This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

BURKE INSURANCE GROUP, INC., 2 Plaintiff-Appellee/Counter-Defendant, 3 and 4 BURKE INSURANCE GROUP, LLC, 5 Appellee/Counter-Defendant, 6

v. NO. 29,858 7 ROBERT J. SHUYA, 8 Defendant-Appellant/Counter-Plaintiff. 9
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 10 James T. Martin, District Judge 11 Keleher & McLeod, P.A. 12 Charles A. Pharris 13 Thomas C. Bird 14 Cassandra R. Malone 15 Albuquerque, NM 16 for Appellee/Counter-Defendant 17 Michael Allison 182 Albuquerque, NM 1 for Appellant/Counter-Plaintiff 2

MEMORANDUM OPINION 3 WECHSLER, Judge. 4 Defendant and Counter-Plai ntiff Robert Shuya appeals from the judgment on 5 a jury verdict in favor of Plaintiff and Counter-Defendant Burke Insurance Group, Inc. 6 and Counter-Defendant Burke Insurance Group, LLC (collectively “Burke 7 Insurance”). On appeal, Shuya argues that (1) the jury’s denial of his counterclaims 8 based on the theory of offset is not supported by the pleadings or evidence, (2) the 9 jury’s award of liquidated damages was not properly supported by the evidence, (3) 10 the jury’s award of punitive damages is not supported by the evidence, and (4) the 11 district court’s award of attorney fees was improper. We affirm. 12 BACKGROUND 13 Shuya appeals from the judgment on a jury verdict in favor of Burke Insurance. 14 The dispute arose out of Shuya’s empl oyment as an insurance and bonding producer 15 by Burke Insurance. His employment was first governed by an employment 16 agreement dated December 26, 1997. 17 In early 2001, Will Burke (Burke), the principal of Burke Insurance, presented 18 Shuya with a second employment agreement (the Agreement). This second 193 Agreement superceded all prio r agreements. Relevant to this appeal, the Agreement 1 contained (1) a confidentiality provision, in which Shuya agreed to not disclose, use, 2 or permit the use of trade secrets for the purpose of competition against Burke 3 Insurance; (2) a non-compete provision prohibiting Shuya from investing in an entity 4 that sells, or participating in the sale, of any product or service offered by Burke 5 Insurance; and (3) a non-solicitation provi sion prohibiting Shuya from contacting or 6 solicitating customers, clients, or account s of Burke Insurance. Each provision 7 contained a section stating that “[i]n the event of a breach by [Shuya of the provision, 8 Burke Insurance] shall be entitled to liqui dated damages of three (3) times [Shuya]’s 9 commissions for the 12 months prior to his termination.” The Agreement also 10 contained a provision providing that the “p revailing party . . . shall be entitled to 11 recover all reasonable costs,” including reasonable attorney fees in the event of 12 litigation under the Agreement. 13 The Agreement provided Shuya with a right to purchase his book of business 14 if he met a vesting requirement, which was that his book of business had to be worth 15 $100,000 on his third anniversary of his empl oyment. Under the Agreement, for each 16 year that Shuya worked after vesting, hewas entitled to purchase ten percent of his 17 book of business for $1. To the extent that he worked less than ten years after vesting, 18 he could purchase the unvested portions of the book of business by paying the amount 194 of commissions for the unvested portions for th e previous twelve months. In the event 1 that Shuya attempted to purchase his book of business, the Agreement provided Burke 2 Insurance with a “right of first refusal.” Inorder to exercise the right of first refusal, 3 the Agreement required Burke Insurance to pay Shuya the amount that Shuya would 4 have had to pay to purchase the book of business. 5 Shuya remained employed by Burke Insurance until February 1, 2003, when 6 Burke informed Shuya in a meeting thatBurke Insurance was terminating his 7 employment. On February 7, 2003, Burke se nt a letter memorializing the termination 8 and reminding Shuya about the continui ng applicability of the non-compete, non9 solicitation, and confidentiality provisions of the Agreement. On February 20, 2003, 10 Shuya sent a letter informing Burke Insurance that he intended to purchase his book 11 of business. On March 17, 2003, Burke Insurance notified Shuya that it was 12 “exercising its first right of refusal to sell the book” of business. Burke Insurance 13 never made a payment to Shuya for exercising its right of first refusal. 14 Burke Insurance filed this action against Shuya in the district court, claiming 15 breach of contract, misappropriation of trade secrets, breach of fiduciary duty, unjust 16 enrichment, breach of good faith and fair d ealing, violation of the Unfair Practices 17 Act, misappropriation, defamation, tortious interference with contract, conspiracy, 18 prima facie tort, trespass to chattels, re spondeat superior/vicarious liability, and 195 entitlement to remedies. Shuya counterclaimed for breach of contract, breach of 1 implied covenant of good faithand fair dealing, and unj ust enrichment stemming from 2 Burke Insurance refusing to sell Shuyathe book of business and not tendering 3 payment for exercising the right of first refu sal. After a trial, the jury found in favor 4 of Burke Insurance for its claims agai nst Shuya. The jury answered special 5 interrogatories, stating th at it found that Shuya breached the non-solicitation, non6 competition, and confidentiality provisions contained in the Agreement. The jury 7 awarded compensatory damages in the amount of $308,874 based on the liquidated 8 damages provisions in the Agreement. The jury also awarded Burke Insurance 9 $70,000 in punitive damages, finding that S huya acted maliciously, recklessly, or 10 oppressively. The jury found in favor of Burke Insurance on Shuya’s counterclaims. 11 The district court awarded Burke Insurance attorney fees and costs pursuant to the 12 Agreement and the New Mexi co Uniform Trade Secrets Act, NMSA 1978, §§ 57-3A13 1 to -7 (1989). 14 On appeal, Shuya argues that (1) the jury ’s denial of his counterclaims based 15 on the theory of offset is not supported by the pleadings or evidence, (2) the jury’s 16 award of liquidated damages was not properly supported by the evidence, (3) the 17 jury’s award of punitive damages is not s upported by the evidence, and (4) the district 18 court’s award of attorney fees was improper. 196 SUFFICIENCY OF THE EVIDENCE 1 Standard of Review 2 Shuya’s arguments are a challenge tothe sufficiency of the evidence upon 3 which the jury’s verdict was based. “If the verdict below is supported by substantial 4 evidence, which we have defined as suchrelevant evidence th at a reasonable mind 5 would find adequate to support a conclusion, we will affirm the result.” Weststar 6 Mortg. Corp. v. Jackson , 2003-NMSC-002, ¶ 8, 133 N.M . 114, 61 P.3d 823 (internal 7 quotation marks and citation omitted). We review the evidence in a light favoring the 8 verdict and resolve conflicts in favor of the prevailing party. Sandoval v. Baker 9 Hughes Oilfield Operations, Inc. , 2009-NMCA-095, ¶ 12, 146 N.M. 853, 215 P.3d 10 791. “It is not the task of a reviewing court to sit as a trier of fact or to reweigh the 11 evidence.” Weststar Mortg. Corp. , 2003-NMSC-002, ¶ 8. 12 Shuya’s Counterclaims 13 Shuya argues that the denial of his counterclaims based upon the theory of 14 “offset” is not properly supported by the pleadings or the evidence. Shuya contends 15 that Burke testified that his only excusefor refusing to allow Shuya to buy the book 16 of business or tender payment for exercising the right of first refusal was because he 17 believed that Shuya owed Burke Insuran ce money for breach of the non-competition 187 provisions of the Agreement, that the breach effectively “offset” Shuya’s right to 1 purchase his book of business, and that there was no “real evidence” to support this 2 testimony. Shuya premises his argument on an assertion that he properly exercised 3 his rights to purchase his book of business, that Burke exercised its right of first 4 refusal, but that Burke never paid the mone y necessary to exercise the right of first 5 refusal. 6 However, Burke Insurance responds thatit “did not necessarily prevail on an 7 ‘offset’ theory and did not have to prevail on an ‘offset’ theory for the jury to deny 8 . . . Shuya’s claims” based on the jury instru ctions in this case. Indeed, the district 9 court provided a jury instru ction titled “Burke Insurance’s statement of denial and 10 affirmative defenses” to Shuya’s counterclai ms. The instruction stated that “Shuya’s 11 prior breach or failure to satisfy conditions of the [Agreement], whether known to 12 Burke Insurance at the time of the breach or not, relieved Burke Insurance of any duty 13 of performance under the [Agreement].” Shuya did not object to this jury instruction 14 nor does he argue on appeal that this jury instruction was erroneous as a matter of law. 15 This instruction therefore b ecame the law of the case. See Sandoval , 2009-NMCA16 095, ¶ 43 (“The sufficiency of the evidence is measured agai nst the jury instructions, 17 because they become th e law of the case.”). 18 Burke Insurance presented sufficient evidence that a reasonable mind could find 198 adequate to support a conclusion that Shuya breached the Agreement’s provision 1 pertaining to an employee’s duties and re sponsibilities prior to his termination. See 2 Weststar Mortg. Corp. , 2003-NMSC-002, ¶ 8. Burke Insurance presented evidence 3 that Shuya’s performance in mishandling several accounts and failing to correct or 4 obtain financial information relating to several accounts violated his contractual 5 responsibilities pertaining to performance. Burke Insurance also presented evidence 6 that Shuya misrepresented himself to a client as an attorney- in-fact for an insurance 7 company and issued bonds without authoriz ation from Burke Insurance. Further, 8 Burke testified that Shuya issued a bond in di rect contradiction to Burke’s order. He 9 further testified that Burke Insurance re fused to sell the book of business to Shuya 10 because Shuya violated the Agreement and that the violations provided a right to 11 refuse to sell the book of busin ess. This evidence alone is sufficient to support a jury 12 finding that Shuya breached the Agreement be fore his termination and relieved Burke 13 Insurance of any further duty of perform ance, including payment for exercising its 14 right of first refusal. 15 Additionally, sufficient evidence supported the jury’s conclusion that Shuya 16 violated the non-compete, non-solicitation, and confidentiality provisions of the 17 Agreement after termination and thereby relieved Burke Insurance of any obligation 18 to purchase his book of business. The termination letter sent to Shuya by Burke 199 Insurance reminded Shuya that the non-co mpete, non-solicitation, and confidentiality 1 provisions survived past Shuya’s terminati on. Burke also testified that under the 2 contract, the confidentiality, non-solicit, and non-compete provisions of the 3 Agreement survived the termination of Shuya. Burke provided testimony that Shuya 4 failed to return confidential information upon his termination and that it therefore 5 excused Burke Insurance of any obligati on to purchase the book of business because 6 Shuya’s action violated the confidentiality provision. Further, Shuya admitted in his 7 testimony that he violated the non-competition and non-solicitation provisions of the 8 Agreement after his termination. A reas onable factfinder could conclude from the 9 evidence at trial that Shuya breached the conditions of th e Agreement both before and 10 after Burke Insurance terminated Shuya’s employment and thereby relieved Burke 11 Insurance from any further obligation under the Agreement, including purchasing 12 Shuya’s book of business after exercising its ri ght to first refusal. Sufficient evidence 13 supported the jury’s denial of Shuya’s counterclaims. 14 Liquidated Damages 15 Shuya next argues that the jury’s aw ard of liquidated damages against Shuya 16 was not properly supported by the evidence and the award of li quidated damages is 17 therefore legally improper. The damage s awarded were based on a calculation of 18 three times Shuya’s commissions for the previous twelve months pursuant to the 1910 Agreement. The district court provided th e jury with an instruction stating that: 1 Liquidated damages must be awarded under the terms of the . . . 2 Agreement if . . . Shuya breached § 9, § 10, or § 12, so long as the set 3 amount for the liquidated damages is reasonable in light of the 4 anticipated or actual loss caused by the breach and the difficulties of 5 proof of loss. As a general rule, enforcement of a liquidated damages 6 clause will only be denied when the stipulated amount is so extravagant 7 or disproportionate as to show fraud, mistake or oppression. The 8 standard, however, is not furnishe d by Burke Insurance’s actual loss or 9 injury, but by the loss or injury which might reasonably have been 10 anticipated at the time the contract was made. 11 Shuya did not object to the jury instruction at trial, nor does he challenge the propriety 12 of the jury instruction on app eal as an incorrect statement of law relating to liquidated 13 damages. See Gruschus v. C.R. Davis Contracting Co. , 75 N.M. 649, 655, 409 P.2d 14 500, 504 (1965) (stating that a liquidated damage clause will be enforced if the 15 amount is not “so extravagant or disproportionate as to show fraud, mistake or 16 oppression” in relation to “the loss or injury which might reasonably have been 17 anticipated at the time the contract was made”). He only challenges the sufficiency 18 of the evidence supporting the jury’s award based on the liquidated damages 19 provision. 20 Particularly, Shuya argues that “Burke Insurance provided no evidence to 21 demonstrate that the measure of liquidate d damages had any relation to ‘the loss or 22 injury which might reasonably have been anticipated at the time the contract was 23 made.’” He contends that Burke Insurance “failed to present any evidence to the jury 2411 regarding any attempts to estimate its actual damages, at the time the contract was 1 made, in the event that Shuya violated the covenants against competition.” 2 However, Burke testified regarding the liquidated damages provision. He 3 testified that the amount was fair because“[i]t is so difficult to measure what 4 liquidated damages are. We lost—we lost accounts. How much future income would 5 they have generated for us? How much time did I invest to keep the existing 6 accounts? How much time did my staff spe nd? How much time did we deal with E 7 and O claims? It’s so hard to put an ex act number on the cost. And this is what we 8 came up with, and this is what . . . Shuya ag reed to and I agreedto.” He further 9 testified that he did not “sit down and try to estimate what [his actual] damages might 10 be if . . . Shuya violated the covenant not to compete[, because it] would be impossible 11 to do . . . in 1997 when [Shuya] came to work” for Burke Insurance. 12 Looking at Burke’s testimony in the light mo st favorable to the verdict, Burke’s 13 testimony could have provided a reasonable factfinder a conclusion that the formula 14 in the Agreement for damages is the reasonable amount of damages anticipated at the 15 time the Agreement was signed. Further, Burke’s explanation of the formula is 16 sufficient for a jury to c onclude that the amount is proportionate to the amount of 17 damages anticipated and is not extravagant. His tes timony established that Burke 18 Insurance took into account the loss of accounts, as well as the time and overhead 1912 costs from potential lost accounts, in arrivi ng at the formula for liquidated damages. 1 With this testimony, we cannot say that the liquidated damages provision provided an 2 unreasonably large damages award to Burke Insurance. See Nearburg v. Yates 3 Petroleum Corp. , 1997-NMCA-069, ¶ 10, 123 N.M. 526, 943 P.2d 560 (stating that 4 an “unreasonably large liquidated damages [award] is ordinarily unenforceable on 5 grounds of public policy because it goes beyond compensation into punishment”). 6 Punitive Damages 7 Shuya next argues that the punitive damages entered against him in favor of 8 Burke Insurance cannot stand because “the only compensatory damage claim awarded 9 by the jury” was the liquidated damage claim, which he argues that we must set aside. 10 Gonzales v. Sansoy , 103 N.M. 127, 129, 703 P.2d 904, 906 (Ct. App. 1984) (“An 11 award of punitive damages must be supported by an award of compensatory 12 damages.”). However, because we haveupheld the compensatory damage award 13 based on the liquidated damage s provision, the predicate of Shuya’s argument fails, 14 and we uphold the punitive damages award. 15 Attorney Fees 16 Shuya argues that the “award of attorney [] fees for Burke In surance is improper 17 in light of [Burke Insurance’s] own breach of the [Agreement,] which purportedly 18 authorizes the award of such fees.” Th e district court awarded Burke Insurance 1913 attorney fees and costs pursuant to th e Agreement and the New Mexico Uniform 1 Trade Secrets Act, Sections 57-3A-1 to -7 . Shuya recognizes that “New Mexico law 2 recognizes that the parties to a contract may agree in that contract to authorize an 3 award of attorney fees and th at an agreement granting suchauthority may be valid and 4 enforceable under New Mexico law.” See State ex rel. Solsbury Hill, LLC v. Liberty 5
Mut. Ins. Co. , 2012-NMCA-032, ¶ 44, 273 P.3d 1 (upholding the award of attorney 6 fees as provided for in a contract), cert. granted , 2012-NMCERT-003, ___ P.3d ___. 7 However, he argues that the district court should have exercise d its discretion and not 8 allowed attorney fees in this case because Burke Insu rance breached the Agreement 9 by failing to pay Shuya for his book of business. See McClain Co. v. Page & Wirtz 10
Constr. Co. , 102 N.M. 284, 285, 694 P.2d 1349, 1350 ( 1985) (stating that “[w]e find 11 no New Mexico case where an award of attorney[] fees was made to a party found to 12 have breached his agreement”). However, because we have held that a reasonable 13 factfinder could conclude from the evid ence at trial that Shuya breached the 14 conditions of the Agreement both beforeand after Burke Insurance terminated 15 Shuya’s employment and thereby relieve d Burke Insurance from any further 16 obligation under the Agreement, including purchasing Shuya’s book of business after 17 exercising its right to first refusal, the di strict court did not err by awarding attorney 18 fees. 1914 CONCLUSION 1 For the foregoing reasons, we affirm. 2 IT IS SO ORDERED. 3

_______________________________ 4 JAMES J. WECHSLER, Judge 5 WE CONCUR: 6

________________________________ 7 JONATHAN B. SUTIN, Judge 8

________________________________ 9 LINDA M. VANZI, Judge 10