August 12, 2014 – Charles E. Martin and Patricia G. Martin v. Comcast Cablevision Corporation of California, LLC, No. 32,199

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	August 12, 2014
NO. 32,199
CHARLES E. MARTIN and
PATRICIA G. MARTIN,
Plaintiffs-Appellants,
v.
COMCAST CABLEVISION
CORPORATION OF CALIFORNIA, LLC,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sheri A. Raphaelson, District Judge
J. Ronald Boyd
Santa Fe, NM
for Appellants
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward Ricco
Robert L. Lucero
Albuquerque, NM
for Appellee

OPINION
BUSTAMANTE, Judge.
{1} 	Charles 	and 	Patricia 	Martin 	(collectively, 	Appellants) 	sued 	Comcast
Cablevision Corporation of California, LLC (Comcast) for trespass. Having prevailed
in the district court, they now appeal the amount and nature of the damages awarded.
Appellants argue that the district court erred in awarding a lower amount for statutory
rent than they requested and in not awarding restitution for unjust enrichment or
punitive damages. We affirm.
BACKGROUND
{2} 	Appellants live on a residential lot located in White Rock, New Mexico. The
property is burdened by an easement along its east boundary within which stand two
utility 	poles. 	Two 	cables—one 	for 	electric 	power 	and 	one 	for 	telephone
service—were strung on the poles. In early May 1999 Mr. Martin noticed that a third
cable, which he identified as a cable television line, had been strung on the poles
without his knowledge or permission. 	The date the third cable was installed is
unknown. For ease of reference and because the electrical and telephone cables are
not at issue here, we will refer to the television cables as “the cable(s).”
{3} 	Mr. Martin immediately objected to the presence of the cable to Mickelson
Media, the predecessor in interest to Comcast. Roughly a month later, Mr. Martin

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delivered to Mickelson Media a letter demanding payment of rent of $800 per month
or removal of the cable. Later he proposed an alternate pricing scheme in which the
rent amount would be decreased or eliminated depending on Mickelson Media’s
satisfaction of certain conditions, such as placing the cable underground. After Mr.
Martin also threatened to remove the cable himself using a “pneumatic rotary cutter,”
Mickelson Media obtained an injunction barring Mr. Martin from removing the cable.
At least one additional cable was later installed.
{4} 	Comcast purchased Mickelson Media in 2000 or 2001 and became the owner
of the cables. 	Mr. Martin continued to object to the presence of the cables and
ultimately filed the present suit in 2009. After a bench trial, the district court entered
written findings of fact and conclusions of law in which it granted Appellants’ request
for ejection of the cables from their property, required all Comcast cable television
cables in Appellants’ subdivision to be buried, and awarded Appellants damages of
$200 per month “for diminished use and enjoyment of their property” running from
June 1999 until the cables are buried. Since it concluded that Comcast did not act
wilfully and deliberately, it denied Appellants’ request for $1 million in punitive
damages. 	With a few exceptions, which are addressed in our discussion of
Appellants’ arguments, Appellants do not challenge the district court’s findings of
fact. We therefore do not detail the unchallenged findings. An unchallenged finding

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of the district court is binding on appeal. See Stueber v. Pickard, 1991-NMSC-082,
¶ 9, 112 N.M. 489, 816 P.2d 1111.
{5} 	Finally, we note that the parties stipulated to amendment of the judgment to
reflect certain damages noted in the district court’s findings of fact but omitted from
the conclusions of law and final judgment. The district court entered a finding of fact
to the effect that Appellants are entitled “to collect statutory rent from [Comcast of]
$200 per month.” But neither the conclusions of law nor the final judgment reflect
this finding. Hence, after mediation of this issue, the parties agreed that the judgment
should be modified to reflect the district court’s finding of fact and that Appellants
could challenge the amount of the statutory rent on appeal.
DISCUSSION
{6} 	Appellants raise three issues on appeal. First, they maintain that the district
court should have awarded them statutory rent of $800 per month, rather than $200
per month. Second, they argue that the district court erred in not ordering Comcast
to pay $2000 per month as restitution for its unjust enrichment. Third, Appellants
argue that it was error to not award punitive damages. We address each argument in
turn.
Amount of Statutory Rent
{7} 	As outlined above, the parties stipulated that the district court’s conclusions of
law and the final judgment should have included an award for statutory rent in

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addition to the damages awarded for loss of enjoyment. 	They also stipulated that
Appellants could appeal the amount of statutory rent awarded. Consistent with the
stipulation, Appellants’ first argument is that the district court erred in finding
Comcast liable for statutory rent in the amount of $200 per month, rather than the
$800 per month that Appellants requested. They argue that the higher amount should
have been awarded because “[n]obody under New Mexico law can control the rent
[they] ask for” and “[t]he $800 per month rent is reasonable, considering the trouble
and expense Defendant has put [Appellants] through.” 	Appellants rely on NMSA
1978, Section 42-4-9 (1907), which states that “[i]f the plaintiff prevail[s in an
ejectment action], he shall recover for damages the value of the rents and profits of
such premises.” Since this language does not state whether the value should be based
on an objective standard or a subjective standard, Appellants maintain that the district
court should have ordered the amount set by Appellants.
{8} 	Appellants’ position—that their subjective assessment of appropriate rent must
be honored—is contrary to the purpose behind damages in ejectment, which is
compensation of the rightful possessor. 	See 28A C.J.S. Ejectment § 239 (2014)
(“Compensation constitutes the purpose and basis of damages in 	actions or
proceedings to recover mesne profits or damages in ejectment.”); Dan B. Dobbs, Law
of Remedies § 1.1, at 3 (2d ed. 1993) (“The damages remedy is a money remedy
aimed at making good the plaintiff’s losses.”). It is also contrary to the general rule

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that “compensation is ordinarily the fair or reasonable rental of the land for the
time . . . the defendant was in wrongful possession.” 	28A C.J.S. Ejectment § 239
(2014); accord Hertz v. Hertz, 1983-NMSC-004, ¶ 39, 99 N.M. 320, 657 P.2d 1169
(remanding to the district court to determine whether there had been an ouster of a
cotenant and, if so, to “consider[] the fair rental value of the property” in determining
the amount owed to the ousted cotenant); Dobbs, supra, § 5.8(2), at 530 (“The rental
market value of the land . . . represents the value of possession or use.”). Finally, it
runs against the principle that an award of damages must be based on evidence
adduced at trial, the corollary to which is that the amount of damages is an objective
measure. See Sanchez v. Martinez, 1982-NMCA-168, ¶ 20, 99 N.M. 66, 653 P.2d 897
(“A party seeking to recover damages has the burden of proving the existence of
injuries and resulting damage with reasonable certainty.”); Dobbs, supra, § 5.8(2), at
530 (“Rental value is ordinarily an objective measure, based on an estimate of the
price others would pay to rent the land, not on what the trespasser personally would
pay.”).
{9} 	Here, Mr. Martin testified that he asked Comcast for $800 per month “to get[]
them to . . . remove the cable from [his] yard.” He specified that the purpose of his
fee schedule was to get Comcast to remove their equipment, “not to collect rent.” He
also stated that he selected the $800 amount because he “wanted it to be big enough
so it was enough trouble for them to alleviate this problem by removing this cable

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from my property. I do not want to rent an easement.” Thus, by Mr. Martin’s own
admission, $800 per month is an amount a tenant would find so unreasonable that it
would prefer to remove the cables than keep them in place. We discern no error in the
district court’s rejection of this amount.
Unjust Enrichment
{10} 	Appellants next argue that the district court should have awarded restitution for
Comcast’s unjust enrichment in the form of a portion of the profits Comcast earned
by providing cable service while the cables ran across Appellants’ property. They
base this contention on the fact that the district court found that “[f]or the period of
time Defendant and its predecessor have been trespassing, they have been utilizing
[Appellants’] property for their financial gain, i.e., unjustly enriched. 	Their
enrichment has been at least $2,000 per month.” In spite of this finding, the district
court did not enter a conclusion related to restitution and the final judgment does not
include an order for restitution.
{11} 	“The restitutionary goal is to prevent unjust enrichment of the defendant by
making him give up what he wrongfully obtained from the plaintiff.” Dobbs, supra,
§ 1.1, at 4. Damages for unjust enrichment differ from compensatory damages in that
“[t]he measure of compensatory damages is the plaintiff’s loss or injury, while the
measure of restitution is the defendant’s gain or benefit.” Cent. Sec. & Alarm Co. v.
Mehler, 1996-NMCA-060, ¶ 12, 121 N.M. 840, 918 P.2d 1340; see Dobbs, supra,

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§ 1.1, at 4. 	Restitution is an equitable remedy. 	See Arena Res., Inc. v. Obo, Inc.,
2010-NMCA-061, ¶ 15, 148 N.M. 483, 238 P.3d 357.
{12} 	Because the district court entered a finding of fact specifically on unjust
enrichment, including the amount by which Comcast was enriched, it is possible that
omission of a corresponding conclusion of law and order for restitution was an
oversight as Appellants argue. Nevertheless, we conclude that restitution in the form
of profits is not appropriate in this case and therefore affirm. See Westland Dev. Co.
v. Romero, 1994-NMCA-021, ¶ 2, 117 N.M. 292, 871 P.2d 388 (“An appellate court
will affirm a lower court’s ruling if right for any reason.”). See Cont’l Potash, Inc. v.
Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858 P.2d 66 (stating
that while it is within the district court’s discretion to award equitable remedies,
“[s]uch discretion is not a mental discretion to be exercised as one pleases, but is a
legal discretion to be exercised in conformity with the law”).
{13} 	Here, since nothing was taken from the land, Comcast’s gain was simply the
rent-free use of Appellants’ land. 	Appellants’ argument rests on the premise that
Comcast benefitted unjustly because it earned income by providing cable service to
customers using the lines crossing Appellants’ property. But the provision of cable
television and resulting income were the product of Comcast’s business enterprise and
not the use of Appellants’ land. 	See Dobbs, supra, § 5.9, at 533 (“If the defendant
should be liable to make restitution of gains, they should be gains identified with the

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land, not gains resulting from his enterprise.”). Thus, the benefit to Comcast is better
understood as the savings it realized by using Appellants’ property without paying for
the privilege, i.e., the rental value of the land. 	See 42 C.J.S. Implied Contracts § 9
(2014) (“A ‘benefit’ for purposes of an unjust enrichment claim is any form of
advantage that has a measurable value including the advantage of being saved from
an expense or loss.”); Restatement (Third) of Restitution and Unjust Enrichment § 40
cmt. b (2011) (stating that “[the] more common form [of interference with property]
is that the defendant has made a valuable use of the [owner’s] property without paying
for it” and that “[t]o the extent that the defendant’s unjust enrichment may be
identified with ordinary rental value, the owner’s entitlement to restitution is captured
in the claim to damages for ‘use and occupation.’”); cf. Peters Corp. v. N.M. Banquest
Investors Corp., 2008-NMSC-039, ¶ 32, 144 N.M. 434, 188 P.3d 1185 (“The remedy
[of disgorgement] may not be used punitively, and thus a causal connection must exist
between the breach and the benefit sought to be disgorged.”).
{14} 	Because Appellants were awarded the rental value of the land in compensatory
damages, an additional award of rent for unjust enrichment would be duplicative.
“New Mexico does not allow duplication of damages or double recovery for injuries
received.” Hale v. Basin Motor Co., 1990-NMSC-068, ¶ 20, 110 N.M. 314, 795 P.2d
1006; see Cent. Sec. & Alarm Co., 1996-NMCA-060, ¶ 12 (“The plaintiff may be able
to pursue several theories of recovery; if liability is found on each, the plaintiff would

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be required to make an election among awards if duplication or double recovery
would otherwise result.”). 	We conclude that Appellants are not entitled to an
additional award of rent for unjust enrichment.
{15} 	Appellants rely on the concept of “mesne profits” to support their contention
that Comcast should pay $2000 per month of trespass on their property. 	“Mesne
profits” are “the profits which accrue between two given times—and [are] defined as
the value of use or occupation of land during the time it is held by one in wrongful
possession of it.” 25 Am. Jur. 2d Ejectment § 49 (2014). We are unpersuaded by
Appellants’ argument. There is nothing about mesne profits that exempts them from
the principle discussed above, which is that a plaintiff is entitled to no more than the
amount associated with the benefit derived from the wrongful use of the property
itself. See Dobbs, supra, § 5.8(2), at 531 (stating that cases in which “the trespasser’s
profits from occupation of the land exceed the rental value . . . raise difficult problems
in determining how much of the ‘profit’ is due to the defendant’s labor and how much
is due to the plaintiff’s property”); cf. 66 Am. Jur. 2d Restitution and Implied
Contracts § 2 (2014) (“The purpose of restitution-based claims, such as unjust
enrichment, is not punitive.”); Krejci v. Capriotti, 305 N.E.2d 667, 670 (Ill. App. Ct.
1973) (“The trial judge could therefore accurately determine the profits wrongfully
derived from the use of the land by measuring the fair market rental value for the
period of the trespass.”). 	Thus, we conclude that Appellants are not entitled to a

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portion of Comcast’s profits over and above the amount awarded for rental of their
property.
Punitive Damages
{16} 	Finally, Appellants argue that the district court erred when it denied their
request for punitive damages. 	They maintain that, although the district court
specifically concluded that Comcast had not acted “willfully and deliberately,” other
findings indicate behaviors that qualify for punitive damages. 	They also point to
evidence in the record that they believe supports an award of punitive damages. We
disagree that the district court’s findings are inconsistent with its conclusion or that
the evidence in the record requires an award of punitive damages.
{17} 	“We review a [district] court’s decision not to award punitive damages for
abuse of discretion, and we will only reverse that decision if it is contrary to logic and
reason.” Peters Corp., 2008-NMSC-039, ¶ 43 (internal quotation marks and citation
omitted). 	“In New Mexico, it is well settled that because the limited purpose of
punitive damages is to punish and deter persons from certain conduct, there must be
some evidence of a culpable mental state.” Paiz v. State Farm Fire & Cas. Co., 1994-
NMSC-079, ¶ 24, 118 N.M. 203, 880 P.2d 300 (internal quotation marks and citation
omitted). Hence, such damages are appropriate “only when the wrongdoer’s conduct
may be said to be maliciously intentional, fraudulent, oppressive, or committed
recklessly or with a wanton disregard of the plaintiffs’ rights.” 	Green Tree

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Acceptance, Inc. v. Layton, 1989-NMSC-006, ¶ 9, 108 N.M. 171, 769 P.2d 84
(internal quotation marks and citation omitted); see UJI 13-1827 NMRA. 	The
Uniform Jury Instructions provide further guidance on the conduct that warrants
punitive damages: “Malicious conduct is the intentional doing of a wrongful act with
knowledge that the act was wrongful. Willful conduct is the intentional doing of an
act with knowledge that harm may result. Reckless conduct is the intentional doing
of an act with utter indifference to the consequences.” 	UJI 13-1827. 	“[P]unitive
damages should only be awarded if the defendant’s culpability, after having paid
compensatory damages, is so reprehensible as to warrant the imposition of further
sanctions to achieve punishment or deterrence.” 	State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 419 (2003).
{18} 	Appellants point to a number of findings as evidence that the district court
found willful and deliberate conduct by Comcast. 	For instance, the district court
found that Comcast had “deliberately disregarded” a provision in the franchise
agreement requiring cables to be buried in certain neighborhoods and that after Mr.
Martin contacted Comcast to request removal of the cables, they were “uncooperative
and dismissive of his protest.” The district court also found that Comcast was aware
that it did not have permission to install cables on Appellants’ property as early as
May 1999 and that because Comcast violated the franchise ordinance and pole license,
its actions were illegal. None of the findings identified by Appellants involve the type

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of findings necessary to support a punitive damages award because the findings do not
pertain to the mental state required. We conclude that the district court’s conclusion
that Comcast’s conduct was not willful and deliberate is not inconsistent with its other
findings.
{19} 	As to Appellants’ argument that this Court should remand for entry of punitive
damages because there is evidence in the record supporting such an award, we note
that “[t]he question on appeal is not whether there is evidence to support an alternative
result but, rather, whether the [district] court’s result is supported by substantial
evidence.” Bagwell v. Shady Grove Truck Stop, 1986-NMCA-013, ¶ 23, 104 N.M.
14, 715 P.2d 462. 	We therefore examine the record for evidence that Comcast’s
conduct did not merit punitive damages rather than the evidence to which Appellants
direct us. See id. (“The appellate court, in reviewing the [district] court[’s] decision,
disregards all evidence and all inferences unfavorable to the [district] court’s result.”).
The area vice president of Comcast testified that “[i]t was [Comcast’s] understanding
that there was a utility easement that we were able to use [on Appellants’ property].”
He also indicated that, at the time Comcast responded to Appellants’ request to
remove the cables and based on advice by Comcast’s attorney, he understood that Los
Alamos County had granted Comcast the right to “use the Martin property for its
cables[.]” 	Comcast’s construction coordinator testified that after Appellants made
their objection to the cables known, he obtained a plat of the property from the county

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and discussed it with the construction manager. He testified that he understood the
plat to indicate that the poles were situated in a utility easement and that “the cable
provider, with a franchise agreement within the municipality, would have a right to
be within that utility corridor.” This evidence supports the district court’s conclusion
that Comcast’s conduct was not willful or deliberate. See Padilla v. Lawrence, 1984-
NMCA-064, ¶ 29, 101 N.M. 556, 685 P.2d 964 (affirming denial of punitive damages
where “[t]here [was] substantial evidence in the record to support the [district] court’s
refusal to award [them]”). The district court did not err in denying Appellants’ request
for punitive damages.
CONCLUSION
{20} 	For the foregoing reasons, we affirm.
{21} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
JAMES J. WECHSLER, Judge
__________________________________
M. MONICA ZAMORA, Judge