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

 2 TANYA ESPINOSA, TINA ESPINOSA,
 3 and, RONNIE ESPINOSA, JR.,

 4          Plaintiffs/Appellants/Cross-Appellees

 5 v.                                                            NO. 30,576

 6 SETTLEMENT FUNDING, L.L.C., d/b/a
 7 PEACHTREE SETTLEMENT FUNDING,

 8          Intervenors/Defendants/Appellees/Cross-Appellants.

 9 Consolidated With

10 IN THE MATTER OF THE ESTATE OF
11 RONNIE GILBERT ESPINOSA, SR., Deceased.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Valerie Huling, District Judge

14 Gallagher, Casados & Mann, P.C.
15 R. Thomas Dawe
16 Albuquerque, NM

17 for Appellees/Cross-Appellants

18 Gilman Law Firm
19 James K. Gilman
20 Albuquerque, NM

21 L. Helen Bennett, P.C.
22 L. Helen Bennett
23 Albuquerque, NM
 1 for Appellants/Cross-Appellees

 2                             MEMORANDUM OPINION

 3 FRY, Judge.

 4        In this appeal, we are asked to review the district court’s award of attorney fees,

 5 pre- and post-judgment interest, and costs and expenses to Plaintiffs, who are the three

 6 children of Ronnie Espinosa, Sr., and were the prevailing parties in the final judgment

 7 entered by the district court. We affirm the district court’s award with respect to

 8 attorney fees and pre- and post-judgment interest. However, we reverse the award of

 9 costs and expenses and remand with instructions that the district court reevaluate this

10 portion of the award consistent with this opinion.

11 BACKGROUND

12        This case concerns a particularly litigious dispute between Plaintiffs and

13 Defendant Settlement Funding, L.L.C. (Settlement) that has spanned several years and

14 has been the subject of two prior appeals to our Court. See Espinosa v. United of

15 Omaha Life Ins. Co., 2006-NMCA-075, 139 N.M. 691, 137 P.3d 631 (Espinosa I);

16 Espinosa v. United of Omaha Life Ins. Co., No. 27,407, 2009 WL 6690307 ( N.M. Ct.

17 App. Mar. 26, 2009) (mem.) (Espinosa II). In this third appeal, we address the

18 propriety of the district court’s rulings regarding attorney fees, costs, and interest.

19 Because the parties are familiar with the underlying facts and proceedings and because


                                               2
 1 this is a memorandum opinion, we do not provide a detailed summary here and instead

 2 refer to our prior two decisions in this case for the factual background of the parties’

 3 dispute. We include additional information as necessary in connection with the issues

 4 raised in our discussion below.

 5 DISCUSSION

 6        Plaintiffs raise four issues on appeal concerning the district court’s ruling on

 7 attorney fees, pre- and post-judgment interest, and costs and expenses. Settlement has

 8 filed a cross-appeal in which it has raised three issues regarding the district court’s

 9 ruling. We have consolidated the issues in our discussion and address arguments

10 raised in the main and cross-appeal together.

11 1.     Attorney Fees

12        “New Mexico adheres to the . . . American rule that, absent statutory or other

13 authority, litigants are responsible for their own attorney[] fees.” See N.M. Right to

14 Choose NARAL v. Johnson, 1999-NMSC-028, ¶ 9, 127 N.M. 654, 986 P.2d 450.

15 “Authority [for attorney fees] can be provided by agreement of the parties to a

16 contract. The scope of that authority is defined by the parties in the contract, and a

17 determination of what fees are authorized is a matter of contract interpretation.”

18 Montoya v. Villa Linda Mall, Ltd., 110 N.M. 128, 129, 793 P.2d 258, 259 (1990)




                                              3
 1 (citation omitted); see NARAL, 1999-NMSC-028, ¶ 9 (indicating that the American

 2 rule does not bar enforcement of a contractual provision for attorney fees).

 3        The district court awarded Plaintiffs attorney fees in the amount of $109,360

 4 plus gross receipts tax on the basis of a contractual provision in the loan agreement

 5 entered into between WebBank—Settlement’s predecessor in interest—and Plaintiffs’

 6 deceased father. This provision, which we refer to as the fees provision, provided:

 7        In the event of any dispute between the parties concerning this
 8        [a]greement or the transactions contemplated hereby, the prevailing party
 9        shall be entitled to recover its costs and expenses, including reasonable
10        attorney[] fees, incurred in connection with such dispute.

11        We review the award of attorney fees for an abuse of discretion. Id. ¶ 6.

12 However, we review the application of the law to the facts de novo. Id. ¶ 7.

13 “Accordingly, we may characterize as an abuse of discretion a discretionary decision

14 that is premised on a misapprehension of the law.” Id. (alteration, internal quotation

15 marks, and citation omitted).

16        In the proceedings below, Settlement argued that the fees provision provided

17 no basis for the recovery of attorney fees because there was no privity of contract

18 between Plaintiffs and Settlement. Unpersuaded by this argument, the district court

19 determined that attorney fees were recoverable based on the fees provision. However,

20 the court concluded that the amount of fees requested by Plaintiffs was unreasonable.




                                             4
 1 Accordingly, the district court reduced the award of attorney fees from Plaintiff’s

 2 initial request of $268,875.50 plus tax to $109,360 plus tax.

 3        Plaintiffs contend that the district court erred in reducing the amount of attorney

 4 fees awarded. “Historically, New Mexico courts have . . . used the factors now found

 5 in Rule 16-105 [NMRA] of the Rules of Professional Conduct to examine the

 6 reasonableness of attorney fees.” In re N.M. Indirect Purchasers Microsoft Corp.,

 7 2007-NMCA-007, ¶ 76, 140 N.M. 879, 149 P.3d 976. These factors include:

 8        (1) the time and labor required, the novelty and difficulty of the
 9        questions involved, and the skill requisite to perform the legal service
10        properly;

11        (2) the likelihood, if apparent to the client, that the acceptance of the
12        particular employment will preclude other employment by the lawyer;

13        (3) the fee customarily charged in the locality for similar legal
14        services;

15        (4)   the amount involved and the results obtained;

16        (5)   the time limitations imposed by the client or by the circumstances;

17        (6) the nature and length of the professional relationship with the
18        client;

19        (7) the experience, reputation, and ability of the lawyer or lawyers
20        performing the services; and

21        (8)   whether the fee is fixed or contingent.




                                               5
 1 Rule 16–105(A). “The factors are not of equal weight, and all of the factors need not

 2 be considered.” Microsoft, 2007-NMCA-007, ¶ 78.

 3        In this case, Plaintiffs’ counsel sought fees at a rate of $350 per hour for 768.25

 4 hours, which resulted in a requested total of $268,875.50.1 In support of his requested

 5 hourly rate, Plaintiffs’ counsel submitted an affidavit from another attorney who stated

 6 that the $350 requested hourly rate was a “reasonable and customary fee” in the

 7 locality for similar legal services. This attorney also reviewed Plaintiffs’ counsel’s

 8 time records and concluded that only 670.55 hours of the total hours listed in

 9 counsel’s time records were actually attributable to work performed in this case.

10 Plaintiffs’ counsel also submitted an affidavit from his accountant. In response to

11 Plaintiffs’ submissions to the district court, Settlement’s counsel submitted an

12 affidavit summarizing its attorney fees charges as well as an affidavit from another

13 local attorney who stated that, in his experience, the $350 requested hourly rate was

14 unreasonable and higher than the customary rates charged for similar work.

15        After reviewing the foregoing and the record, the district court reduced the

16 number of hours Plaintiffs’ counsel claimed to 546.80, determining that “there were

17 numerous excessive charges for items.” The district court then determined that $350

18 was an excessive hourly rate and that a “reasonable hourly rate for the services

         1
17         According to our calculations, $350 times 768.25 is $268,887.50 rather than
18 $268,875.50.

                                               6
 1 performed is $200.00 per hour.” This ultimately resulted in an award for attorney fees

 2 of $109,360.00 plus applicable gross receipts taxes.

 3        On appeal, Plaintiffs do not challenge the district court’s reduction in hours.

 4 However, they contend that the district court erred in reducing the hourly requested

 5 rate from $350 to $200. We are not persuaded that the district court improperly

 6 exercised its discretionary authority to reduce the hourly rate. It was not improper for

 7 the district court to rely on the affidavits submitted by the parties and its own

 8 experience to determine what it considered to be a reasonable hourly rate. See

 9 Microsoft, 2007-NMCA-007, ¶ 65 (explaining that “[t]he judge, familiar with the case

10 and the normal rates in the area, may rely on his own knowledge to supplement the

11 evidence regarding a reasonable hourly rate”). We reject Plaintiffs’ argument that the

12 district court abused its discretion solely because the $200 hourly rate it applied was

13 the same hourly rate charged by Settlement’s attorney during the litigation. We

14 cannot conclude under the facts of this case that the district court abused its discretion

15 in its award of attorney fees.

16        In its cross-appeal, Settlement contends that the district court improperly

17 awarded attorney fees on the basis of the fees provision in the loan agreement entered

18 into between Settlement and Plaintiffs’ deceased father. Settlement argues that since

19 Plaintiffs were not parties to the loan agreement, there was no privity of contract


                                               7
 1 between them and Settlement and, therefore, there was no contractual basis to support

 2 the awarding of attorney fees. The district court was not persuaded by Settlement’s

 3 argument and reasoned that Plaintiffs stood in the shoes of their deceased father and

 4 that the loan agreement was the entire source of the dispute between the parties as to

 5 which party held the right to proceeds from the deceased father’s annuity policies.

 6        We reject Settlement’s argument. The procedural history of this case dictates

 7 the ruling reached by the district court. We note that this case arose originally as a

 8 declaratory judgment action brought by Plaintiffs against their deceased father’s

 9 second wife to establish themselves as the proper payees on the annuity policies

10 following their father’s death. Espinosa I, 2006-NMCA-075, ¶ 5. It was Settlement

11 that intervened in this original lawsuit and asserted that Plaintiffs had no right to the

12 annuity policy because Plaintiffs’ father had assigned his rights under the annuity

13 policy to Settlement. Id. As the district court correctly noted, the ten-year dispute

14 between the parties in this case centered around the loan agreement and its related

15 transactions, specifically the assignment of the annuity. Plaintiffs stood in their

16 father’s shoes and asserted his—and, ultimately, their—rights to the annuity proceeds.

17 Thus, we affirm the district court on this issue.




                                               8
 1 2.     Prejudgment Interest

 2        The district court awarded prejudgment interest at a rate of five percent. On

 3 appeal, Plaintiffs contend that they were entitled to prejudgment interest at the higher

 4 rate of ten percent, which is the maximum amount permitted by NMSA 1978,

 5 § 56-8-4(B) (2004).

 6        “The purpose of awarding prejudgment interest under Section 56-8-4(B) is to

 7 foster settlement and prevent delay.” Lucero v. Aladdin Beauty Colls., Inc., 117 N.M.

 8 269, 272, 871 P.2d 365, 368 (1994). Section 56-8-4(B) provides:

 9        [T]he court in its discretion may allow interest of up to ten percent from
10        the date the complaint is served upon the defendant after considering,
11        among other things:

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

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

16 “Whether to award prejudgment interest is a decision left to the sound discretion of

17 the trial court, and we will reverse only for an abuse of that discretion.” Abeita v. N.

18 Rio Arriba Elec. Coop., 1997-NMCA-097, ¶ 44, 124 N.M. 97, 946 P.2d 1108 (citation

19 omitted).

20        Plaintiffs argue that they were entitled to prejudgment interest at the maximum

21 rate of ten percent because Settlement wrongfully deprived them of the use of the


                                              9
 1 annuity payments throughout the course of lengthy litigation that spanned multiple

 2 years. Plaintiffs appear to argue that the rate of five percent awarded by the district

 3 court was inadequate to fully compensate them for their loss of the use of the annuity

 4 payments.

 5        We do not agree with Plaintiffs that the district court’s award constituted an

 6 abuse of discretion. The district court carefully considered and weighed both factors

 7 provided in Section 56-8-4(B). On appeal, Plaintiffs do not challenge the district

 8 court’s analysis of both factors under Section 56-8-4(B), nor do they point to any

 9 other equitable considerations that would necessitate an award of prejudgment interest

10 at the maximum rate of ten percent. See Gonzales v. Surgidev Corp., 120 N.M. 133,

11 150, 899 P.2d 576, 593 (1995) (observing that “the trial court should take into account

12 all relevant equitable considerations that further the goals of Section 56-8-4(B)”).

13 Plaintiffs also offer no specific explanation as to why prejudgment interest at a rate

14 of five percent is inadequate to compensate them for the loss of the use of their funds.

15 Although Plaintiffs assert that they are entitled to a rate of ten percent prejudgment

16 interest because Settlement possessed the funds for the entire length of litigation and

17 earned greater than a five percent return by investing the diverted funds, Plaintiffs

18 provide no record support and we therefore do not consider these unsupported factual

19 assertions. Bank of N.Y. v. Romero, 2011-NMCA-110, ¶ 8, 150 N.M. 769, 266 P.3d


                                              10
 1 638 (“[W]here a party fails to cite any portion of the record to support its factual

 2 allegations, [the Court] need not consider its argument on appeal.”). Since we affirm

 3 the district court’s award of prejudgment interest, we need not consider Settlement’s

 4 argument in its cross-appeal that the award of five percent was appropriate.

 5 3.      Post-Judgment Interest

 6        Plaintiffs were awarded post-judgment interest at a rate of eight and three-

 7 fourths percent pursuant to Section 56-8-4(A). Plaintiffs contend that they were

 8 entitled to post-judgment interest at a rate of fifteen percent due to Settlement’s

 9 alleged tortious and wrongful conduct in this case. Pub. Serv. Co. of N.M. v. Diamond

10 D Constr. Co., 2001-NMCA-082, ¶ 55, 131 N.M. 100, 33 P.3d 651 (observing that

11 “[w]hen a judgment is based on tortious conduct, bad faith, or a finding that the

12 defendant acted intentionally or willfully, a court must award interest at the higher rate

13 of [fifteen] percent”).

14        In relevant part, the statute on post-judgment interest, Section 56-8-4(A)(2),

15 provides:

16        Interest shall be allowed on judgments and decrees for the payment of
17        money from entry and shall be calculated at the rate of eight and
18        three-fourths percent per year, unless:

19         ....




                                               11
 1        (2) the judgment is based on tortious conduct, bad faith or intentional
 2        or willful acts, in which case interest shall be computed at the rate of
 3        fifteen percent.

 4 We review an award of post-judgment interest for abuse of discretion. Pub. Serv. Co.

 5 of N.M., 2001-NMCA-082, ¶ 60. However, we “review the court’s application of

 6 Section 56-8-4(A) to the facts de novo.” Bird v. State Farm Mut. Auto. Ins. Co.,

 7 2007-NMCA-088, ¶ 36, 142 N.M. 346, 165 P.3d 343.

 8        Plaintiffs argue that they were entitled to post-judgment interest at a rate of

 9 fifteen percent for two reasons. First, Plaintiffs contend that Settlement engaged in

10 tortious conduct by wrongfully diverting and retaining funds through the illegal

11 assignment of the annuity payments. Relying on Sandoval v. Baker Hughes Oilfield

12 Operations, Inc., 2009-NMCA-095, 146 N.M. 853, 215 P.3d 791, Plaintiffs argue that

13 tortious conduct under Section 56-8-4(B) includes “conduct that risks harm, regardless

14 of intent” and “intentional or negligent acts that invade a legally protected interest.”

15 See Sandoval, 2009-NMCA-095. Second, Plaintiffs contend that they were entitled

16 to fifteen percent post-judgment interest because Settlement engaged in wrongful

17 conduct. As support, Plaintiffs point to the following language in the opinion issued

18 by this Court as a result of the parties’ first appeal:

19        The loan documents prepared by Settlement Funding indicate that
20        Settlement Funding made efforts to circumvent the language of the
21        anti-assignment clause. . . . This is not a situation where Settlement


                                               12
 1        Funding, acting as an innocent party and ignorant of the true facts, has
 2        relied on the conduct or statements of [the plaintiff].

 3 Espinosa I, 2006-NMCA-075, ¶ 28.

 4        We are not persuaded by Plaintiffs’ arguments. As an initial matter, we

 5 conclude that the district court properly determined that the judgment in this case was

 6 based on principles of contract law and did not arise out of tort law. See Pub Serv. Co.

 7 of N.M., 2001-NMCA-082, ¶ 58 (stating that tortious conduct is “an act or omission

 8 that subjects an individual to liability under the principles of tort law”). Although

 9 Plaintiffs rely on Sandoval in support of their position that the conduct in this case

10 was tortious, the relevant discussion in Sandoval focused on whether tortious conduct

11 includes negligence. See 2009-NMCA-095, ¶¶ 73, 75-78. Here, Plaintiffs have not

12 argued and the record does not support that the judgment in this case arose out of any

13 negligence on the part of Settlement.

14        We also disagree that the language of our prior opinion demonstrates that

15 Settlement engaged in tortious and wrongful conduct. The language quoted arose in

16 the context of an analysis of whether principles of equitable estoppel prevented the

17 voiding of the anti-assignment provision at issue. Espinosa I, 2006-NMCA-075, ¶ 28.

18 Whether Settlement engaged in tortious or willful conduct, as those terms are used in

19 the context of Section 56-8-4(A), was not directly addressed in our prior decision.




                                              13
 1 Thus, the district court did not abuse its discretion in determining that there was no

 2 evidence of tortious conduct.

 3         Furthermore, the district court determined that no specific findings of

 4 intentional or willful conduct were made in Espinosa I or in the judgment entered by

 5 the district court following Espinosa II. Plaintiffs have not directed us to any

 6 evidence in the record showing that the district court’s assessment of the record and

 7 factual findings was incorrect. We therefore assume that no such record authority

 8 exists. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

 9 In the absence of specific findings regarding culpable or willful conduct, the award

10 of post-judgment interest at the rate of fifteen percent is to “be left to the sound

11 discretion of the [district] court.” See Pub. Serv. Co. of N.M., 2001-NMCA-082, ¶ 62

12 (stating that “if a plaintiff wants to insure that a judgment is assessed the higher

13 [fifteen] percent interest rate in a case not based in tort or bad faith, the plaintiff must

14 specifically request that the fact[]finder make a finding of intention or willfulness. If

15 such a finding is not made, and the evidence indicates that the defendant acted with

16 a culpable mental state approximating intention or willfulness, the award of the higher

17 interest rate will be left to the sound discretion of the trial court”).




                                                14
 1        Based on the lack of specific findings, we cannot say that the district court’s

 2 exercise of its discretion was improper. We therefore affirm the district court’s award

 3 of post-judgment interest at a rate of eight and three-fourths percent.

 4 4.     Costs and Expenses

 5        Plaintiffs contend that the district court erred in limiting the award for costs and

 6 expenses to $2,213.65. Plaintiffs argue that the attorney fees provision of the loan

 7 agreement permitted recovery of costs and expenses beyond the limits of Rule 1-054

 8 NMRA and, therefore, that the district court erred in reducing the award to only those

 9 amounts permitted by the rule.

10        We review a district court’s award of costs under an abuse of discretion

11 standard. See H-B-S P’ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 24,

12 143 N.M. 404, 176 P.3d 1136; see also Key v. Chrysler Motors Corp., 2000-NMSC-

13 010, ¶ 7, 128 N.M. 739, 998 P.2d 575 (stating that “[t]he [district] court has discretion

14 in assessing costs, and its ruling will not be disturbed on appeal unless it was an abuse

15 of discretion”). “A court abuses its discretion if its decision is contrary to logic and

16 reason. Moreover, a discretionary decision that is premised on a misapprehension of

17 the law can be characterized as an abuse of discretion.” Chapman v. Varela, 2008-

18 NMCA-108, ¶ 57, 144 N.M. 709, 191 P.3d 567 (alteration, internal quotation marks,




                                               15
 1 and citation omitted), rev’d on other grounds by 2009-NMSC-041, 146 N.M. 680, 213

 2 P.3d 1109.

 3        Rule 1-054(D) directs that “costs, other than attorney fees, shall be allowed to

 4 the prevailing party unless the court otherwise directs” and that costs are generally

 5 recoverable “as allowed by statute, Supreme Court rule and case law.” Rule 1-

 6 054(D)(1), (2). Likewise, NMSA 1978, Section 39-3-30 (1966), provides that “[i]n

 7 all civil actions or proceedings of any kind, the party prevailing shall recover his costs

 8 against the other party unless the court orders otherwise for good cause shown.” In

 9 this case, Plaintiffs did not reference Rule 1-054 or Section 39-3-30 in their written

10 pleadings below and instead argued that they were entitled to costs and expenses on

11 the basis of the attorney fees provision of the loan agreement, which provided:

12        In the event of any dispute between the parties concerning this
13        [a]greement or the transactions contemplated hereby, the prevailing
14        party shall be entitled to recover its costs and expenses, including
15        reasonable attorney[] fees, incurred in connection with such dispute.

16 (Emphasis added.) Plaintiffs’ counsel submitted an affidavit and itemized cost bill

17 seeking costs and expenses totaling approximately $19,578.66.

18        The district court reduced the award for costs to $2,213.65 and explained the

19 basis for the reduction in its letter decision:

20        [P]laintiffs are seeking reimbursement for numerous expenses and costs.
21        However, this [c]ourt interprets [Judge Lang’s o]rder [of Jan. 3, 2007]
22        as awarding recoverable costs pursuant to Rule 1-054 . . . . The [c]ourt

                                               16
 1        reviewed each item [provided in the cost bill]; however, it was difficult
 2        at times for the [c]ourt to determine what matters are recoverable.
 3        Certain items appeared to be attorney fees and legal research fees, and
 4        most of the listed items are clearly not recoverable. It is [P]laintiffs’
 5        duty to provide this court with an appropriate cost bill.

 6 The district court’s award consisted of the costs for preparing an accounting, a jury

 7 demand fee, filing fees, and transcripts.2 Thus, it is evident that the rationale

 8 underlying the district court’s award was its determination that the costs award was

 9 limited to the recoverable costs listed in Rule 1-054(D)(2).

10        We conclude that the district court erred by failing to consider the loan

11 agreement, which contractually allowed the prevailing party to recover “its costs and

12 expenses.”     Although the district court is “invested with wide discretion in

13 determining whether to award costs,” the district court’s discretion is “not unlimited.”

14 Key, 2000-NMSC-010, ¶ 7 (internal quotation marks and citation omitted). At

15 minimum, the district court should have assessed the parties’ contractual agreement

16 with respect to costs and expenses before deciding that it would award costs in

17 accordance with Rule 1-054. Cf. Fort Knox Self Storage, Inc. v. W. Technologies,

18 Inc., 2006-NMCA-096, ¶ 29, 140 N.M. 233, 142 P.3d 1 (stating that “[w]hile a

19 [district] court has broad discretion when awarding attorney fees, that discretion is


         2
20         The district court also awarded Plaintiffs’ their costs from a previous appeal;
21 however, that portion of the award is not at issue here and remains unaffected by this
22 current appeal.

                                              17
 1 limited by any applicable contract provision” and “[c]onsequently, th[e c]ourt [should]

 2 look[] to the contract language to determine the parties’ intentions” when awarding

 3 fees). The district court’s letter ruling does not reflect that the court considered the

 4 language of the contract.

 5        The district court stated that it interpreted the final judgment, which was entered

 6 by a prior judge who had since retired, as restricting recoverable costs to those

 7 allowed for by Rule 1-054. However, the final judgment stated only that “[c]ollateral

 8 matters of . . . attorney[] fees, tax, and costs shall be determined at a later hearing.”

 9 The final judgment did not decide any matters concerning the awarding of costs and

10 expenses, and it was therefore contrary to logic for the district court to rely on this

11 language in the final judgment as a basis for restricting the costs award to Rule 1-054.

12 See Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153 (“An abuse of

13 discretion occurs when a ruling is clearly contrary to the logical conclusions

14 demanded by the facts and circumstances of the case.”).

15        In addition, Plaintiffs correctly note that even if the district court properly

16 limited the allowable costs under the loan agreement to those permitted by Rule 1-

17 054, the district court failed to consider the language in the agreement that permitted

18 the recovery of expenses in addition to costs. See 20 Am. Jur. 2d Costs § 1 (2012)

19 (stating that “[c]osts are not synonymous with expenses” (internal quotation marks


                                              18
 1 omitted)). We conclude that the district court’s failure to consider the provision’s

 2 inclusion of the term “expenses” in the cost award was an abuse of discretion. See

 3 Aspen Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 21,

 4 135 N.M. 607, 92 P.3d 53 (“When a contract provides that the prevailing party in the

 5 litigation shall be awarded reasonable attorney fees and costs, a trial court may abuse

 6 its discretion if it fails to award attorney fees.”).

 7        We therefore reverse and remand with instructions that the district court

 8 reassess the award of costs and expenses in accordance with the terms of the loan

 9 agreement. If the district court elects to award costs and expenses in a manner outside

10 the contractual agreement, the district court should articulate its basis for doing so in

11 the final order. See, e.g., Robison v. Katz, 94 N.M. 314, 322, 610 P.2d 201, 209 (Ct.

12 App. 1980) (indicating that a “court may hold void a provision for attorney[] fees in

13 a note or contract where the fees are excessive or oppressive”).

14 5.     Retroactive Application of Espinosa I

15        In its cross-appeal, Settlement argues that this Court’s decision in Espinosa I

16 should not be applied retroactively. Settlement’s argument is difficult to follow, but

17 as we understand it, Settlement contends that the district court erred by applying

18 Espinosa I retroactively and ordering Settlement to pay restitution for all sums it




                                               19
 1 collected from the annuity policy, even those sums collected prior to the death of

 2 Plaintiffs’ father.

 3        Settlement’s argument is without merit. Under the doctrine of law of the case,

 4 “a decision by an appeals court on an issue of law made in one stage of a lawsuit

 5 becomes binding on subsequent trial courts as well as subsequent appeals courts

 6 during the course of that litigation.” State ex rel. King v. UU Bar Ranch Ltd. P’ship,

 7 2009-NMSC-010, ¶ 21, 145 N.M. 769, 205 P.3d 816.

 8 CONCLUSION

 9        We affirm the district court’s award as to attorney fees and pre- and post-

10 judgment interest. On the issue of costs and expenses, we reverse and remand for

11 further proceedings consistent with this opinion.

12        IT IS SO ORDERED.


13
14                                         CYNTHIA A. FRY, Judge

15 WE CONCUR:


16
17 JAMES J. WECHSLER, Judge


18
19 J. MILES HANISEE, Judge


                                             20
