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1 BUILDERS CONTRACT INTERIORS, INC. V. HI-LO INDUSTRIES, INC., 2006-NMCA-053, 139 N.M. 508, 134 P.3d 795 BUILDERS CONTRACT INTERIORS, INC., Plaintiff-Counterdefendant/Appellee, v. HI-LO INDUSTRIES, INC., Defendant-Counterclaimant/Appellant, and HI-LO INDUSTRIES, INC., Third-party Plaintiff/Appellant, v. ROBERT L. NOVIS, Third-party Defendant/Appellee.
Docket No. 24,618 COURT OF APPEALS OF NEW MEXICO 2006-NMCA-053, 139 N.M. 508, 134 P.3d 795 March 16, 2006, Filed APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, William F. Lang, District Judge Released for publication May 16, 2006. COUNSEL Lastrapes, Spangler & Pacheco, PA, Matthew M. Spangler, Rio Rancho, NM, for Appellant Peter Everett IV, Albuquerque, NM, for Appellee JUDGES JAMES J. WECHSLER, Judge. WE CONCUR: IRA ROBINSON, Judge, MICHAEL E. VIGIL, Judge AUTHOR: JAMES J. WECHSLER OPINION

WECHSLER, Judge. {1} In this appeal, we consider whether mere negligence in failing to perform a settlement agreement constitutes a basis in equity to set aside a judgment based on the settlement agreement itself. The conflict here arises in the context of a settlement agreement between Plaintiff Builders Contract Interiors, Inc., its president Third-party Defendant Robert L. Novis (together BCI), and Defendant Hi-Lo Industries, Inc. (Hi-Lo), requiring BCI to pay a settlement amount to Hi-Lo on or before a certain date. The settlement agreement provided that "[t]ime [was] of the essence" and, if the amount was not paid by that date, Hi-Lo was entitled to file and enter with court a stipulated judgment against BCI. BCI did not pay within the specified time, and Hi-Lo filed the stipulated judgment. The district court set aside the judgment on equitable grounds. Because BCI's justification for failing to pay within the specified time was based on its own

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