June 17, 2016 – W.J. Holcomb and Sharon Holcomb, Husband and Wife v. Avedon Rodriguez a/k/a Avedon Oralando Rodriguez, a/k/a Oralndo Avedon Rodriguez, and Theresa R. Martinez, No. 33,481

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: June 16, 2016
No. 33,481
W.J. HOLCOMB and
SHARON HOLCOMB,
Husband and Wife,
Plaintiffs/Counterdefendants and
Appellees/Cross-Appellants,
v.
AVEDON RODRIGUEZ a/k/a AVEDON
ORLANDO RODRIGUEZ, a/k/a ORLANDO
AVEDON RODRIGUEZ, and THERESA R. MARTINEZ,
Defendants/Counterplaintiffs and
Appellants/Cross-Appellees.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, District Judge
Sommer, Udall, Sutin, Hardwick & Hyatt, P.A.
Eric M. Sommer
Santa Fe, NM
for Appellees/Cross-Appellants
Chris Lucero, Jr.
Albuquerque, NM
for Appellants/Cross-Appellees

OPINION
HANISEE, Judge.
{1} 	A jury found in favor of W.J. and Sharon Holcomb (Plaintiffs) on their trespass
claims against Avedon Rodriguez and Theresa Martinez (Defendants). Defendants
appeal, raising six claims of error. Plaintiffs cross-appeal the district court’s refusal
to set Plaintiffs’ award of post-judgment interest at a rate of 15 percent per annum. We
reject all of Defendants’ arguments and agree with Plaintiffs that the district court
abused its discretion by refusing to award post-judgment interest in the amount
required by statute. We therefore reverse and remand with instructions to modify the
rate of post-judgment interest, but leave the district court’s judgment undisturbed in
all other respects.
BACKGROUND
{2} 	Plaintiffs own land that lies directly adjacent to Defendants’ land to the north.
A wash runs southwest across Plaintiffs’ western tract, crossing Defendants’ land
before emptying into the nearby San Juan River. Plaintiffs erected a fence running east
to west along their driveway. The fence starts near Plaintiffs’ house on the far western
end of their property and ends where the wash crosses onto Defendants’ property.
{3} 	In November 2008, Defendant Rodriguez hired Lucas Lucero to channel the
wash with earthmoving equipment. Lucero used the equipment to create berms that

1Section 30-14-1(D) provides that “[a]ny person who enters upon the lands of
another without prior permission and injures, damages or destroys any part of the
realty or its improvements, including buildings, structures, trees, shrubs or other
natural features, is guilty of a misdemeanor, and he shall be liable to the owner, lessee
or person in lawful possession for civil damages in an amount equal to double the
value of the damage to the property injured or destroyed.”
2
narrowed and deepened the wash. Without Plaintiffs’ permission, Lucero channeled
portions of the wash on Plaintiffs’ property near their driveway and performed other
earthwork on the far eastern boundary of Plaintiffs’ land.
{4} 	On February 5, 2009, Plaintiffs filed a complaint against Defendants seeking
injunctive relief and damages arising from claims for common law trespass and
violations of criminal trespass under NMSA 1978, Section 30-14-1(D) (1995).1
Defendants answered and counterclaimed against Plaintiffs for trespass, criminal
trespass, and to quiet title against Plaintiffs based on allegations that Plaintiffs had
cleared vegetation and constructed a fence on Defendants’ property. In June 2009,
Plaintiffs hired a civil engineer to evaluate the potential for flooding as a result of
Lucero’s channel work. The civil engineer concluded that in the event of flooding,
Lucero’s modifications to the channel would cause the banks of the wash that
supported Plaintiffs’ driveway to erode. In 2010 flooding from rain storms caused
significant erosion of the channel banks supporting a portion of Plaintiffs’ driveway.
As a result, Plaintiffs hired a professional design firm and a contractor to stabilize the
banks of the channel and to install diversion screens to prevent further flood damage.

3
{5} 	The district court held a jury trial from April 2 through April 5, 2013. At the
close of Defendants’ case, Plaintiffs orally moved for a directed verdict on
Defendants’ counterclaims for trespass, arguing that both entry and damages were
necessary elements of a claim for trespass and that Defendants had not offered any
evidence that could support a finding in Defendants’ favor on either element.
{6} 	Defendants responded that the jury could find that Plaintiffs had entered
Defendants’ property based on the testimony of a surveyor and the results of a survey
he performed that showed that Plaintiffs’ fence was built on Defendants’ property. As
to damages, Defendants conceded that they had presented no evidence that would
allow a jury to fix a dollar amount on the cost of removing and restoring damage to
their property caused by the fence, but that photographic evidence showing that
Plaintiffs had removed vegetation from Defendants’ land while installing the fence
was sufficient to submit the trespass claim to the jury for a determination of liability
and damages.
{7} 	The 	district 	court 	granted 	Plaintiffs’ 	motion 	for 	a 	directed 	verdict 	on
Defendants’ counterclaims for trespass, agreeing with Plaintiffs that Defendants had
failed to prove that Plaintiffs’ alleged trespass had caused Defendants to suffer any
damages. The jury then returned a verdict in Plaintiffs’ favor on their common law

2Plaintiffs voluntarily dismissed their claim for criminal trespass under Section
30-14-1(D).
4
trespass claim and awarded damages of $33,506.40.2 The parties submitted post-trial
briefs on Defendants’ counterclaim to quiet title to the boundary between the parties’
properties, after which the district court ruled in Plaintiffs’ favor and found that the
boundary between the parties’ properties was that described in a survey performed by
a surveyor hired by Plaintiffs. The district court entered a final judgment against
Defendants, awarding Plaintiffs $33,506.40 and quieting title to the boundary line
between the parties’ properties.
{8} 	Defendants appeal the district court’s judgment, raising the following six claims
of error:
1. 	The jury, not the district court, should have fixed the boundary
between Plaintiffs’ and Defendants’ land;
2. 	The 	district 	court 	erred 	in 	granting 	a 	directed 	verdict 	on
Defendants’ counterclaims for trespass against Plaintiffs;
3. 	The district court should have submitted a jury instruction modeled
after NMSA 1978, Section 30-14-6 (1979) on Plaintiffs’ trespass claims;
4. 	There was insufficient evidence of damages to support the jury’s
verdict against Defendants on Plaintiffs’ trespass claims;
5. 	The district court abused its discretion by awarding prejudgment
interest to Plaintiffs; and

5
6. 	The district court lacked jurisdiction over Plaintiffs’ trespass
claims because Defendants enjoyed a prescriptive easement over the area of the
alleged trespass.
{9} 	Plaintiffs cross-appeal the rate at which the district court awarded post-
judgment interest, arguing that 15 percent, rather than 8.75 percent, is the required rate
under NMSA 1978, Section 56-8-4(A)(2) (2004), which applies to judgments
awarding damages caused by tortious conduct.
DISCUSSION
1. 	The District Court Did Not Err in Adjudicating the North-South Boundary
Between the Parties’ Properties
{10} 	Defendants first argue that the district court “erred [in] determining the fact
issue concerning the boundary between [the] two properties instead of the jury
deciding the boundary issue.” Defendants’ presentation of the issue is both unclear
and 	confusing; 	the 	location 	of 	the 	boundary 	was 	common 	to 	Defendants’
counterclaims for trespass (a cause of action at common law for the jury to decide)
and to quiet title (a claim at equity to be decided by the district court, see NMSA
1978, § 42-6-9 (1907) (deeming actions to quiet title to be equitable in nature)). See
also Pankey v. Ortiz, 1921-NMSC-007, ¶¶ 38-43, 26 N.M. 575, 195 P. 906 (Roberts,
C.J., specially concurring) (noting that actions for ejectment at common law would
only decide the right to possession at a single point in time, while an action to quiet
title would conclusively determine the parties’ title to the land in question). Since the

6
only occasion for the jury (rather than the district court sitting in equity) to decide the
boundary issue was Defendants’ trespass counterclaims, the question is not whether
the district court erred in determining the boundary, but whether it erred in granting
a directed verdict on those claims (Defendants’ second issue on appeal). To the extent
that Defendants seek to raise a separate issue attacking the manner in which the
district court decided their counterclaim to quiet title (Defendants do not appeal or
otherwise dispute the district court’s decision on the merits of that claim), it is
insufficiently developed to warrant our review. See Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (observing that we do not
review unclear or undeveloped arguments that require us to guess at what parties’
arguments might be).
2. 	Defendants Cannot Demonstrate Error as to the District Court’s Directed
Verdict on Defendants’ Counterclaims for Trespass
{11} 	A directed verdict is proper when, “after considering all evidence in [the] light
most favorable to [the] non[-]moving party[,] . . . [the] evidence, as [a] matter of law
is insufficient to justify [a] verdict in [the non-moving] party’s favor[.]” Melnick v.
State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 10, 106 N.M. 726, 749 P.2d 1105
(citing J. Walden, Civil Procedure in New Mexico § 9c(2)(a), at 225 (1973)). In this
case, the district court entered a directed verdict on Defendants’ counterclaim for

7
trespass because it concluded there was no evidence that could support a finding of
actual damages in Defendants’ favor.
{12} 	Defendants suggest that even if there was insufficient evidence to put the
question of actual damages caused by Plaintiffs’ alleged trespass to the jury,
Defendants’ counterclaim for trespass should have been submitted to the jury for
consideration of an award of nominal damages. Thus, Defendants argue that proof of
actual damages is not a necessary element of a claim for trespass, and the district
court’s directed verdict was erroneous because it was based upon a contrary
conclusion. Indeed, nominal damages are available in actions for trespass. See
Atchison, T. & S.F. Ry. Co. v. Richter, 1915-NMSC-008, ¶ 36, 20 N.M. 278, 148 P.
478; see also Restatement (Second) of Torts § 163 cmt. d (1965) (“[E]ven a harmless
entry or remaining, if intentional, is a trespass.”). Put differently, proof of damage is
not an element of trespass; all that the plaintiff must show is that the defendant entered
the plaintiff’s land without authorization, remains on the land, or fails to remove from
the land a thing which the defendant has a duty to remove. See Restatement (Second)
of Torts § 158 (1965). It follows, then, that the district court erred in concluding that
Defendants’ 	failure 	to 	prove 	actual 	damages 	precluded 	submission 	of 	their
counterclaim for trespass to the jury.

8
{13} 	But Defendants’ trial strategy involved pursuing actual damages for damage
they alleged Plaintiffs had caused by installing a fence on their property, not an award
of nominal damages. Accordingly, Defendants failed to preserve this issue as a basis
for reversal on appeal. “To preserve a question for review it must appear that a ruling
or decision by the district court was fairly invoked, but formal exceptions are not
required, nor is it necessary to file a motion for a new trial to preserve questions for
review.” Rule 12-216(A) NMRA. “In analyzing preservation, [the appellate courts]
look to the arguments made by [the d]efendant below.” State v. Vandenberg, 2003-
NMSC-030, ¶ 52, 134 N.M. 566, 81 P.3d 19. “To preserve an issue for review on
appeal, it must appear that [the] appellants fairly invoked a ruling of the [district] court
on the same grounds argued in the appellate court.” Woolwine v. Furr’s, Inc., 1987-
NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.
The primary purposes for the preservation rule are: (1) to specifically
alert the district court to a claim of error so that any mistake can be
corrected at that time, (2) to allow the opposing party a fair opportunity
to respond to the claim of error and to show why the court should rule
against that claim, and (3) to create a record sufficient to allow this Court
to make an informed decision regarding the contested issue.
Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146
N.M. 853, 215 P.3d 791.
{14} 	Here, 	Defendants 	never 	sought 	nominal 	damages 	in 	their 	answer 	and
counterclaim; instead, Defendants’ counterclaim sought “the value of the damage”

9
caused by Plaintiffs’ alleged trespass only. At trial, Defendants opposed Plaintiffs’
motion for a directed verdict by arguing solely that Defendants had introduced
sufficient evidence of actual damages. Defendants did not request a nominal-damages
instruction, mention the availability of nominal damages in their response to
Plaintiffs’ motion for a directed verdict, or otherwise argue to the district court that
Defendants were not obliged to prove that they were damaged by Plaintiffs’ alleged
trespass. In these circumstances, we conclude that Defendants failed to specifically
alert the district court to the availability of nominal damages for trespass claims
below, a prerequisite to preserving a question of law for review in this Court.
Accordingly, we decline to reverse the district court’s dismissal of Defendants’
counterclaim for trespass on a ground Defendants advance for the first time on appeal.
See Woolwine, 1987-NMCA-133, ¶ 20.
{15} 	Next, Defendants argue that their submission into evidence of photographs
showing damaged vegetation furnished a basis for the jury to fix an award of damages,
rendering the district court’s directed verdict on Defendants’ counterclaim for trespass
erroneous. But the mere fact of damage is not enough to give rise to a question of fact
over the extent of actual damages that must be resolved by the jury; Defendants were
required to submit additional evidence that would allow the jury to fix the amount of
damages Defendants suffered as a result of the alleged trespass with enough certainty

10
to avoid speculation. See Mascarenas v. Jaramillo, 1991-NMSC-014, ¶ 22, 111 N.M.
410, 806 P.2d 59 (“Damages based on surmise, conjecture or speculation cannot be
sustained. Damages must be proved with reasonable certainty.”). Thus Defendants
were required to submit evidence that would allow the jury to fix an amount of
damage, such as the cost of restoring the vegetation damaged by Plaintiffs’ installation
of the fence, see UJI 13-1813 NMRA, or by producing evidence that Plaintiffs’
alleged trespass caused some diminution in the value of Defendants’ property, see UJI
13-1812 NMRA. Having failed to present any such evidence, it was not error for the
district court to conclude that the evidence was insufficient as a matter of law to
support a finding that Defendants had suffered damages as a result of Plaintiffs’
alleged trespass.
3. 	The District Court Did Not Err in Refusing Defendants’ Requested Jury
Instruction on Plaintiffs’ Trespass Claim
{16} 	“We review a district court’s refusal to give a proffered instruction de novo to
determine whether the instruction correctly stated the law and was supported by the
evidence presented at trial.” Silva v. Lovelace Health Sys., Inc., 2014-NMCA-086,
¶ 13, 331 P.3d 958. “A party is entitled to have the jury instructed on the party’s
theory if there is substantial evidence to support it.” Id. “Failure to submit requested
instructions to the jury constitutes reversible error, if the complaining party can show

11
that it was prejudiced by the trial court’s refusal to give the requested instruction.”
Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853.
{17} 	Defendants requested the following jury instruction, apparently modeled on the
text of Section 30-14-6:
The owner of real property in New Mexico shall post notices parallel to
and along the exterior boundaries of the property to be posted, at each
roadway or other access in conspicuous places, and if the property is not
fenced, such notices shall be posted every [500] feet along the exterior
boundaries of such land. If property is not fenced or notices posted
delineating boundary lines of property, willful trespass cannot be proved.
{18} 	Defendants argued to the district court that Section 30-14-6 imposed a duty on
landowners to post notices on the exterior boundaries of their property in order to
subject individuals to trespass liability for any entries thereon. Plaintiffs argued that
Defendants’ proffered instruction should not be given because Section 30-14-6 set out
a defense to charges of criminal trespass under Section 30-14-1, not civil liability for
trespass.
{19} 	The district court agreed with Plaintiffs that Defendants’ proffered instruction
was not a valid defense to liability for trespass at common law. However, the district
court concluded that the instruction was required because Plaintiffs sought double
damages against Defendants under Section 30-14-1(D). In response to the district
court’s interlocutory ruling, Plaintiffs voluntarily dismissed their claim for criminal
trespass, at which point the district court refused to submit Defendants’ proffered

12
instruction to the jury. Defendants argue on appeal that Section 30-14-6 “imposes a
civil duty on the part of landowners seeking criminal prosecution or civil damages for
trespass[,]” and as a result, civil liability for trespass may only be found for entries on
land that has been posted in compliance with Section 30-14-6.
{20} 	Whether Section 30-14-6 bars civil liability for trespass unless a landowner
complies with its posting requirements (and is thus available as a jury instruction in
a civil action for trespass) is a question of statutory construction that we review de
novo. See State v. Marshall, 2004-NMCA-104, ¶ 6, 136 N.M. 240, 96 P.3d 801. In
construing a statute, “[o]ur primary task in construing statutory language is to effect
legislative intent.” Benny v. Moberg Welding, 2007-NMCA-124, ¶ 5, 142 N.M. 501,
167 P.3d 949.
We start with the language [of the statute] itself, giving effect to its plain
meaning where appropriate while being careful not to be misled by
simplicity of language when the other portions of a statute call its
meaning into question, or the language of a section of an act conflicts
with an overall legislative purpose.
Id. (internal quotation marks and citation omitted). We also note that “when
determining the meaning of a statute, courts will often construe the language in light
of the preexisting common law.” Sims v. Sims, 1996-NMSC-078, ¶ 23, 122 N.M. 618,
930 P.2d 153. “This rule of construction is a recognition that any law is passed against
the background of all the law in effect at the time. If no aspect of the background of

13
law is clearly abrogated, it is presumed to be consistent with, if not incorporated into,
new legislation.” Id. ¶ 24.
{21} 	Section 30-14-6(A) states:
The owner, lessee or person lawfully in possession of real property
in New Mexico, except property owned 	by 	the 	state or federal
government, desiring to prevent trespass or entry onto the real property
shall post notices parallel to and along the exterior boundaries of the
property to be posted, at each roadway or other way of access in
conspicuous places, and if the property is not fenced, such notices shall
be posted every [500] feet along the exterior boundaries of such land.
The text of Section 30-14-6(A) does not suggest any limitation on an owner, lessee,
or other lawful possessor’s ability to pursue a common law claim for trespass; rather,
it speaks to what the owner, lessee, or other lawful possessor should do in order to
“prevent” trespass. We interpret the use of the word “prevent” in Section 30-14-6(A)
to indicate the Legislature’s intent to establish a standard by which the public may be
placed on direct notice that unauthorized entry upon posted land is disallowed and will
be subjected to legal consequences, not an intent to exempt from liability all
unauthorized entries onto private property that has not been posted.
{22} 	Considering Section 30-14-6 in light of neighboring provisions in the Criminal
Code supports our interpretation. Section 30-14-1 defines differing types of criminal
trespass, each of which is a misdemeanor. See § 30-14-1(E). For example, Subsection
A includes, with certain exceptions, “knowingly entering or remaining upon posted

14
private property without possessing written permission from the owner or person in
control of the land” as criminal trespass. Subsections B and C, respectively, prohibit
“knowingly entering or remaining upon the unposted lands of another knowing that
such consent to enter or remain is denied or withdrawn by the owner or occupant
thereof” and “knowingly entering or remaining upon lands owned, operated or
controlled by the state or any of its political subdivisions knowing that consent to
enter or remain is denied or withdrawn by the custodian thereof” as misdemeanor
criminal trespass. Lastly, Subsection D provides that “[a]ny person who enters upon
the lands of another without prior permission and injures, damages or destroys any
part of the realty or its improvements . . . is guilty of a misdemeanor, and he shall be
liable to the owner, lessee or person in lawful possession for civil damages in an
amount equal to double the value of the damage to the property injured or destroyed.”
{23} 	Reading these provisions as a whole, it is clear that Section 30-14-6 sets out a
standard by which a property may be deemed “posted” for the purposes of
determining whether a defendant may be found guilty for knowingly entering property
under Section 30-14-1(A) or if the elevated mens rea requirement in Section 30-14-
1(B) must be proven. Section 30-14-6 cannot be fairly read to change the common law
of trespass, which does not require posting of property in order for an unauthorized
entry to constitute a trespass. See Sims, 1996-NMSC-078, ¶¶ 23-24. Moreover,

15
Section 30-14-1(D), which imposes double civil liability on any person who “enters
upon the lands of another without prior permission and injures, damages or destroys
any part of the realty or its improvements,” makes no mention of whether the property
is posted or unposted. Viewed against these provisions, then, it is clear that Section
30-14-6 does not provide an affirmative defense to common law claims for trespass.
Accordingly, the district court correctly rejected Defendants’ proffered instruction.
4. 	Sufficient Evidence Supports the Jury’s Damage Award on Plaintiffs’
Trespass Claim
{24} 	“On appeal, a jury award will not be set aside as excessive, unless: [(1)] the
evidence, viewed in the light most favorable to the plaintiff, does not substantially
support the award; or [(2)] there is an indication that the jury was swayed by passion
or prejudice, or employed a mistaken measure of damages.” Wirth v. Commercial
Res., Inc., 1981-NMCA-057, ¶ 18, 96 N.M. 340, 630 P.2d 292. When we review an
award for substantial evidentiary support, “the question is not whether substantial
evidence exists to support the opposite result, but rather whether such evidence
supports the result reached.” Muncey v. Eyeglass World, LLC, 2012-NMCA-120, ¶ 21,
289 	P.3d 	1255 	(alteration, 	internal 	quotation 	marks, 	and 	citation 	omitted).
“Additionally, we will not reweigh the evidence nor substitute our judgment for that
of the fact[-]finder.” Id. (alteration, internal quotation marks, and citation omitted).

16
{25} 	Defendants argue that the jury’s damages award was not supported by
substantial evidence because the damage caused by flooding in 2010 occurred
upstream of the berms Lucero made on Plaintiffs’ property at Defendants’ direction.
We understand Defendants to be arguing that there was insufficient evidence at trial
for the jury to conclude that the flood damage was caused by Defendants’ earthwork.
But Plaintiffs presented expert testimony that Defendants’ earthwork increased the
likelihood of flood damage and likely brought about the erosion caused by the 2010
floods. Having failed to object to the admission of this testimony, Defendants’
argument boils down to a request that we reweigh the evidence presented to the jury,
something we are forbidden from doing under the applicable standard of review. See
N.M. Taxation & Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 23, 336 P.3d
436. Nor do Defendants offer any authority in support of their contention that the jury
was not permitted to award Plaintiffs damages for the cost of making improvements
to prevent future flood damage in addition to the cost of shoring up the foundation of
their driveway. “[W]here arguments in briefs are unsupported by cited authority, [we
assume that] counsel[,] after diligent search, was unable to find any supporting
authority.” In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d
1329. After reviewing the evidence in the trial record, we conclude the jury’s damages
award had a substantial evidentiary basis.

17
5. 	The District Court Did Not Abuse Its Discretion in Awarding Prejudgment
Interest to Plaintiffs
{26} 	Section 56-8-4(B) provides that a district court may award prejudgment interest
to the prevailing plaintiff in an amount of
up to [10] percent from the date the complaint is served upon the
defendant after considering, among other things:
(1) if the plaintiff was the cause of unreasonable delay in the adjudication of the
plaintiff’s claims; and
(2) if the defendant had previously made a reasonable and timely offer of
settlement to the plaintiff.
Prejudgment interest is available in actions in tort. Southard v. Fox, 1992-NMCA-
045, ¶¶ 1, 8, 113 N.M. 774, 833 P.2d 251. We review a district court’s award of
prejudgment interest for an abuse of discretion. Gonzales v. Surgidev Corp., 1995-
NMSC-036, ¶ 58, 120 N.M. 133, 899 P.2d 576.
{27} 	The district court awarded Plaintiffs prejudgment interest on the principal
amount of the judgment against Defendants at the rate of 8.75 percent per annum from
the date of the filing of the complaint to the date of the judgment against Defendants
for a total amount of $12,177.05. Defendants argue that the district court abused its
discretion in awarding prejudgment interest because Defendants had made reasonable
and timely settlement offers prior to trial. Plaintiffs argue that the district court

18
properly awarded Plaintiffs prejudgment interest because Defendants failed to make
a reasonable and timely settlement offer to Plaintiffs.
{28} 	It is difficult to evaluate Defendants’ argument because their brief in chief does
not identify the timing and amount of the settlement offers they purportedly made to
Plaintiffs, and the district court’s oral statement of its reasons for awarding
prejudgment interest is not part of the record. However, “where [the] record is unclear,
we presume regularity and correctness of the district court’s actions.” Murken v.
Solv-Ex Corp., 2006-NMCA-064, ¶ 27, 139 N.M. 625, 136 P.3d 1035. Defendants
argue that because the district court had evidence of a settlement offer by Defendants,
it was an abuse of discretion to grant prejudgment interest. But Section 56-8-4(B)
makes the existence of a settlement offer but one factor in the totality that is to be
considered by the district court in determining whether to award prejudgment interest,
and even then, only if the offer is “reasonable.” Defendants offer no argument as to
why their prejudgment settlement offers were reasonable. A conclusory statement that
the district court ought to have credited Defendants’ argument that their offers were
reasonable is not enough to overcome the presumption that the district court properly
found either that Defendants’ settlement offers were not reasonable or that other
factors counseled in favor of an award of prejudgment interest.
6. 	Defendants Failed to Preserve Their Argument That They Enjoyed a
Prescriptive Easement Over the Wash

19
{29} 	Defendants finally argue that they enjoyed an easement by prescription over the
portion of the wash that crossed Plaintiffs’ property that gave Defendants the right to
enter and perform work on the wash. But Defendants never argued the existence of
a prescriptive easement either as a counterclaim or a defense to Plaintiffs’ trespass
claim, and we do not address arguments raised for the first time on appeal. See
Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M.
691, 964 P.2d 855. We therefore decline to address the merits of Defendants’
argument.
7. 	The District Court Abused Its Discretion in Refusing to Award Post-
Judgment Interest at the Mandatory Rate Fixed by Section 56-8-4(A)(2)
{30} 	In their cross-appeal, Plaintiffs contend that the district court abused its
discretion when it fixed its award of post-judgment interest at 8.75 percent per annum
because Section 56-8-4(A)(2) requires district courts to impose post-judgment interest
at a rate of 15 percent for any judgment based on “tortious conduct,” and trespass is
a tort. Defendants respond that because there was no evidence that Defendants’
trespass was intentional, Section 56-8-4(A)(2) does not apply.
{31} 	Section 56-8-4(A)(2) provides that “[i]nterest shall be allowed on judgments
and decrees for the payment of money from entry and shall be calculated at the rate
of [8.75] percent per year, unless . . . the judgment is based on tortious conduct, bad

20
faith or intentional or willful acts, in which case interest shall be computed at the rate
of [15] percent.” “[A]n award of post[-]judgment interest is mandatory and is to be
computed at the statutory rate.” Sunwest Bank of Albuquerque, N.A. v. Colucci, 1994-
NMSC-027, ¶ 25 n.7, 117 N.M. 373, 872 P.2d 346. “We review the award of
post-judgment interest for abuse of discretion.” Sandoval v. Baker Hughes Oilfield
Operations, Inc., 2009-NMCA-095, ¶ 74, 146 N.M. 853, 215 P.3d 791. “A court can
abuse its discretion by misapprehending or misapplying the law.” Id.
{32} 	We agree with Plaintiffs that the district court abused its discretion by refusing
to award Plaintiffs post-judgment interest at 15 percent. In Sandoval, we considered
and rejected Defendants’ argument that Section 56-8-4(A)(2)’s 15 percent post-
judgment interest rate only applies to judgments based on intentional torts. See id.
¶¶ 73-78. There, we held that the plain meaning of Section 56-8-4(A)(2)’s use of the
word “tortious” made all judgments based on torts subject to a 15 percent post-
judgment interest rate—even negligence, which has no intent or recklessness
elements. Sandoval, 2009-NMCA-095, ¶ 78. Since trespass is a tort, see McNeill v.
Rice Engineering & Operating, Inc., 2010-NMSC-015, ¶ 9, 148 N.M. 16, 229 P.3d
489, it is subject to a 15 percent rate of post-judgment interest. We therefore reverse
the district court’s award of post-judgment interest and remand with instructions to
award Plaintiffs post-judgment interest at a rate of 15 percent per annum.

21
CONCLUSION
{33} 	We reverse the district court’s award of post-judgment interest to Plaintiffs and
remand this case with instructions to the district court that it impose an award of post-
judgment interest on the judgment against Defendants at a rate of 15 percent. The
district court’s judgment is affirmed in all other respects.
{34} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
______________________________
JONATHAN B. SUTIN, Judge
______________________________
M. MONICA ZAMORA, Judge