State ex rel. Goodmans Office Furnishings, Inc. v. Page & Wirtz Const. Co.

• Decision Date: 01 November 1984
• Docket Number: No. 14729,14729
• Parties: STATE of New Mexico, ex rel. GOODMANS OFFICE FURNISHINGS, INC., an Arizona corporation, Plaintiff-Appellant and Cross-Appellee, v. PAGE & WIRTZ CONSTRUCTION COMPANY, a New Mexico corporation, and Safeco Insurance Company, a Washington corporation, Defendants-Appellees and Cross-Appellants.
• Court: New Mexico Supreme Court

Page 1016

690 P.2d 1016

102 N.M. 22

STATE of New Mexico, ex rel. GOODMANS OFFICE FURNISHINGS, INC., an Arizona corporation, Plaintiff-Appellant and Cross-Appellee, v. PAGE & WIRTZ CONSTRUCTION COMPANY, a New Mexico corporation, and Safeco Insurance Company, a Washington

corporation, Defendants-Appellees and

Cross-Appellants.

No. 14729.

Supreme Court of New Mexico.

Nov. 1, 1984.

Rehearing Denied Nov. 21, 1984.

Rodey, Dickason, Sloan, Akin & Robb, James S. Starzynski, Albuquerque, for plaintiff-appellant and cross-appellee

Roy F. Miller, Jr., Hartley Wess, Albuquerque, for defendants-appellees and cross-appellants.

OPINION

STOWERS, Justice.

This appeal arose from a suit filed in Bernalillo County to recover damages under the provisions of the New Mexico Miller Act, NMSA 1978, Sections 13-4-18 to -20 (Repl.Pamp.1983). The district court found in favor of the appellant, Goodmans Office Furnishings, Inc. (Goodmans), but offset the damage award and awarded no prejudgment interest or attorney fees. Goodmans appeals, and the appellees, Page & Wirtz Construction Company (Page & Wirtz) and Safeco Insurance Company (Safeco), cross-appeal. We affirm the district court.

Goodmans raises three points on appeal:

(1) Whether the district court erred in denying prejudgment interest and attorney fees;

(2) Whether the district court erred in deducting from the damage award the cost of unincorporated excess materials; and

(3) Whether the district court erred in applying the full amount of a payment to the outstanding balance due on the project.

Page & Wirtz was the general contractor and Safeco was the surety on the Eastern New Mexico Medical Project (Project). Page & Wirtz selected Building Corporation of America, Inc. (BCA) as the sub-contractor to supply and install hospital furnishings and equipment on the Project. These furnishings were ordered by BCA from Goodmans. Goodmans was also providing equipment to BCA on four other building projects.

The district court found that on or about August 7, 1978, Goodmans made demand upon Page & Wirtz, allegedly pursuant to Section 13-4-19, for the sum of $22,096.73 plus service charges. On or about August 14, 1978, BCA made a $10,000 payment, to be applied to the outstanding debt on the Project. However, Goodmans apportioned this payment to four other BCA accounts and only applied $1,694.28 to the Project. Goodmans then filed its complaint on November 9, 1978 as a materialman seeking to recover for the furnishings and equipment supplied. Page & Wirtz and Safeco filed a motion to dismiss, and the district court allowed Goodmans to file an amended supplemental complaint. The district court denied a subsequent motion to dismiss.

Goodmans argues that the district court erred in denying them prejudgment interest and attorney fees. Goodmans claims that the district court erroneously found and concluded that neither interest nor attorney fees could ever be recovered under the New Mexico Miller Act. This is a misinterpretation of the district court's findings. In its findings, the district court merely acknowledges that the New Mexico Miller Act does not specifically provide for an award of attorney fees or interest. Absent authority or rule of the court, attorney fees are not recoverable as an item of damage. Keller v. Cavanaugh, 64 N.M. 86, 324 P.2d 783 (1958). Interest, even if allowed by statute, is still a matter within the discretion of the district court. See Kennedy v. Moutray, 91 N.M. 205, 572 P.2d 933 (1977).

Goodmans claims that attorney fees are still collectible if called for by the underlying contractual agreement. However, in this case, the district court found that there was no contract between Goodmans and Page & Wirtz. A decision of the district court will not be reversed unless it appears that its findings and conclusions cannot be sustained either by evidence or permissible inferences therefrom. Lujan v. Pendaries Properties, Inc., 96 N.M. 771, 635 P.2d 580 (1981). There is sufficient evidence in the record to support the district court's findings and conclusions.

Goodmans asserts that the district court erred in deducting the cost of excess materials from Goodmans' damage award. The district court allowed Page & Wirtz a credit of $8,713.85 for excess materials and equipment delivered but not incorporated in the Project. Goodmans does not contest the non-use of the materials but claims that mere delivery of materials for use in the Project, as opposed to actual incorporation, is sufficient to allow recovery. We disagree. The record indicates that Goodmans examined the plans and specifications and determined how much hospital furnishings and equipment the Project required. Goodmans prepared the order for BCA and the Project, and ordered the equipment and materials. The district court properly determined that Page & Wirtz was entitled to a credit against any monies due and owing to Goodmans from BCA for the cost of excess equipment and materials. Findings of fact which are supported by substantial evidence will not be disturbed on appeal. Moreover, findings are to be liberally construed in support of a judgment, and such findings are sufficient if a fair consideration of all of them taken together justifies the trial court's judgment. H.T. Coker Construction Co. v. Whitfield Transportation, Inc., 85 N.M. 802, 518 P.2d 782 (Ct.App.1974).

Finally, Goodmans argues that the district court erred in applying a $10,000 payment to the outstanding balance due on the Project. The district court found that the August 14, 1978 payment of $10,000 to Goodmans was monies which BCA received from Page & Wirtz and delivered...