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GandyDancer, LLC v. Rock House CGM, LLC

Supreme Court of New Mexico

November 14, 2019, Filed

No. S-1-SC-37201


 [**436]  THOMSON, Justice.

 [*1]  The district court certified for interlocutory review whether the New Mexico Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended 2019), supports a cause of action for competitive injury. The Court of Appeals accepted interlocutory review and held that a business may sue for competitive injury based on a plain reading of the UPA. Gandydancer, LLC v. Rock House CGM, LLC, 2018-NMCA-064, ¶ 1, 429 P.3d 338. We reverse because the Legislature excluded competitive injury from the causes of action permitted under that statute. We further observe that Gandydancer relied upon dicta in Page & Wirtz Construction Co. v. Solomon, 1990-NMSC-063, ¶ 22, 110 N.M. 206, 794 P.2d 349. Therefore, we formally disavow reliance on Page & Wirtz  or prior New Mexico case law that conflicts with this opinion.


 [*2]  GandyDancer, LLC, and Rock House CGM, LLC, are [***2]  business competitors, and both provide railway construction and repair services to BNSF Railway Company. BNSF awarded contracts to Rock House to provide goods and services in New Mexico.

 [*3]  GandyDancer filed a complaint with the New Mexico Construction Industries Division (CID) in 2015 that alleged Rock House violated the Construction Industries Licensing Act (CILA), NMSA 1978, §§ 60-13-1 to -59 (1967, as amended through 2013), by performing unlicensed construction work in New Mexico. CID is the state agency charged with investigating violations and prosecuting actions to enforce CILA. See § 60-13-9(G)  [**437]  (providing that CID "shall . . . employ such personnel as the division deems necessary for the exclusive purpose of investigating violations of [CILA]"). CID and Rock House entered into a stipulated settlement agreement resolving the alleged licensing violations.

 [*4]  GandyDancer thereafter filed a complaint in district court against Rock House. The complaint alleges theories of competitive injury, including a claim that Rock House engaged in unfair methods of competition to obtain contracts with BNSF contrary to the UPA. GandyDancer alleges that Rock House's acts amount to an "unfair or deceptive trade practice" under Section 57-12-2(D) of the UPA, because: [***3] 

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2019-NMSC-021 *; 453 P.3d 434 **; 2019 N.M. LEXIS 50 ***

GANDYDANCER, LLC, Plaintiff-Respondent, v. ROCK HOUSE CGM, LLC, AND KARL G. PERGOLA, Defendants-Petitioners.

Subsequent History: Released for Publication December 17, 2019.

Released for Publication December 17, 2019.

Prior History:  [***1] ORIGINAL PROCEEDING ON CERTIORARI. Clay Campbell, District Judge.

Gandydancer, LLC v. Rock House CGM, LLC, 2018-NMCA-064, 429 P.3d 338, 2018 N.M. App. LEXIS 43 (N.M. Ct. App., July 30, 2018)


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