June 8, 2026- FC3 Ltd. Co. v. Four Winds Mechanical HTCAC, Inc., No. A-1-CA-42422

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: June 8, 2026	3
No. A-1-CA-42422	4
FC3 LTD. CO,	5
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Plaintiff-Appellant,
v.
FOUR WINDS MECHANICAL
HTC/AC, INC., a New Mexico corporation;
and MVT CONTRACTING, LLC, a New
Mexico limited liability company,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Matthew J. Wilson, District Court Judge
Herdman MacGillivray Fullerton
Cameron Pumarejo Honeycutt PC
Frank T. Herdman
Santa Fe, NM
East Mountains Lawyer Chartered
Mark W. Bridges
Sandia Park, NM
for Appellant	22
Court of Appeals of New Mexico
Filed 6/8/2026 10:23 AM

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Atler Law Firm, P.C.	1
Timothy J. Atler	2
Jazmine J. Johnston	3
A. Howland Swift	4
Albuquerque, NM	5
Jones, Skelton & Hochuli P.L.C.	6
Christie Geter	7
Albuquerque, NM	8
for Appellee Four Winds Mechanical HTC/AC, Inc.	9
Jones, Skelton & Hochuli P.L.C.	10
Raul P. Sedillo	11
Emma D. B. Weber	12
Albuquerque, NM	13
for Appellee MVT Contracting	14

OPINION	1
HANISEE, Judge.	2
{1} 	Plaintiff appeals the district court’s granting of subcontractor Defendants’	3
motions to dismiss. The district court initially dismissed Plaintiff’s claims of breach	4
of implied warranty and negligence without prejudice. Plaintiff filed an amended	5
complaint with the negligence claims and additional claims for unjust enrichment,	6
and the district court again dismissed them, reasoning that Plaintiff failed to allege a	7
duty for the negligence claim or the nonrecoverable nature of its contract claims	8
before seeking recovery for unjust enrichment from the subcontractor Defendants.	9
{2} 	Plaintiff appeals and argues that the original complaint stated a claim for	10
breach of implied warranty, even though Plaintiff was not in privity with the contract	11
between the general contractor and the subcontractors, and that the claims against	12
the subcontractors in the amended complaint were sufficient as a matter of law. We	13
do not reach the implied warranty issue, because Plaintiff abandoned the claim in	14
the amended complaint. Otherwise, we hold that a contract between a property	15
owner and a general contractor does not foreclose negligence and unjust enrichment	16
claims against a subcontractor. Because the claims Plaintiff pleaded in the amended	17
complaint were legally sufficient, we reverse.	18

2
BACKGROUND	1
{3} 	Plaintiff 	property 	owner 	FC3 	Ltd. 	Co. 	contracted 	with 	J.M. 	Evans	2
Constructions Co., Inc. (JMEC) to renovate a property owned by Plaintiff. JMEC	3
subcontracted with Defendant Four Winds Mechanical HTC/AC, Inc. (Four Winds),	4
a heating, ventilation, and cooling subcontractor, to supply and install heating and	5
cooling equipment as part of the renovation. JMEC also subcontracted with	6
Defendant MVT Contracting, LLC (MVT), to install exterior stucco and interior	7
plaster. Dissatisfied by the allegedly defective work of Defendants Four Winds and	8
MVT on the renovation, Plaintiff sued, asserting claims for breach of implied	9
warranty, breach of contract, unfair trade practices, and negligence. Upon Defendant	10
Four Winds’ motion, this complaint was dismissed without prejudice. Plaintiff filed	11
an amended complaint, this time omitting a claim for breach of implied warranty but	12
including an additional claim for unjust enrichment. Again upon Defendants’	13
motions, the district court dismissed the complaint, finding that Plaintiff failed to	14
allege the required element of duty for its negligence claim, since the parties were	15
not in privity. The district court further reasoned that Plaintiff failed to demonstrate	16
that it would not be able to recover from its contract claims against JMEC, which	17
were in arbitration, and therefore was barred from bringing an unjust enrichment	18
claim against Defendants. Plaintiff appeals.	19

3
DISCUSSION	1
{4} 	Plaintiff asks this Court to reverse the district court’s granting of Defendants’	2
motions to dismiss Plaintiff’s claims for breach of implied warranty, negligence, and	3
unjust enrichment. “We review a district court’s grant of a motion to dismiss de	4
novo, accepting as true all of the appellant’s well-pleaded allegations.” Butler v.	5
Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 6, 140 N.M. 111, 140 P.3d	6
532. We address each claim in turn.	7
I. 	Breach of Implied Warranty Claim	8
{5} 	In the original complaint, Plaintiff brought a breach of implied warranty claim	9
against Defendants and in response to Defendant Four Winds’ first motion to	10
dismiss, argued that such a claim does not require privity between an owner and a	11
subcontractor. However, after the district court granted the motion to dismiss	12
without prejudice, allowing Plaintiff to amend the complaint, Plaintiff did not	13
re-allege breach of implied warranty in the amended complaint.	14
{6} 	Plaintiff accepts that when the district court dismissed Plaintiff’s first	15
complaint in response to a motion to dismiss from one subcontractor (Defendant	16
Four Winds), it dismissed Plaintiff’s first complaint—and the breach of implied	17
warranty claim—as to all the subcontractors. But Plaintiff asserts that dismissal of	18
Plaintiff’s first complaint entitles Plaintiff to appellate review of its breach of	19
implied warranty claim even though Plaintiff did not re-allege it in the amended	20

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complaint. Defendant Four Winds disagrees, quoting the following from Griego v.	1
Roybal, 1968-NMSC-077, ¶ 8, 79 N.M. 273, 442 P.2d 585: “Rule [1-015 NMRA]	2
requires a party to set forth in one entire pleading all matters which are necessary to	3
be determined; the failure to re-allege allegations of an original pleading constitutes	4
an abandonment of those allegations not re-alleged.” Id.; see Rule 1-015(E). We	5
agree with Defendant Four Winds and hold that Plaintiff abandoned its breach of	6
implied warranty claim by not re-alleging the claim in its amended complaint.	7
Therefore, we decline to address Plaintiff’s claim as to Defendants’ breach of	8
implied warranty.	9
II. 	Negligence Claim	10
{7} 	In Plaintiff’s view, “[t]he proposition that a subcontractor owes no duties to	11
owners and that they enjoy unconditional immunity for their negligent conduct	12
would place subcontractors in a uniquely protected class contrary to fundamental	13
public policy.” Defendants respond that Plaintiff failed to establish a tort duty, in	14
large part because Plaintiff’s claims are contract claims that fail absent privity of	15
contract between the parties.	16
{8} 	It is within this Court’s purview to determine whether a duty exists. See Lopez	17
v. Devon Energy Prod. Co., L.P., 2020-NMCA-033, ¶16, 468 P.3d 887 (“New	18
Mexico courts have long held that duty is a matter of law to be determined by the	19
court.”). Additionally, “New Mexico law recognizes that there exists a duty assigned	20

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to all individuals requiring them to act reasonably under the circumstances according	1
to the standard of conduct imposed upon them by the circumstances.” Calkins v. Cox	2
Est., 1990-NMSC-044, ¶ 11, 110 N.M. 59, 792 P.2d 36. “Duty may be based on	3
common law, statutory law, or general negligence standard.” Thompson v. Potter,	4
2012-NMCA-014, ¶ 19, 268 P.3d 57.	5
{9} 	Defendants argue that the nature of their relationship with Plaintiff established	6
no duty and that Plaintiff may only seek recourse for damages from the party with	7
whom Plaintiff had a contractual relationship, the general contractor (JMEC).	8
Defendant Four Winds directs us to recent law from our Supreme Court establishing	9
that our determination of duty “involves an analysis of the relationship of the parties,	10
the plaintiff’s injured interests and the defendant’s conduct to determine whether the	11
plaintiff’s interests are entitled to protection.” Waterbury v. Nelson, 2024-NMSC-	12
020, ¶ 12, 557 P.3d 96 (internal quotation marks and citation omitted). In that vein,	13
Defendant Four Winds asserts that the “existence of a valid avenue for relief against	14
JMEC further supports the district court’s dismissal” and effectively exonerates	15
Defendants from liability, at least liability to Plaintiff directly. Similarly, Defendant	16
MVT contends that Plaintiff failed to established that they owed Plaintiff a duty of	17
care, asserting that Plaintiff “couched” a breach of contract claim in terms of tort law	18
and instead alleged facts that could support only a contract claim. In Defendant	19
MVT’s view, Plaintiff alleges a duty that does not exist in New Mexico law. And	20

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the cases Plaintiff relies on relate to categories of tort law that are absent from this	1
case: 	contractual 	professional 	negligence, 	negligent 	misrepresentation, 	and	2
subsequent purchaser construction defect.	3
{10} 	We address these arguments in turn, beginning with the contention that	4
Plaintiff’s contractual relationship with JMEC is the only avenue through which	5
Plaintiff can recover for Defendants’ alleged wrongs. That Plaintiff had a contract	6
with JMEC explicating JMEC’s responsibilities and establishing JMEC’s duties	7
related to subcontractors such as Defendants does not preclude Plaintiff from	8
seeking 	compensation 	directly 	from 	subcontractors—with 	whom 	no 	contract	9
exists—for their allegedly negligent acts. See Stotlar v. Hester, 1978-NMCA-067,	10
¶ 10, 92 N.M. 26, 582 P.2d 403 (explaining that privity of contract is not “recognized	11
as a factor when considering liability on a negligence theory” (internal quotation	12
marks and citation omitted)). Nor would doing so be a violation of the contract	13
between JMEC and Plaintiff; Plaintiff complied with the terms of that contract by	14
not entering into contracts with subcontractors and by bringing its claims against	15
JMEC through arbitration, as required. Thus, Plaintiff has pleaded claims that do not	16
arise from any contract with Defendants and do not violate any other contract. As a	17
result, Plaintiff is not required to bring the claim in contract and may proceed in tort,	18
if the elements of a tort claim are sufficiently pleaded. See In re Consol. Vista Hills	19
Retaining Wall Litig., 1995-NMSC-020, ¶ 28, 119 N.M. 542, 893 P.2d 438	20

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(requiring parties with equal bargaining power to bring contract and not tort claims	1
in order to limit damages “to those within the contemplation and control of the	2
parties in framing their agreement” (internal quotation marks and citation omitted)).	3
{11} 	This leads us to the crux of Defendants’ and the district court’s reasoning for	4
dismissing Plaintiff’s complaint: one sentence in Tarin’s v. Tinley isolated from the	5
context in which it applies. See 2000-NMCA-048, ¶ 12, 129 N.M. 185, 3 P.3d 680.	6
That sentence reads, “Absent privity, a subcontractor owes no duty to a property	7
owner.” Id. The district court relied on Tarin’s in finding that Plaintiff failed to allege	8
the required element of duty between the parties who were not in privity. See id.	9
Defendant Four Winds encourages us to affirm this conclusion, arguing that Plaintiff	10
attempted to circumvent its obligation to show that it was an intended beneficiary of	11
the contract or prove some other right to seek the contract’s enforcement, as required	12
by Tarin’s. Defendant Four Winds also asserts that Plaintiff’s allegations against	13
them stemmed from actions that fell within Defendant Four Winds’ scope of work,	14
as if to say that when harmful actions fall within a defendant’s scope of work a claim	15
for damages from those actions must necessarily arise from a contractual duty as	16
opposed to from common law negligence.	17
{12} 	Put simply, Defendants attempt to shoehorn Plaintiff’s negligence claim into	18
a breach of contract claim, and then use Tarin’s to invalidate it. Tarin’s concerned a	19
claim for breach of contract, not a claim for negligence. It therefore comes as no	20

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surprise that for the Tarin’s plaintiff to recover, it needed to show some kind of	1
contractual relationship from which a duty arose—something that would have been	2
wholly unnecessary were the claim for common law negligence, as it is here. Here,	3
Plaintiff never sought to show that it was an intended beneficiary of the contract, nor	4
did it need to, since its negligence claim relies on a duty separate from that	5
established by a contract. See Thompson, 2012-NMCA-014, ¶ 19 (“Duty may be	6
based on common law, statutory law, or general negligence standard.” (emphasis	7
added)).	8
{13} 	In response to the district court’s reliance on Tarin’s, Plaintiff emphasizes on	9
appeal the long-held law that privity of contract has no place in negligence theory.	10
See Steinberg v. Coda Roberson Const. Co., 1968-NMSC-055, ¶¶ 5, 7, 79 N.M. 123,	11
440 P.2d 798. Plaintiff thus argues that even without a contract between Plaintiff and	12
Defendants, Plaintiff was still entitled to bring a claim against them for negligence.	13
Defendant Four Winds attempts to deflect Steinberg’s holding by noting that the	14
parties in Steinberg—a defendant home builder who sold a home to a buyer, who	15
later sold the home to the plaintiff—were different from the parties here, a	16
subcontractor and property owner. See id. ¶¶ 1-2. In this attempt to distinguish	17
Steinberg, Defendant Four Winds implies that a duty-bearing relationship existed	18
between the home builder and the second buyer because the second buyer alleged it	19
was a third-party beneficiary to the contract between the home builder and the first	20

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buyer, but that no such relationship exists in this case. But that argument is both	1
inaccurate and inapplicable: inaccurate because no beneficiary status was argued or	2
addressed in Steinberg and inapplicable because it is not a contractual duty Plaintiff	3
alleges with Defendants to begin with—whether as a third-party beneficiary or	4
otherwise—but rather a common law duty under the doctrine of negligence.	5
Furthermore, the relationship between the home builder and the second buyer in	6
Steinberg established a duty because the second buyer was a member of the class of	7
prospective homebuyers for whom the defendant built the house, and our Supreme	8
Court held that “as a matter of legal effect the home may be considered to have been	9
intended for the plaintiff[].” Id. ¶ 9. The relationship between the home builder and	10
the second buyer in Steinberg, though different, is nonetheless analogous to that of	11
Defendants and Plaintiff because the building project in both cases could be	12
considered to have been intended for the plaintiffs, and in neither case was privity	13
of contract required in order for a claim of negligence to stand.1 We disagree with	14
1This is true even in light of NM-Emerald, LLC v. Interstate Development,
LLC, 2021-NMCA-020, ¶¶ 15-16, 488 P.3d 707, which, as Defendants point out,
distinguishes Steinberg. There, this Court held that unlike the second buyer in
Steinberg, who was a member of the class of prospective homebuyers for whom the
defendant built the house, the Emerald plaintiff was a commercial entity with “equal
bargaining power” to the defendant builder and based on an assignment of interest,
“in privity with the builder through a construction loan contract.” Id. ¶ 16. Thus,
Plaintiff bears greater similarity to the plaintiff in Steinberg than to the plaintiff in
Emerald, because the former two were not in privity of contract with the defendants
and both were members of the class that was intended to receive the defendant’s

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Defendants that Steinberg is meaningfully distinguishable from this case and apply	1
its holding that “[p]rivity of contract no longer [is] recognized as a factor when	2
considering liability on a negligence theory” to the facts of this case. Id. ¶ 7.	3
{14} 	Finally, Defendant MVT’s contention that Plaintiff’s negligence claim is	4
legally deficient because Plaintiff never established a duty of care ignores the notice	5
pleading laws of this state, where “it is sufficient that defendants be given only a fair	6
idea of the nature of the claim asserted against them sufficient to apprise them of the	7
general basis of the claim; specific evidentiary detail is not required at this stage of	8
the pleadings.” Petty v. Bank of N.M. Holding Co., 1990-NMSC-021, ¶ 7, 109 N.M.	9
524, 787 P.2d 443. “[A]ll well-pleaded factual allegations in the complaint [are	10
taken] as true,” and “all doubts [resolved] in favor of sufficiency of the complaint.”	11
Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917. As Defendant	12
notes, “[N]otice pleading does not require that every theory be denominated in the	13
pleadings—general allegations of conduct are sufficient, as long as they show that	14
the party is entitled to relief and the averments are set forth with sufficient detail so	15
that the parties and the court will have a fair idea of the action about which the party	16
is complaining and can see the basis for relief.” See Schmitz v. Smentowski, 1990-	17
NMSC-002, ¶ 9, 109 N.M. 386, 785 P.2d 726.	18
services. We therefore disagree with Defendants’ assertion that Emerald renders
Steinberg inapposite here.

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{15} 	With this in mind, Plaintiff adequately alleged its claims and provided	1
Defendants fair notice of the basis for those claims. Plaintiff’s complaint also	2
sufficiently alleged a duty, with language like the following: Defendants “and its	3
employees owed [Plaintiff] a duty to exercise reasonable care, skill, attention and	4
judgment and to act free of negligence in the performance of their work on the	5
[p]roject.” 	The 	complaint 	does 	not 	mention 	the 	contract 	in 	relation 	to 	the	6
subcontractors; however, it alleges the elements of negligence required: duty,	7
breach, and damages. See Thompson, 2012-NMCA-014, ¶ 18 (“It is axiomatic that	8
a negligence action requires that there be a duty owed from the defendant to the	9
plaintiff; that based on a standard of reasonable care under the circumstances, the	10
defendant breached that duty; and that the breach was a cause in fact and proximate	11
cause of the plaintiff’s damages.” (internal quotation marks and citation omitted)).	12
We therefore hold Plaintiff’s complaint sufficient to fulfill the notice pleading	13
requirements of this state as well as to establish a duty for its negligence claim. We	14
reverse the district court’s contrary determination.	15
III. 	Unjust Enrichment Claim	16
{16} 	Plaintiff’s final claim centers on unjust enrichment. Plaintiff alleged that	17
Defendants were unjustly enriched at Plaintiff’s expense when they were paid for	18
their defective work. The district court dismissed this claim on the grounds that	19
Plaintiff did not allege that it cannot recover from the general contractor, citing as	20

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authority a federal case. See Abraham v. WPX Energy Prod., LLC, 20 F. Supp. 3d	1
1244, 1276 (D.N.M. 2014) (holding that the existence of a contract between the	2
plaintiff and a different party “does not automatically bar the unjust enrichment	3
claim, but the plaintiff cannot pursue the unjust enrichment claim unless there is	4
something—bankruptcy, 	statutes—prohibiting 	the 	plaintiff 	from 	pursuing 	the	5
contract claim”). The district court reasoned that “New Mexico law allows a plaintiff	6
to pursue an unjust enrichment claim when the claim is the subject of a contract	7
between the plaintiff and a different party, but not when the plaintiff can obtain relief	8
by pursuing the contract claim.”	9
{17} 	Plaintiff responds on appeal that it is not barred from pursuing a claim for	10
unjust enrichment against the subcontractor Defendants, at least at the pleading stage	11
of a case, just because it has asserted claims against the general contractor, especially	12
when the case against the general contractor has not commenced and the outcome is	13
unknown. See Starko, Inc. v. Presbyterian Health Plan, Inc., 2012-NMCA-053,	14
¶ 91, 276 P.3d 252 (holding that the fact that a plaintiff is the party to a contract with	15
the defendant “does not foreclose a claim for unjust enrichment”), rev’d on other	16
grounds sub. nom., Starko, Inc. v. N.M. Hum. Servs. Dep’t, 2014-NMSC-033, ¶ 42,	17
333 P.3d 947. As Plaintiff sees it, that New Mexico law explicitly does not bar a	18
claim for unjust enrichment when there is a contract between a plaintiff and a	19
defendant means that New Mexico law likewise does not bar a claim for unjust	20

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enrichment claim when there is a contract between a plaintiff and a third party, such	1
as between Plaintiff and JMEC here. Furthermore, in response to the district court’s	2
reliance on Abraham, Plaintiff argues that because the present case is only at the	3
pleading stage, dismissing the unjust enrichment claim is premature since it is yet	4
uncertain whether Plaintiff will be able to recover from its arbitration proceedings	5
against JMEC.	6
{18} 	Defendant Four Winds responds that Plaintiff is merely “hedg[ing] against its	7
uncertain recovery in the arbitration with JMEC” and that such “is not a valid basis	8
for awarding equitable relief.” Similarly, Defendant MVT asserts that Plaintiff’s	9
cited cases do not support its unjust enrichment claim and that Plaintiff’s discontent	10
with the district court’s reliance on a nonprecedential case, Abraham, is unfounded	11
because Plaintiff at no point showed how Abraham was wrong. See 20 F. Supp. 3d	12
at 1276. Defendant MVT continues, repeating Defendant Four Winds’ argument and	13
adding that there is nothing barring Plaintiff’s breach of contract claim against JMEC	14
and that Plaintiff never alleged it could not recover from JMEC in this case, as it	15
needed to in order to pursue an unjust enrichment claim against Defendants per	16
Abraham.	17
{19} 	We acknowledge the nonprecedential but persuasive nature of Abraham. In	18
doing so, however, we must mention other similarly situated case law that is likewise	19
on point. In the Order Denying Motion to Dismiss, United States for use of Sierra	20

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Canyon Constr., LLC v. Markel Ins. Co., (No. 1:21-cv-00974-PJK-SCY), 2022 WL	1
541032, at *2 (D.N.M. Feb. 23, 2022), for example, the same federal district court	2
reasoned that New Mexico courts “have consistently employed unjust enrichment	3
remedies (and appear not to have adopted such a pleading rule[ that a party may not	4
recover on an unjust enrichment theory when an enforceable contract remedy	5
exists])”; from this, the court concluded “that it [was] premature to terminate the	6
unjust enrichment claim at this early stage of the litigation”—denying a motion to	7
dismiss for failure to state a claim. Id. The court further supported this decision by	8
explaining 	that 	“[r]ecovery 	[was] 	uncertain 	on 	either 	the 	contract 	or 	unjust	9
enrichment claim.” Id.; see Farmer v. Walmart, Inc., 729 F. Supp. 3d 1202, at *23	10
(D.N.M. Apr. 9, 2024) (order) (declining to apply Abraham and instead relying on	11
the holding in Sierra that a claim for unjust enrichment should not be dismissed at	12
the pleading stage even if the plaintiff has a separate contract claim: “[P]ermitting a	13
plaintiff to plead an unjust enrichment claim in the alternative to remedies at law is	14
permissible.”).	15
{20} 	As both Abraham and Sierra acknowledge, New Mexico courts have “long	16
recognized actions for unjust enrichment.” Ontiveros Insulation Co. v. Sanchez,	17
2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695. “To prevail on such a claim, one	18
must show that: (1) another has been knowingly benefitted at one’s expense (2) in a	19
manner such that allowance of the other to retain the benefit would be unjust. . . .	20

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The theory has evolved largely to provide relief where, in the absence of privity, a	1
party cannot claim relief in contract and instead must seek refuge in equity.” Id. ¶ 11.	2
{21} 	This is true perhaps especially at the early stages of proceedings, where a party	3
is entitled to advance alternative claims. See Rule 1-008(E)(2) NMRA (“A party	4
may set forth two or more statements of a claim or defense alternatively or	5
hypothetically, either in one count or defense or in separate counts or defenses.”).	6
Additionally, New Mexico adheres to liberal notice pleading standards, as discussed	7
above. See Petty, 1990-NMSC-021, ¶ 7.	8
{22} 	Taken together, this New Mexico law provides a sure enough footing upon	9
which to reverse the district court’s granting of Defendants’ motion to dismiss.	10
Neither the existence of a contract between Plaintiff and JMEC nor Plaintiff’s failure	11
to show that claims against JMEC are not recoverable foreclose Plaintiff from	12
pleading to recover an equitable remedy from subcontractor Defendants. Although	13
Defendant Four Winds argues that Plaintiff must first pursue its contractual remedies	14
against JMEC before asserting an unjust enrichment claim against Defendants, New	15
Mexico jurisprudence supports Plaintiff’s course thus far, recognizing that “equity	16
is reluctant to permit a wrong to be suffered without remedy.” See Ontiveros, 2000-	17
NMCA-051, ¶ 13 (internal quotation marks and citation omitted). New Mexico does	18
not automatically foreclose unjust enrichment claims, even when the basis of the	19
claim is also the subject of a contract with another party. See id. ¶¶ 20-22.	20

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CONCLUSION	1
{23} 	In conclusion, we make two additional observations. This opinion addresses	2
claims at the pleading stage in a complicated litigation involving multiple parties	3
with varying relationships—contractual and otherwise—and multiple proceedings.	4
Our holding is limited to the legal and factual sufficiency of Plaintiff’s pleadings	5
against Defendants. We express no opinion about the merits of the claims and have	6
not evaluated the allocation of responsibility for damages or the election of remedies.	7
We affirm the district court’s dismissal of the claim for breach of implied warranty;	8
we reverse the district court’s dismissal of the negligence and unjust enrichment	9
claims.	10
{24} 	IT IS SO ORDERED.	11
_____________________________	12
J. MILES HANISEE, Judge	13
WE CONCUR:	14
____________________________________	15
JACQUELINE R. MEDINA, Chief Judge	16
____________________________________	17
KATHERINE A. WRAY, Judge	18