State ex rel. Goodmans Office Furnishings, Inc. v. Page & Wirtz Const. Co., 14729

• Docket Nº: No. 14729
• Citation: 1984 NMSC 103, 102 N.M. 22, 690 P.2d 1016
• Case Date: November 01, 1984
• Court: Supreme Court of New Mexico

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.

[102 NM 23]

Page 1017

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 [102 NM 24]

Page 1018

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....