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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

JOHNSON & DANLEY CONSTRUCTION 7 CO., INC., a New Mexico corporation and 8 MEADOW VALLEY CONTRACTORS, INC., 9 a Nevada corporation, 10 Plaintiffs-Appellees/Cross-Appellants, 11

v. NO. 29,575 12 THE STATE OF NEW MEXICO ex rel. 13 NEW MEXICO DEPARTMENT OF 14 TRANSPORTATION f/k/a New Mexico 15 State Highway and Transportation 16 Department, 17 Defendant-Appellant/Cross-Appellee. 18

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 19 Jerry H. Ritter, Jr. , District Judge 20 Law Office of Jane B. Yohalem 21 Jane Bloom Yohalem 22 Santa Fe, NM 23 for Appellees/Cross-Appellants 24 Sutin, Thayer & Browne, P.C. 25 C. Shannon Bacon 262 Kerry Kiernan 1 Albuquerque, NM 2 for Appellant/Cross-Appellee 3 MEMORANDUM OPINION 4 WECHSLER, Judge. 5 Defendant, in its appeal, and Plaintiffs, in their cross appeal, assert that the 6 district court erred in issuing an order modifying the settlement agreement between 7 the parties. Defendant argues that the di strict court erred by failing to enforce the 8 agreement as written and by supplying additional terms that it believed had been 9 omitted by the parties. [Def.’s DS 18-27] Plaintiffs argue that, based on the parties’ 10 past use of language and courseof dealings, the district court should have interpreted 11 the agreement to mean that Defendant woul d pay the full amount of any gross receipts 12 taxes owed on the settlement, in addition to the stated settlement amount. [Pls.’ DS 13 14-15] In this Court’s notice of proposed summary disposition, we proposed to 14 reverse and to hold that nothing in the agreement required Defendant to pay any 15 amounts above the $10 million provided for inthe settlement agreement. Defendant 16 timely responded with a memorandum in support. Plaintiffs have responded with a 17 memorandum in opposition, pursuant to the gran t of an extension of time. We have 18 considered Plaintiffs’ arguments, and as weare not persuaded by them, we reverse and 193 hold that the agreement should be enforced as written. 1

I. The Agreement Is Not Ambiguous 2 The settlement agreement provided that: 3 The NMDOT will pay, and J&D and MV CI . . . will accept, the total sum 4 of Ten Million and no/100 dollars ( $10,000,000) as complete, full and 5 final settlement and resolution of all claims, demands, causes of action, 6 judicial orders, change order request s, pay requests, pay applications or 7 other additional payment or compensation of any kind or description . . 8 . arising out of or in anyway [sic] connected with the construction . . . 9 commonly referred to collectivel y as the Alamogordo Relief Route 10 Projects, and any claims arising there from, said amount to be allocated 11 and divided by and between J&D and MVCI and any others claiming 12 through either of them as J&D and MVCI . . . separately decide and 13 agree without further involvement or liability on the part of the NMDOT. 14

. . . . 15 No other claim for money due or owed, extra time, reimbursement, 16 damages, changes, payment or other recompense of any kind or 17 description shall survive this settlem ent, it being the express intent of 18 J&D, MVCI and NMDOT to fully, finally and forever resolve any 19 liability on the part of the NMDOT to J&D and/or MVCI and any other 20 person or entity claims by or through them arising out of CN 1970 and 21 CN 3650. 22 [RP 3998, 3999] The district court conclu ded that on its face, this language was 23 unambiguous in setting Defendant’s settlement obligation at $10 million. [RP 4118] 24 In our notice of proposed summary dispositi on, we proposed to conclude that the 254 language was unambiguous and that no evidence was presented regarding the parties’ 1 negotiations, use of language, or course of dealing that would create an ambiguity. 2 In their memorandum in opposition, Plaintiffs assert that the contract language is in 3 fact ambiguous and that the evidence establishes that the parties intended that 4 Defendant would pay gr oss receipts taxes in addition to the $10 million. Plaintiffs 5 begin their argument by asserting that a portion of the $10 million settlement amount 6 is properly characterized as a payment fo r construction services for tax purposes. 7 [Pls’. MIO 3-7] Plaintiffs rely on several federal tax cases for this proposition. [Pls.’ 8 MIO 4, 6 n.3] We do not necessarily disagree; that simply is not the issue before us, 9 so we make no determination as to whether and, if so, what portion of, the $10 million 10 payment is taxable as a payment on the c onstruction contract. We merely indicated 11 in our notice of proposed summary dispositi on that an agreement to settle a lawsuit 12 serves a different purpose than would an undisputed payment on the underlying 13 contract and that we did not believe that a course of dealing as to payments on the 14 underlying contract should control our interp retation of the settlement agreement. In 15 our notice, we pointed out that Plainti ffs cited no authority contrary to this 16 proposition, and as Plaintiffs still have not done so, we may presume that none exists. 17
See In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) 185 (indicating that when a party cites no authority in support of a proposition, we may 1 presume that no such authority exists); see also Hennessy v. Duryea , 2 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P. 2d 683 (“Our courts have repeatedly 3 held that, in summary calendar cases, th e burden is on the party opposing the proposed 4 disposition to clearly point out errors in fact or law.”). 5 Furthermore, even if we were to consid er the fact that Defendant was obligated 6 to pay the gross receipts taxes on paymen ts received under the underlying construction 7 contracts, we still do not believe that th is creates any ambiguity in the settlement 8 agreement. Plaintiffs do not point to anything in the language of the agreement itself 9 that is actually ambiguous—even in light of su ch a prior course of dealing. Plaintiffs 10 suggest that the ambiguous term in the contr act is the term that the payment is “full 11 and final.” [Pls.’ MIO 14] We do not find this argument persuasive. There is simply 12 nothing in this term of the agreement that would suggest that Defendant had agreed 13 to pay an amount above the $10 million figure. Although Plaintiffs rely on various 14 instances in the past in which Defendant has been responsib le for paying gross 15 receipts taxes, Plaintiffs cannot connect this past conduct with any term of the current 16 contract to suggest that there is any ambi guity in the settlement agreement regarding 17 an additional payment of gross receipts taxes on top of the $10 million settlement sum. 186 II. The Agreement Contains No Provision s that Relate to the Payment of 1 Gross Receipts Taxes 2 Rather than an ambiguous term in the contract, it seems that what Plaintiffs are 3 really pointing to is silence on the issue of gross receipts taxes: Plaintiffs state that 4 “[a]lthough the settlement agreement specifies that it is intended to resolve all 5 liability, and provides for a ‘fu ll and final’ settlement, th e language of the settlement 6 agreement does not mention gross receipts taxes.” [Pls .’ MIO 9 (emphasis added)] 7 Plaintiffs call this failure to mention th e taxes “silence” on the issue, something that 8 “is not included . . . or otherwis e mentioned,” and an “absence.” [Pls.’ MIO 9] 9 Therefore, we must determine whether this silence requires that Defendant be 10 responsible for any payments for gr oss receipts taxes on the settlement. 11 A. The Agreement Does Not Contain theType of Omitted Term that May Be 12 Supplied by the Courts 13 In our notice of proposed summary dis position, we proposed to conclude that 14 the agreement’s silence on the issue of gr oss receipts taxes was not the sort of 15 omission of a material contract term that would justify the addition of a term by the 16 courts. In light of the undisputed fact th at the parties never di scussed gross receipts 17 taxes during their nego tiations, we indicated that we did not see how Plaintiffs’ 187 unarticulated desire to have Defendant pay additional amounts would create a material 1 omission in the agreement, as this was not a case in which a term that is essential to 2 a determination of the parties’ rights and responsibilities under the contract has been 3 left out. Cf. Smith v. Galio , 95 N.M. 4, 7, 617 P.2d 1325, 1328 (Ct. App. 1980) 4 (holding that when contract is silent as to the time for performance, a reasonable time 5 will be implied by the district court). We pointed out that Plaintiffs cited no authority 6 to suggest that an express term coveri ng gross receipts taxes is necessary in a 7 settlement agreement such as this one or that the agreement was unreasonable or could 8 not be carried out in the absence of such a term. See In re Adoption of Doe , 100 N.M. 9 at 765, 676 P.2d at 1330. Therefore, we propos ed to hold that the district court erred 10 in supplying terms for which the parties had not bargained and to which they had not 11 agreed. 12 In response, Plaintiffs do not argue thata term regarding gross receipts taxes 13 is material to the contract such that the parties cannot carry out their obligations under 14 it unless the courts supply such a term. [P ls.’ MIO 17-18] Instead, Plaintiffs suggest 15 that the silence on the issue of gross receipts taxes should be understood to mean that 16 Defendant intended to agree to pay gr oss receipts taxes on the portion of the 17 settlement that could be characterized as a payment on the construction contract in 188 addition to the $10 million settlement amount. [Pls.’ MIO 10-18] In effect, Plaintiffs 1 are asking this Court to find that this term is an implied term of the contract based on 2 the parties’ intent as evidenced by their past conduct. See Estate of Griego ex rel. 3 Griego v. Reliance Standard Life Ins. Co. , 2000-NMCA-022, ¶ 21, 128 N.M. 676, 997 4 P.2d 150 (“A contract includes not only the pr omises set forth in express words, but, 5 in addition, all such implied provisions as are indispensable to effectuate the intention 6 of the parties and as arise from the langua ge of the contract and the circumstances 7 under which it was made.”). Plaintiffs a ssert that the value of the construction 8 contract payments was $750,000 and that, under the prior course of dealing (and under 9 Defendant’s standard specifications for highway construction contracts) Defendant 10 would pay the gross receipts taxes on this amount, even if the construction contract 11 was silent on the issue of taxes. [Pls.’ MIO 5, 10] 12 We decline to find that such a term is implied. Courts generally enforce 13 contracts as written, and we are reluctant to add terms to an agreement unless the term 14 is truly necessary or it is clear that th e parties actually intended that the term be 15 included. See Estate of Griego ex rel. Griego , 2000-NMCA-022, ¶ 21 (“A court may 16 have to imply terms in a contract whento do otherwise would render the contract 17 absurd and meaningless.”); Twin Forks Ranch, Inc. v. Brooks , 1998-NMCA-129, ¶ 20, 189 125 N.M. 674, 964 P.2d 838 (stating that courts are unwilling to rewrite contracts to 1 add terms unless the evidence is clear and convincing that the added term was what 2 the parties actually intended and agreed upon). This case does not present such a 3 circumstance. We find nothing in the record to suggest that the parties actually agreed 4 or intended to agree to settle the claim fo r any more than the stated $10 million. We 5 note that the district court did not believe th at the parties agreed to do what Plaintiffs 6 suggest either, as the district court found there was no meeting of the minds on gross 7 receipts taxes and as its added terms did notrequire Defendant to pay gross receipts 8 taxes on the $750,000, and instead only require d Defendant to pay gross receipts taxes 9 in the event that any amount of the settlement above $750,000 was taxed as a payment 10 on the construction contract. [RP 4118] 11 If Plaintiffs wanted to add an additional term requiring Defendant to pay gross 12 receipts taxes in addition to the $10 milli on settlement payment, they should have 13 raised this issue during negotiations in or der to seek to reach an agreement with 14 Defendant on the matter. See WXI/Z Sw. Malls Real Estate Liab. Co. v. Mueller , 15 2005-NMCA-046, ¶ 22, 137 N.M. 343, 110 P. 3d 1080 (“[The defendants/assignors 16 of the lease at issue] were free to insist on a notice requi rement or any other condition 17 or limitation in their guaranty, but having failed to do so, this Court will not write such 1810 a condition in after the fact.”). We hold that the district court erred in supplying terms 1 that were neither negotiated by the parties nor necessary to make up for any omission 2 in the agreement that was actually negotiated, and we decline to find any other implied 3 terms regarding the payment of gross receipts taxes. 4 B. Plaintiffs’ Unarticulated Expectatio n that Defendant Would Pay the Gross 5 Receipts Taxes in Addition to the $10 Million Settlement Amount Does Not 6 Control the Meaning of the Contract 7 Plaintiffs rely on Pope v. Gap, Inc. , 1998-NMCA-103, ¶ 13, 125 N.M. 376, 961 8 P.2d 1283, to argue that even if the parties did not actually agree that Defendant would 9 pay gross receipts taxes on top of th e settlement amount, Defendant is bound by 10 Plaintiffs’ expectation that Defendant would do so because Defendant should have 11 known that Plaintiffs would think that silence on the issue meant that Defendant 12 would pay the taxes, and Pl aintiffs had no reason to know that Defendant would not 13 interpret the contract in this way. [Pls.’ MIO 16-17] In Pope , this Court applied the 14 principle that when parties disagree about the terms of a contract, “[t]he 15 manifestations of the parties are operativ e in accordance with the meaning attached 16 to them by one of the parties if . . . thatparty has no reason to know of any different 17 meaning attached by the other, and the other has reason to know the meaning attached 18 by the first party.” Id. (first alteration in original) (internal quotation marks and 1911 citation omitted). 1 We conclude that this principle do es not require that the agreement be 2 interpreted in light of Plaintiffs’ unstate d expectation. In our notice of proposed 3 summary disposition, we pointed out that th e prior practice of the parties with respect 4 to settlement agreements had been to include an express provision stating that 5 Defendant would be responsib le for gross receipts taxes when the parties intended 6 Defendant to pay them in addition to the settlement amount itself. Plaintiffs respond 7 that this is not the only evidence of th e parties’ past practice with respect to 8 settlements, since in two previous settleme nts, there was no discussion of who would 9 pay the gross receipts taxes, and De fendant paid them. [Pls. MIO 12-13] We note 10 that these two previous “settlements” are not negotiated settlement agreements and, 11 instead, reflect Defendant’s internal administrative reso lution of claims. [RP 4064-65, 12 4081, 4088] These dispute resolutions did notinvolve the settlement of a lawsuit and 13 did not require a negotiated se ttlement agreement. Therefore, we do not believe that 14 these resolutions shed light on the issue of whether either of the parties would 15 interpret silence in a settlement agreement regarding any additional payments of gross 16 receipts taxes to mean that Defendant woul d make an additional payment of the gross 17 receipts taxes on top of the settlement amount. The only negotiated settlement 1812 agreement between the parties shows that when the parties agree that Defendant will 1 pay the gross receipts taxes in addition to a base amount to settle the lawsuit , the 2 parties include an express provision in their agreement so providing. [RP 4094] 3 Based on this evidence, Plaintiffs had a reason to know that Defendant was likely to 4 believe that it would only pay gross receipts taxes on top of the settlement amount if 5 it expressly agreed to do so as part of the settlement agreement. Pope does not require 6 that Plaintiffs’ unstated expectation be enforced. 7 III. On Remand 8 Defendant asks this Court to instruct the district court to enter a particular 9 factual finding and conclusion of law on re mand. [Def.’s MIS 6] Defendant is 10 apparently concerned about tw o factual findings made by the district court regarding 11 the amount of the $10 million settlement payment that should be characterized as a 12 payment for construction services. [Def.’s MIS 4-5 n.1] We decline to state any 13 opinion on these factual findings as they we re not challenged on appeal in Defendant’s 14 docketing statement, see Stueber v. Pickard , 112 N.M. 489, 491, 816 P.2d 1111, 1113 15 (1991) (stating that an unchallenged finding of the district court is binding on appeal), 16 and we will not instruct the district court on the particular findings and conclusions 17 it should enter on remand. 1813 IV. Conclusion 1 Accordingly, for the reasons stated in this opinion and in our notice of proposed 2 summary disposition, we reverse and remand fo r entry of an order consistent with this 3 opinion. 4 IT IS SO ORDERED. 5

_______________________________ 6 JAMES J. WECHSLER, Judge 7 WE CONCUR: 8

_____________________________ 9 CYNTHIA A. FRY, Chief Judge 10

_____________________________ 11 ROBERT E. ROBLES, Judge 12