{ "id": 4077128, "name": "STAR VARGA, Plaintiff-Appellant/Cross-Appellee, v. MARK FERRELL, GRETCHEN CAMPBELL, DESERT LAKES REALTY, LLC, and DOES 4 THROUGH 20, INCLUSIVE, Defendants-Appellees/Cross-Appellants, and SUSAN LOWE, Defendant-Appellee", "name_abbreviation": "Varga v. Ferrell", "decision_date": "2013-12-06", "docket_number": "No. 34,403; Docket No. 31,268; 31,337 and 31,398", "first_page": "229", "last_page": "234", "citations": [ { "type": "official", "cite": "2014-NMCA-005" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2005-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929193 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0339-01" ] }, { "cite": "2000-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106478 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0536-01" ] }, { "cite": "1997-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142223 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0526-01" ] }, { "cite": "938 P.2d 206", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 963022 ], "weight": 9, "year": 1997, "pin_cites": [ { "page": "206-07" }, { "page": "207" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/or/325/0385-01" ] }, { "cite": "2003-NMCA-032", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15768 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0335-01" ] }, { "cite": "1998-NMCA-096", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834192 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0438-01" ] }, { "cite": "2004-NMCA-063", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427983 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0607-01" ] }, { "cite": "2006-NMCA-096", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670107 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b6\u00b6 28, 32" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0233-01" ] } ], "analysis": { "cardinality": 612, "char_count": 12311, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.12966798450411587 }, "sha256": "bce442ff6856890e6c8996fb9cd4b87b7e48884dd2d1af87bd150b708570b345", "simhash": "1:1582eb207cc35fe6", "word_count": 1942 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "MICHAEL D. BUSTAMANTE, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "STAR VARGA, Plaintiff-Appellant/Cross-Appellee, v. MARK FERRELL, GRETCHEN CAMPBELL, DESERT LAKES REALTY, LLC, and DOES 4 THROUGH 20, INCLUSIVE, Defendants-Appellees/Cross-Appellants, and SUSAN LOWE, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} This case arises from the purchase of a home in Elephant Butte, New Mexico. -The purchaser discovered construction defects after she took possession and as a consequence, she sued the seller, the seller\u2019s broker, and her own brokers. The district court granted the purchaser\u2019s brokers summary judgment, but refused to award the brokers their attorney fees, as required by the purchase agreement, because their defense had been provided by their insurer. We conclude that the district court erroneously failed to enforce the attorney fees provision of the purchase agreement and reverse.\nBACKGROUND\n{2} Star Varga purchased a home owned by Defendant Mark Ferrell in Elephant Butte, New Mexico. Defendants Gretchen Campbell and Desert Lakes Realty, LLC (collectively, Campbell/DLR) worked with Varga and her mother, Susan Lea, as their buyers\u2019 brokers. After the sale, Varga discovered defects in the home that had not been disclosed prior to the sale, so she sued Ferrell, Ferrell\u2019s broker (Defendant Susan Lowe), and Campbell/DLR for, among other things, their failure to disclose their alleged knowledge of the defects.\n{3} The district court granted Campbell/DLR summary judgment on all of Varga\u2019s claims against them, and Campbell/DLR filed a motion for attorney fees in accordance with the purchase agreement, which provided:\nShould any aspect of this [ajgreement result in dispute, litigation, or settlement, the prevailing party of such action including Broker shall be entitled to an award of reasonable attorney[] fees and court costs.\nThe agreement defined \u201cbroker\u201d as including \u201clisting and cooperating brokers and salespersons.\u201d Campbell/DLR were designated as the selling brokers in the agreement.\n{4} Following a hearing on Campbell/DLR\u2019s motion, the district court stated that the purchase agreement was intended to benefit and protect all of the \u201creal estate people\u201d involved in the transaction and the companies they worked for. The court stated that it would award attorney fees to Campbell/DLR as the prevailing party, and that it would determine the amount of the award after Campbell/DLR filed their attorney\u2019s billing statements and after an additional hearing on the matter.\n{5} Campbell/DLR filed the billing statements totaling $71,196.41. At a subsequent hearing, the district court asked if an insurance company was providing Campbell/DLR\u2019s defense so that Campbell/DLR did not have to pay attorney fees. Campbell/DLR\u2019s counsel responded that under New Mexico law, real estate brokers are required to have insitrance, and that Campbell/DLR\u2019s insurer had indeed provided their defense. However, counsel argued that Campbell/DLR would not be allowed to keep any fees awarded because those fees would go to their insurer. Counsel also cited an Oregon case for the proposition that a contract provision allowing an attorney fee award to the prevailing party is not impacted by the fact that the prevailing party\u2019s fees were paid by someone else.\n{6} The district court stated that it was not going to award attorney fees to the insurance company for providing a defense it was contractually obligated to provide. The court stated that it would have entertained an award of fees if Campbell/DLR had to pay their attorneys out of their own pockets. This appeal followed.\nDISCUSSION\nStandard of Review\n{7} While a district court has broad discretion when deciding whether to award attorney fees, \u201cthat discretion is limited by any applicable contract provision.\u201d Fort Knox Self Storage, Inc. v. W. Technologies, Inc., 2006-NMCA-096, \u00b6 29, 140 N.M. 233, 142 P.3d 1. And \u201c[w]hen a contract provides that the prevailing party in the litigation shall be awarded reasonable attorney fees and costs, a trial court may abuse its discretion if it fails to award attorney fees.\u201d Aspen Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, \u00b6 21, 135 N.M. 607, 92 P.3d 53. The meaning of a contract provision is an issue of law that we review de novo. Id.\nThe District Court Erroneously Failed to Enforce the Attorney Fees Provision of the Purchase Agreement\n{8} We conclude that the purchase agreement required the district court to award reasonable attorney fees to Campbell/DLR as the prevailing parties. The district court correctly interpreted the agreement\u2019s fee provision as being applicable to Campbell/DLR as the selling brokers and the intended beneficiaries of the agreement. The fee provision specifically stated that it applied to brokers, the purchase agreement defined \u201cbroker\u201d as including cooperating brokers, and Campbell/DLR were identified in the agreement as selling brokers. The district court also properly determined that Campbell/DLR were the prevailing parties in the dispute with Varga. See Cent. Sec. & Alarm Co. v.Mehler, 1998-NMCA-096, \u00b6 23, 125 N.M. 438, 963 P.2d 515 (explaining that \u201c[w]hen judgment is in favor of a defendant who has moved for summary judgment, the defendant is a prevailing party\u201d). The problem is that the district court then decided to disregard its correct interpretation of the fee provision in the purchase agreement because Campbell/DLR\u2019s insurer had provided their defense such that Campbell/DLR did not have to pay their attorneys out of their own pockets.\n{9} There is nothing in the purchase agreement that provides an exception to the fee provision when fees are paid by a third party. The court\u2019s duty under these circumstances was to \u201cinterpret}] the contract that the parties made for themselves, and absent any ambiguity, the court may not alter or fabricate a new agreement for the parties.\u201d Hedicke v. Gunville, 2003-NMCA-032, \u00b6 24, 133 N.M. 335, 62 P.3d 1217 (internal quotation marks and citation omitted). Here, the district court altered the parties\u2019 agreement by reading into it an exception for insurer-paid attorney fees.\n{10} We find persuasive the Oregon case relied on by Campbell/DLR, Domingo v. Anderson, 938 P.2d 206 (Or. 1997). In that case, the grantors gave a trust deed to the defendant, an attorney, to secure payment of a debt, and the grantors then defaulted. Id. at 206 n.l. After the property was sold at a trustee\u2019s sale, the grantors sued the defendant and challenged the sale. Id. The trial court granted the defendant\u2019s motion for summary judgment, and the defendant sought an award of attorney fees in accordance with a provision in the trust deed. Id. at 206-07. The defendant\u2019s attorney had been retained by an attorneys\u2019 liability fund. Id. at 207 n.3. The trial court awarded the defendant his attorney fees consistent with the deed\u2019s provision, the court of appeals reversed, and the supreme court reversed the court of appeals: Id. at 207-OS.\n{11} The grantors\u2019 argumentin support of the court of appeals\u2019 decision was that the defendant \u201c[was] not entitled to an award of attorney fees because a third party paid for his lawyer in this case.\u201d Id. at 207. This is the same basis on which the district court in the present case denied Campbell/DLR\u2019s request for attorney fees. The Oregon Supreme Court in Domingo disagreed, stating that the contractual provision requiring the deed\u2019s grantor to pay the defendant\u2019s attorney fees \u201cdo[es] not contain any condition or qualification rendering [it] inapplicable if a third person, rather than one of the parties to the litigation, pays the lawyer\u2019s fees.\u201d Id. Therefore, the trial court\u2019s decision awarding the defendant his attorney fees \u201cwas correct under the contract.\u201d Id. at 208.\n{12} Like the court in Domingo, we conclude that the purchase agreementrequired the district court to award attorney fees to Campbell/DLR as the prevailing parties in the dispute with Varga. Consistent with our courts\u2019 longstanding policy favoring enforcement of contracts as written, \u201c[a] court should . . . not interfere with the bargain reached by the parties unless the court concludes that the policy favoring freedom of contract ought to give way to one of the well-defined equitable exceptions, such as unconscionability, mistake, fraud, or illegality.\u201d Nearburg v. Yates Petroleum Corp., 1997-NMCA-069, \u00b6 31, 123 N.M. 526, 943 P.2d 560. Neither Varga nor the district court made any suggestion that the purchase agreement\u2019s attorney fees, provision was equitably unenforceable. Thus, on remand, the only task for the district court is to determine, within its discretion, a reasonable amount to award Campbell/DLR for their attorney fees.\nVarga\u2019s Arguments in Favor of Affirmance on Other Grounds\n{13} While we hold that the district court properly interpreted the purchase agreement and then improperly failed to enforce it, we may affirm the court\u2019s decision on a ground that was not relied on below if reliance on the new ground would not be unfair to the appellant. Meiboom v. Watson, 2000-NMSC-004, \u00b6 20, 128 N.M. 536, 994 P.2d 1154. Varga makes a number of arguments in support of affirmance, none of which are persuasive.\n{14} Varga argues that the purchase agreement contemplates that the only broker who might be entitled to recover attorney fees is one who is sued for breach of the agreement and who prevails in that litigation. Varga does not explain how the language in the agreement supports her argument, and we see nothing in the attorney fees provision supporting her view. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, \u00b6 15, 137 N.M. 339, 110 P.3d 1076 (\u201cWe will not review unclear arguments, or guess at what [a party\u2019s] arguments might be.\u201d). To the contrary, because the parties to the agreement were the buyer and the seller, we fail to see how a broker could be sued for breach of the agreement. But, in any event, a broker is expressly mentioned in the agreement as a potential prevailing party entitled to attorney fees.\n{15} Along the same lines, Varga appears to contend that only parties who are sued for breach of the agreement are entitled to an award of attorney fees if they prevail; thus, she maintains that Campbell/DLR may not recover fees because they were not sued for breach of the purchase agreement. This argument is contrary to New Mexico law, which holds that negligence claims are claims \u201cin connection\u201d with an agreement requiring an award of attorney fees to the prevailing party in the event of litigation brought \u201cin connection\u201d with the parties\u2019 agreement. Fort Knox, 2006-NMCA-096, \u00b6\u00b6 28, 32. Here, Varga\u2019s negligence and fraud claims against Campbell/DLR were \u201caspects\u201d of the purchase agreement that resulted in litigation, as contemplated by the attorney fees provision.\n{16} Varga next makes seven arguments consisting solely of her allegation that Campbell/DLR have failed to provide New Mexico legal authority supporting various aspects of their arguments on appeal. Varga does not herself make any substantive arguments on these issues, nor does she cite any relevant authority suggesting that our interpretation of the attorney fees provision is wrong. We therefore decline to consider her contentions. See Headley, 2005-NMCA-045, \u00b6 15 (explaining that this Court has no duty to review an argument that is not adequately developed).\nCONCLUSION\n{17} For the foregoing reasons, we reverse the district court\u2019s order denying an award of attorney fees to Campbell/DLR. On remand, the district court shall award Campbell/DLR attorney fees in an amount it deems reasonable.\n{18} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nJ. MILES HANISEE, Judge\nVarga and Ferrell also filed appeals from the district court\u2019s judgment, which we have addressed in a memorandum opinion filed concurrently with this Opinion.", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Lee Deschamps Socorro, NM Susan Lea Elephant Butte, NM for Appellant/Cross-Appellee '", "Law Offices of Stephen E. Hosford, P.C. Arrey, NM for Mark Ferrell and Susan Lowe", "Sutin, Thayer & Browne Susan M.Hapka Albuquerque, NM for Appellees/Cross-Appellants Gretchen Campbell and Desert Lakes Realty, LLC" ], "corrections": "", "head_matter": "Certiorari Denied, December 6, 2013,\nNo. 34,403\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-005\nFiling Date: October 2, 2013\nDocket No. 31,268 Consolidated with 31,337 and 31,398\nSTAR VARGA, Plaintiff-Appellant/Cross-Appellee, v. MARK FERRELL, GRETCHEN CAMPBELL, DESERT LAKES REALTY, LLC, and DOES 4 THROUGH 20, INCLUSIVE, Defendants-Appellees/Cross-Appellants, and SUSAN LOWE, Defendant-Appellee.\nLee Deschamps Socorro, NM Susan Lea Elephant Butte, NM for Appellant/Cross-Appellee '\nLaw Offices of Stephen E. Hosford, P.C. Arrey, NM for Mark Ferrell and Susan Lowe\nSutin, Thayer & Browne Susan M.Hapka Albuquerque, NM for Appellees/Cross-Appellants Gretchen Campbell and Desert Lakes Realty, LLC" }, "file_name": "0229-01", "first_page_order": 245, "last_page_order": 250 }