1

Certiorari Granted, December 19, 2014, No. 34,978

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-003

Filing Date: October 15, 2014

Docket No. 32,028

UTTI ATHERTON, LAURA JARAMILLO, 

JOHN DOE 1-99, and JANE DOE 1-99, 

Plaintiffs-Appellees,

and

STATE OF NEW MEXICO, ex rel.,

GARY K. KING, Attorney General,

Plaintiff-Appellee,

v.

MICHAEL J. GOPIN, d/b/a LAW OFFICES

OF MICHAEL J. GOPIN,

Defendant-Appellant. 

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

James T. Martin, District Judge 

Robert (Tito) Meyer

Las Cruces, NM

Kenneth L. Beal

Las Cruces, NM

for Appellees

Gary K. King, Attorney General 

Santa Fe, NM

Tonya Noonan Herring, Special Assistant Attorney General 

Rebecca C. Branch, Special Assistant Attorney General 
2

Ismael L. Camacho, Special Assistant Attorney General 

Albuquerque, NM

for Appellee Attorney General

Caren I. Friedman

Santa Fe, NM

Gorence & Oliveros, P.C.

Robert J. Gorence

Albuquerque, NM

for Appellant

OPINION

BUSTAMANTE, Judge.

{1} We are presented with a legal Gordian knot that has defied all attempts to neatly

unravel. As we will explain, certain aspects of the case tempted us to simply slice through

the knot and affirm. Other aspects suggested that reversal was more appropriate. We

conclude that reversal is required.

{2} Michael J. Gopin appeals from a judgment entered against him under the New

Mexico Unfair Practices Act (UPA). NMSA 1978, §§ 57-12-1 to -26 (1967, as amended

through 2009). The judgment included treble damage awards in favor of twelve individual

Plaintiffs totaling $216,222.57, $757,358.56 in favor of the New Mexico Attorney General

as restitution for 110 consumers, and $1,570,000 in civil penalties in favor of the Attorney

General. Gopin asserts four broad theories of error: (1) that the district court improperly

granted a partial summary judgment against him early in the litigation after it refused to

allow him to file a late factual response to Plaintiffs’ motion; (2) that the district court

compounded its initial error by applying the partial summary judgment in favor of Plaintiffs

who were later allowed to join the litigation; (3) that the district court erred in deciding that

Gopin violated the UPA and that it applied an improperly low standard of conduct when it

concluded that Gopin’s violations were willful; and (4) that the awards of civil penalties and

restitution are excessive and thus arbitrary.

{3} We conclude that the district court did err when it refused to allow Gopin to file a

factual response to the early motion for partial summary judgment. Its error stemmed from

a misreading of our opinion in Lujan v. City of Albuquerque, 2003-NMCA-104, 134 N.M.

207, 75 P.3d 423. The partial summary judgment thus entered materially influenced the

litigation as it progressed because it settled the question of basic UPA violations and other

substantive contractual issues for the remainder of the litigation. Once the partial summary

judgment was entered and then applied in favor of all later-joined parties, the only issue left
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to be litigated was whether the violations were willful within the meaning of the UPA.

{4} We reverse the finding of willfulness in favor of the Attorney General because it is

not clear what the legal standard of conduct is or what standard the district court applied.

We also conclude that—in any event—it was error for the district court to grant the Attorney

General summary judgment on the issue. We reverse the judgment for treble damages in

favor of the individual Plaintiffs because it is reliant on the initial improper summary

judgment and because, again, it is not apparent what standard of conduct the district court

applied.

PROCEDURAL BACKGROUND

{5} Gopin—a lawyer licensed to practice only in Texas—is the sole owner of the Law

Offices of Michael J. Gopin, a personal injury law firm with offices in El Paso, Texas. In

late 2004, Gopin opened an office in Las Cruces, New Mexico. Gopin ran the practice at all

applicable times as a sole proprietorship. Though he was not licensed in New Mexico,

Gopin employed attorneys who were licensed in New Mexico to help staff the Las Cruces

office.

{6} On December 4, 2007, two of Gopin’s former clients filed a complaint for damages

against him asserting violations of the UPA and asserting generally that Gopin’s advertising

was misleading because legal services were improperly being provided by non-lawyer staff

contrary to Section 57-12-2(D)(5), (7), (9), and (17). The complaint also asserted that Gopin

was engaged in the unauthorized practice of law. The complaint purported to be filed on

behalf of John and Jane Does 1-99 and named the Attorney General as an involuntary

Plaintiff. The complaint and first round of discovery requests were served on December 5,

2007. Gopin answered the complaint with a general denial on January 7, 2008. The answer

was signed by an attorney/employee of the Las Cruces office. The record does not reveal

whether Gopin responded to the discovery requests at that point.

{7} Two months later, Plaintiffs filed a motion for partial summary judgment as to four

specific propositions:

I. Declaring having non-attorneys interview and contract with clients

for legal services constitutes the unauthorized practice of law and

Plaintiffs’ contracts and all such similar contracts are void; and

II. Declaring . . . Gopin’s practice of taking assignment of an undivided

interest in Plaintiffs’ causes of action violates the [r]ules of

[p]rofessional [c]onduct for the legal practice in New Mexico and

Plaintiffs’ contracts and all such contracts are void; and

III. Declaring . . . Gopin’s practice of charging a contingent fee for

collecting personal injury protection (PIP)/med pay insurance
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benefits in Plaintiffs’ causes of action violates the [r]ules of

[p]rofessional [c]onduct for the legal practice in New Mexico and

Plaintiffs’ contracts and all such contracts are void[; and]

IV. Declaring . . . Gopin’s advertising of his law practice and the

operation of his law practice in New Mexico is in violation of the

[UPA].

We note that propositions II and III were not mentioned in the complaint. The motion was

served on Gopin on March 3, 2008. Gopin did not respond to the motion within the fifteenday period set by Rule 1-056(D)(2) NMRA. On April 4, Plaintiffs filed a motion for entry

of judgment based on Gopin’s failure to respond.

{8} On April 22, Gopin filed a motion seeking an extension of time to respond to the

motion for partial summary judgment. His rationale was that he had been seeking counsel

and insurance coverage and had just determined that his insurance carriers were not going

to extend coverage to the case. He had hired private counsel who entered his appearance a

few days before. Gopin also asserted that he had been in contact with Plaintiffs’ counsel and

had been under the impression that the matter might be dismissed because Gopin did have

New Mexico-licensed attorneys in the Las Cruces office. After a hearing, the district court

allowed Gopin to file a response on “legal issues only” but did not permit him to respond to

any factual assertions. Rather, “all material facts asserted and properly supported in the

summary judgment motion” were accepted as true.

{9} Gopin’s memorandum in opposition to the motion for partial summary judgment

conceded, per the district court’s prior ruling, that he was bound by the facts properly

supported in the motion, but he argued that certain of the facts were not supported by

evidence. In particular, he argued that his advertising did not indicate that he was licensed

in New Mexico. He also argued that there were no facts to support the notion that his fee

structure was different or higher than other attorneys. Interestingly, Gopin attached an

affidavit signed by his Las Cruces staff attorney addressing the form of retainer contract used

by the Gopin firm in New Mexico as well as the way the Las Cruces office was organized

and operated. The affidavit could be read to confirm at least some of the factual assertions

of the motion for summary judgment.

{10} The district court held what turned out to be a pro forma hearing on the motion—pro

forma because the parties relied on their briefs with no elaboration. Gopin did, however,

point out that Plaintiffs’ reliance on the attorney code of professional conduct was improper

given the caution in the code’s commentary that “[v]iolation of a rule should not itself give

rise to a cause of action against a lawyer nor should it create any presumption in such a case

that a legal duty has been breached.” Rules of Professional Conduct Scope cmt. NMRA.

{11} The district court nonetheless granted the motion for partial summary judgment. The

order in fact attached the motion as an exhibit. Thus, Gopin’s retainer agreement was voided
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as of June 2008. In addition, his advertising and operation of his law practice were held to

be in violation of the UPA.

{12} After entry of the order granting partial summary judgment, Gopin settled with the

original named plaintiffs, with the exception of the issue of attorney fees, and they were

dismissed from the action as of May 2009.

{13} Regardless of their dismissal, the suit continued, first in the person of the Attorney

General and later by twelve individuals who were allowed to intervene. By stipulation, the

Attorney General was allowed to become a full Plaintiff in May 2008, and he filed his own

complaint at that time. The Attorney General’s complaint tracked the original complaint to

the extent that it relied on Gopin’s advertising to support its assertion that Gopin

misrepresented his licensure status. The Attorney General’s complaint added two

allegations. It alleged that Gopin had an arrangement with a local chiropractor for soliciting

clients that violated NMSA 1978, Section 36-2-29 (1949). The Attorney General alleged

that the retainer agreements thus generated were void pursuant to NMSA 1978, Section 36-

2-35 (1949). In addition, the Attorney General’s complaint explicitly alleged that Gopin’s

retainer agreement was void as an unconscionable trade practice because it was presented

to clients by non-lawyer staff and because it gave Gopin an ownership in the case rather than

a lien on the proceeds of any recovery. A few months later, the Attorney General was

allowed to amend his complaint to add an explicit request for restitution as a remedy. The

claim for restitution was premised on the partial summary judgment previously entered in

favor of the now- dismissed original plaintiffs.

{14} As the Attorney General’s claims were being litigated, twelve individuals sought to

intervene as substitutes for the Jane and John Does. The district court allowed them to

intervene over Gopin’s objection. The order allowing the individuals to intervene provided

that “all of the [o]rders and [j]udgments entered in this matter should be binding on all of the

parties to the case, including movants.” Thus, all active Plaintiffs were provided the benefit

of the partial summary judgment entered in favor of the now-dismissed original plaintiffs.

{15} Explicitly relying on the previously entered partial summary judgment and its finding

of a UPA violation, the individual Plaintiffs and the Attorney General moved for summary

judgment on the issue of willfulness under the UPA. After a combined oral argument on the

motions, the district court denied the individual Plaintiffs’ motion but granted the Attorney

General’s motion. It is unclear how the district court differentiated between the motions.

It appears likely it concluded that the standard of willfulness under the UPA for civil

penalties sought by the Attorney General differed from the standard required for treble

damages sought by the individuals.

{16} Immediately upon granting the Attorney General’s motion, the district court imposed

the maximum civil penalty allowed under the UPA—$5,000—per “violation.” On inquiry,

the district court clarified that the penalty was per client. The district court did not elaborate

at the hearing on the basis for its decision to impose the maximum penalty. The order
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entered after the hearing similarly does not explain the basis for the finding of willfulness

or imposition of the maximum penalty. The order simply relies on the earlier partial

summary judgment.

{17} The parties proceeded to a bench trial on the issue of willfulness only as to the

individual Plaintiffs. The pretrial order recognized willfulness as the only issue and noted

the 2008 partial summary judgment. With regard to the Attorney General, the sole issue was

the amount of restitution payable to the 110 clients who responded to the Attorney General’s

letters informing all of Gopin’s former clients of the existence of the action. At the close of

testimony, the district court dictated findings of fact from the bench, which largely reflect

the written findings he later entered. The district court started its oral findings by stating:

“First, I will adopt as findings of fact all of the undisputed facts from the March 13th, 2008

summary judgment order.” This appeal followed.

DISCUSSION

A. The 2008 Summary Judgment

1. Standard of Review

{18} Gopin argues that the district court erred when it refused to allow him to respond to

the factual assertions in the partial summary judgment motion because he demonstrated

excusable neglect. We review the argument under our abuse of discretion standard. State

v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363 (“An abuse of discretion

occurs when the ruling is clearly against the logic and effect of the facts and circumstances

of the case.” (internal quotation marks and citation omitted)). But our case law is also clear

that “we may characterize as an abuse of discretion a discretionary decision that ‘is premised

on a misapprehension of the law.’ ” N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (alteration and citation omitted).

2. The 2008 Partial Summary Judgment is Appealable

{19} Before we address the merits of the issue, we must address Plaintiffs’ argument that

Gopin’s appeal is untimely. Plaintiffs maintain that the June 2008 partial summary judgment

was final enough when it was entered that Gopin should have appealed then. Plaintiffs

recognize that their argument may be contrary to our well-grounded antipathy to piecemeal

appeals. Citing Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 26, 113 N.M. 231,

824 P.2d 1033, they acknowledge our strong preference that all issues of law and fact be

determined to the fullest extent possible in the district court. Plaintiffs argue that an

exception should be made in this case because the partial summary judgment became the

final word on basic UPA violations and “[was] determinative of the remaining issues in the

case.” Plaintiffs also note that this Court treated the 2008 order as final in a prior appeal

stemming from this action. See Atherton v. Gopin, 2012-NMCA-023, 272 P.3d 700.
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{20} We disagree with Plaintiffs that the 2008 order was final enough to require an appeal

from it then. We note first that the order on its face reflects the grant of a partial summary

judgment. The word “partial” provides a clue—if not a red flag—that the order was not

intended to be final, at least for purposes of appeal. The order left damages, attorney fees,

and the issue of willfulness undecided. Our case law following Kelly Inn No. 102, Inc.

would not regard such an order as appealable. See Gates v. N.M. Taxation & Revenue Dep’t,

2008-NMCA-023, ¶ 8, 143 N.M. 446, 176 P.3d 1178. Plaintiffs cite to Rule 1-054(B)(1) and

(2) NMRA but make no effort to state why they apply or support their position. Neither rule

applies. The district court never made the “express determination that there is no just reason

for delay” under Rule 1-054(B)(1). And there was never a judgment entered “adjudicating

all issues” as to the original plaintiffs under Rule 1-054(B)(2). Instead, Gopin and the

original plaintiffs settled their cases, and an order of dismissal based on the settlement was

entered.

{21} Our opinion in the prior appeal is not to the contrary. The finality of the partial

summary judgment order was not an issue in the case. Rather, the case addressed an issue

that arose after the settlement: the availability of a multiplier in awarding attorney fees

under the UPA. Atherton, 2012-NMCA-023, ¶¶ 1, 2. Thus, we proceed to the merits.

3. The District Court Misapplied Lujan

{22} As explained above, Gopin did not file a response to the motion for partial summary

judgment within the fifteen-day period required by Rule 1-056(D)(2). The district court’s

comments at the hearing for extension of time and its order denying the request make clear

that it thought that Lujan prevented it from considering or granting any request for an

extension of time and that the concept of excusable neglect was now irrelevant under Lujan.

At the hearing, the district court quoted part of Lujan and opined that the failure to meet the

rule deadline resulted in an irrevocable waiver of the right to respond to factual assertions

in the motion. The order denying an extension of time to respond states:

This [c]ourt is mandated to follow appellate precedent such as Lujan . . . ,

holding that by failing to file a response to a motion for summary judgment

within the time specified by rule, the non-moving party waives the right to

respond to or to controvert the facts asserted in the summary judgment

motion and the [c]ourt should accept as true all material facts asserted and

properly supported in the summary judgment motion[.]

This statement clearly indicates that the district court thought that Lujan prevented it from

considering any reason for the failure to file a timely response. This is a misreading of

Lujan, though perhaps an understandable one.

{23} In Lujan, the district court granted a summary judgment of dismissal after the

plaintiffs failed to timely respond in any way to three motions for summary judgment. The

district court in Lujan relied on Rule 1-007.1(D) NMRA (2005). Lujan, 2003-NMCA-104,
1

This language was deleted from Rule 1-007.1(D) in November 2008.

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¶¶ 1, 4. At the time of the partial summary judgment motion, Rule 1-007.1(D) read:

Unless otherwise specifically provided in these rules, any written

response and all affidavits, depositions or other documentary evidence in

support of the response shall be filed within fifteen (15) days after service of

the motion. Failure to file a response within the prescribed time period

constitutes consent to grant the motion, is a waiver of the notice provisions

of Paragraph C of Rule 1-058 NMRA, and the court may enter an appropriate

order.

Lujan, 2003-NMCA-104, ¶ 15.

{24} As we noted in Lujan, despite the language of Rule 1-007.1(D) that a failure to timely

respond “constitutes consent to grant the motion,”1

 when the motion at issue is for summary

judgment, it is improper to resort to the “consent” clause as a basis for granting the motion.

Lujan, 2003-NMCA-104, ¶¶ 12, 18. Rather, “the district court must assess [despite the lack

of a response] whether, on the merits, the moving party satisfied the burden under Rule 1-

056(C).” Lujan, 2003-NMCA-104, ¶ 18. This is the ruling and the message of Lujan.

{25} To illustrate and emphasize the message, Lujan quoted a passage from Reed v.

Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002), reflecting the same rule in the federal courts.

In the middle of the quote from Reed appears the sentence that the district court below relied

on for its ruling: “By failing to file a response within the time specified by the local rule, the

nonmoving party waives the right to respond or to controvert the facts asserted in the

summary judgment motion.” Id.

{26} This sentence does not represent New Mexico’s approach to considering summary

judgment motions. The entire quote from Reed came from a paragraph in which it

summarized the prior discussion in the case. The reference to the “local rule” was to Kansas

Local Rule 7.4. By referring to it, the Tenth Circuit was not making the local rule apply

generally; it was merely being descriptive. This was made clear in Sutton v. Corrections

Corp. of America, No. 06-CV-01606-DME-KLM, 2008 WL 2797008 (D. Colo. July 17,

2008). In Sutton, a party moving for summary judgment cited Reed and argued that because

the plaintiff had not timely responded, he had waived the right to controvert the facts in the

motion. Tenth Circuit Judge Ebel, sitting as a district judge, rejected the argument, noting

that “the District of Colorado does not have such a local rule[.]” Sutton, 2008 WL 2797008

at *2.

{27} New Mexico does not have such a rule. Indeed, to our mind, it would be passing

strange to import such a draconian procedure into New Mexico summary judgment law. It

would be antithetical to our strong bent in favor of deciding matters on their merits. And
2

Given this determination, we need not consider the parties’ arguments about the

excusable neglect aspects of Gopin’s motion for an extension of time. 

3

Only at oral argument did the Attorney General and counsel for some of the

individuals obliquely assert that the trial cured whatever error may have occurred before. 

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there is simply no reasonable basis on which Lujan can be read to negate the applicability

of our concept of excusable neglect. If a failure to respond does not result in consent to grant

the motion, neither should it result in a waiver of the ability to respond. We reject any such

reading of Lujan.

{28} Given that the district court misread and misapplied the law applicable to Gopin’s

request for an extension of time, it necessarily abused its discretion in denying it.2

{29} The issue that arises now is the proper remedy. Normally, of course, a mistake this

basic at the very beginning of a case would require reversal if the judgment entered after the

mistake ended the case. The effect of the district court’s error was to prevent Gopin from

controverting the facts contained in the motion. In this circumstance, it would be improper

to consider the motion on the merits as described in Lujan. In addition, although the

judgment did end consideration of certain basic issues, it merely set the stage for the

litigation that ensued. The question arises what we should—or can—do with the factual

material that came to light as the case progressed.

{30} None of the parties address this problem and neither takes into account facts that

came to light as the litigation progressed. Their approach to this part of the appeal is binary.

Gopin argues that a full reversal is the only fair resolution, while Plaintiffs insist that we

should conduct a merits review and that affirmance is the proper outcome given the

presentation in the original motion.3

 Both approaches would have us ignore the facts that

came to light as the litigation progressed, though to different effect and for different reasons.

Gopin must appreciate that the later- produced evidence—including all of his retainer

agreements and settlement disbursement statements, and the revelations about his

arrangement with the chiropractor—work to his detriment. On the other hand, Plaintiffs

have an interest in preserving the partial summary judgment since it is the sole basis for their

assertion that Gopin violated the UPA as to them but at the expense of providing Gopin no

remedy for the district court’s early mistake.

{31} Hence our dilemma: is it possible to remedy the early error without ignoring the

march of litigation events? We see no straightforward solution.

{32} We conclude that reversal of the partial summary judgment without examining the

rest of the record is the best course for a number of reasons. First, it best honors New

Mexico’s approach to summary judgment and clarifies the apparent misinterpretation of
4

It would technically be possible for this Court to undertake a full review of the

record, but we cannot provide a forum for the full panoply of potential arguments we foresee

on remand. And because such an approach requires a Monday morning quarterback-type

hindsight, it seems quite problematic.

5

We also reverse the conclusion of willfulness as to the individual Plaintiffs though

on slightly different grounds. 

10

Lujan that drove the district court’s decision.

{33} Second, it results in a remand to a forum better positioned to reconsider the question

of UPA violations on a fuller record.4 The early partial summary judgment short-circuited

any full consideration of the nature of the UPA violations present and the particular UPA

sections at work. As a result, the partial summary judgment is vague, if not enigmatic. For

example, the first three of the four subjects of the partial summary judgment address

contractual aspects of Gopin’s retainer agreement. Even if accurate, we do not see how they

constitute violations of the UPA. We note that the district court did not declare the

provisions unconscionable, though that would provide a basis for a UPA violation. No other

basis for a UPA violation appears in the judgment. We expect that on remand the parties and

the district court will address these analytical issues explicitly. Item IV of the summary

judgment refers to “advertising,” which is a subject of the UPA. But it also refers to the

“operation of his law practice in New Mexico” as being in violation of the UPA. It is

unclear what this phrase refers to. We decline to speculate further and again expect

clarification on remand.

{34} Third, reversal obviates the need to address Gopin’s challenges to the district court’s

decision to apply the partial summary judgment in favor of the later-joined Plaintiffs and the

Attorney General. That decision presents thorny practical and legal questions. As a

practical matter, it seems problematic to apply a summary judgment based on the experience

of two clients in favor of hundreds of other clients. To generalize that way might be possible

on a proper record, but here it was done before the district court was privy to any broader

information about how Gopin ran the practice in Las Cruces. We are also skeptical that the

law of the case doctrine sufficiently supports the district court’s decision. But we need not

resolve these issues if we remand for reconsideration. The Attorney General and the

individual Plaintiffs can make their own independent case for whether Gopin violated the

UPA as to them.

{35} Fourth, as we will explain later in this Opinion, we have determined that the

summary judgment entered in favor of the Attorney General as to willfulness must be

reversed at any rate.5

 Thus, the matter must be remanded for reconsideration of that issue,

and it is apt to allow the district court to reconsider the foundation of the case in a fully

adversarial posture.
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{36} Finally, we conclude that this is not an appropriate case for application of the “right

for any reason” approach to appellate review. Generally, an appellate court may affirm a

trial court ruling on a ground not relied on below if reliance on the new ground would not

be unfair to the appellant. Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994

P.2d 1154. When applying the right for any reason rationale, appellate courts must be

careful not to “assume the role of the trial court and delve into fact-dependent inquiries.”

Id. (alterations, internal quotation marks, and citation omitted). “[W]e may affirm the

district court’s order on grounds not relied upon by the district court if those grounds do not

require us to look beyond the factual allegations that were raised and considered below.”

State v. Wasson, 1998-NMCA-087, ¶ 16, 125 N.M. 656, 964 P.2d 820.

{37} To apply the right for any reason rationale here would require us to speculate that

there was no factual presentation Gopin could have made in response to the motion for

partial summary judgment that could have swayed the district court. We will not so

speculate.

{38} We next consider whether we should analyze any of the facts developed as the

litigation progressed to see if they support affirmance. We conclude we cannot and should

not because to do so would be to “look beyond” the factual picture the district court initially

considered. The same limitation applies to the evidence admitted at the trial finally held in

2012. We, of course, recognize that some of the evidence admitted at trial can be seen as

relevant to the issues decided by the partial summary judgment. If the trial had been

conducted by the parties to encompass all issues, we could perhaps rely on it to, in a sense,

cure the early error. Cf. Corona v. Corona, 2014-NMCA-071, ¶¶ 8-9, 329 P.3d 701. But

as we noted above, the parties and the district court were clear that the only triable issue was

whether Gopin acted willfully under the UPA. Despite the Venn diagram-like overlap of

evidentiary relevance, we conclude that considering the trial evidence would have us acting

as a trier of fact, considering and weighing evidence in a way the district court did not. It

is improper for us to do so. Rather, the trial court should undertake the task in the first

instance.

{39} Since we have concluded that the partial summary judgment must be reversed and

that it is not appropriate for this Court to comb the record for ways to excuse the error, we

could summarily reverse all of the ensuing substantive orders and remand for further

proceedings. After all, without a basic finding of a UPA violation, it is inappropriate to

consider and rule on whether the violations were willful. We have decided not to rule

summarily, however, because the parties have argued issues that are sure to recur on remand,

and it would be useful to address them in aid of the work to be done on remand yet to be

done by the district court. In particular, the parties have addressed what constitutes “willful”

conduct under the UPA and the propriety of the penalty imposed by the district court. We

will address both.

B. Summary Judgment in Favor of the Attorney General as to Willfulness Was

Improper
6

The individual plaintiffs had previously filed their motion for summary judgment

as to willfulness.

7

The district court specifically relied on the original partial summary judgment to

state that a violation of the UPA had already been determined. 

12

{40} A few months before trial, the Attorney General moved for summary judgment as to

whether Gopin’s “advertisement willfully violated the [UPA] when [he] failed to disclose

his jurisdictional limitation and failed to deliver a ‘free initial consultation.’ ”6

 As was the

norm in the case at that point, the motion relied on the original partial summary

judgment—in this instance, items I and IV—for its foundation. The motion posited fifteen

statements of undisputed material facts describing how Gopin ran the Las Cruces office and

the advertising he used for the practice. The most salient of the assertedly undisputed facts

were that his yellow pages advertising willfully did not disclose his jurisdiction limitation

and that none of Gopin’s clients ever met or spoke with an attorney before they were

presented with and signed a retainer agreement. The motion included excerpts from Gopin’s

deposition in which he agreed that he had a say in or controlled the content of all his

advertising. The motion then incorporated in full several prior motions filed with the district

court, including the original motion for partial summary judgment and the Attorney

General’s responses to earlier motions filed by Gopin. As Gopin noted in his response to

the motion, the Attorney General did not include any analysis of the factual showing needed

to prove willfulness.

{41} Gopin’s response noted generally that the Attorney General’s facts were disputed or

were simply irrelevant to the issue of willfulness. Gopin’s factual response relied on his own

affidavit and letters from the Disciplinary Board of the Supreme Court approving—with

some exceptions and suggestions—his ability to open a law office in New Mexico and

advertise it so long as he had New Mexico-licensed attorneys actually staffing the office.

As to the applicable legal standard, Gopin argued that in order to distinguish the required

element of “knowing” action under the UPA, the concept of willfulness should be interpreted

to require an intent to do wrong or cause injury or an utter disregard for the consequences

of one’s acts or failure to act.

1. Willfulness Standard

{42} The district court held one hearing on the individual Plaintiffs’ and the Attorney

General’s motions. During the hearing, the district court displayed some uncertainty as to

the applicable definition for willfulness. With regard to the individual plaintiffs’ motion, he

stated he was inclined to apply the UJI definition, but opined that application of the standard

might be different depending on whether he ruled as to Gopin in his individual capacity as

opposed to in his capacity as the owner of a sole proprietorship. In the end, the district court

denied summary judgment to the individual Plaintiffs.7
8

We note that Plaintiffs concede on appeal that the standard for willfulness is actually

the same for treble damages and civil penalties. 

13

{43} In contrast, the district court granted the Attorney General’s motion opining that

“there is not the same willfulness standard applied to the [A]ttorney [G]eneral’s complaint

as it applies to the individual clients.”8

 The district court’s rationale was that “Judge Robles

has already declared his method, act, and practice unlawful under the UPA” and that Gopin

had consciously made all the decisions about advertising and, as such, his decisions were

willful.

{44} The order of summary judgment did not explain the district court’s rationale any

further. The operative paragraphs of the order provide:

1. The [o]rder [g]ranting [Plaintiffs’ m]otion for [p]artial [s]ummary

[j]udgment filed March 13, 2008, by this [c]ourt dated June 3, 2008

declared that Defendant’s method, act and practice of advertising for

legal services, was unlawful.

2. There are no disputed issues of material fact that the advertising used

by . . . Gopin violated the [UPA].

3. The advertising put forth by . . . Gopin was done willfully.

4. . . . Gopin is subject to civil money penalties under the [UPA].

{45} It is impossible to glean from this record any clear understanding of the legal

standard the district court used in making its decision that Gopin acted willfully, other than

that Gopin acted “intentionally.” The district court did not articulate how or whether

Gopin’s intentional acts differed from acts “knowingly made,” which is the requirement for

actionable misrepresentations under the UPA. Section 57-12-2(D). We are left with the

distinct impression that the district court equated “knowingly made” with “willful.” To do

so would be error.

{46} The three essential elements of basic UPA claims are:

(1) the defendant made an oral or written statement, a visual description or

a representation of any kind that was either false or misleading; (2) the false

or misleading representation was knowingly made in connection with the

sale, lease, rental, or loan of goods or services in the regular course of the

defendant’s business; and (3) the representation was of the type that may,

tends to, or does deceive or mislead any person.

Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166 P.3d 1091;
9

We also note that UJI 13-1707 does not include any reference to “knowingly made.”

In contrast, UJI 13-1718 NMRA addressing punitive damages for insurance bad faith claims

refers to UJI 13-1827 NMRA for its definitions of culpable mental state.

14

see § 57-12-2(D).

{47} Our case law makes clear that “knowingly made” is an integral part of all UPA

claims and that it must be the subject of actual proof. Stevenson v. Louis Dreyfus Corp.,

1991-NMSC-051, ¶¶ 13-15, 18, 112 N.M. 97, 811 P.2d 1308 (holding that the defendants’

motion for directed verdict should have been granted because there was no evidence that the

defendants knowingly made any false or misleading statements). Stevenson does not require

proof of actual knowledge in all circumstances. Rather, knowledge can be proven by

showing that “in the exercise of reasonable diligence [the defendant] should have been aware

that the statement was false or misleading.” Id. ¶ 17; see Diversey Corp. v. Chem-Source

Corp., 1998-NMCA-112, ¶ 17, 125 N.M. 748, 965 P.2d 332 (“The gravamen of an unfair

trade practice is a misleading, false, or deceptive statement made knowingly in connection

with the sale of goods or services.”).

{48} The UPA provides for two tiers of monetary remedies for individuals. For a basic

violation, a private party can recover “actual damages or the sum of one hundred dollars

($100), whichever is greater.” Section 57-12-10(B). For more aggravated

circumstances—where the defendant “has willfully engaged in the trade practice”—“the

court may award up to three times actual damage or three hundred dollars ($300), whichever

is greater[.]” Id.

{49} The UPA similarly provides for two tiers of remedy in actions brought by the

Attorney General. For basic violations of the UPA, the Attorney General can seek injunctive

relief and restitution. Section 57-12-8. For more aggravated circumstances—where a person

has “willfully used a method, act or practice declared unlawful by the [UPA]”—the Attorney

General can seek “a civil penalty of not exceeding five thousand dollars ($5,000) per

violation.” Section 57-12-11.

{50} Given the material difference in the available remedies, it is clear that the Legislature

contemplated proof of some culpable mental state to demonstrate “willfulness.” Sloan v.

State Farm Mut. Auto. Ins. Co., 2004-NMSC-004, ¶ 2, 135 N.M. 106, 85 P.3d 230 (equating

a “culpable mental state” with “willful”). Unfortunately, the Legislature did not provide a

definition in the UPA. And, interestingly, no New Mexico case has addressed the issue.

Perhaps the lack of case law explains why our Uniform Jury Instructions also do not address

the issue. See UJI 13-1707 NMRA.9

{51} Gopin argues that willfulness should be deemed to include an “actual or deliberate

intention to injure or harm another.” Matthews v. State, 1991-NMCA-116, ¶ 21, 113 N.M.

291, 825 P.2d 224. We agree with the Plaintiffs that this is a step too far and would unduly
10It is unclear what standard for willfulness the district court applied to the individual

claimants at trial, but its conclusion of law “U” (“All of the actions were known by and

under the direction of . . . Gopin and are therefore willful and deliberate.”) can be read to

equate knowing with willful. 

15

restrict the ability of individuals and the Attorney General to enforce what is clearly a

remedial statute.

{52} Plaintiffs argue that willfulness can be distinguished by requiring an element of

design or deliberateness. They draw a distinction between acting by design rather than as

a result of “confusion, mistake or faulty memory.” The Plaintiffs’ approach, however, does

not provide any discernable distance between “knowingly made” and “willfully made.” The

distinction Plaintiffs argue for is in most ways inherent in the concept of “knowingly made.”

Something more is required.

{53} For that something more, we turn to the definition of willful found in UJI 13-1827.

This is the jury instruction used for consideration of punitive damages, but we conclude that

it provides useful guidance—if only because treble damages and the UPA civil penalties are

forms of remedy intended to punish a wrongdoer. McLelland v. United Wis. Life Ins. Co.,

1999-NMCA-055, ¶ 10, 127 N.M. 303, 980 P.2d 86.

{54} UJI 13-1827 provides that “[w]illful conduct is the intentional doing of an act with

knowledge that harm may result.” This definition does not include the intent to harm

element desired by Gopin, but it does provide a clear method for proof of a culpable mental

state by requiring a showing of deliberation and a disregard for foreseeable risk. Proof of

these two elements provides a solid foundation for punishment. See Pub. Serv. Co. of N.M.

v. Diamond D Constr. Co., 2001-NMCA-082, ¶¶ 2, 59, 131 N.M. 100, 33 P.3d 651 (holding

that a finding of willful conduct would support an award of 15% as a post-judgment rate).

On remand, the district court should reconsider the Plaintiffs’ requests for treble damages

and penalties in light of this discussion.10

2. Amount of the Penalty

{55} At the conclusion of the hearing on the motions for summary judgment on

willfulness, the district court imposed the maximum UPA-allowed penalty of $5,000 per

client against Gopin. The district court did not provide any explanation for its decision,

either at the hearing or in the order it later entered. Gopin argues that imposing the

maximum penalty is excessive and constitutes an abuse of discretion.

{56} Since we are reversing the entire judgment, we will not consider the issue on the
11An argument could be made that under Aken v. Plains Electric Generation &

Transmission Cooperative, Inc., 2002-NMSC-021, ¶ 17, 132 N.M. 401, 49 P.3d 662, our

review should be de novo; but, again, we need not deal with that question here. 

16

merits.11 We note, however, that the lack of any rationale from the district court could well

have led us to remand for an explanation sufficient to allow review. See State ex rel. Human

Servs. Dep’t v. Coleman, 1986-NMCA-074, ¶ 26, 104 N.M. 500, 723 P.2d 971, abrogated

on other grounds by State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. On

remand, if the trial court reaches the stage of considering a penalty, it should provide an

explanation of all factors leading to its decision. The explanation should take into

consideration the purpose of the UPA plus the “enormity and nature of the wrong and any

aggravating circumstances.” Green Tree Acceptance, Inc. v. Layton, 1989-NMSC-006, ¶

9, 108 N.M. 171, 769 P.2d 84. The district court should also keep in mind that there are

likely procedural and substantive due process implications to how it arrives at its decision

and to its final determination. Aken, 2002-NMSC-021, ¶¶ 13, 20 (discussing procedural and

substantive due process as they relate to punitive damages).

C. PROCEEDINGS ON REMAND

{57} We are fully aware of the implications of our decision to reverse in this case. The

matter was the subject of ongoing—albeit improperly truncated—litigation for over four

years. Much of the factual development necessary to decide the case has likely occurred.

Our reversal will allow Gopin to bring to bear whatever new facts and arguments he may be

able to muster as to whether his acts constitute a violation of the UPA and the issue of

willfulness. We see no need for the parties to repeat the trial that has already been held. The

district court can rely on the testimony already provided. But we leave the process of

evidentiary production to the district court to determine.

{58} Gopin will not be allowed to argue that attorneys as a profession are not subject to

the UPA. He failed to make the argument previously, and this remand is not an opportunity

to make the argument for the first time. See Grassie v. Roswell Hosp. Corp., 2011-NMCA024, ¶¶ 84-87, 150 N.M. 283, 258 P.3d 1075.

{59} Finally, we urge the parties and the district court to clarify and specify which

provisions of the UPA are at work and how they apply. The orders entered previously refer

vaguely to UPA violations with no detail. The asserted violations flowing from Gopin’s

advertising are relatively clear, but others, e.g., the form of Gopin’s retainer agreement and

the relationship with the chiropractor, are more obscure. Identification of the provisions

violated would be very helpful if the matter returns for further appeals.

CONCLUSION

{60} The matter is reversed and remanded for further proceedings consistent with this
17

Opinion.

{61} IT IS SO ORDERED.

_____________________________________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________

RODERICK T. KENNEDY, Chief Judge

____________________________________

LINDA M. VANZI, Judge