This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STAR VARGA, 2 Plaintiff-Appellant/Cross-Appellee, 3

v. No. 31,268 Consolidated with 4 31,337 and 31,398 5 MARK FERRELL, GRETCHEN 6 CAMPBELL, DESERT LAKES 7 REALTY, LLC, and DOES 4 THROUGH 20, 8 INCLUSIVE, 9 Defendants-Appellees /Cross-Appellants, 10 and 11 SUSAN LOWE, 12 Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY 14 Kevin R. Sweazea, District Judge 15 Lee Deschamps 16 Socorro, NM 17 Susan Lea 18 Elephant Butte, NM 19 for Appellant/Cross-Appellee 20 Law Offices of Stephen E. Hosford, P.C. 21 Arrey, NM 222 for Mark Ferrell and Susan Lowe 1 Sutin, Thayer & Browne 2 Susan M. Hapka 3 Albuquerque, NM 4 for Appellees/Cross-Appellants 5 Gretchen Campbell and Desert Lakes Realty, LLC 6 MEMORANDUM OPINION 7 FRY, Judge. 8
{1} Plaintiff’s motion for rehearing is denied. The memorandum opinion filed on 9 October 2, 2013, has been withdrawn and this memorandum opinion is substituted in 10 its place. 11
{2} This case arises from Plaintiff’s purch ase of a home in Elephant Butte, New 12 Mexico. Plaintiff discovered constructi on defects after she took possession and sued 13 the seller Mark Ferrell, the seller’s broker Susan Lowe, and her own brokers, Gretchen 14 Campbell and Desert Lake Realty, LLC (collectively, Campbell/DLR). On Plaintiff’s 15 appeal, we affirm summary judgment entered in favor of Campbell/DLR and Lowe. 16 We reverse the district court’s reduction of its award of punitive damages in favor of 17 Plaintiff against Ferrell and remand for recalculation of that damages award. On 18 Ferrell’s cross-appeal, we affirm the distri ct court’s measure of damages awarded to 19 Plaintiff to compensate her for Ferrell’s misrepresentations. 203 BACKGROUND 1
{3} In this opinion, we address Plaintiff’s appeal and Ferrell’s cross-appeal. We 2 address Campbell/DLR’s cross-appeal in a fo rmal opinion filed concurrently with this 3 opinion. Because the parties are familiar with this case and because this is a 4 memorandum opinion, we do not provide a summary of the factual and procedural 5 background. We discuss the facts where re levant to the issues addressed in this 6 opinion. 7 DISCUSSION 8 I. Plaintiff’s Appeal 9
{4} Plaintiff makes three primary arguments in her appeal. She maintains that the 10 district court: (1) erroneously grante d Campbell/DLR and Lowe summary judgment 11 and should have granted Plaintiff’s motion fo r reconsideration; (2) erred in amending, 12 sua sponte, the punitive damages award in Plaintiff’s favor against Ferrell; and (3) 13 erroneously awarded costs to Campbell/DLR. We address each in turn after first 14 considering Campbell/DLR’s and Lowe’s contention that Plaintiff’s notices of appeal 15 were procedurally defective. 16 A. Plaintiff’s Notices of Appeal Were Not Defective 17
{5} Campbell/DLR argue that we should not consider Plaintiff’s challenge to 18 summary judgment in their favor because, c ontrary to Rule 12-202(C) NMRA, she did 194 not attach the order granting summary judgment to her notice of appeal. Lowe 1 contends that Plaintiff failed to preserveher right to appeal summary judgment in 2 Lowe’s favor because she did not file an app eal within thirty days of the first order 3 denying her motion for reconsideration of the summary judgment orders. We are not 4 persuaded by either argument. 5
{6} Defendants’ arguments regarding the noti ce of appeal require us to interpret 6 court rules, which wereview de novo. See Grygorwicz v. Trujillo , 2009-NMSC-009, 7 ¶ 7, 145 N.M. 650, 203 P.3d 865. The sequence of events leading to Plaintiff’s second 8 amended notice of appeal is as follows. The district c ourt heard Defendants’ motions 9 for summary judgment on December 29, 2010, and orally granted all of 10 Campbell/DLR’s and Lowe’s motions. Before any orders were f iled memorializing 11 the district court’s ruling, Plaintiff file d a motion for reconsideration on January 4, 12 2011, and an amended motion for reconsider ation on January 5, 2011. On January 10, 13 2011, the district court entered its orders granting the summary judgment motions 14 mentioned above and its order denyi ng Plaintiff’s amended motion for 15 reconsideration. 16
{7} Plaintiff filed a third motion seeking reconsideration of all orders granting 17 Defendants’ motions for summary judgment on January 20, 2011. The district court 18 heard this motion on March 23, 2011, and orally denied it. Before an order 19 memorializing this ruling was filed, Plai ntiff filed a notice of appeal on April 20, 205 2011, which stated that she was appealing fro m (1) the district court’s order awarding 1 costs to the DLR Defendants, and (2) “any [o]rder or [j]udgment made by the [c]ourt 2 on March 23, 2011[,] denying Plaintiff[’s] [m]o tion for [r]econsideration of [c]ourt’s 3 [o]rders [g]ranting all [m]otions for [s]ummary [j]udgment filed by Defendants 4 [Campbell, DLR, and Lowe].” She attached the first order to the notice of appeal.The 5 district court filed the order denying Plai ntiff’s third motion for reconsideration on 6 April 27, 2011, and Plaintiff filed an ame nded notice of appeal on May 3, 2011. In 7 this notice of appeal, Plaintiff identified the orders she was appealing from in terms 8 virtually identical to the terms used in her April 20 notice of appeal, except she stated 9 that the order denying the motion for recons ideration was filed on April 27, 2011. She 10 attached to this notice the district c ourt’s April 27 order denying her motion for 11 reconsideration. Plaintiff filed a second amended notice of appeal in July 2011, which 12 identified the same orders plus another order not relevant to this issue. 13 2. Campbell/DLR’s Argument 14
{8} Campbell/DLR do not argue that Plaintiff’s notice(s) of appeal were untimely 15 filed. Rather, they argue that Plaintiff’s notices of appeal did not attach the January 16 10 order granting Campbell/DLR’s motions for summary judgment and that this 17 failure violates Rule 12-202(C). Rule 12-202( C) requires an appellant to attach “[a] 18 copy of the judgment or order appealedfrom.” We disagree with Campbell/DLR’s 19 argument because our Supreme Court has established that “an appeal timely filed is 206 not to be dismissed for tec hnical violations of Rule 12-202 that do not affect the 1 substantive rights of the parties.” Govich v. N. Am. Sys., Inc. , 1991-NMSC-061, ¶ 13, 2 112 N.M. 226, 814 P.2d 94. The purpose underlyi ng Rule 12-202 is “vindicated if the 3 intent to appeal a specific judgment fairlycan be inferred from the notice of appeal 4 and if the appellee is not prejudiced by any mistake.” Govich , 1991-NMSC-061, ¶ 13. 5
{9} In the present case, although Plaintiff did not attach the January 10 order 6 granting Campbell/DLR summary judgment, the order she did attach to her amended 7 notice of appeal, which was the order denying her motion for reconsideration, 8 mentioned the orders granting summary judgment. Indeed, there would have been no 9 reason for a motion for reconsideration if summary judgment had not been granted. 10 See id ¶ 14 (inferring intent to appeal from an earlier order when the later order 11 specified in the notice of appealreferred to the earlier order); Nevarez v. State Armory 12 Bd. , 1972-NMSC-065, ¶¶ 9, 11, 84 N.M. 262, 502 P.2d 287 (concluding that notice 13 of appeal was sufficient even though it di d not mention the summary judgment being 14 appealed because the judgment mentioned inthe notice recited the entry of summary 15 judgment). We can fairly infer that Plai ntiff intended to appeal the order granting 16 summary judgment to Campbell/DLR. 17
{10} Furthermore, Campbell/DLR have not ar gued that they were prejudiced by 18 Plaintiff’s failure to attach the January 10 order to her notices of appeal, and we see 19 nothing in the record suggesting that this failure misled Campbell/DLR in any way. 207 As a result, we will consider the merits of Plaintiff’s arguments challenging the 1 district court’s order granting summary judgment to Campbell/DLR. See Govich , 2 1991-NMSC-061, ¶ 14 (inferring intent to appeal and noting that the record did not 3 suggest that the appellee was misled by the appellant’s failure to specify the judgment 4 appealed from); Nevarez , 1972-NMSC-065, ¶ 11 (same). 5 3. Lowe’s Argument 6
{11} Lowe argues that Plaintiff had to file a notice of appeal within thirty days from 7 the district court’s January 10, 2011, or der denying Plaintiff’s first motion for 8 reconsideration. We disagree. 9
{12} Rule 12-201(D) NMRA provides that “[i]f a party timely files a motion 10 pursuant to . . . Rule 1-059 NMRA, the full tim e prescribed in this rule for the filing 11 of the notice of appeal shall commence to run and be computed from the entry of an 12 order expressly disposing of the motion.” Here, Plaintiff filed her first and second 13 motions for reconsideration before the c ourt had entered the orders granting Lowe 14 summary judgment. “It is well established that an oral ruling by the trial court is not 15 a final judgment, and that the trial court canchange such ruling at any time before the 16 entry of written judgment.” State v. Diaz , 1983-NMSC-090, ¶ 4, 100 N.M. 524, 673 17 P.2d 501. Thus, the district court’s oral ruling in this case on December 29, 2010, was 18 not a final order. When the district c ourt ultimately entered its written orders on 19 January 10, 2011, Plaintiff filed a timely mo tion for reconsideration of those orders 208 ten days later. See Rule 1-059(E) (stating that a motion to alter or amend a judgment 1 “shall be served not later than ten (10) days after entry of the j udgment”). Thus, under 2 Rule 12-201(D), the time for Plaintiff to file her notice of appeal did not begin to run 3 until the district court filed its order denying this motion for reconsideration on April 4 27, 2011. Plaintiff filed her amended noti ce of appeal on May 3, 2011, and her appeal 5 was therefore timely. 6 B. Summary Judgment in Favor of Campbell/DLR and Lowe Was Proper 7
{13} Campbell/DLR and Lowe argue that the district court properly granted them 8 summary judgment because they submitted undisputed material facts in support of 9 their motions and Plaintiff failed to re spond as required by Rule 1-056(D)(2) NMRA. 10 Therefore, they maintain, their undisputed material facts are deemed admitted. 11 Plaintiff responds that (1) she filed a res ponse to the motions that was compliant with 12 Rule 1-056(D)(2) after the district court en tered its orders granting summary judgment 13 and that this compliant response should have been considered by the district court; (2) 14 her original response evidenced genuine issu es of material fact, especially given 15 Defendants’ own failure to co mply with Rule 1-056(D)(2); and (3) the court’s entry 16 of summary judgment against Plaintiff cons tituted an improper, extreme sanction for 17 her failure to technically co mply with Rule 1-056(D)(2). We are not persuaded by any 18 of Plaintiff’s arguments. 199 {14} We review an order granti ng summary judgment de novo. Self v. United Parcel 1 Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “Summary judgment 2 is appropriate where there are no genuine i ssues of material fact and the movant is 3 entitled to judgment as a matter of law.” Id. 4
{15} Rule 1-056(D)(2) specifies the contents required of a memorandum in support 5 of a motion for summary judgment and a memorandum in opposition to such a 6 motion: 7 The memorandum in support of the motion shall set out a concise 8 statement of all of the material facts as to which the moving party 9 contends no genuine issue exists. Th e facts shall be numbered and shall 10 refer with particularity to those po rtions of the record upon which the 11 moving party relies. 12 A memorandum in opposition to the motion shall contain a 13 concise statement of the material facts as to which the party contends a 14 genuine issue does exist. Each fact in dispute shall be numbered, shall 15 refer with particularity to those portions of the record upon which the 16 opposing party relies, and shall state the number of the moving party’s 17 fact that is disputed. All material f acts set forth in the statement of the 18 moving party shall be deemed admitte d unless specifically controverted. 19 Consistent with this rule, Campbell/DLR and Lowe submitted detailed statements of 20 undisputed material facts in support of th eir motions, with evidentiary support cited 21 for each stated fact. In response, Plainti ff filed a fifty-page argument that contained 22 no numbered disputed facts, no specific references to Defendants’ numbered 23 undisputed material facts, and no references to evidence supporting any of the 24 allegedly factual assertions. Plaintiff f iled three affidavits, portions of which were 251 Plaintiff refers to many of these strickenaffidavit excerpts and exhibits in her 19 brief in chief. We do not c onsider any of those items that were stricken by the district 20 court. 21

2 Plaintiff’s first, second, and third cause s of action were asserted only against 18 Ferrell, and the district court denied summary judgment to Ferrell on these claims. 19 10 stricken on hearsay grounds, and numerous exhibits, many of which were stricken 1 because they were not sworn or certified. 1 She also filed an additional pleading that 2 purported to contain a memorandum of undisputed facts but which simply stated in 3 numbered paragraphs that it was “incorporat[ing] herein by . . . reference” the various 4 affidavits and exhibits and “the undisputed facts set forth therein.” 5
{16} Plaintiff’s responsive pleadings did not comply with the requirements of Rule 6 1-056(D)(2). However, this did not automatically entitle Campbell/DLR and Lowe 7 to summary judgment. See Junge v. John D. Morgan Constr. Co. , 1994-NMCA-106, 8 ¶ 12, 118 N.M. 457, 882 P.2d 48 (explaining th at a movant is “not automatically 9 entitled to summary judgment on the basis of an allegedly improper response”). 10 Defendants had the burden “to show an abse nce of a genuine issue of fact, and that 11 [they were] entitled as a matter of law to judgment in [their] favor.” Brown v. Taylor , 12 1995-NMSC-050, ¶ 8, 120 N.M. 302, 901 P.2d 720. We therefore turn to the claims 13 Plaintiff asserted against Campbell/DLR and Lowe and the undisputed facts submitted 14 by these Defendants relevant to those claims. 15 1. Fourth Cause of Action: Tortious Violation of Building Codes 2 1611 {17} In her fourth cause of action, Plai ntiff alleged that Defendants implicitly 1 warranted via the purchase agreement thatall repairs and improvements to the 2 property had been performed with the proper permits and in accordance with 3 applicable building codes and that Defendants’ knowing violation of those codes 4 created “an unreasonable risk of danger to the subject property.” In support of her 5 motions for summary judgment, Lowe submitted undisputed material facts, including 6 that Ferrell hired her only as a transaction broker to list the house for sale; that she 7 never made any repairs or hired anyone to make repairs to the property; that she was 8 not aware of any latent problems with the construction of the house or with the roof 9 repairs Ferrell arranged to beperformed; and that the purchase agreemen t stated that 10 Lowe “made no representations . . . as to the condition of the house or as to any code 11 compliance.” These factual assertions weresupported by the affidavits of Ferrell and 12 Lowe and other exhibits. 13
{18} In support of their motion for summary judgment on the fourth cause of action, 14 Campbell/DLR submitted undisputed material facts, including that the purchase 15 agreement stated that they “[would] not beinvestigating the status of permits . . . 16 and/or code compliance” and that Plaintiff acknowledged that she had not “received 17 or relied upon any representation” by Campbell/DLR “with respect to the condition 18 of the [p]roperty” that was not containe d in the agreement or in the disclosure 19 statements. They also submitted as undisputed the facts that they had no involvement 2012 in the preparation of the disc losure statement and that th ey did not make any repairs 1 or improvements to the property. Campbell/DLR supported these statements with 2 affidavits and exhibits. 3
{19} Because Plaintiff did not properly dispute any of these material facts as required 4 by Rule 1-056(D)(2), they are deemed admitted. The material facts establish that 5 Campbell/DLR and Lowe had no responsibility to ensure compliance with permit 6 requirements or building code s, and summary judgment on the fourth cause of action 7
was proper. 813 2. Fifth and Sixth Causes of Action: Negligent Misrepresentation and Fraud 1
{20} In her fifth and sixth cause s of action, Plaintiff alle ged that Defendants had a 2 duty of full disclosure and that they knew about and either negligently or intentionally 3 failed to disclose that the property was in poor condition, had extensive water damage 4 and other defects, and that they misrepresented that the house had been fully 5 renovated. 6
{21} In support of their motions for summary judgment on this cause of action, Lowe 7 and Campbell/DLR submitted as undisputed the facts already mentioned above, as 8 well as the facts that Ferrell disclosed to Campbell/DLR and to Plaintiff and/or her 9 mother, Susan Lea, that the roof had leaked and been repaired; that the purchase 10 agreement recommended that Plai ntiff hire professionals to inspect the property; that 11 Plaintiff expressly waived a home inspec tion; and that Campbell/DLR disclosed any 12 adverse material facts of which they had actual knowledge. They submitted evidence 13 in support of these facts. 14
{22} Again, Plaintiff failed to dispute th ese facts in accordance with Rule 1- 15 056(D)(2), and they are therefore deemed admitted. Lowe’s and Campbell/DLR’s 16 undisputed facts establish that they were entitled to summary judgment on the fifth 17 and sixth causes of action. 1814 3. Seventh Cause of Action: Tortious Waste 1
{23} In her seventh cause of action, Plainti ff alleged that Ferre ll “destroyed and lay 2 waste to the subject property after entering in the purchase agreement with Plaintiff 3 and prior to the completion of the sale” and that the other De fendants had a duty to 4 ensure maintenance of the property in good c ondition or to notify Plaintiff of Ferrell’s 5 actions. 6
{24} In support of their motions for summaryjudgment on this claim, Lowe and 7 Campbell/DLR submitted undisputed facts s upported by affidavits and exhibits, 8 including that Lowe arranged for the house to be cleaned after Ferrell vacated it on 9 March 17, 2006, a few days be fore Lea arrived on March 28; that Lowe inspected the 10 house after the cleaning and saw no destruc tion or vandalism; that Lowe found a note 11 on her office door around March 29 from Lea st ating that Ferrell had left a bed and 12 some trash that needed to be removed from the house and Lowe arranged for someone 13 to do that; that Lea faxed a letter to Campbell on March 24 asking her to leave the 14 house open with the keys lefton the kitchen counter; that on the morning of March 27, 15 the date of closing on the purchase of the house, Campbell entered the house on the 16 upper level and left th e keys in the kitchen as requested by Lea, that the house looked 17 and smelled clean and she did not see any waste or destruction, and that she left the 18 door unlocked as requested by Lea; and that Campbell/DRLhad no knowledge of any 19 waste or destruction of the property. 203 Ferrell also responded and was granted summary judgment on this claim. 19 However, Plaintiff does not appeal from this ruling, so we do not address it. 20 15 {25} As with the other claims, Plaintiff failed to dispute any of these alleged facts as 1 required by Rule 1-056(D)(2), and they are therefore deemed admitted. Given the 2 undisputed facts, Lowe and Campbell/DLR were entitled to summary judgment on the 3 seventh cause of action. 4 4. First Supplemental Complaint 5
{26} Plaintiff filed a supplemental complaint, in which she alle ged that Defendants 6 were licensed real estate agents or Realtors and that they were members of 7 REALTOR, a professional organization with a code of ethics for its members. She 8 claimed that Defendants were in legal relationships with each other such as 9 principal/agent, co-conspirators, members of a joint venture, partnership, or 10 corporation, and that they breached duties of ethical conduct that they owed to her. 11
{27} In support of their motions for summaryjudgment on these claims, Lowe and 12 Campbell/DLR 3 submitted undisputed facts, including that Lowe was not acting as 13 Ferrell’s agent under the listing agreement; th at Lowe had no agreement of any kind 14 or employment, corporate, partnership, or joint venture relationship with Ferrell or 15 Campbell/DLR concerning the property; and that Campbell/DLR did not breach the 16 standard of care applicable to real estate brokers in the community. Defendants 17 submitted affidavits and exhibits supporti ng their undisputed facts, including the 1816 affidavit of Bill McCoy III, who was tendered as an expert real estate broker. He 1 attested that Campbell/DLR di d not breach the standard of care applicable to brokers 2 in the community. He further attested thatthe REALTOR code of ethics is a vehicle 3 for sanctioning members of the organization and that the New Mexico Legislature has 4 not adopted that code into the statutory scheme applicable to licensed brokers. 5
{28} Plaintiff also failed to controvert any of these undisputed facts as required by 6 Rule 1-056(D)(2), and she did not submit the affidavit of any expert witness 7 purporting to establish that Lowe and Campbell/DLR violated the standard of care 8 applicable to brokers in the community . Thus, the undisputed facts are deemed 9 admitted, and Lowe and Campbell/DLR established that they were entitled to 10 summary judgment on the first supplemental complaint. 11 5. Plaintiff’s Arguments Challenging Summary Judgment 12
{29} As mentioned previously, Plaintiff makes three arguments attacking the 13 summary judgments in favor of Lowe and Campbell/DLR, which weaddress in turn. 14 a. Plaintiff’s Untimely-Filed, Compliant Response 15
{30} Twenty days after the district c ourt entered its order granting summary 16 judgment to Lowe and Campbell/DLR, Pl aintiff filed another motion for 17 reconsideration, to which she attachedher proposed responses to the summary 18 judgment motions in compliance with Rule 1-056(D)(2). In the motion, Plaintiff 1917 conceded that in her original responses to the motions for summary judgment, she 1 “did not controvert Defendant s’ allegations in the preci se form and manner required 2 by [R]ule 1-056(D)(2).” The attachment to the motion for reconsideration responded 3 to each of Defendants’ numbered undisputedmaterial facts as required by Rule 1- 4 056(D)(2). The district court denied Plaintiff’s motion for reconsideration. 5
{31} It is well settled that a district court may, in its discretion, refuse to consider 6 materials purporting to create issues of factthat are presented after summary judgment 7 has been granted. See Deaton v. Gutierrez , 2004-NMCA-043, ¶ 9, 135 N.M. 423, 89 8 P.3d 672 (concluding that the district court did not abuse its discretion in refusing to 9 consider materials filed with a motion for reconsideration of summary judgment); 10 Rivera v. Trujillo , 1999-NMCA-129, ¶ 19, 128 N.M. 106, 990 P.2d 219 (holding that 11 the district court did not abuse its disc retion in declining to consider untimely 12 presented deposition testimony where “[t]he only apparent reason for the untimely 13 filing was counsel’s failure to do so”). Weconclude that the district court did not 14 abuse its discretion in refusing to consider Plaintiff’s eleventh-hour attempt to rectify 15 her improperly crafted initial responses to the motions for summary judgment. Rule 16 1-056(D)(2) clearly states what is required of a party opposing summary judgment, 17 and Plaintiff simply failed to comply with those requirements. The district court could 18 properly determine that there was no reasonable excuse for her non-compliance. 19 b. Adequacy of Original Responses 2018 {32} Plaintiff maintains that her original responses adequately demonstrated the 1 existence of genuine issues of fact, esp ecially given Defendants’ failure to comply 2 with Rule 1-056(D)(2). We decline to c onsider this argument because Plaintiff has 3 failed to specify how Defendant s failed to comply with the rule and what facts she 4 claims were controverted by her original responses to the summary judgment motions. 5 We will not search the record to find support for her contentions. Muse v. Muse , 6 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record 7 for facts, arguments, and rulings in order to support generalized arguments.”). A brief 8 overview of her original responses rev eals what is essentially a recitation of 9 allegations and legal argument without reference to supporting evidence. This is 10 contrary to Rule 1-056(D)(2 ) and does not meet Plainti ff’s burden when challenging 11 Lowe’s and Campbell/DLR’s prima facie showing of entitlement to summary 12 judgment. See Dow v. Chilili Coop. Ass’n , 1986-NMSC-084, ¶ 13, 105 N.M. 52, 728 13 P.2d 462 (explaining that a party opposing summary judgment may not simply argue 14 that evidentiary facts requiring a trial on the merits may exist). 15 c. Summary Judgment as a Sanction 16
{33} Plaintiff argues that entry of summary judgment on the basis of a non-compliant 17 response constitutes an improper sanction agai nst her. In support, Plaintiff relies on 18 Lujan v. City of Albuquerque , 2003-NMCA-104, 134 N.M. 207, 75 P.3d 423. In 19 Lujan , this Court reversed summary judgmen t that was entered solely on the ground 2019 that the plaintiffs had not responded to the motions for summary judgment. Id. ¶¶ 1, 1 3-4. The district court simply signed a summary judgment order submitted by the 2 defendants without holding a hearing on the motions for summary judgment. Id. ¶¶ 3 3-4. We analyzed the order as if it werea sanction and concluded that the district 4 court had not justified its imposition of the severe sanction of dismissal. Id. ¶¶ 11-13. 5
{34} The present case is in no way si milar to the circumstances in Lujan . Here, 6 Plaintiff filed responses to the summary judgment motions that were admittedly non7 compliant with the requirements of Rule 1-056(D)(2). Rather th an simply entering 8 summary judgment on that basis, the distri ct court conducted a hearing and allowed 9 Plaintiff to present whatever arguments sh e wished in opposition to the motions. The 10 district court did not enter the summary judgments solely on the basis of Plaintiff’s 11 technical violation of the rule; instead, it determined that Lowe and Campbell/DLR 12 had established undisputed material facts that Plaintiff failed to controvert and, 13 consequently, that Lowe and Campbell/D LR were entitled to summary judgment. 14 This was entirely consistent with Lujan , which stated that “[b] efore entry of an order 15 granting summary judgment, the district court must assess whether, on the merits, the 16 moving party satisfied the burden under Rule 1-056(C).” Lujan , 2003-NMCA-104, 17 ¶ 18. We affirm the summary judgments entered against Plaintiff. 18 C. Alleged Error in Amendment of Judgment on Punitive Damages 1920 {35} Plaintiff’s claims against Ferrell were tried to the district court and, on March 1 31, 2011, the court filed its memorandum of decision. In that memorandum, the court 2 concluded that Ferrell misrepresented the ex tent of the problems with the property and 3 that Plaintiff reasonably relied on his misrepre sentations. It concluded that Ferrell had 4 breached the purchase agreement and defraude d Plaintiff. It awarded Plaintiff 5 $50,316.02 in compensatory damages and $80, 000 in punitive damages. The district 6 court entered its judgment consistent with the memorandum on April 27, 2011. On 7 May 5, 2011, Ferrell filed a mo tion seeking alteration or amendment of the judgment, 8 asking the court to file findings and conclusions. 9
{36} The court heard Ferrell’s motion and statedthat it intended to file findings and 10 conclusions, whereupon Ferrell’s attorney said that his motion was therefore moot. 11 The court then stated that it was reconsid ering the award of punitive damages in favor 12 of Plaintiff and against Ferrell in light of the fact that Campbell/DLR’s insurance 13 company provided their defense. In the c ourt’s view, Ferrell “caused this mess” and 14 should have to pay for anything Plainti ff was going to have to pay Campbell/DLR, 15 including any attorney fees and costs that had come out of Campbell/DLR’s pockets. 16 After hearing argument on the issue, the district court stated that it would reduce the 17 punitive damages award of $80,000 to the amount of the costs awarded to 18 Campbell/DLR—$9,062.11—because it was not going to award attorney fees to an 1921 insurance company that was contractually obligated to provide a defense to 1 Campbell/DLR. 2
{37} Plaintiff appeals this amendment of the punitive damages award on several 3 grounds. However, we need not considerher arguments because, in the formal 4 opinion filed concurrently withthis opinion, we reverse the district court’s denial of 5 attorney fees to Campbell/DLR. The court’s reduction of the punitive damages award 6 was expressly tied to its erroneous denial of attorney fees. Because the basis for the 7 order reducing punitive damages was based on an erroneous ruling, we also reverse 8 this order and remand for the district court to reconsider its award of punitive damages 9 in light of the reasonable award of attorney fees it determines to make. 10 D. Propriety of the Award of Costs to Campbell/DLR 11
{38} Plaintiff seeks reversal of the distri ct court’s award of costs to Campbell/DLR 12 because the court erroneously awarded: (1) expert witness Bill McCoy III’s fees 13 because McCoy did not testify and (2) the costs of depositions, from which 14 Campbell/DLR used only “snippets out of c ontext.” We disagree and affirm the 15 award of costs. 16
{39} Campbell/DLR submitted McC oy’s affidavit in support of their motions for 17 summary judgment to establish that Campbe ll/DLR did not “breach[] the standard of 18 care of brokers . . . in the co mmunity.” McCoy’s affidavit attested that he is a licensed 19 real estate broker in New Mexico, that he has served on several real estate related 2022 committees, and that he is one of the aut hors of the mandatory course that licensees 1 are required to take periodically. Af ter granting Campbell/DLR summary judgment, 2 the district court awarded them their costs, including $3,375 for McCoy’s fees. 3
{40} Rule 1-054(D) NMRA governs the award of costs, and we review de novo the 4 district court’s interpretation of that rule. Andrews v. U.S. Steel Corp. , 2011-NMCA5 032, ¶ 32, 149 N.M. 461, 250 P.3d 887. “On the other hand, the necessary and 6 reasonable costs awarded by the district court are reviewed for an abuse of discretion.” 7 Id. 8
{41} We understand Plaintiff to argue that the district court abused its discretion in 9 awarding McCoy’s fee as a cost because McCoy was not qualified as an expert; 10 because he did not testify, as required by NMSA 1978, Section 38-6-4(B) (1983), and 11 Fernandez v. Espanola Public School District , 2005-NMSC-026, ¶ 1, 138 N.M. 283, 12 119 P.3d 163; and because there were no exceptional circumstances warranting an 13 award of McCoy’s fees. Plaintiff does not elaborate how McCoy was not qualified 14 as an expert, and she did not challenge his qualifications in the district court. We 15 therefore decline to address that part of her argument. See Headley v. Morgan Mgmt. 16 Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review 17 unclear arguments, or guess at what [a party’s] arguments might be.”); Woolwine v. 18 Furr’s, Inc. , 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To preserve an 1923 issue for review on appeal, it must appear th at appellant fairly invoked a ruling of the 1 trial court on the same grounds ar gued in the appellate court.”). 2
{42} In addition, Rule 1-054(D )(2)(g) was amended after Fernandezwas decided, 3 and it now permits an award of “expert witness fees for services as [limited] provided 4 by Section 38-6-4(B) . . . or when the court determines that the expert witness was 5 reasonably necessary to the litigation .” (Emphasis added and alteration in original.) 6 See also Andrews , 2011-NMCA-032, ¶ 38 (stating that “testimony given by . . . 7 experts, whether by affidavit or by deposition, was material to the award of summary 8 judgment” (emphasis added)). McCoy attested to his opi nion on the standard of care 9 via affidavit, and the district court’s awar d of his fees implicitly constituted a finding 10 that his affidavit was reasonably necessary to Campbell/DLR’s summary judgment 11 motions. See Gouveia v. Citicorp Person-to-Person Fin. Ctr., Inc. , 1984-NMCA-079, 12 ¶ 20, 101 N.M. 572, 686 P.2d 262 (explaining that“[w]ithout an affidavit or other 13 testimony of a qualified expert stating that [the broker] did not breach the standard of 14 care of brokers in the community, no prima facie showing [supporting summary 15 judgment] was made” (internal quotation marks and citation omitted)). 16
{43} Finally, Plaintiff cites no authority for the notion that a defendant seeking to 17 recover an expert witness fee must estab lish exceptional circumstances justifying the 18 award. We therefore assume th at no such authority exists. In re Adoption of Doe , 19 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. 2024 {44} As for the award of deposition costs, Rule 1-054(D)(2)(e)(i), (ii) expressly 1 provide that the cost of a deposition is recoverable “if any part is used at trial; [or] . . . 2 in successful support . . . of a motion for su mmary judgment.” (alteration in original.) 3 Campbell/DLR used portions of the depositions at issue in support of their motions 4 for summary judgment, so the district court’s award of the cost of those depositions 5
was proper. 6 E. Conclusions Regarding Plaintiff’s Appeal 7
{45} In summary, we affirm the district court’s summary judgment in favor of 8 Campbell/DLR and Lowe, and we affirm the award of costs in favor of 9 Campbell/DLR. We reverse the district court’s reduction of the punitive damages 10 award, which the court will reconsider on remand in conjunction with its award of 11 attorney fees to Campbell/DLR. 12 II. Ferrell’s Cross-Appeal 13
{46} Ferrell argues in his cross-appeal that the district court erroneously awarded 14 Plaintiff the cost of repairs as compensatory damages as opposed to the diminution in 15 the home’s value. We are not persuaded. 16
{47} We apply a de novo standardwhen reviewing a district court’s application of 17 the law to the facts, and we review factual determinations for substantial evidence. 1825 Ponder v. State Farm Mut. Auto. Ins. Co. , 2000-NMSC-033, ¶ 7, 129 N.M. 698, 12 1 P.3d 960. 2
{48} The district court awarded Plaintiff $50, 000 for the cost of repairing the roof, 3 upper east-side deck, and areas affected by water intrusion, relying on the testimony 4 of a contractor who estimated that, as of September 2005, it would take $50,000 to 5 place the home in livable condition. Ferrell cl aims that the diminution in the home’s 6 value was actually only $18,000, at most, and that this amount should be the measure 7 of damages in accordance with our Supreme Court’s decision in McNeill v. Burlington 8 Resources Oil and Gas Co. , 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121. 9
{49} McNeill ’s holding involves the measure of damages for injury to real property. 10 Id. ¶ 26. The present case involves damages for negligen t and intentional 11 misrepresentation. Consequently, the meas ure of damages in this case is governed by 12 Section 552B of the Restatement (Second) of Torts (1977). See First Interstate Bank 13 v. Foutz , 1988-NMSC-087, ¶ 8, 107 N.M. 749, 764 P.2d 1307. 14
{50} Section 552B provides: 15 (1) The damages recoverable for a negligent misrepresentation are 16 those necessary to compensate the pl aintiff for the pecuniary loss to him 17 of which the misrepresentation is a legal cause, including 18 (a) the difference between the value of what he has received in 19 the transaction and its purchase price or other value given for it; 20 and 2126 (b) pecuniary loss suffered otherw ise as a consequence of the 1 plaintiff’s reliance upon the misrepresentation. 2 (2) the damages recoverable for a negligent misrepresentation do not 3 include the benefit of the plaintiff’s contract with the defendant. 4 Pursuant to this section, the district c ourt could award Plaintiff the difference between 5 the value of the home before it was repaired and the price Plaintiff paid for it, which 6 is the amount urged by Ferrell; or it could aw ard Plaintiff the loss she experienced as 7 a result of her reliance on Ferrell’s misrepresentations about the home’s condition. 8 Which measure of damages is empl oyed depends upon which most accurately 9 approximates the amount “necessary to compen sate the plaintiff for the pecuniary loss 10 to him of which the misrepresentation is a legal cause.” Restatement (Second) of 11 Torts § 552B(1). Here, the district court determined that awarding Plaintiff the 12 estimated out-of-pocket expenses necessary to repair the home was the amount 13 necessary to make her whole. See First Interstate Bank , 1988-NMSC-087, ¶ 8 (stating 14 that “damages for negligent misrepresentation are determined by out-of-pocket loss 15 or reliance damages”). 16
{51} The evidence supports the district court’ s determination. While a real estate 17 broker testified at trial that the unrepaired home was worth $212,000 and while 18 Plaintiff paid $230,000 for the home, Plainti ff’s evidence established that it would be 19 necessary to spend $50,000 to make the home livable. Thus, it makes sense that 20 awarding $50,000 to Plaintiff for her out-of- pocket expenses would more closely 2127 approximate the damages she incurred in re lying on Ferrell’s misrepresentations about 1 the home’s condition. 2 CONCLUSION 3
{52} For the foregoing reasons, we affirm summary judgment entered in favor of 4 Campbell/DLR and Lowe. We reverse the di strict court’s reduction of its award of 5 punitive damages in favor of Plaintiff and remand for recalculation of that damages 6 award consistent with this Opinion and th e formal Opinion filed concurrently. On 7 Ferrell’s cross-appeal, we affirm the distri ct court’s measure of damages awarded to 8 Plaintiff to compensate her for Ferrell’s misrepresentations. 9
{53} IT IS SO ORDERED. 10

11 CYNTHIA A. FRY, Judge 12 WE CONCUR: 13

14 MICHAEL D. BUSTAMANTE, Judge 15

16 J. MILES HANISEE, Judge 17