This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 SUSAN BISHOP and MARK SKOFIELD, 7 as Class Representatives in their capacities 8 as Personal Representatives of the Estate of 9 RICHARD H. SKOFIELD, Individually and 10 in his capacity as Class Representative, 11 Plaintiffs-Appellants/Cross-Appellees, 12

v. NO. 25,510 13 THE EVANGELICAL LUTHERAN GOOD 14 SAMARITAN SOCIETY, a foreign 15 corporation d/b/a MANZANO DEL SOL 16 GOOD SAMARITAN VILLAGE, 17 Defendant-Appellee/Cross-Appellant. 18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 19 Wendy E. York, District Judge (presiding until appeal) 20 Beatrice J. Brickhouse, Distri ct Judge (currently presiding) 21 Eric Sedillo Jeffries, LLC 22 Eric Sedillo Jeffries 23 Albuquerque, NM 24 Law Offices of Brian A. Thomas, PC 25 Brian A. Thomas 26 Albuquerque, NM 27 for Appellants 282 Quarles & Brady LLP 1 Daniel E. Conley 2 Milwaukee, WI 3 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 4 Martha G. Brown 5 Albuquerque, NM 6 for Appellee 7 MEMORANDUM OPINION 8 SUTIN, Judge. 9 This case returns to us following revers al by our Supreme Court of our decision 10 in Bishop v. Evangelical Lutheran Good Samaritan Society (Bishop I) , 2008-NMCA11 033, 143 N.M. 640, 179 P.3d 1248, and remand to determine the issues that remain. 12 See Bishop v. Evangelical G ood Samaritan Soc’y (Bishop II) , 2009-NMSC-036, ¶¶ 1, 13 30, 146 N.M. 473, 212 P.3d 361. Th e issues we address relate primarily to the district 14 court’s determinations regarding prejudgment interest and calculation of damages. 15 We affirm the district court’s determinations on those and other issues raised on 16 appeal. Further, we remand this case to the district court for amendment of the 17 judgment consistent with this opinion. 18 BACKGROUND 191 This statute was amended in 2005 to state that the fee increase requirements 16 be “defined by rules promulgated by the ag ing and long term serv ices department no 17 later than January 31, 2006[.] ” Section 24-17-5(B)(11); see 9.2.24.7 to .15 NMAC 18 (1/31/06); see also Bishop II, 2009-NMSC-036, ¶¶ 13 n.1, 23 n.3 (stating that the 19 amended regulations are not applicable and limiting the court’s “consideration to the 20 language used by the Legislature and in effect at the time”). 21 3 Defendant Evangelical Lutheran Good Samaritan Society (Good Samaritan) is 1 a nonprofit corporation that owns Man zano Del Sol Good Samaritan Village 2 (Manzano). Manzano consists of two fac ilities situated in New Mexico: a nursing 3 home and senior independent living apartments. Since 1985, Manzano has been 4 governed by the Continuing Care Act, NMSA 1978, §§ 24-17-1 to -18 (1985, as 5 amended through 2005) (the Act). 6 Manzano’s residents pay monthly service fees. Plaintiff Richard H. Skofield 7 was a resident at Manzano until his death. He and other re sidents entered into 8 entrance agreements to live in apartments at Manzano. This case arose from 9 Skofield’s objection to percentage increases in service fees on the first day of January 10 of the years 1994 (2.5%) , 1995 (6.0%), 1996 (3%), 1997 (4.0%), 1998 (2.0%). 11 During those years, the Act required serv ice-fee increases at facilities such as 12 Manzano to be based on “economic necessity , the reasonable cost of operating the 13 community, the cost of care[,] and a reasonable return on investment.” Section 24-17- 14 5(B)(11). 1 154 Skofield filed a complaint agains t Good Samaritan in July 1999 and an 1 amended complaint in April 2001, in his individual capacity and as class 2 representative, alleging that Good Samaritan failed to comply with Section 24-17- 3 5(B)(11) and seeking compensation for service-fee overcharges, plus prejudgment 4 interest. The court certified the case as a class action in September 2001 and certified 5 a class of “residents of Manzano . . . who were subject to fee increases between July 6 30, 1993 and July 30, 1999.” It appears that of 287 putative members of the class who 7 were mailed notices of the class action, 193 were returned as undeliverable, that at the 8 time the notices were sent there were actually only 111 putative class members still 9 living at Manzano, that there were some persons who were give n notice who were not 10 within the class as defined by the court, and that fifty members receiving notice gave 11 notice of their intent to opt out of the class. 12 The case was tried by the district court in September 2002. The court entered 13 findings of fact and conclusions of law, but numerous post-trial proceedings followed 14 in December 2002. The court reopened the case in February 2004 to hear evidence 15 solely on the turnover rate at Manzano during the class period, and an evidentiary 16 hearing on that issue occurred in May 2004. In July 2004, the court placed its rulings 17 on outstanding issues in a letter to the parties. In December 2004, the court entered 182 The court’s amended findings of factand conclusions of law awarded 14 Plaintiffs $154,415. The court’s judgmen t, however, awarded Plaintiffs $122,548. 15 The court’s amended findings of fact and conclusions of law were filed on December 16 30, 2004, but its judgment was filed two days earlier, on December 28, 2004. The 17 Supreme Court in Bishop II stated that the district court awarded $154,415 to 18 Plaintiffs. Bishop II, 2009-NMSC-036, ¶ 5. The earlier filed judgment incorporated 19 and adopted the amended findings of fact and conclusions of law by reference. We 20 believe that the amount awarded in the c ourt’s judgment controls even though entered 21 before the court’s amended findings of factand conclusions of law. The parties do not 22 contend otherwise. 23 5 a judgment for “the Plaintiff Class” and also filed amended findings of fact and 1 conclusions of law. 2 The district court determined that Good Samaritan violated the Act and 3 breached the terms of the en trance agreements because it failed to consider economic 4 necessity and reasonable return on investme nt in setting its service-fee increases as 5 required in the agreements and in Section 24-17-5(B)(11). The court held Good 6 Samaritan liable to Plaintiffs and ultimately awarded damages of $122,548. 2The 7 court also awarded Plaintiffs prejudgment interest for the period beginning with the 8 filing of Skofield’s complaint, but refused to award Plaintiffs pre-complaint 9 prejudgment interest. 10 In arriving at its service-fee overcharg e damages award, the district court 11 measured overcharges using a threshold reas onable rate of returnof 15%, but reduced 12 Good Samaritan’s excess revenue and the accumulated damages to Plaintiffs to 13 $154,415 after applying credits for the years 1998 and 1999 based on Good 146 Samaritan’s having charged rates below th e 15% threshold those years, and after 1 applying a resident turnover rate which had the effect of reducing the number of 2 people who could complain about improper rateincreases. The court then reduced the 3 damages award to $122,548 after considering the fact that a number of putative class 4 members opted out of membership in the class. Plaintiffs appealed, and Good 5 Samaritan cross-appealed. 6 Plaintiffs asserted on appeal that the di strict court erred by (1) failing to award 7 prejudgment interest up to the date of th e complaint; (2) reducing damages by giving 8 credits below the statutory threshold; (3 ) reducing damages ba sed on turnover; and 9 (4) applying the statute of limitations to bar claims for damages that resulted from a 10 rate increase imposed before, but that weresuffered within, the class period. They 11 sought this Court’s remand instructing the district court to amend its judgment and 12 award Plaintiffs $1,112,662, plus prejudgment interest to run from August 1, 1993, 13 the amount that Plaintiffs consider to be their full measure of damages. 14 Good Samaritan raised five issues in its cross-appeal: (1) the Act’s requirement 15 that fee increases be based on a “reasonable rate of returnon investment” was 16 unconstitutionally vague; (2) if the Act wereinterpreted correctly, the fee increases 17 during the class period were reasonable; and (3) the districtcourt abused its discretion 18 by reopening the trial to permit Plaintiffs a second chance to meet their burden of 197 proof on damages; (4) the district court abused its discretion by awarding prejudgment 1 interest for the period following the filing of the complaint; and (5) the district court 2 abused its discretion by not decertifying the class because the court erred in entering 3 a judgment that failed to identify the class members who were bound. 4 The Appeal and Certiorari Proceedings, and the Current Remand to This Court 5 In an opinion filed in January 2008, this Court reversed the judgment of the 6 district court and remanded with instruc tions to enter judgment in favor of Good 7 Samaritan. Bishop I, 2008-NMCA-033, ¶ 14. The basis for reversal was our view that 8 the district court erred by construing the Act to require nonprofit providers such as 9 Good Samaritan to base service-fee increas es on a reasonable return on investment. 10 Id . ¶ 11. 11 On a writ of certiorari, our Supreme C ourt reversed this Court, holding that 12 under the Act, nonprofit providers are able and required to consider a reasonable rate 13 of return on investment when cal culating service-fee increases. Bishop II, 2009- 14 NMSC-036, ¶¶ 16-18, 25, 29, 30. The Court was not persuaded by Good Samaritan’s 15 constitutional vagueness argument. Id. ¶ 24. The Court also addressed whether the 16 district court’s judgment was s upported by substantial evidence. Id. ¶¶ 25-29. The 17 Court noted that in the district court, Plai ntiffs’ expert presented calculations on return 18 on investment that yielded the following percentages: 16.09% in 1993, 17.17% in 198 1994, 18.13% in 1995, 21.34% in 1996, 22.42% in 1997, 12.62% in 1998, and 1 10.18% in 1999. Id. ¶ 26. The Court also noted that Good Samaritan’s accountant 2 testified that a reasonable rate of return would fall between 12 and 15%. Id. The 3 Court further noted that the district court adopted these figures in its findings and 4 conclusions. Id. In addition, the Court noted that the district court held that Good 5 Samaritan breached the entr ance agreements resulting in Good Samaritan having 6 “earned rates of return in excess of evenits own representatives’ determination of 7 what is reasonable.” Id. (internal quotation marks omitted). After noting these 8 findings and conclusions of the district court, the Court determined that “[s]ubstantial 9 evidence supports the district court’s findings and conclusions on this point.” Id. The 10 Court held that substantial evidence existed to uphold the district court’s 11 determination that Good Samaritan violatedthe agreements and the Act “by imposing 12 rate increases without considering reasonable return on investment.” Id. ¶ 29. The 13 Supreme Court remanded the case to this Court “to determine the remaining issues 14 raised before [this] Court on appeal and cross-appeal.” Id. ¶ 30. We therefore 15 proceed in this opinion to address those issues. 16 DISCUSSION 17 I. Plaintiffs’ Appellate Points 18 A. Prejudgment Interest 199 The district court awarded prejudgment in terest only from the date of the filing 1 of the complaint. Plaintiffs complain that the court erred in failing to award 2 prejudgment interest covering the period of August 1, 1993, to the date the complaint 3 was filed. 4 “In New Mexico, the award of prejudgmen t interest is governed by the common 5 law and NMSA 1978, Sections 56-8-3 [(1983),] -4(B) [(1993) (amended 2004)].” 6 Smith v. McKee , 116 N.M. 34, 36, 859 P.2d 1061, 1063 (1993). Section 56-8-3(A) 7 through (C) states that the rate of interest in the absence of a written contract fixing 8 the rate “shall be not more than fifteen percent annually” in three instances, namely, 9 (A) “on money due by contract [,]” (B) “on money received to the use of another and 10 retained without the owner’s consent expr essed or implied[,]” and (C) “on money due 11 upon the settlement of matured accounts from the day the balance is ascertained.” 12 Section 56-8-4(A) relates to interest on j udgments and decrees, and Section 56-8-4(B), 13 under certain guidelines, permits interest from the date the complaint is served on the 14 defendant. Section 56-8-4(C) independently states that nothing in the section “shall 15 affect the award of interest or the time fro m which interest is computed as otherwise 16 permitted by statute or common law.” 17 The court refused to award pre-complaint prejudgment interest as a matter of 18 right under Section 56-8-3 because the amount owing was not fixed or readily 1910 ascertainable. The court explained that while it had discreti on under Section 56-8-3 1 to award prejudgment interest “even if the amount owing was not fixed or readily 2 ascertainable, the court must consider the equities in each case before doing so.” The 3 court determined that “[t]heequities do not favor an awar d for [Good Samaritan’s] use 4 and retention of Plaintiff[ s’] money since [Good Samaritan] had very little guidance 5 regarding how to comply with the [Act].” 6 Plaintiffs argue that in a breach of c ontract case the damages award should fully 7 compensate the injured party and that the damages award should include the lost use 8 of money. They argue, too, that Good Samaritan wrongfully profited from the 9 overcharges. Although Plaintiffs fail to me ntion Sections 56-8-3 and 56-8-4 in any 10 regard in their brief in chief, in their reply brief, and based on assertions in Good 11 Samaritan’s answer brief, Plaintiffs acknowledge that they “seek to recover 12 prejudgment interest as a matter of di scretion under either [Section] 56-8-3 or 13 [Section] 56-8-4.” 14 We think it useful to discuss pertinen t case law on the issues. Early on, our 15 Supreme Court determined that under NM SA 1953, Section 50-6-3(A) (Vol. 8) 16 (current version at Section 56-8-3), inthe absence of a readily ascertained 17 indebtedness amount, the allowance of interestas an element of total damages is a 18 matter of discretion and not a matter of right. O’Meara v. Commercial Ins. Co. , 71 1911 N.M. 145, 151-52, 376 P.2d 486, 490-91 (1962). In connection with this proposition, 1 the Court cited and relied on Restatement (First) of Contracts§ 337(b) (1932). 2 O’Meara , 71 N.M. at 152, 376 P.2d at 490-91. Restatement Section 337 reads: 3 If the parties have not by contract determined otherwise, simple 4 interest at the statutory legal rateis recoverable as damages for breach 5 of contract as follows: 6 (a) Where the defendant commits a breach of a 7 contract to pay a definite su m of money, or to render a 8 performance the value of which in money is stated in the 9 contract or is ascertainableby mathematical calculation 10 from a standard fixed in the contract or from established 11 market prices of the subject matter, interest is allowed on 12 the amount of the debt or money value from the time 13 performance was due, after making all the deductions to 14 which the defendant may be entitled. 15 (b) Where the contract thatis broken is of a kind not 16 specified in Clause (a), interest may be allowed in the 17 discretion of the court, if justice requires it, on the amount 18 that would have been just compensation if it had been paid 19 when performance was due. 20 After quoting Section 337 and stating that Subsection (b) applied in the case, the 21 Court in O’Meara stated that recognition of this Restatement rule “should aid the trial 22 courts in their determination of the vexatious problems relating to the awarding or not 23 awarding of interest, and will avoid the n ecessity of making the fine distinctions 24 which many courts have done.” O’Meara , 71 N.M. at 153, 376 P.2d at 491. After 25 O’Meara , our Supreme Court adopted Restatement Section 337(a) and, following that 2612 section, the Court stated that when th e amount is “ascertainable by mathematical 1 calculation from a standard fixed in the contract or from establis hed market prices,” 2 Section 56-8-3 is applicable. Shaeffer v. Kelton , 95 N.M. 182, 187-88, 619 P.2d 1226, 3 1231-32 (1980) (internal quotation marks and citation omitted); see also Grynberg v. 4 Roberts , 102 N.M. 560, 562-63, 698 P.2d 430, 432- 33 (1985) (determining that under 5 the Shaeffer rule, Section 56-8-3 and Restatement Section 337(a) applied and that 6 Restatement Section 337(b) did not apply, because the debt was ascertainable by 7 mathematical calculation from a standard fixed in the contract). In Grynberg , the 8 Court referred to Restatement Section 337 as stating the common law rule of 9 prejudgment interest. Grynberg , 102 N.M. at 563, 698 P.2d at 433. 10 Based on O’Meara , Shaeffer , and Grynberg , our Supreme Court in Mascarenas 11 v. Jaramillo , 111 N.M. 410, 806 P.2d 59 (1991), confirmed that when Section 56-8-3 12 applies and the indebtedness is ascertainable as stated in Restatement Section 337(a), 13 that Restatement section applies and interest is due as a matter of right. Mascarenas , 14 111 N.M. at 414, 806 P.2d at 63. The Court added that in breach of contract cases 15 “damage awards should fully compensate th e injured party” and that the breaching 16 party is “justly responsible for all of th e damages flowing naturally from the breach.” 17 Id . (internal quotation marks and citation omitted). Yet, re iterating that it had adopted 18 Restatement Section 337(a), the Court in Mascarenas recognized earlier stated law 1913 that an award of prejudgment interest shoul d not be made “arbitr arily without regard 1 for the equities of each particular situation.” Mascarenas , 111 N.M. at 414, 806 P.2d 2 at 63 (internal quotation marks and citation omitted). In Mascarenas , the Court 3 reversed the district court’s award of prejudgment interest because it did not appear 4 that the court “weighed the e quities involved” and because the findings did not justify 5 a denial of interest. Id. at 414-15, 806 P.2d at 63-64; see also Smith , 116 N.M. at 36- 6 37, 859 P.2d at 1063-64 (adhering to Shaeffer and Restatement Section 337(a) and 7 concluding that when a district court doe s not make a finding that interest was 8 awarded as a matter of right, the award is made in the court’s discretion). 9 Following the rules expressed in O’Meara , Shaeffer , and Grynberg , in Kueffer 10 v. Kueffer , 110 N.M. 10, 12, 791 P.2d 461, 463 (1990), which involved that part of 11 Section 56-8-3 relating to the use and retention of another’s money without the other’s 12 consent, see § 56-8-3(B), our Supreme Court stated that “[t]he trial court has 13 discretion to award prejudgment interest, if justice requires, when the contract amount 14 is not ascertainable.” Kueffer also stated that “[p]rejudgment interest is meant to 15 compensate a plaintiff for injuries resulting from the defendant’s failure to pay and the 16 loss of use and earning power of [the] plai ntiff’s funds expended as a result of the 17 defendant’s breach.” 110 N.M. at 12, 791 P.2d at 463. Then, in State ex rel. Bob 18 Davis Masonry, Inc. v. Safeco Insurance Co. of America , 118 N.M. 558, 883 P.2d 144 1914 (1994), the Court stated that whether as a matter of right or in the district court’s 1 discretion under Section 56-8-3 “we examine any countervailing equ ities to determine 2 whether the award was properly made.” Bob Davis Masonry, Inc. , 118 N.M. at 561, 3 883 P.2d at 147. 4 The foregoing cases tell us that Section 56-8-3(A) and Restatement Section 5 337(b) apply in the present case and that th e award of interest was left to the sound 6 discretion of the district court. While an award of prejudgment interest is to be 7 considered in compensating the injured party in breach of contract cases, in 8 considering that award in th e present case, the district court was permitted to consider 9 the equities of the particular situation. The court exercised its discretion and, in 10 considering an award, the court considered equities. In doing so , the court refused to 11 award pre-complaint prejudgment interest because Good Samaritan received “very 12 little guidance” as to how it was to comply w ith the Act. We hold that the district 13 court did not abuse its discretion. 14 B. Credits and Deductions in Assessing Damages 15 The district court made the following fi ndings in regard to the credits and 16 deductions it applied to exce ss revenue from overcharging: 17 64. Gross excess revenue for the class period, as modified by the 18 [c]ourt’s post-trial rulings, is $888,294. Since the rate of return did not 19 exceed 15% in 1998 and 1999, credit must be given for those years. For 2015 1999, the credit amount is $410,916. For 1998, the credit is $147,204. 1 The adjusted excess revenue is $330,174. 2 65. There must be a deduction from the $330,174 to reflect the 3 turnover rates. Such a deduction en sures that . . . Plaintiffs are not 4 compensated for those apartments that may have been turned over to a 5 new resident who had agreed to th e higher rates, persons who died, or 6 left the facility. That deduction is $175,759 leaving the excess revenue, 7 less turnover rate at $154,415. 8 Plaintiffs do not contest the numbers; they contest the court’s application of credits 9 and deductions to reduce their damages. 10 1. Standard of Review 11 We do not perceive that the applicable findings of fact on which the 12 measurement of damages was based have been successfully attacked as being 13 unsupported in the evidence. We review denovo the application of law to the facts. 14 See, e.g. , N.M. Right to Choose/NARAL v. Johnson , 1999-NMSC-028, ¶ 7, 127 N.M. 15 654, 986 P.2d 450. We gi ve deferential treatment to th e manner in which the district 16 court analyzed the damages model presented by Plaintiffs and to the court’s damages 17 evaluations and determinations. See Sierra Life Ins. Co. v. First Nat’l Life Ins. Co ., 18 85 N.M. 409, 414, 512 P.2d 1245, 1250 (1973) (stating that appellate courts “will not 19 attempt to second guess the trial court’s de termination of the proper measure to be 20 applied for damages if that trial court had several alternatives be fore it supported by 21 substantial evidence”); Moody v. Stribling , 1999-NMCA-094, ¶ 40, 127 N.M. 630, 2216 985 P.2d 1210 (“As long as there is a reas onable method used to achieve an amount 1 of damages, we will accept that amount.”). 2 2. Credits 3 Plaintiffs argue that the allowance of cr edits by the district court runs contrary 4 to the Supreme Court’s ruling in Capo v. Century Life Insurance Co ., 94 N.M. 373, 5 610 P.2d 1202 (1980), b ecause Good Samaritan was taki ng advantage of an illegal 6 contract. Capo sued his insurer who, in lending money to Capo, violated a criminal 7 statute, NMSA 1978, § 30-16-15 (1963), by coercing Capo to purchase insurance in 8 order to obtain a loan. Capo , 94 N.M. at 376, 610 P.2d at 1205. The Court held that 9 the insurer’s assignee could not retain the premiums paid by Capo because that 10 “would in effect validate the illegal contract , nullify the statutory penalty[,] and permit 11 [the assignee] to take advant age of the criminal act.” Id . at 377, 610 P.2d at 1206. We 12 are not persuaded. Good Samaritan did not contract with Pl aintiffs in violation of a 13 statute, much less a criminalstatute carrying a penalty fo r its violation. While Good 14 Samaritan failed to follow a statutory requi rement that was placed in the entrance 15 agreements, we do not consider that in th e same category as entering into a contract 16 forbidden under criminal law. See Smith v. Tinley , 100 N.M. 663, 665, 674 P.2d 1123, 17 1125 (1984) (refusing to apply Capo where “[t]he agreement . . . [was] far from 18 illegal”). 1917 Plaintiffs further argue that Good Samaritan voluntarily decided not to charge 1 amounts for rent and that this unconditional benefit conferred on Pl aintiffs bars Good 2 Samaritan from receiving a cred it by way of restitution. See Restatement (First) of 3 Restitution § 112 (1937); see also Cheesecake Factory, Inc. v. Baines , 1998-NMCA4 120, ¶ 6, 125 N.M. 622, 964 P.2d 183 (holding that where a judgment debtor paid a 5 judgment voluntarily, the court could not comp el the judgment creditor to return the 6 payment, stating that this followed from th e general rule that a party cannot recover 7 money voluntarily paid with full knowledge of the facts ev en if no payment obligation 8 existed). In addition, Plaintiffs argue th at the court impermissibly reduced damages 9 already incurred because the reduction was ba sed on retrospective rate-setting for later 10 years. Plaintiffs contend that this viol ated contract-breach principles requiring that 11 the injured party be fully compensated, including receiving consequential damages 12 flowing from the breach, such as loss of the use of money. We are equally 13 unpersuaded by these arguments. Plainti ffs’ damages model used a retrospective 14 assessment of increases pursuant to which aggregate damages weredetermined based 15 on apartments and not individuals, and on th e extent to which increases exceeded a 16 threshold rate of return. The entire process in which th e court engaged on the issue 17 of damages involved retrospective determin ation of a reasonable threshold rate, a 18 process that benefitted Plaintiffs. Particul arly, based on the manner in which Plaintiffs 1918 presented their damages methodologies to th e court, we see no reason why the court 1 could not also consider and give credit fo r monetary benefits to Plaintiffs from 2 undercharges in certain years, while at the same time it considered overcharges in 3 certain years. 4 3. Deductions 5 Plaintiffs assert that Good Samaritan did not carry its burden of proof in 6 claiming deductions based on turnover becauseit failed to introduce direct evidence 7 of turnover. Thus, according to Plainti ffs, the court’s finding number 65 on turnover 8 “should be overruled.” Plaintiffs also assert that Good Samaritan’s claim to 9 deductions required its reliance on illegal contracts as a defense to liability. Plaintiffs 10 further assert that Good Samaritan did not demonstrate that new residents knowingly 11 accepted rates that offended their rights protected by the Act and thereby waived their 12 rights to be free of excessive charges. 13 We reject these contentions. There was evidence of turnover rate, and the court 14 utilized that information in evaluating dama ges. Plaintiffs s ought damages for the 15 class in the aggregate considering only ap artments and not individuals and claiming 16 that they did not have to prove damage s specifically, and we see no reason why the 17 court could not evaluate those damages taking the turnover rate evidence submitted 18 by Plaintiffs and Good Samaritan into cons ideration. Further, we see no basis on 1919 which to determine that the entrance agreements with new residents were in any sense 1 illegal or that Good Samaritan did not have th e right to set new rates for new residents. 2 4. Summary of Credits and Deductions Issues 3 In sum, we see no error in the application of law to the facts in the district 4 court’s application of credits and deductions in assessing damages. Nor do we see any 5 irrationality in the court’s assessments. The court was at liberty to determine if the 6 damages model presented by Plaintiffs fairly represented the pr oper way of assessing 7 damages. The court evaluated damages suffered in each calendar year correlated to 8 the rates of return in excess of a threshold rate of return. We are not persuaded that 9 in these circumstances Plaintiffs’ view of a single and definite way to measure 10 damages to make Plaintiffs whole was the onl y avenue to consider in arriving at the 11 measurement. We determine that no damages rule or rationale by which Plaintiffs 12 seek to bar consideration of credits and deductions applies. Plaintiffs fail to 13 demonstrate error in the application of law or in factual determinations, and we will 14 not overturn the district court’s reasonabl e evaluation and measurement of damages 15 considering credits and deductions. 16 C. The Bar of the Statute of Limitations 17 Good Samaritan asserted and the district court applied the six-year statute of 18 limitations in NMSA 1978, Section 37-1-3 (1975), to bar Plaintiffs’ claim of 1920 overcharges related to one particular fee increase, namely, a fee increase that was 1 announced in November 1992 to be effective January 1, 1993. Based on a continuing2 wrong theory, Plaintiffs assert a right to sue as each monthly overcharge occurred 3 following January 1993. They argue that th e statute is theref ore inapplicable to 4 service fee increases that were first ch arged in January 1993 and were still being 5 charged at the start of th e class period in August 1993, notwithstanding that the 6 decision to implement the January 1, 1993, increase was made in 1992. 7 We are persuaded by Good Samaritan’s pos ition that Plaintiffs’ claim derives 8 only from Good Samaritan’s singular act of charging the increased yearly fee on its 9 effective date of January 1, 1993, and not from each monthly overcharge that followed 10 that act during the year or from a con tinuing wrong notion based on the consequences 11 of the initial fee increase. See Tull v. City of Albuquerque , 120 N.M. 829, 830-31, 907 12 P.2d 1010, 1011-12 (Ct. App. 1995) (stating, in an employment contract case, that the 13 allegations “would establish that the [employer] committed a single wrong with 14 continuing effects”; holding that for statute of limitation purposes the only actionable 15 breach and wrong was the employer’s initial refu sal to increase the plaintiff’s salaries; 16 and rejecting the continuing wrong theory in which each paycheck constituted a new 17 wrong for statute of limitations purposes). 1821 II. Good Samaritan’s Points 1 Good Samaritan’s first two points on appeal were disposed of in Bishop II, 2 2009-NMSC-036. The points were that the language in Section 24-17-5(B)(11) 3 requiring fee increases to be based on “reasonable return on investment” is 4 unconstitutionally vague, and that if the Ac t were interpreted correctly, the fee 5 increases during the class period were “reas onable.” We, therefore, do not address 6 these points. We turn to Good Samaritan’s claims that the district court abused its 7 discretion in three rulings. 8 A. Asserted Error in Reopening the Trial 9 Good Samaritan complains that the distri ct court abused its discretion when it 10 permitted Plaintiffs a second chance to meet their burden of proof on damages. Trial 11 occurred in September 2002. The court deci ded to reopen the reco rd in February 2004 12 for the purpose of allowing supplemental evidence on the turnover issue. The 13 standard of review is abuse of discretion. See State v. Harrison , 2000-NMSC-022, 14 ¶ 56, 129 N.M. 328, 7 P.3d 478 (stating that appellate courts review a district court’s 15 decision to reopen the record for abuse of discretion). Wefirst discuss the 16 background giving rise to the reopen issue, followed by the parties’ arguments and our 17 analysis. 1822 1. Background 1 In December 2002, the court found that Plai ntiffs had not shown that particular 2 Plaintiffs lived, or had not shown the amount of time Plaintiffs lived in any particular 3 apartment at any particular service fee amount after any allegedly improper increase 4 in rent. The court also found that resident s had moved in and out of apartments and 5 that sometimes they had moved in and out before fee increases had gone into effect. 6 Further, the court found that residents tran sferred from one apartment to another and 7 in doing so had signed new contracts and had agreed to new rates. In addition, the 8 court found that Plaintiffs’ expert’s damages methodology assigned damages to 9 apartments and not individual residents and assumed that damage s existed regardless 10 of how many times an apartment was turned over to a new resident who agreed to a 11 higher fee. Based on these findings, the court found that it was necessary to 12 incorporate a turnover rate into the dama ges calculation, and th e court selected a 13 turnover rate of 29.8%. This turnover rate was taken from a defense exhibit, The State 14 of Seniors Housing 2001 by the National I nvestment Center, the American Senior 15 Housing Association, and Price WaterhouseC oopers. The court entered a finding that 16 29.8% “must be deducted from [Plaintiffs’ damages] to reflect the turnover rate.” 17 In February 2004, faced with proposed amendments to its findings of fact and 18 conclusions of law, particularly with differing views of the parties in regard to burdens 1923 of proof relating to damages, the court d ecided to look further into its prior ruling 1 regarding the turnover rate. In a February 9, 2004, letter to the parties, the court 2 explained why it was reopening the case to hear evidence on the turnover rate. The 3 court expressed concern that neither party had offered sufficiently explicit testimony 4 in 2002 of an exact turnover rate and that the court had likely erred in two respects in 5 choosing and applying the 29.8% turnover rate. The court determined, among other 6 things, that its errors were (1) using anannual rate applied as a one-time deduction, 7 and (2) that, given the desirability of th e facility, the rate the court used was not 8 supported by the evidence. 9 The court reasoned that it would be less co stly to the parties for it to reopen the 10 case than to have the case pr oceed to appeal and that it would be more efficient to 11 clarify the matter before the anticipated u ltimate appeal of the case. The court 12 indicated that the cost of delay to take more evidence before entry of judgment would 13 be slight in comparison to the parties appealing an issue not clarified and not 14 supported by substantial evidence. The court concluded its analysis by stating the 15 following: 16 I do not believe that . . . Plaintiffs were at fault for failing to recognize 17 that the turnover rate would b ecome a pivotal issue from [Good 18 Samaritan’s] point of view. [Good Samaritan] has possession of the 19 documents that are relevant for determining turnover rate, and . . . the 20 damages issues and the post-trial distribution issue cannot be easily 21 separated. The tu rnover rate can be viewed, in part, as a distribution 2224 issue. Finally, New Mexico [c]ourts have recognized that there are 1 certain cases for which it is proper for the court to reopen the evidence 2 for the limited purpose of receiving a dditional information on a discrete 3 topic. Cienfuegos v. Pacheco , 56 N.M. 667, 248 P.2d 664 (1952). 4 At the outset of a hearing in May 2004 on the merits of the turnove r rate issue, the 5 court indicated that, throughout the long litig ation, it had “made a determination that 6 one of the elements of damage would include the turnover rate” and, further, that the 7 court had made a determinati on that “the turnover rate [w as] a necessary element and 8 not part of the distribution issue” and that “if the turnover rate is not brought forward,” 9 the court would be “faced with the unenviabledecision of, very possibly, throwing the 10 verdict out.” 11 The court stated in a July 8, 2004, le tter to the parties that, based on the 12 evidence that was presented at the hearing, it was modifying the findings of fact to set 13 out “appropriate turnover rates” for each of the years from 1994 through 1999, with 14 the rates varying from as low as 7% in 1998 to as high as 9.98% in 1999. The court’s 15 amended findings of fact entered in D ecember 2004 reflect these determinations. 1625 2. The Parties’ Arguments 1 Good Samaritan attacks the reopening of the case on several fronts. It argues 2 that Plaintiffs knew that turnover was an issue that Good Samaritan would raise and 3 that Plaintiffs could have produced turnover evidence before the close of the evidence 4 at trial. Good Samaritan fu rther argues that the “deficiency” in Plaintiffs’ proof 5 resulted from their tactical decision to treat the case as if the Act governed rates rather 6 than permissible increases in rates and to treat the case as if the class consisted of 7 apartments and not “real individuals.” Good Samaritan faults the court for not 8 sticking with “the only turnover rate inthe record . . . which [Good Samaritan] 9 demonstrated in post-trial briefing would yield no damages whatsoever if applied in 10 each of the six years of the class period” and for permitting Plaintiffs to cure the 11 deficiency in their proof of any damages. In support of its position, Good Samaritan 12 argues that the court can reopen only if the court determines that the failure of proof 13 did not result from lack of due dilig ence on the part of Plaintiffs. See Harrison , 2000- 14 NMSC-022, ¶ 56 (“Two factors which appellate courts consider in this context are the 15 extent to which the movant used due diligence to obtain the testimony and the 16 probable value of that testimony.”). 17 Plaintiffs essentially respond to Good Samaritan’s position by arguing that the 18 court erred in even considering turnover in its damages assessment. Plaintiffs 1926 complain that the court’s consideration of turnover throughout the proceedings 1 improperly placed the burden of proof on Plai ntiffs. They argue that it was proper in 2 the class action to present their claim inthe aggregate instead of individualized 3 evidence. They further complain that Good Samaritan never ar gued at the 2002 trial 4 that turnover should be imposed and did not indicate a specific turnover rate, that 5 Good Samaritan provided no evidence of turnover as to any particular resident, and 6 that the one turnover statistic of 29.8% inevidence before the record was reopened 7 was offered for a purpose other than to measure damages based in part on turnover. 8 Plaintiffs argue that whether they knew of Good Samaritan’s arguments regarding 9 turnover was not relevant to the issues of burden of proof and obligations. Thus, 10 Plaintiffs’ main counter to Good Samaritan’s point is that it was Good Samaritan’s 11 burden and obligation to discredit Plainti ffs’ damages proof and to show why the 12 damages Plaintiffs proved should be re duced and that Good Samaritan failed to 13 sustain its burden. Plaintiffs cite First National Bank v. Sanchez , 112 N.M. 317, 319, 14 815 P.2d 613, 615 (1991) (holding that a new trial was required due to inadequate 15 proof of damages on which the jury was instructed); Yates Petroleum Corp. v. 16 Kennedy , 108 N.M. 564, 566-67, 775 P.2d 1281, 1283-84 (1989) (discussing the 17 parties’ burdens of proof relating to damages in an eminent domain proceeding). 1827 However, Plaintiffs also argue that evenif they and not Good Samaritan had the 1 burden to show turnover, the court’s decision to reopen was within its sound 2 discretion and the decision is not to be lightly overturned. See Foreman v. Myers , 79 3 N.M. 404, 408, 444 P.2d 589, 593 (1968) (stating that our Supreme Court has 4 consistently held that the determinati on not to reopen a case is within the sound 5 discretion of the district court and will not be lightly overturned); Riggs v. Gardikas , 6 78 N.M. 5, 8, 427 P.2d 890, 893 (1967) (stating that a motion to reopen a case to take 7 additional evidence is addressed to the s ound discretion of the district court and our 8 Supreme Court is “always loath to interfere with that discretion”). 9 3. Analysis 10 There is ample support for the district court’s exercise of its discretion to reopen 11 the case for further evidence of turnover rates. The district court determined early on 12 that under the circumstances here, turnover was an integral and critical aspect of 13 damages. The court develope d concern about the propriety of its selection of the 14 29.8% rate and required further evidence on the issue. The court’s concern was 15 justifiable, and its explanations for havi ng to reopen the case for further evidence in 16 order to meaningfully evaluate damages were reasonable and sound. We understand 17 Good Samaritan’s position that without havi ng provided turnover evidence, Plaintiffs 18 failed in their damages proof and that the court should not have given Plaintiffs any 1928 chance, much less a second one, to prove damages by allowing Plaintiffs to offer 1 turnover rate evidence. However, under th e circumstances as set out earlier in this 2 opinion, we will not override the court’s di scretion and determin ation to reopen and 3 attempt to assure that turnover was thoroughly and adequately considered. 4 B. Asserted Error in Awarding Prejudgment Interest 5 After first refusing to award Plaintiffs any prejudgment interest, the court on 6 reconsideration awarded Plaintiffs prejudgment interest under S ection 56-8- 4(B) from 7 the time of the filing of the complaint to the time of judgment. The court found that 8 it could not attribute delay to either party; however, the court also found that Good 9 Samaritan “did not make reasonable and timely offers to settle with . . . Plaintiffs until 10 long after the trial in this matter.” 11 “The purpose of awarding prejudgment interest under Section 56-8-4(B) is to 12 foster settlement and prevent delay.” Lucero v. Aladdin Beauty Colls., Inc. , 117 N.M. 13 269, 272, 871 P.2d 365, 368 (1994). That s ection “is not . . . limited by whether 14 damages are fixed or ascertainable.” Id. We review an award of prejudgment interest 15 under Section 56-8-4(B) for abuse of discretion. See Lucero , 117 N.M. at 272, 871 16 P.2d at 368 (stating that the “statute allows the trial court in its discretion to award 17 interest after considering whether the pl aintiff caused unreasonable delay and whether 18 the defendant made a reasonable and timely o ffer of settlement to the plaintiff” and 1929 further stating that the Legislature must have intended by the statute “that, to foster 1 timely settlements, a discretionary award of prejudgment interest is allowed in all 2 cases” (internal quotation marks and citation omitted)). 3 Good Samaritan complains that under th e “highly unusual” circumstances in 4 this case the court’s award of prejudgment in terest from the date of the filing of the 5 complaint was an abuse of discretion. More specifically, Good Samaritan argues 6 abuse of discretion in awarding prejudgmen t interest where the liability ultimately 7 imposed on it “for its objectively modest fee increases” was unpredictable and was 8 considerably less than what Plaintiffs de manded in damages. Good Samaritan points 9 out that Plaintiffs sought as much as $18 million in damages after trebling, that 10 Plaintiffs’ settlement demands began at $6 million by March 2001, dropped to $2.5 11 million in May 2002, and were at $1.4 million on the eve of trial, and that the court 12 ultimately entered judgment in favor of Plaintiffs for only $122,548; whereas, Good 13 Samaritan notes, it made reasonable offers before trial and on the eve of trial. 14 Good Samaritan characterizes its settlement offers as follows. In a March 2001 15 settlement facilitation conducted some eighteenmonths before trial, Good Samaritan 16 “outlined an approach that would include making capital improvements to [Good 17 Samaritan’s] facility and freezing future rent increases to Manzano residents.” In a 18 second settlement facilitation in May 2002, Good Samaritan’s “ opening offer was to 1930 spend $1 million for the benefit of residents at the facility on improvements and 1 programs that were negotiable.” On the fi rst day of trial, G ood Samaritan offered to 2 spend $2 million at its facility for the bene fit of residents and to also pay $50,000 in 3 attorney fees. 4 In support of the court’s award of prejudgment interest, Plaintiffs repeat the 5 argument and authority they presented on their own appellate point seeking pre6 complaint prejudgment interest suggesting that they have a right to be fully 7 compensated for the damages they suffered from Good Samaritan’s wrongful taking 8 and use of their money. In regard to G ood Samaritan’s settlement offers, Plaintiffs’ 9 attorney’s affidavit shows that he saw the offers the same as Good Samaritan 10 characterizes them. In specific regard to Good Samaritan’s offer on the first day of 11 trial, Plaintiffs show that the $50,000 in attorney fees offered by Good Samaritan was 12 substantially below the amount of costs and attorney fees awarded Plaintiffs, and they 13 argue that Good Samaritan’s offer to spe nd money on the facility was not an offer to 14 pay money to Plaintiffs, but instead would benefit, for example, residents who would 15 reside many years after Plaintiffs lived at the facility and would provide nothing to 16 Plaintiffs who were residents between 1993 and 1999. 17 Again, we will not override the district court’s view of the circumstances and 18 settlement offers. The principal and substantial dollar investment of Good Samaritan 1931 was contained in offers that would have only indirect, if any, personal benefit or 1 consequence in regard to Pl aintiffs. Good Samaritan’s o ffers appear to be little more 2 than capital investments in its facility that likely would ultimately benefit Good 3 Samaritan’s balance sheet and sales and indirectly benefit fu ture residents. The court, 4 in its discretion, could havereasonable determined that Good Samaritan’s offers were 5 not reasonable or timely. We cannot say that the court abused its discretion. 6 C. Asserted Error in Not Decertifying the Class 7 Good Samaritan contends that the cla ss members were never identified by name 8 at any time during the proceedings and that the judgment fails to identify by name the 9 class members who are bound by the judgment and, therefore, the court abused its 10 discretion in refusing to decertify the class. Class certification determinations are 11 reviewed for abuse of discretion. Enfield v. Old Line Life Ins. Co. of Am., 2004- 12 NMCA-115, ¶ 16, 136 N.M. 398, 98 P.3d 1048. 13 Good Samaritan relies on Rule 1-023(C)(3 ) NMRA for its position. That rule 14 states that the judgment in an action maintained as a class action under Rule 1- 15 023(B)(3) “shall include and specify or descri be those to whom the [required] notice 16 . . . was directed, and who have not requested exclusion, and whom the court finds to 17 be members of the class.” Rule 1-023(C)(3). The judgment entered in this case states 18 that “[t]he [c]ourt defined the class as specifically consisting of: ‘Residents of 1932 Manzano del Sol independent living apartments, during the period from July 30, 1993 1 to[] July 30, 1999, whose monthly fees weresubject to one or more increases during 2 that period.’” The judgment further states that: 3 Notice was given to all potential class members and numerous 4 others in addition by the best practicable notice under the circumstances. 5 The Plaintiff Class was notified by re gistered mail, posted notice at the 6 facility as well as published notice ina paper of general distribution in 7 the Bernalillo County region. The [c]ourt further finds that this notice 8 was reasonably calculated to providethe members of the class actual 9 notice, and was the best practicable notice under the circumstances. 10 Further, the judgment names the class me mbers who opted out. Other than the 11 foregoing descriptions, the judgment simply refers to the class members as “the 12 Plaintiff Class” and does not identify th em by name. The court’s amended findings 13 of fact, which are incorporat ed and adopted by reference in the judgment defines the 14 class as follows: “This is a class action. The plaintiff class has been certified by the 15 [c]ourt’s ‘Order Granting Certification of Class’ filed September 6, 2001[,] and the 16 [c]ourt’s [o]rder approving the form of class notice. The class is made up of residents 17 of Manzano de Sol who weresubject to fee increases between July 30, 1993 and July 18 30, 1999.” 19 Good Samaritan argues that under Rule 1-023(C)(3) the judgment was required 20 to specifically identify the members of the class by name and that the judgment is 21 defective because it did not do so. Good Samaritan also argues that the judgment is 2233 defective because it is not clear in the r ecord which of the class members who did not 1 opt out were properly notifie d and which were not. Good Samaritan blames Plaintiffs 2 for failing to create a record that would have allowed the court to enter judgment in 3 compliance with Rule 1-023(C)(3). 4 Plaintiffs argue that there exists no authority and show that Good Samaritan 5 cites none holding that decertification is appropriate if a judgment does not name 6 individual class members. They also arguethat, under Rule 1-023(C)(3), a description 7 of the class is sufficient and listing class me mbers by name is not required. Plaintiffs 8 assert that the judgment “evidently incl udes the class members by describing them.” 9 The class specifically described in the j udgment is relatively small. Plaintiffs 10 could and should have identified the cla ss members by name and the court should 11 have listed them by name in the judgment. The class was and remains identifiable and 12 it is sufficiently definite to permit Plainti ffs to ascertain individual class members by 13 name. However, although wedo not condone these failure s, we do not see why the 14 individual class members cannot be individually identified by name as a part of further 15 proceedings on remand without resulting in prejudice to Good Samaritan. It appears 16 that the damages awarded in the judgment are still subject to the distribution process. 17 Thus, we are not convinced that the failure to name class members entitled to 18 distribution of damages requires decertification of the class. Good Samaritan has not 1934 shown why this procedural aspect cannot be accomplished in further proceedings. We 1 are not provided with any persuasive rationale or authority, nor do we see any basis, 2 on which to conclude that the district court abused its discretion in not decertifying 3 the class. We remand for Plaintiffs to as certain and prove the names of the individual 4 class members entitled to damages and for the court to proceed with any issues related 5 to distribution of the damages awarded. 6 CONCLUSION 7 We affirm the judgment of the districtcourt in all resp ects. However, we 8 remand the case to the district court for further proceedings consistent with this 9 opinion in regard to identification by nameof individual class members entitled to a 10 distribution of damages and placement of the names of those members in an amended 11 judgment. 12 IT IS SO ORDERED. 13

__________________________________ 14 JONATHAN B. SUTIN, Judge 15 WE CONCUR: 16

____________________________ 17 CYNTHIA A. FRY, Chief Judge 18

____________________________ 19 CELIA FOY CASTILLO, Judge 20