The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA
, authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: April 2 7 , 2023 3

No. A

- 1

- CA

- 39429 4

WHITE SANDS CONSTRUCTION, INC., 5 a New Mexico corporation, 6

Plaintiff

- Appellee, 7

v. 8

CITY OF LAS CRUCES, a New Mexico 9 home rule municipality, 10

Defendant

- Appellant. 11
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Marci E. Beyer, District Court Judge 13
Jackson Loman Stanford Downey & Stevens

- Block, P.C. 14 Leah M. Stevens

- Block 15 Kara Shair

- Rosenfield 16 Albuquerque, NM 17
for Appellee 18

Martin & Lutz, P.C. 19 David P. Lutz 20 Las Cruces, NM 21

f or Appellant 22OPINION 1

WRAY , Judge. 2

{1} This appeal involves contract interpretation in the context of the Prompt 3
Payment Act (PPA)
, s ee NMSA 1978, §§57

- 28

- 1 to

- 11 (2001, as amended through 4
2007). Under the PPA, with few exceptions, “ all construction contracts shall provide 5
that payment for amounts due shall be paid within twenty

- one days after” receipt of 6
an undisputed application for payment. Section 57

- 28

- 5(A). If prompt payment is 7
not made as required, an interest pena lty begins to accrue “on the twenty

- second day 8
after payment was due,” which is “computed at one and one

- half percent of the 9
undisputed amount per month or fraction of a month.” Id. The statutory penalty in 10

Section 57

- 28

- 5(A) continues “until the payment i s issued.” 11

{ 2 } Defendant the City of Las Cruces (t he City) appeals from the district court’s 12

decision following a bench trial, which concluded that the City owed Plaintiff White 13

Sands Construction , Inc. (White Sands) $160,379.51 under the PPA, arising from 14
the City’s late payments to White Sands on a construction contract. The City argues 15

to this Court that White Sands waived its right to interest under the PPA and in the 16

alternative, that the district court miscalculated the amount of interest owed based 17
on an incorrect reading of the PPA and the parties’ agreements

. We affirm in part, 18
reverse in part, and remand for further proceedings. 192 BACKGROUND 1

{ 3 } In 2015, the City entered into a $10,000,000 contract (the Contract) with 2
White Sands to per form site development and to construct a Public Safety Complex 3
(the Project), a 35,000 square foot fire station and police sub station. The Contract 4

involved three participants: the City as the “Owner,” White Sands as the 5

“C ontractor,” and an individual ide ntified as the “ Architect. ” The Contract required 6

White Sands to submit applications for payment to the Architect, who would review 7

and issue certificates for payment , and the City would make payment s “ not later than 8

twenty

- one (21) days after the Architect receive [d] the [a]pplication for [p]ayment.” 9
In the event that the Project’s “substantial completion ” date was delayed, White 10
Sands would owe “liquidated damages” calculated at a daily rate. 11

{ 4 } The Project quickly ran into problems. The distric t court found that the Project 12
was significantly late reaching substantial completion and that the City failed to 13
make timely payments on twenty

- three out of twenty

- six of White Sands’ payment 14
applications. At trial, White Sands introduced evidence that th e City’s chronic late 15

payments caused significant delays in construction, because White Sands needed the 16
funds from the City to pay the subcontractors who were “threatening to pull off the 17
job

. ” The district court found that the City additionally directed White Sands to 18
perform extra

- contractual work throughout the P roject and failed to adjust the 19
payments accordingly, even though White Sands contemporaneously submitted 203 change order requests

. The district court also found that “the City chose to wait until 1
the end of the Project to settle the change orders in order to retain contract payments 2
to cover” amounts owed by White Sands at the end of the Project to compensate the 3
City for delayed completion (liquidated damages). By the time the Project neared 4
completion, to resolve mutual dissatisfaction and to finalize the Project
, the parties 5
engaged in negotiation s (the Negotiations)

. 6

{ 5 } As part of the N egotiations
, White Sands offered to forgo interest under the 7
PPA in return for the City abandoning any claim for liquidated damages. The City 8
responded to White Sands’ offer and informed White Sands, orally and in writing, 9
that any PPA claim should be raised with the risk management division apart from 10
the Negotiations

. The parties entered into a settlement agreement and a final c hange 11

o rder (Change Order No. 2)

. The parties’ settlement agreement did not mention a 12
PPA claim and only released White Sands

— not the City

— from liability. Change 13

Order No. 2 includes as compensation for the City, a “ Credit for Additional Time 14

e xtension beyond original substantial completion date,” which represented the 15
liquidated damages assessed against White Sands

. The line item in which White 16
Sands had proposed zeroing out the PPA claim, however, was crossed out by the 17
City. 18

{ 6 } White Sands filed a complaint and alleged a violation of the PPA to recover 19
statutory interest that had accrued on the City’s late payments. At trial, the City 204 argued that White Sands had waived recovery un der the PPA in the Negotiations

. 1
The parties also disputed the proper method for calculating any interest owed, 2
including the event that triggered the interest to begin to accrue , whether interest 3
accrued by the day or the month, and the date that interest stopped accruing

. 4

Follow ing the bench trial, the district court emailed the parties with its decision and 5
reasoning. The district court determined that White Sands had not waived PPA 6

interest , which the City owed to White Sands. Moving on to the “[p]roper method 7

of calculation of interest ,” the district court concluded that interest began to accrue 8

twenty

- two days after White Sands submitted a payment application to the Architect, 9
the City owed a full month of interest on the first day of each month that a payment 10

was overdue, and PPA interest stopped accruing three days before White Sands 11
received payments from the City

. The district court later entered a written order 12
holding that under the PPA, the City owed White Sands $160,379.5 7 in interest and 13

reas onable attorney fees and costs. Between the district court’s email ruling and the 14
final written order, the City filed a “Motion for Clarification” related to the 15
calculation of interest and whether the three days the district court sub tracted to 16
arrive at a payment date were calendar or business days. The district court denied 17
the motion but confirmed at a hearing that the three days were calendar days. The 18
City appeals. 195 DISCUSSION 1

{ 7 } The City raises three arguments. First, the City contends that the district court 2
incorrectly concluded that White Sands did not waive its right to pursue PPA interest 3
by entering Change Order No. 2 and the settlement agreement . Second, the City 4
asserts that the district court improperly determined how to apply the PPA’s 5

direction that interest accrued “per month or fraction of a month until the payment 6

is issued” and when the interest started to accrue. Third, the City maintains that the 7
district court incorrectly decided the City’s motion for clari fication , which was 8

related to the calculation of the date the interest terminated

. We first consider 9
whether Change Order No. 2 and the settlement agreement resulted in a waiver of 10

interest under the PPA. 11

I. White Sands’ Offer to Waive Interest Under the PPA 12

{ 8 } The City maintains that White Sands waived interest under the PPA during 13

the N egotiations. Specifically, the City argues that this question presents “a general 14
matter” of a contractual offer, acceptance, and consideration. White Sands responds 15
that the City rejected White Sands’ offer to waive interest under the PPA both 16
generally and as a term of Change Order No. 2. We rev iew questions of contract 17
interpretation de no vo , see Pub. Serv. Co. of N.M. v. Diamond D Const. Co. , 2001

- 18

NMCA

- 082, ¶¶ 16, 48, 131 N.M. 100, 33 P.3d 651 , and agree with White Sands. 196 { 9 } “The essential attributes of a contract include an offer, an acceptan ce, 1

consideration, and mutual assent.” Talbott v. Roswell Hosp. Corp. , 2005

- NMCA

2

109, ¶ 14, 138 N.M. 189, 118 P.3d 194. A proposal “is not effective and is not an 3
‘offer’ until it is made known to the other party, who is then in the position to accept 4

or r eject the offer.” Orcutt v. S & L Paint Contractors, Ltd. , 1990

- NMCA

- 036, ¶ 12, 5
109 N.M. 796, 791 P.2d 71. Sufficient acceptance “must be clear, positive and 6
unambiguous” and may be made by “performance or by promise.” Id. ¶¶ 12

- 13. The 7

r efusal to accept o r a p roposal to modify an offer constitute s a rejection of that offer. 8
See Gallup Westside Dev., LLC v. City of Gallup , 2004

- NMCA

- 010, ¶ 22, 135 N.M. 9

30, 84 P.3d 78; Rejection , Black’s Law Dictionary (11th ed. 2019). Both sides to a 10
contract must also prov ide bargained for consideration, which is a binding promise 11
“to do something that a party is under no legal obligation to do or to forbear from 12
doing something [they have] a legal right to do.” Talbott , 2005

- NMCA

- 109, ¶¶ 16, 13
19 (internal quotation marks and citation omitted). Consideration is “bargained for 14

‘ if it is sought by the promisor in exchange for [their] promise and is given by the 15
promisee in exchange for that promise. ’ ” Romero v. Earl , 1991

- N MSC

- 042, ¶ 6, 111 16

N.M. 789, 810 P.2d 808 ( internal quotation marks and citation omitted ). The City 17
argues that White Sands continually offered to waive interest and that Change Order 18

No. 2 amounted to an acceptance of that offer because Change Order No. 2 was 19
intended to resolve all of the parties’ disputes. To the contrary, however, we agree 207 with the district court’s conclusion that the parties did not agree that White Sands 1

would forgo PPA interest either generally or as a term of Change Order No. 2

. 2

{1 0 } White Sands repeatedly offered t o waive interest under the PPA, and the City 3
rejected those offers

. The City explicitly declined to include the potential PPA claim 4
as “part of the construction projec t closeout conversation at all” and instead informed 5

Whi te Sands that PPA interest was “a discussion for the City’s risk department.” 6
White Sands again urged the City to accept the offer to waive the PPA claims, stating 7

that the claims were “directly associated with our contract and law ” and expressing 8

confusion about “ how this is a different department.” White Sands’ offers , even after 9
the City’s rejection, included a spreadsheet with a line reflecting the offer to waive 10

PPA interest

. In the final agreement spr eadsheet, the City crossed out the line with 11
“$0.00” that was associated with PPA interest. At trial, the City’s witness confirmed 12
that the City had rejected White Sands’ offer to waive interest under the PPA. As a 13
result, the City rejected and did not cle arly, positively, and unambiguously accept 14
any offer by White Sands to waive PPA claims. See Orcutt , 1990

- NMCA

- 036, ¶ 12. 15
Absent such “clear, positive, and unambiguous” acceptance, the parties reached no 16
agreement about the payment of interest under the PP A. See id. (“The rule is that an 17
offer becomes a binding promise and results in a contract only when it is accepted.”). 18

We therefore cannot conclude that proposing to waive interest and agreeing to 19
Change Order No. 2 demonstrates any agreement or intent on White Sands’ part to 208 waive interest under the PPA as part of Change Order No. 2. See Tatsch v. Hamilton

1
Erickson Mfg. Co.
, 1966

- NMSC

- 193, ¶¶ 9

- 12, 76 N.M. 729, 418 P.2d 187. 2

{ 11 } To the extent the City argues that Change Order No. 2 would lack sufficient 3

consideration without White Sands’ waiver of PPA interest, the City fails to account 4
for the benefits both parties received under Change Order No. 2. The City frames 5
Change Order No. 2 as follows: in exchange for White Sands waiving interest under 6

the PPA , the City agreed that it would not label the contractual damages it assessed 7
against White Sands as “liquidated damages” or instigate suspension or 8
“disbarment” procedures against White Sands. The record reveals, however, that 9

White Sands believed during the Negotiations that it was entitled to (1) 10
compensation for advancing payments to subcontractors in light of the City’s late 11

payments , (2) payment for extra

- contractual work ordered by the City
, and (3) a 12
significant extension of the contractual “substantial completion date” based on 13
delays caused by the City. As the district court found, the City did not agree i n 14
Change Order No. 2 to give White Sands all of the requested compensation and 15

extensions of time. In the settlement agreemen t and Change Order No. 2, White 16
Sands was still required to pay some late

- delivery fees, though the fee was not called 17
“liquidated damages” as set forth in the contract, 1 and White Sands was prohibited 18

1 According to the parties and district court, the term “liquidated damages” in this instance would carry a negative connotation that could be damag ing to White Sands’ reputation.9 from bidding on City proposals for a year. Given Whit e Sands’ concessions and the 1
benefits obtained by the City, we do not accept the City’s argument that White Sands 2

must also have waived interest under the PPA for the consideration to be mutual. 3

See Talbott , 2005

- NMCA

- 109, ¶ 16 (r equiring “both sides” to h ave “provide[d] 4
consideration”). 5

{1 2 } As a result, we affirm the district court’s conclusion that the Negotiations 6

demonstrated “that Change Order [No.] 2 and the attached [s] ettlement [a] greement 7
did not contemplate or address [PPA i ] nterest.” See Melnick v. State Farm Mut. Auto. 8

Ins. Co

. , 1988

- NMSC

- 012, ¶¶ 17, 19, 106 N.M. 726, 749 P.2d 1105 (acknowledging 9
this Court’s obligation to enforce the bargained for terms of a contract and declining 10
to rewrite a contract to favor a dissatisfied party). We turn next to the district court’s 11

calculation of interest owed under the PPA. 12

II. The Calculation of Interest Accrued Under the PPA 13

{1 3 } The district court’s findings of fact calculated the number of days that the City 14
was late in paying and the amount of statutory interest owed under the PPA. The 15
City contends that the district court incorrectly construed the calculation of interest 16
under the PPA’s “month or fraction of a month” language and erroneously 17
determined the dates triggering the accrual of PPA in terest. I nterpretation of 18
statutory language is a question of law , which we review de novo. Diamond D 19

Constr. Co. , 2001

- NMCA

- 082, ¶ 48. In that endeavor, our primary goal is to discern 2010 the Legislature’s intent and “give effect to the clear and unambiguous language of a 1

statute .” Id

. Our approach to statutory interpretation depends on whether the 2
language of the statute is ambiguous. Where the language is unambiguous, “we 3
apply the statute as written.” N.M. Real Estate Comm’n v. Barger
, 2012

- NMCA

4

081 , ¶ 7, 284 P.3d 1112. W here , however, a statute is ambiguous
, meaning that 5
“reasonably informed persons can understand the statute as having two or more 6
meanings ,” we turn to principles of statutory construction. Diamond D Constr. Co.
, 7

2001

- NMCA

- 082, ¶ 48 (internal quotation marks and citation omitted)

. We first 8

address the unit of time for which interest is assessed under the PPA

. 9

A. The District Court Improperly Calculated When Interest Began to 10 Accru e 11

{1 4 } The PPA states as follows: 12
If the owner fails to pay the contractor within twenty

- one days afte r 13 receipt of an undisputed request for payment, the owner shall pay 14 interest to the contractor beginning on the twenty

- second day after 15 payment was due, computed at one and one

- half percent of the 16 undisputed amount per month or fraction of a month until th e payment 17 is issued. 18

Section 57

- 28

- 5(A) (emphasis added). T he City contends that in order to align with 19
the purposes of the PPA, interest must accrue every day the owner is late at a daily 20

rate that is proportionate to the monthly rate of one and one

- half percent. According 21
to White Sands, an owner is responsible for the interest assigned for an entire month 2211 even if the payment is only late by a portion of that month, 2 so that an owner who is 1
one day late is responsible for the entire one and one

- half percent interest for that 2

month. The parties’ arguments reveal a statutory ambiguity

. Section 57

- 28

- 5(A) 3
identifies a single interest rate that accrues “per month or fraction of a month.” The 4
interest rate could apply to a “month or fraction of a mont h” as a single unit of time, 5
as White Sands argues. Alternatively, the interest rate could apply at a monthly rate 6

in a manner that can be fractionally divided within a month, as the City argues. W e 7
conclude that a reasonably informed person could understa nd the stat ute according 8
to either interpretation

. 9

{1 5 } Given the plai n meaning of the words, the single interest rate more reasonably 10
applies “p er month or fraction of a month ” as a single unit of time as White Sands 11

contends

. We will not , however, “ allow a literal plain reading of a statute to 12

2 We note that White Sands presented evidence before the district court and argued, in part, that its method for calculating the interes t rate was an industry standard
, but it appears to abandon this contention on appeal. We further observe that the City ar gues to this Court that White Sands inappropriately supported its position on legislative intent with a posttrial attorney affidavit attached to written closing arguments. To the extent that the City argues this affidavit improperly influenced the district court’s ruling, the City did not move to strike or otherwise raise the issue in the district court and thereby failed to preserve the issue. See Rule 12

- 321 NMRA. The district court further did not reference an industry standard or the affidavit in its fi ndings and conclusions, and we therefore discern no prejudice. See Coates v. Wal

- Mart Stores, Inc. , 1999

- NMSC

- 013, ¶ 37, 127 N.M. 47, 976 P.2d 999 (“The complaining party on appeal must show the erroneous admission and exclusion of evidence was prejudicial in order to obtain a reversal.” (alteration, internal quotation marks, and citation omitted)).12 confound the legislative intent.” State ex rel. Brandenburg v. Sanchez , 2014

- NMSC

1

022, ¶ 4, 329 P.3d 654. To that end, w here an overly technical, “literal” reading of 2
the statute contradicts the legislative int ent, “the statute will be construed according 3
to its obvious spirit or reason, even though this requires the rejection of words or the 4

substitution of others.” Barger , 2012

- NMCA

- 081, ¶ 7 (internal quotation marks and 5
citation omitted)

. The City’s interpret ation, which permits interest to accrue every 6
day an owner is late at a daily rate that is proportionate to the monthly one

- and

- one

7
half percent rate, injects additional words into Section 57

- 28

- 5(A)
, but better serves 8
the statute’s “obvious spirit or reas on.” Barger , 2012

- NMCA

- 081, ¶ 7. 9

{1 6 } The PPA both creates a penalty for late payment and encourages prompt 10

payment. S ee J.R. Hale Contracting Co. v. Union Pac. R.R. , 2008

- NMCA

- 037, 11

¶ ¶ 71, 80, 143 N.M. 574, 179 P.3d 579 (noting that a prior version of Sect ion 57

- 28

- 12
5 provi des for “an interest penalty” while also observing that interest may stop 13
running if a party attempted to pay and the other party refused to accept); Diamond 14

D Constr. Co.
, 2001

- NMCA

- 082, ¶¶ 51

- 65 (considering the spectrum of the 15
Legislature’s intent in order to determine how to apply the provisions of the 16

pre judgment and postjudgment interest statutes); GEA I ntegrated Cooling Tech. v. 17

N.M. Tax’n & Revenue Dep’t , 2012

- NMCA

- 01 0, ¶¶ 12

- 14, 268 P.3d 48 (construing 18
a tax penalty to serve the dual legislative purposes of punishment and encouraging 19
timely filing). White Sands’ construction of the statute, which was adopted by the 2013 district court, emphasizes th e punitive nature of the PPA too heavily at the expense 1

of its apparent principal purpose

— to encourage prompt payment. See § 57

- 28

- 1 2
(providing the short title, “Prompt Payment Act”); cf

. Nash v. Bd. of Cnty. Comm’rs 3
of Catron Cnty.
, 2021

- NMSC

- 005, ¶ 32 , 480 P.3d 842 (deriving le gislative intent 4

from the title of prior legislation). White Sands’ pro posed interpretation would hold 5

liable an own er who is one day late for the same amount as an owner who is twenty

6
nine days late. Why, then, would an owner make a late payment on day tw o when 7
the penalty is the same if the late payment is not sent until day twenty

- eight? See 8

Diamond D Constr. Co. , 2001

- NMCA

- 082, ¶¶ 51

- 57 (construing the statutory 9
interest provision according to its purpose) . A daily rate of interest achieves both the 10

Leg islature’s intent to impose a penalty and to have contractors paid timely or, if 11
payment is untimely, to create an incentive to shorten the period of delay . To avoid 12
circumventing the PPA’s intent to encourage prompt payment, we conclude that 13
interest under the PPA computes for the actual period of delinquency as the City 14

argues

— at a daily rate proportionate to the one

- and

- one

- half percent statutory 15
monthly rate. 16

B. PPA Interest Began t o Accrue Twenty

- One Days After White Sands 17 Submitted Paymen t Applications t o the Architect 18

{1 7 } Next, the City contends that the statutory time began to accrue when the 19
Architect approved the amount requested by White Sands and the City was in actual 20
receipt of the application for payment

. The PPA requires the ow ner to make payment 2114 “within twenty

- one days after the owner receives an undisputed request for 1

payment , ” Section 5 7

- 28

- 5(A) , and defines “owner” as “a person, local public body 2
or state agency other than the department of transportation
, ” Section 57

- 28

- 2(C )

. 3
The City argues that (1) the payment applications were not “delivered” to the City 4
as an “owner” under the PPA until after the Architect approved them; and (2) the 5
payment applications were not an “ un disputed request ” under the PPA until the 6
Architect authenticated and confirmed the requests. We first determine whether 7
statutory interest began to run when the Architect received the payment application s 8
from White Sands or when the City , as the owner, received them from the Architect

. 9

{1 8 } Under the PPA, the “owner” is the party contracting for construction services. 10

See §§ 57

- 28

- 2(C),

- 5(A). Our Supreme Court has long explained that a term like 11

“owne r” in a statute is not necessarily limited to “the holder of the legal title to the 12
property improved.” Hill v. Long , 1956

- NMSC

- 066, ¶ 10, 61 N.M. 299, 299 P.2d 13
472 (considering whether a party dealt with an “owner” in order to determine 14
whether the party was a contractor or a subcontractor (internal quotation marks and 15
citation omitted) ) . Instead, the term may refer to “ the party in interest who is the 16
source of authority for the improvement.” Id. (internal quotation marks and citation 17
omitted). Because the PPA ties the amount of time to make a payment to the date 18

that the “owner” receive s an application for payment, we consider who had the 19
authority to “receive[]” the application. See § 57

- 28

- 5(A). 2015 {1 9 } In the present case, the Architect was the “party in interest who [was] the 1
source of authority” for payment. See Hill
, 1956

- NMSC

- 066, ¶10. According to the 2
Contract, the time for payment began to run when the Architect received the payment 3
application: 4

Provided that an [a] pplication for [p] ayment is received by the 5 Architect not later than the last day of a month, the Own er shall make 6 payment of the certified amount to the Contractor not later than the 7 twenty [

- ] first day of the following month. If an [a] pplication for 8 [p] ayment is received by the Architect after the application date fixed 9 above, payment shall be made by th e Owner not later than twenty [

- ] one 10 (21) days after the Architect receives the [a] pplication for [p] ayment. 11
The City suggests that because the interest is statutory, we should not look to the 12

Contract

. The City, however, relies o n definitions of “owner ,” “architect,” and 13

“contractor ” that are found in the Contract. “[I]t would make no sense,” as the district 14

court observed, “ to allow a sloppy arrangement between the Owner and the 15
Architect, regarding how the [a] pplications for [p] ayment were handl ed, to thwart 16
the purposes of the [PPA] .” To adopt the City’s narrow construction of the term 17

“owner” would undermine the statute’s twenty

- one day time for payment and permit 18
owners to extend the time to pay and avoid penalty by delegating authority to rev iew 19
payment applications. Nothing suggests that the Legislature contemplate d such a 20

result. See Baker v. Hedstrom , 2013

- NMSC

- 043, ¶ 15, 309 P.3d 1047 (explaining 21
that if an “interpretation leads to absurdities, or if it conflicts with the Legislature’s 2216 pur pose for enacting the [statute], then we cannot conclude that [the] interpretation 1
reflects legislative intent”). 2

{ 20 } The City additionally argues that the time to pay should not have begun to run 3

until the application was approved by the Architect becaus e the payment application 4
was disputed until that point. In this context, this Court has previously defined 5
“undisputed” as “unchallenged, unquestioned.” See Unified Contractor, Inc. v. 6
Albuquerque Hous. Auth.
, 2017

- NMCA

- 060, ¶ 73 , 400 P.3d 290 . F or a paym ent 7
application to be disputed, an owner has an obligation to affirmatively raise 8
questions or challenges to the application for payment

. See id. (discussing the 9
definition of “undisputed” under the PPA and holding that “raising a challenge or 10
question as to an invoiced item limits a[n owner’s] liability for statutory interest”). 11
An owner raising such a challenge to a n application for payment in a good faith 12
dispute must “notify the [contractor] of the invoice within seven days of receipt in 13

wha t way the invoice is improper[].” Section 57

- 28

- 5(A)

. From this we conclude 14

that under the PPA
, applications for payment are undisputed unless the contractor is 15
notified of any issues with the invoice within seven days. Absent such notice, the 16

owner must p ay the contractor within twenty

- one days of receipt or face a statutory 17
penalty. See id. ; Unified Contractor, Inc.
, 2017

- NMCA

- 060, ¶ 73 . The City fails to 18

direct this Court ’s attention to any attempt by the City or the Architect to dispute a 19
submitted paym ent application, and as a result, all payments were undisputed and 2017 due within twenty

- one days of White Sands submitting a n application for payment 1

to the Architect. 2

III. The City’s “Motion for Clarification” 3

{ 2 1} The City last argues that the district co urt improperly determined
, in response 4

to the “Motion for Clarification
, ” when the City’s payments were “issued

. ” Under 5
the PPA, the date a payment is “issued” is the date that interest stops accruing on a 6
late payment , and owners may make p ayment “by first

- class mailing.” Section 57

- 7

28

- 5(A). The district court found that the payments were issued three calendar days 8
before White Sands received payment in the mail . Generally, “[w]e review the 9
district court’s findings of fact for substantial evidence, vi ewing the evidence in the 10
light most favorable to support the district court’s findings, resolving all conflicts, 11
and indulging all permissible inferences in favor of the decision below.” Ulibarri v. 12

Jesionowski , 2023

- NMCA

- 008, ¶ 30, 523 P.3d 624. In the p resent case, however, 13

t he issue wa s raised in the district court by the City’s “Motion for Clarification,” and 14

we therefore consider the context for and nature for this motion in order to determine 15
the appropriate standard for our review. 16

{ 22 } At trial, th e district court had to determine on which date payments were 17
“issued” in order to properly calculate the PPA interest accrued. See Section 57

- 28

- 18
5(A). White Sands provided evidence to establish when payment was received but 19
the City had no evidence to est ablish when payments were mailed. White Sands 2018 argued that PPA interest should run until it received payment , and t he City 1
maintained that PPA interest should stop accruing according to the date the checks 2
were signed even though the evidence demonstrated a delay between preparation of 3
a check and forwarding that check to White Sands. In the initial email ruling, the 4
district court concluded that the City mailed the checks

— and thereby “is sued” 5
payment for PPA purposes

— t hree days before White Sands received payment 6
(three

- day ruling). Soon afterward but before the district court could enter its written 7
order, the City filed a “Motion for Clarification ” and asked the district court to count 8

the time in its three

- day ruling according to Rule 1

- 006(A)(2 ) NMRA and exclude 9
holidays and weekends. In the motion, the City recognized that its request would 10
impact the district court’s existing decision regarding untimely payments

. While the 11
district court ultimately entered an order denying the motion, at the h earing on the 12

“Motion for Clarification,” the district court clarified that the three

- day period 13
included holidays and weekends

. 14

{ 23 } Despite framing the motion as a “Motion for Clarification,” the City sought 15

alteration and not clarification of the distr ict court’s existing view . The City 16

advocated for the district court to use busine ss, rather than calendar days, and t o 17
reject White Sands’ calculation of the interest owed. See In re Estates of Hayes , 18

1998

- NMCA

- 136, ¶ 16 , 125 N.M. 820, 965 P.2d 939 (disti nguishing a district 19
court’s correction of error from “changing its mind” (alteration, internal quotation 2019 marks, and citation omitted ) ) . For this reason, the “Motion for Clarification” was 1
truly a request for the district court to reconsider or amend its previous ruling, and 2

therefore akin to a motion to reconsider. 3

{ 24 } Rulings on motions to reconsider are reviewed for abuse of discreti on. GCM, 4
Inc. v. Kentucky Cent. Life Ins. Co. , 1997

- NMSC

- 052, ¶ 28, 124 N.M. 186, 947 P.2d 5

143. “ An abuse of discretion occurs when the ruling is clearly against the logic and 6

effect of the facts and circumstances of the case.” Kilgore v. Fuji Heavy Indus. Ltd.
, 7

2009

- NMCA

- 078, ¶ 39, 146 N.M. 698, 213 P.3d 1127 (internal quotation marks and 8
citation omitted). On appeal, the City does not contest the district court’s original 9

three

- day ruling but instead disputes how the three days were counted: calendar 10

vers us business days. The City reiterates to this Court the argument it made to the 11
district court and contends that the district court should have applied Rule 1

- 12
006(A)(2) 3 to determine that “a length of time of three (3) days would exclude 13

intermediate Satu rdays, Sundays, and legal holidays. ” The City’s argument fails to 14
account for the nature of the district court’s ruling. Rule 1

- 006 “applies in computing 15
any time period specified in [the rules of civil procedure for the district court s ] , in 16

3 The City additionally argues that the district court was required to exclude weekends and legal holidays from its three

- day ruling under NMSA 1978, Section 12

- 2A

- 7(E) ( 1997 ), but fails to indicate where this argument was preserved. We therefore decline to address Section 12

- 2A

- 7(E) but observe that the “Uniform Statute and Rule Construction Act” is just that

— applicable to the construction of statutes and rules. See NMSA 1978, § 12

- 2A

- 1(B) (1997).20 any local rule or court order, or in any statute, unless another Supreme Court rule of 1
procedure contains time computation provisions that expressly supersede this rule.” 2
The district court was not construing a time period specified by rule or statute or 3

even court orde r . Instead, the district court had to decide as a factual and historical 4

matter , as a jury would, when the City issued payment. 5

{ 25 } The City argues that the district court’s decision in this regard was “arbitrary,” 6
referencing statements by the district court at the hearing on the “Motion for 7

Clarification

. ” In addressing the City’s request to use business days, the district court 8

stat ed: 9
White Sands kept records that seemed to be reliable, and because the 10 C ity’s testimony was they didn’t have any idea, they didn’t make any 11 attempt to try to keep track of this, that I was going to make an arbitrary 12 decision that . . . if you mailed something to Alamogordo, or El Paso, 13 or somewhere, or from there to here, . . . it took about three days. 14
Later in the hearing, the district court again referred to arbitrariness in the context 15
the City’s lack of evidence about the date of mailing. The district court’s phrasing 16

reflects the City’s failure to present adequate records regarding the date of mailing 17
and not a decision without any reason, as the City suggests . Apart from Rule 1

- 006 18
and the unpreserved reference to Section 12

- 2A

- 7(E), the City provides no basis in 19

law or fact for us to conclude that the district court’s inference that the payments 20
were mailed three calendar days, rather than business days, was unreasonable or 21
“clearly against the logic and effect of the facts and circumsta nces of this case.” See 2221 Kilgore , 2009

- NMCA

- 078, ¶ 39 (internal quotation marks and citation omitted). To 1
the extent that the City challenges the evidence supporting the district court’s 2
determination that the payments were issued three calendar days before they were 3
received, we conclude that the inference was reasonable based on the testimony at 4
trial that White Sands received the payments from the City by mail, the absence of 5
any evidence or argument from the City about when it actually mailed the checks, 6

and the district court’s as serted familiarity with mail delivery in the area. See Durrell 7

v. Miles , 1949

- NMSC

- 033, ¶ 17, 53 N.M. 264, 206 P.2d 547 (inferring the date of 8

re ceipt from the date of mailing); see generally Estrada v. Cuaron
, 1979

- NMCA

9

079, ¶ 8, 93 N.M. 283, 599 P.2d 1080 (“The purpose of a trial of factual issues is to 10

arrive at th e truth, insofar as possible.”); cf. Schultz ex rel. Shultz v. Pojoaque Tribal 11
Police Dep’t , 2010

- NMSC

- 034, ¶ 23, 148 N.M. 692, 242 P.3d 259 (determ ining that 12
a party “reasonably may rely on [their] own knowledge and experience, as well as 13
the representations of the mail or courier service, regarding a document’s expected 14

date of arrival ”). On the record before us, we are therefore unable to conclude that 15
the district court’s decision was arbitrary, unreasonable, or otherwise an abuse of 16

discretion. Therefore, we affirm the denial of the City’s motion as well as the 17
evidentiary inference made by the district court. 1822 CONCLUSION 1

{ 26 } We affirm the dist rict court’s decision that the City owed White Sands interest 2

under the PPA that had accrued on delinquent payments as well as the dates such 3
interest started and stopped accruing. We reverse as to the rate at which that interest 4

accrued and remand for rec alculation of the interest owed. 5

{ 27 } IT IS SO ORDERED. 6

__________________________________ 7 KATHERINE A. WRAY, Judge 8

WE CONCUR: 9

_________________________________ 10 JACQUELINE R. MEDINA , Judge 11

_________________________________ 12 ZACHAR Y A. IVES, Judge 13