¶1(concurring in part and dissenting in part).
¶2{42} I concur with the majority opinion in all respects except its conclusion that the fraud claims were properly dismissed. Defendants obtained dismissal of the fraud claims pursuant to Rule 1 — 012(b)(6) NMRA on the basis that damages in a fraud action are limited to pecuniary, actual monetary losses, and plaintiffs only alleged they suffered non-peeuniary mental or emotional distress damages as a result of the fraud. No New Mexico case has ever limited fraud damages to pecuniary, actual monetary losses, and whether a claim for fraud is stated when only such damages are alleged is a question of first impression in New Mexico.
¶3{43} Allowing the recovery of mental or emotional distress damages in appropriate cases is consistent with evolving New Mexico tort and contract law. In Flores, 117 N.M. at 314, 871 P.2d at 970, our Supreme Court held that where plaintiffs proved severe emotional distress, they were entitled to recover damages for mental anguish caused by a breach of a funeral contract.
¶4{44} I agree that awarding mental and emotional distress damages in a fraud case should not be without limitations. However, the issue is before us pursuant to Rule 1-012(b)(6). A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6) tests the legal sufficiency of the complaint. “A motion to dismiss should be granted only when appears that the plaintiff is not entitled to recover under any facts provable under the complaint.” Kirkpatrick v. Introspect Healthcare Corp., 114 N.M. 706, 709, 845 P.2d 800, 803 (1992); see Noriega v. Stahmann Farms, Inc., 113 N.M. 441, 442, 827 P.2d 156, 157 (Ct.App.1992) (“A motion to dismiss for failure to state a claim should be granted only if it appears that plaintiff cannot recover, or be entitled to relief, under any state of facts provable under the complaint.”).
¶5{45} In this case Plaintiffs allege that Dr. Stewart and Defendants fraudulently induced them to authorize autopsies of their loved ones to determine the cause of death without disclosing their secret intent to remove and destroy body parts for purposes of scientific research unrelated to the cause of death. All the elements of a fraud claim under UJI 13-1633 are stated: (1) Defendants’ misrepresentation of a fact; (2) Defendants’ knowledge of the falsity of their representation; (3) Defendants’ intent to deceive and induce reliance on the misrepresentation; and (4) detrimental reliance on the misrepresentation. See Unser, 86 N.M. at 653-54, 526 P.2d at 795-96. As to damages, UJI 13-1633 simply states, “[a] party is liable for damages proximately caused by [his][her] fraudulent misrepresentation,” and Plaintiffs allege, “[ajs a direct and proximate result of the fraud, [Plaintiffs and the members of the class have suffered damages, including loss, serious anguish, severe mental and emotional distress, pain, and suffering.”
¶6{46} Numerous decisions from many states have already held, in varying contexts, with various limitations, that mental or emotional distress damages are recoverable in a fraud action. See Steven J. Gaynor, Annotation, Fraud Actions: Right to Recover for Mental or Emotional Distress, 11 A.L.R.5th, 88 (1993). One approach to balancing the various interests is expressed by Andrew L. Merit, Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society, 42 Vand. L.Rev. 1, 1 (1989). Even the authority relied upon by the majority states, “[cjases involving mishandling of dead bodies have long recognized emotional harm damages, fraud or no fraud.” Dobbs, supra, § 9.2(4), at 565. Professor Dobbs concludes his discussion of this issue by stating,
There are assuredly cases in which some kind of intangible-harm damages should be awarded when the defendant’s misconduct consists in part of fraudulent representations. Given the plenteous supply of tort doctrine for redress of emotional harm claims, however, there may be little or no need to add such a claim to fraud cases, where it would be quite likely to become a routine allegation. When it is coupled with punitive damages, it may, in addition, tend to weigh the misconduct twice. In any event, if emotional harm damages are to be permitted in fraud cases, it would be desirable to identify particular elements that especially justify such recovery. This might be done most readily by recognizing that the emotional harm recovery should be awarded when the elements of some other tort, such as intentional infliction of distress, can be shown, and that fraud itself would in some cases tend to show some of the elements of the intentional infliction tort.
¶8{47} Since I am unable to agree with the majority that mental or emotional damages are never recoverable in any fraud case under any circumstances, I respectfully dissent from that portion of the opinion affirming dismissal of the fraud claims. In all other respects I agree with the majority.