. We note first that the order on its face reflects the grant of a partial summary
judgment. The word “partial” provides a clue—if not a red flag—that the order was not
intended to be final, at least for purposes of appeal. The order left damages, attorney fees,
and the issue of willfulness undecided. Our case law following Kelly Inn No. 102, Inc.
would not regard such an order as appealable. See Gates v. N.M. Taxation & Revenue Dep’t,

, 

, 

. Plaintiffs cite to Rule 1-054(B)(1) and
(2) NMRA but make no effort to state why they apply or support their position. Neither rule
applies. The district court never made the “express determination that there is no just reason
for delay” under Rule 1-054(B)(1). And there was never a judgment entered “adjudicating
all issues” as to the original plaintiffs under Rule 1-054(B)(2). Instead, Gopin and the
original plaintiffs settled their cases, and an order of dismissal based on the settlement was
entered.

{21} Our opinion in the prior appeal is not to the contrary. The finality of the partial
summary judgment order was not an issue in the case. Rather, the case addressed an issue
that arose after the settlement: the availability of a multiplier in awarding attorney fees
under the UPA. Atherton, 

. Thus, we proceed to the merits.

3.     The District Court Misapplied Lujan

{22} As explained above, Gopin did not file a response to the motion for partial summary
judgment within the fifteen-day period required by Rule 1-056(D)(2). The district court’s
comments at the hearing for extension of time and its order denying the request make clear
that it thought that Lujan prevented it from considering or granting any request for an
extension of time and that the concept of excusable neglect was now irrelevant under Lujan.
At the hearing, the district court quoted part of Lujan and opined that the failure to meet the
rule deadline resulted in an irrevocable waiver of the right to respond to factual assertions
in the motion. The order denying an extension of time to respond states:

       This [c]ourt is mandated to follow appellate precedent such as Lujan . . . ,
       holding that by failing to file a response to a motion for summary judgment
       within the time specified by rule, the non-moving party waives the right to
       respond to or to controvert the facts asserted in the summary judgment
       motion and the [c]ourt should accept as true all material facts asserted and
       properly supported in the summary judgment motion[.]

This statement clearly indicates that the district court thought that Lujan prevented it from
considering any reason for the failure to file a timely response. This is a misreading of
Lujan, though perhaps an understandable one.

{23} In Lujan, the district court granted a summary judgment of dismissal after the
plaintiffs failed to timely respond in any way to three motions for summary judgment. The
district court in Lujan relied on Rule 1-007.1(D) NMRA (2005). Lujan, 

,

                                              7
¶¶ 1, 4. At the time of the partial summary judgment motion, Rule 1-007.1(D) read:

                Unless otherwise specifically provided in these rules, any written
        response and all affidavits, depositions or other documentary evidence in
        support of the response shall be filed within fifteen (15) days after service of
        the motion. Failure to file a response within the prescribed time period
        constitutes consent to grant the motion, is a waiver of the notice provisions
        of Paragraph C of Rule 1-058 NMRA, and the court may enter an appropriate
        order.

Lujan, 

.

{24} As we noted in Lujan, despite the language of Rule 1-007.1(D) that a failure to timely
respond “constitutes consent to grant the motion,”1 when the motion at issue is for summary
judgment, it is improper to resort to the “consent” clause as a basis for granting the motion.
Lujan, 

. Rather, “the district court must assess [despite the lack
of a response] whether, on the merits, the moving party satisfied the burden under Rule 1-
056(C).” Lujan, 

, ¶ 18. This is the ruling and the message of Lujan.

{25} To illustrate and emphasize the message, Lujan quoted a passage from Reed v.
Bennett, 

 (10th Cir. 2002), reflecting the same rule in the federal courts.
In the middle of the quote from Reed appears the sentence that the district court below relied
on for its ruling: “By failing to file a response within the time specified by the local rule, the
nonmoving party waives the right to respond or to controvert the facts asserted in the
summary judgment motion.” 

{26} This sentence does not represent New Mexico’s approach to considering summary
judgment motions. The entire quote from Reed came from a paragraph in which it
summarized the prior discussion in the case. The reference to the “local rule” was to Kansas
Local Rule 7.4. By referring to it, the Tenth Circuit was not making the local rule apply
generally; it was merely being descriptive. This was made clear in Sutton v. Corrections
Corp. of America, No. 06-CV-01606-DME-KLM, 

 (D. Colo. July 17,
2008). In Sutton, a party moving for summary judgment cited Reed and argued that because
the plaintiff had not timely responded, he had waived the right to controvert the facts in the
motion. Tenth Circuit Judge Ebel, sitting as a district judge, rejected the argument, noting
that “the District of Colorado does not have such a local rule[.]” Sutton, 

at *2.

{27} New Mexico does not have such a rule. Indeed, to our mind, it would be passing
strange to import such a draconian procedure into New Mexico summary judgment law. It
would be antithetical to our strong bent in favor of deciding matters on their merits. And


        1
         This language was deleted from Rule 1-007.1(D) in November 2008.

                                                8
there is simply no reasonable basis on which Lujan can be read to negate the applicability
of our concept of excusable neglect. If a failure to respond does not result in consent to grant
the motion, neither should it result in a waiver of the ability to respond. We reject any such
reading of Lujan.

{28} Given that the district court misread and misapplied the law applicable to Gopin’s
request for an extension of time, it necessarily abused its discretion in denying it.2

{29} The issue that arises now is the proper remedy. Normally, of course, a mistake this
basic at the very beginning of a case would require reversal if the judgment entered after the
mistake ended the case. The effect of the district court’s error was to prevent Gopin from
controverting the facts contained in the motion. In this circumstance, it would be improper
to consider the motion on the merits as described in Lujan. In addition, although the
judgment did end consideration of certain basic issues, it merely set the stage for the
litigation that ensued. The question arises what we should—or can—do with the factual
material that came to light as the case progressed.

{30} None of the parties address this problem and neither takes into account facts that
came to light as the litigation progressed. Their approach to this part of the appeal is binary.
Gopin argues that a full reversal is the only fair resolution, while Plaintiffs insist that we
should conduct a merits review and that affirmance is the proper outcome given the
presentation in the original motion.3 Both approaches would have us ignore the facts that
came to light as the litigation progressed, though to different effect and for different reasons.
Gopin must appreciate that the later- produced evidence—including all of his retainer
agreements and settlement disbursement statements, and the revelations about his
arrangement with the chiropractor—work to his detriment. On the other hand, Plaintiffs
have an interest in preserving the partial summary judgment since it is the sole basis for their
assertion that Gopin violated the UPA as to them but at the expense of providing Gopin no
remedy for the district court’s early mistake.

{31} Hence our dilemma: is it possible to remedy the early error without ignoring the
march of litigation events? We see no straightforward solution.


{32} We conclude that reversal of the partial summary judgment without examining the
rest of the record is the best course for a number of reasons. First, it best honors New
Mexico’s approach to summary judgment and clarifies the apparent misinterpretation of


        2
       Given this determination, we need not consider the parties’ arguments about the
excusable neglect aspects of Gopin’s motion for an extension of time.
        3
        Only at oral argument did the Attorney General and counsel for some of the
individuals obliquely assert that the trial cured whatever error may have occurred before.

                                               9
Lujan that drove the district court’s decision.

{33} Second, it results in a remand to a forum better positioned to reconsider the question
of UPA violations on a fuller record.4 The early partial summary judgment short-circuited
any full consideration of the nature of the UPA violations present and the particular UPA
sections at work. As a result, the partial summary judgment is vague, if not enigmatic. For
example, the first three of the four subjects of the partial summary judgment address
contractual aspects of Gopin’s retainer agreement. Even if accurate, we do not see how they
constitute violations of the UPA. We note that the district court did not declare the
provisions unconscionable, though that would provide a basis for a UPA violation. No other
basis for a UPA violation appears in the judgment. We expect that on remand the parties and
the district court will address these analytical issues explicitly. Item IV of the summary
judgment refers to “advertising,” which is a subject of the UPA. But it also refers to the
“operation of his law practice in New Mexico” as being in violation of the UPA. It is
unclear what this phrase refers to. We decline to speculate further and again expect
clarification on remand.

{34} Third, reversal obviates the need to address Gopin’s challenges to the district court’s
decision to apply the partial summary judgment in favor of the later-joined Plaintiffs and the
Attorney General. That decision presents thorny practical and legal questions. As a
practical matter, it seems problematic to apply a summary judgment based on the experience
of two clients in favor of hundreds of other clients. To generalize that way might be possible
on a proper record, but here it was done before the district court was privy to any broader
information about how Gopin ran the practice in Las Cruces. We are also skeptical that the
law of the case doctrine sufficiently supports the district court’s decision. But we need not
resolve these issues if we remand for reconsideration. The Attorney General and the
individual Plaintiffs can make their own independent case for whether Gopin violated the
UPA as to them.

{35} Fourth, as we will explain later in this Opinion, we have determined that the
summary judgment entered in favor of the Attorney General as to willfulness must be
reversed at any rate.5 Thus, the matter must be remanded for reconsideration of that issue,
and it is apt to allow the district court to reconsider the foundation of the case in a fully
adversarial posture.



       4
         It would technically be possible for this Court to undertake a full review of the
record, but we cannot provide a forum for the full panoply of potential arguments we foresee
on remand. And because such an approach requires a Monday morning quarterback-type
hindsight, it seems quite problematic.
       5
        We also reverse the conclusion of willfulness as to the individual Plaintiffs though
on slightly different grounds.

                                             10
{36} Finally, we conclude that this is not an appropriate case for application of the “right
for any reason” approach to appellate review. Generally, an appellate court may affirm a
trial court ruling on a ground not relied on below if reliance on the new ground would not
be unfair to the appellant. Meiboom v. Watson, 

, 

, 

. When applying the right for any reason rationale, appellate courts must be
careful not to “assume the role of the trial court and delve into fact-dependent inquiries.”

 (alterations, internal quotation marks, and citation omitted). “[W]e may affirm the
district court’s order on grounds not relied upon by the district court if those grounds do not
require us to look beyond the factual allegations that were raised and considered below.”
State v. Wasson, 

, 

, 

.

{37} To apply the right for any reason rationale here would require us to speculate that
there was no factual presentation Gopin could have made in response to the motion for
partial summary judgment that could have swayed the district court. We will not so
speculate.

{38} We next consider whether we should analyze any of the facts developed as the
litigation progressed to see if they support affirmance. We conclude we cannot and should
not because to do so would be to “look beyond” the factual picture the district court initially
considered. The same limitation applies to the evidence admitted at the trial finally held in
2012. We, of course, recognize that some of the evidence admitted at trial can be seen as
relevant to the issues decided by the partial summary judgment. If the trial had been
conducted by the parties to encompass all issues, we could perhaps rely on it to, in a sense,
cure the early error. Cf. Corona v. Corona, 

, 

. But
as we noted above, the parties and the district court were clear that the only triable issue was
whether Gopin acted willfully under the UPA. Despite the Venn diagram-like overlap of
evidentiary relevance, we conclude that considering the trial evidence would have us acting
as a trier of fact, considering and weighing evidence in a way the district court did not. It
is improper for us to do so. Rather, the trial court should undertake the task in the first
instance.

{39} Since we have concluded that the partial summary judgment must be reversed and
that it is not appropriate for this Court to comb the record for ways to excuse the error, we
could summarily reverse all of the ensuing substantive orders and remand for further
proceedings. After all, without a basic finding of a UPA violation, it is inappropriate to
consider and rule on whether the violations were willful. We have decided not to rule
summarily, however, because the parties have argued issues that are sure to recur on remand,
and it would be useful to address them in aid of the work to be done on remand yet to be
done by the district court. In particular, the parties have addressed what constitutes “willful”
conduct under the UPA and the propriety of the penalty imposed by the district court. We
will address both.

B.     Summary Judgment in Favor of the Attorney General as to Willfulness Was
       Improper

                                              11
{40} A few months before trial, the Attorney General moved for summary judgment as to
whether Gopin’s “advertisement willfully violated the [UPA] when [he] failed to disclose
his jurisdictional limitation and failed to deliver a ‘free initial consultation.’ ”6 As was the
norm in the case at that point, the motion relied on the original partial summary
judgment—in this instance, items I and IV—for its foundation. The motion posited fifteen
statements of undisputed material facts describing how Gopin ran the Las Cruces office and
the advertising he used for the practice. The most salient of the assertedly undisputed facts
were that his yellow pages advertising willfully did not disclose his jurisdiction limitation
and that none of Gopin’s clients ever met or spoke with an attorney before they were
presented with and signed a retainer agreement. The motion included excerpts from Gopin’s
deposition in which he agreed that he had a say in or controlled the content of all his
advertising. The motion then incorporated in full several prior motions filed with the district
court, including the original motion for partial summary judgment and the Attorney
General’s responses to earlier motions filed by Gopin. As Gopin noted in his response to
the motion, the Attorney General did not include any analysis of the factual showing needed
to prove willfulness.

{41} Gopin’s response noted generally that the Attorney General’s facts were disputed or
were simply irrelevant to the issue of willfulness. Gopin’s factual response relied on his own
affidavit and letters from the Disciplinary Board of the Supreme Court approving—with
some exceptions and suggestions—his ability to open a law office in New Mexico and
advertise it so long as he had New Mexico-licensed attorneys actually staffing the office.
As to the applicable legal standard, Gopin argued that in order to distinguish the required
element of “knowing” action under the UPA, the concept of willfulness should be interpreted
to require an intent to do wrong or cause injury or an utter disregard for the consequences
of one’s acts or failure to act.

1.      Willfulness Standard

{42} The district court held one hearing on the individual Plaintiffs’ and the Attorney
General’s motions. During the hearing, the district court displayed some uncertainty as to
the applicable definition for willfulness. With regard to the individual plaintiffs’ motion, he
stated he was inclined to apply the UJI definition, but opined that application of the standard
might be different depending on whether he ruled as to Gopin in his individual capacity as
opposed to in his capacity as the owner of a sole proprietorship. In the end, the district court
denied summary judgment to the individual Plaintiffs.7



       6
         The individual plaintiffs had previously filed their motion for summary judgment
as to willfulness.
       7
         The district court specifically relied on the original partial summary judgment to
state that a violation of the UPA had already been determined.

                                              12
{43} In contrast, the district court granted the Attorney General’s motion opining that
“there is not the same willfulness standard applied to the [A]ttorney [G]eneral’s complaint
as it applies to the individual clients.”8 The district court’s rationale was that “Judge Robles
has already declared his method, act, and practice unlawful under the UPA” and that Gopin
had consciously made all the decisions about advertising and, as such, his decisions were
willful.

{44} The order of summary judgment did not explain the district court’s rationale any
further. The operative paragraphs of the order provide:

       1.      The [o]rder [g]ranting [Plaintiffs’ m]otion for [p]artial [s]ummary
               [j]udgment filed March 13, 2008, by this [c]ourt dated June 3, 2008
               declared that Defendant’s method, act and practice of advertising for
               legal services, was unlawful.

       2.      There are no disputed issues of material fact that the advertising used
               by . . . Gopin violated the [UPA].

       3.      The advertising put forth by . . . Gopin was done willfully.

       4.      . . . Gopin is subject to civil money penalties under the [UPA].

{45} It is impossible to glean from this record any clear understanding of the legal
standard the district court used in making its decision that Gopin acted willfully, other than
that Gopin acted “intentionally.” The district court did not articulate how or whether
Gopin’s intentional acts differed from acts “knowingly made,” which is the requirement for
actionable misrepresentations under the UPA. Section 57-12-2(D). We are left with the
distinct impression that the district court equated “knowingly made” with “willful.” To do
so would be error.

{46}   The three essential elements of basic UPA claims are:

       (1) the defendant made an oral or written statement, a visual description or
       a representation of any kind that was either false or misleading; (2) the false
       or misleading representation was knowingly made in connection with the
       sale, lease, rental, or loan of goods or services in the regular course of the
       defendant’s business; and (3) the representation was of the type that may,
       tends to, or does deceive or mislead any person.

Lohman v. Daimler-Chrysler Corp., 

, 

, 

;


       8
       We note that Plaintiffs concede on appeal that the standard for willfulness is actually
the same for treble damages and civil penalties.

                                              13
see § 57-12-2(D).

{47} Our case law makes clear that “knowingly made” is an integral part of all UPA
claims and that it must be the subject of actual proof. Stevenson v. Louis Dreyfus Corp.,

, ¶¶ 13-15, 18, 

, 

 (holding that the defendants’
motion for directed verdict should have been granted because there was no evidence that the
defendants knowingly made any false or misleading statements). Stevenson does not require
proof of actual knowledge in all circumstances. Rather, knowledge can be proven by
showing that “in the exercise of reasonable diligence [the defendant] should have been aware
that the statement was false or misleading.” Id. ¶ 17; see Diversey Corp. v. Chem-Source
Corp., 

, 

, 

 (“The gravamen of an unfair
trade practice is a misleading, false, or deceptive statement made knowingly in connection
with the sale of goods or services.”).

{48} The UPA provides for two tiers of monetary remedies for individuals. For a basic
violation, a private party can recover “actual damages or the sum of one hundred dollars
($100), whichever is greater.”          Section 57-12-10(B).      For more aggravated
circumstances—where the defendant “has willfully engaged in the trade practice”—“the
court may award up to three times actual damage or three hundred dollars ($300), whichever
is greater[.]” 

{49} The UPA similarly provides for two tiers of remedy in actions brought by the
Attorney General. For basic violations of the UPA, the Attorney General can seek injunctive
relief and restitution. Section 57-12-8. For more aggravated circumstances—where a person
has “willfully used a method, act or practice declared unlawful by the [UPA]”—the Attorney
General can seek “a civil penalty of not exceeding five thousand dollars ($5,000) per
violation.” Section 57-12-11.

{50} Given the material difference in the available remedies, it is clear that the Legislature
contemplated proof of some culpable mental state to demonstrate “willfulness.” Sloan v.
State Farm Mut. Auto. Ins. Co., 

, 

, 

 (equating
a “culpable mental state” with “willful”). Unfortunately, the Legislature did not provide a
definition in the UPA. And, interestingly, no New Mexico case has addressed the issue.
Perhaps the lack of case law explains why our Uniform Jury Instructions also do not address
the issue. See UJI 13-1707 NMRA.9

{51} Gopin argues that willfulness should be deemed to include an “actual or deliberate
intention to injure or harm another.” Matthews v. State, 

, ¶ 21, 

, 

. We agree with the Plaintiffs that this is a step too far and would unduly


       9
         We also note that UJI 13-1707 does not include any reference to “knowingly made.”
In contrast, UJI 13-1718 NMRA addressing punitive damages for insurance bad faith claims
refers to UJI 13-1827 NMRA for its definitions of culpable mental state.

                                             14
restrict the ability of individuals and the Attorney General to enforce what is clearly a
remedial statute.

{52} Plaintiffs argue that willfulness can be distinguished by requiring an element of
design or deliberateness. They draw a distinction between acting by design rather than as
a result of “confusion, mistake or faulty memory.” The Plaintiffs’ approach, however, does
not provide any discernable distance between “knowingly made” and “willfully made.” The
distinction Plaintiffs argue for is in most ways inherent in the concept of “knowingly made.”
Something more is required.

{53} For that something more, we turn to the definition of willful found in UJI 13-1827.
This is the jury instruction used for consideration of punitive damages, but we conclude that
it provides useful guidance—if only because treble damages and the UPA civil penalties are
forms of remedy intended to punish a wrongdoer. McLelland v. United Wis. Life Ins. Co.,

, 

, 

.

{54} UJI 13-1827 provides that “[w]illful conduct is the intentional doing of an act with
knowledge that harm may result.” This definition does not include the intent to harm
element desired by Gopin, but it does provide a clear method for proof of a culpable mental
state by requiring a showing of deliberation and a disregard for foreseeable risk. Proof of
these two elements provides a solid foundation for punishment. See Pub. Serv. Co. of N.M.
v. Diamond D Constr. Co., 

, 

, 

 (holding
that a finding of willful conduct would support an award of 15% as a post-judgment rate).
On remand, the district court should reconsider the Plaintiffs’ requests for treble damages
and penalties in light of this discussion.10

2.      Amount of the Penalty

{55} At the conclusion of the hearing on the motions for summary judgment on
willfulness, the district court imposed the maximum UPA-allowed penalty of $5,000 per
client against Gopin. The district court did not provide any explanation for its decision,
either at the hearing or in the order it later entered. Gopin argues that imposing the
maximum penalty is excessive and constitutes an abuse of discretion.

{56}    Since we are reversing the entire judgment, we will not consider the issue on the




        10
         It is unclear what standard for willfulness the district court applied to the individual
claimants at trial, but its conclusion of law “U” (“All of the actions were known by and
under the direction of . . . Gopin and are therefore willful and deliberate.”) can be read to
equate knowing with willful.

                                               15
merits.11 We note, however, that the lack of any rationale from the district court could well
have led us to remand for an explanation sufficient to allow review. See State ex rel. Human
Servs. Dep’t v. Coleman, 

, ¶ 26, 

, 

, abrogated
on other grounds by State v. Alberico, 

, 

, 

. On
remand, if the trial court reaches the stage of considering a penalty, it should provide an
explanation of all factors leading to its decision. The explanation should take into
consideration the purpose of the UPA plus the “enormity and nature of the wrong and any
aggravating circumstances.” Green Tree Acceptance, Inc. v. Layton, 

, ¶
9, 

, 

. The district court should also keep in mind that there are
likely procedural and substantive due process implications to how it arrives at its decision
and to its final determination. Aken, 

 (discussing procedural and
substantive due process as they relate to punitive damages).

C.     PROCEEDINGS ON REMAND

{57} We are fully aware of the implications of our decision to reverse in this case. The
matter was the subject of ongoing—albeit improperly truncated—litigation for over four
years. Much of the factual development necessary to decide the case has likely occurred.
Our reversal will allow Gopin to bring to bear whatever new facts and arguments he may be
able to muster as to whether his acts constitute a violation of the UPA and the issue of
willfulness. We see no need for the parties to repeat the trial that has already been held. The
district court can rely on the testimony already provided. But we leave the process of
evidentiary production to the district court to determine.

{58} Gopin will not be allowed to argue that attorneys as a profession are not subject to
the UPA. He failed to make the argument previously, and this remand is not an opportunity
to make the argument for the first time. See Grassie v. Roswell Hosp. Corp., 2011-NMCA-
024, ¶¶ 84-87, 

, 

.

{59} Finally, we urge the parties and the district court to clarify and specify which
provisions of the UPA are at work and how they apply. The orders entered previously refer
vaguely to UPA violations with no detail. The asserted violations flowing from Gopin’s
advertising are relatively clear, but others, e.g., the form of Gopin’s retainer agreement and
the relationship with the chiropractor, are more obscure. Identification of the provisions
violated would be very helpful if the matter returns for further appeals.

CONCLUSION

{60}   The matter is reversed and remanded for further proceedings consistent with this


       11
        An argument could be made that under Aken v. Plains Electric Generation &
Transmission Cooperative, Inc., 

, 

, 

, our
review should be de novo; but, again, we need not deal with that question here.

                                              16
Opinion.

{61}   IT IS SO ORDERED.

                                    _____________________________________
                                    MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

____________________________________
LINDA M. VANZI, Judge




                                   17