Vigil v. Taintor

                                              Office of the Director       New Mexico
                                               15:17:43 2020.09.28         Compilation
                                                             '00'06-       Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 11, 2019

No. A-1-CA-36634

VERONICA VIGIL,

      Plaintiff-Appellant,

v.

ANNE TAINTOR and ANNE
TAINTOR, INC.,

      Defendants-Appellees,

and

DOODLET’S LTD.; JANE DOE;
TALIN ENTERPRISES; LA
MONTANITA FOOD COOP;
COST PLUS, INC.; and NOW
WE'RE COOKING,

      Defendants.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Francis J. Mathew, District Judge

Certiorari Denied, May 11, 2020, No. S-1-SC-38158. Released for Publication October
6, 2020.

Western Agriculture, Resource and
Business Advocates, LLP
A. Blair Dunn
Dori E. Richards
Albuquerque, NM

for Appellant

Allen, Shepherd, Lewis & Syra, P.A.
Christopher P. Winters
Courtney A. Schumacher
Albuquerque, NM

for Appellees

                                         OPINION

MEDINA, Judge.

{1}   Plaintiff Veronica Vigil appeals the district court’s decision granting summary
judgment in favor of Defendants Anne Taintor and Anne Taintor, Inc. (collectively,
Defendants) with respect to Plaintiff’s claims for defamation, false light, and
appropriation, as well as her claim under the Unfair Practices Act (UPA), NMSA 1978,
§§ 57-12-1 to -26 (1967, as amended through 2019). We hold that the district court
properly granted summary judgment.

BACKGROUND

{2}    Sometime in 2010, Anne Taintor, Inc., a corporation owned by Taintor, began
manufacturing and selling several products—including magnets, flasks, and cards—
bearing Plaintiff’s image with the caption “I’m going to be the most popular girl in rehab!”
Defendants did not have Plaintiff’s permission to use her image, and this went
unnoticed by Plaintiff until 2013, when her daughter purchased a flask bearing Plaintiff’s
image and gave it to Plaintiff. Plaintiff filed the instant action on November 18, 2014.

{3}     After extensive discovery, Defendants moved for summary judgment on Plaintiff’s
defamation, false light, and appropriation claims, arguing that the statute of limitations
had expired by operation of New Mexico’s single publication rule. See NMSA 1978, §
41-7-1 (1955). Additionally, Defendants argued summary judgment was proper on
Plaintiff’s UPA claim based on the unauthorized use of her image because Plaintiff
never purchased any products that Defendants sold, and therefore, did not have
standing. In response, Plaintiff argued that the single publication rule was not applicable
to her claims, and if it was, Defendants triggered a new statute of limitations period
under the republication exception to the single publication rule by manufacturing and
selling additional products containing Plaintiff’s image. Plaintiff also argued that she had
standing to bring the UPA claim, despite not purchasing anything, because “[s]he is
within the chain of purchasing relationship sufficient to bring a UPA claim.” After holding
a hearing, the district court granted summary judgment in favor of Defendants. In its
order granting summary judgment, the district court held that the single publication rule
was applicable to Plaintiff’s claims and further held that the republication exception did
not apply. The district court also held that Defendants established a prima facie case for
summary judgment on Plaintiff’s UPA claim, which Plaintiff failed to rebut. This appeal
followed.

DISCUSSION
Standard of Review

{4}     An appeal from the grant of a motion for summary judgment presents a question
of law, which we review de novo. Montgomery v. Lomos Altos, Inc., 

, 

, 

. “Summary judgment is appropriate where there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of
law.” Waterfall Cmty. Water Users Ass’n v. N.M. State Eng’r, 

,

, 

 (internal quotation marks and citation omitted). When the
moving party makes a prima facie showing that summary judgment is proper, “the
burden shifts to the non-movant to demonstrate the existence of specific evidentiary
facts which would require trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-
035, ¶ 10, 

, 

 (internal quotation marks and citation omitted).
This burden cannot be met with allegations or speculation, but only with admissible
evidence demonstrating a genuine fact issue requiring trial. Rule 1-056(E) NMRA.
Claimed disputed facts “cannot serve as a basis for denying summary judgment” if the
evidence adduced is insufficient to support “reasonable inferences.” Romero, 2010-
NMSC-035, ¶ 10. Reasonable inferences are not supposition or conjecture; they are
logical deductions from proven facts. 

 In our review, “[w]e resolve all reasonable
inferences in favor of the party opposing summary judgment, and we view the
pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light
most favorable to a trial on the merits.” Madrid v. Brinker Rest. Corp., 

, 

 (internal quotation marks and citation omitted).

I.       The District Court Properly Granted Summary Judgment on Plaintiff’s
         Defamation/Invasion of Privacy Claims Under the Single Publication Rule

{5}     Claims based on injuries to a person’s reputation fall under a three-year statute
of limitations. 1 See NMSA 1978, § 37-1-8 (1976). New Mexico follows the single
publication rule, which provides:

                 No person shall have more than one cause of action for damages
         for libel or slander or invasion of privacy or any other tort founded upon
         any single publication or exhibition or utterance, such as any one edition
         of a newspaper or book or magazine or any one presentation to an
         audience or any one broadcast over radio or television or any one
         exhibition of a motion picture.


1 We note that some courts have characterized appropriation claims—unlike other invasion of privacy claims—as
actions based on an injury to one’s property, which fall under a four-year statute of limitations period. See NMSA
1978, § 37-1-4 (1880); see, e.g., Benally v. Hundred Arrows Press, Inc., 

 (D.N.M. 1985)
(characterizing the tort of “misappropriation of likeness” as a property claim falling under the four-year statute of
limitations period), rev’d on other grounds sub nom. Benally ex rel. Benally v. Amon Carter Museum of W. Art, 

 (10th Cir. 1988). It appears New Mexico courts have yet to address the question of whether a claim for
appropriation falls under the three-year or four-year statute of limitations. However, Plaintiff did not raise this
argument below, and on appeal she argues that the three-year statute of limitations applies. Accordingly, we
assume for purposes of this case that Plaintiff’s appropriation claim falls under the three-year statute of limitations
for injuries to reputation.
Section 41-7-1. “Under this rule, multiple disseminations of the same content give rise to
only one cause of action, and the statute of limitations runs from the point at which the
original dissemination occurred.” Woodhull v. Meinel, 

, 

, 

. “The single publication rule is designed to protect the defendants
and the courts from a multiplicity of suits, an almost endless tolling of the statute of
limitations, and diversity in applicable substantive law.” Id. ¶ 11 (alteration, internal
quotation marks, and citation omitted).

{6}     Defendants argue that Plaintiff’s claims for defamation, false light, and
appropriation are barred by the statute of limitations under the single publication rule.
While Defendants do not dispute that some merchandise with Plaintiff’s picture was sold
within the three-year period prior to the filing of this lawsuit, Defendants argue, and the
district court agreed, that the single publication rule is applicable to Plaintiff’s claims,
and therefore, her claims began accruing when Defendants initially offered the offending
merchandise for sale to the public. Plaintiff, in turn, argues that the single publication
rule does not apply to her claims, and if it does, the republication exception applies. 2 We
hold that the district court properly applied the single publication rule to Plaintiff’s claims.
We further hold that Plaintiff failed to present sufficient evidence to raise a genuine
issue of material fact that would warrant the application of the republication exception.

A.       Scope of Review

{7}    As an initial matter, we address Defendants’ contention that Plaintiff failed to
preserve her arguments surrounding the applicability of the single publication rule. 3 In
her response to Defendants’ motion for summary judgment, Plaintiff argued that the
single publication rule should not apply to her claims. However, at the hearing on the
motion, she did not challenge the single publication rule’s applicability, but instead
argued that the republication exception to the rule should apply. In the midst of her
argument, the district court sought clarification of Plaintiff’s position and asked, “I think I

2 Plaintiff also argues that the statute of limitations should be tolled under the discovery rule. However, Plaintiff
does not develop this argument. Nor does it appear that Plaintiff preserved this argument for appeal. We,
therefore, do not address it. See Corona v. Corona, 

, 

 (“This Court has no duty to
review an argument that is not adequately developed.”).
3 Defendants additionally invoke the law of the case doctrine in an effort to limit the scope of our review.
Specifically, Defendants claim that Plaintiff’s failure to appeal a separate order by the district court granting
summary judgment in favor of several non-related defendants on the basis of the single publication rule
conclusively established the single publication rule’s applicability as the law of the case. We note that “the issue of
the extent to which a party’s failure to appeal a ruling may justify application of the law of the case doctrine to that
issue” appears to remain an open question in New Mexico. Kucel v. N.M. Med. Review Comm’n, 

,
¶ 17 n.3, 

, 

 (declining to address the issue because appellees did not provide authority
for their position); see also White Sands Forest Prod., Inc. v. First Nat’l Bank of Alamogordo, 

,

, 

 (acknowledging, but declining to apply, the “waiver variant” of the law of the case
doctrine). Accordingly, because Defendants do not develop this argument, and because the district court’s order
was not applicable to Plaintiff’s claims against Defendants, we decline to invoke the law of the case doctrine. State
ex rel. King v. UU Bar Ranch Ltd. P’ship, 

, 

, 

 (noting that “the lawof-the-case doctrine is discretionary and flexible” (internal quotation marks and citation omitted)); White Sands
Forest Prod., Inc., 

 (exercising discretion to reach the merits of the case because the
appellees would not suffer any prejudice).
am understanding you to say that the single-publication rule is the law of the case here,
because you are definitely arguing [an] exception to that, am I correct?” Plaintiff’s
counsel replied, “We are arguing that [the] republication exception applies here, yes.”
After argument on the motion ended, the district court ruled that the single publication
rule applied stating, “It is clear and certainly undisputed that the . . . rule is applicable to
this case.” Defendants point to this exchange, claiming that Plaintiff conceded that the
single publication rule was applicable at the motion hearing, and therefore waived any
objection she had to its application. We disagree.

{8}      “We will not review arguments that were not preserved in the district court.” Vill.
of Angel Fire v. Bd. of Cty. Comm’rs of Colfax Cty., 

, 

, 

. Nor will we consider as preserved arguments that are waived below.
See, e.g., Papatheofanis v. Allen, 

, 

, 

 (holding that the appellant failed to preserve an argument when she withdrew her
motion). “To preserve an issue for review on appeal, it must appear that [the] appellant
fairly invoked a ruling of the trial court on the same grounds argued in the appellate
court.” Benz v. Town Ctr. Land, LLC, 

, 

 (internal
quotation marks and citation omitted); see Rule 12-321(A) NMRA. The preservation rule
serves three primary purposes: “(1) to specifically alert the district court to a claim of
error so that any mistake can be corrected at that time, (2) to allow the opposing party a
fair opportunity to respond to the claim of error and to show why the court should rule
against that claim, and (3) to create a record sufficient to allow this Court to make an
informed decision regarding the contested issue.” Sandoval v. Baker Hughes Oilfield
Operations, Inc., 

, 

, 

. “When these
purposes are not served, the preservation requirement should not be applied in an
unduly technical manner.” McLelland v. United Wis. Life Ins. Co., 

, 

, 

 (alterations, omission, internal quotation marks, and
citation omitted).

{9}      While the exchange between the district court and Plaintiff may give the
impression that Plaintiff waived her objection to the application of the single publication
rule, it is also possible that Plaintiff simply misunderstood the court’s question. Plaintiff’s
answer to the district court’s initial query does not appear to be entirely responsive to
the object of the question. Rather than agreeing that Plaintiff was no longer challenging
the applicability of the single publication rule, Plaintiff’s response appeared to clarify
only what she was arguing before the question was asked (i.e., that the republication
exception applied). Unlike other cases where we have found waiver, Plaintiff did not
unambiguously disclaim her objection to the application of the single publication rule.
See, e.g., Papatheofanis, 

. Additionally, by arguing an
exception, it appears Plaintiff was implicitly objecting to the application of the general
rule. Under these circumstances, we are hesitant to say that Plaintiff waived her
argument surrounding the single publication rule’s applicability. As Plaintiff challenged
the application of the single publication rule in her written response to Defendants’
motion for summary judgment, which gave Defendants the opportunity to address the
argument—and gave the district court the opportunity to consider and issue a ruling on
the issue—we conclude that Plaintiff sufficiently preserved this issue for our review. See
Gracia v. Bittner, 

, ¶ 18, 

, 

 (stating that the
preservation requirement “should be applied with its purposes in mind, and not in an
unduly technical manner”).

B.     The Single Publication Rule

{10} Plaintiff does not challenge that Defendants established a prima facie case for
summary judgment under the single publication rule. Rather, Plaintiff raises several
legal arguments against the application of the rule to this case. Specifically, Plaintiff
calls into question whether the single publication rule should be applied to her claims
based on appropriation and false light, and whether the rule applies to cases involving
manufactured goods, as opposed to traditional types of mass media. Additionally,
Plaintiff contends that the point of publication at which the statute of limitations begins
accruing under the single publication rule should not always be the initial publication of
the offending material, but rather a more fact intensive inquiry. We address each
argument in turn.

{11} With respect to Plaintiff’s first argument, other than pointing out that our courts
have not yet applied the single publication rule to appropriation and false light claims,
Plaintiff fails to demonstrate, and we fail to see, how the district court erred in applying
the single publication rule to her claims. Section 41-7-1, by its plain language, applies to
“damages for libel or slander or invasion of privacy or any other tort founded upon any
single publication or exhibition or utterance[.]” 

 (emphasis added); Town & Country
Food Stores, Inc. v. N.M. Regulation & Licensing Dep’t, 

, 

 (“The first rule is that the plain language of a statute is the primary indicator of
legislative intent. Courts are to give the words used in the statute their ordinary meaning
unless the Legislature indicates a different intent.” (alteration, internal quotation marks,
and citation omitted)). As both false light and appropriation are subcategories of the tort
of invasion of privacy, we fail to see, and Plaintiff fails to explain, how it was error for the
district court to apply the single publication rule to Plaintiff’s claims. See Moore v. Sun
Pub. Corp., 

, ¶ 28, 

, 

 (recognizing four
categories of the tort of invasion of privacy, which include false light and appropriation).

{12} Plaintiff also fails to develop her argument that the single publication rule should
not apply to cases involving manufactured goods. Again, Plaintiff simply points out that
our courts have not yet applied the single publication rule to a similar case. While we
acknowledge that we have had little opportunity to apply the single publication rule, we
conclude that the district court did not err in applying the single publication rule here.
We explain.

{13} Section 41-7-1 is not comprehensive in terms of the scenarios and types of
media covered by the single publication rule, but rather merely illustrative of what
constitutes a “single publication or exhibition or utterance.” 

 (“No person shall have
more than one cause of action for damages . . . founded upon any single publication or
exhibition or utterance, such as any one edition of a newspaper or book or magazine or
any one presentation to an audience or any one broadcast over radio or television or
any one exhibition of a motion picture.” (emphasis added)); State v. Martinez, 1999-
NMSC-018, ¶ 27, 

, 

 (noting that a list beginning with “such
as” was “intended to be illustrative rather than exhaustive”). While Section 41-7-1 was
enacted over sixty years ago, this Court has only issued one published opinion
analyzing the single publication rule. In Woodhull, we considered the application of the
single publication rule to internet publications. 

. There, we
acknowledged that “[t]he single publication rule is designed to protect the defendants
and the courts from a multiplicity of suits, an almost endless tolling of the statute of
limitations, and diversity in applicable substantive law.” Id. ¶ 11 (alteration, internal
quotation marks, and citation omitted). We emphasized that “[a]bsent this rule,
publishers and the mass media would be subject to a multiplicity of claims leading to
potential harassment, excessive liability, and draining of judicial resources.” Id.
Comparing public websites to traditional mass media, we noted that content on the
Internet is also broadly available, easily reproduced, and “may be viewed by literally
millions in a broad geographic area for an indefinite time period.” Id. Given these
similarities, we concluded that there was a “similar if not greater need for the policy
advanced by the single publication rule in the Internet realm.” Id.

{14} Although we were concerned with internet publications in Woodhull, we believe
the same logic applies to this case. Similar to traditional forms of mass media,
manufactured goods can be mass-produced for public consumption, and retailers may
sell them to consumers across broad geographic areas. Likewise, these goods may be
bought and viewed by countless individuals for an indefinite amount of time after they
were originally manufactured and sold to the public. Without the single publication rule,
the sellers of these goods “would be subject to a multiplicity of claims leading to
potential harassment, excessive liability, and draining of judicial resources.” Id. The fact
that Plaintiff’s image was printed on flasks and magnets, rather than books or websites,
does not reduce these concerns. While we recognize that there may be a legitimate
argument against the application of the single publication rule to cases involving
manufactured goods, Plaintiff has failed to present one here. Accordingly, we hold that
the single publication rule applies to cases involving manufactured goods such as those
at issue here.

{15} Lastly, Plaintiff contends that the point at which the statute of limitations begins
accruing under the single publication rule should not always be the initial publication,
but rather a more fact intensive inquiry. However, Plaintiff does not define the scope of
the fact intensive inquiry she advocates and does not cite any authority in support of her
argument, and we, therefore, assume none exists. See In re Adoption of Doe, 1984-
NMSC-024, ¶ 2, 

, 

 (stating that when a party fails to cite
authority for an argument, we may assume none exists). Instead, Plaintiff relies on a
purported lack of authority for the proposition that the initial publication triggers the
limitations period. We disagree. Our Court stated in Woodhull that “[u]nder [the single
publication] rule, multiple disseminations of the same content give rise to only one
cause of action, and the statute of limitations runs from the point at which the original
dissemination occurred.” 

 (emphasis added). Holding that the
triggering event is something other than the original publication would defeat one of the
primary purposes of the single publication rule: to protect against “an almost endless
tolling of the statute of limitations.” Id. ¶ 11 (internal quotation marks and citation
omitted). Accordingly, we hold that the district court properly applied the single
publication rule. Consequently, the three-year statute of limitations for Plaintiff’s claims
began running from the time Defendants first sold the products bearing Plaintiff’s image
to the public in 2010, unless the republication exception applies, as we discuss below.

C.      Republication

{16} One exception to the single publication rule is republication, which allows for a
new cause of action that restarts the statute of limitations. See id. ¶ 12. “The justification
for the [republication] exception is to allow redress when the republished material is
intended to expand the scope of the original distribution.” Id. “Republication occurs upon
a separate aggregate publication from the original, on a different occasion, which is not
merely a delayed circulation of the original edition.” Id. (internal quotation marks and
citation omitted). The point at which republication occurs depends heavily on the facts of
each case and turns on the content of the second publication as it relates to the first. Id.
¶¶ 12, 16. “[M]ere technical modifications, as opposed to changes in the nature of the
information itself, are insufficient to constitute republication.” Id. ¶ 14. However, “[w]hen
a second publication goes beyond mere editing or adds content, it may properly be
considered a republication if the effect is more than a delayed circulation of the original
edition.” Id. ¶ 16 (internal quotation marks and citation omitted). Plaintiff argues her
claims are not barred by the statute of limitations under operation of the single
publication rule because Defendants’ “printing [of Plaintiff’s] same image with the
defamatory statement[] on different runs throughout the year, for multiple years, and
also on different merchandise” constituted republication. Although we agree that these
circumstances may give rise to republication, we fail to see how Plaintiff supported
these assertions with admissible evidence. We explain.

{17} As a preliminary matter, we note that Plaintiff fails to cite specific portions of the
record that support her assertions. Instead, Plaintiff’s brief in chief includes one general
citation to her response in opposition to Defendants’ motion for summary judgment,
which consists of over one hundred pages. It is the duty of the parties to cite to specific
portions on the record supporting their arguments, see Rule 12-318(A)(4) NMRA, and
this general citation to over one hundred pages of the record proper is inadequate to
support meaningful review by our Court. Independently reviewing the record in the light
most favorable to Plaintiff, see Madrid, 

, we conclude that Plaintiff
failed to present evidence creating a genuine dispute of material fact as to whether
Defendants republished her image.

{18} In support of Defendants’ summary judgment motion, Taintor submitted an
unsworn affirmation 4 affirming that she never personally manufactured or sold any

4 We note that Rule 1-056 does not mention the use of an unsworn affirmation made pursuant to Rule 1-011(B)
NMRA in lieu of an affidavit. However, because Plaintiff does not challenge Defendants’ use of the unsworn
affirmation to support their motion for summary judgment, we assume, without deciding, that it is an acceptable
substitute for an affidavit. Compare Kiehne v. Atwood, 

, ¶ 55, 

, 

 (stating
products with Plaintiff’s image. She also affirmed that Anne Taintor, Inc. first
manufactured and offered for sale magnets, flasks, and cards with Plaintiff’s image in
2010. Additionally, Taintor affirmed that Anne Taintor, Inc. did not manufacture or offer
for sale any other products with Plaintiff’s image, and that it never modified any magnet,
flask, or card with Plaintiff’s image. Plaintiff filed a response arguing, among other
things, that there was a genuine issue of material fact regarding whether the
republication exception applies because Defendants reprinted Plaintiff’s image over the
course of several years and on other products such as shot glasses, napkins, and
calendars. In support of her response, Plaintiff cited Defendants’ answers to her
interrogatories stating that “Anne Taintor, Inc. had manufactured a product containing
Plaintiff’s image [from 2010 to 2013.]” However, Defendants’ answer, by itself, does not
demonstrate that Defendants manufactured additional editions of the products or
reprinted Plaintiff’s image on other products during that time period. Other than pointing
to Defendants’ answer, Plaintiff cannot direct us to any evidence demonstrating that
Defendants manufactured additional editions of the magnets, flasks, and cards after
they initially manufactured them in 2010. Nor can Plaintiff point to any evidence
demonstrating that Defendants altered Plaintiff’s image or the text on any of these
products after their initial manufacture.

{19} Of particular relevance to Plaintiff’s contentions, Plaintiff did not come forward
with any evidence demonstrating that Defendants manufactured and sold other
products with Plaintiff’s image. While Plaintiff attached an exhibit showing shot glasses
with the caption “I’m going to be most popular girl in rehab!” the glasses did not contain
Plaintiff’s image, but that of another woman. 5 Additionally, although Plaintiff attached
exhibits of napkins and mugs with Plaintiff’s image, Plaintiff failed to produce evidence
demonstrating that Defendants manufactured and sold these items. 6 Nor did Plaintiff
point to any evidence showing when these products were manufactured and sold.
Instead, we are left only with Plaintiff’s unsupported arguments, which “are not evidence
upon which a trial court can rely in a summary judgment proceeding.” V.P. Clarence Co.
v. Colgate, 

, ¶ 2, 

, 

. Accordingly, we


that an affidavit is “a written statement, under oath, sworn to or affirmed by the person making it before some
person who has authority to administer an oath or affirmation”), with Rule 1-011(B) (“Any written statement in a
pleading, paper, or other document that is not notarized shall have the same effect in a court proceeding as a
notarized written statement, provided that the statement includes the following: (1) the date that the statement
was given; (2) the signature of the person who gave the statement; and (3) a written affirmation under penalty of
perjury under the laws of the State of New Mexico that the statement is true and correct.”); see also Rule 1-011
comm. cmt. (stating that Rule 1-011 was amended to “permit self-affirmation in lieu of notarization of any written
sworn statement required or permitted under the Rules of Civil Procedure for the District Courts”).
5 Plaintiff summarily argues that “[t]he similarity of the picture [of the other woman] to Plaintiff’s image and use of
the known defamatory statement is a question of fact for the jury to assess whether it too meets the republication
standards.” Plaintiff does not develop this argument any further or explain how the use of another person’s photo
can give rise to republication. We, therefore, do not address this argument. See Corona, 

(“This Court has no duty to review an argument that is not adequately developed.”).
6 Indeed, Defendants’ answers to Plaintiff’s interrogatories, which Plaintiff included in her response, suggest that
these products were manufactured and sold by Defendants’ licensees, not Defendants. As Plaintiff does not argue
that the conduct of Defendants’ licensees can establish the requirements for republication (and Defendants’
liability), we need not decide the issue here. See Corona, 

.
conclude Plaintiff did not demonstrate the existence of specific admissible evidentiary
facts disputing whether Defendants altered their products in any way that would suggest
republication, rather than a “delayed circulation of the original edition.” Woodhull, 2009-
NMCA-015, ¶ 16 (internal quotation marks and citation omitted); see Romero, 2010-
NMSC-035, ¶ 10 (“[Once the moving party has met its initial burden of establishing a
prima facie case for summary judgment], the burden shifts to the non-movant to
demonstrate the existence of specific evidentiary facts which would require trial on the
merits.” (internal quotation marks and citation omitted)).

{20} Plaintiff does not address the lack of evidentiary facts in the record. Instead,
Plaintiff attempts to analogize this case to Rinaldi v. Viking Penguin, Inc., 

 (N.Y. 1981). Plaintiff’s reliance is misplaced. In Rinaldi the Court of Appeals of New
York held that republication occurred when a publisher released a hard-cover edition of
a book to the public and, approximately one year later, marketed a paperback edition of
the book using unbound and hardbound copies it had on hand from the original issue.

. However, unlike the instant case, there were undisputed facts in
Rinaldi demonstrating republication. The publisher added new covers, changed the
publisher name, revised the title page to include an updated publication date, changed
the copyright page to include a new identifying number, and added new information
indicating that the book would be simultaneously published in foreign countries. See 

In contrast, here, Plaintiff does not point to, and we cannot find, any evidence indicating
that Defendants republished Plaintiff’s image. Therefore, we conclude that the district
court properly granted Defendant’s motion for summary judgment on Plaintiff’s claims
for defamation, false light, and appropriation.

II.    The District Court Properly Granted Summary Judgment on Plaintiff’s UPA
       Claim

{21} Defendants argue that the district court properly granted summary judgment
because Plaintiff did not have standing to bring a UPA claim for the unauthorized use of
her image, as she did not purchase anything. Plaintiff does not dispute that she did not
purchase any products made or sold by Defendants. Rather, she argues that her
daughter’s act of purchasing a flask manufactured by Defendants and giving the flask to
Plaintiff was sufficient to grant Plaintiff standing under the UPA, which should be
interpreted broadly. While we agree that the UPA should be interpreted liberally to
protect innocent consumers, Plaintiff fails to demonstrate how her claims as a nonbuyer fall within the scope of the UPA’s protection.

{22} In enacting the UPA, the Legislature created a private cause of action for “any
person who suffers any loss of money or property . . . as a result of any employment by
another person of a method, act or practice declared unlawful by the [UPA, to] bring an
action to recover actual damages.” Section 57-12-10(B). The UPA makes unlawful
unfair or deceptive trade practices, see § 57-12-3, which are defined, in relevant part, as
“a false or misleading oral or written statement, visual description or other
representation of any kind knowingly made in connection with the sale . . . of goods and
services . . . by a person in the regular course of the person’s trade or commerce, that
may, tends to or does deceive or mislead any person . . . .” Section 57-12-2(D). Thus, a
claimant must prove:

       (1) the defendant made an oral or written statement, a visual description
       or a representation of any kind that was either false or misleading; (2) the
       false or misleading representation was knowingly made in connection with
       the sale . . . of goods or services in the regular course of the defendant’s
       business; and (3) the representation was of the type that may, tends to, or
       does deceive or mislead any person.

Lohman v. Daimler-Chrysler Corp., 

, 

, 

(emphasis added). “Since the UPA constitutes remedial legislation, we interpret [its]
provisions . . . liberally to facilitate and accomplish its purposes and intent [to protect
innocent consumers].” State ex rel. King v. B & B Inv. Grp., Inc., 

,

 (internal quotation marks and citation omitted).

{23} Plaintiff first relies on Lohman to support her contention that the UPA should be
construed broadly to include her claims, focusing on its language noting that the
“conjunctive phrase ‘in connection with’ seems designed to encompass a broad array of
commercial relationships.” 

 (quoting § 57-12-2(D)). However,
contrary to Plaintiff’s assertions, Lohman does not stand for the proposition that the
UPA’s scope is so broad as to encompass claimants who did not actually purchase
anything; Lohman merely stands for the proposition that a UPA claimant need not allege
a commercial transaction specifically between the claimant and the defendant. In
Lohman, we considered the plaintiff’s UPA claim against a seatbelt manufacturer for its
representations to a distributor that facilitated car sales to consumers. See id. ¶ 25. The
defendants argued “that the ‘connection with sale of goods’ requirement can only be
satisfied upon a showing that the defendant made a misrepresentation when selling a
product to the plaintiff.” Id. Notwithstanding the indirect relationship between the
manufacturer and consumers, we noted that “[t]he[] provisions [of the UPA] appear to
be crafted so as to ensure that the UPA has a broad scope—arguably, broad enough to
encompass misrepresentations which bear on downstream sales by and between third
parties.” Id. ¶ 30 (emphasis added). Accordingly, we concluded that “both the plain
language of the [UPA] and the underlying policies suggest that a commercial
transaction between a claimant and a defendant need not be alleged in order to sustain
a UPA claim.” Id. ¶ 33 (emphasis added). Unlike the defendants in Lohman,
Defendants, here, do not argue that Plaintiff must have purchased the flask directly from
them. Rather, Defendants argue that Plaintiff must have purchased the flask from
someone, an argument that Lohman did not address. Thus, Lohman is unavailing.

{24} Plaintiff’s reliance on Maese v. Garrett, 

, 

, is
similarly misplaced. In Maese, the plaintiff brought a UPA claim against his financial
advisors for erroneously telling him he could withdraw money tax-free from an annuity
that the defendants recommended he purchase. Id. ¶¶ 3-7. The defendants argued that
the plaintiff’s claim did not fall under the UPA because he did not pay them for the
incorrect financial advice or for the withdrawal from the annuity. Id. ¶ 16. Nonetheless,
citing our liberal construction of the UPA, we found it “immaterial that [the p]laintiff did
not specifically compensate [the d]efendants for financial advising services where [the
d]efendants received compensation from third parties (e.g., from [the annuity company]
for the annuity in question) for investment advice that led to [the p]laintiff’s purchase of
their products.” Id. ¶ 19 (emphasis added). Maese is therefore distinguishable, as the
plaintiff in that case purchased something (i.e., the annuity).

{25} Nor does Plaintiff find support in Hicks v. Eller, 

, 

.
In Hicks, the plaintiff brought a UPA claim against an art appraiser who purchased two
paintings from the plaintiff after the plaintiff declined to retain the appraiser’s services to
value the art. Id. ¶¶ 4-9, 20. Relying on Lohman and emphasizing the UPA’s purpose as
a consumer protection statute, we concluded that the UPA requires that “somewhere
along the purchasing chain, the claimant did purchase an item that was at some point
sold by the defendant.” Hicks, 

 (emphasis added).
Accordingly, we concluded that the plaintiff, who did not purchase the defendant’s
services and acted as the seller of the art, had no standing to bring a UPA claim against
the appraiser. Id. ¶ 20. (“Consistent with its purpose as consumer protection legislation,
the UPA gives standing only to buyers of goods and services.” (emphasis added)).

{26} We recognize that “[i]t is the task of the courts to ensure that the [UPA] lends the
protection of its broad application to innocent consumers.” B & B Inv. Grp., Inc., 2014-
NMSC-024, ¶ 48 (internal quotation marks and citation omitted). However, other than
citing the above cases and arguing that the UPA should be interpreted broadly, Plaintiff
fails to demonstrate how her claim—which is not connected to any goods or services
she purchased—falls within the purview of the UPA. Given this lack of development, we
decline to address Plaintiff’s argument any further. See Elane Photography, LLC v.
Willock, 

, 

 (“To rule on an inadequately briefed issue,
this Court would have to develop the arguments itself, effectively performing the parties’
work for them. This creates a strain on judicial resources and a substantial risk of error.
It is of no benefit either to the parties or to future litigants for this Court to promulgate
case law based on our own speculation rather than the parties’ carefully considered
arguments.” (citation omitted)). Accordingly, we hold that, under the facts of this case,
the district court properly granted summary judgment on Plaintiff’s UPA claim.

CONCLUSION

{27} For the foregoing reasons, we affirm the district court’s grant of summary
judgment.

{28}   IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

M. MONICA ZAMORA, Judge
JULIE J. VARGAS, Judge