Vinton Eppsco Inc. of Albuquerque v. Showe Homes, Inc.
| Decision Date | 02 November 1981 |
| Docket Number | No. 13606,13606 |
| Parties | VINTON EPPSCO INCORPORATED OF ALBUQUERQUE, a New Mexico Corporation, Plaintiff-Appellant, v. SHOWE HOMES, INC., et al., Defendants-Appellees, and Showe Homes, Inc., Garnishee-Appellee, and WPC, Inc., a foreign corporation, Intervenor-Appellee. |
| Court | New Mexico Supreme Court |
The sole issue on appeal is whether the district court exceeded the mandate of this Court upon remand by awarding appellee (Showe) appellate attorney fees. We find that it did and hereby reverse the trial court.
Appellant (Eppsco) sued Showe and William Coady (Coady) for non-payment for plumbing materials supplied to Coady, an unlicensed plumber, for use in the construction of Showe's building. Eppsco obtained judgment against Coady and executed a writ of garnishment on Showe. The Valencia County District Court dissolved the writ of garnishment and awarded Showe $900.00 in attorney fees pursuant to Section 35-12-16(B), N.M.S.A.1978. On appeal, this Court affirmed by memorandum opinion. Eppsco v. Showe Homes, Inc., et al., No. 12836 (Dec. 11, 1980). A mandate was issued remanding the cause to the district court "for further proceedings, if any, consistent with" the memorandum opinion. (Emphasis added.) Although Showe urged this Court to remand the original appeal to the trial court for an assessment of appellate attorney fees, this Court made no mention of a remand for that purpose.
On remand, Showe moved the district court to assess attorney fees on appeal in the amount of $2,400.00. Since Eppsco failed to appear or otherwise answer Showe's motion, the district court awarded appellate attorney fees in the amount of $2,400.00.
On appeal, Eppsco argues that the district court exceeded the mandate of the Supreme Court on remand and, therefore, was without jurisdiction to award appellate attorney fees. We agree. The district courts have only such jurisdiction on remand as the opinion and mandate of an appellate court specifies. Genuine Parts Co. v. Garcia, 92 N.M. 57, 582 P.2d 1270 (1978). It is well settled that the duty of a lower court on remand is to comply with the mandate of the appellate court, and to obey the directions therein without variation, even though the mandate may be erroneous. Glaser v. Dannelley, 26 N.M. 371, 193 P. 76 (1920).
Showe contends that the mandate issued to the district court was complied with since the only obligation of the district court in this garnishment proceeding was to grant appellate attorney fees pursuant to Section 35-12-16(B), N.M.S.A.1978, and Bank of New Mexico v. Priestley, 95 N.M. 569, 624 P.2d 511 (1981).
In Priestley, we held that Section 35-12-16(B) required reasonable attorney fees at both the appellate and trial levels....
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