USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-2095

GEORGE LABARRE AND CHERLINE LABARRE,

Plaintiffs, Appellees,

v.

MERRILL J. SHEPARD AND THOMAS M. PARKS,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Charles S. Swartwood, III, U.S. Magistrate Judge]

_____________________

____________________

Before

Selya, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Timothy G. Kerrigan with

____________________

whom Hamblett & Kerrigan, P.A. was

___________________________

brief for appellants.

David V. Shablin with
________________
on brief for appellees.

whom Raymond J. Reed and Reed & Reed

________________
___________

____________________

May 28, 1996

____________________

STAHL,
STAHL,

Circuit
Circuit

Judge.
Judge.

Merrill J.

Shepard

and

______________

Thomas

M. Parks

appeal from

favor of George LaBarre

that

Shepard

and

the

judgment against

and Cherline LaBarre.

Parks:

(1)

improperly

them in

jury found

and

unfairly

foreclosed the mortgage they held on the LaBarres' residence;

(2) breached an agreement to avert the foreclosure; committed

(3) misrepresentation and

unfair

trade

practice

Consumer Protection

two narrow issues:

Act.

(4) fraud; and

in

violation

first, that admission

deed in lieu of foreclosure,

second,

duplicative.

that

of

the

New

an

Hampshire's

On appeal, Shepard and Parks raise

alleged oral agreement, whereby

and,

(5) engaged in

an

the LaBarres would deliver a

violated the Statute of Frauds;

damages

Disagreeing

of evidence of

with

awarded

the

were

improperly

appellants'

first

contention, but agreeing as to the second, we affirm in part,

reverse in

part, and

remand for

correction of the

damages

award.

I.
I.
__

Background
Background
__________

On October 20, 1989, the LaBarres purchased a newly

erected house

and surrounding land in

from Shepard and

Weare, New Hampshire,

Parks, the builders.1

The purchase

price

____________________

1.

This is a

anomalies in
foreclosure
federal trial

unusual case.
the

underlying real

process, and
courts.

is material to the

The record reveals

the

estate

transaction,

litigation in

Because none

a number of

the state

the
and

of these irregularities

narrow issues on appeal, we

merely point

-22

was $229,000; the LaBarres paid $11,450 cash and gave Shepard

and

Parks

a promissory

note

secured by a first mortgage on

principal or interest were

in

the

amount of

the premises.

$217,550,

No payments of

due on the note until

either the

LaBarres sold certain other real estate or the passage of two

years from the date of the note's execution.2

In

Parks

in

construction,

October 1990,

New

the

Hampshire

LaBarres

state

seeking recision and

court

sued Shepard

for

and

defective

money damages.

Shepard

and Parks counterclaimed for principal and interest allegedly

due on

the mortgage note.

denied recision,

cost

After

a bench trial,

the court

but found defective construction that would

$38,000 to repair.

Accordingly, on June

7, 1993, the

____________________

them out in footnotes

to help the reader understand

the odd

posture of this case.

2.

The promissory

payments

for

up

note, while
to two

installment payments
The

years,

providing for a
did

thereafter nor

not
for a

deferral of

provide for

any

balloon payment.

parties, however, do not raise any issues concerning the

note and agree on the amount due thereunder.

-33

court entered

judgment,3 deducting the cost

of repairs from

the mortgage balance.4

In the summer of

foreclosure

then

due

1993, Shepard and Parks initiated

proceedings against the LaBarres for the balance

on the

mortgage note.5

A foreclosure

sale was

____________________

3.

This judgment is impossible to decipher.

judge

The state trial

found that the LaBarres had "sustained their burden of

proof on their claim of damages" and "assessed" those damages

at

$38,000.

The

judge then

stated

that

"[d]efendants'

counterclaim is DENIED without prejudice to assert a separate

action, if necessary."

In spite of denying the

counterclaim

for the mortgage balance due, the judge did not make an award
of

money damages,

but

rather deducted

award from the balance due on the note.

present

"the correct

methodology

promissory note," arriving

promissory

the $38,000

The judge went on to

for recalculation

at a "[t]otal due under

note" of $239,729.

damage

The decree ended:

of the
terms of

"Judgment

entered in accordance with the foregoing."

Inexplicably, both parties and the magistrate judge
consider

this to

be a

judgment for

$239,729, when

the state court judge

counterclaim.

We ignore

Shepard and

expressly denied their

______

this problem, though,

magistrate judge

ultimately used the state

to

proper

measure

the

counterclaim brought
no

award on

Parks for

the

court "judgment"

mortgage

by Shepard and Parks;

award on the state judgment itself.

because the

deficiency

hence, there was

Neither party raises

any question about the state court judgment on appeal.

this

Given

posture, we too shall refer to the state court mortgage

balance calculation as a "judgment," though it seems at

best

to be a finding of fact.

4.

The balance was recalculated as follows:

Original Principal balance on mortgage note

$217,500

less: Cost to repair defects

38,000
______

Net principal due on mortgage note

$179,500

plus: Interest due on net principal as of 5/20/93

TOTAL DUE AS OF 5/20/93
Interest Per Diem:

$239,109

$34.32

TOTAL DUE AS OF JUDGMENT DATE 6/7/93

5.

The

record does

59,609
______

not

reveal whether

$239,729

Shepard and

Parks

initiated

the foreclosure

entry of the state

proceedings

before or

after the

court judgment recalculating the mortgage

-44

scheduled for September 22, 1993.

foreclosure sale,

Shepard

At some point prior to the

and Parks

obtained a

"drive-by"

appraisal that indicated a fair market value of $150,000, and

the LaBarres were informed of that appraisal.

According

to

the

LaBarres,

their

lawyer orally

agreed

LaBarres

return,

with

the

lawyer

for

Shepard

and

Parks that

the

would deliver a deed in lieu of foreclosure, and in

Shepard and

Parks

would credit

the full

$150,000

appraised value of the property in determining the deficiency

owed under the

state court judgment.

the agreement,

the LaBarres

Parks access

Shepard

to their

and Parks

allegedly

home for

assert that no

a more

In consideration

for

offered Shepard

and

thorough appraisal.

such agreement

was made.

There is no written agreement, nor any other writing or notes

concerning the alleged oral agreement between the lawyers.

The

to

LaBarres claim to

have been seeking financing

facilitate a bid on the property at the foreclosure sale,

but say

that they abandoned those efforts when the agreement

to deliver the deed

day

before

the

LaBarres received

indicating

that

in lieu of foreclosure was reached.

scheduled foreclosure

a faxed

that the

they would

however,

appraisal from Shepard

property was

give the

sale,

worth only

LaBarres credit

One

the

and Parks

$125,000, and

for 70%

of that

____________________

balance.

Thus, it is unclear whether the foreclosure was an

attempt to collect on the judgment or the note; we will treat

it as a mortgage foreclosure on the note.

-55

amount, i.e., $87,500 against the amount

due.6

The LaBarres

apparently rejected that offer, and the foreclosure sale went

ahead as scheduled.

who,

upon

the

The only bidders were Shepard and Parks,

advice

of counsel,

jointly

purchased

the

property for $87,500.

Sometime later, the LaBarres paid Shepard and Parks

$17,500

Labarres'

to

obtain the

property

payment made

in

release

of

an

Massachusetts;

by the LaBarres

attachment

this

other than their

payment.

II.
II.
___

was

on

the

the

only

initial down

Proceedings Below
Proceedings Below
_________________

The

LaBarres

brought

federal district court in

the

refusal of Shepard and

foreclosure.

framed in

diversity

action

in

Massachusetts, seeking redress for

accept, on terms acceptable

of

this

Parks to honor

their promise to

to the LaBarres, a deed

The LaBarres' complaint,

five counts: (I) unfair

in lieu

as amended, was

and improper foreclosure,

(II) breach of contract, (III) intentional misrepresentation,

(IV) fraud, and (V) unfair and deceptive trade practice under

New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann.

____________________

6.

It is

explained,

unclear from
whether

the

the

record, and

credit was

to

neither party
be

applied

has

to the

outstanding

balance on

court judgment.

Given

see supra note 3,

___ _____

the mortgage

note or

the cryptic nature of

this lack of precision is

For simplicity, we will

to the

state

that judgment,
not surprising.

speak in terms of credit

toward the

balance on the mortgage note.

-66

ch.

358-A

("RSA

358-A").

counterclaims

for

mortgage

(II) the

and

(I)

the

Shepard

and

deficiency

on

judgment

debt

Parks

the

on the

brought

foreclosed

earlier

New

Hampshire state court judgment.

The

parties consented

magistrate judge presiding.

that the case was

trial, Shepard

evidence of

to

Parks moved

the alleged

Hampshire law.

in
__

limine to
______

oral agreement, which

was barred by

New Hampshire's Statute

Stat.

506:1

enforce

Ann.

("RSA

oral contracts

magistrate

judge

LaBarres' breach

trial with

506:1")

for the

ruled that

of contract

the

The magistrate judge determined

governed by New

and

a jury

the

Prior

exclude

(precluding actions

statute did

claim.

After the

all

they claimed

of Frauds, N.H.

conveyance of

to

land).

not

Rev.

to

The

bar the

trial, the

magistrate judge explained that, under New Hampshire law, the

Statute of Frauds did not bar a cause of action for breach of

an oral settlement agreement between attorneys.

After a

three-day trial in March of 1995, the jury

found for the LaBarres

interrogatories, the

market value of the

on all five counts.

jury specifically

Through special

found that

property at the time of

the fair

foreclosure was

$170,000, and that Shepard and Parks breached an agreement to

accept a deed

LaBarre's

Shepard

in return

for credit of

mortgage obligation.

and

Parks committed

$150,000 toward

The jury

an

-77

unfair

also found

trade practice

the

that

in

violation of the Consumer Protection Act, RSA 358-A, and that

the

LaBarres suffered actual damages of $82,500 as a result.

Although the jury was not asked how it arrived at that actual

damages

figure,

$82,500

is

the

difference

between

the

property's fair market value of $170,000 and the $87,500 that

Shepard and Parks bid at the foreclosure sale.

answered that

the Consumer Protection Act

The jury also

damages should be

trebled.7

The magistrate judge directed a verdict for Shepard

and Parks on their counterclaims, and then ruled, in essence,

that the

mortgage balance

court judgment,

was the

due, as calculated

proper measure

in the

for a

state

single, non-

duplicative recovery, satisfying both counterclaims.8

____________________

7.

In his memorandum of decision dated September 5, 1995,

the magistrate judge explained that, although he should have

decided whether to double or treble the Consumer Protection
Act damages rather than the jury, Shepard and Parks had
waived the issue.

Shepard and Parks raised no objection at

trial, and they now concede that the error has not been
preserved for appeal.

We express no opinion whether the

multiplication of damages under New Hampshire's Consumer

Protection Act is for the jury or the judge.

8.

The special interrogatory form indicated that Shepard and

Parks

were entitled to recover on

the state court judgment,

specifying that amount as $239,109; the actual calculation in

that

judgment

was

difference between
for the period from

$239,729.
the two

See
___

supra
_____

figures is the

May 20, 1993

note

4.

The

interest applied

(apparently the date of

stipulated

interest calculation)

date of the state

interest

through June 7,

court judgment).

from mid-1993

through the

1993 (the

Neither figure
March 1995

includes

judgment in

this case.
The parties,
the calculation

however, do

not assert any

of the counterclaim recovery

error in

by Shepard and

Parks.

-88

Recognizing that the claims for breach of contract,

misrepresentation,

and fraud

were, in

essence, alternative

theories

of

treated

Counts II, III, and IV

improper

foreclosure count.

outright

on Count

jury's

improper

findings

LaBarres

I, the

on Counts

with the full

$170,000, in

foreclosure,

the

magistrate

as subsumed in Count I, the

Rather

than

awarding damages

magistrate judge

judge

through IV

fair market

implemented the

by

crediting the

value of

the property,

calculating the amount due to Shepard and Parks

on their counterclaims.

The magistrate judge then awarded treble damages of

$247,500 to the LaBarres on

Act

count,

in

Count V, the Consumer Protection

accordance

interrogatory answers.

with

the

jury's

special

The judge ruled that although Count V

was "based on the same factual allegations as were alleged in

each of

the other

four counts

of the LaBarres'

Complaint,

they

for

are entitled to

violation

statute."

of

The

reasonable

an independent recovery

the

New

magistrate

under Count V

Hampshire

Consumer

judge also

awarded

Protection

costs

and

attorney fees to the LaBarres, as provided in the

Consumer Protection Act.

Shepard

Federal

Rule

appeal, Shepard

asserted

and

Parks moved

of Civil

and

for

Procedure 59(a),

Parks

raise

two of

in their Rule 59(a) motion.

-99

new trial

to

the

no avail.

issues

under

On

they

First, they argue that

evidence

of

the alleged

oral

excluded from

trial under

they maintain

that the award

Protection

the award

owed on

agreement

should have

the Statute of

Frauds.

of damages under

Act must be reduced by $82,500.

of full

market value

the mortgage note,

Second,

the Consumer

They assert that

credit against

in addition to

been

the balance

trebled Consumer

Protection Act damages, constituted an improperly duplicative

recovery

because

all

factual allegations.

the

counts were

based

on

the same

In effect, they point out, the LaBarres

received a quadruple recovery, but were

damages

under the

largest single

entitled only to the

count, i.e.,

the trebled

Consumer Protection Act damages.

III.
III.
____

Discussion
Discussion
__________

1. The Statute of Frauds

_________________________

The

same factual

allegation

underlies

all

five

counts: Shepard and Parks orally promised to accept a deed in

lieu of

foreclosure on terms acceptable to the LaBarres, but

then reneged on that agreement the day before the foreclosure

sale.

Shepard and Parks assert that New Hampshire's Statute

of Frauds

barred all testimony

and evidence of

the alleged

oral

action

agreement.

The

statute,

shall be maintained upon

land unless the agreement

RSA 506:1,

provides:

a contract for

"No

the sale of

upon which it is brought,

or some

-1010

memorandum

thereof, is in writing and signed by the party to

be charged, or by some person authorized by him in writing."

Because the

on

Count

magistrate judge awarded

I (improper

Protection

judgment

Act),

foreclosure)

Shepard

and

and

Parks

damages only

Count V

(Consumer

recognize

that

was not based on enforcement of the contract.

the

They

argue, rather, that the "entire trial proceeding was tainted"

by

the

introduction

of

evidence of

the

oral

agreement,

requiring reversal.

The

applicable

here.

whether

parties agree

on its

They expend

face to

that the

the

Statute of

oral agreement

much energy, however,

Frauds is

in question

disagreeing about

one or more exceptions to the statute apply in these

factual circumstances.

In

doing so,

the parties

miss the

real issue and misunderstand the operation of the Statutes of

Frauds.

There

is no

need

here to

decide the

existence,

scope, or applicability of the asserted common-law exceptions

to

the Statute

agreement

between

performance

enforcement

evidence.

Frauds (the

so-called "oral

settlement

attorneys"

exception

the

exception).

Hampshire law,

relevant

of

hold instead

the Statute of

Frauds is

of certain oral contracts;

Evidence of the

to

We

the

counts

and

that, under

only a bar

it is not

oral agreement in

alleging

-1111

part-

improper

New

to the

a rule of

this case was

foreclosure,

misrepresentation,

violation

raise

fraud,

and

unfair

of the Consumer Protection Act.

trade

practice

in

Shepard and Parks

no claim that the Federal Rules of Evidence barred its

admission.

Thus, we find no reversible error.

We find

clear guidance

in New Hampshire

caselaw.

The

New Hampshire Supreme Court held

in Munson v. Raudonis,
______
________

387

A.2d 1174, 1176 (N.H. 1978), that the Statute of Frauds,

RSA

506:1, did not bar an action

for deceit even though the

oral promise

that was breached could not be enforced because

of

of a

the lack

writing.

In

Munson court expressly rejected

______

Shepard and Parks, i.e., that

should

have

counts

were merely

Statute

of Frauds.

"Barring an

been

action

reaching that

the argument pressed here by

evidence of the oral agreement

excluded because

holding, the

the

four

back-door attempt

non-contract

to circumvent

the

The court in Munson reasoned as follows:

______

in

deceit because

of

the

Statute

of

Frauds, however, would not further the policy of the statute.

Quite the contrary,

it would foster an injustice."

our view, Munson embodies New Hampshire

______

Id.
___

In

law on the question,

and the argument raised by Shepard and Parks

must fail.

See
___

also
____

Morgan v. Morgan, 47 A.2d 569, 571 (N.H. 1946) (Statute

______
______

of Frauds did

not bar action

for misrepresentation even

if

agreement was unenforceable as a contract).

The

often

relied

Restatement (Second)

upon

by

the

New

-1212

of

Contracts, a

Hampshire

Supreme

source

Court,

provides

additional support

Tsiatsios
_________

v.

Tsiatsios, 663
_________

for

this result.

A.2d

(following

the Restatement);

1079, 1082

(N.H. 1995) (same); Simpson v.

_______

318,

327 (N.H. 1994) (same).

provides

that "[t]he

unenforceable

purpose

The

contract

other

statute."

Comment

Statute

than

its

Patch
_____

1335,

See,
___

e.g.,
____

1339 (N.H.

1995)

v. Arsenault,
_________

Calivas, 650 A.2d

_______

Section 143 of the Restatement

of Frauds

inadmissible

in

enforcement in

does

despite occasional

Section

143 explains

not make

an

evidence

for

any

violation

of

the

Restatement (Second) of Contracts

__________________________________

to

653 A.2d

that

statements to the contrary,

143 (1981).

"the

Statute,

does not lay

down a rule of evidence, and an unenforceable contract may be

proved for any legitimate purpose."

It

reason for

was his

does not

matter

Id.
___

that

the magistrate

admitting evidence of the

conclusion

that a

143 cmt. a.

alleged oral agreement

purported

"lawyer's

agreement" exception (or alternatively,

exception) put

While we

we

even

settlement

the part-performance

the agreement outside the

are skeptical whether that

judge's

Statute of Frauds.

conclusion was correct,

can affirm the admission of evidence on any proper basis,

if the trial judge

relied on a

different ground.

See
___

United States v. Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989)
______________
______

(no

reversal

incorrect

where

basis, if

trial

properly

court

admits

evidence

admissible for

same

on

an

purpose

under

different rule

of evidence),

cert. denied,
_____ ______

494 U.S.

-1313

1005 (1990);

cf. Ticketmaster-New York, Inc. v.

___ ____________________________

Alioto, 26
______

F.3d 201, 204 (1st Cir. 1994) (appellate court free to affirm

the district court's judgment on any independently sufficient

ground manifest in the record).

Because the

was

admissible

for

agreement, i.e.,

because the

judgment,

evidence of the alleged oral agreement

purposes

other

to prove the four

breach

there is

of contract

no

than

enforcing

that

non-contract counts, and

count

did not

reversible error

affect

in the

the

magistrate

judge's ruling on the applicability of the Statute of Frauds.

2. Duplicative Damages
______________________

The jury

LaBarres' property

found that the

fair market value

was $170,000 at the

of the

time of foreclosure.

As damages for Counts I through IV, the magistrate judge gave

the LaBarres

credit

against the judgment

balance.

for

the

full $170,000

for Shepard and

as

Parks on the

an

offset

mortgage

This placed the LaBarres in an even better position

than if they had delivered a deed in lieu of foreclosure

$150,000

credit,

as

the

parties

had

allegedly

for

agreed.

Shepard and Parks have not appealed the award of the $170,000

credit for Counts I through IV.

Because Shepard

the foreclosure

of

and Parks had bid

sale, the $170,000 credit

a damages award of

$82,500, placing the

only $87,500 at

is the equivalent

LaBarres in the

position they would have been in if Shepard and Parks had bid

-1414

fair market value at the foreclosure.

this

award

made the

LaBarres

whole,

There is no doubt that

or

better, for

the

improper foreclosure.

The

Consumer

jury

Protection

LaBarres actual

also found

Act by

damages of

for an award of $247,500.

that

the

violation of

the

Shepard

and

Parks caused

the

$82,500, which the

See RSA 358-A:10.

___

jury trebled

Because the net

effect of the credit toward the mortgage was to award $82,500

above

the amount bid by

Consumer Protection

Shepard and Parks,

Act award

was for three

and because the

times $82,500,

the LaBarres

magistrate

provided

effectively enjoyed a quadruple

judge

an

opined

independent recovery,

improper duplication.

error,

that the

Consumer

and

The

Protection Act

thus

there was

no

Shepard and Parks assert that this was

and that the Consumer Protection

reduced

recovery.

Act award should be

by $82,500 to limit the net award to treble damages.

We agree.

It

is evident

appear to concede, that

from the

record, and

the damages under Count

the LaBarres

I (improper

foreclosure) are based on the same factual allegations as the

damages under Count

on

Count I

subsumed)

V (Consumer Protection Act).

(in which

was based

all the

on the

The award

four common-law

counts were

$82,500 difference

between the

fair

value and

the

obviously reflecting

bid price;

the same

the

same amount,

difference

$82,500,

between the

fair

-1515

value

and

the bid,

under the RSA

that

this

was awarded

358-A count.

quadruple award

and trebled

Nonetheless, the

was

proper

(to $247,500)

LaBarres argue

because

they

are

entitled to an

"independent recovery" under

New Hampshire's

Consumer Protection Act.

The

statute

LaBarres, however,

or in

contention

any New

that

"independent

the

Hampshire case

Consumer

recovery."

authority directly on

point

We

to

nothing in

that

supports their

Protection Act

have

found

point, but we

Hampshire's Supreme

Court

would

against duplicative

recoveries and

provides

no New

its

an

Hampshire

are confident that

follow

the

general

New

rule

would find the

award in

this case erroneous.

See Phillips v. Verax Corp.,

___ ________
___________

637 A.2d

906, 912

(N.H. 1994)

("[T]he plaintiff

multiple

recoveries

for the

same

loss

is not

entitled to

merely because

he

alleged alternative theories of recovery."); Clancy v. State,

______
_____

185 A.2d 261, 263 (N.H. 1962) ("Duplication of damages should

be avoided."); Burke v. Burnham, 84 A.2d 918, 922 (N.H. 1951)

_____
_______

(recovery

of

same

damages

under

the award

causes

impermissible).

We

duplicative, and

that the LaBarres' recovery

the treble damages

hold that

two

allowable under

in this

of

action

case was

may not exceed

the Consumer

Protection

Act.

The

affirming a

LaBarres argue

damage award

that a

under

-1616

Massachusetts decision

the Massachusetts

Consumer

Protection Act, Mass.

Gen. L. ch.

the magistrate judge's award

93A, supports by

in this case.

The

analogy

cited case,

Multi Technology, Inc. v. Mitchell Management Sys., Inc., 518

______________________
______________________________

N.E.2d 854,

857 (Mass. App. Ct.), review

______

398

(Mass. 1988),

The

plaintiffs

Protection

Act

does not,

in

however, provide

Multi Technology
_________________

damages

in

denied, 521 N.E.2d

______

addition

any support.

received

to

contract

Consumer

damages

because the separate counts entailed factually separate items

of damage.

Id.
___

The

plaintiff had agreed to

a reduced fee

based on the defendant's misrepresentations. Accordingly, the

court awarded the agreed amount as contract damages, and also

awarded the difference between

and the

agreed-upon reduced

damages.

Id.
___

the plaintiff's standard

fee as Consumer

fee

Protection Act

Here, there are no factually separate items of

damage, and the holding in Multi Technology is inapplicable.

________________

Contrary

misleading

citation

to the

of

LaBarres'

assertions

Multi Technology,
_________________

and

the

their

quadruple

recovery in this case is clearly improper under Massachusetts

law, as well as

New Hampshire law.

In Calimlim v.
________

Foreign
_______

Car Ctr., Inc., 467 N.E.2d 443, 448 (Mass. 1984), the Supreme
______________

Judicial Court held that

of conduct which

"[w]here injury is incurred because

comprises the elements

of any common

law,

statutory, or regulatory cause of action, and which is also a

violation

of

the

Consumer

Protection

Act,

recovery

of

cumulative damages under multiple counts may not be allowed."

-1717

The reasoning and

holding in

bar the cumulative

allegations

under

unquestionably

recovery in this case, where

and the

the common

Calimlim would
________

law

items of

actual damages

and Consumer

the factual

are identical

Protection Act

counts.

Id.; see also Lexton-Ancira Real Estate Fund, 1972 v. Heller,

___ ___ ____ ____________________________________
______

826 P.2d

819,

recovery for

and

822-24

(Colo.

violation of

1992) (en

banc)

Colorado Consumer

common law misappropriation

(no

double

Protection Act

arising out of

same set of

facts,and collectingcaseswith similarholdingsin otherstates).

To

recapitulate, we

hold

that the

LaBarres were

improperly awarded quadruple damages, when they were entitled

to no more than treble damages.

IV.
IV.

___

Conclusion
Conclusion
__________

For the foregoing reasons, the judgment is affirmed

________

in part, and reversed in part.

______________________________

LaBarres

shall

be

reduced

awarded on the judgment

case

is

remanded to

The damages awarded

by $82,500,

and

any

to the

interest

shall be adjusted accordingly.

the magistrate

judge

for entry

corrected damages award consistent with this opinion.

The

of a

-1818