Constructors, Inc. v. State

• Decision Date: 24 May 2021
• Docket Number: No. A-1-CA-37766,A-1-CA-37766
• Parties: CONSTRUCTORS, INC., a New Mexico corporation, Plaintiff-Appellant, v. STATE OF NEW MEXICO by and through the NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

CONSTRUCTORS, INC., a New Mexico corporation, Plaintiff-Appellant, v. STATE OF NEW MEXICO by and throughthe NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

No. A-1-CA-37766

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 24, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports.Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Francis J. Mathew, District Judge

Law Offices of Mickey Beisman

Mickey Beisman

Dana Beisman

Albuquerque, NM

for Appellant

Sheehan & Sheehan, P.A.

Dan Gershon

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

ATTREP, Judge.

{1}PlaintiffConstructors, Inc.(Constructors) appeals a judgment entered in favor of Defendant New Mexico Department of Transportation(NMDOT), in which the district court found, among other things, that NMDOT did not breach its roadway construction contract with Constructors.As relevant to our disposition of this appeal, Constructors argues that NMDOT breached the contract and the district court erred in excluding certain expert testimony relevant to that issue.Because Constructors fails to appropriately challenge the district court's findings and because its contentions about the expert testimony are without merit, we affirm.

BACKGROUND

{2} Following its solicitation of bids for an urban roadway construction project in Portales, New Mexico (the Project), NMDOT awarded the contract to Constructors.The contract incorporated the New Mexico Department of Transportation: Standard Specifications for Highway and Bridge Construction (2007 ed.).Of importance, NMDOT Specifications Section 102.7 required NMDOT to "prepare [p]lans and [s]pecifications in accordance with acceptable engineering standards, and [to] give such directions as will enable any competent [c]ontractor to construct the [w]ork."NMDOT included the plans and specifications it had prepared for the Project in the bid package on which Constructors based its bid.Not included or referenced in the bid package was a drainage report (the Report), which NMDOT had commissioned during the design phase of the Project, showing the volume of offsite drainage that would flood the Project.While the Project was underway, intermittent rainstorms caused water from offsite to drain onto the jobsite, resulting in periodic flooding of ten inches or more.

{3} After completing the Project, Constructors sued NMDOT for breach of contract, alleging that NMDOT's failure to provide adequate plans and specifications caused Constructors to incur flooding-related costs not reflected in its bid.Constructors' case at the bench trial hinged on whether NMDOT Specifications Section 102.7 imposed a contractual duty on NMDOT to include, or otherwise refer to, the Report in the bid package.The district court ruled in favor of NMDOT, finding that NMDOT did not breach the contract.¹

DISCUSSION

{4}We address in turn Constructors' contentions that (1) NMDOT breached the contract, and (2)the district court erred in not allowing certain expert testimony.

I.Breach of Contract

{5} Constructors' main argument is that NMDOT breached its contractual duty to prepare plans and specifications in accordance with acceptable engineering standards by not including, or referencing, the Report in the bid package.²We decline to considerthis argument because Constructors manifestly fails to adhere to the Rules of Appellate Procedure.

{6} As an initial matter, Constructors does not make clear on what particular basis it contends the district court erred in resolving the issue of breach.Our review is thereby limited.SeeElane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53(providing that appellate courts"will not review unclear arguments, or guess at what a party's arguments might be"(alteration, internal quotation marks, and citation omitted)).While Constructors' disagreement with the district court's disposition of its contract claim is clear, little else is.Constructors fails even to set out the applicable standard it contends should govern our review of the district court's breach-of-contract ruling, as required by the Rules of Appellate Procedure.³SeeRule 12-318(A)(4) NMRA(requiring the appellant to include "with respect to each issue presented, . . . a statement of the applicable standard of review"(emphases added)).In response, NMDOT contends this ruling constitutes a finding of fact that should be reviewed for substantial evidence.We agree with NMDOT.

{7}"Breach of contract is a question of fact that we review under a substantial evidence standard."Chisos, Ltd. v. JKM Energy, L.L.C., 2011-NMCA-026, ¶ 21, 150 N.M. 315, 258 P.3d 1107(internal quotation marks and citation omitted);see alsoUnified Contractor, Inc. v. Albuquerque Hous. Auth., 2017-NMCA-060, ¶ 36, 400 P.3d 290(providing that breach of contract is a factual matter reviewed for substantial evidence, while contract interpretation is a matter of law reviewed de novo).Under this standard, "[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached."N.M. Tax'n & Revenue Dep't v. Casias Trucking, 2014-NMCA-099, ¶ 20, 336 P.3d 436(internal quotation marks and citation omitted);see alsoState ex rel. King v. B & B Inv. Grp., Inc., 2014-NMSC-024, ¶ 12, 329 P.3d 658("Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion."(internal quotation marks and citation omitted)).When challenging findings on appeal, it is incumbent upon the appellant to (1) challenge the contested findings directly, and (2) set out the substance of the evidence supporting the district court's findings.SeeState ex rel. Foy v. Vanderbilt Cap. Advisors, LLC, ___-NMCA-___, ¶¶ 26, 28, ___ P.3d ___ (No. A-1-CA-36925, June 9, 2020).Constructors fails in each regard.

{8} First, Rule 12-318(A)(4) of the Rules of Appellate Procedure requires the appellant's argument to "set forth a specific attack on any finding, or the finding shall be deemed conclusive."When an appellant ignores the district court's findings and instead advocates for the appellate court to adopt the appellant's desired findings, the appellant violates this rule, and the district court's findings will stand on appeal.See, e.g., Lerma v. Romero, 1974-NMSC-089, ¶ 2, 87 N.M. 3, 528 P.2d 647(holding that, where the appellants argued that the district court erred in refusing requested findings but did not directly attack the district court's findings, the findings would not be reviewed on appeal);State ex rel. Blanchard v. City Comm'rs of Clovis, 1988-NMCA-008, ¶¶ 14-15, 106 N.M. 769, 750 P.2d 469(holding that the district court's finding that a party failed to present evidence supporting its contention was binding on appeal because, although the party maintained the contention on appeal, it did not challenge the finding).

{9} Such is the case here.The district court found that, notwithstanding NMDOT's omission of any reference to the Report in the bid package, "[t]he plans and specifications were in accordance with acceptable engineering standards and gave such direction to a competent contractor to construct the [w]ork," and "NMDOT did not breach its contract with Constructors."⁴In making these findings, the district court necessarily found that "acceptable engineering standards" did not require NMDOT to include or reference the Report in the bid package.SeeDoña Ana Mut. Domestic Water Consumers Ass'n v. N.M. Pub. Regul. Comm'n, 2006-NMSC-032, ¶ 32, 140 N.M. 6, 139 P.3d 166(holding that the record supported a finding implicitly made by the tribunal).On appeal, Constructors does not attack these findings or otherwise contend that they are unsupported by substantial evidence.Instead, Constructors repeats the arguments it made to the district court, essentially requesting that we find the exclusion of the Report, or lack of reference to it, in the bid package a breach of contract.Such an argument misunderstands this Court's role on appeal.SeeCasias Trucking, 2014-NMCA-099, ¶¶ 23-24(observing that "[i]t is the sole responsibility of the trier of fact to weigh the testimony, . . . and determine where the truth lies" and "[w]e do not place ourselves in the position of the fact finder and reweigh the evidence"(internal quotation marks and citation omitted)).What is more, it is ineffectual under Rule 12-318(A)(4), and Constructors is thus bound by those findings.SeeLerma, 1974-NMSC-089, ¶ 2;Blanchard, 1988-NMCA-008, ¶ 15.

{10} Second, even had Constructors appropriately attacked the district court's findings, Constructors also fails to comply with another provision of the Rules of Appellate Procedure.Under Rule 12-318(A)(3), "[a] contention that a verdict, judgment, or finding of fact is not supported by substantial evidence shall be deemed waived unless the summary of proceedings includes the substance of the evidence bearing on the proposition[.]"The main purposes of this rule are to "fully apprise the reviewing courtof the fact-finder's view of the facts and its disposition of the issues, and to help the court decide the issues on appeal."Martinez v. Sw. Landfills, Inc., 1993-NMCA-020, ¶ 15, 115 N.M. 181, 848 P.2d 1108.The rule thus "imposes a duty upon an appellant, who seeks to challenge findings adopted below, to marshal all of the evidence in support of the findings and then demonstrate that even if the evidence is viewed in a light most favorable to the decision reached below, together with all reasonable inferences attendant thereto, the evidence is insufficient to support the findings."Maloof v. San Juan Cnty. Valuation Protests Bd., 1992-NMCA-127, ¶ 18, 114 N.M. 755, 845 P.2d...