 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 MATIAS MAESTAS and JOAN MAESTAS,

 8          Plaintiffs-Appellees/Cross-Appellants,

 9 v.                                                                                   NO. 29,819

10   ANTONIO MEDINA, IVAN ROPER,
11   RICHARD OLIVAS, JOHN BONEY,
12   DAVID MONDRAGON, ESTATE OF
13   MAXIMO MONDRAGON, ACEQUIA
14   del CAÑONCITO COMMUNITY DITCH
15   ASSOCIATION, and ACEQUIA del ENCINAL
16   COMMUNITY DITCH ASSOCIATION,

17          Defendants-Appellants/Cross-Appellees.

18 APPEAL FROM THE DISTRICT COURT OF MORA COUNTY
19 Eugenio S. Mathis, District Judge

20 Maestas & Suggett, P.C.
21 Paul Maestas
22 Albuquerque, NM

23 for Appellees/Cross-Appellants

24 Peter Thomas White
25 Santa Fe, NM

26 for Appellants/Cross-Appellees
 1                            MEMORANDUM OPINION

 2 VANZI, Judge.

 3        This case requires us to consider whether ditch association members and

 4 commissioners are immune from suit under the Tort Claims Act (TCA), NMSA 1978,

 5 Sections 41-4-1 to -27 (1976, as amended through 2009), specifically through Section

 6 41-4-13, which excludes ditch associations from many of the waivers of immunity

 7 enumerated in the TCA. Concluding that the Legislature did not intend to exclude

 8 ditch association members and commissioners from the waivers of immunity, we

 9 consider whether there was substantial evidence in the record from which the district

10 court could have found that the ditch association members and commissioners were

11 trespassing on the property of Plaintiffs and whether the damages awarded were

12 reasonable. We affirm, as there is substantial evidence to support the district court’s

13 findings.

14 BACKGROUND

15        In 1960, Plaintiff Matias Maestas purchased property located near Holman,

16 New Mexico, in Mora County. He owns the property with his wife, Plaintiff Joan

17 Maestas. Plaintiffs’ property is located directly south of property belonging to the


                                              2
 1 Sims family. On the Sims’ land, which is also located in Mora County, there is a

 2 spring, which is generally referred to as an ojito, and the ojito connects to an irrigation

 3 ditch, which is commonly called an acequia. The ojito and acequia on the Sims’

 4 property is used by the members of two local ditch associations, La Acequia del

 5 Cañoncito Association (Cañoncito) and La Acequia del Encinal Association (Encinal),

 6 to irrigate approximately 408 acres on association members’ properties.

 7        Forty-three years after Plaintiffs purchased the land, some commissioners and

 8 a member from the two ditch associations gathered as a joint commission of Encinal

 9 and Cañoncito ditch associations. At that meeting, the commissioners decided that

10 they needed to work on their access routes to the common acequias so that they would

11 not lose the right to use the routes.

12        On October 11, 2003, ditch association members and commissioners from the

13 Cañoncito and Encinal ditch associations (Defendants) entered an area of Plaintiffs’

14 property that they believed was an historical path known as both the National Forest

15 Path and La Vereda Nacional. They believed that they had an historical right to use

16 the National Forest Path, as it was their access route to the acequia and ojito on the

17 Sims’ property. They began clearing the area that they thought was the National

18 Forest Path so they could get a backhoe to the acequia and ojito for repair work. To

19 clear the land, the association members and commissioners cut trees, shrubs, and used


                                                3
 1 a Bobcat tractor to scrape the dirt on a part of the property to level it for a road. They

 2 also loaded a small red pickup truck with the cut wood so they could remove it from

 3 the property.

 4         Neighbors noticed that Defendants were on Plaintiffs’ property and called

 5 Plaintiff Joan Maestas and her daughter, Lori Maestas Barela, to alert them to what

 6 Defendants were doing. After several hours and a confrontation between Joan, Lori,

 7 and Defendants about Defendants’ right to be on the property, Defendants removed

 8 the cut trees from their pickup truck and stopped their work on Plaintiffs’ property.

 9         On October 17, 2003, Plaintiffs filed a complaint for trespass and other actions.

10 Defendants filed a motion to dismiss the complaint on the ground that they were

11 immune from suit under the TCA, but the district court denied the motion. The case

12 proceeded to a bench trial on trespass and other claims. The district court found that

13 Defendants were not acting in the scope of their duties as ditch commissioners and

14 that they had trespassed on Plaintiffs’ property, and it awarded Plaintiffs

15 approximately $29,000 in damages.

16         Defendants appeal on a number of grounds, specifically (1) that the district

17 court erred in ruling that the ditch commissioners were not immune from liability

18 under the TCA, (2) that the district court erred in ruling that Plaintiffs had title to land

19 known as the National Forest Path, (3) that the district court erred in finding that


                                                4
 1 Defendants trespassed on Plaintiffs’ land because Plaintiffs did not have actual or

 2 constructive possession of the National Forest Path, (4) that the district court erred in

 3 finding that the ditch associations did not have an easement to use the National Forest

 4 Path, and (5) that the district court erred in awarding Plaintiffs compensatory and

 5 punitive damages. Plaintiffs filed a cross-appeal contending (1) that the district

 6 court’s award of punitive damages was unconstitutional because it was too low, and

 7 (2) that the district court abused its discretion in denying their request for attorney

 8 fees. We address each of the arguments in turn.

 9 DISCUSSION

10 Defendants Were Not Immune From Suit Under the TCA

11        Defendants first contend that the district court erred in concluding that they

12 were not immune from liability under the TCA. We review de novo the question of

13 whether the TCA bars a tort claim against a public entity, as it presents a question of

14 statutory interpretation, which is a question of law. Rutherford v. Chaves Cnty., 2003-

15 NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199.

16        The ultimate purpose of statutory interpretation is to give effect to the intent of

17 the Legislature. Jolley v. Associated Elec. & Gas Ins. Servs. Ltd., 2010-NMSC-029,

18 ¶ 8, 148 N.M. 436, 237 P.3d 738. To do so, we first consider the plain language of

19 the statutes. Vescio v. Wolf, 2009-NMCA-129, ¶ 13, 147 N.M. 374, 223 P.3d 371.


                                               5
 1 We will not depart from the plain language of a statute “unless we must resolve an

 2 ambiguity, correct a mistake or absurdity, or deal with a conflict between different

 3 statutory provisions.” Id. (internal quotation marks and citation omitted). “Statutory

 4 provisions purporting to waive governmental immunity are strictly construed.”

 5 Rutherford, 2003-NMSC-010, ¶ 11.

 6        Under the TCA, the Legislature has granted immunity from tort liability to any

 7 “governmental entity and any public employee while acting within the scope of duty

 8 . . . except as waived by . . . Sections 41-4-5 through 41-4-12.” Section 41-4-4(A)

 9 (“Granting immunity from tort liability; authorizing exceptions.”). Sections 41-4-5

10 through -12 set forth provisions waiving immunity for “damages resulting from bodily

11 injury, wrongful death or property damage caused by the negligence of public

12 employees while acting within the scope of their duties” in a number of different

13 situations. See, e.g, § 41-4-5 (waiving immunity for damages from situations where

14 a public employee acting in the scope of his duties is negligent in the operation or

15 maintenance of any motor vehicle, aircraft, or watercraft); § 41-4-7 (waiving

16 immunity for situations arising out of the negligence of public employees acting in the

17 scope of their duties in the operation of airports); § 41-4-9 (waiving immunity for

18 damages arising from the negligence of a public employee acting in the scope of their




                                              6
 1 duties in the “operation of any hospital, infirmary, mental institution, clinic,

 2 dispensary, medical care home or like facilities”).

 3        These waivers are not absolute. Under Section 41-4-13, the Legislature enacted

 4 an exclusion from many of the waivers of immunity for community ditches, acequias,

 5 and other associations created pursuant to the Sanitary Projects Act. Although the

 6 statute now expressly applies to both a ditch association and its public employees, in

 7 2003, that exclusion read:

 8              All community ditches or acequias and all associations created
 9        pursuant to the Sanitary Projects Act are hereby excluded from the
10        waiver of immunity of liability under Sections 41-4-6 through 41-4-12.


11 NMSA 1978, § 41-4-13 (1977). The plain language of the exclusion does not

12 reference public employees. Thus, the plain language suggests that the Legislature

13 intended that public employees not be excluded from the waivers of immunity in the

14 TCA or, in simpler terms, that public employees are still subject to liability for the

15 conduct described in Sections 41-4-5 through -12.

16        This interpretation is strengthened by the Legislature’s use of the term “public

17 employee” throughout the TCA. See, e.g., § 41-4-4(A) (“A governmental entity and

18 any public employee while acting within the scope of duty are granted immunity from

19 liability.”); § 41-4-6(A) (“The immunity granted pursuant to Subsection A of Section

20 41-4-4 . . . does not apply to liability for damage resulting from . . . the negligence of

                                               7
 1 public employees[.]”); § 41-4-7(A) (same); § 41-4-8(A) (same). Thus, where the

 2 Legislature did not use a term that it had used in other Sections, we conclude that it

 3 did not intend for public employees to be covered by the exclusion of immunity.

 4        Defendants cite to the 2006 amendment to Section 41-4-13 as evidence of the

 5 legislative intent to exclude public employees from the waivers in Sections 41-4-5 to

 6 -12.    However, the amendment can be used as evidence to support either

 7 interpretation, and therefore, is not persuasive. Rather, we rely on the plain language

 8 interpretation of the exclusion. The plain language of the exclusion as it read on the

 9 date of the offense, construed together with the other portions of the TCA, is

10 sufficiently clear that the Legislature, at the time of the enactment of the exclusion,

11 did not intend to exclude ditch association members and commissioners from the

12 waivers of immunity in the TCA. See High Ridge Hinkle Joint Venture v. City of

13 Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (explaining that the

14 plain language of the statute is the primary indicator of legislative intent and that when

15 several sections of a statute are involved, they must be read together so that all parts

16 are given effect).

17        We also acknowledge that the under our interpretation of the TCA, the ditch

18 associations would still provide a defense for the public employees who were acting

19 in the scope of their duties, if an insurance carrier did not, and would also be required


                                               8
 1 to pay any settlement or final judgment entered against a public employee. See § 41-

 2 4-4(B) (“Unless an insurance carrier provides a defense, a governmental entity shall

 3 provide a defense, including costs and attorney fees, for any public employee when

 4 liability is sought for . . . any tort” or for “any violation of property rights or any

 5 rights, privileges or immunities secured by the constitution and laws of the United

 6 States” or the state of New Mexico.); § 41-4-4(D) (“A governmental entity shall pay

 7 any settlement or any final judgment entered against a public employee for . . . any

 8 tort.”). But considering these payment provisions with our interpretation of the waiver

 9 does not create an absurd result, as the Legislature also contemplated and provided for

10 indemnification by public employees when that employee acted fraudulently or with

11 intentional malice while acting in the scope of his duties. See § 41-4-4(E) (“A

12 governmental entity shall have the right to recover from a public employee the amount

13 expended by the public entity to provide a defense and pay a settlement agreed to by

14 the public employee or to pay a final judgment if it is shown that, while acting within

15 the scope of his duty, the public employee acted fraudulently or with actual intentional

16 malice causing the bodily injury, wrongful death or property damage resulting in the

17 settlement or final judgment.”).

18        We do not consider Defendants’ argument that the district court erred in

19 concluding that they were not acting in the scope of their duties, as they argued we


                                              9
 1 should only reach such argument if we decide to extend the exclusion to provide them

 2 with immunity. We also note that Defendants have not argued that the claims against

 3 them should have been limited to those for which the TCA waives immunity in

 4 Sections 41-4-5 to -12. Therefore, we do not consider whether trespass was a proper

 5 cause of action.

 6 There Is Substantial Evidence to Support the District Court’s Finding That
 7 Defendants Caused Damage to Plaintiffs’ Land That Was Not the National
 8 Forest Path

 9        Defendants contest the district court’s findings that they trespassed on

10 Plaintiffs’ land. “We review the district court’s factual findings for substantial

11 evidence.” Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 13, 147 N.M. 157, 218

12 P.3d 75.

13        Most of Defendants’ arguments are framed such that they assert error in the

14 district court’s findings about the National Forest Path. Defendants specifically argue

15 that the district court should not have determined that Plaintiffs had title to the

16 National Forest Path, that Plaintiffs were in possession of the National Forest Path,

17 and that Defendants did not have an easement to use the National Forest Path.

18 However, we note that the district court’s findings that support the trespass do not

19 actually reference the National Forest Path. Instead those findings state:

20        1.     Plaintiffs own the property at issue in this lawsuit;


                                             10
 1               ....

 2        8.      On October 11, 2003, . . . Defendants appeared on Plaintiffs’
 3        property and moved dirt, cleared trees, cut down trees and cut shrubbery
 4        to clear a path through Plaintiffs’ property that they intended to utilize
 5        to access the ojito;

 6               ....

 7        14. The area over which . . . Defendants cut a road on October 11,
 8        2003, and over which the Ditch Associations claim a right of access, was
 9        owned by . . . Plaintiffs on October 11, 2003.

10 We consider whether there was substantial evidence to support the district court’s

11 findings that Defendants trespassed on Plaintiffs’ property. We conclude that there

12 was substantial evidence presented that Defendants were both on and off of the path

13 within the boundaries of Plaintiffs’ property and that the evidence that they were off

14 the path was sufficient to support a claim for trespass, even if Defendants had a right

15 to use the National Forest Path.

16        First, there is substantial evidence in the record to support a finding that

17 Defendants were within the boundaries of Plaintiffs’ property. Although the parties

18 disputed the location of the northern boundary of Plaintiffs’ property, there is

19 substantial evidence that Defendants were on land that belonged to Plaintiffs. Leroy

20 Smith, Plaintiffs’ expert surveyor, testified that he found the northern boundary of

21 Plaintiffs’ property and indicated such on his survey, Exhibit S, with a dark black line.

22 He also testified that he had seen the stumps of the trees and the area where

                                              11
 1 Defendants had started cutting a road and that the area was within the boundaries of

 2 Plaintiffs’ property. Garland Burnett, Defendants’ expert surveyor, testified that

 3 Smith may have erred in locating the northern boundary of Plaintiffs’ property. He

 4 indicated that instead of the black boundary line on Exhibit S, which is also

 5 represented by a green line on Exhibit 47, he thought Plaintiffs’ boundary was the red

 6 line on Exhibit 47, which is located to the south of the green line. But he also testified

 7 that he did not have as much information as he would have liked to accurately or

 8 comfortably be able to fix the northern boundary line on Plaintiffs’ property. Based

 9 on Smith’s testimony, the district court’s finding that the northern boundary line was

10 the black line indicated on Exhibit S is supported by substantial evidence. See

11 Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen

12 there is a conflict in the testimony, we defer to the trier of fact.”).

13        Second, there is substantial evidence to support the district court’s finding that

14 Defendants caused damage to Plaintiffs’ land that was not a part of the National Forest

15 Path. Plaintiff Matias Maestas testified that Defendants damaged land that was not

16 the area of his property that may have once been the National Forest Path. He

17 indicated the location of the damage by highlighting that area on Exhibit S, a final

18 survey plat displaying the boundaries and other physical landmarks of the property,

19 with a pink marker. That highlighted pink line is to the south of the black boundary


                                               12
 1 line, which indicates the northern boundary of Plaintiffs’ property as established by

 2 Smith. Plaintiff Matias Maestas testified that Defendants cut a road in an area where

 3 there had never been a road before on his property. He also explained that there were

 4 no trees cut between the brass cap to the metal gate that leads to the Sims’ property,

 5 but that all the trees that were cut were west of the metal gate located on the far west

 6 end where there was a thicket of trees.

 7        Plaintiffs’ expert surveyor, Smith, also testified that Defendants damaged a part

 8 of the land that was not the National Forest Path. He testified that there was no

 9 evidence that the road that he identified as a trail on Exhibit S had been used in at least

10 twenty years. He also expressed that there was no evidence of a trail or a road along

11 the northern boundary of Plaintiffs’ property to the west of the metal gate or along the

12 pink line that was drawn by Plaintiff Matias Maestas at trial on Exhibit S below the

13 northern boundary line of Plaintiffs’ property.

14        Defendants own expert could not state that Defendants never ventured off of

15 the National Forest Path. Defendants’ expert surveyor, Burnett, testified on cross-

16 examination that he only inspected the property after October 11, 2003. He stated that

17 there were indications of a path or road from the Plaintiffs’ gate going west, but he did

18 not go as far west as necessary to inspect the area where Plaintiffs claimed Defendants

19 cut trees and a road on their property. He also stated that he walked over a portion of


                                               13
 1 the land with a road or path on it that was quite old, but he did not see any evidence

 2 of recent clearing on that portion of Plaintiffs’ land that he walked on. Finally, he

 3 stated that he did not see the trees that had been cut down and that he was not taken

 4 to an area where there were stumps of trees or any indication that trees had been cut

 5 down by Defendants.

 6        Indulging all reasonable inferences in favor of the district court’s decision, we

 7 conclude that the above testimony constituted substantial evidence in support of the

 8 district court’s findings that Defendants trespassed upon and damaged part of the

 9 Plaintiffs’ property that was not the National Forest Path. See Las Cruces Prof’l Fire

10 Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177

11 (“[W]e will not reweigh the evidence nor substitute our judgment for that of the fact

12 finder.”). Accordingly, there is substantial evidence in the record to support the

13 district court’s finding that Defendants trespassed on Plaintiffs’ property when they

14 cut trees and a road on Plaintiffs’ land in October 2003.

15        Because we have concluded that there was sufficient evidence to support a

16 finding that Defendants were off of the National Forest Path, we need not address

17 Defendants’ arguments relating to the path. We need not consider Defendants’

18 argument about whether the district court had jurisdiction to determine if Plaintiffs

19 had title to the National Forest Path or whether it was error for the district court to


                                             14
 1 determine that Plaintiffs were in possession of the land designated as the National

 2 Forest Path. We also do not consider whether the district court erred in concluding

 3 that Defendants did not have an easement over the National Forest Path, as such

 4 arguments have no bearing on our review of the district court’s findings that

 5 Defendants cut a road without permission through a portion of land owned by

 6 Plaintiffs that was located to the west of the area that was once purportedly the

 7 National Forest Path.

 8 The District Court Did Not Err in Its Award of Compensatory Damages

 9        Defendants contend that the district court erred in awarding compensatory

10 damages to Plaintiffs because Plaintiffs did not prove their damages with “reasonable

11 certainty.” We will affirm the district court’s award of compensatory damages if it is

12 supported by substantial evidence. See Chavarria v. Fleetwood Retail Corp.,

13 2006-NMSC-046, ¶ 17, 140 N.M. 478, 143 P.3d 717 (upholding an award for

14 compensatory damages where there was substantial evidence supporting it).

15        In New Mexico, it is the burden of the party seeking to recover damages to

16 prove “the existence of injuries and resulting damage with reasonable certainty.”

17 Abbinett v. Fox, 103 N.M. 80, 86, 703 P.2d 177, 183 (Ct. App. 1985). “However, the

18 theory of damages is founded on the principle of making the injured party whole. In




                                             15
 1 computing damages the fact finder is not held to an inflexible or precise standard; the

 2 object is to afford just and reasonable compensation for the injuries sustained.” Id.

 3        Here, we affirm the award of compensatory damages because there is

 4 substantial evidence in the record from which the district court could have found that

 5 Plaintiffs met their burden with reasonable certainty. Plaintiff Matias Maestas

 6 testified that 185 trees were cut from his property. He stated that among those trees,

 7 there were a few that were 200-year-old Gambel Oaks, and the remainder were

 8 smaller trees ranging in size from approximately three inches in diameter to about a

 9 foot in diameter. He also testified that he met with Dan Cassidy from the Cassidy

10 Tree Farm and Landscaping business to compute an estimate of the cost of replacing

11 the trees that were cut. Plaintiff Matias Maestas stated that from the numbers he

12 obtained from Cassidy, he calculated the value of replacing 150 trees with four-inch

13 diameters, for approximately $40 per tree, as $6000. He also calculated the cost of

14 replacing thirty trees with three-inch diameters at a price of approximately $33 per

15 tree as totaling $990. He stated that the total cost to replace the five large trees with

16 approximately fourteen-inch diameters was $1000 because each tree would cost

17 around $200. Finally, there was testimony that it would cost $200 per cord to replace

18 four cords of oak and that there were shrubs that were also cut that would need to be




                                              16
 1 replaced. Thus, he testified that it would cost approximately $9000 to replace the

 2 trees, wood, and shrubs that were damaged by Defendants.

 3        There was also testimony concerning the value of the land that Defendants were

 4 scraping with the Bobcat. Plaintiff Matias Maestas testified that the whole area where

 5 Defendants were cutting was in the range of 1200 feet. Smith testified that a section

 6 of land approximately 1300 feet long by 12 feet wide was equal to around 0.372 acres

 7 of land. Plaintiff Matias Maestas testified that he had previously sold some land for

 8 about $3000 an acre, but that at the time of the trial he would have sold the land for

 9 around $5000 an acre. See City of Albuquerque v. Ackerman, 82 N.M. 360, 362, 482

10 P.2d 63, 65 (1971) (“An owner of real property is presumed to have special

11 knowledge as to its value by reason of ownership and is therefor[e] competent to

12 testify to value.”). Thus, there was substantial evidence from which the district court

13 could have concluded that the section of ground that was damaged was worth close

14 to $3000.

15        We conclude that the testimony presented by Plaintiffs on the issue of damages

16 is sufficient to support the district court’s calculation that the damages equaled around

17 $11,580. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874, 881 (1985)

18 (“Precise mathematical computation is not required.”). We affirm the district court’s

19 award of $23,160 compensatory damages, as trespassers are statutorily liable to


                                              17
 1 property owners for an amount double the appraised value of damages to their

 2 property. See NMSA 1978, § 30-14-1.1(D) (1983) (providing that persons who enter

 3 the property of another without permission and cause some damage to the property

 4 “shall be liable to the owner, lessee or person in lawful possession for damages in an

 5 amount equal to double the amount of the appraised value of the damage of the

 6 property injured or destroyed”). We note that the statute provides for double the

 7 “appraised value” of the damage to the property. The district court doubled the value

 8 of damage that Plaintiff Matias Maestas testified he suffered. We do not decide

 9 whether his testimony qualified as an “appraised value” under the statute because

10 Defendants do not argue that “value” is distinguishable from “appraised value.”

11        On appeal, Defendants reason that Plaintiffs’ calculations were speculative and

12 that they should have only received nominal damages because the damages would

13 have only been nominal if Plaintiffs had mitigated. First, we note that Defendants did

14 not object to Plaintiff Matias Maestas calculations at trial as speculative or unreliable.

15 See Attorney Gen. of N.M. v. N.M. Pub. Serv. Comm’n, 101 N.M. 549, 552-53, 685

16 P.2d 957, 960-61 (1984) (stating that “[i]f a proper objection is not made, the evidence

17 may be considered in the same manner as any other relevant evidence and has

18 sufficient probative value to support a finding. . . . Failure to object to the admission

19 of evidence operates as a waiver” (citation omitted)). Although defense counsel


                                               18
 1 elicited some testimony from Plaintiff Matias Maestas concerning firewood and

 2 suggested one finding of fact that stated “the extent of damages, if mitigated, was not

 3 substantial and only nominal[,]” he did not specifically argue to the district court that

 4 Plaintiffs should have mitigated their damages by selling the cut trees as firewood or

 5 that the property was valuable as grazing land for cattle, nor did he introduce evidence

 6 that such actions would have been feasible or successful. Thus, the district court did

 7 not have an opportunity to rule on such arguments, and the district court did not err

 8 in failing to conclude on its own that Plaintiff Matias Maestas needed to mitigate his

 9 damages by selling the cut trees as firewood or by using the cleared land to graze

10 cattle.

11 The Punitive Damages Awarded Did Not Deny Either Plaintiffs or Defendants
12 Due Process of Law as Guaranteed by the Fourteenth Amendment

13           Both Defendants and Plaintiffs contend that the district court erred in awarding

14 $1000 in punitive damages against each of the six Defendants, for a total of $6000.

15 Defendants argue that there was no evidence that their actions in trespassing on and

16 damaging Plaintiffs’ property were intentional or willful, reckless, or wanton so as to

17 warrant punitive damages. In their cross-appeal, Plaintiffs argue that the award was

18 disproportionately low when compared to the compensatory damages award and that

19 the low award violated their due process and equal protection rights. We review the

20 reasonableness of the district court’s award of punitive damages de novo because we

                                                19
 1 make an independent assessment of the record in order to determine whether the fact

 2 finder’s award of punitive damages is comparatively reasonable. Aken v. Plains Elec.

 3 Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132 N.M. 401, 49

 4 P.3d 662

 5        Both parties cite to the test from Aken as the proper framework with which to

 6 analyze these arguments. Id. ¶¶ 20-27. The Aken framework was adopted by the New

 7 Mexico Supreme Court from the United States Supreme Court case, BMW of North

 8 America, Inc. v. Gore, 517 U.S. 559 (1996). See Aken, 2002-NMSC-021, ¶¶ 20-21.

 9 The factors were developed to evaluate punitive damages to determine if the award

10 was disproportionately high, such that the award violated the defendant’s due process

11 and equal protection rights. Id. ¶¶ 8, 11-12, 19-20 (using the BMW test to review a

12 punitive damages award to determine if it was “grossly excessive” and in violation of

13 a defendants substantive due process rights). We will consider the Aken factors and

14 the reasonableness of the award to consider Defendants’ contention that the punitive

15 damages award was unreasonably high.

16        In our review, we consider the following three factors: “(1) the reprehensibility

17 of the defendant’s conduct, or the enormity and nature of the wrong; (2) the

18 relationship between the harm suffered and the punitive damages award; and (3) the




                                             20
 1 difference between the punitive damages award and the civil and criminal penalties

 2 authorized or imposed in comparable cases.” Chavarria, 2006-NMSC-046, ¶ 36.

 3        Of the Aken criteria, the first—the reprehensibility of a defendant’s conduct—

 4 is “the most important idicum of the reasonableness of a punitive damages award.”

 5 Chavarria, 2006-NMSC-046, ¶ 37 (alteration, internal quotation marks, and citation

 6 omitted). Several Defendants testified that they thought they had a right of access

 7 across Plaintiffs’ land to get to the ojito and acequia so that they could make repairs

 8 and also to determine if people in the area were illegally diverting water from their

 9 acequia. They testified that they had previously used other areas of land to reach the

10 ojito and acequia, but they had lost access to those areas and, therefore, needed to use

11 the National Forest Path again in order to get a backhoe to their ojito.

12        However, there is also evidence in the record that Plaintiffs did not give

13 Defendants permission to be on the land; that Defendants did not attempt to determine

14 if they had a right of access across Plaintiffs’ property because Defendants believed

15 they had one that was established by historical custom; and that Defendants did not

16 inquire as to where that access might have been located in connection to Plaintiffs’

17 land. Although Defendants testified that they did not request permission from the

18 Sims to use their property because they believed they no longer could use the Sims’

19 road to the ojito and acequia, there was evidence that the Sims would have been


                                              21
 1 accommodating and that the access through the Sims’ property would have been

 2 easier for them to use.

 3        Furthermore, Defendants never checked any surveys or other documents or

 4 made any efforts to determine if they had a right to demolish Plaintiffs’ property to

 5 create a road to get a backhoe to their acequia. Instead, they just destroyed an area

 6 to the west of what may have been the National Forest Path. Additionally, even after

 7 Joan Maestas confronted Defendants and told them to leave her property, they

 8 remained on the land and continued destroying trees and interfering with the natural

 9 vegetation and grade of the land for several hours. The demolition continued until

10 some time after 12:30 p.m. when Lori Maestas Barela got to the property and told

11 Defendants that she would call the State Police to get them off of the land. This

12 evidence establishes that Defendants should have known that the property that they

13 were destroying was Plaintiffs’ property and that by remaining on the land and

14 continuing to cut down trees and cut a road, their conduct rose to a level of

15 reprehensibility that warranted a punitive damage award against them.

16        Next, we consider the second factor and “compare the punitive damages award

17 to the actual or potential harm suffered by Plaintiffs.” Chavarria, 2006-NMSC-046,

18 ¶ 38. Here, the punitive damages award was approximately one-half of the amount

19 of harm actually suffered by Plaintiffs, but because the statute doubled Plaintiffs’


                                            22
 1 recovery, the punitive damages award was one-fourth of the final compensatory

 2 damages award. See § 30-14-1.1(D) (establishing double recovery for trespass

 3 damages). This ratio is not unconstitutional, as it is not even equal to the damages

 4 award. See Grassie v. Roswell Hosp. Corp., 2011-NMCA-024, ¶ 57, ___ N.M.___,

 5 ___ P.3d ___ (concluding that a ratio just slightly greater than 10:1 punitive damages

 6 to compensatory damages was “on the outer edge of the range that could be

 7 considered perhaps presumptively acceptable[, b]ut it [was] not so large as to raise

 8 concerns of constitutional dimension”).

 9        Finally, we consider the last factor and compare the punitive damages award

10 to potential civil and criminal sanctions. This factor is the least important in our

11 analysis. See Chavarria, 2006-NMSC-046, ¶ 39 (“The possibility of a jail sentence

12 justifies a . . . punitive damages award.” (internal quotation marks and citation

13 omitted)). As a crime, trespass is a misdemeanor under NMSA 1978, Section 30-14-

14 1(D) (1995). In New Mexico, misdemeanors are punishable by up to one year in jail

15 or up to $1000 in fines or both. NMSA 1978, § 31-19-1(A) (1984). The potential for

16 both civil and criminal liability in this case weighs in favor of the reasonableness of

17 the punitive damages award. Therefore, after consideration of the three Aken factors,

18 we conclude that the punitive damages award in this case was not excessively high so

19 as to violate Defendants’ due process rights.


                                             23
 1        Plaintiffs argue that we should use the Aken framework to evaluate what they

 2 contend was a disproportionately low award of punitive damages. However, the Aken

 3 framework is used to evaluate awards of punitive damages for excessiveness, as the

 4 Supreme Court in BMW opined that an “excessive award” is unconstitutional because

 5 it violates the defendant’s right to due process of law. See BMW, 517 U.S. at 568

 6 (“Only when an award can fairly be categorized as ‘grossly excessive’. . . does it enter

 7 the zone of arbitrariness that violates the Due Process Clause of the Fourteenth

 8 Amendment.”). Plaintiffs cite to no authority that a small punitive damages award

 9 could violate the due process rights of a plaintiff or that the framework has ever been

10 used to increase a punitive damages award. Therefore, we assume there is none. See

11 In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that

12 where a party cites no authority to support an argument, we may assume no such

13 authority exists). Accordingly, we hold that the award was not unconstitutionally low.

14        Plaintiffs offer an alternative argument: Even if we conclude that the low

15 punitive damage award does not violate their due process and equal protection rights

16 under the Aken framework, then we can still conclude that the district court abused its

17 discretion in only awarding $1000 per Defendant. However, we note that a district

18 court only abuses its discretion if its decision is contrary to logic and reason and that

19 “[p]untive damages are not awarded as a matter of right, but lie within the sound


                                              24
 1 discretion of the district court.” Skeen v. Boyles, 2009-NMCA-080, ¶ 36, 146 N.M.

 2 627, 213 P.3d 531 (alterations, internal quotation marks, and citation omitted).

 3        Here, we have concluded that the district court’s award was reasonable, in that

 4 it was not so great as to deny Defendants their due process rights. However, there was

 5 some degree of reprehensibility in Defendants’ conduct for which a punitive damages

 6 award was acceptable. The district court’s award of $1000 per Defendant is

 7 proportionate to the degree of the offense in this case and is both sufficient to punish

 8 for the bad behavior and is also significant enough to deter such action by Defendants

 9 in the future. See Bogle v. Summit Inv. Co., 2005-NMCA-024, ¶ 34, 137 N.M. 80, 107

10 P.3d 520 (“Punitive damages are intended to punish the defendant and to deter future

11 wrongdoing.” (internal quotation marks and citation omitted)). Plaintiffs are not

12 entitled to a greater punitive damages award merely because other courts have

13 punished other defendants conduct more severely, especially where Defendants are

14 also liable for double compensatory damages under the statute. Cf. Akins v. United

15 Steel Workers of Am., 2010-NMSC-031, ¶¶ 8, 20, 148 N.M. 442, 237 P.3d 744

16 (holding that a compensatory award of around $1600 would not sufficiently deter

17 future bad conduct of a union defendant so a punitive damages award of $30,000 was

18 both reasonable and appropriate). Nothing in the district court’s decision was contrary




                                              25
 1 to logic or reason and, thus, it was not an abuse of discretion. Accordingly, we will

 2 not remand this case for imposition of a higher punitive damages award.

 3 Plaintiffs Are Responsible for Their Own Attorney Fees

 4        In the cross-appeal, Plaintiffs contend that the district court abused its discretion

 5 in denying their attorney fees and argue that we should create an exception to the

 6 American rule and allow an award of attorney fees in this case. We review the district

 7 court’s decision to deny attorney fees for an abuse of discretion. See Paz v. Tijerina,

 8 2007-NMCA-109, ¶ 8, 142 N.M. 391, 165 P.3d 1167.

 9        New Mexico follows the American rule, under which, “absent statutory or other

10 authority, litigants are responsible for their own attorney’s fees.” N.M. Right to

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

12 (internal quotation marks and citation omitted). Underlying the rule are two important

13 policies: first, “the American rule promotes equal access to the courts for the

14 resolution of bona fide disputes[,]” and second, it “tends to preserve judicial

15 resources.” Id. ¶¶ 12-13 (alteration, internal quotation marks, and citation omitted).

16 Although, we have recognized exceptions to the rule, those exceptions “are limited in

17 number and narrow in scope.” Id. ¶ 15. They include “(1) exceptions arising from a

18 court’s inherent powers to sanction the bad faith conduct of litigants and attorneys, (2)




                                               26
 1 exceptions arising from certain exercises of a court’s equitable powers, and (3)

 2 exceptions arising simultaneously from judicial and legislative powers.” Id.

 3           Plaintiffs contend that an exception would be appropriate and would further the

 4 goals of the American rule in cases like this because in property trespass cases, unlike

 5 personal injury cases, the damages awarded are not very significant, but the litigants

 6 may have had to pay a substantial amount of money in attorney fees. They reason that

 7 such an exception in these cases would promote equal access to the courts and would

 8 discourage individuals like Defendants from unfounded attacks against property

 9 rights.

10           Plaintiffs’ argument does not bring them within the narrow exceptions that we

11 have previously recognized, and nothing in their argument warrants a new exception.

12 Plaintiffs are essentially just arguing that the American rule should not apply in cases

13 where damages are low. We recognize a tension between Plaintiffs’ argument and our

14 policy of not discouraging losing litigants from fairly prosecuting or defending a

15 claim. See id. ¶ 18. However, we have not adopted a rule that allows a winning

16 litigant to recover attorney fees just because their actual damages were low. Plaintiffs

17 have not cited any authority from outside jurisdictions that have granted an extension

18 for cases like this that could be persuasive to us. We are mindful that the Legislature

19 has already provided for double the appraised value of damages in trespass claims,


                                               27
 1 such that their recovery is greater than the value of the damages that they suffered.

 2 See § 30-14-1.1(D) (providing that trespassers shall be liable for double damages to

 3 owners, lessees or others in lawful possession of the property trespassed upon).

 4        Thus, we decline to create a new exception for property trespass cases. Because

 5 we do not adopt a new exception for attorney fees in property trespass cases, we

 6 cannot say that the district court’s decision to deny attorney fees in this case was

 7 illogical or unreasonable. See N.M. Right to Choose/NARAL, 1999-NMSC-028, ¶ 8

 8 (concluding that the district court did not abuse its discretion in denying attorney’s

 9 fees when the district court did not adopt the private attorney general doctrine as a

10 matter of law and stating that a district court’s decision is an abuse of discretion if it

11 is contrary to logic and reason).

12 CONCLUSION

13        For the foregoing reasons, we affirm the judgment of the district court.

14        IT IS SO ORDERED.



15                                           __________________________________
16                                           LINDA M. VANZI, Judge




                                               28
1 WE CONCUR:



2 _________________________________
3 CELIA FOY CASTILLO, Chief Judge



4 _________________________________
5 MICHAEL E. VIGIL, Judge




                                  29
