Court of Appeals of New Mexico

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-38030

AUI, INC., a New Mexico

Corporation,

Plaintiff-Appellant,

v.

NEW MEXICO DEPARTMENT

OF TRANSPORTATION,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah Singleton, District Judge

Calvert Menicucci, P.C.

Sean R. Calvert

Albuquerque, NM

for Appellant

Stelzner, Winter, Warburton, Flores & Dawes, P.A.

Juan L. Flores

Jaime L. Dawes

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

IVES, Judge.

{1}       AUI, Inc. (AUI) appeals from a district court judgment, following a bench trial, entered in favor of Plaintiff, the New Mexico Department of Transportation (NMDOT), on AUI’s breach of contract claim. AUI asserts that the district court erred by (1) concluding that NMDOT had not, as a matter of law, waived its entitlement to liquidated damages by issuing change orders requiring the performance of additional work after the contractual completion date had passed; and (2) concluding that liquidated damages for delays occurring after the contractual completion date were properly apportioned between AUI and NMDOT. We conclude that AUI’s arguments do not warrant review on the merits and therefore affirm. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively performing the parties’ work for them. This creates a strain on judicial resources and a substantial risk of error.” (citation omitted)); see also Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701; Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.

{2}       First, AUI contends that, by issuing change orders requiring the performance of additional work after the contractual completion date had passed, NMDOT waived its entitlement to recover delay-related liquidated damages for any period of delay preceding the issuance of those orders. AUI’s entire argument appears^[1] to rest on the premise that NMDOT impermissibly assessed liquidated damages for the period of time necessary to perform the additional work NMDOT ordered. But the district court found, in accordance with the concededly binding facts^[2] set forth in the pretrial order, that “NMDOT ha[d] not assessed liquidated damages against AUI in connection with any of the change orders that added new work to the project.” That is equivalent to finding that NMDOT granted AUI reasonable time extensions for each change order requiring the performance of additional work where additional time was necessary to perform that work.

{3}       Although AUI cites a number of precedential and non-precedential cases in which courts in numerous other jurisdictions have, over the course of the last century or so, held that a party waived its entitlement to liquidated damages, it fails to explain how those cases apply to a situation where a party issues change orders after the contractual completion date but gives the contractor time extensions to complete the additional work. Because AUI’s entire argument on this issue (which we note contains little discussion of the vast majority of the out-of-jurisdiction cases upon which it rests) is based on a mischaracterization of the record and lacks any analysis of the law applicable to the actual facts, we decline to review it.

{4}       AUI contends in the alternative that, even if it is permissible for a party that issues change orders to recover liquidated damages for a contractor’s delay prior to the issuance of those orders, NMDOT could not do so in this case because the parties’ contract did not permit liquidated damages to be apportioned.^[3] But AUI’s argument on this issue, while accompanied by citations to and rudimentary discussion of authority, in reality consists merely of a recitation of an isolated contract provision in its brief in chief, and an assertion, made in reply to NMDOT’s reliance on a different contract provision in its answer, that the provision on which NMDOT relies fails to allocate responsibility for delays with sufficient specificity to come within the scope of the authority on which AUI relies. We decline to review this issue, not least because AUI has presented no meaningful analysis of the text of the parties’ contract insofar as it pertains to time extensions.

CONCLUSION

{5}       We affirm.

{6}       IT IS SO ORDERED.

ZACHARY A. IVES, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge

SHAMMARA H. HENDERSON, Judge