June 29, 2010 – Cyndi C. Dean v. Marco Brizuela, No. 29,247

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ____________
Filling Date: June 29, 2010
NO. 29,247
CYNDI C. DEAN,
Plaintiff-Appellee,
v.
MARCO BRIZUELA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Richard J. Knowles, District Judge
Sanchez, Mowrer & Desiderio, P.C.
Frederick M. Mowrer
Albuquerque, NM
for Appellee
John V. Nilan, LLC
John V. Nilan
Albuquerque, NM
for Appellant

OPINION
VIGIL, Judge.
{1} 	This case involves attorney fees under the Unfair Trade Practices Act (UPA),
NMSA 1978, Sections 57-12-1 to -22 (1967, as amended through 2009). Plaintiff was
successful on certain claims brought against Defendant, but not the UPA claim. The
metropolitan court (trial court) judge ruled that Defendant was only entitled to
attorney fees incurred in defending the UPA claim. Since Defendant did not identify
what portion of his fee was attributable to defending the UPA claim, the trial court
judge ruled that Defendant was not entitled to any attorney fees. We affirm.
FACTS
{2} 	Plaintiff sold Defendant a motorcycle. In a complaint filed in the trial court,
Plaintiff sued for rescission of the contract and for damages, alleging disputes
concerning repairs Defendant made to the motorcycle, damage to the motorcycle, and
a return of the motorcycle without all its parts. 	Defendant denied the material
allegations of the complaint and filed a counterclaim, alleging in part that Plaintiff was
unjustly enriched by repairs he made to the motorcycle and that Plaintiff committed
extortion by reporting the dispute to Defendant’s probation officer. Plaintiff denied
Defendant was entitled to relief under his counterclaims. 	Defendant then filed a
motion for summary judgment, and after Plaintiff responded, the trial court denied the

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motion.
{3} 	The trial court then granted Plaintiff leave to file an amended complaint to add
a claim for intentional infliction of emotional distress and attorney fees. The amended
civil complaint, filed on August 30, 2007, repeated the essential allegations of the
original complaint, added a claim for intentional infliction of emotional distress, and
a claim for attorney fees pursuant to the UPA. The claim for attorney fees alleged:
Defendant represented himself [as] a mechanic familiar with and capable
[of] making repairs on the motorcycle; defendant threatened to double
the charges for the costs of repairs allegedly made; he threatened and
verbally abused the plaintiff in an effort to collect the fees for the work
he allegedly performed; defendant submitted false and fabricated bills;
in doing the acts alleged herein the defendant engaged in unfair or
unconscionable trade practices in violation of the [UPA]. Said violations
entitle the plaintiff to an award of treble damages and attorney fees.
Defendant denied the material allegations of the amended complaint, alleged six
affirmative defenses, and three counterclaims, one of which was that Defendant was
entitled to attorney fees and costs pursuant to the UPA, because, asserted Defendant,
Plaintiff’s claim under the UPA “is baseless.”
{4} 	Following trial, the trial court announced its decision, granting rescission of the
contract and awarding Plaintiff damages. 	As to Plaintiff’s UPA claim, the trial

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court stated that Plaintiff was required to prove that Defendant was acting in the
regular course of his business, there was no proof that he was in the business of
motorcycle repairs, and he was clearly not acting in such a capacity. On this basis, the
trial court ruled that the UPA claim was “baseless” and under the UPA, Defendant
was entitled to attorney fees and costs. 	However, the trial court also ruled that
Defendant was entitled to attorney fees for only the work expended in defense of the
UPA claim, which was not much. The trial court directed Defendant’s attorney to
prepare a bill reflecting only his time in defending the UPA claim.
{5} 	Following trial, Plaintiff conceded she “did not prove that Defendant was
engaged in the regular course of his trade or commerce” as required by the UPA to
warrant an award of attorney fees. Consistent with the trial court’s ruling, Plaintiff
asked the trial court to conclude as a matter of law, “Defendant is awarded attorneys
fees only for the time associated with the defense of Plaintiff’s Unfair Practices Claim.
Defendant will submit an affidavit of attorneys fees setting forth the time spent in the
defense of the Unfair Practices Claim.”
{6} 	Defendant asked the trial court to “grant” Defendant’s counterclaim for attorney
fees and costs pursuant to Section 57-12-10(C) because Plaintiff’s “claim for violation
of the [UPA] was groundless.” However, counsel made no attempt to comply with
the directive of the trial court concerning attorney fees. Instead, counsel submitted an
attorney affidavit for attorney fees seeking payment of his total bill from the

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beginning of the case, plus tax, in the amount of $7,137.15. Counsel asserted:
Defendant’s attorneys fees and expenses are reasonable because of the
nature of the multiple claims, the multiple claims of the Plaintiff, the
nature of the claims of the Plaintiff and the counterclaims of the
Defendant and the attempt to resolve the matter at the earliest stages of
the case through motion to dismiss and affirmative defenses. In relation
to the experience of the Defendant’s counsel and the time spent, the time
expended by the Defendant’s counsel has been reasonable and necessary.
All the issues raised by the Plaintiff were contested by the Defendant.
The Plaintiff raised groundless claims to assert claims for punitive
damages and attorney fees and costs where none were cognizable [by]
law.
Plaintiff objected to Defendant’s attorney fee affidavit in part because:
Defense Counsel completely ignores the ruling of [the c]ourt by filing
the Affidavit seeking an award of all attorney’s fees and costs associated
with this case. This is [in] direct disregard of the [court’s] ruling, which
only awarded Defendant attorneys fees for time counsel spent in defense
of Plaintiff’s claim under the [UPA].
Moreover, Plaintiff stated,
[Nowhere] in the eleven pages of bills submitted by Defense Counsel is
there a reference to research, pleadings or any work related to defending
the Unfair Practice Claim raised by Plaintiff. 	Therefore, Defense
Counsel has failed to support an award of any fees as related to the
defense of the [UPA] as ordered by the [c]ourt.
{7} 	The trial court held a hearing on Plaintiff’s objection to Defendant’s attorney
fee affidavit. 	Defendant’s counsel argued that because the statute is mandatory in
requiring attorney fees to be awarded when it is operative, because the UPA was
commingled with all the other claims and the “real” claim litigated was the UPA

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claim, it was unfair to require him to parse out his time in defending the UPA claim.
While now conceding that the UPA claim was not made until the amended complaint
was filed on August 30, 2007, Defendant continued to assert that the entire fee
charged from that date forward should be awarded. 	Thus, the fee requested was
reduced from $7,137.15 to $5,566.08. The trial court stated that if counsel’s position
was that he was entitled to the entire amount or nothing at all, he was not entitled to
any attorney fees because the single issue under the UPA was whether Defendant was
acting in the capacity of his business. 	Counsel objected, stating that the statute is
mandatory in stating that attorney fees “shall” be awarded when it is triggered, and it
is “disingenuous” for counsel to submit a bill to the client, and a different one, parsed,
to the court.
{8} 	The findings of fact and conclusions of law and judgment of the trial court
reflect that the trial court granted attorney fees under the UPA because Plaintiff’s UPA
claim had no basis in that Defendant was not acting in the regular course of his trade
or commerce when he worked on the motorcycle he purchased. 	The trial court
specifically found, “[t]he claim under the [UPA] had no basis upon which to base a
claim.” The trial court was also well aware of the mandatory provision of Section 57-
12-10(C). The trial court quoted the statute in its decision: “The court shall award
attorneys’ fees and costs to the party charged with an unfair or deceptive trade practice

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or an unconscionable trade practice if it finds that the party complaining of such trade
practice brought an action which was groundless.” 	The court also summarized
Defendant’s argument: 	“Defendant believes that the language in [Section 57-12-
10(C)] means all attorney fees shall be paid by the party asserting a claim under the
[UPA] if the defending party is successful in defending the claim under [the UPA]
even if they were not successful in defending other claims asserted in the complaint.”
The trial court further found that it would award attorney fees only for time spent in
defending the UPA claim, that the amount of time spent in defending the UPA claim
would be minimal, that Defendant’s counsel did not provide a bill separating time
spent defending the UPA claim from the rest of the claims, and that Defendant’s
counsel believed the amount could not be separated out. 	Thus, the trial court
concluded as a matter of law:
Defendant was awarded, in theory, attorney fees for the minimal time his
attorney would have expended on defending the [UPA] claim but no
amount was in fact awarded because the attorney did not separate out the
time spent on defending the [UPA] claim from the other claims.
{9} 	Defendant appealed to the district court, and the district court affirmed. The
district court reasoned that while Section 57-12-10(C) of the UPA is mandatory upon
a successful defense of a UPA claim and a finding that bringing the UPA claim was
groundless, the statute does not require payment of attorney fees for the unsuccessful

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defense of other non-UPA claims brought by a plaintiff. Stated another way, “[t]he
[UPA] is a consumer protection act; the [c]ourt does not discern a legislative intent in
the attorney fees provision to punish a plaintiff with a losing [UPA] claim by making
her pay attorney fees for other claims that were successful.” Further, the district court
noted, counsel failed to submit a reasonable amount for the work performed in
defending the UPA claim, and the trial court was not required to calculate an attorney
fee on its own. Therefore, concluded the district court, the trial court did not abuse
its discretion by refusing to award all attorney fees or by refusing to make its own
calculation of the work spent by defense counsel in defending the UPA claim.
{10} 	Defendant again appeals, and we also affirm.
DISCUSSION
{11} 	On appeal, our review is limited to determining whether the trial court abused
its discretion. See Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 38, 132 N.M. 459, 50
P.3d 554. Defendant argues that upon a finding that a UPA claim is “groundless,”
Section 57-12-10(C) requires an award of attorney fees and costs in favor of the
defending party. Therefore, asserts Defendant, it was an abuse of discretion to award
no attorney fees.
{12} 	Defendant makes two separate arguments on how the fees should have been
calculated. First, Defendant asserts that because the trial court heard the case on the

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merits, and was intimately aware of the nature of the claims and defenses, the trial
court was able to review the claim for attorney fees and determine the amount of
recoverable attorney fees. Secondly, Defendant argues he was entitled to an award of
all the attorney fees generated from the time the amended complaint was filed and the
UPA claim was first asserted, to the conclusion of the trial.
{13} 	Plaintiff argues that whether attorney fees are mandatory is not the issue; but
rather, the issue is whether the trial court abused its discretion when Defendant failed
to support his claim for attorney fees by specifying in any manner what fees were
incurred in defending against Plaintiff’s UPA claim. 	We agree with Plaintiff’s
statement of the issue before us.
{14} 	We conclude that the burden was upon Defendant to segregate the fees charged
in defending the UPA claim or to demonstrate that it was difficult or impossible to
segregate the work in defending the UPA claim from Plaintiff’s other claims and
Defendant’s own counterclaims. Since Defendant did not do either, we conclude the
trial court did not abuse its discretion and affirm.
{15} 	It is well settled that in the absence of statutory authority, or a rule of court,
attorney fees are not recoverable as an element of damages. Hiatt v. Keil, 106 N.M.
3, 4, 738 P.2d 121, 122 (1987). An additional exception is when a contract provides
for an award of attorney fees. See In re N.M. Indirect Purchasers Microsoft Corp.,

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2007-NMCA-007, ¶ 19, 140 N.M. 879, 149 P.3d 976 (“A contract providing for
attorney fees is enforceable.”).
{16} 	Thus, it has long been the rule in New Mexico that a party is only entitled to
those fees resulting from the cause of action for which there is authority to award
attorney fees. See Hiatt, 106 N.M. at 4, 738 P.2d at 122 (adopting the rule that a party
is entitled “‘only to those fees resulting from its principal cause of action for which
there is a contractual (or statutory) obligation for attorney’s fees’”) (quoting Utah
Farm Prod. Credit Ass’n v. Cox, 627 P.2d 62, 66 (Utah 1981)). Where a party has
asserted a claim for which attorney fees are authorized and has also been required to
defend a counterclaim for which no attorney fees are authorized, our courts have not
adhered to a rigid rule that attorney fees may never be awarded for defending the
counterclaim, but “we do caution that it should be the exception and not the rule to do
so.” Hiatt, 106 N.M. at 4-5, 738 P.2d at 122-23.
{17} 	Our Supreme Court has continued to direct that recoverable fees be segregated
from non-recoverable fees to insure that only those fees for which there is authority
to award attorney fees are in fact awarded. In Hinkle, Cox, Eaton, Coffield & Hensley
v. Cadle Co., 115 N.M. 152, 157-58, 848 P.2d 1079, 1084-85 (1993), the trial court
awarded attorney fees to the plaintiff for work related both to the prosecution of its
action on an open account, for which attorney fees are authorized, and to its defense

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on the defendant’s counterclaim for an account stated, for which an award of attorney
fees is not authorized. 	The Supreme Court reversed the summary judgment in the
plaintiff’s open account claim. Id. at 158, 848 P.2d at 1085. This in turn also required
a reversal of the attorney fees awarded because the statute authorizing attorney fees
in an action on open account did not also authorize an award of attorney fees in an
action for an account stated. Id. The Court added:
Some of the work may be inextricably intertwined, making it difficult or
impossible to segregate some of the time worked on the complaint from
work related to the counterclaims. Nevertheless, the trial court should
attempt to distinguish between the two types of work to the extent
possible. Accordingly, we vacate the entire award of attorney’s fees. If,
on remand, [the plaintiff] prevails on its complaint and the trial court
awards a reasonable attorney’s fee, the award should be limited, to the
extent feasible, to work related to prosecution of the complaint.
Id.
{18} 	We have also adhered to these requirements. For example, in Jaramillo, the
trial court determined that only a portion of the attorney fees requested by the
plaintiffs were related to the UPA claim which they succeeded in prosecuting and,
accordingly, made a reduction to the amount claimed. 2002-NMCA-072, ¶ 38. On
appeal, we said that the trial court was required to review the request for attorney fees
“and determine what portion of the work done was attributable to the UPA claim.”
Id. ¶ 39. However, the plaintiffs asserted that there was no evidence that the UPA

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claims were separate or could be separated from the other claims, that the entire case
was based on the defendant’s conduct which supported the UPA claim, and that the
burden was on the defendant to show that the time was separable. We disagreed:
Once Plaintiffs made their claim for the attorney fees, it was left to the
discretion of the trial court to make the award based upon Plaintiffs’
proof of the reasonableness of the fees. The [defendant] did not have to
object to the time or show that it was separate. It was for the trial court
to review the claim made by Plaintiffs and in its discretion determine
what fees to award. 	We cannot say that the trial court abused its
discretion by reducing the request for attorney fees to that amount
relating solely to the UPA claim.
Id. ¶ 41. In J. R. Hale Contracting Co. v. Union Pacific Railroad, 2008-NMCA-037,
¶¶ 92, 95, 143 N.M. 574, 179 P.3d 579, we agreed that an award of attorney fees
under a statutory claim which allows an award for attorney fees, which is joined with
non-statutory claims must be limited to the work done on the statutory claim. We
acknowledged that in certain cases it could be difficult or impossible to segregate the
work 	performed 	on 	different 	claims 	because 	such 	work 	was 	“inextricably
intertwined.” Id. ¶ 95 (internal quotation marks and citation omitted). The burden of
showing this to be the case at the trial court level and on appeal is with the attorney
who seeks the attorney fee award. Id.
{19} 	Defendant made no showing of any kind to the trial court what portion of the
attorney fees charged was attributable to defending the UPA claim or why it was

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difficult or impossible to segregate the work in defending the UPA claim from
Plaintiff’s 	other 	claims 	and 	Defendant’s 	own 	counterclaims. 	Under 	these
circumstances we conclude the trial court did not commit an abuse of discretion in
refusing to award Defendant attorney fees for successfully defending the UPA claim.
CONCLUSION
{20} 	The order of the district court which affirms the order of the trial court is
affirmed.
{21} 	IT IS SO ORDERED.
MICHAEL E. VIGIL, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge