                                                  I attest to the accuracy and
                                                   integrity of this document
                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'05- 15:25:31 2012.12.18
Certiorari Denied, November 1, 2012, No. 33,842

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-120

Filing Date: August 29, 2012

Docket No. 29,813

WILLIS S. MUNCEY,

       Plaintiff-Appellee,

v.

EYEGLASS WORLD, LLC,

       Defendant-Appellant.

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

Bauman, Dow & León, P.C.
Christopher P. Bauman
Alberto A. León
Brian G. Grayson
Albuquerque, NM

Rose Bryan, P.C.
Rose Bryan
Albuquerque, NM

for Appellee

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Emil J. Kiehne
Albuquerque, NM

Reed Smith LLP
Raymond A. Cardozo
San Francisco, CA

for Appellant

                                           1
                                          OPINION

SUTIN, Judge.

{1}     A jury awarded Dr. Willis Muncey compensatory and punitive damages against
Eyeglass World, LLC, totaling $2,300,002 for breach of contract and for a tort claim based
upon conversion of his patient files. Eyeglass World primarily attacks the verdict on
grounds of lack of substantial evidence and excessive punitive damages. Eyeglass World
also asserts that the Copyright Act, 17 U.S.C. § 301(a) (1998), preempted the district court
from having subject matter jurisdiction. We hold that the district court properly exercised
subject matter jurisdiction in this case. We further hold that the evidence and applicable law
support the damages awards.

BACKGROUND

{2}     Eyeglass World provides optical products and services at retail stores. In conjunction
with its optical business, Eyeglass World leases an adjoining portion of its retail space to a
contract optometrist who is available to examine patients on-site and provide prescriptions
to patients for eyeglasses or contacts that can be prepared on-site. The optometrist is
recognized as an independent contractor; all other personnel are Eyeglass World employees
that work in both on-site businesses within the store. Dr. Muncey was an optometrist at one
of Eyeglass World’s stores.

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

{4}      Soon afterward, Dr. Muncey asserted that Eyeglass World failed to implement and
comply with the terms of the lease agreement. As a result, he refused to dismiss his pending
breach of contract lawsuit and emailed Eyeglass World to complain that the lease agreement
was void because Eyeglass World never fully implemented it. Eyeglass World responded
that the lease agreement was not void, although it had yet to fully implement that agreement.

                                               2
Eyeglass World continued paying Dr. Muncey the per diem payable under his former
contract and did not pay Dr. Muncey based on the revenue-sharing provision set out in the
lease agreement. The parties’ relationship continued to deteriorate and Dr. Muncey
informed Eyeglass World that he was terminating their relationship and vacating the
premises effective April 20, 2007.

{5}      An April 17, 2007, letter from Dr. Muncey’s attorney to Eyeglass World’s attorney
stated that, “[a]s a gesture of goodwill, Dr. Muncey will attempt to provide doctor coverage
from now through the end of May[] 2007[,] in order to give [Eyeglass] World sufficient time
to find his replacement.” The letter did not mention patient files. Dr. Muncey explained at
trial that when he stopped working at Eyeglass World he left his patient files at Eyeglass
World so that replacement optometrists would have access to the files until his coverage
duties at Eyeglass World ended on May 30, 2007. Dr. Muncey also stated at trial that the
files were voluminous and that he was trying to develop a way to house them and easily
access them for his use. Dr. Muncey did not explain any of this to Eyeglass World when he
vacated the premises. The files numbered approximately twenty thousand and included an
electronically stored patient list consisting of contact and prescription information and
purchase history, and a paper file containing the optometrist’s examination notes, patient
history, and similar information.

{6}     By June 7, 2007, Eyeglass World had spent several weeks and approximately $6,000
copying the patient files at night. Before copying the files, Eyeglass World consulted with
the company’s corporate attorney who advised that copying the files would not violate New
Mexico law, the lease agreement, or the Health Insurance Portability and Accountability Act
of 1996 (HIPAA). Eyeglass World did not inform Dr. Muncey that it was copying the
patient files, nor did Eyeglass World seek his authorization to access or copy the files.
Eyeglass World concluded its copying of the files on July 10, 2007, and placed the files in
a storage room.

{7}     Dr. Muncey became aware that Eyeglass World was in the process of copying his
files sometime in mid-June 2007. Acting on the advice of his attorney, Dr. Muncey did not
contact Eyeglass World or demand that they stop copying the files. Dr. Muncey explained
that he did not demand that the copying immediately stop, nor did he pick up the files
because he “was advised to not go near that[,]” and he left them there at the advice of his
attorney. Dr. Muncey also never asked that Eyeglass World return the original files or the
copies. At no time was Dr. Muncey denied access to the files or restricted from picking up
any files. Except for a portion of the patient files relating to LASIK, Dr. Muncey made no
arrangements to retrieve any of the files and made no request that any files be returned to
him.

{8}     In late June 2007, Dr. Muncey sought reinstatement of his breach of contract case on
the district court docket in order to determine his rights and damages for Eyeglass World’s
alleged failure to comply with the lease and termination agreements. During July and
August 2007, the parties, through their attorneys, engaged in correspondence regarding the

                                             3
files, as we set out in detail later in this Opinion. In September 2007, Eyeglass World
submitted a complaint to the State Regulation and Licensing Department, Compliance
Section, addressed to the Optometry Board, regarding Dr. Muncey’s refusal to collect his
files after Eyeglass World requested that he get them.

{9}     The court granted reinstatement of Dr. Muncey’s case in August 2007, after which,
in December 2007, Dr. Muncey filed a motion for leave to file an amended complaint
(1) alleging that Eyeglass World, between June 12 and June 31, 2007, obtained possession
of and copied his patient files attempting to assert control over the files and to avoid having
to pay Dr. Muncey $300,000 for his files; and (2) adding a claim in conversion. The
amended complaint was filed in May 2008.1

{10} At trial, in June 2009, Dr. Muncey argued two different theories for his claim of
conversion. First, he asserted that by copying the patient files without his permission,
Eyeglass World acted “in defiance of his right of exclusive control over the files.” Second,
Dr. Muncey argued that copying the files for use by another doctor constituted an
“unauthorized and injurious use of his property.” The use was injurious because, in Dr.
Muncey’s own words, the “records are the value[,]” and as stated by Dr. Muncey’s attorney,
“once those files were copied and were used by another optometrist, they represent[ed] little
or no value to him.” Ultimately, the jury awarded Dr. Muncey $2,300,002, consisting of $1
on his breach of contract claim, $300,000 on his conversion claim, and $2,000,001 as
punitive damages on the conversion claim. This appeal involves only the compensatory and
punitive damages awards relating to the conversion claim.

DISCUSSION

I.     JURISDICTION

{11} State law claims are preempted under § 301 of the Copyright Act if: “(1) the work
is within the scope of the ‘subject matter of copyright’ as specified in 17 U.S.C. § 102
[(1990)], § 103 [(1976)]; and (2) the rights granted under state law are equivalent to any
exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106 [(2002)].”
Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir. 1985). We review de novo whether § 301 of
the Copyright Act preempts a conversion under New Mexico state law, which presents a
question of law. 17 U.S.C. § 301(a); Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655,
658 (4th Cir. 1993).

A.     The Scope of the Copyright Act


       1
         The record does not reflect any activity between December 2007 and May 2008
other than a request for hearing on the motion to amend, a setting on the motion, and a
stipulated order vacating the hearing because the court had granted the motion
in November 2007.

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

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

{14} We conclude that the patient files are fact works that lack originality and do not fall
within the general scope of copyright protection. Dr. Muncey testified that “[t]he patient file
has got all kinds of medical information, and it’s got [s]ocial [s]ecurity numbers in it. It’s
got patient history . . . along with all their current prescriptions, past prescriptions, and
whatever services have been provided.” Another optometrist described his patient files as
“charts” and explained that “[t]hey contain . . . the exam recordings and things of that nature,
notices to patients about procedures.” There is nothing in the record that indicates that any
form of expression or creativity was involved in creating the fact-based patient files. Dr.
Muncey argues that “[t]he patient charts in this case are a systematic gathering of factual
information about the patient provided by the patient[.]” We agree that this is a fact-based
compilation of patient information. As in Feist, state law requires a physician to keep and
maintain patient medical records. See 16.10.8.7 NMAC (7/15/01) (amended 9/27/07) (“A
medical record must be generated[.]”). Accordingly, we hold that the law does not support
Eyeglass World’s attempt to preempt Dr. Muncey’s conversion claim on the basis that the
files fall within the general scope of § 102 of the Copyright Act.

                                               5
B.      Equivalence to the Federal Copyright Act

{15} Having determined that the patient files do not fall within the general scope of
copyright protection, the second element of copyright-preemption analysis requires us to
determine whether “the rights granted under state law are equivalent to any exclusive rights
within the scope of federal copyright as set out in 17 U.S.C. § 106.” Ehat, 780 F.2d at 878.
Eyeglass World argues that the elements of Dr. Muncey’s conversion claim are equivalent
to the elements of copyright infringement because “[t]he right to prevent copying is not a
different right than those protected by federal copyright law.” In response, Dr. Muncey
asserts that his claim is based on his exclusive rights to the physical patient files rather than
his rights to the data contained in the files. We determine that the rights to exclusive
ownership of tangible property are not equivalent to the rights protected by the Copyright
Act.

{16} “[W]hen a state law violation is predicated upon an act incorporating elements
beyond mere reproduction or the like, the rights involved are not equivalent and preemption
will not occur.” Id. (internal quotation marks and citation omitted). Accordingly, “if a state
cause of action requires an extra element, beyond mere copying, . . . then the state cause of
action is qualitatively different from, and not subsumed within, a copyright infringement
claim[.]” Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 847 (10th Cir. 1993).
Courts have distinguished tangible physical property from intangible property for the
purposes of preemption analysis. This distinction holds that there is no extra element beyond
copying when the object of a conversion claim is intangible. Compare Ehat, 780 F.2d at
878-79 (preempting a claim of reproduction and interference “with an intangible literary or
artistic property right” as the equivalent of copyright), and Daboub v. Gibbons, 42 F.3d 285,
289-90 (5th Cir. 1995) (preempting a conversion claim when the defendants had allegedly
improperly copied a song), with Asunto v. Shoup, 132 F. Supp. 2d 445, 452 (E.D. La. 2000)
(finding conversion of royalties for recordings qualitatively different from a copyright claim
because “the object of the conversion [was] tangible”), and Carson v. Dynegy, Inc., 344 F.3d
446, 456 (5th Cir. 2003) (“The elements of conversion of physical property are, therefore,
qualitatively different than those of copyright infringement.”).

{17} Eyeglass World asserts that Dr. Muncey’s conversion claim is equivalent to
copyright infringement because the claim is based upon copying the intangible data in the
patient files and not based upon an alleged deprivation of his right to access or use the files.
At trial, Dr. Muncey argued that Eyeglass World used the files “in defiance of his right of
exclusive control over [them]” and that such use was “unauthorized and injurious.” As
discussed in more detail later in this Opinion, the jury was instructed as to these theories of
conversion and this Court will address his claims based on the deprivation of his right to use
and access the files. Additionally, Dr. Muncey expressly argues in his supplemental answer
brief that his claim is based on his exclusive right to access, control, and use the tangible
patient files, and not his rights to the intangible data contained in them.

{18}    Because the object of Dr. Muncey’s claim was his exclusive right to access, control,

                                               6
and use of the physical files, the act of copying the files, without more, was not presented
to the district court as the basis for Dr. Muncey’s conversion claim. To prove this element
of his claim, Dr. Muncey necessarily relied on one factor similar to a Copyright Act claim:
Eyeglass World’s unauthorized reproduction of the files. But preemption analysis
“compare[s] the elements of the causes of action, not the facts pled to prove them.” Harolds
Stores, Inc. v. Dillard Dep’t. Stores, Inc., 82 F.3d 1533, 1543 (10th Cir. 1996). We must,
therefore, focus our preemption analysis on the elements of Dr. Muncey’s conversion claim.
These elements are: “[(1)] the unlawful exercise of dominion and control over personal
property belonging to another in exclusion or defiance of the owner’s rights, or [(2)] acts
constituting an unauthorized and injurious use of another’s property [.]” Nosker v. Trinity
Land Co., 107 N.M. 333, 337-38, 757 P.2d 803, 807-08 (Ct. App. 1988). These elements
deal with access to and use of tangible medical records and are unquestionably separate from
the elements required to present a claim of copyright infringement. As such, we conclude
that the conversion claim, concerned with dominion or interference with ownership rights
in tangible property, is not equivalent to the elements of copyright infringement.
Accordingly, the Copyright Act does not preempt Dr. Muncey’s conversion claim for
tangible property and this Court has jurisdiction over the appeal.

II.    MERITS

{19} We have consolidated Eyeglass World’s points on appeal related to conversion and
damages into two points. First, Eyeglass World asserts that its copying of Dr. Muncey’s
patient files, without more, did not constitute conversion and, therefore, the verdict and
judgment should be reversed. In support of this point, Eyeglass World argues that no
substantial evidence exists to establish that the copying proximately caused the files to lose
value. Independently and alternatively, Eyeglass World argues that no substantial evidence
exists to support the conversion elements of (1) exclusion or defiance, or (2) unauthorized
and injurious use. Eyeglass World also argues that, at a minimum, the compensatory
damages awarded for conversion should be remitted.

{20} Second, in seeking to strike or remit the punitive damages award Eyeglass World
asserts that insufficient evidence existed to permit punitive damages; that the amount
awarded was excessive and violated due process; and that at least $1 million of the award
was based on Dr. Muncey’s improper injection in closing argument of an unpleaded legal
theory on which the jury was not instructed. Eyeglass World also argues that if none of
these grounds prevail, this Court should remit the award as the product of passion and
prejudice.

{21} “Substantial evidence is such relevant evidence that a reasonable mind would find
adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d
1283, 1284 (1990). The evidence is viewed in a light most favorable to the prevailing party,
disregarding evidence and inferences to the contrary. Montoya v. Torres, 113 N.M. 105,
109, 823 P.2d 905, 909 (1991). The appellate court resolves all conflicts in the evidence in
favor of the decision below. Nava v. City of Santa Fe, 2004-NMSC-039, ¶ 10, 136 N.M.

                                              7
647, 103 P.3d 571; Insure N.M., LLC v. McGonigle, 2000-NMCA-018, ¶ 8, 128 N.M. 611,
995 P.2d 1053. In reviewing a substantial evidence claim, “[t]he question is not whether
substantial evidence exists to support the opposite result, but rather whether such evidence
supports the result reached.” Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-
NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. “Additionally[,] we will not reweigh the
evidence nor substitute our judgment for that of the fact finder.” Id. “Jury instructions
become the law of the case against which the sufficiency of the evidence is to be measured.”
Atler v. Murphy Enters., Inc., 2005-NMCA-006, ¶ 13, 136 N.M. 701, 104 P.3d 1092
(internal quotation marks and citation omitted).

A.     Conversion and Compensatory Damages

{22} Conversion is “the unlawful exercise of dominion and control over personal property
belonging to another in exclusion or defiance of the owner’s rights, or acts constituting an
unauthorized and injurious use of another’s property, or a wrongful detention after demand
has been made.” Nosker, 107 N.M. at 337-38, 757 P.2d at 807-08; see also Case Credit
Corp. v. Portales Nat’l Bank, 1998-NMSC-035, ¶ 13, 126 N.M. 89, 966 P.2d 1172 (Minzner,
J., dissenting) (stating that “Nosker defined at least three different types of conversion,
focusing on conversion by demand and refusal”); Taylor v. McBee, 78 N.M. 503, 506, 433
P.2d 88, 91 (Ct. App. 1967) (“Conversion is the wrongful possession of, or the exercise of
dominion over, a chattel to the exclusion or in defiance of the owner’s right thereto; or an
unauthorized and injurious use thereof; or the wrongful detention after demand therefor by
the owner.”). We note that our Supreme Court has also similarly defined conversion. See
In re Yalkut, 2008-NMSC-009, ¶ 25, 143 N.M. 387, 176 P.3d 1119 (stating that, similar to
a misappropriation of property, “conversion is the unlawful exercise of dominion and control
over property belonging to another in defiance of the owner’s rights, or acts constituting an
unauthorized and injurious use of another’s property, or a wrongful detention after demand
has been made” (alteration, internal quotation marks, and citation omitted)).

{23} In Frank Bond & Son, Inc. v. Reserve Minerals Corp., 65 N.M. 257, 261, 335 P.2d
858, 861 (1959), our Supreme Court adopted the Restatement’s measure of damages for
conversion.

               “Where a person is entitled to a judgment for the conversion of a
       chattel or the destruction of any legally protected interest in land or other
       thing, the damages include

       . . . the exchange value of the subject matter or the plaintiff’s interest therein
       at the time and place of the conversion or destruction, or a different value
       where that is necessary to give just compensation[.]”

Id. (quoting Restatement (First) of Torts § 927 (1939)); see also Cornell v. Albuquerque
Chem. Co., 92 N.M 121, 125, 584 P.2d 168, 172 (Ct. App. 1978) (stating that, in Frank Bond
& Son, Inc., New Mexico adopted the Restatement measure of damages for conversion of

                                               8
a chattel), abrogated on other grounds by Albuquerque Concrete Coring Co. v. Pan Am
Servs., Inc., 118 N.M. 140, 879 P.2d 772 (1994). In Valley Chevrolet Co. v. Whitaker, 76
N.M. 488, 490, 416 P.2d 154, 155 (1966), the Court stated that “[i]n a conversion action,
where the property has not been returned to the owner, the measure of damages is the value
of the property at the time of conversion with interest.” Citing Valley Chevrolet Co., in
Crosby v. Basin Motor Co., 83 N.M. 77, 79, 488 P.2d 127, 129 (Ct. App. 1971), this Court
followed suit.

{24} Because the jury instructions bear on the issues, we turn to the jury instructions and
law of the case. Afterward, we discuss substantial evidence and other arguments related to
the issues.

1.      The Conversion Jury Instructions

{25} New Mexico does not have uniform jury instructions specifically on the tort of
conversion. The jury was instructed that, to establish a claim of conversion, Dr. Muncey had
the burden of proving that:

                [(1)]   . . . Eyeglass World unlawfully exercised dominion and
                        control over the patient files that belonged to [Dr.] Muncey in
                        exclusion or defiance of his rights, or

                [(2)]   . . . Eyeglass World’s actions in copying the patient files
                        constituted an unauthorized and injurious use of [Dr.]
                        Muncey’s property[.]

The court further instructed the jury that “[c]onversion is defined as the unlawful exercise
of dominion and control over personal property belonging to another in exclusion or defiance
of the owner’s rights, or acts constituting an unauthorized and injurious use of another’s
property.”

{26} We see no indication that Eyeglass World specifically objected to the language in
these instructions. Rule 1-051(I) NMRA requires that to preserve an error in jury
instructions, “objection must be made to any instruction given, whether in UJI Civil or not;
or, in case of a failure to instruct on any point of law, a correct instruction must be tendered,
before retirement of the jury.” An objection cannot be made in general terms. It is necessary
to inform the district court of the specific error so it may have the opportunity to correct the
error. Echols v. N.C. Ribble Co., 85 N.M. 240, 246, 511 P.2d 566, 572 (Ct. App. 1973). The
court must be sufficiently advised of the specific error raised on appeal. Atler, 2005-NMCA-
006, ¶ 11.

{27} The instructions given to the jury contained only two of the three different types of
conversion, namely, the exclusion or defiance type and the unauthorized and injurious use
type. The instructions did not contain what Justice Minzner characterized as the “conversion

                                               9
by demand and refusal” type which, according to Justice Minzner, was the type of
conversion on which Nosker focused. See Case Credit Corp., 1998-NMSC-035, ¶ 13
(Minzner, J., dissenting). One of Eyeglass World’s arguments on appeal is that Dr.
Muncey’s conversion claim failed because Dr. Muncey did not make a demand that Eyeglass
World turn the files over. Eyeglass World contends that the demand requirement was
essentially an element in the exclusion or defiance type of conversion. Its reasoning is that,
under the circumstances in this case, there was no exclusion or defiance without Dr.
Muncey’s “demand for the return of [the] allegedly converted property when [Eyeglass
World] originally came into possession of that property lawfully.”

{28} Eyeglass World misreads the instruction given to the jury. No instruction sets out
law relating to whether the party charged with conversion originally came into possession
of the property lawfully. And Eyeglass World did not request such an instruction.
Furthermore, conversion by demand and refusal was not a form of conversion given to the
jury. The only types of conversion as to which evidence sufficiency is at issue were the
exclusion or defiance type and the unauthorized and injurious use type as set out in the
district court’s instruction. Since demand and refusal presumably constitute one of these
different or separate ways to prove conversion under our case law, that demand is not a
prerequisite to establishing exclusion or defiance.

2.      Eyeglass World’s Tendered Conversion-Related Instruction

{29} Eyeglass World did request an instruction relating to conversion that the court
rejected. The instruction stated that there is no exclusion or defiance, or injurious use,
“when a party copies the records, with or without authorization, and returns the original
records or makes the original records available to the other party that claims entitlement to
those records.” Printed at the bottom of the page of the proffered instruction was a string
citation to four cases with no parenthetical explanation of the cases’ content or pertinence.

{30} At trial, Eyeglass World’s attorney addressed the court’s anticipated conversion
instruction and Eyeglass World’s requested instruction in the following limited manner: “On
the conversion instruction, we do not believe there is sufficient evidence to allow this to go
to the jury, on these issues, and we object to . . . not including the instruction that we did that
deals with defining what is the exclusion or defiance and the injurious use.” In its brief in
chief on appeal, Eyeglass World repeats that its requested instruction was for the purpose
of explaining the terms “exclusion or defiance” and “injurious use[,]” terms that were not
“household concepts[.]”

{31} Eyeglass World goes further, however, and attempts to explain, in this Court, what
it failed or chose not to explain in the district court. Thus, only now does Eyeglass World
explain why several cases, including those cited in its requested instruction, support a
rejection of “the notion that conversion liability attaches upon an unauthorized copying
alone, in the absence of affirmative plaintiff efforts to reclaim the files.” Eyeglass World
broadly argues that “conversion liability cannot attach based on unauthorized file copying

                                                10
alone, and must instead attach only if the copying is either followed by use or a refusal to
return the files.” Its argument in this regard is based on a contested factual premise that it
lawfully came into possession of the original files, and on an assertion that “the tort of
conversion is premised on a property deprivation[,]” and therefore there could be no
conversion because the copying was not “a real and substantial property deprivation,” but
instead was a mere “temporary dispossession[]” of property “that easily could have been
nipped in the bud.”

{32} What we see is a requested instruction that sets out a legal theory of conversion that
was inconsistent with and contrary to that which the district court was to give the jury.
Specifically, Eyeglass World’s requested instruction directed the jury that it could not find
or conclude that a conversion occurred by the mere copying of the original files, whether
authorized or not, as long as Eyeglass World tendered the original files to Dr. Muncey. Yet
counsel did not explain in the district court that, in reality, Eyeglass World’s requested
instruction was inconsistent with or intended to replace the court’s anticipated instruction.
Rather, Eyeglass World tendered the instruction in the guise of a simple explanatory
instruction intended to “define” certain terms. Thus, it is only later, on appeal, and not at the
appointed time for objecting to instructions that Eyeglass World mixes its expressed purpose
with its implicit purpose, confirming that the instruction was simply explanatory, while
arguing, based on the cases cited on the instruction, a legal theory essentially stating to the
jury that the claim of conversion could not be established under the court’s instruction.

{33} To the extent Eyeglass World is attempting to assert error in refusing its requested
instruction, we reject the attempt. Based on the bare-boned objection made at trial to the
failure to give the instruction, the court did not err in refusing it. The proffered instruction
did not correctly define or explain the terms. Further, Eyeglass World failed to specifically
object to the district court’s conversion instruction on the ground or theory that the
instruction erroneously stated the law; the only objection was that the evidence did not
support the court’s instruction. And, further, Eyeglass World has not sought reversal on
appeal based specifically on any asserted error in refusing the requested instruction. The
only ground for reversal that Eyeglass World has argued in regard to the conversion
instruction is insufficiency of the evidence.

{34} Even were we to look into whether Eyeglass World’s requested instruction was a
correct statement of law, we would hold that the court did not err in refusing it. The cases
Eyeglass World cited to support the instruction do not, in our view, require a conclusion that
the conversion instruction that the court ultimately gave to the jury was an incorrect
statement of the law. Furthermore, the cases are factually distinguishable and were not
decided under the law set out in the district court’s conversion instructions in this case.2


        2
           The cases, as Eyeglass World cited them, and in its brief in chief added
parentheticals, are the following: Pearson v. Dodd, 410 F.2d 701, 703, 706 (D.C. Cir. 1969)
(determining that there was no conversion although the plaintiff’s documents were copied

                                               11
3.     The Measure of Damages Instruction

{35} The damages instruction stated that if the jury should decide in Dr. Muncey’s favor
on the conversion claim, it “may award the difference between the fair market value of the
converted personal property immediately before the conversion and its fair market value
immediately after the conversion.”3 The jury was also instructed that Dr. Muncey had the
burden of proving that the conversion was a proximate cause of his damages. Finally, the
jury was instructed that “[a] party may not recover as damages any cost or loss which he
reasonably could have avoided.”4

{36} For an unexplained reason, the parties and the district court in this case agreed to the
before-and-after-market value measure of damages reserved for injury to property instead
of the conversion measure of damages set out in New Mexico case law. We will view the
given instruction to intend a measure of damages in conversion in conformity with the New
Mexico cases as set out earlier in this Opinion, namely, the value of the property at the time
of conversion. Read in that manner, the question arises whether, as Eyeglass World
contends, Dr. Muncey was required to prove an impairment of value from Eyeglass World’s
actual use of the files apart from the mere act of copying.

{37} Eyeglass World construes the measure of damages instruction to require “proof not
merely of the files’ value, but of an impairment in value.” Eyeglass World asserts that a


and copies were given to and published by the press and that conversion could not be
established where “intermeddling falls short of the complete or very substantial deprivation
of possessory rights in the property”); Furash & Co. v. McClave, 130 F. Supp. 2d 48, 58-59
(D.D.C. 2001) (determining that there was no conversion where the owner was not “deprived
of the beneficial use” of copied documents); A & G Research, Inc. v. GC Metrics, Inc., No.
05870/2007, 2008 WL 2150110, at *26 (N.Y. Sup. Ct. May 21, 2008) (stating that
“[a]lthough [the d]efendants copied [the p]laintiff’s computer data and uploaded such data
on their own computer system, an essential element of conversion is that the owner of the
property is excluded from use thereof”); Alpha Funding Group, Inc. v. Aspen Funding LLC,
No. 19204/07, 2007 WL 3375871, at *7 (N.Y. Sup. Ct. Oct. 29, 2007) (determining that
there was no conversion where the plaintiff retained possession of customer information and
“could have . . . solicited . . . customers and attempted to retain them”; finding “no
unauthorized possession . . . to the exclusion of the rights of [the plaintiff]”).
       3
         This instruction was presumably taken from UJI 13-1814 NMRA found in Chapter
18, Damages, Part B, Property Damages, Elements of the civil instructions, which reads “In
determining property damage, if any, you may award the difference between the fair market
value of the damaged personal property immediately before the occurrence and its fair
market value immediately after the occurrence.”
       4
         This instruction was presumably taken from UJI 13-860 NMRA found in Chapter
8, Contract and UCC Sales of the civil instructions, which reads the same.

                                             12
value-at-conversion (copying) measure of damages “makes no sense” in the context of this
case, arguing that the measure is “derived from forced sale cases[.]” Thus, it gives no
credence to Dr. Muncey’s position that the value was lost simply upon copying the files.
Eyeglass World argues that “[i]f copying alone permits [Dr. Muncey] to recover the files’
full value, then [Eyeglass World] would owe [Dr. Muncey] the files’ full value even if [he]
had demanded the return of all originals and copies the day after the copying and [Eyeglass
World] had complied.” We are unpersuaded by this argument.

{38} In regard to “use,” the jury was instructed that, to prove conversion, Dr. Muncey had
only to establish that “Eyeglass World’s actions in copying the patient files constituted an
unauthorized and injurious use of [Dr.] Muncey’s property[.]” (Emphasis added.) Thus, for
a determination of conversion, the jury was permitted to find that the act of copying alone
was an injurious use that constituted a compensable injury. The jury was not required to find
that Eyeglass World actually used the files in some manner after copying them in order to
determine that a conversion occurred for which damages could be awarded. Eyeglass World
did not request an instruction that required Dr. Muncey to prove that only an unauthorized
or injurious use beyond or after copying could trigger damages based on conversion.
Eyeglass World was duty bound to raise its issue with the conversion-related instructions
before the instructions were given to the jury. Therefore, it failed to preserve its argument
that measuring damages based on the value of the property at the time of conversion was
inapplicable in this case.

{39} In regard to use, if the jury’s determination of conversion was based on the
unauthorized and injurious use type of conversion, it would follow pursuant to New Mexico
law that the measure of damages was the value of the files at the time of copying the original
files. Once the jury determined, based on substantial evidence, that that value was $300,000,
the jury was not required to go further and determine that the value was “impaired” by some
use after the original files were copied. In the circumstances of this case and based on how
the jury was instructed for damages purposes, the jury could determine the value at
conversion, which was the point at which the original files were copied.

4.     The Law of the Case

{40} The instructions that were given to the jury became the law of the case on the
conversion claim with respect to both the definition and elements of conversion and the basis
for determining damages if conversion were proved. See Atler, 2005-NMCA-006, ¶ 13
(“Jury instructions become the law of the case against which the sufficiency of the evidence
is to be measured.” (internal quotation marks and citation omitted)); see also Fleetwood
Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 33, 142 N.M. 150, 164 P.3d 31
(recognizing that the instructions become the law of the case).

5.     Sufficiency of Evidence of Proximate Cause and Damages

{41}   Dr. Muncey points to the evidence surrounding negotiations in regard to Eyeglass

                                             13
World purchasing his files and argues that the jury could reasonably conclude that the value
of the files was $300,000. Through Dr. Muncey’s testimony there was evidence indicating
that, at one point, the parties appear to have settled on a $300,000 price for the patient files
as part of the negotiations to buy out Dr. Muncey’s contract. Eyeglass World appears to
have been willing, in order to “treat this in a way that would be better for [Dr. Muncey],”
concerning federal taxes, the transaction would be considered a “purchase of an asset,” the
patient files. We agree with Dr. Muncey that sufficient evidence was presented to establish
that the files had been given a value of $300,000 before the claimed act of conversion
occurred in June 2007.

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

{43} Dr. Muncey limits his conversion claim and resulting damages to the act of making
unauthorized copies of the files. Dr. Muncey argues that “the entire value of the patient files
resided in [his] exclusive control and ownership of them” at the time the copying occurred.
Thus, Dr. Muncey concludes, once Eyeglass World divested him of that exclusive control
of the files, “all value [to Dr. Muncey] disappeared[,]” with any value moving to Eyeglass
World. Dr. Muncey refers to an obvious intent of Eyeglass World to use the copies, having
spent $6000 to copy them, and he indicates that the copying made it easier to attract an
optometrist and that the copying afforded Eyeglass World an anticipated competitive and
economic advantage in providing “a ready made practice with 20,000 patient files[.]”

{44} The proximate cause and damages analysis is not a particularly simple one given the
conduct of the parties and historical facts and circumstances, which obviously left
unanswered questions for the court and the jury in regard to reasons, motives, agenda,
purposes, and justifications. The discussions between the parties relating to any possible
transfer of files were contained in exchanges of correspondence in July and August 2007
between their attorneys. That correspondence started with a July 25, 2007, letter from
Eyeglass World’s attorney (Zifrony) to Dr. Muncey’s attorney (Bauman) stating:


                                               14
       In light of the above and the litigious nature of your client, [Eyeglass World]
       does not want your client to accuse it of having prevented any necessary
       follow up care. [Eyeglass World] is therefore putting your client on notice
       of its expectation that your client will immediately remove all of these patient
       records from [Eyeglass World’s] location. If your client fails to do so within
       the next seven days, [Eyeglass World] will have no choice but to deliver the
       patient records to your office at your client’s cost ([Eyeglass World] can, in
       the alternative, deliver the records directly to your client at his cost if you
       will provide me his current work address).

It resumed with Mr. Bauman’s July 27, 2007, response stating that Dr. Muncey was out of
town on vacation until August 9, 2007, and further stating that “Dr. Muncey has . . . made
arrangements for his current [o]ffice [m]anager . . . to pick up the current [LASIK] files
(approximately 20 boxes) on August 2nd” and stated that his office manager would contact
the manager at Eyeglass World to coordinate the transfer of those particular files. Following
which Mr. Zifrony, on July 30, 2007, wrote that the statement regarding Dr. Muncey’s being
out of town on vacation was “entirely untrue” and also wrote:

       In any event, your client has had more than a reasonable amount of time to
       resolve this issue given how long the records have been kept at [Eyeglass
       World].

       . . . Your client is the one that made a big deal about the need for retaining
       possession of these records. At the same time, your client has chosen to
       leave these records at [Eyeglass World] for some time. Your July 27 letter
       does not even state with certainty whether your client ever intends on
       removing them. Either immediately provide me with a specific date on
       which . . . your client or someone else will pick up the records (which date
       must take place by Friday of this week) or immediately provide me with an
       address as to where [Eyeglass World] can send these records at your client’s
       cost. Unless I hear a response from you in this regard by noon tomorrow,
       [Eyeglass World] will discard all of these records beginning six . . . days
       from now.

Mr. Bauman then wrote on July 31, 2007, that “Dr. Muncey is making arrangements to
remove the patient files and will do so as quickly as possible. Please be advised that any
action by Eyeglass World to [discard] these patient files will violate both New Mexico and
[f]ederal laws.” Mr. Zifrony responded on August 1, 2007, that “It is [Eyeglass World’s]
understanding that [the office manager] from your client’s office will be coming to [Eyeglass
World] to pick up certain of your client’s files on August 9, 2007. [Eyeglass World] will
thereafter send any of your client’s remaining files to the New Mexico Board of Optometry.”
On August 1, someone on Dr. Muncey’s behalf picked up only the LASIK-related files,
stating: “I acknowledge that I did not retrieve from Eyeglass World’s location any patient
files that were worked on by or through Dr. Muncey that did not involve patients that

                                             15
received or contemplated receiving medical services from The [LASIK] Vision Institute.”

{45} This correspondence was followed by a September 10, 2007, complaint submitted
by Eyeglass World to the State Regulation and Licensing Department, Compliance Section,
stating:

       Dr. Muncey was an independent contractor of Eyeglass World who provided
       optometric services at Eyeglass World’s New Mexico location. Dr. Muncey
       subsequently leased space from Eyeglass World whereby he continued to
       provide optometric services as a tenant of Eyeglass World and at the same
       New Mexico location. Dr. Muncey ultimately terminated his lease a few
       months ago and has since refused to retrieve from that location the majority
       of his patient records. Attached are letters to Dr. Muncey’s attorney from
       Eyeglass World’s attorney, Matthew Zifrony, Esq., requesting that he
       retrieve his patient records along with Dr. Muncey’s attorney’s responses.

A letter to the State Regulation and Licensing Department from Mr. Bauman dated
November 29, 2007, recounts the foregoing correspondence between the parties and states
that “[n]o further exchanges with respect to patient records took place.” This letter also
stated that

       Attached . . . is a letter from Dr. Nathanial Roland which describes what
       appears to have been the wholesale unauthorized copying of patient files by
       Eyeglass World staff subsequent to Dr. Muncey’s departure. Because Dr.
       Muncey believes that this action by Eyeglass World infringes upon patient
       rights, he took no further action to retrieve patient files until the matter could
       be fully investigated and if verified, brought to the attention of the New
       Mexico District Court.

In a letter dated February 11, 2008, the chief investigator for the New Mexico Board of
Optometry stated that the Board decided to dismiss Eyeglass World’s complaint on the
ground that “there is no cause for disciplinary action.” None of the correspondence or
documents submitted to the Department discuss specifically whether “files” refers to the
original patient files, the copies, or both.

{46} From all appearances, at the point Eyeglass World copied the files, it hoped or
intended to use the copies for future optometrists. Why else copy the files? The CEO and
president of Eyeglass World’s holding company until sometime prior to trial, Ben Cook,
testified at trial about his prior deposition testimony. The testimony indicated that it was
valuable to retain Dr. Muncey’s files in order to continue to service the patients, and he also
indicated a concern about the possibility that Dr. Muncey could open a store nearby and
compete with Eyeglass World. Mr. Zifrony testified that “[w]e made the copies so that we
had a set of the patient records available for a replacement optometrist in case Dr. Muncey
decided to come and take his originals from Eyeglass World.”

                                              16
{47} The jury was left with an unforgiving set of circumstances to wonder how to resolve
the dispute under the instructions. Obviously, the jury saw Eyeglass World as the culprit.
We now, on appeal, are confronted with: (1) the determination by the jury, based on the
conversion instructions, that the elements of conversion were met either by exclusion or
defiance or by unauthorized and injurious use, or both; (2) the determination by the jury,
based on the measure of damages instruction, that the files had a $300,000 value to Dr.
Muncey and, implicit in its verdict that Dr. Muncey lost that value immediately after the
conversion; and (3) a determination by the jury, under the mitigation instruction, that Dr.
Muncey mitigated all he had to or could.

{48 } Dr. Muncey’s case for proximate cause and damages turns on whether damages were
necessarily sustained and awardable based solely on copying the original files and on
whether damages were measured by the value of the files at the time they were copied.
Based on the conduct of each party and given the particular, peculiar circumstances in this
fully tried case, the long and short of it is that we are simply not prepared to hold that the
evidence to prove proximate cause and damages was insufficient. And we are not prepared
to second-guess or override the jury. It is up to the parties to carefully try their cases, to
assure that the jury is clearly and carefully instructed, to make critical objections in regard
to instructions, and to carry the burden of persuasion through convincing evidence and
argument. It is not the duty of an appellate court to sift through the testimony and other
evidence and attempt to decide the case based on instructions with which the parties found
no material fault. “[W]e will not reweigh the evidence nor substitute our judgment for that
of the fact finder.” Atler, 2005-NMCA-006, ¶ 13 (internal quotation marks and citation
omitted). We are to determine whether substantial evidence exists to support the jury’s
verdict. Id.

{49} In sum, assuming that the jury’s determination that a conversion by copying occurred
stands based on substantial evidence, we will not disturb the verdict. And, as we discuss
next, under the particular and peculiar circumstances in this case, substantial evidence
supported the proximate cause and damages verdict of a $300,000 value of the files at the
time Eyeglass World converted the files by copying them.

6.     Mitigation

{50} The dissent concludes that Dr. Muncey failed to mitigate damages as a matter of law
and was therefore not entitled to any compensatory damages. We have been unable to reach
that conclusion.

{51} The dissent does not indicate that Eyeglass World moved for a directed verdict on
a mitigation issue. The record reflects that no such motion was made. Eyeglass World did
not appeal on the ground that the district court erred in failing to grant any motion for a
directed verdict on mitigation of damages.

{52}   Eyeglass World requested a mitigation jury instruction. The instruction was given

                                              17
to the jury. Eyeglass World did not argue at the time against the issue going to the jury. The
parties had every opportunity to argue the mitigation issue to the jury. After the verdict,
Eyeglass World did not seek a remittitur in district court based on a rationale of failure to
mitigate damages as a matter of law.

{53} Eyeglass World barely mentioned mitigation in its brief in chief. In its reply brief,
Eyeglass World argues that, notwithstanding that the jury was instructed on mitigation and
that the parties argued the issue to the jury, this Court has the duty to review the mitigation
evidence for sufficiency. Eyeglass World cites no authority to substantiate that duty under
the circumstances here. The argument is not persuasive.

{54} Under the conversion theories submitted to the jury, we do not agree with the view
that there was no evidence on which a rational finder of fact could award any compensatory
damages in the face of the mitigation of damages instruction. Nor do we agree that the
evidence required the jury to arrive at solely one finding, namely, that Dr. Muncey failed to
mitigate his damages. Eyeglass World, of course, had the burden to establish its affirmative
defense of failure to mitigate. Dr. Muncey had only to defeat the defense by demonstrating
that he did all he needed to do under the circumstances he faced. He obviously did so, given
the jury’s verdict.

7.     The Issue of Sufficiency of Evidence as to Exclusion
       or Defiance, or as to Unauthorized and Injurious Use

{55} As indicated earlier in this Opinion, Eyeglass World argues that the unauthorized and
injurious use type of conversion was not established in the evidence because there was no
substantial evidence that Eyeglass World used the files after copying them. Hence, there
was no substantial evidence of any injurious use. Nor, Eyeglass World contends, can mere
copying be an injurious use.

{56} The facts on which Eyeglass World relies for its lack of substantial evidence
argument in regard to exclusion or defiance are that Eyeglass World came into possession
of the files lawfully, that Eyeglass World repeatedly asked Dr. Muncey to retrieve the files,
and that Dr. Muncey did not collect the files or demand that Eyeglass World turn the files
over to him after he learned they were being copied. Eyeglass World argues that it never
refused to turn the files over and that, because Eyeglass World came into possession
lawfully, in order to establish exclusion or defiance, Dr. Muncey was “required to insist on
the return of all files and copies[.]” Instead, Dr. Muncey elected to leave the files with
Eyeglass World and to pursue his legal action.

{57} Eyeglass World emphasizes that conversion is premised on a property deprivation
and that a defendant must refuse to comply after a plaintiff clearly asserts his property rights
in order to assure that the deprivation is “a real and substantial” one and “not merely
temporary dispossessions that easily could have been nipped in the bud.” According to
Eyeglass World, “a timely demand from [P]laintiff would have quickly and mercifully

                                              18
brought this dispute to an end.”

{58} The verdict was a general verdict. The jury was permitted under the instructions to
find conversion from either unauthorized and injurious use or from exclusion or defiance.
Whether Eyeglass World originally had lawful possession of the patient files was not an
issue submitted to the jury, and Eyeglass World did not request an instruction in that regard.
Under the language of the instructions as given to the jury, based on substantial evidence,
the jury could draw reasonable inferences from the record that Eyeglass World acted in
defiance of Dr. Muncey’s rights in the patient files by its unauthorized copying of the files
for an intended future optometry use. Also under the language of the instructions as given
to the jury, based on substantial evidence, the jury could draw reasonable inferences that the
copying of the files was both unauthorized and injurious. We are not prepared to determine
that the issue of conversion should not have been given to the jury based on lack of
substantial evidence.

B.     Punitive Damages

{59} Eyeglass World challenges the punitive damages award on grounds that (1) the
evidence was insufficient to permit punitive damages, (2) the amount of the award was
excessive and violates due process, and (3) Dr. Muncey’s closing argument improperly
injected an unpleaded legal theory on which the jury was not instructed. Eyeglass World
requests this Court to remit the award as a product of passion and prejudice if we do not
strike or remit the award on one of the three grounds.

1.     Sufficiency of the Evidence for Punitive Damages

{60} Eyeglass World argues that the evidence is insufficient to establish that its actions
reached such a heightened culpable mental state as to be malicious or within the purview of
the egregiousness contemplated and required for punitive damages. Much of its argument
centers on Dr. Muncey’s conduct, not on its own. The argument does not refer to the
punitive damages instruction that permitted the jury to assess whether Eyeglass World’s
conduct was “malicious, willful, reckless, wanton, fraudulent[,] or in bad faith” and that
which specifically defined malicious, willful, reckless, and wanton conduct as set out in UJI
13-1827 NMRA. Eyeglass World fails to show why the jury could not reasonably infer such
conduct from Eyeglass World’s unauthorized copying and intended retention of the copies,
together with Eyeglass World’s apparent position that it had a right to copy and use the
copies, as well as its apparent ambiguous and uncooperative stances in its correspondence,
along with its submitting a complaint to the State Regulation and Licensing Department.

{61} Nor does Eyeglass World set out the substance of the evidence bearing on the
proposition argued as required under our rules and case law. See Rule 12-213(A)(3), (4)
NMRA; see also Martinez v. Sw. Landfills, Inc., 115 N.M. 181, 186, 848 P.2d 1108, 1113
(Ct. App. 1993) (stating that the appellate court will not consider an insufficiency of
evidence argument without presentation of the evidence as a whole or based only on facts

                                             19
which tend to support the argument). There exists a substantial amount of evidence
regarding Eyeglass World’s conduct that it fails to set out and that we choose not to detail
here. Dr. Muncey sets out some of that evidence in his answer brief. We reject Eyeglass
World’s sufficiency argument. Eyeglass World fails to sufficiently develop the argument.
Furthermore, our review of the record indicates that substantial evidence supported the
punitive damages instruction.

2.     Due Process

{62} We review the constitutional reasonableness of a punitive damage award de novo.
Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478, 143 P.3d 717;
Aken v. Plains Elec. Generation & Transmission Coop., 2002-NMSC-021, ¶ 17, 132 N.M.
401, 49 P.3d 662. “Any doubt in the mind of the appellate court concerning the question of
what appropriate damages may be in the abstract, or owing to the coldness of the record,
should be resolved in favor of the jury verdict.” Id. ¶ 19. In undertaking a de novo review,
we consider three criteria:

       1) the degree of reprehensibility of the defendant’s misconduct; 2) the
       disparity between the harm (or potential harm) suffered by the plaintiff and
       the punitive damages award; and 3) the difference between the punitive
       damages awarded by the jury and the civil penalties authorized or imposed
       in comparable cases.

Id. ¶ 20 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996)). The
reprehensibility of the conduct is, perhaps, the most important guidepost in the analysis.
Aken, 2002-NMSC-021, ¶ 21. Eyeglass World argues that the punitive damages award
unreasonably exceeds due process limits under the guideposts and considerations governing
analysis of such awards.

a.     The First Due Process Guidepost

{63} As to the first guidepost, reprehensibility, Eyeglass World argues that its conduct was
not reprehensible because its conduct was purely economic and did not produce personal
injury; its conduct did not consist of a pattern or practice of willful misbehavior, but was
isolated, was the product of unusual case-specific circumstances, was done after obtaining
its attorney’s advice that it was lawful to copy the files, and was not supported by evidence
of actual harm. Eyeglass World concludes that “if reprehensible at all, the conduct was at
the low end of the scale.”

{64} The United States Supreme Court has set the structure for analysis of the first due
process guidepost.

             The most important indicium of the reasonableness of a punitive
       damages award is the degree of reprehensibility of the defendant’s conduct.

                                             20
       We have instructed courts to determine the reprehensibility of a defendant by
       considering whether: the harm caused was physical as opposed to economic;
       the tortious conduct evinced an indifference to or a reckless disregard of the
       health or safety of others; the target of the conduct had financial
       vulnerability; the conduct involved repeated actions or was an isolated
       incident; and the harm was the result of intentional malice, trickery, or deceit,
       or mere accident. The existence of any one of these factors weighing in favor
       of a plaintiff may not be sufficient to sustain a punitive damages award; and
       the absence of all of them renders any award suspect. It should be presumed
       a plaintiff has been made whole for his injuries by compensatory damages,
       so punitive damages should only be awarded if the defendant’s culpability,
       after having paid compensatory damages, is so reprehensible as to warrant
       the imposition of further sanctions to achieve punishment or deterrence.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (alteration, internal
quotation marks, and citations omitted). Our Supreme Court is in step with State Farm.
Chavarria, 2006-NMSC-046, ¶¶ 37-38.

b.     The Second Due Process Guidepost

{65} The second due process guidepost focuses primarily on the ratio between punitive
and compensatory damages. We quote State Farm for the view, to which we adhere, of how
to gauge application of the second due process guidepost.

               Turning to the second Gore guidepost, we have been reluctant to
       identify concrete constitutional limits on the ratio between harm, or potential
       harm, to the plaintiff and the punitive damages award. We decline again to
       impose a bright-line ratio which a punitive damages award cannot exceed.
       Our jurisprudence and the principles it has now established demonstrate,
       however, that, in practice, few awards exceeding a single-digit ratio between
       punitive and compensatory damages, to a significant degree, will satisfy due
       process. . . . [I]n upholding a punitive damages award, we concluded that an
       award of more than four times the amount of compensatory damages might
       be close to the line of constitutional impropriety. We cited that 4-to-1 ratio
       again in Gore. The Court further referenced a long legislative history, dating
       back over 700 years and going forward to today, providing for sanctions of
       double, treble, or quadruple damages to deter and punish. While these ratios
       are not binding, they are instructive. They demonstrate what should be
       obvious: Single-digit multipliers are more likely to comport with due
       process, while still achieving the [s]tate’s goals of deterrence and retribution,
       than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1.

State Farm, 538 U.S. at 424-25 (internal quotation marks and citations omitted).


                                              21
{66} As to this second guidepost and the ratio analysis, Eyeglass World argues that
because the ratio of compensatory damages to punitive damages, which is 6.6 to 1, was
greater than a one-to-one ratio, the punitive damages award violated due process because the
compensatory damages award was substantial, and “it is difficult to fathom how [Dr.
Muncey] suffered any harm[.]” Eyeglass World also argues that due process warrants a
reduction of the award to, at most, a one-to-one ratio given that this is a “purely economic
case . . . involving (1) isolated conduct that [Dr. Muncey] was unable to show caused him
any harm, and (2) an award of compensatory damages in the full amount he sought[.]”
These circumstances, Eyeglass World argues, are what the United States Supreme Court in
State Farm “had in mind in noting when a one-to-one ratio is at the ‘outermost’ limits.” See
State Farm, 538 U.S. at 425 (stating that circumstances may permit imposition of “a lesser
ratio”); see also Williams v. ConAgra Poultry Co., 378 F.3d 790, 798-99 (8th Cir. 2004)
(reducing the punitive award to a one-to-one ratio); Aken, 2002-NMSC-021, ¶ 22 (reducing
the punitive award from $1 million to $300,000). State Farm does not, however, attempt to
set any bright-line ratio. It is obvious that each case must be analyzed based on its particular
facts.

               Nonetheless, because there are no rigid benchmarks that a punitive
       damages award may not surpass, ratios greater than those we have previously
       upheld may comport with due process where a particularly egregious act has
       resulted in only a small amount of economic damages. The converse is also
       true, however. When compensatory damages are substantial, then a lesser
       ratio, perhaps only equal to compensatory damages, can reach the outermost
       limit of the due process guarantee. The precise award in any case, of course,
       must be based upon the facts and circumstances of the defendant’s conduct
       and the harm to the plaintiff.

State Farm, 538 U.S. at 425 (internal quotation marks and citations omitted).

{67} Our Supreme Court has explained the difference between the first and second
guideposts. In Aken, the Court stated: “The first guidepost requires comparing damages to
the enormity of the defendant’s wrong, apart from the injury actually sustained. The second
guidepost represents a different vantage point on the punitive damages award[] and considers
the plaintiff’s injury.” 2002-NMSC-021, ¶ 23; see Chavarria, 2006-NMSC-046, ¶¶ 36, 38.
As to the second guidepost, repeated in Chavarria, the Court in Aken stated the test as, “the
amount of an award of punitive damages must not be so unrelated to the injury and actual
damages proven as to plainly manifest passion and prejudice rather than reason or justice.”
Aken, 2002-NMSC-021, ¶ 23 (alteration, internal quotation marks, and citation omitted); see
Chavarria, 2006-NMSC-046, ¶ 38. Chavarria focused on State Farm’s “flexible approach,
especially in situations involving egregious behavior, low compensatory damage awards,
injuries that are difficult to detect, or non-economic harm that is not easily converted into
a dollar value.” Chavarria, 2006-NMSC-046, ¶ 38. According to State Farm, “[i]n sum,
courts must ensure that the measure of punishment is both reasonable and proportionate to
the amount of harm to the plaintiff and to the general damages recovered.” 538 U.S. at 426.

                                              22
c.      The Third Due Process Guidepost

{68} As to the third guidepost, Eyeglass World argues that few meaningful conversion
penalties exist to compare to the award in this case, particularly where “a defendant’s bare
exercise of dominion over the plaintiff’s property, without denying the plaintiff access or
injuriously using [the property], is generally not punished or punishable at all.” Eyeglass
World states that “[d]ue process . . . permits at most a small punitive award.”

d.      Consideration of the Due Process Guideposts

{69} Assessing the first guidepost, reprehensibility, is no particularly easy task when
looking at totality of the circumstances present in this case and given the fluidity of the
guideline and the balancing required under the State Farm structure. In Eyeglass World’s
favor, the case before us reflects an isolated occurrence in a peculiar set of circumstances
with Dr. Muncey likely facing slight, if any, financial vulnerability were he to have acted
quickly to retrieve the patient files and obtain the copies and with Dr. Muncey being legally
damaged economically only. Further, Eyeglass World’s conduct did not evince an
indifference to or a reckless disregard for health or safety, although the jury may have
considered Dr. Muncey’s testimony in regard to his loss of sleep and concern in regard to
his license and livelihood with the pending complaint submitted by Eyeglass World to the
Optometry Board. Moreover, Dr. Muncey was made whole through the award of
compensatory damages. Yet the jury’s reaction indicates a view that Eyeglass World’s
motive was to obtain, keep, copy, and use the files without paying for them. Under this first
guidepost, following the State Farm analysis, “punitive damages should . . . be awarded if
[Eyeglass World’s] culpability, after having paid compensatory damages, is so reprehensible
as to warrant the imposition of further sanctions to achieve punishment or deterrence.” Id.
at 419.

{70} Turning to the second guidepost, in which State Farm focused on the ratio between
punitive and compensatory damages, the ratio we are looking at is a single-digit ratio of 6.6
to 1. State Farm refused any bright-line ratio, but indicated that “few awards exceeding a
single-digit ratio . . ., to a significant degree, will satisfy due process[,]” while “[s]ingle-digit
multipliers are more likely to comport with due process[.]” Id. at 425. Looking solely at
ratio, it is apparent that the 6.6 to 1 ratio has the potential of comporting with due process.
Yet, according to a rule established by our Supreme Court in Aken, it must still pass another
fluid analysis—it must be apparent that the amount of the award is not “so unrelated to the
injury and actual damages proven as to plainly manifest passion and prejudice rather than
reason or justice.” 2002-NMSC-021, ¶ 23 (internal quotation marks and citation omitted).
Here, the issue is not so much the ratio, but whether the $2 million punitive damages award
plainly manifests passion and prejudice.

{71} Moving to the third guidepost, the disparity between the punitive damages award and
the civil penalties assessed in analogous cases, see State Farm, 538 U.S. at 428, Dr. Muncey
looks for comparison to civil penalties under HIPAA and to criminal larceny, theft, and

                                                 23
embezzlement statutes. We see no basis for comparison. HIPAA violations were ruled in
this case to be irrelevant, and no criminal violations were shown to apply to the facts.

{72} A review of somewhat factually applicable New Mexico cases that evaluate the
guidepost factors in a due process analysis does not particularly assist us in evaluating the
due process question in the case now before us. See Chavarria, 2006-NMSC-046, ¶¶ 35-39
(engaging in a detailed review of the guideposts, and remanding the matter for re-assessment
by the district court of its reduction of its initial punitive damages award of $250,000 down
to $150,000, in a case involving fraud and conversion); Aken, 2002-NMSC-021, ¶¶ 19-28
(engaging in a detailed review of the guideposts, and affirming the district court with an
adjustment of the punitive damages award on a defamation claim from $1 million down to
$300,000); Bogle v. Summit Inv. Co., LLC., 2005-NMCA-024, ¶¶ 34-37, 137 N.M. 80, 107
P.3d 520 (engaging in analysis of the guideposts and determining that all three guideposts
supported the modest punitive damages award). We do not include Jolley v. Energen Res.
Corp., 2008-NMCA-164, 145 N.M. 350, 198 P.3d 376, in our review, because it involves
serious bodily harm.

{73} Weighing the guidepost factors as we must with their built-in imprecision and
indeterminateness, while a close case on the issue, we are unable to conclude that the
punitive damages award was excessive or was the result of passion and prejudice. We
therefore hold that the award did not violate due process.

3.     Other Considerations

{74} Eyeglass World also asks this Court to “sharply reduce” the punitive damages award
because the award wrongfully punishes the equity owner of Eyeglass World, National
Vision, because National Vision purchased its equity interest after the conversion took place,
and therefore did nothing wrong, and because the $29 million purchase price paid to acquire
the equity interest was allowed in evidence over Eyeglass World’s objection. Eyeglass
World argues that forcing National Vision to pay the award does not accomplish “the limited
purpose of punitive damages [of] punishing a wrongdoer and deterring future tortious
conduct.” McNeill v. Rice Eng’g & Operating, Inc., 2003-NMCA-078, ¶ 32, 133 N.M. 804,
70 P.3d 794 (alteration, internal quotation marks, and citation omitted).

{75} Eyeglass World raises this issue for the first time on appeal. We will not, therefore,
consider it. See Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 9, 147 N.M. 512, 226 P.3d
611. Furthermore, Eyeglass World provides no authority on the particular issue of reducing
punitive damages awarded against a wrongdoer out of concern for the wrongdoer’s successor
in interest’s purported innocence. And, in addition, Eyeglass World does not support this
claim of innocence with facts showing that National Vision’s purchase occurred before
Eyeglass World had any notice of possible lawsuit by Dr. Muncey for conversion.

C.     Claimed Closing Argument Impropriety


                                             24
{76} In closing argument, Dr. Muncey asked the jury to award $2 million in punitive
damages, consisting of $1 million for Eyeglass World’s conduct leading up to and involving
copying the files, and another $1 million based on Eyeglass World’s having filed a complaint
with the Optometry Board for a wrongful purpose. Eyeglass World complains that Dr.
Muncey did not plead a claim or seek an instruction based on Eyeglass World’s complaint
to the Optometry Board. It complains that it had no warning that the argument would be
made to the jury. It asserts that it was prejudiced by the “bolt-from-the-blue” and was
deprived of any opportunity to defend itself by showing that it had made the complaint in
good faith and without malice or to seek jury instructions explaining that the complaint was
privileged under New Mexico’s Uniform Licensing Act, NMSA 1978, §§ 61-1-1 to -33
(1957, as amended through 2012). Eyeglass World also attacks the propriety of the
argument on the ground that the complaint had nothing to do with acts purportedly
constituting conversion.

{77} Eyeglass World failed, however, to object to the argument until post-trial motions.
See Allen v. Tong, 2003-NMCA-056, ¶ 37, 133 N.M. 594, 66 P.3d 963 (stating that, where
the plaintiff made no objection to defendant’s counsel’s closing argument, we “will review
the propriety of the statement only in exceptional cases where the interest of substantial
justice is at stake” (internal quotation marks and citation omitted)); Lopez v. Sw. Cmty.
Health Servs., 114 N.M. 2, 8, 833 P.2d 1183, 1189 (Ct. App. 1992) (stating that, as a general
rule, failure to object to closing argument precludes appellate review). Eyeglass World
acknowledges that it is relegated to a request that we apply a theory of “non-waivable
‘fundamental error’” to grant a new trial. For this theory, Eyeglass World relies on Gracia
v. Bittner, that notes, in relation to a failure to alert the district court to a statutory
amendment, only that “the common element in civil cases that have been reversed for
unpreserved error has been the total absence of anything in the record of the case showing
a right to relief in the person granted relief.” 120 N.M. 191, 196-97, 900 P.2d 351, 356-57
(Ct. App. 1995). Eyeglass World also relies on Sandoval v. Baker Hughes Oilfield
Operations, Inc., 2009-NMCA-095, 146 N.M. 853, 215 P.3d 791, that requires, for
application of the rule permitting reversal for improper closing argument, the rule “only be
applied as a last resort and is not to be applied unless we are satisfied that the argument
presented to the jury was so flagrant and glaring in fault and wrongdoing as to leave the
bounds of ethical conduct, such as going outside the record.” Id. ¶ 57 (internal quotation
marks and citation omitted).

{78} We are unpersuaded. The closing argument statement Eyeglass World attacks does
not come within the purview of Allen, Gracia, or Sandoval. The subject matter of the
argument was well within the record. The complaint to the Optometry Board was an
extension of the correspondence regarding the transfer of the files and could be seen as
having been inspired with a less than beneficial motive. The complaint was listed in the
parties’ exhibit lists and was discussed at different times during trial. We do not see the $1
million statement as an “exceptional case[] where the interest of substantial justice is at
stake[,]” Allen, 2003-NMCA-056, ¶ 37 (internal quotation marks and citation omitted), nor


                                             25
do we see the case as involving circumstances coming within the requirements set out in
Sandoval. Sandoval, 2009-NMCA-095, ¶ 57.

CONCLUSION

{79}   We affirm.

{80}   IT IS SO ORDERED.

                                              ____________________________________
                                              JONATHAN B. SUTIN, Judge
I CONCUR:

_________________________________
MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge (dissenting).

GARCIA, Judge (dissenting).

{81} I respectfully dissent in this case. Although the circumstances in this case are unique,
the fact remains Dr. Muncey failed to mitigate his damages regarding his conversion claim
asserted in his amended complaint. As a result, Eyeglass World was entitled to a partial
directed verdict at the end of Dr. Muncey’s case in chief.

{82} Even viewing the facts in the light most favorable to Dr. Muncey, it was undisputed
that, based on the advice of his attorney, Dr. Muncey failed to undertake any action to
mitigate his damages for the conversion of his files. Majority Opinion ¶ 7. The timing of
Dr. Muncey’s knowledge that his files were being copied and therefore converted by
Eyeglass World is critical to the directed verdict analysis in this dissent.

{83} It is undisputed that Dr. Muncey knew that Eyeglass World was copying his files for
several weeks before Eyeglass World completed the copying process. As the majority has
pointed out, Dr. Muncy became aware that the files were being copied in mid-June 2007 and
the copying process was not finished until July 10, 2007. Majority Opinion ¶¶ 6-7. As a
result, Dr. Muncey’s duty to mitigate his damages arose in mid-June and lasted for several
weeks, even though he chose to disregard this legal obligation based upon the advice of his
attorney.

{84} I shall address below whether the advice of an attorney provides a legal justification
to avoid one’s duty to mitigate damages. I conclude that it does not. As a result, Dr.
Muncey failed to present substantial evidence to establish the damages element of his
conversion claim. Eyeglass World was entitled to a directed verdict prior to any jury
deliberations on Dr. Muncey’s conversion claim.

                                             26
{85} It is undisputed that Dr. Muncey had the affirmative duty to mitigate his damages
before he was entitled to recover under his claim of conversion. The jury was given UJI 13-
860, the instruction on Eyeglass World’s mitigation of damages affirmative defense.
Eyeglass World specifically requested this instruction. The instruction states: “[a] party
may not recover as damages any cost or loss which he reasonably could have avoided.” UJI
13-860. As a result, the instruction became the law of the case and Dr. Muncey cannot now
argue that mitigation of damages was inapplicable or improper with regard to his conversion
claim. See Sandoval, 2009-NMCA-095, ¶ 43, (“The sufficiency of the evidence is measured
against the jury instructions, because they become the law of the case.”); see also Atler,
2005-NMCA-006, ¶ 13, (“Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” (internal quotation marks and citation
omitted)).

{86} Dr. Muncey argued that the initial act of copying the files constituted damages for
an actionable conversion claim, irrespective of any subsequent use or defiance of his right
of exclusive control. As such, Dr. Muncey asserted that the value of the files was destroyed
the instant Eyeglass World copied them and, as a result, he was under no duty or obligation
to mitigate his damages. Yet Dr. Muncey was aware that his files were being copied to his
detriment several weeks before all of the files were copied and much of their corresponding
value was actually destroyed. Majority Opinion ¶¶ 6-7. Dr. Muncey’s only explanation for
this failure to act and avoid these continuing damages was that “I was advised not to go near
that” and “I left them there at the advice of my attorney.” He also argued that “he had
already taken action . . . by filing the lawsuit,” that “he wanted to proceed with caution,
investigate and confirm the rumor,” and that “[his] failure to take immediate action [does
not] justify Eyeglass World’s copying of those files without his permission[.]”

{87} In his brief to this Court, Dr. Muncey failed to even address the issue of his failure
to act and mitigate any damages caused by the copying of the files. In addition, Dr. Muncey
failed to provide any authority that would support his “advice of my attorney” justification
that was offered at trial to establish the legal basis for his failure to take any action to
mitigate his damages. See Pickett Ranch, LLC v. Curry, 2006-NMCA-082, ¶ 45, 140 N.M.
49, 139 P.3d 209 (stating that where no supporting authority for a proposition is cited, this
Court may assume that no applicable or analogous authority exists); see also In re Adoption
of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (noting that where a party cites no
authority to support an argument, we may assume no such authority exists).

{88} Independently, I was unable to discover any authority that would support Dr.
Muncey’s position that a party can disregard its legal duties and obligations based upon the
advice of its attorney. If such a justification were recognized, then any injured party could
avoid its legal duty to mitigate damages by simply obtaining advice from an attorney that it
should take no action. Dr. Muncey has also failed to provide us with any public policy that
would support an advice of counsel exception as the recognized basis for avoiding one’s
legal duty to mitigate damages. Id. As a result, Dr. Muncey failed as a matter of law to
mitigate the conversion damages he claimed to have suffered from the copying of his files

                                             27
between mid-June 2007 and July 10, 2007. Because the burden to prove damages rested
upon Dr. Muncey, there was insufficient evidence to prove the $300,000 in damages
awarded for the conversion of his files. No other evidence was presented to establish a value
of the limited portion of the files that were copied prior to mid-June 2007. The only
evidence presented at trial to establish the $300,000 value for Dr. Muncey’s files was based
upon the parties’ prior contractual negotiations to purchase all of these files for that amount.
Without the required evidence, Dr. Muncey failed to meet his burden of proof, and the jury
was improperly asked to speculate about his damages for the conversion of a limited portion
of his files. See McGinnis v. Honeywell, Inc., 110 N.M. 1, 7, 791 P.2d 452, 458 (1990)
(recognizing that where actual damages and mitigation of damages are concerned, a jury
must not be asked to speculate on matters that should have been presented in the form of
evidence).

{89} In conclusion, I do not concur with the result reached by the majority in this case
regarding Dr. Muncey’s conversion claim and the jury verdict rendered in his favor. The
district court erred when it denied Eyeglass World’s motion for a directed verdict regarding
Dr. Muncey’s conversion claim.

                                               ____________________________________
                                               TIMOTHY L. GARCIA, Judge

Topic Index for Muncey v. Eyeglass World, LLC, No. 29,813

APPEAL AND ERROR
Fundamental Error
Substantial or Sufficient Evidence

ATTORNEYS
Comments by Attorneys at Trial

CIVIL PROCEDURE
Directed Verdict

CONSTITUTIONAL LAW
Due Process

CONTRACT
Breach

FEDERAL LAW
Federal Jurisdiction
Patents and Copyright

GOVERNMENT

                                              28
Licensing

JURISDICTION
Federal Jurisdiction
Subject Matter
JURY INSTRUCTIONS
Civil Jury Instructions

PROPERTY
Conversion
Leases and Leaseholds

REMEDIES
Compensatory Damages
Excessive Damages
Measure of Damages
Mitigation of Damages
Punitive Damages

TORTS
Conversion
Proximate Cause




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