This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

JOHN D. ARNOLD FAMILY 7 LIMITED PARTNERSHIP, 8 Plaintiff/Appellee/Cross-Appellant, 9

v. NOS. 28,231 and 28,290 10 ROSAMARIA DELGADILLO, 11 Defendant/Appellant/Cross-Appellee. 12

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 William F. Lang, District Judge 14 Cadigan & Park Law Firm, P.C. 15 Alfred A. Park 16 Lawrence M. Marcus 17 Albuquerque, NM 18 for Appellee/Cross-Appellant 19 Pedro G. Rael 20 Los Lunas, NM 21 for Appellant/Cross-Appellee 22 MEMORANDUM OPINION 232 WECHSLER, Judge. 1 This case concerns a leas e agreement between Plaintiff John D. Arnold Family 2 Limited Partnership (the Partnership) and Enchantment Ballroom, Inc. (Enchantment). 3 The Partnership brought a claim for breach of lease against Defendants Rosamaria 4 Delgadillo (Delgadillo) and Nancy Carrie Seidman (Seidman). Delgadillo 5 counterclaimed against the Partnership and the district court ultimately granted 6 summary judgment in favor of the Partnership on some claims, tried one claim to the 7 bench, and submitted another claim to the jury. The end result wa s that no party was 8 successful in its claims and both parties appeal. We hold that Delgadillo failed to 9 prove an agency relationship required for her breach of lease counterclaim, Delgadillo 10 failed to establish her right to an unjust enrichment claim, the uniform jury 11 instructions given by the district court were appropriate, and ne ither party had a right 12 to attorney fees. Th erefore, we affirm. 13 BACKGROUND 14 Delgadillo, Seidman, and Shawkeet “C hip” Hindi, II (Hindi) formed the 15 corporation, Enchantment. They signed a commercial lease with the Partnership for 16 the purpose of opening a dance studio. The le ssor in this case, the Partnership, is a 17 limited family partnership that includes John D. Arnold and Lois Hindi, the 183 grandfather and mother of Hindi, respectively. 1 Enchantment apparently sold stock in its corporation to Delgadillo, using the 2 proceeds to complete part of the necessaryrenovations. The parties agree that shortly 3 after the dance studio opened, the member s of Enchantment began to quarrel among 4 themselves. Thereafter, the parties’ char acterization of events differs. Delgadillo 5 alleges that Hindi mistreated her and that, although she tried to resolve their 6 differences, she was forced fro m the premises. Hindi agrees that the parties quarreled, 7 but he alleges that Delgadillo voluntarily abandoned the premises and was allowed to 8 continue as an instructor. 9 Regardless, the parties agree that when Delgadillo vacated the premises in the 10 summer of 2002, Hindi was the only remaini ng tenant. Hindi c ontinued to pay rent 11 on the lease for some time, but he disc ontinued paying rent in 2003, eventually 12 declaring bankruptcy. Approximately one y ear after Delgadillo v acated the premises, 13 Hindi sent a letter to Delgadillo, offering to buy Delgadillo out of Enchantment and 14 warning her that she would still be respons ible for the remaining lease payments of 15 $240,000 if she did not accept his offer. Delgadillo refused Hindi’s offer. 16 In 2004, the Partnership filed a lawsuit against Delgadillo and Seidman after it 17 failed to receive any rental payments for ten months. Seidman was dismissed after 184 settlement, leaving Delgadillo as the only defendant. Delgadillo counterclaimed 1 against the Partnership for breach of lease and fiduciary obligati ons, fraud, and unjust 2 enrichment. The Partnership moved for summary judgment on all counterclaims. 3 Delgadillo’s fraud claim was withdrawn during the summary judgment 4 proceedings. The district court found issues of material fact precluding summary 5 judgment on the issue of agency and allowe d Delgadillo’s claim for unjust enrichment 6 to go forward to be tried to the bench. It found no issues of material fact on 7 Delgadillo’s breach of lease claim and gr anted summary judgment in favor of the 8 Partnership on that claim. The Partnership’s breach of lease claim against Delgadillo 9 was submitted to the jury. Both the Partnership’s and Delgadillo’s claims were 10 denied, with the net result of no party winni ng on any claim. The district court also 11 denied both parties’ requests for attorney f ees. Both sides appeal. We affirm the 12 decisions of the district court and the jury verdict. 13 DELGADILLO’S COUNTERCLAIM FOR BREACH OF LEASE 14 The district court granted summary judgment in favor of the Partnership on 15 Delgadillo’s counterclaim for breach of lease, finding that no genuine issues of 16 material fact existed on that issue. Itallowed the unjust enrichment claim to go 17 forward explaining, “I believe there is a sufficient basis in the report to meet the 185 burden at this stage of the proceeding to support the underlying contention of agency 1 so, predicated on that, I think, also, that there is a genuine issue of material fact 2 relative to the unjust enrichment claim.” At the conclusion of the hearing, Delgadillo 3 asked the court to clarify: “You’re allo wing us to go to trial on the counterclaim of 4 unjust enrichment and it is going to hinge on agency as well[?]” The court responded, 5 “[w]ithout the agency, we don’t get there on th e whole thing. It’s all kind of tied in 6 together but, suffice it to say, you’ve survived this far.” 7 “Summary judgment is appropriate wh ere there are no genuine issues of 8 material fact and the movant is entitle d to judgment as a matter of law.” Self v. United 9 Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We generally 10 review a grant of summary judgment de novo. See id. “The movant need only make 11 a prima facie showing that he is entitled to summary judgment. Upon the movant 12 making a prima facie showing, the burden shifts to the party opposing the motion to 13 demonstrate the existence of specific evid entiary facts which would require trial on 14 the merits.” Roth v. Thompson , 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 15 (1992) (citation omitted). A party opposing summary judgment may not simply argue 16 that evidentiary facts requiring a trial on the merits may exist, “nor may [a party] rest 17 upon the allegations of the complaint.” Dow v. Chilili Coop. Ass’n , 105 N.M. 52, 54- 186 55, 728 P.2d 462, 464-65 (1986). Instead, “the party opposing summary judgment has 1 the burden to show at least a reasonable doubt , rather than a slight doubt, as to the 2 existence of a genuine issue of fact.” Eisert v. Archdiocese of Santa Fe , 2009-NMCA3 042, ¶ 10, 146 N.M. 179, 207 P.3d 1156 (internal quotation marks and citation 4 omitted), cert. denied , 2009-NMCERT-004, 146 N.M. 641, 213 P.3d 791. 5 Delgadillo advances two arguments in support of her position that summary 6 judgment was improper. First, she ar gues that Hindi’s behavior constituted 7 constructive eviction and that his behavior should be imputed to the Partnership 8 because Hindi was acting as the Partnership’ s agent. Second, she asserts that the 9 Partnership breached the lease by violating th e covenant of good faithand fair dealing 10 by allowing Hindi to make varied offers of settlement. Both of these arguments 11 depend on the existence of an agency relationship between Hindi and the Partnership 12 since Delgadillo put forth no ev idence that the Partnership ever acted directly. Further, 13 because Delgadillo’s allegations are centered on Hindi’s actions, the Partnership’s 14 alleged liability depends on the existence of some kind of implied agency relationship 15 between Hindi and the Partnership. 16 “[I]t is established law that our appellatecourts will affirm a district court’s 17 decision if it is right for any reason, so l ong as the circumstances do not make it unfair 187 to the appellant to affirm.” Cordova v. World Fin. Corp. of N.M. , 2009-NMSC-021, 1 ¶ 18, 146 N.M. 256, 208 P.3d 901; see also State v. Vargas , 2008-NMSC-019, ¶ 8, 2 143 N.M. 692, 181 P.3d 684 (“Under the ‘right for any reason’ doctrine, we may 3 affirm the district court’s order on grounds not relied upon by the district court if those 4 grounds do not require us to look beyond the factual allegations that were raised and 5 considered below.” (internal quotation marks and citation omitted)). While we 6 disagree with the district court’s reasoni ng for its decision on summary judgment, we 7 uphold that decision because Delgadillo failed toestablish that issues of material fact 8 existed on an essential element of agency. As such, her claim for breach of contract 9 must fail. 10 “‘An agent is a person who, by agreement with another called the principal, 11 represents the principal in dealings with third persons or transacts some other 12 business, manages some affair or does some service for the principal, with or without 13 compensation.’” Madsen v. Scott , 1999-NMSC-042, ¶ 8, 128 N.M. 255, 992 P.2d 268 14 (quoting UJI 13-401 NMRA). The agency re lationship may be e ither express “or 15 implied by a course of conduct showing an intention that the relationship exists.” UJI 16 13-401. 17 It is not necessary that the parties intend to create the legal 18 relationship of agency or to subject themselves to the liabilities which 198 the law imposes upon them as a result of it, but only that the principal 1 has in some manner indicated that the ag ent is to act for him, and that the 2 agent so acts or agrees to act on his behalf and subject to his control. 3 Totah Drilling Co. v. Abraham , 64 N.M. 380, 386-87, 328 P.2d 1083, 1087 (1958). 4 Once an agency is established, a princi pal is generally liable for the actions of 5 his agent when the agent was acting withinthe scope of the agent’s employment and 6 the principal had the right to control th e manner in which the agent performed the 7 action. SeeUJI 13-402 NMRA. Even when there was no actual right of control, the 8 principal may still be liable for the actions of the agent if apparent authority exists. 9 See Diversified Dev. & Inv., Inc. v. Heil , 119 N.M. 290, 296, 889 P.2d 1212, 1218 10 (1995). This apparent authority exists if the principal manifests to a third party that 11 the agent acts for him. Id. “To establish apparent au thority, the relying party must 12 base the relationship upon words or acts of the principal, and not the representations 13 or acts of the agent.” Tercero v. Roman Catholic Diocese of Norwich , 14 2002-NMSC-018, ¶ 12, 132 N.M. 312, 48 P.3d 50 (internal quotation marks and 15 citation omitted); see also Romero v. Mervyn’s , 109 N.M. 249, 253, 784 P.2d 992, 996 16 (1989) (explaining that while actual authority is determined in light of the principal’s 17 manifestations to the agent, apparent authority arises from the principal’s 18 manifestations to third parties). 199 The existence of both an implied agency relationship and apparent authority are 1 usually questions of fact for the jury. Phillips v. United Serv. Auto Ass’n , 91 N.M. 2 325, 330, 573 P.2d 680, 685 (Ct. App. 1977); State v. DeBaca , 82 N.M. 727, 728, 487 3 P.2d 155, 156 (Ct. App. 1971). This is becausethe proof is generally found in the acts 4 and conduct of the parties, rather than the introduction of a contract establishing the 5 relationship. DeBaca , 82 N.M. at 729, 487 P.2d at 157. 6 However, we see nothing in the record in this case to indicate that Delgadillo 7 even alleged during the summary judgment proceedings that the Partnership itself ever 8 represented to Delgadillo that Hindi was its agent. Instead, it appears Delgadillo 9 simply accepted Hindi’s assertions that Delgadillo was prohibited from dealing with 10 the landlord herself. She does not introdu ce any evidence, nor does she even argue, 11 that the Partnership or any of its member s ever actually told her she was required to 12 deal with Hindi on its behalf. See Totah , 64 N.M. at 386-87, 328 P.2d at 1087 (noting 13 that while it is not necessary that the parties intend to create a legal relationship of 14 agency, it is necessary that the principal i ndicate that the agent is to act for him and 15 that the agent agrees to act on the principal’ s behalf and subject to his control). This 16 lack is critical. Even if weassume Hindi’s behavior suggested an agency relationship 17 between himself and the Partnership, the ag ent’s assertion alone is not enough. If it 1810 were, any person or business could be held liable for act s committed by an individual 1 with which it had no relationship simplybased on that individual’s claims. 2 Delgadillo cites to Warren v. New York Life Insurance Co. , 40 N.M. 253, 58 3 P.2d 1175 (1936), for the proposition that the close family relationship between 4 members of the Partnership and Hindi was sufficient to establish an agency 5 relationship. We disagree. Warren involved rescission of a disability policy. After 6 discovering that the plaintiff had failed to disclose certainmedical information in his 7 application, the insurance company sent a le tter stating that it wished to rescind the 8 policy with a check for all premiums paid. Id. at 254-56, 58 P.2d at 1176-77. 9 Thereafter, the plaintiff held the check for at least six months. Id. at 262-63, 58 P.2d 10 at 1181. His wife, apparently without his knowledge or consent, deposited the check, 11 signing on his behalf. Id. at 256, 58 P.2d at 1177. Upon fi nding out that his wife had 12 deposited the check two or three months later, the plaintiff did nothing until more than 13 three years had passed. Id. at 263, 58 P.2d at 1181. Our Supreme Court held “that 14 retention of the check for the period here shown in the face of the notice 15 accompanying same without challenge of the right claimed accomplished mutual 16 rescission.” Id. 17
Warrenis inapplicable to the current case fo r at least two reasons. First, the 1811 basis for the Supreme Court’s decision was not agency theory, although the Court did 1 explain that the plaintiff’s failure to repudi ate his wife’s actions for more than three 2 years also constituted acquiescence under the circumstances. Id. at 263-64, 58 P.2d 3 at 1181-82. Instead, the Court based its decision on the plaintiff’s unreasonably 4 lengthy retention of the check. Second, as the Partnership correctly points out, 5
Warren involved the relationship between a husband and wife, a relationship of 6 special significance. The infere nce of the wife’s authority to act was especially strong 7 because the wife had already been ac ting as her husband’s agent throughout the 8 process of handling his insurance claim while he was ill. Id. at 264, 58 P.2d at 1181- 9 82. 10 Conversely, this case involves a more distant family relationship—that of 11 grandson to grandfather. More importantly, unlike in Warren , no evidence was 12 presented that the agency relationship ever came into being; nothing indicates that the 13 Partnership ever represented that Hindi was its agent. On the c ontrary, the fact that 14 Hindi was included as a lessee on the lease indicates he is better viewed as an agent 15 of Enchantment rather than the Partnership and that the disagreements between Hindi, 16 Delgadillo, and Seidman were over howto run Enchantment together. See, e.g. , 17 Mitchell v. McCutcheon , 33 N.M. 78, 80, 260 P. 1086, 1087 (1927) (noting that 1812 “[i]nherently the relations of lessor and lessee, and of vendor and vendee, involve no 1 agency” and stating that “the claim of ag ency in such cases must rest upon positive 2 provision of the statute”). 3 We therefore do not consider the issues of ratification and acquiescence because 4 they are concerned with the scope of the ag ent’s authority, rather than the existence 5 of the relationship in the first place. See Bd. of County Comm’rs v. Chavez , 2008- 6 NMCA-028, ¶ 15, 143 N.M. 543, 178 P.3d 828 (filed 2007) (reiterating that 7 ratification is the adoption by the principal of an unauthorized act of his agent), cert. 8 denied , State v. Torrez , 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673. Once the 9 Partnership had made a prima facie cas e for summary judgment, Delgadillo was 10 required to put forth some evidence es tablishing the existence of an agency 11 relationship. She failed to do so. Even viewing the evidence in the light most 12 favorable to Delgadillo, she failed to introduce any evidence that would suggest the 13 Partnership had ever represented that Hindi was its agent, an essential element of the 14 creation of an agency relationship. Summary judgment was therefore appropriate, and 15 we affirm. 16 DELGADILLO’S COUNTERCLAIM FOR UNJUST ENRICHMENT 17 Delgadillo’s counterclaim for unjust enrichment was tried to the court 1813 concurrently with the jury trial on the Partnership’s complaint for breach of lease 1 against Delgadillo. After the testimony at trial, the Partnership moved for judgment 2 as a matter of law on Delgadillo’s unjust enrichment claim based on two theories. 3 First, the Partnership argued that Delgadillodid not actually own the claim for unjust 4 enrichment because she had received cor porate stock from Enchantment in exchange 5 for the money that she contributed for the improvements. Any claim for unjust 6 enrichment would therefore belong to Enchantment rather than to Delgadillo. Second, 7 the Partnership asserted that Delgadillo failed to establish the elements for unjust 8 enrichment. 9 The district court agreed and granted th e Partnership’s motion. Specifically, it 10 found that Delgadillo did not own the claim for unjust enrichment. It also noted that 11 Delgadillo had failed to introduce any eviden ce that the Partnership had requested the 12 improvements or that she had reasonably believed she owned the property. 13 We review the district court’s grant or denial of equitabl e relief for an abuse 14 of discretion. Credit Inst. v. Vet. Nutrition Corp. , 2003-NMCA-010, ¶ 17, 133 N.M. 15 248, 62 P.3d 339 (filed 2002). “An abuse of discretion will be found when the trial 16 court’s decision is clearly untenable or contrary to logic and reason.” Newsome v. 17
Farer , 103 N.M. 415, 420, 708 P.2d 327, 332 (1985). When reasons both supporting 1814 and detracting from a decision exist, there is no abuse of discretion. Talley v. Talley , 1 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App. 1993). A district court has “broad 2 discretion” and “great flexibility” in its decisions regarding equitable remedies. See 3 In re Estate of Duran , 2003-NMSC-008, ¶ 35, 133 N.M. 553, 66 P.3d 326. 4 In New Mexico, a cause of action for unjust enrichment requires that “(1) 5 another has been knowingly benefitted at one’s expense (2) in a manner such that 6 allowance of the other to retainthe benefit would be unjust.” Ontiveros Insulation Co. 7 v. Sanchez , 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695. However, this 8 equitable remedy should not take the place of a remedy at law; rather, it augments 9 legal remedies. Id. ¶ 12. 10 We see no abuse of discretion in the di strict court’s decision. Delgadillo was 11 reimbursed for her financial contributions with corporate stock in Enchantment. 12 Delgadillo agreed to this arrangement. As the district court found, any unjust 13 enrichment claim would therefore belong to Enchantment, making a derivative suit 14 on behalf of Enchantment proper, rather th an a personal suit on behalf of Delgadillo. 15 Marchman v. NCNB Tex. Nat’l Bank , 120 N.M. 74, 81, 898 P.2d 709, 716 (1995) 16 (reiterating that “[a] corporation and a sh areholder—even a sole shareholder—are 17 separate entities, and a shareholder of a co rporation does not have an individual right 1815 of action against a third person for damages that result because of an injury to the 1 corporation”). 2 There are exceptions to the general rule that a shareholder cannot 3 sue individually for injuries to his or her corporation[, including when] 4 there is a special duty, such as a contractual duty, between the wrongdoer 5 and the shareholder [and when] th e shareholder suffered an injury 6 separate and distinct from thatsuffered by other shareholders. 7 Id. at 81-82, 898 P.2d at 716-17 (internal quotation marks and citation omitted). 8 However, those exceptions do not apply in the case at hand. De lgadillo had already 9 been compensated with stock for her financial contributions. Moreover, she argued 10 at trial that she never intended to be liable personally on the lease. Any special 11 contractual duties would therefore lie between the Partnership and Enchantment, 12 rather than between the Partnership and De lgadillo. Nor did Delgadillo offer evidence 13 that she had suffered an injuryseparate and distinct from other shareholders. At the 14 time she made the investment, she was compensated. The subsequent demise of the 15 corporation and the devaluation of her i nvestment does not render her losses separate 16 and distinct from other members of the corporation. Presumably, the other members 17 also took losses. 18 Regardless, we cannot say that the distri ct court’s decision is “clearly untenable 19 or contrary to logic and reason.” Newsome , 103 N.M. at 420, 708 P.2d at 332. We 2016 therefore affirm and do not consider the parties’ other arguments. 1 JURY INSTRUCTIONS 2 The Partnership’s breach of contract cl aim against Delgadillo was tried to the 3 jury. The Partnership requested that the district court include a jury instruction 4 stating: “A contract signed personallyby an individual w ith no qualifying language 5 following the signature results in personal liability on the contract. If you find that 6 Defendant Delgadillo signed the lease, w ith no writing after her signature, you must 7 find that she is personally responsible for making the lease payments.” 8 The district court refused this instructi on. Instead, the district court included 9 an instruction indicating that if Delgadillo wanted to establish her affirmative defense 10 of no personal liability under the lease, “Defendant Delgadillohas the burden of 11 proving that the lease was signed by her on behalf of Enchantment Ballroom, Inc., and 12 was not intended to create any personal liability as against her.” 13 “The propriety of denying a jury instruc tion is a mixed question of law and fact 14 that we review de novo.” Akins v. United Steelworkers of Am. , 2009-NMCA-051, 15 ¶ 42, 146 N.M. 237, 208 P.3d 457 (internal quotation marks and citation omitted), 16 cert. granted , 2009-NMCERT-005, 146 N.M. 728, 214 P.3d 793. Jury instructions 17 are to be read as a whole, and when they fairly present the issu es and the applicable 1817 law in light of the evidence presente d at trial, they are sufficient. Diversey Corp. v. 1 Chem-Source Corp. , 1998-NMCA-112, ¶ 16, 125 N.M. 748, 965 P.2d 332. “It is not 2 error to deny requested instructions when th e instructions given adequately cover the 3 law to be applied.” Kirk Co. v. Ashcraft , 101 N.M. 462, 466, 684 P.2d 1127, 1131 4 (1984). Moreover, even if there is error, “[a] civil case will not be reversed due to 5 error in jury instructions unless th e result is fundamentally unjust.” McNeill v. 6 Burlington Res. Oil & Gas Co. , 2007-NMCA-024, ¶ 19, 141 N.M. 212, 153 P.3d 46 7 (filed 2006), aff’d, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121. 8 The Partnership asserts that the district court was required to provide its 9 instruction to the jury because New Mexico law states that “[a] contract signed 10 personally by an individual with no qualifying language following the signature 11 results in personal liab ility on the contract.” Fed. Deposit Ins. Corp. v. Moore , 118 12 N.M. 77, 79, 879 P.2d 78, 80 (1994). The Partnership also argues that because it is 13 undisputed that Delgadillo signed the lease with no qualifying language after her name 14 and that she did not pay the money she owedon the lease, the jury verdict was likely 15 a consequence of the district court’s error. 16 We disagree with the Partnership’s assertion that the district court was required 17 to give its requested instruction

. While it is true that our Supreme Court upheld a 1818 district court’s determination of personal liability for failure to include a corporate 1 designation in that case, id. , Mooreis easily distinguishable from this case. Moore 2 concerned a guarantee contract under which the guarantors were attempting to argue 3 that they had not intended to si gn in their personal capacities. Id. at 78-79, 879 P.2d 4 at 79-80. The Supreme Court held that th e inclusion of the corporation name on an 5 accompanying acknowledgment form, by itself, wa s insufficient to constitute an issue 6 of material fact as to capac ity, in light of the fact thatthere would be no purpose in a 7 corporation guaranteeing its own debt. Id. at 79, 879 P.2d at 80. 8 Here, the lease itself refers to Enchantment. Delgadillo also testified that she 9 never intended to bind hers elf personally and that the corporation was created to 10 protect herself and the others from personal liability. The Partnership did not object 11 to this testimony at the time it was offere d. Unlike the guarantor contract in Moore , 12 a reasonable rationale exists as to why De lgadillo would mean to sign the lease only 13 in her corporate capacity. As such, the di strict court was not required to offer an 14 instruction regarding Delgadillo’s alleged personal liability . Moreover, the district 15 court utilized uniform jury instructions, wh ich we have previously held to be the 16 preferred instructions unless they are erroneous or otherwise improper. See, e.g. , First 17 Nat’l Bank in Albuquerque v. Sanchez , 112 N.M. 317, 322, 815 P.2d 613, 618 (1991) 1819 (explaining that “published uniform jury in structions must be used unless under the 1 facts or circumstances of th e particular case they are erroneous or otherwise improper, 2 and the trial court states its reasons for refusing to use them”). 3 Under these circumstances, the district court did not err in refusing the 4 Partnership’s proffered instruc tion. Moreover, even if we held that the district court 5 erred, the jury instructions, read as a w hole, fairly and accurately represented the 6 issues and applicable law. Further, we do not characterize the jury verdict as 7 “fundamentally unjust.” We therefore affirm. 8 ATTORNEY FEES 9 At the conclusion of trial, both sides reque sted that the district court award them 10 attorney fees and costs, pursuant to the l ease agreement. The district court denied 11 both applications on the grounds that there wa s no prevailing party. The court stated: 12 I can define prevailing party in ten different ways , depending on the 13 issue, but it is the totality of the case which the [c]ourt looks at; and in 14 that case, each side prevailed in basi cally half the case; those two matters 15 that were ultimately tried, one by th e [c]ourt and one by the jury, and it 16 ended up with neither side being in a different position than they were 17 when they walked in the door on the first day of trial. 18 “A trial court’s determination concerning an award of attorney fees is reviewed 19 only for abuse of discretion.” Aspen Landscaping, Inc. v. Longford Homes of N.M., 20
Inc. , 2004-NMCA-063, ¶ 21, 135 N.M . 607, 92 P.3d 53. “While a trial court has broad 2120 discretion when awarding atto rney fees, that discretion is limited by any applicable 1 contract provision.” Fort Knox Self Storage, In c. v. W. Techs., Inc. , 2 2006-NMCA-096, ¶ 29, 140 N.M. 233, 142 P.3d 1. “Consequently, this Court looks 3 to the contract language to determine the parties’ intentions.” Id. 4 The pertinent contract language in this case merely specifies that the “prevailing 5 party” is entitled to reasonable attorney fees and costs. The manner in which a 6 prevailing party is identified often depends on the complexity of the proceedings. See 7 Aspen Landscaping, Inc. , 2004-NMCA-063, ¶¶ 23-24. For example, in simple cases 8 involving no counterclaims, the “prevailing party” has been described as “the party 9 who wins the lawsuit—that is, a plaintiff who recovers a judgmen t or a defendant who 10 avoids an adverse judgment.” Dunleavy v. Miller , 116 N.M. 353, 360, 862 P.2d 1212, 11 1219 (1993); see also Aspen Landscaping, Inc. , 2004-NMCA-063, ¶ 23 (observing 12 that the Dunleavydefinition applies with respect to simple cases involving no 13 counterclaims). In cases involving more varied issues, the prevailing party may be 14 identified as “the party who wins on the merits or on the main issue of the case.” 15 Hedicke v. Gunville , 2003-NMCA-032, ¶ 26, 133 N.M. 335, 62 P.3d 1217 (filed 16 2002). In complicated cases involving numerous claims and counterclaims, the extent 17 to which the parties prevailed on their vari ous claims and counterclaims is evaluated. 1821 See Aspen Landscaping, Inc. , 2004-NMCA-063, ¶ 24. Moreover, a court may 1 appropriately determine that no litigant should be classified as the prevailing party. 2 See Fort Knox Self Storage, Inc. , 2006-NMCA-096, ¶ 34; Aspen Landscaping, Inc. , 3 2004-NMCA-063, ¶ 24; see also Hedicke , 2003-NMCA-032, ¶ 28 (“Of course, if each 4 party prevails on one claim and loses on oneclaim, the trial court could and may 5 conclude that neither is ultimately a prevailing party.”). 6 Both parties were not successful on any of their claims. Under these 7 circumstances and given our case law, the district court’s finding that no party was the 8 “prevailing party” was not an abuse of disc retion. We therefore affirm the district 9 court’s denial of attorney fees to both parties. 10 IT IS SO ORDERED. 11

_______________________________ 12 JAMES J. WECHSLER, Judge 13 WE CONCUR: 14

__________________________________ 15 MICHAEL D. BUSTAMANTE, Judge 16

__________________________________ 17 ROBERT E. ROBLES, Judge 18