Allred v. N.M. Dep't of Transp. , 2017 NMCA 19 ( 2016 )

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New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 14:22:19 2017.02.15
Certiorari Denied, January 12, 2017, No. S-1-SC-36235
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2017-NMCA-019
Filing Date: November 22, 2016
Docket No. 34,226 (consolidated with No. 34,461)
DARREL ALLRED, ROBERT ALLRED,
JOHN ALLRED, BRUCE ALLRED, and
DWAYNE ALLRED,
Plaintiffs-Appellees,
v.
NEW MEXICO DEPARTMENT
OF TRANSPORTATION,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CATRON COUNTY
Kevin R. Sweazea, District Judge
Domenici Law Firm, P.C.
Pete V. Domenici, Jr.
Albuquerque, NM
for Appellees
Miller Stratvert P.A.
Cody R. Rogers
Luke A. Salganek
Las Cruces, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} Appellant New Mexico Department of Transportation appeals the district court’s
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finding of contempt and award of judicial sanctions in the amount of $408,764. Appellant
also appeals the district court’s award of attorney fees and costs in the amount of $54,301.41.
With respect to the district court’s finding of contempt, Appellant argues that the district
court lacked subject matter jurisdiction or, in the alternative, erroneously interpreted a
“settlement agreement” between the parties. Because we conclude that a portion of the
“settlement agreement” was an enforceable injunctive order, which was appropriately
interpreted by the district court, these arguments lack merit. Appellant additionally argues
that the district court’s (1) finding of contempt was not supported by substantial evidence
or was invalidated by evidentiary error, (2) award of judicial sanctions was not supported
by substantial evidence or resulted from an abuse of discretion, and (3) calculation of
damages was erroneous. We decline to accept these arguments except with respect to the
district court’s calculation of damages, to which we apply a $15,000 reduction.
{2} As to Appellant’s appeal of the district court’s award of attorney fees and costs, our
review of Appellant’s brief in chief and reply brief reveals insufficient discussion and legal
analysis from which to formulate an opinion. As such, we consider these issues to be
abandoned.
BACKGROUND
{3} Appellees Darrel, Robert, John, Bruce, and Dwayne Allred own and operate a
farming and livestock operation on lands adjacent to Whitewater Creek in Glenwood, New
Mexico. The Whitewater Creek Bridge (the Bridge) spans U.S. Highway 180. Appellant
constructed and maintains the Bridge. Since its reconstruction in 1981, sediment aggradation
has occurred at and about the Bridge. This sediment aggradation resulted in an increased risk
of flooding over time. Because of this increased risk, on June 17, 2011 Appellees filed this
action for negligence, inverse condemnation, injunctive relief, and damages.
{4} During the pendency of the litigation, Appellees requested and were granted a
preliminary injunction related to the maintenance of the Whitewater Creek bed (the Creek
bed). The preliminary injunction required that Appellant (1) update its pre-construction
notice (PCN); (2) provide the updated biological assessment and environmental analysis as
required by the United States Army Corps of Engineers (ACE) or the United States Fish and
Wildlife Service; (3) submit a construction plan to ACE, including a subsequent maintenance
plan sufficient to put the Creek bed and the Bridge in compliance with the 1981 design
standards; and (4) undertake the maintenance operation and promptly prosecute the
maintenance to completion within thirty days of ACE approval of the updated PCN. The
preliminary injunction further required that Appellant regularly maintain the Creek bed in
accordance with the PCN.
{5} ACE approved the updated PCN, and Appellant began maintenance on the Creek bed
on March 14, 2012. This maintenance progressed until a dispute related to the construction
specifications halted progress. On April 12, 2012, the parties entered court-ordered
mediation. This mediation resulted in an agreement in principle as to the terms of a
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permanent maintenance plan, which the parties referred to as a permanent injunction.
{6} On December 10-11, 2012, the parties signed a Settlement Agreement and Mutual
Release (Settlement Agreement). The Settlement Agreement outlined the Terms of
Settlement as (1) the entry of a Stipulated Permanent Injunction Order (Permanent
Injunction) and (2) dismissal of the lawsuit by “execut[ion of] the attached Stipulated Motion
of Voluntary Dismissal With Prejudice.” The Settlement Agreement additionally contained
an arbitration provision triggered by the failure of “any party . . . to perform any of the
promises made in this [a]greement[.]”
{7} On January 18, 2013, the district court ordered entry of the Permanent Injunction,
which detailed the parties’ rights and obligations with respect to the maintenance plan. The
Permanent Injunction contained a “maintenance trigger” that required Appellant to undertake
maintenance efforts “when the average distance between sediment accumulations to the low
chord of the [B]ridge is [seven] feet.” Additionally, the Permanent Injunction detailed the
scope of Appellant’s maintenance obligation and described circumstances under which the
Permanent Injunction could require amendment and protocol for such amendment. Finally,
the Permanent Injunction provided that “[t]he terms set forth herein resolve all pending
issues related to the injunctive relief requested by the [Appellees]. Title and compensation
issues between the [p]arties shall be disposed of and resolved through a separate
simultaneously executed settlement agreement and release.”
{8} On February 25, 2013, the parties jointly filed a Motion for Entry of Stipulated
Permanent Injunction and Voluntary Dismissal With Prejudice of All Remaining Claims and
Counterclaims (Motion for Entry and Voluntary Dismissal). The motion stated, in pertinent
part,
The Parties notify this [c]ourt that they have entered a Stipulated
Permanent Injunction that details a maintenance plan for [Whitewater] Creek,
above, below and under the U.S. 180 bridge in Glenwood, New Mexico,
Catron County as detailed therein.
The Parties further notify this [c]ourt that they have settled the
remaining disputes between them in the underlying lawsuit and pursuant to
Rule 1-041(A)(1)(b) [NMRA], hereby stipulate to the voluntary dismissal
with prejudice of all claims and counterclaims, known or unknown, raised in
this lawsuit or that could have been raised, against the Parties.
{9} On February 27, 2013, the district court entered its Order of Dismissal With
Prejudice of All Remaining Claims (Order of Dismissal), which stated, in pertinent part,
THIS MATTER having come before the [c]ourt upon the Parties’
notice of entry of Stipulated Permanent Injunction detailing a maintenance
plan on Whitewater Creek as detailed therein, and further notice of settlement
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of the remaining disputes between them in the underlying lawsuit, and
stipulation to the voluntary dismissal with prejudice of all claims and
counterclaims, known or unknown, raised in this lawsuit or that could have
been raised by the Parties;
The [c]ourt being otherwise fully advised in the premises FINDS that
the stipulation is well-taken and is hereby GRANTED. All claims and
counterclaims raised or that could have been raised by the Parties in this
lawsuit are dismissed with prejudice upon the entry of this [c]ourt’s Order,
and each party shall bear its own fees and costs.
{10} On July 28, 2013, Appellees notified Appellant that sediment levels in the Creek bed
required maintenance. Beginning on August 2, 2013, Appellant dispatched employees to
remove sediment from the Creek bed in accordance with the Permanent Injunction. For the
majority of the time between August 2, 2013 and approximately August 26, 2013, Appellant
assigned two employees to the project. Appellee Darrel Allred used his bulldozer to assist
these employees for approximately one hundred fifty hours during the month of August. On
approximately August 26, 2013, Appellant determined that a heavy equipment crew was
required to complete the project and ordered its employees to discontinue their maintenance
efforts. This discontinuation was premature and left the Creek bed out of compliance with
the terms of the Permanent Injunction. The heavy equipment crew was scheduled to arrive
at Whitewater Creek on September 16, 2013. During the intervening weeks, several rain
events deposited additional sediment in the Creek bed.
{11} On the night of September 14, 2013, a substantial rain event occurred, causing storm
water to flow down Whitewater Creek and, ultimately, to overtop the Bridge and flow
through Appellees’ property downstream from the Bridge. Additionally, storm water backed
up at the Bridge and overtopped the upstream dikes on both sides of Whitewater Creek,
causing damage to the dikes themselves, as well as irrigated fields, irrigation systems, and
crops.
{12} On September 17, 2013, Appellees filed a Verified Motion to Enforce Permanent
Injunction For Relief for Violation of Permanent Injunction (Verified Motion to Enforce).
This motion requested an emergency hearing “to determine and order appropriate remedial
actions [Appellant] must take, and grant any further relief the [c]ourt deems justice requires.”
In the weeks between the filing of the motion and the emergency hearing on October 9,
2013, Appellant reentered the Creek bed and removed sediment in accordance with the
Permanent Injunction.
{13} At the October 9, 2013 hearing, Appellees clarified that they were no longer seeking
emergency relief but hoped to “move[] this matter forward in the direction of some
appropriate sanction for violation of the [Permanent Injunction] order.” After attorney
argument and testimony, the district court ruled that Appellant “violated the stipulated
[Permanent Injunction] order by failing to diligently pursue maintenance until completion[.]”
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Appellees were given leave to petition the district court for damages and sanctions—the
appropriateness of which was to be determined at a subsequent hearing on the issues of
liability, causation, and damages. Neither of the parties raised the issue of subject matter
jurisdiction in the pre-hearing briefing or at the hearing. On November 8, 2013, Appellant
filed a motion to reconsider, which argued, generally, that its conduct did not violate the
Permanent Injunction. This motion was denied.
{14} On November 21, 2013, Appellees filed a petition for sanctions and damages for
Appellant’s violation of the Permanent Injunction. The petition alleged that Appellant was
liable for damages to Appellees’ property. The district court scheduled a motion hearing on
June 25-26, 2014 and set a June 1, 2014 discovery deadline.
{15} During discovery, the pending hearing was rescheduled for July 24-25, 2014. On July
21, 2014, counsel for Appellant sent a letter to the district court and counsel for Appellees
asserting that, effective February 27, 2013, the district court lacked subject matter
jurisdiction over the case. This letter posited that an entry of voluntary dismissal “terminates
a case, leaving the district court without jurisdiction to take[] any further action in the case.”
The letter additionally posited that, per the Settlement Agreement, arbitration was the
appropriate forum for resolving Appellees’ claims. Following a telephonic hearing related
to the letter, Appellant filed motions (1) to enforce the Settlement Agreement and dismissal
(Motion to Enforce) and (2) to vacate (Motion to Vacate) the pending hearing for lack of
subject matter jurisdiction. The Motion to Enforce focused on the interplay between the
Settlement Agreement, its arbitration provision, and the Permanent Injunction. The Motion
to Vacate expressly asserted that the district court lacked subject matter jurisdiction over
Appellees’ claims following the parties’ voluntary dismissal.
{16} At the outset of the July 24, 2014 hearing, the district court considered the merits of
the Motion to Enforce and the Motion to Vacate. The central issues were (1) whether the
Settlement Agreement incorporated the Permanent Injunction such that Appellees’ claims
were subject to arbitration and (2) if the Permanent Injunction was incorporated, did
Appellant’s failure to timely assert its right to arbitrate constitute a waiver. The district court
ruled in favor of Appellees, specifically concluding that “it does not appear that the
provisions of the injunction are subsumed within the requirement of arbitration.” The district
court did not rule, nor did Appellant orally raise, the effect of the stipulated voluntary
dismissal on the district court’s subject matter jurisdiction.
{17} During the hearing, Appellees presented testimony and evidence on topics including:
(1) the September 14, 2013 flood event; (2) damage to personal property; and (3) the cost
to repair such damage. Appellees offered expert witness testimony by Walter L. Niccoli,
which described the likely sequence of events on September 14, 2013 and the causal
relationship between Appellant’s violation of the Permanent Injunction and damages
suffered by Appellees. As a counterpoint to Niccoli’s testimony, Appellant intended to
introduce expert witness testimony by John Wallace. However, the district court excluded
Wallace’s testimony as a sanction for discovery violations. After this ruling, Appellant
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moved to strike Niccoli’s testimony. This motion was granted in part with respect to
testimony related to sediment aggradation in the Creek bed.
{18} The district court concluded that it had jurisdiction over the motions before it,
including Appellees’ Petition for Sanctions, under Article VI, Section 13 of the New Mexico
Constitution. The district court ruled that (1) Appellant’s violation of the Permanent
Injunction constituted contempt, (2) a causal relationship existed between Appellant’s
violation of the Permanent Injunction and Appellees’ damages, and (3) Appellees suffered
damages in the amount of $408,764. The district court ordered sanctions in the form of
compensatory damages in the amount of $408,764. The parties also litigated attorney fees
and costs, which resulted in an award to Appellees in the amount of $54,301.41.
{19} Appellant timely filed notice of appeal of the district court’s ruling on the merits and
its award of attorney fees and costs. These appeals were consolidated by order of this Court.
SUBJECT MATTER JURISDICTION
{20} “Subject matter jurisdiction is the power to adjudicate the general questions involved
in the claim[.]” Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 12, 120 N.M. 133, 899 P.2d
576. As a general rule, a court has subject matter jurisdiction over claims that “fall[] within
the general scope of authority conferred upon such court by the constitution or statute.” Id.
(internal quotation marks and citation omitted). A judgment entered by a court lacking
subject matter jurisdiction has no legal effect. See State v. Patten, 1937-NMSC-034, ¶ 11,
41 N.M. 395, 69 P.2d 931 (“There are three jurisdictional essentials necessary to the validity
of every judgment, to wit, jurisdiction of parties, jurisdiction of the subject matter, and
power or authority to decide the particular matters presented, and the lack of [any] is fatal
to the judgment[.]” (emphasis, internal quotation marks, and citations omitted)). The issue
of subject matter jurisdiction cannot be waived and may be raised at any time, including on
appeal to this Court. Becenti v. Becenti, 2004-NMCA-091, ¶ 13, 136 N.M. 124, 94 P.3d 867.
We review claims related to subject matter jurisdiction de novo. Murken v. Solv-Ex Corp.,
2006-NMCA-064, ¶ 8, 139 N.M. 625, 136 P.3d 1035.
{21} Rule 1-041(A) NMRA provides for the voluntary dismissal of a claim brought in a
New Mexico district court. The rule states, in pertinent part, “an action may be dismissed by
the plaintiff . . . by filing a stipulation of dismissal signed by all parties who have appeared
generally in the action.” Rule 1-041(A)(1)(b). The effect of such a dismissal “leaves a
situation, so far as procedures therein are concerned, the same as though the suit had never
been brought; and upon such voluntary dismissal, all prior proceedings and orders in the case
are vitiated and annulled, and jurisdiction of the court is immediately terminated.”
McCuistion v. McCuistion, 1963-NMSC-144, ¶ 9, 73 N.M. 27, 385 P.2d 357.
{22} Appellant’s central argument on appeal is that the Permanent Injunction was subject
to the parties’ Rule 1-041 voluntary dismissal and, therefore, was unenforceable by the
district court. Under McCuistion, Appellant’s argument would prevail if the Permanent
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Injunction was subject to the Order of Dismissal entered by the district court. For the reasons
discussed below, however, we conclude that it was not.
The District Court’s Order of Dismissal
{23} A judgment “must be certain and unequivocal” such that it “dispose[s] of the matters
at issue between the parties that they . . . will be able to determine with reasonable certainty
the extent to which their rights and obligations have been determined[.]” Hollingsworth v.
Hicks, 1953-NMSC-045, ¶ 26, 57 N.M. 336, 258 P.2d 724 (internal quotation marks and
citation omitted). While appellate courts draw certain distinctions between stipulated
judgments and judgments on the merits, no such distinctions apply when construing a
judgment’s intended effect. Compare id. ¶ 30 (construing a judgment on the merits), with
Mundy & Mundy, Inc. v. Adams, 1979-NMSC-084, ¶ 20, 93 N.M. 534, 602 P.2d 1021
(construing a stipulated judgment). When a judgment is “clear and unambiguous . . . [i]t
must stand and be enforced as it speaks.” Parks v. Parks, 1978-NMSC-008, ¶ 20, 91 N.M.
369, 574 P.2d 588. However, if “the meaning is obscure, doubtful, or ambiguous, the
judgment, pleadings, and entire record may always be resorted to for the purpose of aiding
in the construction thereof.” Hollingsworth, 1953-NMSC-045, ¶ 30. Our goal in construing
an ambiguous judgment is “to determine the intention and meaning of the author[.]” Id. ¶ 31.
Stipulations incorporated into a court’s judgment are “construed liberally to give effect to
the intent of the parties.” Parks, 1978-NMSC-008, ¶¶ 15-16.
{24} As discussed above, the Order of Dismissal resulted from the parties’ Motion for
Entry and Voluntary Dismissal. The Order of Dismissal separately detailed the parties’
agreement as to (1) a maintenance plan for Whitewater Creek, by way of the Permanent
Injunction; (2) settlement of the remaining disputes in the underlying lawsuit; and (3)
“voluntary dismissal with prejudice of all claims and counterclaims . . . raised in th[e]
lawsuit[.]” The Order of Dismissal did not expressly reserve authority to the district court
to enforce the Permanent Injunction. However, the Permanent Injunction itself implies
ongoing enforcement authority, stating,
The Parties recognize that if regulatory changes or conditions are
unilaterally implemented by any controlling state or federal agency that
impacts the ability of [Appellant] to comply with the terms of this Order, the
Parties recognize [Appellant] will need to comply with those regulatory
requirements[.] . . . In the event there is not agreement between the Parties
that regulatory changes or conditions were unilaterally implemented by any
controlling state or federal agency that impacts the ability of [Appellant] to
comply with the terms of this Order, [Appellant] must request and obtain
modification to the permanent injunction.
The Parties recognize that if site conditions change such that
[Appellant’s] ability to comply with the terms of this Order is impacted,
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[Appellant] will advise the principal [Appellee] Darrel Allred of such
changes. In the event there is not agreement between the Parties that site
conditions change such that [Appellant’s] ability to comply with the terms of
this Order is impacted, [Appellant] must request and obtain modification to
the permanent injunction.
{25} Appellees argue that the parties did not, in dismissing all remaining claims, intend
to limit the district court’s enforcement power with respect to the Permanent Injunction.
Appellant argues that the Motion for Entry and Voluntary Dismissal indicated the parties’
intent to terminate the district court’s jurisdiction over the Permanent Injunction. The Order
of Dismissal does not clearly indicate which of these positions was intended by the parties’
stipulated dismissal of “all remaining claims.” This ambiguity requires that we look to the
entire record to construe the judgment. Parks, 1978-NMSC-008, ¶ 16; Hollingsworth, 1953-
NMSC-045, ¶ 30.
{26} The Permanent Injunction itself is particularly illuminating as to the intent of the
parties. First, the district court entered the Permanent Injunction on January 18, 2013—more
than six weeks before its entry of the Order of Dismissal, which dismissed “all remaining
claims.” Additionally, the Permanent Injunction contemplated the possibility that regulatory
or site condition changes could impact Appellant’s ability to comply with its maintenance
obligations. It also contemplated disagreement between the parties, such that Appellant
“must request and obtain modification to the [Permanent Injunction].” The Permanent
Injunction did not expressly indicate to which entity such a request was to be made.
However, because the district court entered the Permanent Injunction on January 18, 2013
and no alternate forum was indicated on that date, the obvious implication is that any request
for modification would be made to the district court. The power to modify the Permanent
Injunction implies ongoing enforcement authority.
{27} Generally speaking, the inclusion of an express reservation or repudiation of ongoing
judicial enforcement authority within an order of dismissal limits the need for such analysis.
See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994)
(discussing the retention of judicial authority by the consent of the parties over settlement
agreements that result in voluntary dismissal). However, having conducted the analysis, we
conclude that the Permanent Injunction was not subject to the Order of Dismissal. Therefore,
the district court retained authority to enforce the Permanent Injunction and had subject
matter jurisdiction over Appellees’ Verified Motion to Enforce.
THE PERMANENT INJUNCTION
{28} In the alternative, Appellant asserts numerous errors by the district court in
interpreting or construing the Permanent Injunction, including: (1) that the Settlement
Agreement and the Permanent Injunction functioned as a contract between the parties, such
that claims arising from a violation of the Permanent Injunction were subject to arbitration;
(2) that the district court improperly reformed the Permanent Injunction by adding and
8
omitting terms; and (3) that the district court erroneously concluded that Appellant violated
the Permanent Injunction. To the extent that our analysis requires, we review questions of
contractual interpretation de novo. Thompson v. Potter, 2012-NMCA-014, ¶ 12, 268 P.3d
57.
The Nature of the Permanent Injunction
{29} As a general rule, a stipulated judgment “is not considered to be a judicial
determination, but a contract between the parties[.]” Williams v. Crutcher, 2013-NMCA-044,
¶ 8, 298 P.3d 1184. However, discussing this general rule in Pope v. Gap, Inc., this Court
clarified that stipulated judgments have characteristics of both judgments and contracts. See
1998-NMCA-103, ¶ 22, 125 N.M. 376, 961 P.2d 1283 (“[A consent judgment] is similar to
a judgment because it is entered and enforceable as a judgment; however, it is like a contract
because its terms and conditions are reached by the mutual agreement of the parties.”).
Inasmuch as Williams’ statement of our general rule would subject the Permanent Injunction
to a pure contract law analysis, the injunctive relief granted in this particular case is
distinguishable from the general rule.
{30} United States v. City of Miami, 664 F.2d 435 (5th Cir. 1981) (per curiam), cited by
this Court in Pope, is instructive. In that case, the attorney general filed a complaint against
the city of Miami (the City) and the Fraternal Order of Police (FOP) for discriminating
against certain protected classes of individuals in violation of the Fourteenth Amendment
and federal law. City of Miami, 664 F.2d at 436. The complaint sought both temporary and
permanent injunctive relief. Id. Post-complaint negotiations resulted in a proposed consent
decree that was signed by both the United States and the City. Id. at 438. The district court
approved and entered the consent decree over objections by the FOP. Id. Shortly thereafter,
the FOP filed a motion to vacate the consent decree, which the district court granted. Id.
After a hearing, the United States and the City submitted a modified consent decree. Id. at
439. The district court entered the modified consent decree over continued objection by the
FOP, finding that “the decree does not violate the contractual relationship between [the
parties and] . . . [t]he consent reached is constitutionally valid.” Id. (internal quotation marks
omitted). The modified consent decree included language stating that the defendants “are
permanently enjoined and restrained from engaging in any act or practice which has the
purpose or effect of unlawfully discriminating against [the protected classes.]” Id. (internal
quotation marks omitted). The FOP appealed the entry of the consent decree. Id.
{31} In discussing the principles underlying consent decrees, the Fifth Circuit stated,
When presented with a proposed consent decree, the court’s duty is
akin, but not identical to its responsibility in approving settlements of class
actions, stockholders’ derivative suits, and proposed compromises of claims
in bankruptcy. In these situations, the requisite court approval is merely the
ratification of a compromise. The court must ascertain only that the
settlement is “fair, adequate and reasonable.”
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Because th[is] consent decree does not merely validate a compromise
but, by virtue of its injunctive provisions, reaches into the future and has
continuing effect, its terms require more careful scrutiny. Even when it
affects only the parties, the court should, therefore, examine it carefully to
ascertain not only that it is a fair settlement but also that it does not put the
court’s sanction on and power behind a decree that violates Constitution,
statute, or jurisprudence.
Id. at 441 (emphasis added) (footnotes omitted).
{32} The judicial process outlined in City of Miami is more analogous to the current case
than Williams or other New Mexico appellate cases that define stipulated or consent
judgments as contractual in nature. See, e.g., Owen v. Burn Constr. Co., 1977-NMSC-029,
90 N.M. 297, 563 P.2d 91 (discussing a stipulated judgment arising from the settlement of
claims for property damage); State ex rel. State Highway Comm’n v. Clark, 1968-NMSC-
057, 79 N.M. 29, 439 P.2d 547 (discussing a stipulated judgment arising from the settlement
of eminent domain proceedings); La Luz Cmty. Ditch Co. v. Town of Alamogordo, 1929-
NMSC-044, 34 N.M. 127, 279 P. 72 (discussing a stipulated judgment arising from the
settlement of claims related to water rights); Williams, 2013-NMCA-044 (discussing a
stipulated judgment arising from the settlement of claims related to trust distributions).
{33} In Owen, for example, the defendant was employed by a municipal redevelopment
agency to demolish a hotel adjacent to the plaintiffs’ restaurant. 1977-NMSC-029, ¶ 2.
During the demolition, the defendant’s negligence caused the hotel to fall onto and destroy
the restaurant. Id. The plaintiffs reached a settlement with the agency to compensate them
for the value of the lot. Id. ¶ 3. The terms of the settlement were entered as a judgment by
the district court. Id. The plaintiffs then filed a lawsuit against the defendant for damages to
the physical structure. Id. ¶ 4.
{34} In this context, the stipulated judgment, which memorialized the settlement
agreement between the plaintiffs and the agency, was more like a contract than a judgment.
The plaintiffs and the agency determined, among themselves, the value of the lot. After
payment of the stipulated amount, the plaintiffs and the agency had no additional rights or
obligations with respect to the other. The district court unquestionably had no ongoing
enforcement obligations. As such, the district court’s role was, as described in Appellant’s
brief in chief, “ministerial.”
{35} The stipulated judgment in Owen is simply not analogous to that in the current case.
On June 17, 2011, Appellees filed a complaint alleging negligence and requesting injunctive
relief related to Appellant’s maintenance obligation at the Bridge. Appellees’ request for
injunctive relief specifically requested that the district court “requir[e Appellant] to
immediately begin restoring the Whitewater Creek Bridge to 1981 design standards[.]” After
an evidentiary hearing, the district court issued a preliminary injunction, ordering Appellant
to “submit to the ACE a construction notice with a specific plan for immediate maintenance
10
of the Whitewater Creek and the Bridge” including “a subsequent maintenance plan that is
sufficient to put the [C]reek bed and [the] Bridge in compliance with the 1981 design
standards of the Bridge.” The preliminary injunction additionally provided that regular creek
bed maintenance “shall be undertaken” until further order of the court.
{36} Appellant argues on appeal that the Permanent Injunction is contractual in nature
because it resulted from negotiations between the parties. However, the preliminary
injunction proceedings demonstrate that the district court contemplated the equities involved
with granting injunctive relief long before entering the Permanent Injunction. Additionally,
the terms of the Permanent Injunction—particularly those related to ongoing maintenance
requirements placed on Appellant—comport with the legal rationale supporting injunctive
relief. See Insure N.M., LLC v. McGonigle, 2000-NMCA-018, ¶ 6, 128 N.M. 611, 995 P.2d
1053 (“In determining whether to grant injunctive relief, a [district] court must consider a
number of factors and balance the equities and hardships. Some of these factors include: (1)
the character of the interest to be protected; (2) the relative adequacy to the plaintiff of an
injunction, when compared to other remedies; (3) the interests of third parties; (4) the
practicability of granting and enforcing the order; and (5) the relative hardship likely to
result to the defendant if granted and to the plaintiff if denied.” (internal quotation marks and
citations omitted)). Given this procedural history, the district court’s role in entering the
Permanent Injunction was more than ministerial.
{37} Despite being the product of a stipulation between the parties, the Permanent
Injunction is a judgment of the district court and not merely a memorialization of a
contractual agreement. Because the Permanent Injunction is a judgment, it is enforceable by
the district court and not subject to the arbitration clause contained within the Settlement
Agreement. See NMSA 1978, § 39-1-5 (1850-1851) (“It shall be the duty of the judge of any
court to cause judgment, sentence or decree of the court to be carried into effect, according
to law.”).
Interpretation of the Permanent Injunction
A. Terms
{38} Appellant additionally argues that the district court erroneously interpreted the
Permanent Injunction by “adding terms not agreed upon by the parties, and omitting terms
specifically agreed to by the parties.” Because Appellant’s argument is premised upon its
claim that the Permanent Injunction is a contract, it is, to a degree, inapplicable. However,
we apply similar principles in construing contracts and judgments. See Owen, 1977-NMSC-
029, ¶ 14 (“The rules to be followed in arriving at the meaning of judgments and decrees are
not dissimilar to those relating to other written documents. Where the decree is clear and
unambiguous, neither pleadings, findings nor matters dehors the record may be used to
change or even to construe its meaning.”). We therefore review de novo whether the district
court’s interpretation of the Permanent Injunction resulted in a reformation of the judgment.
11
{39} On October 9, 2013, the district court held a hearing on Appellees’ Verified Motion
to Enforce. After taking testimony related to Appellant’s maintenance efforts between
August 2, 2013 and approximately August 28, 2013, the district court ruled that Appellant
“violated the stipulated permanent injunction order by failing to diligently pursue
maintenance until completion[.]”
{40} The Permanent Injunction states, in pertinent part, that “[c]ontinuing maintenance
required under the PCN shall be performed in conformance with the maintenance plan . . .
and shall be diligently pursued until completion recognizing that, force majeure, regulatory
restrictions, and conditions provided for upon approval of [Appellant’s] PCN, or otherwise,
will ultimately dictate [Appellant’s] maintenance time frames.” Appellant argues that the
district court’s interpretation (1) erroneously established timeliness and resource allocation
requirements for the project and (2) ignored provisions that provided Appellant with
discretion over maintenance time frames.
{41} Appellant’s timeliness and resource allocation argument is predicated on its claim
that “[t]he unambiguous language of the [Permanent Injunction] requires only that
[Appellant] ‘diligently pursue maintenance until completion.’” Appellant asserts that the
district court’s interpretation reformed the Permanent Injunction to “include specific
requirements . . . such as ‘continuous’ pursuit of maintenance, time frames for completion,
prioritization of maintenance, size of crew, or equipment used[.]” We disagree. Our review
of the record indicates that the district court simply emphasized that the “judgment requires
prosecution diligently to completion.” (Emphasis added.) Appellant never completed the
required maintenance prior to discontinuing its efforts on or about August 28, 2013.
“[W]here the language of a judgment or decree is clear and unambiguous, . . . [i]t must stand
and be enforced as it speaks.” Hollingsworth, 1953-NMSC-045, ¶ 30. The district court’s
ruling that Appellant violated the Permanent Injunction by failing to complete its
maintenance obligation did not constitute a reformation of the Permanent Injunction by the
district court.
{42} Appellant’s second argument—that it had broad discretion over maintenance time
frames—is in two parts and is predicated upon acknowledgment in the Permanent Injunction
that certain conditions will “dictate [Appellant’s] maintenance time frames.” These
conditions are “force majeure, regulatory restrictions, and conditions provided for upon
approval of [Appellant’s] PCN, or otherwise[.]”
{43} Appellant argues that the “or otherwise” clause is an “important area[] of discretion
given to [Appellant] by the [Permanent Injunction]” and that the district court’s
interpretation of the “or otherwise” clause rendered it “mere surplusage[.]” We disagree. Our
reading of the “or otherwise” clause in the context of the entire document indicates that it
does not stand alone, but that it instead modifies the immediately preceding phrase, which
12
itself refers back to an earlier provision related to pending regulatory approval.1 Given this
conclusion, it is Appellant’s reading—that the “or otherwise” clause provided seemingly
unlimited discretion over maintenance time frames and resource allocation—that renders
certain preceding language meaningless. Cf. Bank of N.M. v. Sholer, 1984-NMSC-118, ¶ 6,
102 N.M. 78, 691 P.2d 465 (“A contract must be construed as a harmonious whole, and
every word or phrase must be given meaning and significance according to its importance
in the context of the whole contract.”).
{44} Appellant additionally argues that monsoonal rains and increased sediment
accumulation related to the Whitewater-Baldy Complex fire constituted a force majeure
excusing compliance with the Permanent Injunction. After taking testimony and evidence,
the district court ruled that the physical conditions at and around the Bridge did not
constitute a force majeure such that Appellant’s duty to perform was excused. This
conclusion, however unsatisfactory to Appellant, resulted from the district court’s analysis
of the force majeure clause and does not constitute a reformation of the Permanent
Injunction by the district court.
B. Causation
{45} Appellant’s final argument in this regard asserts that the district court’s conclusion
that a causal relationship exists between Appellant’s violation of the Permanent Injunction
and damages suffered by Appellees is not supported by substantial evidence. In conducting
such review, “[w]e are deferential to facts found by the district court, but we review
conclusions of law de novo.” Benavidez v. Benavidez, 2006-NMCA-138, ¶ 21, 140 N.M.
637, 145 P.3d 117. As part of its argument, Appellant claims that the district court
erroneously excluded its expert witness. We review the admission of expert testimony for
an abuse of discretion. Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 27, 123 N.M. 353,
940 P.2d 459.
1. Admission of Expert Testimony
{46} Appellant, citing various case law, asserts that the district court improperly struck
its expert witness, John Wallace. Our review of the record does not support Appellant’s
position.
1
Paragraph two of the Permanent Injunction states, in pertinent part, “[Appellant] will
submit to the [ACE] a [PCN] addressing its subsequent maintenance and re-vegetation plan,
the scope of which is to read, as much as practicable, as consistent with Exhibit B, as
attached, and shall be made pursuant to the terms and conditions set forth below, subject to
approval of the [ACE], or as otherwise directed by regulatory agencies thereto.” (Emphasis
added). We read this sentence to contemplate additional regulatory action, potentially
affecting Appellant’s ability to comply with its maintenance obligation under the Permanent
Injunction.
13
{47} Rule 1-026 NMRA governs civil discovery, including the admission of expert
witness testimony. With respect to expert witness disclosures, the rule provides, in pertinent
part,
A party may through interrogatories and requests for production
discover the identity of each person the other party may call as an expert
witness at trial, the subject matter on which the expert is expected to testify,
and the substance of the facts and opinions to which the expert is expected
to testify and a summary of the grounds for each opinion.
Rule 1-026(B)(6)(a). A failure to make such disclosures is sufficient grounds to exclude
expert witness testimony. See Rule 1-037(B)(2)(b) NMRA (providing “if a party fails to
obey an order under Rule 1-026 . . . , the court in which the action is pending
may . . . prohibit[] that party from introducing designated matters in evidence”); Lewis ex
rel. Lewis v. Samson, 2001-NMSC-035, ¶¶ 13, 16, 131 N.M. 317, 35 P.3d 972 (holding that
“lesser sanctions,” including the exclusion of witnesses, “may be applied to any failure to
comply with discovery orders” (internal quotation marks and citation omitted)).
{48} During discovery, Appellees propounded interrogatories and requests for production
on Appellant, including at least one related to expert witnesses. In response, Appellant
named Wallace as its expert witness. Appellant’s answer to the interrogatory did not provide
information concerning Wallace’s opinions, the grounds for those opinions, or the facts,
documents, and other information upon which Wallace relied in forming his opinions.
Appellant did not provide Appellees with Wallace’s expert report.
{49} Appellees requested supplementation of Appellant’s response to its interrogatories,
including “review [of] the opinions and materials Mr. Wallace relied upon in making any
expert opinions he intends to offer at [the scheduled] hearing[.]” In the absence of written
discovery, Appellees noticed a deposition for Wallace on July 2, 2014. This notice was
accompanied by a letter requesting alternate dates if the noticed date presented a scheduling
conflict. On June 29, 2014, Appellant notified Appellees of a conflict with the noticed
deposition. Appellees indicated availability on July 3, 2014, but they also indicated that
additional delays were unacceptable given the proximity to trial. In their response, Appellees
reiterated their request for supplementation of discovery materials. Appellant failed to
supplement and instead filed a motion for a protective order related to Wallace’s noticed
deposition and a motion to stay proceedings. Both parties subsequently filed motions in
limine to exclude the other’s expert witness. The district court declined to address
Appellant’s motion to stay proceedings due to its untimeliness and reserved its ruling on the
motions in limine until the witnesses were called at trial.
{50} Appellant called Wallace to testify and elicited his expert qualifications on direct
examination. At the outset of Wallace’s substantive testimony, Appellees objected and
moved to exclude Wallace due to alleged discovery violations. After oral argument by the
parties, the district court sustained Appellees’ objection, ruling that the “Rule [1-0]26
14
disclosure was inadequate” because it included “no facts and no opinions . . . in [the]
disclosure and there is no report that can be referred to instead.” Appellant filed a Motion
to Reconsider and Offer of Proof (Motion to Reconsider), which the district court denied.
{51} Rule 1-037(B) bestows authority on the district court to grant and enforce sanctions
for discovery violations. Given Appellant’s conduct during the discovery process, the district
court did not abuse its discretion by excluding Wallace’s expert testimony. Applying the
same rationale, the district court also did not abuse its discretion by denying Appellant’s
Motion to Reconsider.
2. Substantial Evidence of Causation
{52} The district court ruled that Appellant’s failure to comply with the Permanent
Injunction resulted in storm water overtopping both the Bridge and the upstream dikes,
“caus[ing] serious damage to [Appellees’] property.” Causation is a prerequisite for an award
of civil damages, including damages predicated upon a finding of civil contempt. See El
Paso Prod. Co. v. PWG P’ship, 1993-NMSC-075, ¶ 31, 116 N.M. 583, 866 P.2d 311 (“We
hold that once a plaintiff satisfies his [or her] burden of proving violation of a court order,
proximate cause, and damages, he or she is entitled to judgment for recovery of those
damages.”). Appellant argues that this ruling was not supported by substantial evidence or,
in the alternative, that lay witness testimony is insufficient to support a finding of causation
in the context of flooding. But see Moore v. Associated Material & Supply Co., 948 P.2d
652, 662 (Kan. 1997) (“[W]itnesses who have long been familiar with the flooding patterns
of an area are competent to form an opinion as to the cause of flooding.”). Appellant’s
secondary argument was not preserved and is, therefore, not considered by this Court. See
Wolfley v. Real Estate Comm’n, 1983-NMSC-064, ¶ 5, 100 N.M. 187, 668 P.2d 303
(“[T]heories, defenses, or other objections will not be considered when raised for the first
time on appeal.”).
{53} In support of their claims, Appellees offered expert witness testimony by Niccoli.
During discovery, Appellees disclosed Niccoli’s expert report, which stated, in pertinent
part,
[M]y opinion is that the Bridge did not have adequate capacity to pass the
flow from the Event. Because the Bridge did not have the capacity, it resulted
in the flood waters backing up behind the Bridge, damaging or destroying
upstream flood containment structures (e.g., dikes), and the flood waters
jumping the channel. Had [Appellant] completed [its] maintenance duties on
September 5[], 2013, the Event would have passed beneath the Bridge and
[would] not have caused the damage[.]
After Niccoli’s testimony, Appellant argued that his expert report and answers to
interrogatories failed to adequately disclose his theory as to causation. The district court
struck certain portions of Niccoli’s testimony related to sediment aggradation, but the extent
15
to which this ruling limited Niccoli’s testimony is unclear to this Court. Despite passing
reference to the district court’s ruling in its appellate briefing, Appellant does not provide
record citation to the portions of Niccoli’s testimony that were struck by the district court
or comprehensive analysis of the effect of this evidentiary ruling on our substantial evidence
review. See Rule 12-213(A)(4) NMRA (requiring the appellant to provide citations to the
record proper in support of each argument); Fenner v. Fenner, 1987-NMCA-066, ¶ 28, 106
N.M. 36, 738 P.2d 908 (holding that this Court need not consider arguments raised on appeal
that are unsupported by citation to the record and transcript).
{54} We view Niccoli’s expert witness report, quoted above and properly disclosed
pursuant to Rule 1-026(B)(6)(a), to provide sufficient notice as to the substance of Niccoli’s
opinion testimony—that Appellant’s failure to complete its maintenance obligation caused
(1) a backup of water at the Bridge, (2) storm water to jump the channel upstream and
downstream from the Bridge, and (3) damage to Appellees’ property. Inasmuch as Niccoli
offered testimony consistent with this disclosed theory, it was not subject to the district
court’s order to strike. An example of such testimony includes:
Appellees’ Counsel: So, do you have an opinion as to how that stream was
reacting upstream when the water began topping the
Bridge and then topped it a little more and then the
tree actually impacted the Bridge? What was going on
back upstream?
Niccoli: Back upstream, because again the maintenance hadn’t
occurred, the stream channel was raised, five
thousand CFS coming through here. I think Mr.
Allred keeps his dikes at about six to nine feet deep,
again matching the part down here. So, this only had
about two or three feet of clearance that night. There’s
probably only about three feet of clearance upstream
also and there wouldn’t be enough capacity in the
channel and it probably came up to the level of the
dike. As soon as it got to the level of the dike, it
started overtopping and the erosive forces would have
moved the dike away and caused flooding of the field.
Appellees’ Counsel: What about flooding of the pond?
Niccoli: The pond also. . . . There’s two things that probably
happened at the pond. One which could have been the
backup of the water from the plugging of the Bridge
loosening the dikes toward the center and into that.
And then also this pond here is also on the bend in the
river, so the maximum forces are going to be on that
16
outside. So with the stream level raised up due to the
lack of maintenance, that water would have wanted to
force its way around this corner to the northeast of the
upper pond and would have again loosened the dike.
And it did obviously loosen it up and water flowed
into there.
Appellees’ Counsel: And then what happened below the Bridge to what we
call the lower pond or the fencing around the lower
pond?
Niccoli: Sure. . . . When the water flowed over the top of the
[Bridge] and spread out along the road . . . the stream
. . . flowed through the property.
{55} Comments by the district court indicate that its ruling as to causation was informed
by both lay and expert witness testimony. With respect to Niccoli’s testimony, it stated that
[the] expert testimony from [Appellees’] expert is, unequivocally, had the
cleaning been done . . . the waters would have stayed in the bounds of the
creek . . . and would not have overtopped the levees[.] . . . There was also
testimony that when the water overtopped the Bridge, it started going on the
northwest side of the road, and that that is what caused damage in that area[.]
{56} Based on Niccoli’s testimony alone, substantial evidence supported the existence of
a causal relationship between Appellant’s violation of the Permanent Injunction and damages
suffered by Appellees. Appellant’s argument in this regard is not well-taken.
CIVIL CONTEMPT SANCTIONS
{57} Appellant’s final substantive arguments relate to the district court’s award of civil
contempt sanctions. Appellant first argues that substantial evidence did not support this
award. As noted above, in reviewing whether substantial evidence exists to support a district
court’s ruling, we defer to the factual findings of the district court but review the application
of those facts to the law de novo. Benavidez, 2006-NMCA-138, ¶ 21. Additionally, our
appellate courts view the evidence and draw all reasonable inferences in the light most
favorable to the findings of the district court. Cave v. Cave, 1970-NMSC-113, ¶ 4, 81 N.M.
797, 474 P.2d 480. Second, Appellant argues that compensatory sanctions were not an
appropriate remedy because neither party prevailed in the underlying litigation. This Court
reviews a district court’s determination that a party prevailed at trial for an abuse of
discretion. Mayeux v. Winder, 2006-NMCA-028, ¶ 41, 139 N.M. 235, 131 P.3d 85. We
address Appellant’s arguments in turn.
{58} “The elements necessary for a finding of civil contempt are: (1) knowledge of the
17
court’s order, and (2) an ability to comply.” In re Hooker, 1980-NMSC-109, ¶ 4, 94 N.M.
798, 617 P.2d 1313. Although periodically discussed in our appellate opinions, neither
willfulness nor intent is an element of civil contempt. Spear v. McDermott, 1996-NMCA-
048, ¶ 41, 121 N.M. 609, 916 P.2d 228. As such, Appellant’s argument that the district
court’s characterization of Appellant’s conduct as a “willful decision” requires that we
consider “willfulness” as an element of civil contempt is misplaced.
{59} Appellant does not contest that it had knowledge of the Permanent Injunction.
Appellant does, however, argue that “[t]here was no evidence presented to the district court
to suggest that . . . [Appellant] ever had the ability to comply with the [Permanent
Injunction.]” In support of this argument, Appellant states, without citation to the record, that
“[a]ll the evidence presented to [the] district court . . . demonstrated that although
[Appellant] was attempting to comply with the [Permanent Injunction], continuing issues
regarding the availability of manpower and equipment, coupled with weather, delayed
compliance.” See Rule 12-213(A)(4) (requiring the appellant to provide citations to the
record proper in support of each argument).
{60} This argument, which advances Appellant’s theory that it was unable to comply with
the Permanent Injunction, improperly shifts the burden of proof from Appellant to Appellees.
See Spear, 1996-NMCA-048, ¶ 31 (“[T]he contemnor has the burden of proof concerning
inability to comply with a court order. . . . [T]his burden extends to the self-inducement
issue; that is, the contemnor has the burden of proving not only that it [was] impossible for
him to comply, but that he did not create the impossibility.” (citation omitted)). Whatever
the evidence was at trial, it clearly did not impress upon the district court that circumstances
related to weather and resource allocation created a situation in which Appellant was unable
to comply. Additionally, Appellant did not request that the district court make such a finding
in its proposed findings of fact and conclusions of law. The district court expressly
concluded that “[Appellant’s] decision not to allocate sufficient resources . . . and [its]
decision to not continuously prosecute the maintenance . . . was a deliberate, conscious
decision[.]” This factual finding indicates that neither weather nor a lack of available
resources created a situation in which Appellant was unable to comply with the Permanent
Injunction. We defer to the factual findings of the district court.
{61} Appellant had the burden of proving that it was unable to comply with the Permanent
Injunction. Its attempt to shift that burden of proof to Appellees, necessitating that Appellees
prove that Appellant was able to comply, is misplaced and constitutes a mischaracterization
of our civil contempt jurisprudence.
{62} Appellant’s “prevailing party” argument correctly articulates our general rule that
“compensatory sanctions [are] only available if petitioner wins the action in the original
[law]suit.” Rhinehart v. Nowlin, 1990-NMCA-136, ¶ 28, 111 N.M. 319, 805 P.2d 88.
However, its claim that the parties’ entry into the Settlement Agreement and voluntary
dismissal of the underlying case resulted in a circumstance in which neither party “won” in
the underlying case is not compelling.
18
{63} The prevailing party in litigation is “[t]he party to a suit who successfully prosecutes
the action or successfully defends against it, prevailing on the main issue, even though not
necessarily to the extent of his original contention.” Mayeux, 2006-NMCA-028, ¶ 41
(internal quotation marks and citation omitted). As discussed above, the district court entered
an enforceable judgment, in the form of the Permanent Injunction, on January 18, 2013. The
Permanent Injunction imposed mandatory maintenance obligations on Appellant, as
requested in the initial complaint and granted in the district court’s preliminary injunction.
The entry of the Permanent Injunction was “the main issue” in the underlying lawsuit. Id.
Because Appellees’ claims arose from a violation of the Permanent Injunction, the district
court did not abuse its discretion in concluding that compensatory sanctions were an
appropriate remedy for contempt.
CALCULATION OF DAMAGES
{64} Finally, Appellant claims that the district court erred in its calculation of damages.
The district court ruled that Appellees were entitled to recover actual losses in the amount
of $408,764. Appellant argues on appeal that the appropriate method to calculate damages
to real property “is the difference between the value of the property immediately before the
occurrence and immediately after.” See UJI 13-1819 NMRA (“You shall determine what
was the value of the property immediately before the occurrence and immediately after the
occurrence. The difference between these two figures is the legal measure of damages to real
property.”). We believe that Appellant’s argument is largely misplaced.
{65} As a general rule, the remedy for civil contempt is “[j]udicial sanctions . . . to
compensate the complainant for losses sustained.” State ex rel. Apodaca v. Our Chapel of
Memories of N.M., Inc., 1964-NMSC-068, ¶ 10, 74 N.M. 201, 392 P.2d 347. The losses
sustained by Appellees, as indicated by the district court’s findings of fact and conclusions
of law, were to personal property and improvements, including crops, livestock, irrigation
systems, flood control structures, and fences. See Branch v. Walker, 1952-NMSC-080, ¶ 7,
56 N.M. 594, 247 P.2d 172 (describing “farming implements, livestock and . . . crops” as
personal property). The appropriate method for calculating damages to personal property is
the cost of repair. See UJI 13-1813 NMRA (“In determining [personal] property damages,
if any, you may award the reasonable expense of necessary repairs to the property which was
damaged.”).2
{66} However, the district court also awarded compensatory sanctions in the amount of
$15,000 for work performed by Appellees prior to September 14, 2013. Work performed by
Appellees prior to the date on which they suffered damages cannot be included as part of
2
UJI 13-1817 NMRA articulates an alternative method for calculating damages to
personal property. However, neither party offered any testimony or evidence as to the
diminution of value to Appellees’ personal property. Therefore, we utilize UJI 13-1813 in
our analysis.
19
“the reasonable expense of necessary repairs to the property which was damaged.” Id. While
Appellees may be entitled to reimbursement or payment for this work, they must attempt
such recovery under an alternate legal theory.
{67} Appellees suffered damages to personal property in the amount of $393,764. As such,
we affirm this portion of the award in Appellees’ favor. We reverse the district court’s award
of $15,000 for work performed by Appellees prior to September 14, 2013. To the extent that
Appellant offered additional arguments related to statutory limitations on damages in its
docketing statement, these arguments are not developed on appeal and are not considered
by this Court. See State v. White, 1994-NMCA-084, ¶ 1, 118 N.M. 225, 880 P.2d 322
(“Issues raised at earlier stages of the appeal but not briefed are deemed abandoned.”).
ATTORNEY FEES AND COSTS
{68} Appellant filed a separate notice of appeal related to the district court’s order denying
its objection to Appellees’ attorney fees affidavit and cost bill. Appellant filed a docketing
statement addressing these issues. The background section of Appellant’s brief in chief
includes discussion of the district court’s award of attorney fees and costs. This section
generally asserts Appellant’s claims that the district court erred by (1) awarding costs
designated as non-recoverable by Rule 1-054(D)(3) NMRA, (2) awarding attorney fees for
clerical work, and (3) failing to reduce expert witness fees. However, neither the brief in
chief nor the reply brief offers any legal argument on these topics. Given the filing of a
separate notice of appeal and docketing statement, and discussion in the background section
of the brief in chief, we are unclear whether this omission was intentional or inadvertent.
Regardless, Appellant has abandoned these issues on appeal. See White, 1994-NMCA-084,
¶ 1.
CONCLUSION
{69} For the foregoing reasons, we affirm in part but reduce the award of civil contempt
damages in favor of Appellees to $393,764.
{70} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
MICHAEL E. VIGIL, Chief Judge
________________________________
JONATHAN B. SUTIN, Judge
20