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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 EL PASO MACHINE & STEEL, INC.,

3 a Texas corporation,

4 Plaintiff-Appellee,

5 v. NO. 33,214

6 DND CONTRACTORS, INC.,

7 a New Mexico corporation and

8 THE HARTFORD FIRE INSURANCE

9 COMPANY, a Connecticut corporation,

10 Defendants-Appellants,

11 and

12 DND CONTRACTORS, INC.,

13 a New Mexico corporation,

14 Counter-Claimant-Appellant,

15 v.

16 EL PASO MACHINE & STEEL, INC.,

17 a Texas corporation,

18 Counter-Defendant-Appellee,

19 consolidated with
2

1 SRI OF NEW MEXICO, LLC,

2 a New Mexico limited liability corporation,

3 Plaintiff-Appellee,

4 v.

5 DND CONTRACTORS, INC.,

6 a New Mexico corporation and

7 THE HARTFORD FIRE INSURANCE 

8 COMPANY, a Connecticut corporation,

9 Defendants-Appellants.

10 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY

11 Karen L. Parsons, District Judge

12 The Allison Law Firm, P.C.

13 Michael Allison

14 Albuquerque, NM

15 for Appellees

16 Lorenz Law

17 Alice T. Lorenz

18 Albuquerque, NM

19 Calvert Menicucci, P.C.,

20 Sean R. Calvert

21 Albuquerque, NM

22 for Appellants

23 MEMORANDUM OPINION

24 KENNEDY, Chief Judge.
3

1 {1} DND Contractors, Inc. and The Hartford Fire Insurance Company (collectively,

2 Defendants) appeal an order awarding punitive damages against DND. [DS 12-13]

3 In our notice of proposed summary disposition, we proposed to affirm. In response

4 to this Court’s notice, El Paso Machine & Steel, Inc. and SRI of New Mexico, LLC

5 (collectively, Plaintiffs) have filed a memorandum in support, and Defendants have

6 filed a memorandum in opposition, both of which we have duly considered. As we

7 do not find Defendants’ arguments to be persuasive, we affirm.

8 {2} In their docketing statement, the only issue Defendants raised was whether the

9 district court erred in relying on DND’s litigation conduct as evidence that DND knew

10 that it had no legitimate reason to refuse to pay Plaintiffs under the terms of the

11 contracts. [DS 12-13] In this Court’s notice of proposed summary disposition, we

12 proposed to find no error because the district court’s order did not unambiguously

13 demonstrate that the court relied on DND’s litigation conduct in its decision to award

14 punitive damages. See Herrera v. Roman Catholic Church, 1991-NMCA-089, ¶ 14,

15 112 N.M. 717, 819 P.2d 264 (“Unless clearly erroneous or deficient, findings of the

16 trial court will be construed so as to uphold a judgment rather than to reverse it.”). In

17 addition, we stated that, even if the court erred in finding that DND’s litigation

18 conduct was evidence of bad faith, the erroneous finding was not a basis for reversal

19 where the remaining findings supported an award of punitive damages. See Normand

20 v. Ray, 1990-NMSC-006, ¶ 35, 109 N.M. 403, 785 P.2d 743 (“[W]here specific
4

1 findings adopted by the trial court are shown to be erroneous, if they are unnecessary

2 to support the judgment of the court and other valid material findings uphold the trial

3 court’s decision, the trial court’s decision will not be overturned.”). This is because

4 “[f]indings of fact are to be liberally construed so as to uphold the judgment of the

5 trial court, and findings are sufficient if a fair consideration of all of them taken

6 together justifies the judgment of the trial court.” Id.

7 {3} In Defendants’ memorandum in opposition, they argue that Santa Fe Custom

8 Shutters & Doors, Inc. v. Home Depot U.S.A., Inc., 2005-NMCA-051, 137 N.M. 524,

9 113 P.3d 347, requires reversal of the punitive damages award. [MIO 1-3, 6] In that

10 case, we held that the erroneous admission of evidence, which was both objected to

11 and clearly relied upon by the district court in its decision, warranted reversal on

12 appeal. Id. ¶¶ 19-26. However, Santa Fe Shutters is distinguishable. The case

13 involved the admission of extensive testimony regarding the defendant’s wrongful

14 conduct with respect to a third party, and this evidence, which tended to show that the

15 defendant had acted wrongfully in the past in the same manner alleged in the case

16 being tried, was admitted in violation of the Rules of Evidence. Here, in contrast,

17 DND’s litigation conduct was a matter that was necessarily known to the district court

18 and was not erroneously presented to it. Therefore, the only question is whether the

19 district court could properly consider that conduct as evidence of DND’s awareness

20 of its bad faith in the performance of its contracts. As we have explained, the district
5

1 court’s order is ambiguous as to whether it in fact did so, and this Court will construe

2 any ambiguity in favor of the propriety of the order. Accordingly, we find Santa Fe

3 Shutters to be inapposite to this matter. 

4 {4} In response to our proposed conclusion that affirmance is proper because, even

5 if the district court made an improper finding regarding DND’s litigation conduct, the

6 findings as a whole supported a claim of punitive damages, Defendants have raised

7 a new argument. They do not simply assert that the facts as found by the district court

8 do not support the award of punitive damages. Instead, they contend that the evidence

9 presented to the district court was not sufficient to support the findings. [MIO 2, 6-20]

10 Defendants never raised any issue regarding the sufficiency of the evidence in their

11 docketing statement, and they have not filed a motion to amend the docketing

12 statement in order to add this issue. See Rule 12-208(F) NMRA (stating that this

13 Court will permit a party to amend the docketing statement for good cause shown);

14 Rule 12-210(D)(3) NMRA (stating that a motion to amend the docketing statement

15 may be filed at the same time as a memorandum in opposition to a notice of proposed

16 summary disposition). Even if we were inclined to construe their argument as a

17 motion to amend the docketing statement, we note that Defendants have not

18 established the requirements for a successful motion to amend. See State v. Rael,

19 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d 309 (setting forth

20 those requirements). We also note that Defendants’ memorandum encourages this
6

1 Court to view the facts in the light most favorable to their position rather than the

2 district court’s decision and that their argument is therefore contrary to our standard

3 of review. See Weidler v. Big J Enters., Inc., 1998-NMCA-021, ¶ 30, 124 N.M. 591,

4 953 P.2d 1089 (stating that, in reviewing a sufficiency of the evidence claim, the

5 reviewing court views the evidence in the light most favorable to the prevailing party

6 and disregards evidence and inferences to the contrary). Furthermore, Defendants’

7 memorandum does not set forth all the evidence material to the issue of punitive

8 damages, in that it fails to describe all of the evidence supporting the district court’s

9 decision. “Where the appellant fails to include the substance of all the evidence

10 bearing upon a proposition, [this] Court . . . will not consider a challenge to the

11 sufficiency of the evidence.” Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t,

12 2010-NMCA-021, ¶ 17, 147 N.M. 720, 228 P.3d 504 (internal quotation marks and

13 citation omitted). When a party discusses only those facts that tend to show that some

14 of the district court’s findings were contradicted, the party does not address the

15 substance of all the evidence bearing on the findings and, therefore, necessarily fails

16 to demonstrate how the evidence supporting the district court’s findings does not

17 amount to substantial evidence. Id. To the degree that Defendants can be deemed to

18 have filed a motion to amend the docketing statement to add an argument regarding

19 the insufficiency of the evidence, their motion does not demonstrate that amendment

20 is warranted. 
7

1 {5} Therefore, for the reasons stated here and in our notice of proposed summary

2 disposition, we affirm.

3 {6} IT IS SO ORDERED.

4 ____________________________________

5 RODERICK T. KENNEDY, Chief Judge

6 WE CONCUR:

7 ___________________________

8 JAMES J. WECHSLER, Judge

9 ___________________________

10 CYNTHIA A. FRY, Judge