August 29, 2012 – Willis S. Muncey v. Eyeglass World, LLC, No. 29,813

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: August 29, 2012

NO. 29,813

WILLIS S. MUNCEY,
Plaintiff-A ppellee,

V.

EYEGLASS WORLD, LLC,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District J udge

Bauman, Dow & Le6n, P.C.
Christopher P. Bauman
Alberto A. Leon

Bnan G. Grayson

Albuquerque, NM

Rose Bryan, P.C.
Rose Bryan

Albuquerque, NM
for Appellee
Modrall, Sperling, Roehl, Hamis & Sisk, P.A.

Emil J. Kiehne
Albuquerque, NM

Reed Smith LLP
Raymond A. Cardozo
San Francisco, CA

for Appellant

OPINION
SUTIN, Judge.
{1} 	A jury awarded Dr. Willis Muncey compensatory and punitive damages against
Eyeglass World, LLC, totaling $2,300,002 for breach of contract and for a tort claim
based upon conversion of his patient files. 	Eyeglass World primarily attacks the
verdict on grounds of lack of substantial evidence and excessive punitive damages.
Eyeglass World also asserts that the Copyright Act, 17 U.S.C. § 301(a) (1998),
preempted the district court from having subject matter jurisdiction. We hold that the
district court properly exercised subject matter jurisdiction in this case. We further
hold that the evidence and applicable law support the damages awards.
BACKGROUND
{2} 	Eyeglass World provides optical products and services at retail stores. 	In
conjunction with its optical business, Eyeglass World leases an adjoining portion of
its retail space to a contract optometrist who is available to examine patients on-site
and provide prescriptions to patients for eyeglasses or contacts that can be prepared
on-site. 	The optometrist is recognized as an independent contractor; all other
personnel are Eyeglass World employees that work in both on-site businesses within
the store. Dr. Muncey was an optometrist at one of Eyeglass World’s stores.

2
{3} 	Over a period of several months in 2005, Eyeglass World and Dr. Muncey held
negotiations in regard to the termination of their contractual relationship. Disputes
followed regarding whether Eyeglass World had agreed to buy out Dr. Muncey’s
remaining contract or whether it had agreed to purchase his patient files, and also
regarding whether the negotiations were successful in reaching a final binding
agreement. Dr. Muncey believed that he and Eyeglass World had created a binding
agreement for the purchase of Dr. Muncey’s practice and his patient files for
$300,000. When Eyeglass World never implemented what Dr. Muncey believed was
the agreement, Dr. Muncey filed suit for breach of contract. The parties then again
entered into negotiations and, effective July 31, 2006, signed three contracts: (1) a
Termination Agreement, under which Dr. Muncey agreed to dismiss his pending
lawsuit and the parties terminated their previous written contract and any oral
agreement; (2) a Professional Services Agreement; and (3) a Lease Agreement that
contained a new revenue sharing arrangement and space leased to Dr. Muncey (the
lease agreement). 	The lease agreement also provided that Dr. Muncey was to
“maintain full and independent responsibility and control over all files and records
relating to [his] patients[.]”
{4} 	Soon afterward, Dr. Muncey asserted that Eyeglass World failed to implement
and comply with the terms of the lease agreement. As a result, he refused to dismiss

3
his pending breach of contract lawsuit and emailed Eyeglass World to complain that
the lease agreement was void because Eyeglass World never fully implemented it.
Eyeglass World responded that the lease agreement was not void, although it had yet
to fully implement that agreement. Eyeglass World continued paying Dr. Muncey the
per diem payable under his former contract and did not pay Dr. Muncey based on the
revenue-sharing provision set out in the lease agreement. The parties’ relationship
continued to deteriorate and Dr. Muncey informed Eyeglass World that he was
terminating their relationship and vacating the premises effective April 20, 2007.
{5} 	An April 17, 2007, letter from Dr. Muncey’s attorney to Eyeglass World’s
attorney stated that, “[a]s a gesture of goodwill, Dr. Muncey will attempt to provide
doctor coverage from now through the end of May[] 2007[,] in order to give
[Eyeglass] World sufficient time to find his replacement.” The letter did not mention
patient files. Dr. Muncey explained at trial that when he stopped working at Eyeglass
World he left his patient files at Eyeglass World so that replacement optometrists
would have access to the files until his coverage duties at Eyeglass World ended on
May 30, 2007. Dr. Muncey also stated at trial that the files were voluminous and that
he was trying to develop a way to house them and easily access them for his use. Dr.
Muncey did not explain any of this to Eyeglass World when he vacated the premises.
The files numbered approximately twenty thousand and included an electronically

4
stored patient list consisting of contact and prescription information and purchase
history, and a paper file containing the optometrist’s examination notes, patient
history, and similar information.
{6} 	By June 7, 2007, Eyeglass World had spent several weeks and approximately
$6,000 copying the patient files at night. Before copying the files, Eyeglass World
consulted with the company’s corporate attorney who advised that copying the files
would not violate New Mexico law, the lease agreement, or the Health Insurance
Portability and Accountability Act of 1996 (HIPAA). Eyeglass World did not inform
Dr. Muncey that it was copying the patient files, nor did Eyeglass World seek his
authorization to access or copy the files. Eyeglass World concluded its copying of the
files on July 10, 2007, and placed the files in a storage room.
{7} 	Dr. Muncey became aware that Eyeglass World was in the process of copying
his files sometime in mid-June 2007. 	Acting on the advice of his attorney, Dr.
Muncey did not contact Eyeglass World or demand that they stop copying the files.
Dr. Muncey explained that he did not demand that the copying immediately stop, nor
did he pick up the files because he “was advised to not go near that[,]” and he left
them there at the advice of his attorney. Dr. Muncey also never asked that Eyeglass
World return the original files or the copies. 	At no time was Dr. Muncey denied
access to the files or restricted from picking up any files. Except for a portion of the

1 The record does not reflect any activity between December 2007 and May
2008 other than a request for hearing on the motion to amend, a setting on the motion,
and a stipulated order vacating the hearing because the court had granted the motion
5
patient files relating to LASIK, Dr. Muncey made no arrangements to retrieve any of
the files and made no request that any files be returned to him.
{8} 	In late June 2007, Dr. Muncey sought reinstatement of his breach of contract
case on the district court docket in order to determine his rights and damages for
Eyeglass World’s alleged failure to comply with the lease and termination agreements.
During July and August 2007, the parties, through their attorneys, engaged in
correspondence regarding the files, as we set out in detail later in this Opinion. In
September 2007, Eyeglass World submitted a complaint to the State Regulation and
Licensing Department, Compliance Section, addressed to the Optometry Board,
regarding Dr. Muncey’s refusal to collect his files after Eyeglass World requested that
he get them.
{9} 	The court granted reinstatement of Dr. Muncey’s case in August 2007, after
which, in December 2007, Dr. Muncey filed a motion for leave to file an amended
complaint (1) alleging that Eyeglass World, between June 12 and June 31, 2007,
obtained possession of and copied his patient files attempting to assert control over
the files and to avoid having to pay Dr. Muncey $300,000 for his files; and (2) adding
a claim in conversion. The amended complaint was filed in May 2008.1

in November 2007.
6
{10} 	At trial, in June 2009, Dr. Muncey argued two different theories for his claim
of conversion. 	First, he asserted that by copying the patient files without his
permission, Eyeglass World acted “in defiance of his right of exclusive control over
the files.” Second, Dr. Muncey argued that copying the files for use by another doctor
constituted an “unauthorized and injurious use of his property.” The use was injurious
because, in Dr. Muncey’s own words, the “records are the value[,]” and as stated by
Dr. Muncey’s attorney, “once those files were copied and were used by another
optometrist, they represent[ed] little or no value to him.” Ultimately, the jury awarded
Dr. Muncey $2,300,002, consisting of $1 on his breach of contract claim, $300,000
on his conversion claim, and $2,000,001 as punitive damages on the conversion claim.
This appeal involves only the compensatory and punitive damages awards relating to
the conversion claim.
DISCUSSION
I. 	JURISDICTION
{11} 	State law claims are preempted under § 301 of the Copyright Act if: “(1) the
work is within the scope of the ‘subject matter of copyright’ as specified in 17 U.S.C.
§ 102 [(1990)], § 103 [(1976)]; and (2) the rights granted under state law are
equivalent to any exclusive rights within the scope of federal copyright as set out in

7
17 U.S.C. § 106 [(2002)].” Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir. 1985). We
review de novo whether § 301 of the Copyright Act preempts a conversion under New
Mexico state law, which presents a question of law. 	17 U.S.C. § 301(a); Trandes
Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 658 (4th Cir. 1993).
A. 	The Scope of the Copyright Act
{12} 	Eyeglass World argues that the Copyright Act preempts Dr. Muncey’s
conversion claim because medical records fall within the general subject matter of
copyright. We are unpersuaded. Congress provided copyright protection only for
“original works of authorship fixed in any tangible medium of expression[.]” 	17
U.S.C. § 102(a). As such, “[t]he sine qua non of copyright is originality. To qualify
for copyright protection, a work must be original to the author.” Feist Publ’ns, Inc.
v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). The Copyright Act identifies the
type of original works that merit protection, but it is silent on the topic of confidential
medical records or patient charts. See 17 U.S.C. § 102(a)(1) to (8). This silence is
significant, as is the absence of case law considering patient charts as potentially
worthy of copyright protection. In fact, the parties have pointed us to only one case
that specifically considers medical records in the context of the Copyright Act. That
case, Shloss v. Sweeney, described medical records as “non-copyrightable fact works.”
515 F. Supp. 2d 1068, 1080 (N.D. Cal. 2007). We agree.

8
{13} 	“Originality is a constitutional requirement” and means that the work is an
“independent creation plus a modicum of creativity[.]” 	Feist, 499 U.S. at 346.
Accordingly, “[f]acts, whether alone or as part of a compilation, are not original”
because they do not present the requisite level of creativity. 	Id. at 350, 358; see
Regents of the Univ. of Minn. v. Applied Innovations, Inc., 685 F. Supp. 698, 707 (D.
Minn. 1987) (denying copyright to “forms of expression dictated solely by functional
characteristics because such material does not exhibit the minimal level of creativity
necessary to warrant copyright protection”), aff’d, 876 F.2d 626 (8th Cir. 1989).
Originality requires the exercise of some individual judgment. 	The United States
Supreme Court held that local laws mandating the recording or creation of a
compilation of facts generally preclude finding any element of originality and
creativity. 	See Feist, 499 U.S. at 363 (explaining that the state regulations that
required a phonebook publisher to “select to publish the names and telephone numbers
of its subscribers” precludes individuality because this selection was dictated by state
law, not by the phonebook publisher (internal quotation marks omitted)).
{14} 	We conclude that the patient files are fact works that lack originality and do not
fall within the general scope of copyright protection. Dr. Muncey testified that “[t]he
patient file has got all kinds of medical information, and it’s got [s]ocial [s]ecurity
numbers in it. It’s got patient history . . . along with all their current prescriptions,

9
past prescriptions, and whatever services have been provided.” Another optometrist
described his patient files as “charts” and explained that “[t]hey contain . . . the exam
recordings and things of that nature, notices to patients about procedures.” There is
nothing in the record that indicates that any form of expression or creativity was
involved in creating the fact-based patient files. Dr. Muncey argues that “[t]he patient
charts in this case are a systematic gathering of factual information about the patient
provided by the patient[.]” We agree that this is a fact-based compilation of patient
information. As in Feist, state law requires a physician to keep and maintain patient
medical records. 	See 16.10.8.7 NMAC (7/15/01) (amended 9/27/07) (“A medical
record must be generated[.]”). Accordingly, we hold that the law does not support
Eyeglass World’s attempt to preempt Dr. Muncey’s conversion claim on the basis that
the files fall within the general scope of § 102 of the Copyright Act.
B. 	Equivalence to the Federal Copyright Act
{15} 	Having determined that the patient files do not fall within the general scope of
copyright protection, the second element of copyright-preemption analysis requires
us to determine whether “the rights granted under state law are equivalent to any
exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106.”
Ehat, 780 F.2d at 878. 	Eyeglass World argues that the elements of Dr. Muncey’s
conversion claim are equivalent to the elements of copyright infringement because

10
“[t]he right to prevent copying is not a different right than those protected by federal
copyright law.” 	In response, Dr. Muncey asserts that his claim is based on his
exclusive rights to the physical patient files rather than his rights to the data contained
in the files. We determine that the rights to exclusive ownership of tangible property
are not equivalent to the rights protected by the Copyright Act.
{16} 	“[W]hen a state law violation is predicated upon an act incorporating elements
beyond mere reproduction or the like, the rights involved are not equivalent and
preemption will not occur.” 	Id. (internal quotation marks and citation omitted).
Accordingly, “if a state cause of action requires an extra element, beyond mere
copying, . . . then the state cause of action is qualitatively different from, and not
subsumed within, a copyright infringement claim[.]” 	Gates Rubber Co. v. Bando
Chem. Indus., Ltd., 9 F.3d 823, 847 (10th Cir. 1993). 	Courts have distinguished
tangible physical property from intangible property for the purposes of preemption
analysis. This distinction holds that there is no extra element beyond copying when
the object of a conversion claim is intangible. 	Compare Ehat, 780 F.2d at 878-79
(preempting a claim of reproduction and interference “with an intangible literary or
artistic property right” as the equivalent of copyright), and Daboub v. Gibbons, 42
F.3d 285, 289-90 (5th Cir. 1995) (preempting a conversion claim when the defendants
had allegedly improperly copied a song), with Asunto v. Shoup, 132 F. Supp. 2d 445,

11
452 (E.D. La. 2000) (finding conversion of royalties for recordings qualitatively
different from a copyright claim because “the object of the conversion [was]
tangible”), and Carson v. Dynegy, Inc., 344 F.3d 446, 456 (5th Cir. 2003) (“The
elements of conversion of physical property are, therefore, qualitatively different than
those of copyright infringement.”).
{17} 	Eyeglass World asserts that Dr. Muncey’s conversion claim is equivalent to
copyright infringement because the claim is based upon copying the intangible data
in the patient files and not based upon an alleged deprivation of his right to access or
use the files. 	At trial, Dr. Muncey argued that Eyeglass World used the files “in
defiance of his right of exclusive control over [them]” and that such use was
“unauthorized and injurious.” As discussed in more detail later in this Opinion, the
jury was instructed as to these theories of conversion and this Court will address his
claims based on the deprivation of his right to use and access the files. Additionally,
Dr. Muncey expressly argues in his supplemental answer brief that his claim is based
on his exclusive right to access, control, and use the tangible patient files, and not his
rights to the intangible data contained in them.
{18} 	Because the object of Dr. Muncey’s claim was his exclusive right to access,
control, and use the physical files, the act of copying the files, without more, was not
presented to the district court as the basis for Dr. Muncey’s conversion claim. 	To

12
prove this element of his claim, Dr. Muncey necessarily relied on one factor similar
to a Copyright Act claim: Eyeglass World’s unauthorized reproduction of the files.
But preemption analysis “compare[s] the elements of the causes of action, not the facts
pled to prove them.” Harolds Stores, Inc. v. Dillard Dep’t. Stores, Inc., 82 F.3d 1533,
1543 (10th Cir. 1996). 	We must, therefore, focus our preemption analysis on the
elements of Dr. Muncey’s conversion claim. These elements are: “[(1)] the unlawful
exercise of dominion and control over personal property belonging to another in
exclusion or defiance of the owner’s rights, or [(2)] acts constituting an unauthorized
and injurious use of another’s property [.]” Nosker v. Trinity Land Co., 107 N.M. 333,
337-38, 757 P.2d 803, 807-08 (Ct. App. 1988). These elements deal with access to
and use of tangible medical records and are unquestionably separate from the elements
required to present a claim of copyright infringement. As such, we conclude that the
conversion claim, concerned with dominion or interference with ownership rights in
tangible property, is not equivalent to the elements of copyright infringement.
Accordingly, the Copyright Act does not preempt Dr. Muncey’s conversion claim for
tangible property and this Court has jurisdiction over the appeal.

13
II. 	MERITS
{19} 	We have consolidated Eyeglass World’s points on appeal related to conversion
and damages into two points. First, Eyeglass World asserts that its copying of Dr.
Muncey’s patient files, without more, did not constitute conversion and, therefore, the
verdict and judgment should be reversed. In support of this point, Eyeglass World
argues that no substantial evidence exists to establish that the copying proximately
caused the files to lose value. Independently and alternatively, Eyeglass World argues
that no substantial evidence exists to support the conversion elements of (1) exclusion
or defiance, or (2) unauthorized and injurious use. Eyeglass World also argues that,
at a minimum, the compensatory damages awarded for conversion should be remitted.
{20} 	Second, in seeking to strike or remit the punitive damages award Eyeglass
World asserts that insufficient evidence existed to permit punitive damages; that the
amount awarded was excessive and violated due process; and that at least $1 million
of the award was based on Dr. Muncey’s improper injection in closing argument of
an unpleaded legal theory on which the jury was not instructed. Eyeglass World also
argues that if none of these grounds prevail, this Court should remit the award as the
product of passion and prejudice.
{21} 	“Substantial evidence is such relevant evidence that a reasonable mind would
find adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138,

14
802 P.2d 1283, 1284 (1990). The evidence is viewed in a light most favorable to the
prevailing party, disregarding evidence and inferences to the contrary. 	Montoya v.
Torres, 113 N.M. 105, 109, 823 P.2d 905, 909 (1991). The appellate court resolves
all conflicts in the evidence in favor of the decision below. Nava v. City of Santa Fe,
2004-NMSC-039, ¶ 10, 136 N.M. 647, 103 P.3d 571; Insure N.M., LLC v. McGonigle,
2000-NMCA-018, ¶ 8, 128 N.M. 611, 995 P.2d 1053. 	In reviewing a substantial
evidence claim, “[t]he question is not whether substantial evidence exists to support
the opposite result, but rather whether such evidence supports the result reached.” Las
Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M.
329, 940 P.2d 177. “Additionally[,] we will not reweigh the evidence nor substitute
our judgment for that of the fact finder.” Id. “Jury instructions become the law of the
case against which the sufficiency of the evidence is to be measured.” 	Atler v.
Murphy Enters., Inc., 2005-NMCA-006, ¶ 13, 136 N.M. 701, 104 P.3d 1092 (internal
quotation marks and citation omitted).
A. 	Conversion and Compensatory Damages
{22} 	Conversion is “the unlawful exercise of dominion and control over personal
property belonging to another in exclusion or defiance of the owner’s rights, or acts
constituting an unauthorized and injurious use of another’s property, or a wrongful
detention after demand has been made.” Nosker, 107 N.M. at 337-38, 757 P.2d at 807-

15
08; see also Case Credit Corp. v. Portales Nat’l Bank, 1998-NMSC-035, ¶ 13, 126
N.M. 89, 966 P.2d 1172 (Minzner, J., dissenting) (stating that “Nosker defined at least
three different types of conversion, focusing on conversion by demand and refusal”);
Taylor v. McBee, 78 N.M. 503, 506, 433 P.2d 88, 91 (Ct. App. 1967) (“Conversion
is the wrongful possession of, or the exercise of dominion over, a chattel to the
exclusion or in defiance of the owner’s right thereto; or an unauthorized and injurious
use thereof; or the wrongful detention after demand therefor by the owner.”). We note
that our Supreme Court has also similarly defined conversion. See In re Yalkut, 2008-
NMSC-009, ¶ 25, 143 N.M. 387, 176 P.3d 1119 (stating that, similar to a
misappropriation of property, “conversion is the unlawful exercise of dominion and
control over property belonging to another in defiance of the owner’s rights, or acts
constituting an unauthorized and injurious use of another’s property, or a wrongful
detention after demand has been made” (alteration, internal quotation marks, and
citation omitted)).
{23} 	In Frank Bond & Son, Inc. v. Reserve Minerals Corp., 65 N.M. 257, 261, 335
P.2d 858, 861 (1959), our Supreme Court adopted the Restatement’s 	measure of
damages for conversion.
“Where a person is entitled to a judgment for the conversion of a
chattel or the destruction of any legally protected interest in land or other
thing, the damages include

16
. . . the exchange value of the subject matter or the plaintiff’s interest
therein at the time and place of the conversion or destruction, or a
different value where that is necessary to give just compensation[.]”
Id. 	(quoting Restatement (First) of Torts § 927 (1939)); 	see also Cornell v.
Albuquerque Chem. Co., 92 N.M 121, 125, 584 P.2d 168, 172 (Ct. App. 1978) (stating
that, in Frank Bond & Son, Inc., New Mexico adopted the Restatement measure of
damages for conversion of a chattel), abrogated on other grounds by Albuquerque
Concrete Coring Co. v. Pan Am Servs., Inc., 118 N.M. 140, 879 P.2d 772 (1994). In
Valley Chevrolet Co. v. Whitaker, 76 N.M. 488, 490, 416 P.2d 154, 155 (1966), the
Court stated that “[i]n a conversion action, where the property has not been returned
to the owner, the measure of damages is the value of the property at the time of
conversion with interest.” Citing Valley Chevrolet Co., in Crosby v. Basin Motor Co.,
83 N.M. 77, 79, 488 P.2d 127, 129 (Ct. App. 1971), this Court followed suit.
{24} 	Because the jury instructions bear on the issues, we turn to the jury instructions
and law of the case. Afterward, we discuss substantial evidence and other arguments
related to the issues.

17
1. 	The Conversion Jury Instructions
{25} 	New Mexico does not have uniform jury instructions specifically on the tort of
conversion. 	The jury was instructed that, to establish a claim of conversion, Dr.
Muncey had the burden of proving that:
[(1)] 	. . . Eyeglass World unlawfully exercised dominion and
control over the patient files that belonged to [Dr.] Muncey
in exclusion or defiance of his rights, or
[(2)] 	. . . Eyeglass World’s actions in copying the patient files
constituted an unauthorized and injurious use of [Dr.]
Muncey’s property[.]
The court further instructed the jury that “[c]onversion is defined as the unlawful
exercise of dominion and control over personal property belonging to another in
exclusion or defiance of the owner’s rights, or acts constituting an unauthorized and
injurious use of another’s property.”
{26} 	We see no indication that Eyeglass World specifically objected to the language
in these instructions. Rule 1-051(I) NMRA requires that to preserve an error in jury
instructions, “objection must be made to any instruction given, whether in UJI Civil
or not; or, in case of a failure to instruct on any point of law, a correct instruction must
be tendered, before retirement of the jury.” An objection cannot be made in general
terms. It is necessary to inform the district court of the specific error so it may have
the opportunity to correct the error. Echols v. N.C. Ribble Co., 85 N.M. 240, 246, 511

18
P.2d 566, 572 (Ct. App. 1973). The court must be sufficiently advised of the specific
error raised on appeal. Atler, 2005-NMCA-006, ¶ 11.
{27} 	The instructions given to the jury contained only two of the three different types
of conversion, namely, the exclusion or defiance type and the unauthorized and
injurious 	use 	type. 	The 	instructions 	did 	not 	contain 	what 	Justice 	Minzner
characterized as the “conversion by demand and refusal” type which, according to
Justice Minzner, was the type of conversion on which Nosker focused. 	See Case
Credit Corp., 1998-NMSC-035, ¶ 13 (Minzner, J., dissenting). 	One of Eyeglass
World’s arguments on appeal is that Dr. Muncey’s conversion claim failed because
Dr. Muncey did not make a demand that Eyeglass World turn the files over. Eyeglass
World contends that the demand requirement was essentially an element in the
exclusion 	or 	defiance 	type 	of 	conversion. 	Its 	reasoning 	is 	that, 	under 	the
circumstances in this case, there was no exclusion or defiance without Dr. Muncey’s
“demand for the return of [the] allegedly converted property when [Eyeglass World]
originally came into possession of that property lawfully.”
{28} 	Eyeglass World misreads the instruction given to the jury. No instruction sets
out law relating to whether the party charged with conversion originally came into
possession of the property lawfully. 	And Eyeglass World did not request such an
instruction. 	Furthermore, conversion by demand and refusal was not a form of

19
conversion given to the jury. 	The only types of conversion as to which evidence
sufficiency is at issue were the exclusion or defiance type and the unauthorized and
injurious use type as set out in the district court’s instruction. 	Since demand and
refusal presumably constitute one of these different or separate ways to prove
conversion under our case law, that demand is not a prerequisite to establishing
exclusion or defiance.
2. 	Eyeglass World’s Tendered Conversion-Related Instruction
{29} 	Eyeglass World did request an instruction relating to conversion that the court
rejected. The instruction stated that there is no exclusion or defiance, or injurious use,
“when a party copies the records, with or without authorization, and returns the
original records or makes the original records available to the other party that claims
entitlement to those records.” 	Printed at the bottom of the page of the proffered
instruction was a string citation to four cases with no parenthetical explanation of the
cases’ content or pertinence.
{30} 	At trial, Eyeglass World’s attorney addressed the court’s anticipated conversion
instruction and Eyeglass World’s requested instruction in the following limited
manner: “On the conversion instruction, we do not believe there is sufficient evidence
to allow this to go to the jury, on these issues, and we object to . . . not including the
instruction that we did that deals with defining what is the exclusion or defiance and

20
the injurious use.” 	In its brief in chief on appeal, Eyeglass World repeats that its
requested instruction was for the purpose of explaining the terms “exclusion or
defiance” and “injurious use[,]” terms that were not “household concepts[.]”
{31} 	Eyeglass World goes further, however, and attempts to explain, in this Court,
what it failed or chose not to explain in the district court. 	Thus, only now does
Eyeglass World explain why several cases, including those cited in its requested
instruction, support a rejection of “the notion that conversion liability attaches upon
an unauthorized copying alone, in the absence of affirmative plaintiff efforts to
reclaim the files.” Eyeglass World broadly argues that “conversion liability cannot
attach based on unauthorized file copying alone, and must instead attach only if the
copying is either followed by use or a refusal to return the files.” Its argument in this
regard is based on a contested factual premise that it lawfully came into possession of
the original files, and on an assertion that “the tort of conversion is premised on a
property deprivation[,]” and therefore there could be no conversion because the
copying was not “a real and substantial property deprivation,” but instead was a mere
“temporary dispossession[]” of property “that easily could have been nipped in the
bud.”
{32} 	What we see is a requested instruction that sets out a legal theory of conversion
that was inconsistent with and contrary to that which the district court was to give the

21
jury. 	Specifically, Eyeglass World’s requested instruction directed the jury that it
could not find or conclude that a conversion occurred by the mere copying of the
original files, whether authorized or not, as long as Eyeglass World tendered the
original files to Dr. Muncey. Yet counsel did not explain in the district court that, in
reality, Eyeglass World’s requested instruction was inconsistent with or intended to
replace the court’s anticipated instruction. 	Rather, Eyeglass World tendered the
instruction in the guise of a simple explanatory instruction intended to “define” certain
terms. Thus, it is only later, on appeal, and not at the appointed time for objecting to
instructions that Eyeglass World mixes its expressed purpose with its implicit purpose,
confirming that the instruction was simply explanatory, while arguing, based on the
cases cited on the instruction, a legal theory essentially stating to the jury that the
claim of conversion could not be established under the court’s instruction.
{33} 	To the extent Eyeglass World is attempting to assert error in refusing its
requested instruction, we reject the attempt. Based on the bare-boned objection made
at trial to the failure to give the instruction, the court did not err in refusing it. The
proffered instruction did not correctly define or explain the terms. Further, Eyeglass
World failed to specifically object to the district court’s conversion instruction on the
ground or theory that the instruction erroneously stated the law; the only objection
was that the evidence did not support the court’s instruction. And, further, Eyeglass

2 The cases, as Eyeglass World cited them, and in its brief in chief added
parentheticals, are the following: Pearson v. Dodd, 410 F.2d 701, 703, 706 (D.C. Cir.
1969) (determining that there was no conversion although the plaintiff’s documents
were copied and copies were given to and published by the press and that conversion
could not be established where “intermeddling falls short of the complete or very
substantial deprivation of possessory rights in the property”); Furash & Co. v.
McClave, 130 F. Supp. 2d 48, 58-59 (D.D.C. 2001) (determining that there was no
conversion where the owner was not “deprived of the beneficial use” of copied
documents); A & G Research, Inc. v. GC Metrics, Inc., No. 05870/2007, 2008 WL
2150110, at *26 (N.Y. Sup. Ct. May 21, 2008) (stating that “[a]lthough [the
d]efendants copied [the p]laintiff’s computer data and uploaded such data on their
own computer system, an essential element of conversion is that the owner of the
property is excluded from use thereof”); Alpha Funding Group, Inc. v. Aspen Funding
LLC, No. 19204/07, 2007 WL 3375871, at *7 (N.Y. Sup. Ct. Oct. 29, 2007)
(determining that there was no conversion where the plaintiff retained possession of
customer information and “could have . . . solicited . . . customers and attempted to
retain them”; finding “no unauthorized possession . . . to the exclusion of the rights
22
World has not sought reversal on appeal based specifically on any asserted error in
refusing the requested instruction. The only ground for reversal that Eyeglass World
has argued in regard to the conversion instruction is insufficiency of the evidence.
{34} 	Even were we to look into whether Eyeglass World’s requested instruction was
a correct statement of law, we would hold that the court did not err in refusing it. The
cases Eyeglass World cited to support the instruction do not, in our view, require a
conclusion that the conversion instruction that the court ultimately gave to the jury
was an incorrect statement of the law. 	Furthermore, the cases are factually
distinguishable and were not decided under the law set out in the district court’s
conversion instructions in this case. 2

of [the plaintiff]”).
3 This instruction was presumably taken from UJI 13-1814 NMRA found in
Chapter 18, Damages, Part B, Property Damages, Elements of the civil instructions,
which reads “In determining property damage, if any, you may award the difference
between the fair market value of the damaged personal property immediately before
the occurrence and its fair market value immediately after the occurrence.”
4 This instruction was presumably taken from UJI 13-860 NMRA found in
Chapter 8, Contract and UCC Sales of the civil instructions, which reads the same.
23
3. 	The Measure of Damages Instruction
{35} 	The damages instruction stated that if the jury should decide in Dr. Muncey’s
favor on the conversion claim, it “may award the difference between the fair market
value of the converted personal property immediately before the conversion and its
fair market value immediately after the conversion.”3 The jury was also instructed
that Dr. Muncey had the burden of proving that the conversion was a proximate cause
of his damages. Finally, the jury was instructed that “[a] party may not recover as
damages any cost or loss which he reasonably could have avoided.”4
{36} 	For an unexplained reason, the parties and the district court in this case agreed
to the before-and-after-market value measure of damages reserved for injury to
property instead of the conversion measure of damages set out in New Mexico case
law. We will view the given instruction to intend a measure of damages in conversion
in conformity with the New Mexico cases as set out earlier in this Opinion, namely,
the value of the property at the time of conversion. Read in that manner, the question

24
arises whether, as Eyeglass World contends, Dr. Muncey was required to prove an
impairment of value from Eyeglass World’s actual use of the files apart from the mere
act of copying.
{37} 	Eyeglass World construes the measure of damages instruction to require “proof
not merely of the files’ value, but of an impairment in value.” Eyeglass World asserts
that a value-at-conversion (copying) measure of damages “makes no sense” in the
context of this case, arguing that the measure is “derived from forced sale cases[.]”
Thus, it gives no credence to Dr. Muncey’s position that the value was lost simply
upon copying the files. Eyeglass World argues that “[i]f copying alone permits [Dr.
Muncey] to recover the files’ full value, then [Eyeglass World] would owe [Dr.
Muncey] the files’ full value even if [he] had demanded the return of all originals and
copies the day after the copying and [Eyeglass World] had complied.” 	We are
unpersuaded by this argument.
{38} 	In regard to “use,” the jury was instructed that, to prove conversion, Dr.
Muncey had only to establish that “Eyeglass World’s actions in copying the patient
files constituted an unauthorized and injurious use of [Dr.] Muncey’s property[.]”
(Emphasis added.) Thus, for a determination of conversion, the jury was permitted
to find that the act of copying alone was an injurious use that constituted a
compensable injury. The jury was not required to find that Eyeglass World actually

25
used the files in some manner after copying them in order to determine that a
conversion occurred for which damages could be awarded. Eyeglass World did not
request an instruction that required Dr. Muncey to prove that only an unauthorized or
injurious use beyond or after copying could trigger damages based on conversion.
Eyeglass World was duty bound to raise its issue with the conversion-related
instructions before the instructions were given to the jury. 	Therefore, it failed to
preserve its argument that measuring damages based on the value of the property at
the time of conversion was inapplicable in this case.
{39} 	In regard to use, if the jury’s determination of conversion was based on the
unauthorized and injurious use type of conversion, it would follow pursuant to New
Mexico law that the measure of damages was the value of the files at the time of
copying the original files. Once the jury determined, based on substantial evidence,
that that value was $300,000, the jury was not required to go further and determine
that the value was “impaired” by some use after the original files were copied. In the
circumstances of this case and based on how the jury was instructed for damages
purposes, the jury could determine the value at conversion, which was the point at
which the original files were copied.
4. 	The Law of the Case

26
{40} 	The instructions that were given to the jury became the law of the case on the
conversion claim with respect to both the definition and elements of conversion and
the basis for determining damages if conversion were proved. 	See Atler, 2005-
NMCA-006, ¶ 13 (“Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” (internal quotation marks and citation
omitted)); see also Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 33,
142 N.M. 150, 164 P.3d 31 (recognizing that the instructions become the law of the
case).
5. 	Sufficiency of Evidence of Proximate Cause and Damages
{41} 	Dr. Muncey points to the evidence surrounding negotiations in regard to
Eyeglass World purchasing his files and argues that the jury could reasonably
conclude that the value of the files was $300,000. Through Dr. Muncey’s testimony
there was evidence indicating that, at one point, the parties appear to have settled on
a $300,000 price for the patient files as part of the negotiations to buy out Dr.
Muncey’s contract. Eyeglass World appears to have been willing, in order to “treat
this in a way that would be better for [Dr. Muncey],” concerning federal taxes, the
transaction would be considered a “purchase of an asset,” the patient files. We agree
with Dr. Muncey that sufficient evidence was presented to establish that the files had

27
been given a value of $300,000 before the claimed act of conversion occurred in June
2007.
{42} 	In response to Eyeglass World’s motion for a directed verdict, when the district
court asked how the copying of the original files so that replacement doctors could
have the copies and use them damaged Dr. Muncey, Dr. Muncey’s attorney
responded, “[b]ecause if they hadn’t copied them and if they wanted them, they would
have bought them from [Dr. Muncey], like they offered to at one point.” On the issue
of value, Dr. Muncey’s attorney stated that, as a result of the copying, “those files are
being used by an optometrist; they now no longer have any value to Dr. Muncey. . . .
Once someone else is using those files, their value is zero.” 	He also stated that
“[o]nce [the files] were copied, they were destroyed” and that Eyeglass World knew
that upon copying the files, “[it] would be taking the value of those files away from
[Dr. Muncey].” 	Dr. Muncey testified that the value in buying a practice is in the
doctor’s records and that “[i]f [he] went out to buy a practice and there were no patient
files, records, [and] history, [he] wouldn’t give [the seller] a nickel for [the practice].”
In closing argument to the jury, Dr. Muncey’s attorney argued that the evidence
showed that “Eyeglass World wanted to prevent Dr. Muncey from leaving Eyeglass
World, taking his files, moving across the street, and opening up a competing
practice.”

28
{43} 	Dr. Muncey limits his conversion claim and resulting damages to the act of
making unauthorized copies of the files. Dr. Muncey argues that “the entire value of
the patient files resided in [his] exclusive control and ownership of them” at the time
the copying occurred. Thus, Dr. Muncey concludes, once Eyeglass World divested
him of that exclusive control of the files, “all value [to Dr. Muncey] disappeared[,]”
with any value moving to Eyeglass World. Dr. Muncey refers to an obvious intent of
Eyeglass World to use the copies, having spent $6000 to copy them, and he indicates
that the copying made it easier to attract an optometrist and that the copying afforded
Eyeglass World an anticipated competitive and economic advantage in providing “a
ready made practice with 20,000 patient files[.]”
{44} 	The proximate cause and damages analysis is not a particularly simple one
given the conduct of the parties and historical facts and circumstances, which
obviously left unanswered questions for the court and the jury in regard to reasons,
motives, agenda, purposes, and justifications. The discussions between the parties
relating 	to 	any 	possible 	transfer 	of 	files 	were 	contained 	in 	exchanges 	of
correspondence 	in 	July 	and 	August 	2007 	between 	their 	attorneys. 	That
correspondence started with a July 25, 2007, letter from Eyeglass World’s attorney
(Zifrony) to Dr. Muncey’s attorney (Bauman) stating:
In light of the above and the litigious nature of your client, [Eyeglass
World] does not want your client to accuse it of having prevented any

29
necessary follow up care. 	[Eyeglass World] is therefore putting your
client on notice of its expectation that your client will immediately
remove all of these patient records from [Eyeglass World’s] location. If
your client fails to do so within the next seven days, [Eyeglass World]
will have no choice but to deliver the patient records to your office at
your client’s cost ([Eyeglass World] can, in the alternative, deliver the
records directly to your client at his cost if you will provide me his
current work address).
It resumed with Mr. Bauman’s July 27, 2007, response stating that Dr. Muncey was
out of town on vacation until August 9, 2007, and further stating that “Dr. Muncey has
. . . made arrangements for his current [o]ffice [m]anager . . . to pick up the current
[LASIK] files (approximately 20 boxes) on August 2nd” and stated that his office
manager would contact the manager at Eyeglass World to coordinate the transfer of
those particular files. Following which Mr. Zifrony, on July 30, 2007, wrote that the
statement regarding Dr. Muncey’s being out of town on vacation was “entirely untrue”
and also wrote:
In any event, your client has had more than a reasonable amount of time
to resolve this issue given how long the records have been kept at
[Eyeglass World].
. . . Your client is the one that made a big deal about the need for
retaining possession of these records. At the same time, your client has
chosen to leave these records at [Eyeglass World] for some time. Your
July 27 letter does not even state with certainty whether your client ever
intends on removing them. 	Either immediately provide me with a
specific date on which . . . your client or someone else will pick up the
records (which date must take place by Friday of this week) or
immediately provide me with an address as to where [Eyeglass World]
can send these records at your client’s cost. 	Unless I hear a response

30
from you in this regard by noon tomorrow, [Eyeglass World] will discard
all of these records beginning six . . . days from now.
Mr. Bauman then wrote on July 31, 2007, that “Dr. Muncey is making arrangements
to remove the patient files and will do so as quickly as possible. Please be advised
that any action by Eyeglass World to [discard] these patient files will violate both
New Mexico and [f]ederal laws.” Mr. Zifrony responded on August 1, 2007, that “It
is [Eyeglass World’s] understanding that [the office manager] from your client’s
office will be coming to [Eyeglass World] to pick up certain of your client’s files on
August 9, 2007. [Eyeglass World] will thereafter send any of your client’s remaining
files to the New Mexico Board of Optometry.” 	On August 1, someone on Dr.
Muncey’s behalf picked up only the LASIK-related files, stating: “I acknowledge that
I did not retrieve from Eyeglass World’s location any patient files that were worked
on by or through Dr. Muncey that did not involve patients that received or
contemplated receiving medical services from The [LASIK] Vision Institute.”
{45} 	This correspondence was followed by a September 10, 2007, complaint
submitted by Eyeglass World to the State Regulation and Licensing Department,
Compliance Section, stating:
Dr. Muncey was an independent contractor of Eyeglass World who
provided optometric services at Eyeglass World’s New Mexico location.
Dr. Muncey subsequently leased space from Eyeglass World whereby he
continued to provide optometric services as a tenant of Eyeglass World
and at the same New Mexico location. 	Dr. Muncey ultimately

31
terminated his lease a few months ago and has since refused to retrieve
from that location the majority of his patient records. 	Attached are
letters to Dr. Muncey’s attorney from Eyeglass World’s attorney,
Matthew Zifrony, Esq., requesting that he retrieve his patient records
along with Dr. Muncey’s attorney’s responses.
A letter to the State Regulation and Licensing Department from Mr. Bauman dated
November 29, 2007, recounts the foregoing correspondence between the parties and
states that “[n]o further exchanges with respect to patient records took place.” This
letter also stated that
Attached . . . is a letter from Dr. Nathanial Roland which describes what
appears to have been the wholesale unauthorized copying of patient files
by Eyeglass World staff subsequent to Dr. Muncey’s departure. Because
Dr. Muncey believes that this action by Eyeglass World infringes upon
patient rights, he took no further action to retrieve patient files until the
matter could be fully investigated and if verified, brought to the attention
of the New Mexico District Court.
In a letter dated February 11, 2008, the chief investigator for the New Mexico Board
of Optometry stated that the Board decided to dismiss Eyeglass World’s complaint on
the 	ground 	that 	“there 	is 	no 	cause 	for 	disciplinary 	action.” 	None 	of 	the
correspondence or documents submitted to the Department discuss specifically
whether “files” refers to the original patient files, the copies, or both.
{46} 	From all appearances, at the point Eyeglass World copied the files, it hoped or
intended to use the copies for future optometrists. Why else copy the files? The CEO
and president of Eyeglass World’s holding company until sometime prior to trial, Ben

32
Cook, testified at trial about his prior deposition testimony. The testimony indicated
that it was valuable to retain Dr. Muncey’s files in order to continue to service the
patients, and he also indicated a concern about the possibility that Dr. Muncey could
open a store nearby and compete with Eyeglass World. 	Mr. Zifrony testified that
“[w]e made the copies so that we had a set of the patient records available for a
replacement optometrist in case Dr. Muncey decided to come and take his originals
from Eyeglass World.”
{47} 	The jury was left with an unforgiving set of circumstances to wonder how to
resolve the dispute under the instructions. Obviously, the jury saw Eyeglass World
as the culprit. We now, on appeal, are confronted with: (1) the determination by the
jury, based on the conversion instructions, that the elements of conversion were met
either by exclusion or defiance or by unauthorized and injurious use, or both; (2) the
determination by the jury, based on the measure of damages instruction, that the files
had a $300,000 value to Dr. Muncey and, implicit in its verdict that Dr. Muncey lost
that value immediately after the conversion; and (3) a determination by the jury, under
the mitigation instruction, that Dr. Muncey mitigated all he had to or could.
{48 } 	Dr. Muncey’s case for proximate cause and damages turns on whether damages
were necessarily sustained and awardable based solely on copying the original files
and on whether damages were measured by the value of the files at the time they were

33
copied. 	Based on the conduct of each party and given the particular, peculiar
circumstances in this fully tried case, the long and short of it is that we are simply not
prepared to hold that the evidence to prove proximate cause and damages was
insufficient. And we are not prepared to second-guess or override the jury. It is up
to the parties to carefully try their cases, to assure that the jury is clearly and carefully
instructed, to make critical objections in regard to instructions, and to carry the burden
of persuasion through convincing evidence and argument. 	It is not the duty of an
appellate court to sift through the testimony and other evidence and attempt to decide
the case based on instructions with which the parties found no material fault. “[W]e
will not reweigh the evidence nor substitute our judgment for that of the fact finder.”
Atler, 2005-NMCA-006, ¶ 13 (internal quotation marks and citation omitted). We are
to determine whether substantial evidence exists to support the jury’s verdict. Id.
{49} 	In sum, assuming that the jury’s determination that a conversion by copying
occurred stands based on substantial evidence, and we will not disturb the verdict.
And, as we discuss next, under the particular and peculiar circumstances in this case,
substantial evidence supported the proximate cause and damages verdict of a
$300,000 value of the files at the time Eyeglass World converted the files by copying
them.
6. 	Mitigation

34
{50} 	The dissent concludes that Dr. Muncey failed to mitigate damages as a matter
of law and was therefore not entitled to any compensatory damages. We have been
unable to reach that conclusion.
{51} 	The dissent does not indicate that Eyeglass World moved for a directed verdict
on a mitigation issue. The record reflects that no such motion was made. Eyeglass
World did not appeal on the ground that the district court erred in failing to grant any
motion for a directed verdict on mitigation of damages.
{52} 	Eyeglass World requested a mitigation jury instruction. The instruction was
given to the jury. Eyeglass World did not argue at the time against the issue going to
the jury. The parties had every opportunity to argue the mitigation issue to the jury.
After the verdict, Eyeglass World did not seek a remittitur in district court based on
a rationale of failure to mitigate damages as a matter of law.
{53} 	Eyeglass World barely mentioned mitigation in its brief in chief. In its reply
brief, Eyeglass World argues that, notwithstanding that the jury was instructed on
mitigation and that the parties argued the issue to the jury, this Court has the duty to
review the mitigation evidence for sufficiency. Eyeglass World cites no authority to
substantiate that duty under the circumstances here. The argument is not persuasive.
{54} 	Under the conversion theories submitted to the jury, we do not agree with the
view that there was no evidence on which a rational finder of fact could award any

35
compensatory damages in the face of the mitigation of damages instruction. Nor do
we agree that the evidence required the jury to arrive at solely one finding, namely,
that Dr. Muncey failed to mitigate his damages. Eyeglass World, of course, had the
burden to establish its affirmative defense of failure to mitigate. Dr. Muncey had only
to defeat the defense by demonstrating that he did all he needed to do under the
circumstances he faced. He obviously did so, given the jury’s verdict.
7. 	The Issue of Sufficiency of Evidence as to Exclusion
or Defiance, or as to Unauthorized and Injurious Use
{55} 	As 	indicated 	earlier 	in 	this 	Opinion, 	Eyeglass 	World 	argues 	that 	the
unauthorized and injurious use type of conversion was not established in the evidence
because there was no substantial evidence that Eyeglass World used the files after
copying them. Hence, there was no substantial evidence of any injurious use. Nor,
Eyeglass World contends, can mere copying be an injurious use.
{56} 	The facts on which Eyeglass World relies for its lack of substantial evidence
argument in regard to exclusion or defiance are that Eyeglass World came into
possession of the files lawfully, that Eyeglass World repeatedly asked Dr. Muncey to
retrieve the files, and that Dr. Muncey did not collect the files or demand that Eyeglass
World turn the files over to him after he learned they were being copied. Eyeglass
World argues that it never refused to turn the files over and that, because Eyeglass
World came into possession lawfully, in order to establish exclusion or defiance, Dr.

36
Muncey was “required to insist on the return of all files and copies[.]” Instead, Dr.
Muncey elected to leave the files with Eyeglass World and to pursue his legal action.
{57} 	Eyeglass World emphasizes that conversion is premised on a property
deprivation and that a defendant must refuse to comply after a plaintiff clearly asserts
his property rights in order to assure that the deprivation is “a real and substantial” one
and “not merely temporary dispossessions that easily could have been nipped in the
bud.” According to Eyeglass World, “a timely demand from [P]laintiff would have
quickly and mercifully brought this dispute to an end.”
{58} 	The verdict was a general verdict. 	The jury was permitted under the
instructions to find conversion from either unauthorized and injurious use or from
exclusion or defiance. Whether Eyeglass World originally had lawful possession of
the patient files was not an issue submitted to the jury, and Eyeglass World did not
request an instruction in that regard. Under the language of the instructions as given
to the jury, based on substantial evidence, the jury could draw reasonable inferences
from the record that Eyeglass World acted in defiance of Dr. Muncey’s rights in the
patient files by its unauthorized copying of the files for an intended future optometry
use. 	Also under the language of the instructions as given to the jury, based on
substantial evidence, the jury could draw reasonable inferences that the copying of the
files was both unauthorized and injurious. We are not prepared to determine that the

37
issue of conversion should not have been given to the jury based on lack of substantial
evidence.
B. 	Punitive Damages
{59} 	Eyeglass World challenges the punitive damages award on grounds that (1) the
evidence was insufficient to permit punitive damages, (2) the amount of the award was
excessive and violates due process, and (3) Dr. Muncey’s closing argument
improperly injected an unpleaded legal theory on which the jury was not instructed.
Eyeglass World requests this Court to remit the award as a product of passion and
prejudice if we do not strike or remit the award on one of the three grounds.
1. 	Sufficiency of the Evidence for Punitive Damages
{60} 	Eyeglass World argues that the evidence is insufficient to establish that its
actions reached such a heightened culpable mental state as to be malicious or within
the purview of the egregiousness contemplated and required for punitive damages.
Much of its argument centers on Dr. Muncey’s conduct, not on its own. The argument
does not refer to the punitive damages instruction that permitted the jury to assess
whether Eyeglass World’s conduct was “malicious, willful, reckless, wanton,
fraudulent[,] or in bad faith” and that which specifically defined malicious, willful,
reckless, and wanton conduct as set out in UJI 13-1827 NMRA. Eyeglass World fails
to show why the jury could not reasonably infer such conduct from Eyeglass World’s

38
unauthorized copying and intended retention of the copies, together with Eyeglass
World’s apparent position that it had a right to copy and use the copies, as well as its
apparent ambiguous and uncooperative stances in its correspondence, along with its
submitting a complaint to the State Regulation and Licensing Department.
{61} 	Nor does Eyeglass World set out the substance of the evidence bearing on the
proposition argued as required under our rules and case law. See Rule 12-213(A)(3),
(4) NMRA; see also Martinez v. Sw. Landfills, Inc., 115 N.M. 181, 186, 848 P.2d
1108, 1113 (Ct. App. 1993) (stating that the appellate court will not consider an
insufficiency of evidence argument without presentation of the evidence as a whole
or based only on facts which tend to support the argument). There exists a substantial
amount of evidence regarding Eyeglass World’s conduct that it fails to set out and that
we choose not to detail here. Dr. Muncey sets out some of that evidence in his answer
brief. 	We reject Eyeglass World’s sufficiency argument. 	Eyeglass World fails to
sufficiently develop the argument. Furthermore, our review of the record indicates
that substantial evidence supported the punitive damages instruction.
2. 	Due Process
{62} 	We review the constitutional reasonableness of a punitive damage award de
novo. Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478,
143 P.3d 717; Aken v. Plains Elec. Generation & Transmission Coop., 2002-NMSC-

39
021, ¶ 17, 132 N.M. 401, 49 P.3d 662. “Any doubt in the mind of the appellate court
concerning the question of what appropriate damages may be in the abstract, or owing
to the coldness of the record, should be resolved in favor of the jury verdict.” Id. ¶ 19.
In undertaking a de novo review, we consider three criteria:
1) the degree of reprehensibility of the defendant’s misconduct; 2) the
disparity between the harm (or potential harm) suffered by the plaintiff
and the punitive damages award; and 3) the difference between the
punitive damages awarded by the jury and the civil penalties authorized
or imposed in comparable cases.
Id. ¶ 20 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996)). 	The
reprehensibility of the conduct is, perhaps, the most important guidepost in the
analysis. 	Aken, 2002-NMSC-021, ¶ 21. 	Eyeglass World argues that the punitive
damages award unreasonably exceeds due process limits under the guideposts and
considerations governing analysis of such awards.
a. 	The First Due Process Guidepost
{63} 	As to the first guidepost, reprehensibility, Eyeglass World argues that its
conduct was not reprehensible because its conduct was purely economic and did not
produce personal injury; its conduct did not consist of a pattern or practice of willful
misbehavior, but was isolated, was the product of unusual case-specific circumstances,
was done after obtaining its attorney’s advice that it was lawful to copy the files, and

40
was not supported by evidence of actual harm. 	Eyeglass World concludes that “if
reprehensible at all, the conduct was at the low end of the scale.”
{64} 	The United States Supreme Court has set the structure for analysis of the first
due process guidepost.
The most important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the defendant’s
conduct. We have instructed courts to determine the reprehensibility of
a defendant by considering whether: the harm caused was physical as
opposed to economic; the tortious conduct evinced an indifference to or
a reckless disregard of the health or safety of others; the target of the
conduct had financial vulnerability; the conduct involved repeated
actions or was an isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be
sufficient to sustain a punitive damages award; and the absence of all of
them renders any award suspect. It should be presumed a plaintiff has
been made whole for his injuries by compensatory damages, so punitive
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) (alteration,
internal quotation marks, and citations omitted). Our Supreme Court is in step with
State Farm. Chavarria, 2006-NMSC-046, ¶¶ 37-38.
b. 	The Second Due Process Guidepost
{65} 	The second due process guidepost focuses primarily on the ratio between
punitive and compensatory damages. We quote State Farm for the view, to which we
adhere, of how to gauge application of the second due process guidepost.

41
Turning to the second Gore guidepost, we have been reluctant to
identify concrete constitutional limits on the ratio between harm, or
potential harm, to the plaintiff and the punitive damages award. 	We
decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now
established 	demonstrate, 	however, 	that, 	in 	practice, 	few 	awards
exceeding a single-digit ratio between punitive and compensatory
damages, to a significant degree, will satisfy due process. 	. . . [I]n
upholding a punitive damages award, we concluded that an award of
more than four times the amount of compensatory damages might be
close to the line of constitutional impropriety. We cited that 4-to-1 ratio
again in Gore. The Court further referenced a long legislative history,
dating back over 700 years and going forward to today, providing for
sanctions of double, treble, or quadruple damages to deter and punish.
While 	these 	ratios 	are 	not 	binding, 	they 	are 	instructive. 	They
demonstrate what should be obvious: Single-digit multipliers are more
likely to comport with due process, while still achieving the [s]tate’s
goals of deterrence and retribution, than awards with ratios in range of
500 to 1, or, in this case, of 145 to 1.
State Farm, 538 U.S. at 424-25 (internal quotation marks and citations omitted).
{66} 	As to this second guidepost and the ratio analysis, Eyeglass World argues that
because the ratio of compensatory damages to punitive damages, which is 6.6 to 1,
was greater than a one-to-one ratio, the punitive damages award violated due process
because the compensatory damages award was substantial, and “it is difficult to
fathom how [Dr. Muncey] suffered any harm[.]” Eyeglass World also argues that due
process warrants a reduction of the award to, at most, a one-to-one ratio given that this
is a “purely economic case . . . involving (1) isolated conduct that [Dr. Muncey] was
unable to show caused him any harm, and (2) an award of compensatory damages in

42
the full amount he sought[.]” These circumstances, Eyeglass World argues, are what
the United States Supreme Court in State Farm “had in mind in noting when a one-to-
one ratio is at the ‘outermost’ limits.” See State Farm, 538 U.S. at 425 (stating that
circumstances may permit imposition of “a lesser ratio”); see also Williams v.
ConAgra Poultry Co., 378 F.3d 790, 798-99 (8th Cir. 2004) (reducing the punitive
award to a one-to-one ratio); Aken, 2002-NMSC-021, ¶ 22 (reducing the punitive
award from $1 million to $300,000). State Farm does not, however, attempt to set any
bright-line ratio. It is obvious that each case must be analyzed based on its particular
facts.
Nonetheless, because there are no rigid benchmarks that a punitive
damages award may not surpass, ratios greater than those we have
previously upheld may comport with due process where a particularly
egregious act has resulted in only a small amount of economic damages.
The converse is also true, however. When compensatory damages are
substantial, then a lesser ratio, perhaps only equal to compensatory
damages, can reach the outermost limit of the due process guarantee.
The precise award in any case, of course, must be based upon the facts
and circumstances of the defendant’s conduct and the harm to the
plaintiff.
State Farm, 538 U.S. at 425 (internal quotation marks and citations omitted).
{67} 	Our Supreme Court has explained the difference between the first and second
guideposts. 	In Aken, the Court stated: 	“The first guidepost requires comparing
damages to the enormity of the defendant’s wrong, apart from the injury actually
sustained. The second guidepost represents a different vantage point on the punitive

43
damages award[] and considers the plaintiff’s injury.” 2002-NMSC-021, ¶ 23; see
Chavarria, 2006-NMSC-046, ¶¶ 36, 38. 	As to the second guidepost, repeated in
Chavarria, the Court in Aken stated the test as, “the amount of an award of punitive
damages must not be so unrelated to the injury and actual damages proven as to
plainly manifest passion and prejudice rather than reason or justice.” 	Aken, 2002-
NMSC-021, ¶ 23 (alteration, internal quotation marks, and citation omitted); see
Chavarria, 2006-NMSC-046, ¶ 38. 	Chavarria focused on State Farm’s “flexible
approach, especially in situations involving egregious behavior, low compensatory
damage awards, injuries that are difficult to detect, or non-economic harm that is not
easily converted into a dollar value.” Chavarria, 2006-NMSC-046, ¶ 38. According
to State Farm, “[i]n sum, courts must ensure that the measure of punishment is both
reasonable and proportionate to the amount of harm to the plaintiff and to the general
damages recovered.” 538 U.S. at 426.
c. 	The Third Due Process Guidepost
{68} 	As to the third guidepost, Eyeglass World argues that few meaningful
conversion penalties exist to compare to the award in this case, particularly where “a
defendant’s bare exercise of dominion over the plaintiff’s property, without denying
the plaintiff access or injuriously using [the property], is generally not punished or

44
punishable at all.” Eyeglass World states that “[d]ue process . . . permits at most a
small punitive award.”
d. 	Consideration of the Due Process Guideposts
{69} 	Assessing the first guidepost, reprehensibility, is no particularly easy task when
looking at totality of the circumstances present in this case and given the fluidity of
the guideline and the balancing required under the State Farm structure. In Eyeglass
World’s favor, the case before us reflects an isolated occurrence in a peculiar set of
circumstances with Dr. Muncey likely facing slight, if any, financial vulnerability
were he to have acted quickly to retrieve the patient files and obtain the copies and
with Dr. Muncey being legally damaged economically only. 	Further, Eyeglass
World’s conduct did not evince an indifference to or a reckless disregard for health
or safety, although the jury may have considered Dr. Muncey’s testimony in regard
to his loss of sleep and concern in regard to his license and livelihood with the
pending complaint submitted by Eyeglass World to the Optometry Board. Moreover,
Dr. Muncey was made whole through the award of compensatory damages. Yet the
jury’s reaction indicates a view that Eyeglass World’s motive was to obtain, keep,
copy, and use the files without paying for them. Under this first guidepost, following
the State Farm analysis, “punitive damages should . . . be awarded if [Eyeglass
World’s] culpability, after having paid compensatory damages, is so reprehensible as

45
to warrant the imposition of further sanctions to achieve punishment or deterrence.”
Id. at 419.
{70} 	Turning to the second guidepost, in which State Farm focused on the ratio
between punitive and compensatory damages, the ratio we are looking at is a single-
digit ratio of 6.6 to 1. State Farm refused any bright-line ratio, but indicated that “few
awards exceeding a single-digit ratio . . ., to a significant degree, will satisfy due
process[,]” while “[s]ingle-digit multipliers are more likely to comport with due
process[.]” Id. at 425. Looking solely at ratio, it is apparent that the 6.6 to 1 ratio has
the potential of comporting with due process. Yet, according to a rule established by
our Supreme Court in Aken, it must still pass another fluid analysis—it must be
apparent that the amount of the award is not “so unrelated to the injury and actual
damages proven as to plainly manifest passion and prejudice rather than reason or
justice.” 	2002-NMSC-021, ¶ 23 (internal quotation marks and citation omitted).
Here, the issue is not so much the ratio, but whether the $2 million punitive damages
award plainly manifests passion and prejudice.
{71} 	Moving to the third guidepost, the disparity between the punitive damages
award and the civil penalties assessed in analogous cases, see State Farm, 538 U.S.
at 428, Dr. Muncey looks for comparison to civil penalties under HIPAA and to
criminal larceny, theft, and embezzlement statutes. We see no basis for comparison.

46
HIPAA violations were ruled in this case to be irrelevant, and no criminal violations
were shown to apply to the facts.
{72} 	A review of somewhat factually applicable New Mexico cases that evaluate the
guidepost factors in a due process analysis does not particularly assist us in evaluating
the due process question in the case now before us. See Chavarria, 2006-NMSC-046,
¶¶ 35-39 (engaging in a detailed review of the guideposts, and remanding the matter
for re-assessment by the district court of its reduction of its initial punitive damages
award of $250,000 down to $150,000, in a case involving fraud and conversion);
Aken, 2002-NMSC-021, ¶¶ 19-28 (engaging in a detailed review of the guideposts,
and affirming the district court with an adjustment of the punitive damages award on
a defamation claim from $1 million down to $300,000); Bogle v. Summit Inv. Co.,
LLC., 2005-NMCA-024, ¶¶ 34-37, 137 N.M. 80, 107 P.3d 520 (engaging in analysis
of the guideposts and determining that all three guideposts supported the modest
punitive damages award). 	We do not include Jolley v. Energen Res. Corp., 2008-
NMCA-164, 145 N.M. 350, 198 P.3d 376, in our review, because it involves serious
bodily harm.
{73} 	Weighing the guidepost factors as we must with their built-in imprecision and
indeterminateness, while a close case on the issue, we are unable to conclude that the
punitive damages award was excessive or was the result of passion and prejudice. We

47
therefore hold that the award did not violate due process.
3. 	Other Considerations
{74} 	Eyeglass World also asks this Court to “sharply reduce” the punitive damages
award because the award wrongfully punishes the equity owner of Eyeglass World,
National Vision, because National Vision purchased its equity interest after the
conversion took place, and therefore did nothing wrong, and because the $29 million
purchase price paid to acquire the equity interest was allowed in evidence over
Eyeglass World’s objection. Eyeglass World argues that forcing National Vision to
pay the award does not accomplish “the limited purpose of punitive damages [of]
punishing a wrongdoer and deterring future tortious conduct.” McNeill v. Rice Eng’g
& Operating, Inc., 2003-NMCA-078, ¶ 32, 133 N.M. 804, 70 P.3d 794 (alteration,
internal quotation marks, and citation omitted).
{75} 	Eyeglass World raises this issue for the first time on appeal. 	We will not,
therefore, consider it. See Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 9, 147 N.M.
512, 226 P.3d 611. 	Furthermore, Eyeglass World provides no authority on the
particular issue of reducing punitive damages awarded against a wrongdoer out of
concern for the wrongdoer’s successor in interest’s purported innocence. 	And, in
addition, Eyeglass World does not support this claim of innocence with facts showing

48
that National Vision’s purchase occurred before Eyeglass World had any notice of
possible lawsuit by Dr. Muncey for conversion.
C. 	Claimed Closing Argument Impropriety
{76} 	In closing argument, Dr. Muncey asked the jury to award $2 million in punitive
damages, consisting of $1 million for Eyeglass World’s conduct leading up to and
involving copying the files, and another $1 million based on Eyeglass World’s having
filed a complaint with the Optometry Board for a wrongful purpose. Eyeglass World
complains that Dr. Muncey did not plead a claim or seek an instruction based on
Eyeglass World’s complaint to the Optometry Board. 	It complains that it had no
warning that the argument would be made to the jury. It asserts that it was prejudiced
by the “bolt-from-the-blue” and was deprived of any opportunity to defend itself by
showing that it had made the complaint in good faith and without malice or to seek
jury instructions explaining that the complaint was privileged under New Mexico’s
Uniform Licensing Act, NMSA 1978, §§ 61-1-1 to -33 (1957, as amended through
2012). Eyeglass World also attacks the propriety of the argument on the ground that
the complaint had nothing to do with acts purportedly constituting conversion.
{77} 	Eyeglass World failed, however, to object to the argument until post-trial
motions. 	See Allen v. Tong, 2003-NMCA-056, ¶ 37, 133 N.M. 594, 66 P.3d 963
(stating that, where the plaintiff made no objection to defendant’s counsel’s closing

49
argument, we “will review the propriety of the statement only in exceptional cases
where the interest of substantial justice is at stake” (internal quotation marks and
citation omitted)); Lopez v. Sw. Cmty. Health Servs., 114 N.M. 2, 8, 833 P.2d 1183,
1189 (Ct. App. 1992) (stating that, as a general rule, failure to object to closing
argument precludes appellate review). 	Eyeglass World acknowledges that it is
relegated to a request that we apply a theory of “non-waivable ‘fundamental error’”
to grant a new trial. For this theory, Eyeglass World relies on Gracia v. Bittner, that
notes, in relation to a failure to alert the district court to a statutory amendment, only
that “the common element in civil cases that have been reversed for unpreserved error
has been the total absence of anything in the record of the case showing a right to
relief in the person granted relief.” 120 N.M. 191, 196-97, 900 P.2d 351, 356-57 (Ct.
App. 1995). 	Eyeglass World also relies on Sandoval v. Baker Hughes Oilfield
Operations, Inc., 2009-NMCA-095, 146 N.M. 853, 215 P.3d 791, that requires, for
application of the rule permitting reversal for improper closing argument, the rule
“only be applied as a last resort and is not to be applied unless we are satisfied that the
argument presented to the jury was so flagrant and glaring in fault and wrongdoing
as to leave the bounds of ethical conduct, such as going outside the record.” Id. ¶ 57
(internal quotation marks and citation omitted).

50
{78} 	We are unpersuaded. The closing argument statement Eyeglass World attacks
does not come within the purview of Allen, Gracia, or Sandoval. The subject matter
of the argument was well within the record. The complaint to the Optometry Board
was an extension of the correspondence regarding the transfer of the files and could
be seen as having been inspired with a less than beneficial motive. The complaint was
listed in the parties’ exhibit lists and was discussed at different times during trial. We
do not see the $1 million statement as an “exceptional case[] where the interest of
substantial justice is at stake[,]” Allen, 2003-NMCA-056, ¶ 37 (internal quotation
marks and citation omitted), nor do we see the case as involving circumstances
coming within the requirements set out in Sandoval. 	Sandoval, 2009-NMCA-095,
¶ 57.
CONCLUSION
{79} 	We affirm.
{80} 	IT IS SO ORDERED.
___________________________________
JONATHAN B. SUTIN, Judge
I CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge (dissenting).
51

52
GARCIA, Judge (dissenting).
{81} 	I respectfully dissent in this case. Although the circumstances in this case are
unique, the fact remains Dr. Muncey failed to mitigate his damages regarding his
conversion claim asserted in his amended complaint. As a result, Eyeglass World was
entitled to a partial directed verdict at the end of Dr. Muncey’s case in chief.
{82} 	Even viewing the facts in the light most favorable to Dr. Muncey, it was
undisputed that, based on the advice of his attorney, Dr. Muncey failed to undertake
any action to mitigate his damages for the conversion of his files. Majority Opinion
¶ 7. 	The timing of Dr. Muncey’s knowledge that his files were being copied and
therefore converted by Eyeglass World is critical to the directed verdict analysis in
this dissent.
{83} 	It is undisputed that Dr. Muncey knew that Eyeglass World was copying his
files for several weeks before Eyeglass World completed the copying process. As the
majority has pointed out, Dr. Muncy became aware that the files were being copied
in mid-June 2007 and the copying process was not finished until July 10, 2007.
Majority Opinion ¶¶ 6-7. 	As a result, Dr. Muncey’s duty to mitigate his damages
arose in mid-June and lasted for several weeks, even though he chose to disregard this
legal obligation based upon the advice of his attorney.

53
{84} 	I shall address below whether the advice of an attorney provides a legal
justification to avoid one’s duty to mitigate damages. I conclude that it does not. As
a result, Dr. Muncey failed to present substantial evidence to establish the damages
element of his conversion claim. Eyeglass World was entitled to a directed verdict
prior to any jury deliberations on Dr. Muncey’s conversion claim.
{85} 	It is undisputed that Dr. Muncey had the affirmative duty to mitigate his
damages before he was entitled to recover under his claim of conversion. The jury
was given UJI 13-860, the instruction on Eyeglass World’s mitigation of damages
affirmative defense. 	Eyeglass World specifically requested this instruction. 	The
instruction states: “[a] party may not recover as damages any cost or loss which he
reasonably could have avoided.” UJI 13-860. As a result, the instruction became the
law of the case and Dr. Muncey cannot now argue that mitigation of damages was
inapplicable or improper with regard to his conversion claim. See Sandoval, 2009-
NMCA-095, ¶ 43, (“The sufficiency of the evidence is measured against the jury
instructions, because they become the law of the case.”); see also Atler, 2005-NMCA-
006, ¶ 13, 	(“Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” (internal quotation marks and citation
omitted)).

54
{86} 	Dr. Muncey argued that the initial act of copying the files constituted damages
for an actionable conversion claim, irrespective of any subsequent use or defiance of
his right of exclusive control. As such, Dr. Muncey asserted that the value of the files
was destroyed the instant Eyeglass World copied them and, as a result, he was under
no duty or obligation to mitigate his damages. Yet Dr. Muncey was aware that his
files were being copied to his detriment several weeks before all of the files were
copied and much of their corresponding value was actually destroyed. 	Majority
Opinion ¶¶ 6-7. Dr. Muncey’s only explanation for this failure to act and avoid these
continuing damages was that “I was advised not to go near that” and “I left them there
at the advice of my attorney.” He also argued that “he had already taken action . . .
by filing the lawsuit,” that “he wanted to proceed with caution, investigate and
confirm the rumor,” and that “[his] failure to take immediate action [does not] justify
Eyeglass World’s copying of those files without his permission[.]”
{87} 	In his brief to this Court, Dr. Muncey failed to even address the issue of his
failure to act and mitigate any damages caused by the copying of the files. 	In
addition, Dr. Muncey failed to provide any authority that would support his “advice
of my attorney” justification that was offered at trial to establish the legal basis for his
failure to take any action to mitigate his damages. See Pickett Ranch, LLC v. Curry,
2006-NMCA-082, ¶ 45, 140 N.M. 49, 139 P.3d 209 (stating that where no supporting

55
authority for a proposition is cited, this Court may assume that no applicable or
analogous authority exists); see also In re Adoption of Doe, 100 N.M. 764, 765, 676
P.2d 1329, 1330 (1984) (noting that where a party cites no authority to support an
argument, we may assume no such authority exists).
{88} 	Independently, I was unable to discover any authority that would support Dr.
Muncey’s position that a party can disregard its legal duties and obligations based
upon the advice of its attorney. 	If such a justification were recognized, then any
injured party could avoid its legal duty to mitigate damages by simply obtaining
advice from an attorney that it should take no action. Dr. Muncey has also failed to
provide us with any public policy that would support an advice of counsel exception
as the recognized basis for avoiding one’s legal duty to mitigate damages. Id. As a
result, Dr. Muncey failed as a matter of law to mitigate the conversion damages he
claimed to have suffered from the copying of his files between mid-June 2007 and
July 10, 2007. Because the burden to prove damages rested upon Dr. Muncey, there
was insufficient evidence to prove the $300,000 in damages awarded for the
conversion of his files. No other evidence was presented to establish a value of the
limited portion of the files that were copied prior to mid-June 2007. 	The only
evidence presented at trial to establish the $300,000 value for Dr. Muncey’s files was
based upon the parties’ prior contractual negotiations to purchase all of these files for

56
that amount. Without the required evidence, Dr. Muncey failed to meet his burden of
proof, and the jury was improperly asked to speculate about his damages for the
conversion of a limited portion of his files. 	See McGinnis v. Honeywell, Inc., 110
N.M. 1, 7, 791 P.2d 452, 458 (1990) (recognizing that where actual damages and
mitigation of damages are concerned, a jury must not be asked to speculate on matters
that should have been presented in the form of evidence).
{89} 	In conclusion, I do not concur with the result reached by the majority in this
case regarding Dr. Muncey’s conversion claim and the jury verdict rendered in his
favor. The district court erred when it denied Eyeglass World’s motion for a directed
verdict regarding Dr. Muncey’s conversion claim.
__________________________________
TIMOTHY L. GARCIA, Judge