Holcomb v. Rodriguez

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: _______________

3 Filing Date: June 16, 2016

4 No. 33,481

5 W.J. HOLCOMB and
6 SHARON HOLCOMB,
7 Husband and Wife,

8 Plaintiffs/Counterdefendants and
9 Appellees/Cross-Appellants,

10 v.

11 AVEDON RODRIGUEZ a/k/a AVEDON
12 ORLANDO RODRIGUEZ, a/k/a ORLANDO
13 AVEDON RODRIGUEZ, and THERESA R. MARTINEZ,

14 Defendants/Counterplaintiffs and
15 Appellants/Cross-Appellees.

16 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
17 Sandra A. Price, District Judge

18 Sommer, Udall, Sutin, Hardwick & Hyatt, P.A.
19 Eric M. Sommer
20 Santa Fe, NM

21 for Appellees/Cross-Appellants

22 Chris Lucero, Jr.
23 Albuquerque, NM

24 for Appellants/Cross-Appellees
 1 OPINION

2 HANISEE, Judge.

3 {1} A jury found in favor of W.J. and Sharon Holcomb (Plaintiffs) on their trespass

4 claims against Avedon Rodriguez and Theresa Martinez (Defendants). Defendants

5 appeal, raising six claims of error. Plaintiffs cross-appeal the district court’s refusal

6 to set Plaintiffs’ award of post-judgment interest at a rate of 15 percent per annum.

7 We reject all of Defendants’ arguments and agree with Plaintiffs that the district court

8 abused its discretion by refusing to award post-judgment interest in the amount

9 required by statute. We therefore reverse and remand with instructions to modify the

10 rate of post-judgment interest, but leave the district court’s judgment undisturbed in

11 all other respects.

12 BACKGROUND

13 {2} Plaintiffs own land that lies directly adjacent to Defendants’ land to the north.

14 A wash runs southwest across Plaintiffs’ western tract, crossing Defendants’ land

15 before emptying into the nearby San Juan River. Plaintiffs erected a fence running

16 east to west along their driveway. The fence starts near Plaintiffs’ house on the far

17 western end of their property and ends where the wash crosses onto Defendants’

18 property.
 1 {3} In November 2008, Defendant Rodriguez hired Lucas Lucero to channel the

2 wash with earthmoving equipment. Lucero used the equipment to create berms that

3 narrowed and deepened the wash. Without Plaintiffs’ permission, Lucero channeled

4 portions of the wash on Plaintiffs’ property near their driveway and performed other

5 earthwork on the far eastern boundary of Plaintiffs’ land.

6 {4} On February 5, 2009, Plaintiffs filed a complaint against Defendants seeking

7 injunctive relief and damages arising from claims for common law trespass and

8 violations of criminal trespass under NMSA 1978, Section 30-14-1(D) (1995).1

9 Defendants answered and counterclaimed against Plaintiffs for trespass, criminal

10 trespass, and to quiet title against Plaintiffs based on allegations that Plaintiffs had

11 cleared vegetation and constructed a fence on Defendants’ property. In June 2009,

12 Plaintiffs hired a civil engineer to evaluate the potential for flooding as a result of

13 Lucero’s channel work. The civil engineer concluded that in the event of flooding,

14 Lucero’s modifications to the channel would cause the banks of the wash that

15 supported Plaintiffs’ driveway to erode. In 2010 flooding from rain storms caused

1
16 Section 30-14-1(D) provides that “[a]ny person who enters upon the lands of
17 another without prior permission and injures, damages or destroys any part of the
18 realty or its improvements, including buildings, structures, trees, shrubs or other
19 natural features, is guilty of a misdemeanor, and he shall be liable to the owner, lessee
20 or person in lawful possession for civil damages in an amount equal to double the
21 value of the damage to the property injured or destroyed.”

2
 1 significant erosion of the channel banks supporting a portion of Plaintiffs’ driveway.

2 As a result, Plaintiffs hired a professional design firm and a contractor to stabilize the

3 banks of the channel and to install diversion screens to prevent further flood damage.

4 {5} The district court held a jury trial from April 2 through April 5, 2013. At the

5 close of Defendants’ case, Plaintiffs orally moved for a directed verdict on

6 Defendants’ counterclaims for trespass, arguing that both entry and damages were

7 necessary elements of a claim for trespass and that Defendants had not offered any

8 evidence that could support a finding in Defendants’ favor on either element.

9 {6} Defendants responded that the jury could find that Plaintiffs had entered

10 Defendants’ property based on the testimony of a surveyor and the results of a survey

11 he performed that showed that Plaintiffs’ fence was built on Defendants’ property. As

12 to damages, Defendants conceded that they had presented no evidence that would

13 allow a jury to fix a dollar amount on the cost of removing and restoring damage to

14 their property caused by the fence, but that photographic evidence showing that

15 Plaintiffs had removed vegetation from Defendants’ land while installing the fence

16 was sufficient to submit the trespass claim to the jury for a determination of liability

17 and damages.

18 {7} The district court granted Plaintiffs’ motion for a directed verdict on

19 Defendants’ counterclaims for trespass, agreeing with Plaintiffs that Defendants had

3
 1 failed to prove that Plaintiffs’ alleged trespass had caused Defendants to suffer any

2 damages. The jury then returned a verdict in Plaintiffs’ favor on their common law

3 trespass claim and awarded damages of $33,506.40.2 The parties submitted post-trial

4 briefs on Defendants’ counterclaim to quiet title to the boundary between the parties’

5 properties, after which the district court ruled in Plaintiffs’ favor and found that the

6 boundary between the parties’ properties was that described in a survey performed

7 by a surveyor hired by Plaintiffs. The district court entered a final judgment against

8 Defendants, awarding Plaintiffs $33,506.40 and quieting title to the boundary line

9 between the parties’ properties.

10 {8} Defendants appeal the district court’s judgment, raising the following six

11 claims of error:

12 1. The jury, not the district court, should have fixed the boundary
13 between Plaintiffs’ and Defendants’ land;

14 2. The district court erred in granting a directed verdict on
15 Defendants’ counterclaims for trespass against Plaintiffs;

16 3. The district court should have submitted a jury instruction
17 modeled after NMSA 1978, Section 30-14-6 (1979) on Plaintiffs’ trespass
18 claims;

19 4. There was insufficient evidence of damages to support the jury’s
20 verdict against Defendants on Plaintiffs’ trespass claims;

2
21 Plaintiffs voluntarily dismissed their claim for criminal trespass under Section
22 30-14-1(D).

4
 1 5. The district court abused its discretion by awarding prejudgment
2 interest to Plaintiffs; and

3 6. The district court lacked jurisdiction over Plaintiffs’ trespass
4 claims because Defendants enjoyed a prescriptive easement over the area of the
5 alleged trespass.

6 {9} Plaintiffs cross-appeal the rate at which the district court awarded post-

7 judgment interest, arguing that 15 percent, rather than 8.75 percent, is the required

8 rate under NMSA 1978, Section 56-8-4(A)(2) (2004), which applies to judgments

9 awarding damages caused by tortious conduct.

10 DISCUSSION

11 1. The District Court Did Not Err in Adjudicating the North-South
12 Boundary Between the Parties’ Properties

13 {10} Defendants first argue that the district court “erred [in] determining the fact

14 issue concerning the boundary between [the] two properties instead of the jury

15 deciding the boundary issue.” Defendants’ presentation of the issue is both unclear

16 and confusing; the location of the boundary was common to Defendants’

17 counterclaims for trespass (a cause of action at common law for the jury to decide)

18 and to quiet title (a claim at equity to be decided by the district court, see NMSA

19 1978, § 42-6-9 (1907) (deeming actions to quiet title to be equitable in nature)). See

20 also Pankey v. Ortiz, 1921-NMSC-007, ¶¶ 38-43, 26 N.M. 575, 195 P. 906 (Roberts,

21 C.J., specially concurring) (noting that actions for ejectment at common law would

5
 1 only decide the right to possession at a single point in time, while an action to quiet

2 title would conclusively determine the parties’ title to the land in question). Since the

3 only occasion for the jury (rather than the district court sitting in equity) to decide the

4 boundary issue was Defendants’ trespass counterclaims, the question is not whether

5 the district court erred in determining the boundary, but whether it erred in granting

6 a directed verdict on those claims (Defendants’ second issue on appeal). To the extent

7 that Defendants seek to raise a separate issue attacking the manner in which the

8 district court decided their counterclaim to quiet title (Defendants do not appeal or

9 otherwise dispute the district court’s decision on the merits of that claim), it is

10 insufficiently developed to warrant our review. See Headley v. Morgan Mgmt. Corp.,

11 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (observing that we do not

12 review unclear or undeveloped arguments that require us to guess at what parties’

13 arguments might be).

14 2. Defendants Cannot Demonstrate Error as to the District Court’s Directed
15 Verdict on Defendants’ Counterclaims for Trespass

16 {11} A directed verdict is proper when, “after considering all evidence in [the] light

17 most favorable to [the] non[-]moving party[,] . . . [the] evidence, as [a] matter of law

18 is insufficient to justify [a] verdict in [the non-moving] party’s favor[.]” Melnick v.

19 State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 10, 106 N.M. 726, 749 P.2d 1105

20 (citing J. Walden, Civil Procedure in New Mexico § 9c(2)(a), at 225 (1973)). In this

6
 1 case, the district court entered a directed verdict on Defendants’ counterclaim for

2 trespass because it concluded there was no evidence that could support a finding of

3 actual damages in Defendants’ favor.

4 {12} Defendants suggest that even if there was insufficient evidence to put the

5 question of actual damages caused by Plaintiffs’ alleged trespass to the jury,

6 Defendants’ counterclaim for trespass should have been submitted to the jury for

7 consideration of an award of nominal damages. Thus, Defendants argue that proof of

8 actual damages is not a necessary element of a claim for trespass, and the district

9 court’s directed verdict was erroneous because it was based upon a contrary

10 conclusion. Indeed, nominal damages are available in actions for trespass. See

11 Atchison, T. & S.F. Ry. Co. v. Richter, 1915-NMSC-008, ¶ 36, 20 N.M. 278, 148 P.

12 478; see also Restatement (Second) of Torts § 163 cmt. d (1965) (“[E]ven a harmless

13 entry or remaining, if intentional, is a trespass.”). Put differently, proof of damage is

14 not an element of trespass; all that the plaintiff must show is that the defendant

15 entered the plaintiff’s land without authorization, remains on the land, or fails to

16 remove from the land a thing which the defendant has a duty to remove. See

17 Restatement (Second) of Torts § 158 (1965). It follows, then, that the district court

18 erred in concluding that Defendants’ failure to prove actual damages precluded

19 submission of their counterclaim for trespass to the jury.

7
 1 {13} But Defendants’ trial strategy involved pursuing actual damages for damage

2 they alleged Plaintiffs had caused by installing a fence on their property, not an award

3 of nominal damages. Accordingly, Defendants failed to preserve this issue as a basis

4 for reversal on appeal. “To preserve a question for review it must appear that a ruling

5 or decision by the district court was fairly invoked, but formal exceptions are not

6 required, nor is it necessary to file a motion for a new trial to preserve questions for

7 review.” Rule 12-216(A) NMRA. “In analyzing preservation, [the appellate courts]

8 look to the arguments made by [the d]efendant below.” State v. Vandenberg, 2003-

9 NMSC-030, ¶ 52, 134 N.M. 566, 81 P.3d 19. “To preserve an issue for review on

10 appeal, it must appear that [the] appellants fairly invoked a ruling of the [district]

11 court on the same grounds argued in the appellate court.” Woolwine v. Furr’s, Inc.,

12 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.

13 The primary purposes for the preservation rule are: (1) to specifically
14 alert the district court to a claim of error so that any mistake can be
15 corrected at that time, (2) to allow the opposing party a fair opportunity
16 to respond to the claim of error and to show why the court should rule
17 against that claim, and (3) to create a record sufficient to allow this
18 Court to make an informed decision regarding the contested issue.

19 Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146

20 N.M. 853, 215 P.3d 791.

21 {14} Here, Defendants never sought nominal damages in their answer and

22 counterclaim; instead, Defendants’ counterclaim sought “the value of the damage”

8
 1 caused by Plaintiffs’ alleged trespass only. At trial, Defendants opposed Plaintiffs’

2 motion for a directed verdict by arguing solely that Defendants had introduced

3 sufficient evidence of actual damages. Defendants did not request a nominal-damages

4 instruction, mention the availability of nominal damages in their response to

5 Plaintiffs’ motion for a directed verdict, or otherwise argue to the district court that

6 Defendants were not obliged to prove that they were damaged by Plaintiffs’ alleged

7 trespass. In these circumstances, we conclude that Defendants failed to specifically

8 alert the district court to the availability of nominal damages for trespass claims

9 below, a prerequisite to preserving a question of law for review in this Court.

10 Accordingly, we decline to reverse the district court’s dismissal of Defendants’

11 counterclaim for trespass on a ground Defendants advance for the first time on

12 appeal. See Woolwine, 1987-NMCA-133, ¶ 20.

13 {15} Next, Defendants argue that their submission into evidence of photographs

14 showing damaged vegetation furnished a basis for the jury to fix an award of

15 damages, rendering the district court’s directed verdict on Defendants’ counterclaim

16 for trespass erroneous. But the mere fact of damage is not enough to give rise to a

17 question of fact over the extent of actual damages that must be resolved by the jury;

18 Defendants were required to submit additional evidence that would allow the jury to

19 fix the amount of damages Defendants suffered as a result of the alleged trespass with

9
 1 enough certainty to avoid speculation. See Mascarenas v. Jaramillo, 1991-NMSC-

2 014, ¶ 22, 111 N.M. 410, 806 P.2d 59 (“Damages based on surmise, conjecture or

3 speculation cannot be sustained. Damages must be proved with reasonable

4 certainty.”). Thus Defendants were required to submit evidence that would allow the

5 jury to fix an amount of damage, such as the cost of restoring the vegetation damaged

6 by Plaintiffs’ installation of the fence, see UJI 13-1813 NMRA, or by producing

7 evidence that Plaintiffs’ alleged trespass caused some diminution in the value of

8 Defendants’ property, see UJI 13-1812 NMRA. Having failed to present any such

9 evidence, it was not error for the district court to conclude that the evidence was

10 insufficient as a matter of law to support a finding that Defendants had suffered

11 damages as a result of Plaintiffs’ alleged trespass.

12 3. The District Court Did Not Err in Refusing Defendants’ Requested Jury
13 Instruction on Plaintiffs’ Trespass Claim

14 {16} “We review a district court’s refusal to give a proffered instruction de novo to

15 determine whether the instruction correctly stated the law and was supported by the

16 evidence presented at trial.” Silva v. Lovelace Health Sys., Inc., 2014-NMCA-086,

17 ¶ 13, 331 P.3d 958. “A party is entitled to have the jury instructed on the party’s

18 theory if there is substantial evidence to support it.” Id. “Failure to submit requested

19 instructions to the jury constitutes reversible error, if the complaining party can show

10
 1 that it was prejudiced by the trial court’s refusal to give the requested instruction.”

2 Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853.

3 {17} Defendants requested the following jury instruction, apparently modeled on the

4 text of Section 30-14-6:

5 The owner of real property in New Mexico shall post notices parallel to
6 and along the exterior boundaries of the property to be posted, at each
7 roadway or other access in conspicuous places, and if the property is not
8 fenced, such notices shall be posted every [500] feet along the exterior
9 boundaries of such land. If property is not fenced or notices posted
10 delineating boundary lines of property, willful trespass cannot be
11 proved.

12 {18} Defendants argued to the district court that Section 30-14-6 imposed a duty on

13 landowners to post notices on the exterior boundaries of their property in order to

14 subject individuals to trespass liability for any entries thereon. Plaintiffs argued that

15 Defendants’ proffered instruction should not be given because Section 30-14-6 set

16 out a defense to charges of criminal trespass under Section 30-14-1, not civil liability

17 for trespass.

18 {19} The district court agreed with Plaintiffs that Defendants’ proffered instruction

19 was not a valid defense to liability for trespass at common law. However, the district

20 court concluded that the instruction was required because Plaintiffs sought double

21 damages against Defendants under Section 30-14-1(D). In response to the district

22 court’s interlocutory ruling, Plaintiffs voluntarily dismissed their claim for criminal

11
 1 trespass, at which point the district court refused to submit Defendants’ proffered

2 instruction to the jury. Defendants argue on appeal that Section 30-14-6 “imposes a

3 civil duty on the part of landowners seeking criminal prosecution or civil damages for

4 trespass[,]” and as a result, civil liability for trespass may only be found for entries

5 on land that has been posted in compliance with Section 30-14-6.

6 {20} Whether Section 30-14-6 bars civil liability for trespass unless a landowner

7 complies with its posting requirements (and is thus available as a jury instruction in

8 a civil action for trespass) is a question of statutory construction that we review de

9 novo. See State v. Marshall, 2004-NMCA-104, ¶ 6, 136 N.M. 240, 96 P.3d 801. In

10 construing a statute, “[o]ur primary task in construing statutory language is to effect

11 legislative intent.” Benny v. Moberg Welding, 2007-NMCA-124, ¶ 5, 142 N.M. 501,

12 167 P.3d 949.

13 We start with the language [of the statute] itself, giving effect to its plain
14 meaning where appropriate while being careful not to be misled by
15 simplicity of language when the other portions of a statute call its
16 meaning into question, or the language of a section of an act conflicts
17 with an overall legislative purpose.

18 Id. (internal quotation marks and citation omitted). We also note that “when

19 determining the meaning of a statute, courts will often construe the language in light

20 of the preexisting common law.” Sims v. Sims, 1996-NMSC-078, ¶ 23, 122 N.M. 618,

21 930 P.2d 153. “This rule of construction is a recognition that any law is passed

12
 1 against the background of all the law in effect at the time. If no aspect of the

2 background of law is clearly abrogated, it is presumed to be consistent with, if not

3 incorporated into, new legislation.” Id. ¶ 24.

4 {21} Section 30-14-6(A) states:

5 The owner, lessee or person lawfully in possession of real
6 property in New Mexico, except property owned by the state or federal
7 government, desiring to prevent trespass or entry onto the real property
8 shall post notices parallel to and along the exterior boundaries of the
9 property to be posted, at each roadway or other way of access in
10 conspicuous places, and if the property is not fenced, such notices shall
11 be posted every [500] feet along the exterior boundaries of such land.

12 The text of Section 30-14-6(A) does not suggest any limitation on an owner, lessee,

13 or other lawful possessor’s ability to pursue a common law claim for trespass; rather,

14 it speaks to what the owner, lessee, or other lawful possessor should do in order to

15 “prevent” trespass. We interpret the use of the word “prevent” in Section 30-14-6(A)

16 to indicate the Legislature’s intent to establish a standard by which the public may be

17 placed on direct notice that unauthorized entry upon posted land is disallowed and

18 will be subjected to legal consequences, not an intent to exempt from liability all

19 unauthorized entries onto private property that has not been posted.

20 {22} Considering Section 30-14-6 in light of neighboring provisions in the Criminal

21 Code supports our interpretation. Section 30-14-1 defines differing types of criminal

22 trespass, each of which is a misdemeanor. See § 30-14-1(E). For example, Subsection

13
 1 A includes, with certain exceptions, “knowingly entering or remaining upon posted

2 private property without possessing written permission from the owner or person in

3 control of the land” as criminal trespass. Subsections B and C, respectively, prohibit

4 “knowingly entering or remaining upon the unposted lands of another knowing that

5 such consent to enter or remain is denied or withdrawn by the owner or occupant

6 thereof” and “knowingly entering or remaining upon lands owned, operated or

7 controlled by the state or any of its political subdivisions knowing that consent to

8 enter or remain is denied or withdrawn by the custodian thereof” as misdemeanor

9 criminal trespass. Lastly, Subsection D provides that “[a]ny person who enters upon

10 the lands of another without prior permission and injures, damages or destroys any

11 part of the realty or its improvements . . . is guilty of a misdemeanor, and he shall be

12 liable to the owner, lessee or person in lawful possession for civil damages in an

13 amount equal to double the value of the damage to the property injured or destroyed.”

14 {23} Reading these provisions as a whole, it is clear that Section 30-14-6 sets out

15 a standard by which a property may be deemed “posted” for the purposes of

16 determining whether a defendant may be found guilty for knowingly entering

17 property under Section 30-14-1(A) or if the elevated mens rea requirement in Section

18 30-14-1(B) must be proven. Section 30-14-6 cannot be fairly read to change the

19 common law of trespass, which does not require posting of property in order for an

14
 1 unauthorized entry to constitute a trespass. See Sims, 1996-NMSC-078, ¶¶ 23-24.

2 Moreover, Section 30-14-1(D), which imposes double civil liability on any person

3 who “enters upon the lands of another without prior permission and injures, damages

4 or destroys any part of the realty or its improvements,” makes no mention of whether

5 the property is posted or unposted. Viewed against these provisions, then, it is clear

6 that Section 30-14-6 does not provide an affirmative defense to common law claims

7 for trespass. Accordingly, the district court correctly rejected Defendants’ proffered

8 instruction.

9 4. Sufficient Evidence Supports the Jury’s Damage Award on Plaintiffs’
10 Trespass Claim

11 {24} “On appeal, a jury award will not be set aside as excessive, unless: [(1)] the

12 evidence, viewed in the light most favorable to the plaintiff, does not substantially

13 support the award; or [(2)] there is an indication that the jury was swayed by passion

14 or prejudice, or employed a mistaken measure of damages.” Wirth v. Commercial

15 Res., Inc., 1981-NMCA-057, ¶ 18, 96 N.M. 340, 630 P.2d 292. When we review an

16 award for substantial evidentiary support, “the question is not whether substantial

17 evidence exists to support the opposite result, but rather whether such evidence

18 supports the result reached.” Muncey v. Eyeglass World, LLC, 2012-NMCA-120,

19 ¶ 21, 289 P.3d 1255 (alteration, internal quotation marks, and citation omitted).

15
 1 “Additionally, we will not reweigh the evidence nor substitute our judgment for that

2 of the fact[-]finder.” Id. (alteration, internal quotation marks, and citation omitted).

3 {25} Defendants argue that the jury’s damages award was not supported by

4 substantial evidence because the damage caused by flooding in 2010 occurred

5 upstream of the berms Lucero made on Plaintiffs’ property at Defendants’ direction.

6 We understand Defendants to be arguing that there was insufficient evidence at trial

7 for the jury to conclude that the flood damage was caused by Defendants’ earthwork.

8 But Plaintiffs presented expert testimony that Defendants’ earthwork increased the

9 likelihood of flood damage and likely brought about the erosion caused by the 2010

10 floods. Having failed to object to the admission of this testimony, Defendants’

11 argument boils down to a request that we reweigh the evidence presented to the jury,

12 something we are forbidden from doing under the applicable standard of review. See

13 N.M. Taxation & Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 23, 336

14 P.3d 436. Nor do Defendants offer any authority in support of their contention that

15 the jury was not permitted to award Plaintiffs damages for the cost of making

16 improvements to prevent future flood damage in addition to the cost of shoring up the

17 foundation of their driveway. “[W]here arguments in briefs are unsupported by cited

18 authority, [we assume that] counsel[,] after diligent search, was unable to find any

19 supporting authority.” In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,

16
 1 676 P.2d 1329. After reviewing the evidence in the trial record, we conclude the

2 jury’s damages award had a substantial evidentiary basis.

3 5. The District Court Did Not Abuse Its Discretion in Awarding Prejudgment
4 Interest to Plaintiffs

5 {26} Section 56-8-4(B) provides that a district court may award prejudgment interest

6 to the prevailing plaintiff in an amount of

7 up to [10] percent from the date the complaint is served upon the
8 defendant after considering, among other things:

9 (1) if the plaintiff was the cause of unreasonable delay in the adjudication of
10 the plaintiff’s claims; and

11 (2) if the defendant had previously made a reasonable and timely offer of
12 settlement to the plaintiff.

13 Prejudgment interest is available in actions in tort. Southard v. Fox, 1992-NMCA-

14 045, ¶¶ 1, 8, 113 N.M. 774, 833 P.2d 251. We review a district court’s award of

15 prejudgment interest for an abuse of discretion. Gonzales v. Surgidev Corp., 1995-

16 NMSC-036, ¶ 58, 120 N.M. 133, 899 P.2d 576.

17 {27} The district court awarded Plaintiffs prejudgment interest on the principal

18 amount of the judgment against Defendants at the rate of 8.75 percent per annum

19 from the date of the filing of the complaint to the date of the judgment against

20 Defendants for a total amount of $12,177.05. Defendants argue that the district court

21 abused its discretion in awarding prejudgment interest because Defendants had made

17
 1 reasonable and timely settlement offers prior to trial. Plaintiffs argue that the district

2 court properly awarded Plaintiffs prejudgment interest because Defendants failed to

3 make a reasonable and timely settlement offer to Plaintiffs.

4 {28} It is difficult to evaluate Defendants’ argument because their brief in chief does

5 not identify the timing and amount of the settlement offers they purportedly made to

6 Plaintiffs, and the district court’s oral statement of its reasons for awarding

7 prejudgment interest is not part of the record. However, “where [the] record is

8 unclear, we presume regularity and correctness of the district court’s actions.”

9 Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 27, 139 N.M. 625, 136 P.3d 1035.

10 Defendants argue that because the district court had evidence of a settlement offer by

11 Defendants, it was an abuse of discretion to grant prejudgment interest. But Section

12 56-8-4(B) makes the existence of a settlement offer but one factor in the totality that

13 is to be considered by the district court in determining whether to award prejudgment

14 interest, and even then, only if the offer is “reasonable.” Defendants offer no

15 argument as to why their prejudgment settlement offers were reasonable. A

16 conclusory statement that the district court ought to have credited Defendants’

17 argument that their offers were reasonable is not enough to overcome the presumption

18 that the district court properly found either that Defendants’ settlement offers were

18
 1 not reasonable or that other factors counseled in favor of an award of prejudgment

2 interest.

3 6. Defendants Failed to Preserve Their Argument That They Enjoyed a
4 Prescriptive Easement Over the Wash

5 {29} Defendants finally argue that they enjoyed an easement by prescription over

6 the portion of the wash that crossed Plaintiffs’ property that gave Defendants the right

7 to enter and perform work on the wash. But Defendants never argued the existence

8 of a prescriptive easement either as a counterclaim or a defense to Plaintiffs’ trespass

9 claim, and we do not address arguments raised for the first time on appeal. See

10 Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M.

11 691, 964 P.2d 855. We therefore decline to address the merits of Defendants’

12 argument.

13 7. The District Court Abused Its Discretion in Refusing to Award Post-
14 Judgment Interest at the Mandatory Rate Fixed by Section 56-8-4(A)(2)

15 {30} In their cross-appeal, Plaintiffs contend that the district court abused its

16 discretion when it fixed its award of post-judgment interest at 8.75 percent per annum

17 because Section 56-8-4(A)(2) requires district courts to impose post-judgment interest

18 at a rate of 15 percent for any judgment based on “tortious conduct,” and trespass is

19 a tort. Defendants respond that because there was no evidence that Defendants’

20 trespass was intentional, Section 56-8-4(A)(2) does not apply.

19
 1 {31} Section 56-8-4(A)(2) provides that “[i]nterest shall be allowed on judgments

2 and decrees for the payment of money from entry and shall be calculated at the rate

3 of [8.75] percent per year, unless . . . the judgment is based on tortious conduct, bad

4 faith or intentional or willful acts, in which case interest shall be computed at the rate

5 of [15] percent.” “[A]n award of post[-]judgment interest is mandatory and is to be

6 computed at the statutory rate.” Sunwest Bank of Albuquerque, N.A. v. Colucci, 1994-

7 NMSC-027, ¶ 25 n.7, 117 N.M. 373, 872 P.2d 346. “We review the award of

8 post-judgment interest for abuse of discretion.” Sandoval v. Baker Hughes Oilfield

9 Operations, Inc., 2009-NMCA-095, ¶ 74, 146 N.M. 853, 215 P.3d 791. “A court can

10 abuse its discretion by misapprehending or misapplying the law.” Id.

11 {32} We agree with Plaintiffs that the district court abused its discretion by refusing

12 to award Plaintiffs post-judgment interest at 15 percent. In Sandoval, we considered

13 and rejected Defendants’ argument that Section 56-8-4(A)(2)’s 15 percent post-

14 judgment interest rate only applies to judgments based on intentional torts. See id.

15 ¶¶ 73-78. There, we held that the plain meaning of Section 56-8-4(A)(2)’s use of the

16 word “tortious” made all judgments based on torts subject to a 15 percent post-

17 judgment interest rate—even negligence, which has no intent or recklessness

18 elements. Sandoval, 2009-NMCA-095, ¶ 78. Since trespass is a tort, see McNeill v.

19 Rice Engineering & Operating, Inc., 2010-NMSC-015, ¶ 9, 148 N.M. 16, 229 P.3d

20
 1 489, it is subject to a 15 percent rate of post-judgment interest. We therefore reverse

2 the district court’s award of post-judgment interest and remand with instructions to

3 award Plaintiffs post-judgment interest at a rate of 15 percent per annum.

4 CONCLUSION

5 {33} We reverse the district court’s award of post-judgment interest to Plaintiffs and

6 remand this case with instructions to the district court that it impose an award of post-

7 judgment interest on the judgment against Defendants at a rate of 15 percent. The

8 district court’s judgment is affirmed in all other respects.

9 {34} IT IS SO ORDERED.

10 _________________________________
11 J. MILES HANISEE, Judge

12 WE CONCUR:

13 ______________________________
14 JONATHAN B. SUTIN, Judge

15 ______________________________
16 M. MONICA ZAMORA, Judge

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