Allred v. New Mex. Dep't of Transp.
| Decision Date | 22 November 2016 |
| Docket Number | No. 34,226,consolidated with No. 34,461,34,226 |
| Parties | Darrel ALLRED, Robert Allred, John Allred, Bruce Allred, and Dwayne Allred, Plaintiffs-Appellees, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
388 P.3d 998
Darrel ALLRED, Robert Allred, John Allred, Bruce Allred, and Dwayne Allred, Plaintiffs-Appellees,
v.
NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
No. 34,226
consolidated with No. 34,461
Court of Appeals of New Mexico.
Filing Date: November 22, 2016
Certiorari Denied, January 12, 2017, No. S-1-SC-36235
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 and legal analysis from which to formulate an opinion. As such, we consider these issues to be abandoned.
BACKGROUND
{3} Appellees Darrel, Robert, John, Bruce, and Dwayne Allred own and operate a farming and livestock operation on lands adjacent to Whitewater Creek in Glenwood, New Mexico. The Whitewater Creek Bridge (the Bridge) spans U.S. Highway 180. Appellant constructed and maintains the Bridge. Since its reconstruction in 1981, sediment aggradation has occurred at and about the Bridge. This sediment aggradation resulted in an increased risk of flooding over time. Because of this increased risk, on June 17, 2011 Appellees filed this action for negligence, inverse condemnation, injunctive relief, and damages.
{4} During the pendency of the litigation, Appellees requested and were granted a preliminary injunction related to the maintenance of the Whitewater Creek bed (the Creek bed). The preliminary injunction required that Appellant (1) update its pre-construction notice (PCN); (2) provide the updated biological assessment and environmental analysis as required by the United States Army Corps of Engineers (ACE) or the United States Fish and Wildlife Service; (3) submit a construction plan to ACE, including a subsequent maintenance plan sufficient to put the Creek bed and the Bridge in compliance with the 1981 design standards; and (4) undertake the maintenance operation and promptly prosecute the maintenance to completion within thirty days of ACE approval of the updated PCN. The preliminary injunction further required that Appellant regularly maintain the Creek bed in accordance with the PCN.
{5} ACE approved the updated PCN, and Appellant began maintenance on the Creek bed on March 14, 2012. This maintenance progressed until a dispute related to the construction specifications halted progress. On April 12, 2012, the parties entered court-ordered mediation. This mediation resulted in an agreement in principle as to the terms of a permanent maintenance plan, which the parties referred to as a permanent injunction.
{6} On December 10-11, 2012, the parties signed a Settlement Agreement and Mutual Release (Settlement Agreement). The Settlement Agreement outlined the Terms of Settlement as (1) the entry of a Stipulated Permanent Injunction Order (Permanent Injunction) and (2) dismissal of the lawsuit by "execut[ion of] the attached Stipulated Motion of Voluntary Dismissal With Prejudice." The Settlement Agreement additionally contained an arbitration provision triggered by the failure of "any party ... to perform any of the promises made in this [a]greement[.]"
{7} On January 18, 2013, the district court ordered entry of the Permanent Injunction, which detailed the parties' rights and obligations with respect to the maintenance plan. The Permanent Injunction contained a "maintenance trigger" that required Appellant to undertake maintenance efforts "when the average distance between sediment accumulations to the low chord of the [B]ridge is [seven] feet." Additionally, the Permanent Injunction detailed the scope of Appellant's maintenance obligation and described circumstances under which the Permanent Injunction could require amendment
and protocol for such amendment. Finally, the Permanent Injunction provided that "[t]he terms set forth herein resolve all pending issues related to the injunctive relief requested by the [Appellees]. Title and compensation issues between the [p]arties shall be disposed of and resolved through a separate simultaneously executed settlement agreement and release."
{8} On February 25, 2013, the parties jointly filed a Motion for Entry of Stipulated Permanent Injunction and Voluntary Dismissal With Prejudice of All Remaining Claims and Counterclaims (Motion for Entry and Voluntary Dismissal). The motion stated, in pertinent part,
The Parties notify this [c]ourt that they have entered a Stipulated Permanent Injunction that details a maintenance plan for [Whitewater] Creek, above, below and under the U.S. 180 bridge in Glenwood, New Mexico, Catron County as detailed therein.
The Parties further notify this [c]ourt that they have settled the remaining disputes between them in the underlying lawsuit and pursuant to Rule 1–041(A)(1)(b) [NMRA ], hereby stipulate to the voluntary dismissal with prejudice of all claims and counterclaims, known or unknown, raised in this lawsuit or that could have been raised, against the Parties.
{9} On February 27, 2013, the district court entered its Order of Dismissal With Prejudice of All Remaining Claims (Order of Dismissal), which stated, in pertinent part,
THIS MATTER having come before the [c]ourt upon the Parties' notice of entry of Stipulated Permanent Injunction detailing a maintenance plan on Whitewater Creek as detailed therein, and further notice of settlement of the remaining disputes between them in the underlying lawsuit, and stipulation to the voluntary dismissal with prejudice of all claims and counterclaims, known or unknown, raised in this lawsuit or that could have been raised by the Parties;
The [c]ourt being otherwise fully advised in the premises FINDS that the stipulation is well-taken and is hereby GRANTED. All claims and counterclaims raised or that could have been raised by the Parties in this lawsuit are dismissed with prejudice upon the entry of this [c]ourt's Order, and each party shall bear its own fees and costs.
{10} On July 28, 2013, Appellees notified Appellant that sediment levels in the Creek bed required maintenance. Beginning on August 2, 2013, Appellant dispatched employees to remove sediment from the Creek bed in accordance with the Permanent Injunction. For the majority of the time between August 2, 2013 and approximately August 26, 2013, Appellant assigned two employees to the project. Appellee Darrel Allred used his bulldozer to assist these employees for approximately one hundred fifty hours during the month of August. On approximately August 26, 2013, Appellant determined that a heavy equipment crew was required to complete the project and ordered its employees to discontinue their maintenance efforts. This discontinuation was premature and left the Creek bed out of compliance with the terms of the Permanent Injunction. The heavy equipment crew was scheduled to arrive at Whitewater Creek on September 16, 2013. During the intervening weeks, several rain events deposited additional sediment in the Creek bed.
{11} On the night of September 14, 2013, a substantial rain event occurred, causing storm water to flow down Whitewater Creek and, ultimately, to overtop the Bridge and flow through Appellees' property downstream from the Bridge. Additionally, storm water backed up at the Bridge and overtopped the upstream dikes on both sides of Whitewater Creek, causing damage to the dikes themselves, as well as irrigated fields, irrigation systems, and crops.
{12} On September 17, 2013, Appellees filed a Verified Motion to Enforce Permanent Injunction For Relief for Violation of Permanent Injunction (Verified Motion to Enforce). This motion requested an emergency hearing "to determine and order appropriate remedial actions [Appellant] must take, and grant any further relief the [c]ourt deems justice requires." In the weeks between the filing of the motion and the emergency hearing on
October 9, 2013, Appellant reentered the Creek bed and removed sediment in accordance with the Permanent Injunction.
{13} At the October 9, 2013 hearing, Appellees clarified that they were no longer seeking emergency relief but hoped to "move[ ] this matter forward in the direction of some appropriate sanction for violation of the [Permanent Injunction] order." After attorney argument and testimony, the district court ruled that Appellant "violated the stipulated [Permanent Injunction] order by failing to diligently pursue maintenance until completion[.]" 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...
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