Restoration And Disgorgement Are Not Mutually Exclusive Remedies Against A Trustee

A corporate trustee was found to have violated the duty of care in investing trust funds in a single commercial building and to have engaged in self-dealing by arranging loans from its affiliates to the trust and receiving loan fees and mortgage interest from the trust. The trial court awarded the beneficiaries restoration damages but refused to award disgorgement or make an adjustment for inflation and then deducted income distributed from the amount awarded. The intermediate appellate court reversed the refusal to adjust for inflation and to deduct distributions but affirmed the refusal to award disgorgement. In Miller v. Bank of America, N.A., the New Mexico Supreme Court reversed and remanded for recalculation of the damages holding that under state law disgorgement is mandatory and that disgorgement and restoration reflect separate remedial principles which are not mutually exclusive.