March 26, 2020- Denise Jevne v. Mari Kooi, No. A-1-CA-36611

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
DENISE JEVNE,	2
Plaintiff/Counterdefendant-Appellant,	3
v. 	No. A-1-CA-36611	4
MARI KOOI,	5
Defendant/Counterclaimant-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	7
Sarah M. Singleton, District Judge	8
Marrs Briebel Law Ltd.	9
Clinton W. Marrs	10
Albuquerque, NM	11
for Appellant	12
Sommer, Udall, Hardwick & Jones, P.A.	13
Jack N. Hardwick	14
Santa Fe, NM	15
for Appellee	16
MEMORANDUM OPINION	17
VANZI, Judge	18
{1} 	Plaintiff appeals from the district court’s judgment awarding Defendant	19
compensatory and punitive damages on Defendant’s counterclaim against Plaintiff	20
for abuse of process. Having reviewed the record and considered the parties’	21
arguments on appeal, we affirm.	22
Court of Appeals of New Mexico
Filed 3/26/2020 1:25 PM

2
BACKGROUND	1
{2} 	Plaintiff and Defendant were involved in business dealings regarding stock	2
market forecasting software developed by Plaintiff. Plaintiff sued Defendant for	3
fraud, breach of contract, conversion, unjust enrichment, use of trade secrets, and	4
unauthorized use of proprietary information. Defendant counterclaimed, alleging	5
abuse of process and misrepresentation. The case proceeded to trial, where the jury	6
found against Plaintiff on all of her claims and in favor of Defendant on her	7
malicious abuse of process counterclaim. The jury awarded Defendant $160,000 in	8
compensatory damages and $100,000 in punitive damages.	9
DISCUSSION	10
{3} 	On appeal, Plaintiff argues that the district court erred in denying her motions	11
for a directed verdict and for judgment notwithstanding the verdict, contending that	12
there was insufficient evidence to support the jury’s award of Defendant’s attorney	13
fees, which apparently form the sole basis of Defendant’s compensatory damage	14
award. A party who moves for a directed verdict after all the evidence has been	15
presented maintains its “right to challenge on appeal the sufficiency of the evidence	16
supporting the jury’s verdict.” Andrus v. Gas Co. of N.M., 1990-NMCA-049, ¶ 12,	17
110 N.M. 593, 798 P.2d 194. On appeal from a motion for directed verdict, we will	18
not reweigh the evidence. Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 35, 120	19
N.M. 133, 899 P.2d 576. “We only examine whether substantial evidence supports	20

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the denial of a directed verdict after viewing the facts and all reasonable inferences	1
in the light most favorable to the party resisting the motion.” Id. Similarly, “denial	2
of a judgment notwithstanding the verdict is reviewed for substantial evidence.” In	3
re Estate of Strozzi, 1995-NMCA-099, ¶ 13, 120 N.M. 541, 903 P.2d 852.	4
{4} 	In a malicious abuse of process claim, “[a] plaintiff may recover the normal	5
expenses of defending against the underlying claim.” DeVaney v. Thriftway Mktg.	6
Corp., 1998-NMSC-001, ¶ 38, 124 N.M. 512, 953 P.2d 277, overruled on other	7
grounds by Durham v. Guest, 2009-NMSC-007, 145 N.M. 694, 204 P.3d 19. “[T]he	8
tort 	of 	malicious 	abuse 	of 	process 	allows 	for 	recovery 	of 	attorney 	fees 	as	9
compensatory damages.” Chapman v. Varela, 2008-NMCA-108, ¶ 56, 144 N.M.	10
709, 191 P.3d 567, rev’d on other grounds by, 2009-NMSC-041, ¶¶ 1-2, 146 N.M.	11
680, 213 P.3d 1109. Plaintiff concedes that attorney fees are recoverable as damages	12
in a malicious abuse of process claim. 	However, on appeal, she argues that	13
Defendant was required to distinguish the costs associated with her defense of the	14
wrongful litigation from those in pursuit of her counterclaims, and that she	15
inadequately did so.	16
{5} 	Plaintiff argues that, in New Mexico, damages in a malicious abuse of process	17
case should only be recoverable for defense against the wrongful suit, not for pursuit	18
of the tort of malicious abuse of process itself, citing New Mexico cases along with	19
out-of-state case law and treatises, in support of her position. See Millennium Equity	20

4
Holdings, LLC v. Mahlowitz, 925 N.E.2d 513, 529 (Mass. 2010) (citing C.	1
McCormick, Damages § 66 (1935) (“a claimant in a malicious prosecution or abuse	2
of process action can recover attorney fees incurred in defending against the prior	3
wrongful litigation; however, under the general rule, he or she cannot recover	4
attorney fees incurred in bringing the malicious prosecution or abuse of process	5
action itself”)); 54 C.J.S. Malicious Prosecution § 97 (1987) (same). We need not	6
address this issue at this time because even if we assume Plaintiff is correct, see	7
Chapman, 2008-NMCA-108, ¶ 56 (“[T]he tort of malicious abuse of process allows	8
for recovery of attorney fees as compensatory damages.”); Dawley v. La Puerta	9
Architectural Antiques, Inc., 2003-NMCA-029, ¶ 43, 133 N.M. 389, 62 P.3d 1271	10
(reiterating “that New Mexico follows the [so-called] American Rule, which does	11
not ordinarily allow the recovery of attorney fees” in tort cases); see also Tech.	12
Computer 	Servs., 	Inc. 	v. 	Buckley, 	844 	P.2d 	1249, 	1256 	(Colo. 	App. 	1992)	13
(“Logically, the same rule should apply if the abuse of process claim is brought as a	14
counterclaim to wrongful litigation rather than as a later separate action.”); 2 D.B.	15
Dobbs, Law of Torts § 440, at 1242 (2001) (stating that recovery for malicious abuse	16
of process generally does not include counsel fees resulting from the “plaintiff’s own	17
counterclaims in the original suit”), we may still affirm in the present case, based on	18
our conclusion that there was sufficient evidence to support the jury award for	19
defense against the claims, as discussed further below.	20

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{6} 	We therefore turn to the undisputed facts to evaluate the sufficiency of the	1
evidence regarding Defendant’s attorney fees for defense of Plaintiff’s claims	2
against her. As pertinent to this issue, Defendant testified on direct examination as	3
follows:	4
Q. 	Have you incurred attorney[] fees and expenses from defending	5
this lawsuit?	6
A. 	Yes.	7
Q. 	So far, how much have you incurred in defending this lawsuit?	8
A. 	Including this week, which is expensive, over [$]160,000.	9
On cross-examination, Defendant testified that she did not know whether the	10
attorneys’ billing statements she received separately stated the time billed defending	11
claims, from the time billed for prosecuting her counterclaims.	12
Q. 	So you don’t know how much he charged defending against the	13
claims versus prosecuting your counterclaim?	14
A. 	I answered that question already.	15
Q. 	And you answered you don’t know?	16
A. 	I don’t know.	17
This is the only evidence presented at trial regarding Defendant’s damages—i.e., her	18
attorney fees.	19
{7} 	The jury was instructed that if they decided in favor of Defendant on the	20
malicious abuse of process claim, they “must then fix the amount of money which	21

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will reasonably and fairly compensate [Defendant] for any of the following elements	1
of damages proved by the [Defendant] to have resulted from the malicious abuse of	2
process: The attorney fees and expenses that [Defendant] incurred in connection	3
with the defense of the lawsuit filed by [Plaintiff].” See Muncey v. Eyeglass World,	4
LLC, 2012-NMCA-120, ¶ 21, 289 P.3d 1255 (“Jury instructions become the law of	5
the case against which the sufficiency of the evidence is to be measured.” (internal	6
quotation marks and citation omitted)).	7
{8} 	Viewing 	the 	evidence 	in 	the 	light 	most 	favorable 	to 	the 	verdict 	and	8
disregarding any inferences and evidence to the contrary, we hold that there was	9
sufficient evidence for the jury to conclude that Defendant’s attorney fees in	10
defending against the wrongful litigation was $160,000. Charles v. Regents of N.M.	11
State Univ., 2011-NMCA-057, ¶ 15, 150 N.M. 17, 256 P.3d 29. Although Plaintiff	12
contends that Defendant’s cross-examination testimony that her costs “of this suit”	13
total “something over $160,000,” and Defendant’s statement that she did not know	14
exactly how much of the attorney fees went to defense and to counterclaims	15
undermine 	her 	direct 	examination 	testimony, 	we 	reiterate 	that 	we 	disregard	16
inferences and evidence contrary to the jury’s determination, we defer to the jury’s	17
determinations 	regarding 	credibility 	of 	witnesses 	and 	reconciliation 	of	18
inconsistencies or contradictory evidence, we do not reweigh the evidence, and we	19
will not substitute our judgment for that of the jury. Id. ¶ 20; see N.M. Taxation &	20

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Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 20, 336 P.3d 436 (same).	1
Indeed, “[t]he question is not whether substantial evidence exists to support the	2
opposite result, but rather whether such evidence supports the result reached.”	3
Casias Trucking, 2014-NMCA-099, ¶ 20 (internal quotation marks and citation	4
omitted). We therefore affirm the district court’s denial of Plaintiff’s motions for	5
directed verdict and judgment notwithstanding the verdict. See Andrus, 1990-	6
NMCA-049, ¶ 12; In re Estate of Strozzi, 1995-NMCA-099, ¶ 13. Because we affirm	7
the compensatory damages award, we need not consider Plaintiff’s contention that	8
punitive damages would be unsupported in the absence of compensatory damages.	9
{9} 	Plaintiff additionally contends that the district court applied the “wrong legal	10
standard” to her motions; however, this argument 	merely restates Plaintiff’s	11
contention that a party is only entitled to attorney fees for defense against a wrongful	12
suit. As we explained above, we need not resolve this legal issue because the	13
evidence was sufficient in the present case to support the jury’s determination that	14
Defendant’s compensatory damages for her defense against the wrongful suit were	15
$160,000.	16
{10} 	Plaintiff also argues that Defendant failed to prove the reasonableness of the	17
attorney fees as her damage award and that she “could have presented . . . an expert	18
witness to offer a reasonableness opinion.” However, the jury was asked to	19
determine damages, which were comprised of Defendant’s attorney fees and was	20

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required to “fix [an] amount of money which will reasonably and fairly compensate	1
[Defendant] for any of the . . . elements of damages proved by [Defendant] to have	2
resulted from the malicious abuse of process.” See Martinez v. N.M. Dep’t of	3
Transp., 2013-NMSC-005, ¶ 47, 296 P.3d 468 (“Questions of reasonableness are	4
quintessential issues for a jury to resolve. In our system of justice, we place special	5
confidence in juries to sort through conflicting evidence and come to a reasonable	6
conclusion.” (internal quotation marks omitted)). In fixing $160,000 as that amount,	7
the jury clearly believed the amount of attorney fees Defendant claimed she accrued	8
in defense of the wrongful litigation was reasonable and fair, and, again, we will not	9
reweigh the evidence or substitute our judgment for that of the jury. See Casias	10
Trucking, 2014-NMCA-099, ¶ 20.	11
{12} 	Further, although Plaintiff contends that “[t]here is no room to doubt that the	12
jury recognized this problem” because the jury requested copies of the attorney fees	13
and expenses and stated that it could not base its verdict upon speculation, guess, or	14
conjecture, we are unpersuaded. First, the jury’s request does not indicate that it was	15
questioning the reasonableness of Defendant’s attorney fees, and, second, as	16
Defendant points out, the jury may have been seeking to award Defendant more than	17
$160,000 in compensatory damages, but did not feel it could do so without anything	18
more explicit than Defendant’s testimony that she spent “over $160,000” in	19
defending against the lawsuit.	20

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{13} 	Moreover, Plaintiff has failed to point to where in the record she preserved	1
her argument that the reasonableness of a party’s attorney fees, when raised as a part	2
of damages, must be independently proven—by expert testimony or otherwise—and	3
has not argued that this rises to the level of fundamental error. See Rule 12-321(A)	4
NMRA (“To preserve an issue for review, it must appear that a ruling or decision by	5
the trial court was fairly invoked.”); Crutchfield v. N.M. Dep’t of Taxation &	6
Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“[O]n appeal, the	7
party must specifically point out where, in the record, the party invoked the court’s	8
ruling on the issue.”); see also Estate of Gutierrez ex rel. Jaramillo v. Meteor	9
Monument, L.L.C., 2012-NMSC-004, ¶¶ 32–33, 274 P.3d 97 (stating that we apply	10
the doctrine of fundamental error in civil cases “under the most extraordinary and	11
limited circumstances”); State v. Barber, 2004-NMSC-019, ¶¶ 8, 14, 135 N.M. 621,	12
92 P.3d 633 (stating that the “doctrine of fundamental error applies only under	13
exceptional circumstances and only to prevent a miscarriage of justice” and “is to be	14
resorted to in criminal cases only for the protection of those whose innocence	15
appears indisputabl[e], or open to such question that it would shock the conscience	16
to permit the conviction to stand”); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329	17
P.3d 701 (“This Court has no duty to review an argument that is not adequately	18
developed.”). “Absent that citation to the record or any obvious preservation,” we	19
decline to further consider the issue. Crutchfield, 2005-NMCA-022, ¶ 14.	20

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{14} 	Finally, Plaintiff argues that Defendant failed to mitigate her damages.	1
However, this argument is unsupported by any relevant authority that persuades us	2
that Defendant needed to prove that she mitigated her attorney fees in order to justify	3
the jury’s award. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d	4
482 (“Where a party cites no authority to support an argument, we may assume no	5
such authority exists.”). We therefore decline to consider this argument further as	6
well. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078,	7
¶ 10, 125 N.M. 244, 959 P.2d 969 (reiterating that issues raised on appeal that are	8
unsupported by cited authority will not be considered on appeal).	9
{15} 	For these reasons, we affirm.	10
{16} 	IT IS SO ORDERED.	11
_________________________	12
LINDA M. VANZI, Judge	13
WE CONCUR:	14
_______________________________	15
JACQUELINE R. MEDINA, Judge	16
_______________________________	17
BRIANA H. ZAMORA, Judge	18