Shultz v. Pascoe

• Decision Date: 04 August 1980
• Docket Number: No. 12552,12552
• Citation: 614 P.2d 1083,1980 NMSC 84,94 N.M. 634
• Parties: William SHULTZ, Petitioner-Appellant, v. Pete PASCOE and Gwen Pascoe, his wife, Phil Stadtler and Lois Stadtler, his wife, and Dan J. Stadtler and Judy Stadtler, his wife, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 1083

614 P.2d 1083

94 N.M. 634

William SHULTZ, Petitioner-Appellant, v. Pete PASCOE and Gwen Pascoe, his wife, Phil Stadtler and Lois Stadtler, his wife, and Dan J. Stadtler and Judy Stadtler, his wife Respondents-Appellees.

No. 12552.

Supreme Court of New Mexico.

Aug. 4, 1980.

[94 NM 634] Dickson & Young, Silver City, Geer, Handley & Hunt, Kenneth A. Hunt, Albuquerque, for petitioner-appellant.

J. Wayne Woodbury, Silver City, for respondents-appellees.

OPINION

FELTER, Justice.

Petitioner-appellant, William Shultz, brought suit against respondents-appellees, Pascoe, et al., for a temporary restraining order to enjoin the respondents from entering onto lands claimed by petitioners under a real estate contract and from interfering with the peaceable possession of such lands by petitioner. Subsequently the complaint of the petitioner was dismissed with prejudice and the trial court awarded respondents "damages" for their attorney fees in the sum of $898.95. We reverse the order of the trial court awarding damages for attorney fees to respondents.

The rights of petitioner to specific performance of the real estate contract for purchase of the land in question from respondents and to possession of that land were finally decided in favor of petitioner by judgment of the United States District Court for the District of New Mexico on October 24, 1978. Collateral to the principal relief sought by petitioner in the action in Federal Court, petitioner also sought relief by way of a temporary restraining order in State court which case has culminated in this appeal.

In addition to contesting and seeking the dismissal of the temporary restraining order in the case at bar, respondents also counterclaimed to have title to the real estate quieted in their name, claiming, in effect, a breach and forfeiture of the real estate contract by petitioner. No dispute exists about the amount of attorney fees paid by respondents to their attorney, namely $898.95, which included all services rendered in the lawsuit in the State court. Both petitioner and respondent moved to dismiss the case in State court. Petitioner also requested the return of the $1,000 cash bond furnished as a condition for the temporary restraining order. The case of Webb v. Beal, 20 N.M. 218, 148 P. 487 (1915), cited by respondents in support of their position contains, inter alia, the following partial quotation from the case of Wittich v. O'Neal, 22 Fla. 592 (1886), with which this Court agreed, to wit:

"(I)f on investigation it is found that the plaintiff had no just right either in the law or the facts to justify him in asking and obtaining from the court such a harsh and drastic exercise of its authority, that he should indemnify the defendant in the language of his bond for 'all damages he might sustain,' and that reasonable counsel fees necessary to the recovering of such injunction are properly a part of his damage."

20 N.M. at 223, 148 P. at 488.

The difficulty in finding the quoted language supportive of respondents' position is that while the temporary restraining order was dismissed and dissolved, we cannot say that petitioner had no right to seek the collateral relief afforded by the temporary restraining order, when in fact and "on investigation" it was found by the United States District Court that petitioner was entitled to possession and specific performance for purchase of the land. To say that petitioner, "had no just right either in the law or the facts to justify" his asking for a temporary restraining order, is to ignore the final decision of the United States District Court in favor of petitioner.

In the case of Woods v. Fambrough, 24 N.M. 488, 174 P. 996 (1918), cited by respondents, the Court held that the portion of the dissolved injunction relating to the grazing of livestock on public lands within four miles of the private lands of appellee was wrongfully issued. No such finding or factual situation exists in the case at bar....