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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 KUCKELMAN PUMP SERVICE- 3 ACCULECTRIC, INC.,
4 Plaintiff-Appellee,
5 v. NO. 32,158 & 32,389 6 (Consolidated) 7 HACIENDA DEL CEREZO, LTD., and 8 STEPHEN KIRSCHENBAUM,
9 Defendants-Appellants.
10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 Barbara J. Vigil, District Judge
12 Felker, Ish, Ritchie & Geer, P.A. 13 Randolph B. Felker 14 Santa Fe, NM
15 for Appellee
16 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 17 Emil J. Kiehne 18 Albuquerque, NM
19 for Appellants
20 MEMORANDUM OPINION
21 VANZI, Judge. 1 {1} In this consolidated appeal, Hacienda del Cerezo, Ltd. (Hacienda) appeals the
2 district court’s orders (1) directing a verdict against Hacienda on its counterclaims; (2)
3 denying Hacienda’s motion to amend the scheduling order deadlines to add an expert
4 witness; (3) awarding Kuckelman Pump Service-Acculectric, Inc. (Kuckelman) its
5 attorney fees incurred in defending one of Hacienda’s motions to compel; (4)
6 awarding Kuckelman its attorney fees incurred in connection with the suit; and (5)
7 awarding Kuckelman prejudgment interest at an 18% annual rate. We affirm on the
8 first four issues and reverse and remand to the district court for a determination of the
9 proper amount of prejudgment interest to be awarded. We also grant Kuckelman’s
10 request for attorney fees incurred on appeal and remand to the district court for a
11 determination of the proper amount of fees to be awarded.
12 BACKGROUND
13 {2} Since the parties are familiar with the facts and proceedings and because this
14 is a memorandum opinion, we do not provide a detailed discussion of background
15 facts. In short, this matter began when Kuckelman brought a lien foreclosure and
16 breach of contract action against Hacienda to secure payment for work Kuckelman
17 had done on Hacienda’s water well and for which Hacienda refused to pay. In its
18 answer, Hacienda asserted various counterclaims against Kuckelman for violations of
19 the Unfair Trade Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as
20 amended through 2009), fraud, and unjust enrichment related to misrepresentations
2 1 Kuckelman made regarding the value of copper wire and galvanized pipe salvaged
2 from the well. Hacienda also asserted, as part of the general allegations in its
3 counterclaims, that work Steve Kuckelman (Mr. Kuckelman) had done on Hacienda’s
4 well fourteen years earlier in 1995, as well as the work Kuckelman did in 2009, was
5 negligently performed.
6 {3} Approximately two weeks before the scheduled trial date, Hacienda’s previous
7 counsel moved to withdraw. The district court granted the motion and reset the trial
8 and pretrial conference dates but ordered that all other deadlines in the scheduling
9 order were to remain unchanged. Hacienda subsequently moved to amend the
10 deadlines contained in the new scheduling order. The district court denied Hacienda’s
11 motion. The case ultimately went to trial. At the end of the presentation of evidence,
12 Kuckelman moved for and the district court granted a directed verdict against
13 Hacienda on all of its counterclaims. The jury returned a verdict for Kuckelman in the
14 entire amount it had requested on the underlying lien foreclosure claim. After trial, the
15 district court awarded Kuckelman its attorney fees and costs, pursuant to the lien
16 foreclosure statute, NMSA 1978, § 48-2-14 (2007), as well as 18% prejudgment
17 interest pursuant to NMSA 1978, § 56-8-4(A)(1) (2004), pursuant to the terms of the
18 invoice Kuckelman had sent to Hacienda for the work performed. Hacienda timely
19 appealed the district court’s at-issue orders in two separate appeals, and we
3 1 consolidated. We address each of Hacienda’s contentions in turn. Additional facts are
2 included as pertinent to our discussion of the parties’ arguments.
3 DISCUSSION1
4 Directed Verdicts
5 Standard of Review
6 {4} We review de novo the district court’s decision on a motion for a directed
7 verdict. McNeill v. Rice Eng’g & Operating, Inc., 2003-NMCA-078, ¶ 31, 133 N.M.
8 804, 70 P.3d 794. “We will uphold a district court’s grant of directed verdict only if
9 it is clear that the facts and inferences are so strongly and overwhelmingly in favor of
10 the moving party that the judge believes that reasonable people could not arrive at a
11 contrary result.” Richter v. Presbyterian Healthcare Servs., 2013-NMCA-___, ¶ 57,
1 13 As an initial matter, we note that neither Hacienda’s brief in chief nor its reply 14 brief fully complies with Rule 12-213 or 12-305 NMRA. First, the body of the briefs 15 are not double-spaced. Moreover, the briefs rely on the extensive use of footnotes, 16 including for all record cites, case citations, and parenthetical explanations of case 17 law, all of which are single-spaced. Citational footnotes make for a disjointed and 18 frustrating reading experience and can be used to avoid complying with the Rules of 19 Appellate Procedure. Counsel for Hacienda is instructed to avoid their extensive usage 20 and to double-space its briefs in the future. See Schmidt v. St. Joseph’s Hosp., 1987- 21 NMCA-046, ¶ 15, 105 N.M. 681, 736 P.2d 135 (noting that extensive use of footnotes 22 is contrary to the spirit of our rules and should be discouraged). Counsel is also 23 reminded that the rules promote this Court’s efficient and timely resolution of issues 24 on appeal and that failure to comply with them may have serious consequences for the 25 parties. See Rule 12-312(D) NMRA (stating that an appellate court may take such 26 action as it deems appropriate in response to failure to comply with the rules or any 27 order of the court).
4 1 ___ P.3d ___ (Nos. 30,926, 31,004, Nov. 4, 2013) (internal quotation marks and
2 citation omitted). “However, it is fundamental that evidence must be adduced to
3 support all issues of fact essential to the maintenance of an enforceable claim.” In re
4 Estate of Kimble, 1994-NMCA-028, ¶ 8, 117 N.M. 258, 871 P.2d 22 (citation
5 omitted). “In reviewing whether a directed verdict was appropriate, we consider all
6 evidence that has been properly admitted at trial, as well as all reasonable inferences
7 deducible therefrom, resolving any conflicts or contradictions in the evidence in a
8 light most favorable to the party resisting the motion.” McNeill, 2003-NMCA-078, ¶
9 31. “[T]he question is not whether literally no evidence exists to support the party
10 against whom the motion is made, but whether evidence exists upon which a jury
11 properly could return a verdict for that party.” Melnick v. State Farm Mut. Auto. Ins.
12 Co., 1988-NMSC-012, ¶ 12, 106 N.M. 726, 749 P.2d 1105.
13 {5} The district court entered a directed verdict on all of Hacienda’s counterclaims,
14 for violations of the UPA, fraud, and negligence. We address the district court’s ruling
15 as to each of these counts.
16 UPA Claim
17 {6} In directing a verdict against Hacienda on its UPA counterclaim, the district
18 court found that Hacienda “did not suffer any damages whatsoever with respect to any
19 sort of practice that Mr. Kuckelman engaged in with respect to the salvaging of the
20 wire or the pipe.” “[T]here are three essential elements to a UPA claim. This includes:
5 1 (1) the defendant made an oral or written statement, a visual description or a
2 representation of any kind that was either false or misleading; (2) the false or
3 misleading representation was knowingly made in connection with the sale, lease,
4 rental, or loan of goods or services in the regular course of the defendant’s business;
5 and (3) the representation was of the type that may, tends to, or does deceive or
6 mislead any person.” Hicks v. Eller, 2012-NMCA-061, ¶ 18, 280 P.3d 304 (internal
7 quotation marks and citations omitted), cert. denied, 2012-NMCERT-005, 294 P.3d
8 445. “The ‘knowingly made’ requirement is met if a party was actually aware that the
9 statement was false or misleading when made, or in the exercise of reasonable
10 diligence should have been aware that the statement was false or misleading.”
11 Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, ¶ 17, 112 N.M. 97, 811 P.2d
12 1308. “[T]he UPA does not require proof of actual monetary or property loss.”
13 Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 44, 142 N.M. 437, 166 P.3d
14 1091.
15 {7} Hacienda does not contest that it was paid for the copper wire or that it can
16 retrieve the pipe from Kuckelman’s business premises. Therefore, we do not consider
17 Hacienda’s argument that it suffered any actual damages. Hacienda also contends,
18 however, that there was sufficient evidence at trial to warrant a UPA claim for
19 nominal damages on the issue of the value of the wire and pipe, as well as regarding
20 the warranty of the pump. On appeal, Hacienda claims the following evidence
6 1 supports a finding that Kuckelman acted knowingly: (1) “Kuckelman frequently dealt
2 in copper wire and pipe;” (2) “former employees testified that Kuckelman frequently
3 sold copper wire and pipe taken from other customers’ properties;” (3) “[Mr.]
4 Kuckelman repeatedly represented that the copper wire and pipe were worthless, when
5 they were not;” (4) “Kuckelman promised to deliver Hacienda’s wire and pipe to the
6 salvage yard, but then refused to deliver the pipe or return it;” (5) “Kuckelman had
7 already instructed its truck driver to take the materials to the salvage yard before
8 knowing that Hacienda intended to sell them;” and (6) “Kuckelman’s co-owner[,
9 Angie Gallegos,] did not deny the scam, but taunted Hacienda that it could not be
10 proven.” Hacienda also claims that Kuckelman promised to provide a five-year
11 warranty for the motor, but failed to do so. Based on this evidence, we address
12 whether a reasonable jury could have found that Kuckelman knowingly made false or
13 misleading representations regarding the worth of the copper wire and pipe.
14 {8} First, although Hacienda contends that Kuckelman “frequently dealt in copper
15 wire and pipe[,]” this fact alone would not lead a jury to find that Kuckelman
16 knowingly misrepresented the value of these materials.
17 {9} Next, although Hacienda claims that “[a] former Kuckelman employee testified
18 that it was Kuckelman’s practice to charge its clients a fee to transport copper wire
19 and pipe away, and then sell it for its own account[,]” Hacienda takes the evidence out
20 of context to create an inference that cannot reasonably be drawn.
7 1 {10} The actual testimony Hacienda cites to for support, from Kuckelman’s former
2 employee, Mr. Narvaez, is as follows:
3 Q. Did you have a discussion of any sort with Mr. Kirschenbaum 4 regarding the wire that was removed from the well?
5 A. Yes. At the end of the job, naturally we clean up the job site area, 6 and we suggested that he keep his wire and/or we would have to charge 7 him for it and haul it away.
8 Q. Why did you suggest he keep his wire?
9 A. For some people it’s salvage. Other people just have us haul it 10 away. So basically it was up to him whether he wanted to save it for 11 something or not.
12 ...
13 Q. In your experience, what normally happens to the wire that’s taken 14 off the site?
15 A. We take it back to our yard and basically we dispose of it into half 16 a pickup truck bed. All our wire would accumulate in that one bed. At 17 the end of a month, or whatever it is, when it would accumulate[,] we’d 18 get to the scrap yard, they would take it and recycle it.
19 Q. Would Kuckelman be paid for the salvage of that wire?
20 A. I’m sure he was.
21 Q. Would he charge customers for removing wire from their 22 property?
23 A. Yeah. We charged them a removal fee of all materials, pressure 24 tanks.
8 1 Although Hacienda’s argument paints a nefarious picture regarding Kuckelman’s
2 business practices, the actual testimony provides only that Kuckleman would charge
3 a removal fee and that its practice was to leave the decision regarding disposal of used
4 materials to the customer. In other words, the customer—in this case
5 Hacienda—would decide what it wanted to do with the salvage materials from the job
6 site, and Kuckelman would haul the materials away if a customer did not want to keep
7 them. Mr. Narvaez’s testimony reinforces Mr. Kirschenbaum’s own statement that the
8 Kuckelman employee working on Hacienda’s well asked Mr. Kirschenbaum what he
9 wanted to do with the salvage materials. This evidence undercuts any inference that
10 Kuckelman’s practice was to take wire and pipe without permission and sell the
11 materials for its own benefit, or that it did so in this case. Moreover, we conclude that
12 Mr. Narvaez’s testimony that Kuckelman sold its customers’ salvage materials for
13 profit was purely speculative, particularly since he provided no testimony as to how
14 much money Kuckelman would receive for these materials or whether Kuckelman in
15 fact kept that money. Mr. Narvaez’s testimony therefore does not support that
16 Kuckelman knew, much less understated, the value of its customers’ scrap materials.
17 {11} We note also that Mr. Kuckelman testified that when unwanted material, such
18 as wire or pipe, is taken from a site, the wire is put in a trailer and occasionally
19 scrappers come pick it up and pay “a few hundred dollars” for all of it and that the
20 pipe is generally put in a pile because of its low value. This undisputed testimony
9 1 further forecloses Hacienda’s inference that Kuckelman knew the value of the quantity
2 and type of materials specifically taken from Hacienda’s well as it appears Kuckelman
3 did not generally distinguish the quantity or type of materials it salvaged from its other
4 customers or how much money it actually received for each customer’s salvage
5 materials.
6 {12} Next, Hacienda claims that Kuckelman “told Hacienda that the copper wire and
7 pipe were worthless, [when] they were actually worth $2,000 and $660 respectively.”
8 To violate the UPA, a misrepresentation of this nature would only occur if Kuckelman
9 knew or should have known at the time he made the statements that the materials were
10 worth something. See Stevenson, 1991-NMSC-051, ¶ 15 (noting that
11 misrepresentation must be knowingly made for purposes of establishing UPA
12 violation). This assertion—that the copper wire and pipe were worthless—by itself,
13 does nothing to further Hacienda’s argument that Kuckelman knew of the materials’
14 value.
15 {13} Moreover, on the issue of knowledge, Kuckelman’s expert, Mr. Vail, who owns
16 a well service company, testified that he had never consulted with a salvage company
17 about the value of copper wire removed from a well and that he was surprised to find
18 out that the wire removed from Hacienda’s well was worth over $2000, given the type
19 of wire it was. This testimony belies any inference that the value of salvage materials
20 was a matter of common knowledge in the well industry such that Kuckelman should
10 1 have known its value, or that other professionals in the industry had a practice of
2 consulting with salvage companies to determine the value of discarded wire and pipe.
3 Further, Mr. Vail testified that even if he had information regarding the value of
4 copper wire, he would still not be asking his well service company to salvage copper
5 wire from job sites. Mr. Vail testified that he still thinks the wire is “worthless”
6 because the time and effort involved is not worth what he would get from salvage at
7 the current rates. The evidence was also undisputed that the pipe from Hacienda’s well
8 was heavily corroded and could not be painted and that because it was galvanized, it
9 could not be welded without giving off toxic fumes. This evidence fails to suggest,
10 much less establish, that Kuckelman knew or should have known the value of the wire
11 and pipe taken from Hacienda’s well, particularly in its current condition.
12 {14} Next, Hacienda alleges that “Kuckelman agreed to take Hacienda’s pipe to a
13 salvage yard, but failed to do so, and then refused to return the pipe to Hacienda or
14 deliver it to the salvage yard.” We note that Hacienda does not dispute that
15 Kuckelman took the copper wire to a local salvage yard and that Hacienda was paid
16 directly for it. In addition, the uncontested evidence established that Kuckelman took
17 the pipe back to its business premises, where it remained at least until trial, and that
18 Kuckelman offered to arrange for the pipe to be picked up and delivered to Hacienda.
19 In light of this evidence, Hacienda’s only complaint can be that Kuckelman did not
20 deliver the pipe to the scrap yard or bring it back to Hacienda. However, Hacienda
11 1 does not cite to authority that imposes on Kuckelman any duty to deliver the pipe, and
2 we decline to conclude that it was required to do so or that any such failure resulted
3 in a violation of the UPA.
4 {15} Hacienda also alleges that, “although Hacienda told Kuckelman not to take the
5 materials, they were loaded on Kuckelman’s truck the next day, and Kuckelman had
6 instructed its driver to take the wire and pipe to Capital Salvage, apparently knowing
7 that Kuckelman would be able to sell it and keep the profits.” Hacienda further
8 contends that this occurred before Kuckelman knew that Hacienda intended to sell the
9 materials itself. However, Hacienda cites to nothing in the record that suggests that
10 Kuckelman loaded the wire and pipe onto its truck “knowing” that it “would be able
11 to sell it and keep the profits,” or that it did so before it knew Hacienda wanted to sell
12 the materials. To the contrary, the evidence supports an inference that Kuckelman
13 loaded the wire and pipe onto its truck to deliver it to the salvage company at
14 Hacienda’s request the day Hacienda made clear that it wanted to sell the materials for
15 salvage. Specifically, Kuckelman’s principal testified that the day Hacienda informed
16 Kuckelman that it intended to sell the copper wire and pipe, Kuckelman instructed its
17 driver to load the materials onto Kuckelman’s truck and take them to the salvage yard.
18 There is no dispute that Kuckleman’s driver took the coil of wire to the salvage yard
19 and that Hacienda was paid for the wire. The evidence in this instance does not
12 1 support Hacienda’s contention that there was sufficient evidence on its UPA claim to
2 submit to the jury.
3 {16} Next, Hacienda contends that when its principal, Mr. Kirschenbaum,
4 “confronted a co-owner of Kuckelman, Angie Gallegos, about the attempt to defraud
5 him, she did not deny it, but brazenly asserted that he would never be able to prove
6 what Kuckelman had done.” Hacienda also claims that “Gallegos denied telling
7 Hacienda that they would never be able to prove the fraud.” As an initial matter, we
8 note that this latter characterization misrepresents the record. Counsel never asked
9 Gallegos at trial whether she made the comment, nor did she independently disclaim
10 making it. Further, even assuming Gallegos made this comment, in light of the other
11 evidence presented at trial, the comment does not, standing alone, form a sufficient
12 basis upon which Hacienda could demonstrate that a reasonable jury could find in its
13 favor. See Melnick, 1988-NMSC-012, ¶ 12 (noting that the salient question in a
14 directed verdict determination “is not whether literally no evidence exists to support
15 the party against whom the motion is made, but whether evidence exists upon which
16 a jury properly could return a verdict for that party”).
17 {17} Finally, Hacienda asserts that “Kuckelman also promised to provide a 5-year
18 warranty for the motor, but provided instead a vague, self-contradictory warranty that
19 is no more than an invitation to a lawsuit.” However, evidence on whether Kuckelman
20 failed to provide the warranty was presented to the jury, Hacienda argued the issue of
13 1 the warranty in closing, and an instruction on the warranty was submitted to the jury
2 as a defense to Kuckelman’s breach of contract claim. Because the jury awarded
3 Kuckelman all of its requested damages on the breach of contract claim, it rejected
4 Hacienda’s warranty defense. We have no reason to believe that the jury would view
5 the same evidence any differently if it were presented in the guise of a counterclaim.
6 If there was any error related to the warranty claim, it was harmless. We conclude that
7 the district court did not err in directing a verdict on Hacienda’s UPA claim.
8 Fraud
9 {18} Hacienda also contends the district court erred in granting a directed verdict on
10 its fraud counterclaim. The district court ruled in favor of Kuckelman on the fraud
11 counterclaim because it found that Hacienda had not presented sufficient evidence to
12 meet the clear and convincing standard of proof. The district court also found that,
13 because Hacienda received payment for the wire that was taken to salvage and that
14 Kuckelman offered to return the pipe it still has, there was not sufficient evidence to
15 establish actual damages for any alleged fraud. Lastly, the district court found that
16 there was no evidence of willfulness, wantonness, or intention on the part of
17 Kuckelman and that, therefore, the claim for punitive damages stemming from the
18 alleged fraud was to be dismissed. “A successful fraud claim must prove a
19 misrepresentation of fact, known by the maker to be untrue, made with the intent to
20 deceive and to induce the other party to act upon it, and upon which the other party
14 1 relies to his detriment.” Golden Cone Concepts, Inc. v. Villa Linda Mall, Ltd., 1991-
2 NMSC-097, ¶ 15, 113 N.M. 9, 820 P.2d 1323. Each element of fraud must be shown
3 by clear and convincing evidence. Id. We recognize that nominal damages can support
4 a fraud claim. See Garcia v. Coffman, 1997-NMCA-092, ¶ 36, 124 N.M. 12, 946 P.2d
5 216.
6 {19} To support its contention that the district court erred in directing a verdict on
7 its fraud counterclaim, Hacienda cites to the same evidence as it does for its UPA
8 claim. We are not persuaded. First, because Hacienda was paid for the copper wire
9 and has always been able to pick up the pipe and collect its salvage value, we note that
10 Hacienda did not even incur nominal damages. Further, in light of our conclusion
11 regarding Hacienda’s UPA claim and because a fraud claim carries an additional legal
12 element and a higher burden of proof than a UPA claim, the evidence to which
13 Hacienda has cited could not lead a reasonable jury here to conclude that Kuckelman
14 committed fraud. There also was not sufficient evidence presented to establish that
15 Kuckelman acted willfully, wantonly, or intentionally, when, as we concluded above,
16 there was not even sufficient evidence to demonstrate it acted knowingly. The district
17 court did not err in granting a directed verdict on Hacienda’s fraud counterclaim.
18 Negligence
19 {20} Hacienda further argues that the district court erred when it directed a verdict
20 on any counterclaim stemming from the work Kuckelman did for Hacienda in 1995
15 1 and that the district court erred insofar as its ruling encompassed any negligence
2 counterclaim related to the work performed in 2009. “A negligence claim requires the
3 existence of a duty from a defendant to a plaintiff, breach of that duty, which is
4 typically based upon a standard of reasonable care, and the breach being a proximate
5 cause and cause in fact of the plaintiff’s damages.” Spencer v. Health Force, Inc.,
6 2005-NMSC-002, ¶ 18, 137 N.M. 64, 107 P.3d 504 (alteration, internal quotation
7 marks, and citation omitted).
8 {21} At the outset, we note that both parties have raised arguments regarding
9 whether or not the 1995 negligence counterclaim was viable, and whether the issue
10 had been properly preserved. We need not address these technical arguments because,
11 even if we assume that the negligence counterclaim was properly brought by the
12 correct party within the applicable limitations period, there is still not sufficient
13 evidence such that a reasonable jury could have found in favor of Hacienda.
14 {22} Hacienda argues that the following evidence supports its 1995 negligence
15 counterclaim: (1) the pump and motor were installed without cable guards/spiders, a
16 torque arrestor, or a safety line; (2) Mr. Narvaez testified that Kuckelman has used
17 torque arrestors on other wells; (3) there was a plastic bottle on the bottom of the
18 pump when it was pulled from the well in 2009, which Hacienda claims was used as
19 a makeshift torque arrestor, and that although Kuckelman testified he did not place it
20 there, the jury could have inferred otherwise; (4) because Kuckelman installed a
16 1 torque arrestor in 2009, it was “implicitly conceding that [torque arrestors] are
2 necessary”; (5) Mr. Narvaez testified that an improper kind of tape was used to secure
3 the copper wire running down the pipe; (6) because Mr. Vail conceded that spiders are
4 sometimes useful to secure wire in a completely different kind of well pump system,
5 the jury could infer that they were necessary in Hacienda’s well, even though Mr. Vail
6 specifically testified that Hacienda’s well would not warrant the use of spiders; and
7 (7) the pump manufacturer recommends the use of a safety line.
8 {23} This evidence does not establish that a reasonable jury could have found in
9 Hacienda’s favor in relation to any negligence claims stemming from the 1995 work.
10 Kuckelman’s expert testified that all of the 1995 work on the well was conducted
11 professionally and in accordance with the customs and standards in Santa Fe at the
12 time. That testimony was undisputed at trial. The uncontroverted testimony also
13 established that the average life of a well in New Mexico is ten years, and the fact that
14 the well lasted fourteen years before it needed to be repaired alone could preclude a
15 reasonable jury from finding that the 1995 work was negligently performed. The only
16 evidence Hacienda cites to rebut this evidence is Mr. Kirschenbaum’s testimony in
17 which he stated that wells at two of his homes in New York have lasted longer than
18 fourteen years. A lay person’s personal observation about wells at his personal
19 residences in New York is not the type of evidence that would lead a reasonable jury
20 to find that a well pump installed in a ten-suite luxury hotel in New Mexico was
17 1 negligently installed. Furthermore, without any evidence to support that the use of a
2 torque arrestor, spiders, or a security line would have extended the service life of the
3 well, Hacienda’s assertions regarding causation are mere conjecture. Indeed, both Mr.
4 Kuckelman and Mr. Vail testified that torque arrestors, centering devices, and safety
5 lines are unnecessary and not helpful for the kind of well at Hacienda. Simply put,
6 there was no evidence that any defective work or materials from work performed in
7 1995 caused the well or equipment to malfunction or prematurely fail. The district
8 court did not err in directing a verdict against Hacienda for any work Kuckelman
9 performed in 1995. See Melnick, 1988-NMSC-012, ¶ 11 (“If the evidence fails to
10 present or support an issue essential to the legal sufficiency of a . . . claim, the right
11 to a jury trial disappears.”).
12 {24} Hacienda further contends that, “[o]n the separate negligence counterclaim
13 related to the 2009 pump installation, the only claim Hacienda is raising on appeal is
14 that a directed verdict should not have been granted on Hacienda’s claim that
15 Kuckelman improperly removed and damaged the [copper wire].” However, at trial,
16 Hacienda specifically raised the quality of the work performed in 2009 as one of its
17 defenses to Kuckelman’s breach of contract claim. Indeed, the jury was instructed on
18 Hacienda’s defense that Kuckelman’s 2009 “work was deficient, thereby excusing
19 payment.” The jury was further instructed that “[t]o establish that [Kuckelman’s] work
18 1 was deficient, [Hacienda] has the burden of proving that Kuckelman . . . materially
2 failed to properly install the replacement pump, wire, pipe, or other materials.”
3 {25} Hacienda argues that, although this instruction allowed the jury to consider
4 whether the replacement materials were properly installed, it did not allow the jury to
5 consider Hacienda’s claim that the previously-existing copper wire was improperly
6 removed. This argument hinges on a meaningless distinction. The evidence at trial
7 established that the wire installed in 1995 was “either abraded over time, or when it
8 was installed, or possibly when it was removed[.]” The jury still found for
9 Kuckelman. To the extent the district court directed a verdict on any alleged
10 negligence related to the 2009 work, that ruling was not in error.
11 District Court’s Order Denying Motion to Amend Scheduling Order Deadlines
12 {26} Hacienda argues that the district court erred when it did not permit modification
13 of the scheduling order so that Hacienda could designate an expert witness after the
14 original deadline. Rule 1-016(B) NMRA states that a “scheduling order shall not be
15 modified except by order of the court upon a showing of good cause.” “We will not
16 interfere with the [district] court’s enforcement of pretrial deadlines. Adherence to
17 such scheduling orders [is] critical in maintaining the integrity of judicial
18 proceedings.” Reaves v. Bergsrud, 1999-NMCA-075, ¶ 28, 127 N.M. 446, 982 P.2d
19 497 (alteration, internal quotation marks, and citation omitted). We review the district
20 court’s order denying Hacienda’s motion to amend the deadlines in the scheduling
19 1 order for abuse of discretion. See id. ¶ 13. “An abuse of discretion occurs when the
2 [district] court’s ruling is against the facts, logic, and circumstances of the case or is
3 untenable or unjustified by reason.” Id.
4 {27} We cannot say that the district court abused its discretion when it refused to
5 amend the scheduling order deadlines to allow Hacienda to designate an expert
6 witness. Hacienda filed its motion approximately fourteen months after it filed its
7 counterclaims, nine months after the expert disclosure deadline established in the
8 scheduling order, three months after the close of discovery, and two months after the
9 original trial date. “[District] courts have inherent power to manage their own affairs
10 so as to achieve the orderly and expeditious disposition of cases.” Miller v. City of
11 Albuquerque, 1975-NMCA-099, ¶ 32, 88 N.M. 324, 540 P.2d 254. The district court’s
12 inherent power “embraces the ability of a court to control its docket and the
13 proceedings before it[,]” In re Jade G., 2001-NMCA-058, ¶ 27, 130 N.M. 687, 30
14 P.3d 376, and “to supervise and control the movement of all cases on its docket from
15 the time of filing through final disposition[.]” State v. Ahasteen, 1998-NMCA-158,
16 ¶ 28, 126 N.M. 238, 968 P.2d 328 (internal quotation marks and citation omitted),
17 abrogated on other grounds by State v. Savedra, 2010-NMSC-025, 148 N.M. 301,
18 236 P.3d 20.
19 {28} Here, the scheduling order’s expert witness deadline required identification of
20 defense expert witnesses, together with the expert’s CV, a summary of the expert’s
20 1 opinions, and any written reports prepared by the expert by a date certain. Hacienda’s
2 motion to amend the scheduling order only argued that, given the new trial date the
3 district court had set, there was sufficient time for Hacienda to designate an expert and
4 that it should be permitted to do so “should [it] choose[.]” Hacienda never identified
5 any expert witness it intended to call and concedes it had not actually retained an
6 expert witness by the time the district court heard its motion. Further, from the
7 beginning of this case, or at the very least from the time it deposed Kuckelman’s
8 expert, Hacienda should have known—and in fact did know—that it needed to have
9 an expert testify on its behalf to support the allegations in its counterclaim and to rebut
10 the testimony of Kuckelman’s expert. See Reaves, 1999-NMCA-075, ¶ 27 (stating that
11 when the need for an expert was of no surprise to a party, there was no resulting
12 unfairness to it).
13 {29} We are not persuaded by Hacienda’s suggestion that its former counsel
14 negligently failed to timely disclose an expert witness and, therefore, “good cause”
15 existed to allow amendment of the scheduling order. As Hacienda concedes, our
16 courts have not yet defined “good cause” within the context of amending the
17 scheduling order deadlines pursuant to Rule 1-016. However, its reliance on
18 DeFillippo v. Neil, 2002-NMCA-085, 132 N.M. 529, 51 P.3d 1183, is unavailing.
19 DeFillippo discussed “good cause” within the context of whether a defendant’s
20 excuses for failing to answer a complaint justified a district court’s decision to set
21 1 aside an entry for default judgment. Id. ¶¶ 27-29. Although, in DeFillippo, we held
2 that the district court “often should set aside an entry of default that is a result of a
3 party’s negligence[,]” id. ¶ 28, we decline to apply the rationale of that case here. To
4 do so would essentially require that district courts be compelled to disregard the
5 scheduling deadlines they set whenever a party claims its previous counsel has been
6 negligent. Consequently, we hold that the district court did not abuse its discretion
7 when it did not amend the scheduling order to allow Hacienda to designate an expert
8 witness.
9 District Court’s Order Granting Kuckelman Its Attorney Fees Incurred in 10 Connection With Defending Hacienda’s Motion to Compel
11 {30} Hacienda argues that the district court erred in awarding Kuckelman its attorney
12 fees incurred in connection with defending Hacienda’s motion to compel and
13 subsequent motion for reconsideration. We review a district court’s decision to award
14 discovery sanctions for an abuse of discretion. See Lewis ex rel. Lewis v. Samson,
15 2001-NMSC-035, ¶ 13, 131 N.M. 317, 35 P.3d 972. We also review a district court’s
16 award of attorney fees for abuse of discretion. Rio Grande Sun v. Jemez Mountains
17 Pub. Sch. Dist., 2012-NMCA-091, ¶ 10, 287 P.3d 318, cert. denied, 2012-NMCERT-
18 008, 296 P.3d 490.
19 {31} “The only exceptions to a mandatory award of expenses for failure to comply
20 with a discovery order occur when the failure to comply was substantially justified or
22 1 if other circumstances make an award of expenses unjust.” Marchman v. NCNB Tex.
2 Nat’l Bank, 1995-NMSC-041, ¶ 54, 120 N.M. 74, 898 P.2d 709 (internal quotation
3 marks and citation omitted); Rule 1-037(A)(4) NMRA (“If [a motion to compel] is
4 denied, the court shall, after opportunity for hearing, require the moving party or the
5 attorney advising the moving party or both of them to pay to the party or deponent
6 who opposed the motion the reasonable expenses incurred in opposing the motion,
7 including attorney’s fees, unless the court finds that the making of the motion was
8 substantially justified or that other circumstances make an award of expenses
9 unjust.”). “An individual’s discovery conduct may be considered substantially
10 justified . . . if it is a response to a genuine dispute, or if reasonable people could differ
11 as to the appropriateness of the contested action.” Marchman, 1995-NMSC-041, ¶ 54
12 (alteration, internal quotation marks, and citation omitted).
13 {32} Hacienda argues that its discovery conduct was substantially justified because,
14 in seeking information regarding Kuckelman’s past jobs, Hacienda was “asking to
15 look at a source of information reasonably calculated to lead to the discovery of
16 admissible evidence.” The discovery at issue was a twenty-one part interrogatory
17 seeking information about all of Kuckelman’s jobs over a five-year period. Hacienda
18 asserts this interrogatory sought information related to its fraud counterclaim because
19 “if Kuckelman had given [credits for salvage value], or if Kuckelman’s files showed
20 profits from the sale of copper wire, this would have supported Hacienda’s claim that
23 1 Kuckelman willfully attempted to defraud them by stating that the copper wire and
2 pipe were worthless.”
3 {33} Kuckelman objected to the interrogatory and, in response to a motion to
4 compel, provided evidence that answering the interrogatory would require
5 Kuckelman’s office to review approximately seven thousand separate previous jobs
6 and projects and compile and organize data from each of those files to answer the
7 subparts, and that this endeavor would likely take approximately four hundred hours
8 or more to review, a task for which Kuckelman did not have the staff or resources. In
9 addition, Kuckelman presented evidence that, if it were to review all the files or
10 compile the information and pay its attorneys to provide the requested information,
11 the cost of doing so would be at least double or triple the amount in controversy.
12 {34} Based on this evidence, the district court ruled that (1) the interrogatory was
13 burdensome, oppressive, and not designed to seek relevant or admissible information,
14 (2) Kuckelman did not have adequate office staff to comply, (3) Kuckelman timely
15 and properly objected to the interrogatory, (4) Kuckelman’s objection was not general
16 or boilerplate, and (5) the objection was supported by credible and admissible
17 evidence establishing the burdensome and oppressive nature of the interrogatory. The
18 district court also denied Hacienda’s motion to reconsider its ruling.
19 {35} On appeal, Hacienda points to the fact that, during the hearing on its motion,
20 its attorney stated that a business records production would be acceptable in lieu of
24 1 receiving an answer to the interrogatory. However, Hacienda never formally sought
2 to narrow the scope of the discovery it requested by issuing an amended interrogatory,
3 for example, to request specific information about Kuckelman’s credits for salvage
4 materials, to limit the request to jobs similar to the Hacienda project or to jobs in the
5 general area with deep wells such as Hacienda’s to the gauge or length of Hacienda’s
6 wire, or to what was quoted or received by Kuckelman for salvaging pipe or wire.
7 {36} We are not persuaded by Hacienda’s unfounded assertion that if the discovery
8 requested was unduly burdensome, it was only because Kuckelman had “chosen to use
9 a 19th-Century form of record-keeping,” and that this cumbersome practice should not
10 excuse Kuckelman from answering discovery. In light of the evidence presented
11 below regarding the resources that the requested discovery would have drained in
12 relation to the facts and amount in controversy of this dispute, we do not agree that the
13 district court abused its discretion when it found that the discovery Hacienda sought
14 was not substantially justified. We affirm the district court’s award of attorney fees
15 on the motion to compel.
16 District Court’s Order Granting Kuckelman Its Attorney Fees
17 {37} Hacienda further contends that the district court erred in awarding Kuckelman
18 its attorney fees incurred in connection with the suit. To this end, the district court
19 found that “[t]he attorney[] fees and calculations set forth in [Kuckelman’s] attorneys’
20 Affidavit filed on 3/30/2012, were reasonable in amounts, time and charges, and were
25 1 reasonably necessary.” “Generally, we review an award of attorney fees for abuse of
2 discretion.” Rio Grande Sun, 2012-NMCA-091, ¶ 10. “Section 48-2-14 empowers the
3 court to award reasonable attorney fees in the district and supreme courts in actions
4 to enforce mechanics’ and materialmen’s liens.” Lenz v. Chalamidas (Lenz II), 1991-
5 NMSC-099, ¶ 2, 113 N.M. 17, 821 P.2d 355 (emphasis omitted). While an award of
6 attorney fees is discretionary, “the exercise of that discretion must be reasonable when
7 measured against objective standards and criteria.” Lenz v. Chalamidas (Lenz I), 1989-
8 NMSC-067, ¶ 19, 109 N.M. 113, 782 P.2d 85. “[T]he district court should determine
9 the time reasonably necessary to provide the services required in a particular case,
10 apply the remaining factors articulated in Lenz I, and ultimately arrive at a reasonable
11 fee.” Lenz II, 1991-NMSC-099, ¶ 3. The Lenz I factors are: “(1) the time and labor
12 required—the novelty and difficulty of the questions involved and skill required; (2)
13 the fee customarily charged in the locality for similar services; (3) the amount
14 involved and the results obtained; (4) the time limitations imposed by the client or by
15 the circumstances; and (5) the experience, reputation and ability of the lawyer or
16 lawyers performing the services.” Lenz I, 1989-NMSC-067, ¶ 19. “We have also
17 stated that time spent and quality of representation are not always dispositive of the
18 amount of attorney fees to be awarded in the successful enforcement of liens.” Id.
19 “For example, when the plaintiff has sued for a small sum clearly owed, then a higher
20 percentage of the award may be reasonable as an attorney’s fee.” Id. “The
26 1 reasonableness of the fee must be closely scrutinized if the amount is based on the
2 defense of counterclaims and other questions collateral to the enforcement of the lien.”
3 Id. ¶ 20.
4 {38} Hacienda does not argue that the amounts, time, and charges Kuckelman
5 requested were unreasonable, and therefore seems to concede that the Lenz I factors
6 were satisfied. Moreover, Hacienda does not appear to dispute that the fees
7 Kuckelman incurred were reasonably necessary under the facts of the case and per the
8 mandate of Lenz II. Rather, Hacienda relies on statements in Hiatt v. Keil that “the fee
9 must be reasonable” and that “[a] fee in excess of 300% more than the judgment
10 awarded is patently unreasonable.” 1987-NMSC-049, ¶ 7, 106 N.M. 3, 738 P.2d 121.
11 Hacienda concludes that this renders the district court’s award of attorney fees worth
12 315% of the judgment unreasonable. However, since Hiatt, our Supreme Court has
13 reiterated that the application of the factors in “Lenz I[] is not a rigid, mechanical
14 process, and the weight accorded each factor will vary from case to case.” Lenz II,
15 1991-NMSC-099, ¶ 2. Hacienda has not explained how the district court erred in
16 assigning the weight it accorded to each factor, or which portion of the fee award
17 resulted from work Kuckelman performed to defend the counterclaim. In addition, we
18 observe that much of the fees Kuckelman incurred resulted from its need to respond
19 to Hacienda’s actions in the litigation, for example defending against Hacienda’s
20 motion to compel and corresponding motion for reconsideration, and responding to
27 1 Hacienda’s counsel’s withdrawal shortly before trial and the attendant delay in trying
2 the case. Hacienda has cited to nothing that suggests Kuckelman’s attorney engaged
3 in any gratuitous litigation tactics or that otherwise rebuts the district court’s
4 conclusion that the attorney fees Kuckelman requested were reasonably necessary in
5 the context of this particular lawsuit. Accordingly, the district court did not err in
6 granting Kuckelman its attorney fees incurred in connection with the suit.
7 District Court’s Order Awarding 18% Prejudgment Interest
8 {39} In addition to Kuckelman’s attorney fees, the district court also granted
9 prejudgment interest based on Section 56-8-4. Hacienda argues this was improper. We
10 agree. Section 56-8-4 applies only to postjudgment interest. See § 56-8-4(A)(1)
11 (“Interest shall be allowed on judgments and decrees for the payment of money from
12 entry and shall be calculated at the rate of eight and three-fourths percent per year,
13 unless . . . the judgment is rendered on a written instrument having a different rate of
14 interest, in which case interest shall be computed at a rate no higher than specified in
15 the instrument[.]” (emphasis added)). To support its argument that the court properly
16 granted interest based on Kuckelman’s invoice, Kuckelman cites to New Mexico Tire
17 & Battery Co. v. Ole Tires, Inc., 1984-NMSC-063, 101 N.M. 357, 683 P.2d 39.
18 However, nothing in that opinion suggests it applies to prejudgment interest. To the
19 contrary, in that case, our Supreme Court held that “[t]he allowance of 18% on a
20 judgment for [the prevailing party] would be proper because there is ‘a written
28 1 instrument’ having a different rate of interest than the 15% permitted by Section
2 56-8-4.” N.M. Tire & Battery, 1984-NMSC-063, ¶ 18 (emphasis added). This
3 characterization makes clear that New Mexico Tire & Battery was applying Section
4 56-8-4 to calculate postjudgment interest, not prejudgment interest. The proper
5 statutory provision under which to calculate prejudgment interest for money due by
6 contract is NMSA 1978, Section 56-8-3 (1983). See § 56-8-3(A) (“The rate of interest,
7 in the absence of a written contract fixing a different rate, shall be not more than
8 fifteen percent annually . . . on money due by contract.”). Accordingly, we remand to
9 the district court for a determination of the appropriate amount of prejudgment interest
10 to be awarded to Kuckelman, pursuant to the mandates of Section 56-8-3.
11 Award of Attorney Fees for This Appeal
12 {40} Finally, Kuckelman has requested that we grant it the attorney fees it has
13 incurred in defending this appeal. As we noted above, a “prevailing party in a dispute
14 arising out of or relating to a lien action is entitled to recover from the other party the
15 reasonable attorney fees, costs and expenses incurred by the prevailing party.” Section
16 48-2-14. Because this dispute has resulted in an appeal and because Kuckelman is the
17 prevailing party, we grant its request for its attorney fees on appeal and remand to the
18 district court for a determination as to their proper amount.
19 CONCLUSION
29 1 {41} We affirm on the first four issues discussed in this memorandum opinion,
2 reverse as to the amount of prejudgment interest, and remand to the district court for
3 a determination of the amount of prejudgment interest and the amount of attorney fees
4 to be awarded to Kuckelman for this appeal.
5 {42} IT IS SO ORDERED.
6 __________________________________ 7 LINDA M. VANZI, Judge
8 WE CONCUR:
9 _________________________________ 10 JAMES J. WECHSLER, Judge
11 _________________________________ 12 M. MONICA ZAMORA, Judge