This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 PREFERRED BUILDERS, S.W., INC., 7 Plaintiff-Appellant, 8

v. NO. 29,326 9 ALI M. GHAFFARI, SR., individually, 10 BLUE AND RED BIRD CORPORATION, P.C., 11 a New Mexico corporation, and 12 RENAISSANCE LABOR MANAGEMENT, INC., 13 a New Mexico corporation, 14 Defendants-Appellees, 15 RENAISSANCE LABOR MANAGEMENT, INC. 16 and LINDA R. GHAFFARI, 17 Third-Party Plaintiffs, 18

v. 19 PREFERRED BUILDERS, S.W., INC., 20 ROCKY BENARD, SARAH BENARD, 21 Third-Party Defendants, 22 ALI M. GHAFFARI, SR., 23 BLUE AND RED BIRD CORPORATION, P.C., 24 and RENAISSANCE LABOR MANAGEMENT, INC., 25 Plaintiffs, 26

v. 272 SCOTTSDALE INSURANCE COMPANY, 1 Defendant. 2 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 3 Teddy Lowe Hartley, District Judge 4 Attorney and Counselor at Law, P.A. 5 Eric D. Dixon 6 Portales, NM 7 for Appellant 8 Mark S. Sweetman 9 Clovis, NM 10 for Appellees Ali M. Ghaffari, Sr., Linda R. Ghaffari, 11 Blue and Red Bird Corporation, P.C., 12 and Renaissance Labor Management, Inc. 13 MEMORANDUM OPINION 14 FRY, Judge. 15 Preferred Builders, S.W., In c. filed a complaint in district court seeking 16 $82,855.67 on an open account or, alternatively, damages in quantum meruit for mold 17 remediation and construction work perfo rmed on a building located at 1501 West 18 Seventh Street, Clovis, New Mexico. Renai ssance Labor Management, Inc., Blue and 19 Red Bird Corporation, P.C., Ali M. Ghaffari, Sr. and Linda R. Ghaffari (collectively, 20 Defendants) filed a counter-complaint and third-party complaint against Preferred 21 Builders (collectively, Plaintiff), Rocky Benard, and Sarah Benard seeking damages 22 for the partial demolition of the building. Following a bench trial, the district court 233 entered judgment in favor of Defendants and awarded comp ensatory damages in the 1 amount of $146,249.10. 2 On appeal, Preferred Builders claims that (1) Preferred Painters, S.W., Inc., a 3 duly-licensed and incorporated business entity, was doing business under the trade 4 name Preferred Builders and, therefore, the district court improperly held that Rocky 5 and Sarah Benard were pers onally liable for the amount of the judgment under NMSA 6 1978, Section 53-18-9 (1967) and that Preferred Builders was prohibited from 7 maintaining an action for compensati on under NMSA 1978, Section 60-13-30 (1977); 8 (2) the district court lacked jurisdicti on over Rocky and Sarah Benard because they 9 were not served with a copy of the thir d-party complaint and summons; (3) Preferred 10 Builders substantially complied with the re quirements of the Construction Industries 11 Licensing Act (CILA), NMSA 1978, Sections 60-13-1 to -59 (1967, as amended 12 through 2008) and, therefore, was not barred from maintaining an action for 13 compensation; (4) the district court improperly found that Preferred Builders’ alleged 14 damages in the amount of $82,855.67 were unsupported by the evidence and 15 “misstated to the point of actual fraud”; (5) Defendants failed to establish the amount 16 of their damages with reasonable certainty; (6) the award of damages should be offset 17 by the settlement proceeds that Defendant s received from their insurance company 18 and adjuster; and (7) the district court improperly denied Preferred Builders’ motion 194 for a new trial because the award of dama ges was barred by the doctrine of collateral 1 estoppel. 2 We conclude that Preferred Painters was doing business under the trade name 3 Preferred Builders and, therefore, the distri ct court improperly held that Rocky and 4 Sarah Benard were jointly and severally lia ble for the amount of the judgment and that 5 Section 60-13-30 prohibited an action for comp ensation. In light of our conclusion, 6 we need not determine whether the districtcourt properly exercised jurisdiction over 7 Rocky and Sarah Benard, or whether Preferred Builders substantially complied with 8 the licensing requirements of CILA. We re ject Preferred Builders’ claims regarding 9 damages and conclude that the district court properly declined to offset the amount of 10 the judgment by the settlement proceeds recei ved by Defendants. Lastly, we hold that 11 the district court properly denied Preferred Builders’ motion for a new trial. 12 Accordingly, we affirm in part and reverse in part. 13 I. BACKGROUND 14 Renaissance is the owner of a building located at 1501 West Seventh Street, 15 Clovis, New Mexico. Linda Ghaffari and her daughter are the sole shareholders of 16 Renaissance. The building previously had been used as a nursing home facility 17 known as the Buena Vista Retirement Cen ter but, in October 2005 Dr. Ghaffari 18 conducted his medical practice, which was operated by Blue and Red Bird, in the west 19 wing of the building. Linda Ghaffari and Dr. Ghaffari are the sole shareholders of 205 Blue and Red Bird. The building was insu red against damage or loss by Scottsdale 1 Insurance Company (Scottsdale). 2 On October 5, 2005, a water pipe in the east wing of the building burst, 3 saturating the carpets and the lower portions of the walls. Mold developed due to the 4 continued presence of water. The damage was reported to Scottsdale, which 5 dispatched Robert A. Farkas of Proclaims Adjustment Services to adjust the claim. 6 Farkas requested an estimate for repairs from Preferred Bu ilders, which is owned and 7 operated by Rocky and Sarah Benard. OnOctober 15, Preferred Builders submitted 8 a bid in the amount of $82,855.67 for the restoration of the building. 9 Preferred Builders commenced work on the property and, on November 26 10 requested payment in the amount of $82, 855.67. After no payment was received, 11 Preferred Builders ceased work and filed a cl aim of lien on the property. Thereafter, 12 Preferred Builders filed a civil complaint indistrict court against Renaissance, Blue 13 and Red Bird, and Dr. Ghaffari, seeking to recover on an open account and requesting 14 relief under the equitable doctrine of quantum meruit. In their answer to the 15 complaint, Renaissance, Blue and Red Bird , and Dr. Ghaffari alleged that Preferred 16 Builders was an unlicensed contractor , which was prohibited from collecting 17 compensation under Section 61-13-30. Additionally, Renaissance and Linda Ghaffari 18 filed a counter-complaint and third-party co mplaint against Plaintiffs, Scottsdale, and 19 Farkas, seeking damages for the partial demolition of the east wing of the building. 201 Neither Scottsdale nor Farkas are parties to this appeal. 18 6 Thereafter, the parties moved to c onsolidate the present action with Ali M. 1 Ghaffari, Sr., Blue and Red Bird Corporation, P.C., and Renaissance Labor 2 Management, Inc. versus Scottsdale Insurance Company , No. D-0905-CV-02006- 3 0034, which “involve[d] issues of not only insurance coverage[,] but a claim by 4 [Defendants] that an agent of [Scottsdale ], [Farkas], authorized repair to [the] 5 building.” The district court granted the mo tion. The claims ag ainst Scottsdale and 6 Farkas subsequently were settled for $112,500. 1 7 On August 25 and 26, 2008, the district court held a bench trial on the 8 remaining claims. The district court heldthat Preferred Builders was prohibited from 9 filing a claim of lien under Section 60-13-30 because it was not a licensed New 10 Mexico contractor or an incorporatedbusiness entity. Although Preferred Builders 11 alleged that it was operating under the c ontractor’s license granted to Preferred 12 Painters, a duly-licensed and incorporated business entity owned and operated by 13 Rocky and Sarah Benard, the court determined that CILA prohibits such an 14 arrangement. 15 Alternatively, the court found that Preferred Builders’ claim of $82,855.67 16 lacked evidentiary support because “muc h of the work claimed could not be 17 established. Proof was so lacking, and often misstated to the point of actual fraud.” 187 (Emphasis omitted.) The court found that the demolition “was unnecessary, 1 unreasonable[,] and excessive” and was not authorized by Defendants, Scottsdale, or 2 Farkas. 3 With respect to the counter-complaint and third-party complaint, the district 4 court found that Defendants were entitled to $146,249.10 in damages. Because Rocky 5 and Sarah Benard had “assumed to act as a corporation (Preferred Builders, S.W., 6 Inc.) without authority to do so[,]” the court held that they werejointly and severally 7 liable for the amount of the judgment under Section 53-18-9 (“All persons who 8

assume to act as a corporation without authority to do so are jointly and severally 9 liable for all debts and liabilitie s incurred or arising as a re sult thereof.”). The court 10 further held that, pursuant to McConal Aviation, Inc. v. Commercial Aviation Ins. Co. , 11 110 N.M. 697, 700, 799 P.2d 133, 136 (1990), “[ t]he benefits received from the 12 settlement with [Scottsdale] and [Farkas] represent a recovery from a collateral source 13 and may not be used to reduce the liabilityof [Preferred Builders], Sarah Benard[,] 14 and Rocky Benard.” 15 Preferred Builders moved for a new trial, arguing that “[t]he claimed damage 16 to ‘restore’ the building in the amount of $146,249.10 is unreasonable and not 17 supported by the . . . evidence. ” In support of its motion, Preferred Builders relied on 18 the findings of fact in Montoya v. Buena Vista Retirement Center, No. D0905-CV19 0200400202 (Sept. 23, 2004), in which the districtcourt granted the Secretary of the 208 Department of Health’s motion to pl ace the Buena Vista Retirement Home under 1 receivership. In that case, the district court found, in pertinent part , that “the roof was 2 leaking which resulted in toxic black moldthroughout the facility,” and “[t]here were 3 numerous leaks in the roof throughout the facility.” Preferred Builders alleged that 4 Defendants had suffered no damages because “at the time that [Preferred Builders] 5 first set foot in the building[,] the build ing was without any value and could not be 6 used as a nursing home[,] or any other be neficial use[,] becau se of the systemic 7 problems throughout the building.” 8 Following a hearing, the district court denied Preferred Builders’ motion for a 9 new trial. The district court noted that if Preferred Builders had “wanted [the c]ourt 10 to consider the facts in the Buena Vista case, then it could have presented live 11 testimony in support of those findings.” Th e court concluded that the “the Findings 12 of Fact in that case are not binding in th is case” and that the award of damages was 13 supported by “significant persuasive” evidence. This appeal followed. Additional 14 facts and procedural history will be set forth as necessary. 15 II. STANDARD OF REVIEW 16 “[W]e review findings of ultimate fact , whether by court or by jury, under the 17 substantial evidence standard.” C.R. Anthony Co. v. Loretto Mall Partners , 112 N.M. 18 504, 510, 817 P.2d 238, 244 (1991). “Substantial evidence is such relevant evidence 19 that a reasonable mind would find ad equate to support a conclusion.” Landavazo v. 209 Sanchez , 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990) . “We view the facts in the 1 light most favorable to the decision be low, and we resolve all conflicts and, 2 importantly, indulge in all inferences to support that decision.” Ellen Equip. Corp. v. 3 C.V. Consultants & Assocs, Inc. , 2008-NMCA-057, ¶ 8, 144 N.M. 55, 183 P.3d 940 4 (alterations omitted) (internal quot ation marks and citation omitted). 5 When a party challenges the districtcourt’s legal conclusions, we must 6 determine whether the law was co rrectly applied to the facts. Sunwest Bank of 7 Albuquerque, N.A. v. Colucci , 117 N.M. 373, 375, 872 P.2d 346, 348 (1994). “We 8 review questions of law de novo.” Kokoricha v. Estate of Keiner , 2010-NMCA-053, 9 ¶ 11, 148 N.M. 322, 236 P.3d 41. 1010 III. DISCUSSION 1 A. Whether Preferred Painters Was Doing Business Under the Trade Name, 2 Preferred Builders 3 Preferred Builders claims that Preferre d Painters was doing business under the 4 trade name, Preferred Builders, and, therefore, the district court improperly held that 5 Rocky and Sarah Benard were jointly and severally liable for the amount of the 6 judgment and that Preferred Builders was barred from maintaining an action for 7 compensation. Defendants respond that the district court properly determined, both 8 as a factual and legal matter, that Roc ky and Sarah Benard, rather than Preferred 9 Painters, were doing business under the trade name, Preferred Builders. 10 We begin our analysis with a brief re view of the law governing trade names. 11 “It seems to be universally recognized that a corporation may do business under an 12 assumed name, or under a name differi ng from its true corporate name.” Spain Mgmt. 13 Co. v. Packs’ Auto Sales, Inc. , 54 N.M. 64, 68, 213 P.2d 433, 435 (1950) (internal 14 quotation marks and citation omitte d). A trade name is mere ly descriptive of a person 15 or corporation doing business under some other name and, therefore, it does not create 16 a separate legal entity. 9A William Meade Fletcher, Fletcher Cyclopedia of the Law 17 of Private Corporations § 4994.50 (2008). Accordingly, “[a] suit by or against a 18 corporation generally may bebrought under the name in which it transacts business, 19 including an assumed, fictitious or trade name.” Id. 2011 To determine whether Rocky and Sarah Benard individually, or Rocky and 1 Sarah Benard on behalf of Pre ferred Painters, were operating under the trade name, 2 Preferred Builders, we turn to our case law governing the manner in which 3 corporations act. “A corporation can actonly through its officers and employees, and 4 any act or omission of an officer or an em ployee of a corporation, within the scope or 5 course of his or her employment, is anact or omission of the corporation.” Bourgeous 6 v. Horizon Healthcare Corp. , 117 N.M. 434, 437, 872 P.2d 852, 855 (1994); see UJI 7 13-409 NMRA. An act is within the scope or course of employment if it is “fairly and 8 naturally incidental to the employer’s bus iness assigned to the employee, . . . done 9 while the employee was engaged in the employer’s business with the view of 10 furthering the employer’s interest[,] and did not arise entirely from some external, 11 independent[,] and personal motive on the part of the employee.” Ovecka v. 12 Burlington N. Santa Fe Ry. Co. , 2008-NMCA-140, ¶ 15, 145 N.M. 113, 194 P.3d 728 13 (quoting UJI 13-407 NMRA) (alterations in original). 14 The record reflects that Rocky and Sa rah Benard owned and operated Preferred 15 Painters, a duly-incorporated business entity, which held a general contractor’s license 16 under CILA. At trial, Rocky Benard testif ied that Preferred Painters operated under 17 the trade name, Preferred Builders, to reflect the fact that it did more than just paint. 18 He explained that Preferre d Builders and Preferred Painters shared a telephone 19 number, a fleet of vehicles, and a single bank account held in the name of Preferred 202We recognize that “an officer or direct or of a corporation acting within the 15 scope of his corporate duties may be personally liable for a tort injuring a third party” 16 if the officer directed, controlled, approve d or ratified the activity that led to the 17 injury. Stinson v. Berry , 1997-NMCA-076, ¶¶ 17, 20, 123 N.M. 482, 943 P.2d 129. 18 However, Defendants did not seek to im pose personal liability on Rocky and Sarah 19 Benard for their corporate acts but, rather, argued in the district court and on appeal 20 to this Court that “[t]he Benards assumed to act as a corporation without authority” 21 and, therefore, “are deemed to have brought the suit personally” pursuant to Section 22 53-18-9. Accordingly, we do not reach the issue of personal liability under Stinson 23 and its progeny. 24 12 Painters. Additionally, Preferred Builders a dvertised in various telephone directories 1 as a general contractor under the licensenumber issued to Preferred Painters. 2 These facts admit of but one conclu sion—that Preferred Painters was doing 3 business under the trade name, Preferred Build ers, in order to bolster its general 4 contracting business. Because Rocky and Sa rah Benard were acting in their official 5 capacity as the officers of Preferred Painters , a duly-incorporated business entity, their 6 actions and omissions must be attributed to the corporation. 2 7 The district court held, however, thatPreferred Painters was precluded from 8 operating under the trade name, Preferred Build ers, because CILA “prohibits such an 9 arrangement.” We recognize that CILA prohibits a general contractor from “acting 10 in the capacity of a licensee under any other name than is set forth upon the license.” 11 Section 60-13-23(K); see NMAC 14.6.3.8(A)(3)(d) (2/1/06) (providing that a general 12 contractor’s license “authorize[s] only the entity as named on the license to engage in 13 contracting and no licensee may engage in contracting using a name other than the 1413 name that is shown on the license issued to it”). However, a violation of this 1 provision does not render a general contr actor personally liable for the acts or 2 omissions of a corporation under Section 53-18- 9. Rather, it simply provides the basis 3 for the imposition of certain internal administrative penalties, including, but not 4 limited to, license suspen sion or revocation. See Section 60-13-23(K); see also 5 Section 60-13-23.1 (granting the construc tion industries commission the authority to 6 impose administrative penalties in certain dollar amounts); Section 60-13-53 (granting 7 the construction industries commission the power to enforce CILA in the district court 8 by injunction, mandamus, or any proper legal proceeding). Accordingly, the district 9 court improperly held that Rocky and Sarah Benard were jointly and severally liable 10 for the amount of the judgment under Section 53-18-9. 11 We next address whether Preferred Painters, doing business as Preferred 12 Builders, was prohibited from maintaining an action for compensation under Section 13 60-13-30, which provides as follows: 14 A. No contractor shall act as agent or bring or maintain any 15 action in any court of the state for the collection of compensation for the 16 performance of any act for which a license is required by the [CILA] 17 without alleging and proving that such contractor was a duly licensed 18 contractor at the time the alleged cause of action arose. 19 B. Any contractor operating without a license as required by 20 the [CILA] shall have no right to f ile or claim any mechanic’s lien as 21 now provided by law. 2214 Section 60-13-30 “protect[s] the public from incompetent and irresponsible builders 1 [by operating] to bar unlicensed contractors’ suits for compensati on, even when they 2 seek compensation for cons truction work fully and satisfactorily performed.” Romero 3 v. Parker , 2009-NMCA-047, ¶ 8, 146 N.M. 116, 207 P.3d 350 (internal quotation 4 marks and citations omitted). 5 In view of the severity of the sanctions and the forfeitures which could 6 be involved, [the courts] are reluctant to construe the statute more 7 broadly than necessary for the achie vement of its purpose. The statute 8 should not be transformed into an unw arranted shield for the avoidance 9 of a just obligation. 10 Peck v. Ives , 84 N.M. 62, 66, 499 P.2d 684, 688 (1972) (adopting the doctrine of 11 substantial compliance for a plaintiff who had a valid contractor’s license at the time 12 of contracting (internal quotation marks omitted)). 13 It is undisputed that Preferred Painters possessed a valid contractor’s license 14 during the relevant time period. Althou gh Preferred Painters was doing business 15 under the trade name, Preferred Builders, the use of a trade name does not create a 16 separate legal entity. Cf. Nickels v. Walker , 74 N.M. 545, 549, 395 P.2d 679, 682 17 (1964) (holding that a partnership was prohibited from maintaining an action for 18 compensation under Section 60-13-30 because “[t]he organization of a partnership 19 creates a new legal entity wh ich requires a license, even though one or more of the 20 partners are licensed contractors” (empha sis omitted) (internal quotation marks and 21 citation omitted)). Because Preferred Painters and Preferred Builders are the same 223 For ease of reference, we hereinafter refer to Preferred Painters, doing business 19 as Preferred Builders, as “Preferred Builders.” 20 15 legal entity, and Preferred Painters was licensed in accordance with the requirements 1 of CILA, we conclude that Preferred Painters, doing business as Preferred Builders, 2 was not prohibited from maintaining an action for compensation under Section 60-13- 3 30. 4 In light of the foregoing conclusions, weneed not address whether the district 5 court properly exercised jurisdiction over Rocky and Sarah Benard, or whether 6 Preferred Painters, doing busin ess as Preferred Builders, 3 was in substantial 7 compliance with CILA. 8 B. Whether Preferred Builders’ Allege d Damages Were Unsupported by the 9 Evidence and Misstated to the Point of Actual Fraud 10 Having concluded that Pre ferred Builders was not prohibited from maintaining 11 an action for compensation under Section 60-13-30, we next address whether the 12 district court properly found that Pre ferred Builders’ alleged damages were 13 unsupported by the evidence and misstated to the point of actual fraud. Preferred 14 Builders claims that it did not have the burden to prove damages because this was a 15 “bid job,” rather than a “cost-plus job wher ein the contractor charges his costs for the 16 job plus a percentage over and above th e costs.” Additionally, Preferred Builders 17 claims that the elements of fraud were absent because Defendants failed to prove an 1816 intent to deceive or detrimental reliance. Defendants respond th at, because Preferred 1 Builders’ bid was not accepted by Defendants, the amount of the bid does not define 2 the amount of damages. Additionally, Defendants argue that the district court did not 3 err in using the term fraud to characteri ze Preferred Builders’ evidence of damages. 4 A “bid” is defined as “a written or oral offer to contract.” Section 60-13-2(K). 5 Although Preferred Builders offered to renovate the east wing of the building for a 6 contract price of $82,855.67, the district court found that this offer was not accepted 7 by Defendants. In the absence of a valid and binding contract, the contract price does 8 not define the amount of damages. See Hartbarger v. Frank Paxton Co. , 115 N.M. 9 665, 669, 857 P.2d 776, 780 (1993) (“Ordinarily, to be legally enforceable, a contract 10 must be factually supported by an offer, an acceptance, consideration, and mutual 11 assent.”). We therefore reject Preferred Bu ilders’ argument that proof of damages was 12 unnecessary “because [the job] was a ‘bid job.’” 13 Although Preferred Builders presented someevidence in support of its claim 14 of damages, the district court found this evidence to be “misstated to the point of 15 actual fraud.” The district court did not find Preferred Builders liable for the tort of 16 fraud; it simply used the term fraud to express how incredible and unworthy of belief 17 it found Preferred Builders’ evidence with respectto damages to be. In a bench trial, 18 “only the trial court is permitted to weigh the testimony, determine credibility, and 19 reconcile inconsistent or contradictory statements.” Shaeffer v. Kelton , 95 N.M. 182, 2017 186, 619 P.2d 1226, 1230 (1980). On appeal, “we will not reweigh the evidence nor 1 substitute our judgment for that of the fact finder.” Bishop v. Evangelical Good 2 Samaritan Soc’y , 2009-NMSC-036, ¶ 28, 146 N.M. 473, 212 P.3d 361 (internal 3 quotation marks and citation omi tted). Accordingly, we affirm the district court’s 4 factual finding. 5 C. Whether Defendants Proved Their Damages With Reasonable Certainty 6 Preferred Builders claims that Defendants failed to prove the amount of their 7 damages with reasonable certainty and, th erefore, the district court improperly 8 “awarded $146,249.10 on mere c onjecture and despite the fact that an estimate for 9 turning the east wing into a hotel was $70,889.61.” Defendants respond that the 10 award of damages was supported by substantial evidence. 11 “A party seeking to recover damages has the burden of proving the existence 12 of injuries and resulting damagewith reasonable certainty.” Sandoval v. Baker 13 Hughes Oilfield Operations, Inc. , 2009-NMCA-095, ¶ 25, 146 N.M. 853, 215 P.3d 14 791. Although an award of damages cannot be based on surmise, conjecture, or 15 speculation, “the amount of damages n eed not be proven with mathematical 16 certainty.” Camino Real Mobile Home Park P’ship v. Wolfe , 119 N.M. 436, 447, 891 17 P.2d 1190, 1201 (1995). “A dama ge award which is reasonably certain, supported by 18 substantial evidence, and not based on speculation, will be upheld on appeal.” 1918 Ranchers Exploration & Dev. Corp. v. Miles , 102 N.M. 387, 390, 696 P.2d 475, 478 1 (1985). 2 Defendants hired Brian McCalister of M cCalister Construction to renovate and 3 repair the east wing of the building. In s upport of their claim of damages, Defendants 4 submitted the testimony of McCalister, as well as numerous invoices and receipts 5 quantifying the cost of repair as $168,024.54. This amount included a contract price 6 of $70,889.61 for the renovation of the east wing, a weekly $500 management fee paid 7 to McCalister Construction, various goods and services not included within the 8 contract price, and a $21,775.44 estimate for work completed by unlicensed 9 handymen before McCalister Cons truction was hired. The district court found that the 10 “estimate of ‘prior’ work lacks proof and cannot be awarded,” but that the remainder 11 of claimed damages “$168,024.54 minus $21,775.44 [equals] $146,249.10 is 12 supported by a preponderance of the eviden ce.” Accordingly, the district court 13 awarded Defendants $146,249.10 incompensatory damages. 14 We conclude that the district court’ s award of damages was reasonably certain 15 and supported by substantial evidence. Cf. First Nat’l Bank in Albuquerque v. 16 Sanchez , 112 N.M. 317, 323, 815 P.2d 613, 619 (1991) (concluding that damages 17 were speculative when the plaintiff simply provided estimates and made no effort to 18 quantify the amount of damages). To the extent that Preferred Builders argues that 19 the legal measure of damage s was improper because the bu ilding was not restored to 2019 its prior condition, we decline to address th is claim because it was not preserved in the 1 district court. Andalucia Dev. Corp. v. City of Albuquerque , 2010-NMCA-052, ¶ 25, 2 148 N.M. 277, 234 P.3d 929 (“Appellate courts will not consider issues that went 3 unpreserved at the district court level.”) . Although Preferred Builders objected to the 4 admission of Defendants’ evidence regarding damages on the basis of relevancy, this 5 evidentiary objection was insufficient to alert the district court to a legal dispute 6 regarding the proper measure of damages. Compare Ruiz v. Varan , 110 N.M. 478, 7 481, 797 P.2d 267, 270 (1990) (noting that the measure of damages to real property 8 generally is the difference be tween “the value of the property immediately before the 9 occurrence and immediately after the occurrence” (quoting UJI 13-1819 NMRA)), 10 with Snider v. Town of Silver City , 56 N.M. 603, 614, 247 P.2d 178, 185 (1952) 11 (noting that “the measure of damages for in jury to a building which is not destroyed 12 is a sum sufficient to restore it to substantially the condition it was in prior to the 13 injury where this can be doneat a reasonable cost or fo r less than the depreciation in 14 the value of the building as a result of the injury” (internal quotation marks and 15 citation omitted)). 16 D. Whether the Prejudgment Settlement was a Collateral Source 17 Preferred Builders claims that Defe ndants received a double recovery by 18 obtaining a $112,500 settlement with Scotts dale and Farkas in addition to a 19 $146,249.10 judgment against Preferred Builder s and, therefore, the judgment must 2020 be offset by the amount of the settlement . Defendants respond that the settlement 1 proceeds were a collateral source under McConal Aviation, Inc. v. Commercial 2 Aviation, Ins. Co. , 110 N.M. 697, 799 P.2d 133 (1990), because the district court 3 found that Scottsdale, Farkas, and Preferre d Builders were not joint tortfeasors. 4 “New Mexico does not allow duplicati on of damages or double recovery for 5 injuries received.” Hale v. Basin Motor Co. , 110 N.M. 314, 320, 795 P.2d 1006, 1012 6 (1990). However, “an exception is the co llateral source rule,” which “allows a 7 plaintiff to recover his full losses from th e responsible defendant, even though he may 8 have recovered part of his lo sses from a collateral source.” McConal Aviation Inc. , 9 110 N.M. at 700, 799 P.2d at 136. This is because the “collateral contribution 10 necessarily benefits either the injured person or the wrongdoer” and “the purposes of 11 the parties . . . are obviously better served and the interests of society are likely to be 12 better served if the injured person is benefitted than if the wrongdoer is benefitted.” 13 Id. (internal quotation marks and citation omitte d)). Additionally, the rule furthers 14 “[t]he policy of New Mexico . . . favor[i ng] amicable settlement of claims without 15 litigation” by allowing the settling party “to enjoy a favorable settlement or [be] bound 16 by a poor settlement.” Id. at 700-01, 799 P.2d at 136-37. For these reasons, the 17 collateral source rule is limited “to the prejudgment settlement of a claim involving 18 neither a joint tortfeasor nor a joint obligor under a contract.” Sanchez v. Clayton , 117 19 N.M. 761, 766, 877 P.2d 567, 572 (1994). 2021 The district court expressly found that Preferred Builders “practically ‘gutted’ 1 the east wing of the building” without prior “authorization or approval . . . from 2 [Farkas] or [Scottsdale].” Because neith er Scottsdale nor Farkas were found liable 3 for Defendants’ damages, they were not joint tortfeasors under the Uniform 4 Contribution Among Tortfeasors Act. See NMSA 1978, Sections 41-3-1 to -8 (1947) 5 (defining joint tortfeasors as “two or more persons jointly or severally liable in tort for 6 the same injury to person or property, wh ether or not judgment has been recovered 7 against all or some of them”). Accordi ngly, the district court properly held that 8 Defendants’ prejudgment settlement with Sc ottsdale and Farkas “represent[s] a 9 recovery from a collateral source.” 10 Preferred Builders argue s, however, that Defendants are bound by the 11 admissions in their third-party complaint, which alleged that “[a]ll work done by 12 [Preferred Builders] was done under the di rection, authority[,] and control of 13 [Scottsdale] and its agent [Farkas].” We reject this cl aim because joint tortfeasor 14 status depends on the facts found by the trier of fact, rather than the allegations 15 contained in a parties’ complaint. In McConal Aviation, Inc. , the Supreme Court 16 recognized that the settling defendants may be“found to be free of fault by the jury” 17 and, therefore, may not be “tortfeasors, as they had committed no tort.” 110 N.M. at 18 700, 799 P.2d at 136. Under such circumst ances, “[t]he amounts paid by the settling 19 defendants [are], in the legal sense, volunt ary. They [are], in legal terminology, 204We need not decide whether Preferre d Builders was entitled to a new trial 15 based on newly-discovered evidence because Preferred Builders did “not [ask] for a 16 new trial on the basis of newl y-discovered evidence. [That was] not the basis of” its 17 motion. See Pena v. Westland Dev. Co. , 107 N.M. 560, 564, 761 P.2d 438, 442 (Ct. 18 App. 1988) (listing the prerequisites for granting a motion for a new trial based on 19 newly-discovered evidence). 20 22 collateral sources.” Id. (internal quotation marks and citation omitted). Because the 1 district court found that Sco ttsdale and Farkas were free of fault, Preferred Builders 2 was not entitled to an offset in the amount of the prejudgment settlement. 3 E. Whether the District Court Improperly Denied Preferred Builders’ Motion 4 for a New Trial 5 Lastly, Preferred Builders cl aims that the district court improperly denied its 6 motion for a new trial because Defendants’ cause of action was barred by the doctrine 7 of collateral estoppel. The record reflects that Preferred Builders raised this claim for 8 the first time in its motion for a new trial. 4“Generally, a motion for a new trial cannot 9 be used to preserve issues not otherwise raised during the proceedings.” Sandoval , 10 2009-NMCA-095, ¶ 56; see Goodloe v. Bookout , 1999-NMCA-061, ¶ 13, 127 N.M. 11 327, 980 P.2d 652 (“Raising the matter in thei r motion for a new trial came too late; 12 objections must be raised in time for the trial judge to correct the error to prevent 13 prejudice.”). “We require a party to object at trial and invoke a ruling from the trial 14 court in order to alert the trial court to a claim of error so that it has an opportunity to 15 correct any mistake.” State v. Pacheco , 2007-NMSC-009, ¶ 7, 141 N.M. 340, 155 1623 P.3d 745 (internal quotation marks and citation omitted) (holding that an argument 1 raised for the first time in the defendant’s motion for a new trial was not preserved for 2 appellate review); see Rule 12-216(A) NMRA (“To preserve a question for review it 3 must appear that a ruling or decision by th e district court was fairly invoked[.]”). 4 Because Preferred Builders failed to preservethis claim for appellate review, we 5 decline to address it. 624 IV. CONCLUSION 1 We conclude that Preferre d Painters, a duly-licensed and incorporated business 2 entity, was doing business under the trade name , Preferred Builders. Accordingly, the 3 district court improperly held that Rocky and Sarah Benard were jointly and severally 4 liable for the amount of the judgment and that Preferred Builders was precluded as a 5 matter of law from maintaining an acti on for compensation under Section 60-13-30. 6 However, we affirm the judgment of th e district court denying Preferred Builders’ 7 claim for damages and awarding Defendants damages in the amount of $146,249.10. 8 Accordingly, we affirm in part and reverse in part. 9 IT IS SO ORDERED. 10

_______________________________ 11 CYNTHIA A. FRY, Judge 12

WE CONCUR: 13

14 CELIA FOY CASTILLO, Chief Judge 15

16 MICHAEL E. VIGIL, Judge 17