Aspen v. LONGFORD HOMES OF NEW MEXICO

• Decision Date: 07 April 2004
• Docket Number: No. 23,304.,23,304.
• Citation: 2004 NMCA 63,135 N.M. 607,92 P.3d 53
• Parties: ASPEN LANDSCAPING, INC., Plaintiff/Appellant/Cross-Appellee, v. LONGFORD HOMES OF NEW MEXICO, INC., Longford at Albuquerque, Ltd. Partnership, and Longford at Paradise Skies, Ltd. Partnership, Defendants/Appellees/Cross-Appellants.
• Court: Court of Appeals of New Mexico

92 P.3d 53

135 N.M. 607

2004 NMCA 63

ASPEN LANDSCAPING, INC., Plaintiff/Appellant/Cross-Appellee, v. LONGFORD HOMES OF NEW MEXICO, INC., Longford at Albuquerque, Ltd. Partnership, and Longford at Paradise Skies, Ltd. Partnership, Defendants/Appellees/Cross-Appellants.

No. 23,304.

Court of Appeals of New Mexico.

April 7, 2004.

Certiorari Denied May 18, 2004.

Gordon H. Rowe III, The Rowe Law Firm, P.C., Jane Good Rowe, Albuquerque, NM, for Appellant.

Steven S. Scholl, Dixon, Scholl & Bailey, P.A., Albuquerque, NM, for Appellees.

Certiorari Denied, No. 28,636, May 18, 2004.

OPINION

CASTILLO, Judge.

{1} Plaintiff Aspen Landscaping, Inc., (Aspen) appeals, and Defendants Longford Homes of New Mexico, Inc., Longford at Albuquerque, a limited partnership, and Longford at Paradise Skies, a limited partnership, (collectively Longford) cross-appeal from a judgment awarding Aspen $27,534.14, plus prejudgment interest, and denying the parties' motions for attorney fees, costs, and expenses of litigation. We affirm.

{2} Aspen raises four issues on appeal, and Longford raises three issues in its cross-appeal. We have consolidated and reordered the issues for the convenience of the reader. We hold that (1) the trial court did not abuse its discretion by denying Aspen's untimely motion for a jury trial, (2) Longford's reference to its 1999 offer of judgment in its proposed findings and conclusions was not improper, (3) the trial court correctly interpreted the contract at issue, (4) the trial court did not abuse its discretion in determining that neither side was the prevailing party in the litigation, and (5) the trial court properly awarded Aspen prejudgment interest on the amount due under the contract.

I. BACKGROUND

{3} Aspen is a landscaping contractor in Albuquerque. Longford Homes of New Mexico, Inc., is a New Mexico corporation that is licensed as a general contractor in New Mexico. It is also the general partner in three limited partnerships, which are the developers of residential subdivisions in Albuquerque known as Crystal Ridge, Mountain View, and Paradise Skies. Two of the limited partnerships are defendants in this case: Longford at Albuquerque and Longford at Paradise Skies.

{4} Aspen had contracts with the Longford entities for the construction of retaining walls in Crystal Ridge, Mountain View, and Paradise Skies. Before October 1998, Aspen's work for Longford had been to construct block retaining walls. The contracts signed in late 1998 required Aspen to construct retaining walls of concrete block and railroad ties. Aspen began work under those contracts in late 1998.

{5} On or about February 2, 1999, John Murtagh came to Albuquerque. He is the president of Longford Homes of New Mexico, Inc., and owner of all its stock. During his stay, John Murtagh and other Longford people went to Crystal Ridge and Paradise Skies to inspect the progress of the work at those subdivisions. John Murtagh was very unhappy with the railroad tie retaining walls at both subdivisions. On that date, John Murtagh told Chris Murtagh, the head of the Albuquerque operation, to get rid of the contractor. On February 2, 1999, Longford sent Aspen a letter telling Aspen to cease work immediately at Crystal Ridge, Mountain View, and Paradise Skies. Each side tells a somewhat different story concerning the events from February 2, 1999, until March 30, 1999. It is undisputed, however, that on March 30, 1999, Longford sent Aspen a letter terminating the contracts between Longford and Aspen and asking for a summary and bill for the work in progress at the time. At that time, Aspen was owed $27,534.14 for materials and labor already provided. We refer to this as the Work in Progress, or WIP, amount.

{6} On May 20, 1999, Aspen filed suit against Longford—seeking damages, including punitive damages, for breach of contract. Within days, Longford offered to pay Aspen the WIP amount, plus interest, and Aspen refused the offer. Longford filed a counterclaim for breach of contract, negligence, and prima facie tort. In June 2000, Aspen filed a request for a jury trial, acknowledging that its request was not timely. Longford objected, and the trial court denied Aspen's request.

{7} A bench trial was held on April 1 and 2, 2002. During Longford's closing argument, it voluntarily dismissed its counterclaim. The trial court issued a letter decision on April 10, 2002. The letter decision indicated Aspen was entitled to the WIP amount, denied all other claims by Aspen for compensatory and punitive damages, and indicated the trial court had tentatively determined that each side should bear its own fees and costs. The letter decision contained some statements favorable to Aspen's position on the merits and invited the parties to submit proposed findings of fact and conclusions of law if an appeal was contemplated.

{8} Both sides submitted proposed findings and conclusions. Contrary to its representations in its brief in chief, Aspen proposed, among other things, that the trial court determine that Aspen was the prevailing party and should, under the contracts, receive its attorney fees, costs, and expenses. Longford proposed that the trial court determine that Aspen was not the prevailing party, in part because Aspen had turned down Longford's 1999 offer of judgment for the WIP amount, plus interest, and Aspen had not done better at trial. The trial court's findings and conclusions determined, among other things, that Aspen was not the prevailing party because it did not do better after trial than either Longford's early settlement offer or Longford's offer of judgment, both of which were made within the first few months after suit was filed.

{9} The trial court's judgment was filed on May 14, 2002. It awarded Aspen $27,534.14, plus interest thereon from April 2, 1999, until paid. No party was awarded attorney fees, costs, or expenses of litigation. Two days later, Longford filed pleadings, in which it sought a determination that it was the prevailing party and therefore was entitled to its reasonable attorney fees, costs, and expenses of litigation. Longford's theory was that since the trial court had determined that Aspen was not the prevailing party, Longford must be the prevailing party. The trial court denied the motion and reiterated its determination that each side should bear its own fees and costs.

{10} Additional facts will be discussed in connection with the issues raised on appeal.

II. DISCUSSION

A. Motion for a Jury Trial

{11} Aspen argues that the trial court abused its discretion in denying its untimely request for a jury trial. In support of this, Aspen points out that the trial court has the discretion under Rule 1-039(A) NMRA 2003 to grant a jury trial even if the request for a jury is not timely. On appeal, we review the trial court's ruling on such a request only for abuse of discretion. Carlile v. Cont'l Oil Co., 81 N.M. 484, 486-87, 468 P.2d 885, 887-88 (Ct.App.1970). The trial court's ruling is presumed valid, and the burden is on Aspen to show how the trial court abused its discretion. Id. This Court has previously held that the failure to file a timely request for a jury trial waives the jury trial and that a trial court does not abuse its discretion in denying a later request for a jury trial under Rule 1-039. Myers v. Kapnison, 93 N.M. 215, 216-17, 598 P.2d 1175, 1176-77 (Ct.App.1979).

{12} Aspen relies on Bates v. Board of Regents of Northern New Mexico Community College, 122 F.R.D. 586 (D.N.M.1987), which, in Aspen's view, establishes that the motion should be granted because there was no compelling reason to deny it. Aspen is mistaken. In Bates, for a year and a half, the parties and the trial court had treated the case as one that would be tried to a jury, and they only discovered that there had been no jury demand when the case was set for trial on a non-jury docket. Id. at 587. Thus, the court in Bates decided to exercise its discretion to allow a jury trial, even though Plaintiff had failed to file a timely demand for a jury. Id. at 588-89. In this case, the parties had planned to try the case to a judge, until Aspen filed its untimely demand for a jury. In short, Bates does not persuade us that the trial court abused its discretion in this instance. The fact that one trial court exercises discretion in a certain manner does not compel a reversal when another trial court does not exercise discretion in the same manner. See Cadle Co. v. Phillips, 120 N.M. 748, 750, 906 P.2d 739, 741 (Ct.App.1995).

B. Longford's 1999 Offer of Judgment

{13} Aspen contends that Longford's proposed findings and conclusions improperly referred to Longford's 1999 offer of judgment. Aspen argues that under Rule 1-068 NMRA 2003, an offer of judgment is admissible only in a proceeding to determine costs. Aspen asserts, without citation to authority, that the submission of proposed findings and conclusions is not such a proceeding. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) ("We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority. We therefore will not do this research for counsel"). Under the circumstances of this case, we disagree. The trial court had already indicated its tentative ruling on the issue and had asked for proposed findings and conclusions. In addition, there was evidence during the trial that Longford did not object to paying Aspen the WIP amount and in fact had offered to pay it to Aspen a few days after the suit was filed. Finally, although the trial court altered the rationale for its decision between the time of the letter decision and the entry of findings and conclusions, the fact remains that the trial court's result was always the same: Aspen was entitled only to the $27,534.14 WIP amount. Thus, we do not perceive any prejudice to Aspen flowing from Longford's mention of the offer of...