November 22, 2016 – Allred v. New Mexico Department of Transportation, No. 34,226

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: November 22, 2016
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 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

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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

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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 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

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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.

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{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 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

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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

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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[.]” 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[]

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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.

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{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 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

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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

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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 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

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{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

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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,
[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

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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

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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 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

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{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

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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.”
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.

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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.

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{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 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.

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{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

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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.

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{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

23
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

1Paragraph 	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.
24
immediately preceding phrase, which 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

25
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.
{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,

26
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.

27
{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

28
the “Rule [1-0]26 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

29
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 to which this ruling limited Niccoli’s testimony is unclear to this Court.

30
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?

31
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
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?

32
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-

33
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 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

34
[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

35
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.
{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

36
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

2UJI 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.
37
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 ca
nnot be included as part of “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.

38
{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

39
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