{ "id": 711358, "name": "Sambrano GURULE, Now Eloida Gurule, by substitution, Plaintiff-Appellee, v. Joan Mitchell AULT, et al., Defendants, Sebedeo Chacon and Rose Chacon, Defendants-Appellants", "name_abbreviation": "Gurule v. Ault", "decision_date": "1985-05-30", "docket_number": "", "first_page": "17", "last_page": "20", "citations": [ { "type": "official", "cite": "103 N.M. 17" }, { "type": "parallel", "cite": "702 P.2d 7" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "644 P.2d 1039", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "98 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "97 N.M. 266", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555094 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0266-01" ] }, { "cite": "89 N.M. 468", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866675 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0468-01" ] }, { "cite": "98 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582546 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0100-01" ] }, { "cite": "15 Utah 2d 422", "category": "reporters:state", "reporter": "Utah 2d", "case_ids": [ 8866389 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/utah-2d/15/0422-01" ] }, { "cite": "146 Mont. 461", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5236731 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/mont/146/0461-01" ] }, { "cite": "386 U.S. 714", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181828 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0714-01" ] }, { "cite": "286 U.S. 451", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3915841 ], "weight": 3, "year": 1932, "opinion_index": 0, "case_paths": [ "/us/286/0451-01" ] }, { "cite": "83 N.M. 172", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331448 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0172-01" ] }, { "cite": "71 L.Ed.2d 461", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "102 S.Ct. 1276", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "opinion_index": 0 }, { "cite": "455 U.S. 920", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317925, 11318535, 11317864, 11317805, 11318254, 11317999, 11318163, 11318613, 11318461, 11318334, 11318079 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/455/0920-03", "/us/455/0920-10", "/us/455/0920-02", "/us/455/0920-01", "/us/455/0920-07", "/us/455/0920-04", "/us/455/0920-06", "/us/455/0920-11", "/us/455/0920-09", "/us/455/0920-08", "/us/455/0920-05" ] }, { "cite": "624 P.2d 535", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 0 }, { "cite": "95 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "year": 1981, "opinion_index": 0 }, { "cite": "95 N.M. 594", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575606 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0594-01" ] }, { "cite": "91 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571103 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/91/0087-01" ] }, { "cite": "84 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765517 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0683-01" ] }, { "cite": "101 N.M. 612", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586486 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "956" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0612-01" ] }, { "cite": "55 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582986 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0367-01" ] }, { "cite": "73 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321639 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0347-01" ] }, { "cite": "43 N.M. 348", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568238 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/nm/43/0348-01" ] }, { "cite": "101 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586394 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1168" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0088-01" ] } ], "analysis": { "cardinality": 625, "char_count": 9757, "ocr_confidence": 0.755, "pagerank": { "raw": 1.3632482523774372e-07, "percentile": 0.6367438796624822 }, "sha256": "9dcdb1092acb170a797b319b09a1b65910b67ecf0cd975e8405031d935954c80", "simhash": "1:8d47416cb35a0960", "word_count": 1647 }, "last_updated": "2023-07-14T15:39:32.898300+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NEAL and ALARID, JJ., concur." ], "parties": [ "Sambrano GURULE, Now Eloida Gurule, by substitution, Plaintiff-Appellee, v. Joan Mitchell AULT, et al., Defendants, Sebedeo Chacon and Rose Chacon, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nDONNELLY, Chief Judge.\nAppellants appeal from a judgment entered by the district court in Rio Arriba County quieting title to land in the names of appellants and appellee, and awarding appellee $5,000 in costs and attorneys fees. Two issues are raised on appeal: (1) whether the trial court erred in awarding attorneys fees in favor of appellees; and (2) whether the trial court erred in awarding costs. We reverse in part and affirm in part.\nFACTS\nAppellee is the widow of Sambrano Gurule. Appellants, Sebedeo Chacon and Rose Chacon, his wife, are owners of a tract of land adjoining the Gurules property. Following a longstanding dispute between the Gurules and the Chacons concerning the ownership of land and the location of common boundaries claimed by the parties, Sambrano Gurule filed suit on May 11, 1978 against the Chacons and others seeking to quiet title to the land claimed by appellee.\nThe Chacons filed an answer to the quiet title suit, denying Gurule\u2019s claimed ownership of the land and counterclaimed, alleging that they were the owners in fee simple of the following tracts of realty located in Rio Arriba County, New Mexico.\nLot One (1) and Two (2), the North half of the Northwest quarter (N h NW Vi) of Section 25 in Township Twenty-Three (23) of Range Eight (8) East of the New Mexico Meridian, New Mexico, containing One hundred Thirty-Seven and Twenty Hundredths (137.20) acres, more or less.\nGurule filed an answer to the counterclaim denying that the Chacons were the owners of the property described in the counterclaim. Trial on the merits was held on February 28, 1984. Neither party submitted requested findings of fact nor conclusions of law at the end of the trial. The trial court entered a final judgment and decree on April 23, 1984, quieting title in the respective parties as follows:\nB. The Plaintiff SAMBRANO GU-RULE [appellee], is the owner in fee simple, and in possession of * * * real estate * * * designated as parcel \u201cA\u201d, described in Plaintiff\u2019s Exhibit \u201c1\u201d * * * by the doctrine of acquiescence.\nC. The Defendants, SEBEDEO CHA-CON, a/k/a Sebadeo Chacon and ROSE CHACON, Husband and Wife, are the owners in fee simple, and in possession of * * * real estate * * * designated as parcel \u201cB\u201d, as described in Plaintiff\u2019s Exhibit \u201c1\u201d, * * * by the doctrine of acquiescence.\nH. That plaintiff is entitled to his costs and attorneys fees, as against the Defendants, SEBEDEO CHACON, a/k/a Sebadeo Chacon and ROSE CHACON, Husband and Wife, in an amount not to exceed FIVE THOUSAND DOLLARS ($5,000.00), which costs and attorney\u2019s fees shall be certified by plaintiff or his attorney to the Clerk of the Court * * *.\nThereafter, Gurule\u2019s attorney filed a cost bill certifying costs of suit on behalf of Gurule as follows:\n1. Land Surveyors:\na. Joseph Lujan $ 400.00\nb. Ralph Alarid 520.00\n2. Publication and Service of Process: 187.50\n3. Expert Witness Fee:\na. John P. Montoya, Jr. 365.15\n4. Travel Expenses:\na. Six (6) round trips to Albuquerque at 225 miles per trip at $.15 per mile 203.40\n5. Attorneys Fees:\na. Michael Scarborough 365.00\n6. Attorneys Fees:\na. Benny R. Naranjo 63.75 hours at $80.00 per hour 5,100.00\n7. Long Distance phone calls to attorney in Albuquerque: 30.00\nTOTAL COSTS: $7,171.85\nThe Chacons filed a motion requesting the court to reconsider the award of attorneys fees and costs. Thereafter, Gurule filed an amended certificate of costs and cost bill similar to the original cost bill, with the exception that the travel expenses were deleted.\nThe trial court entered an order dated June 15, 1984, providing in part:\n1. The court finds its authority for the award of attorney\u2019s fees in its inherent powers, as a Court of equity, to control obdurate defenses or bad faith claims.\n2. The court finds that costs of surveying, publication and service of process are properly taxable as costs of trial.\n3. The court finds that costs associated with travel are not taxable as costs of trial.\nThereafter, in a letter to counsel dated July 18, 1984, the trial court noted in part, \u201c[t]he court finds its authority for the award of attorneys fees in its inherent powers, as a court of equity, to control obdurate defenses or bad faith claims. The court is well aware of the American rule regarding fees, but does not agree with it.\u201d The trial court denied the Chacons motion to reconsider, except as to the request for travel costs.\nOn July 2, 1984, the Chacons filed an appeal from that part of the district court\u2019s judgment which awarded attorneys fees and costs. On appeal, the Chacons have not challenged that portion of the decree quieting title in the names of the respective parties.\n(a) Attorneys Fees\nThe Chacons contend that the trial court erred in taxing $5,100 worth of attorney\u2019s fees as costs. We agree. The rule in New Mexico was recently reiterated in Martinez v. Martinez, 101 N.M. 88, 678 P.2d 1163, 1168 (1984), (suit under a real estate contract to recover possession and title to property). In Martinez, the court held:\n[T]he award of attorney fees in this case is supported neither by statute nor by case law. In reversing the trial court\u2019s award of attorneys fees, we adhere to the rule stated in State v. Lujan, 43 N.M. 348, 93 P.2d 1002 (1939), that each party to litigation must pay his own counsel fees. This case does not fall within any of the exceptions stated in Gregg v. Gardner, 73 N.M. 347, 388 P.2d 68 (1963), and we choose not to broaden the holding in Marron [Marron v. Wood, 55 N.M. 367, 233 P.2d 1051 (1951)] to include situations such as that presented in this case.\nSimilarly, in Central Adjustment Bureau, Inc. v. Thevenet, 101 N.M. 612, 686 P.2d 954, 956 (1984), the supreme court stated, \u201c[i]n the absence of an authorizing statute or rule of court, or the applicability of an exception as discussed in Aboud v. Adams, 84 N.M. 683, 507 P.2d 430 (1973), attorney\u2019s fees are not recoverable.\u201d Keeth Gas Co. v. Jackson Creek Cattle Co., 91 N.M. 87, 570 P.2d 918 (1977); Southern Union Exploration Co. v. Wynn Exploration Co., 95 N.M. 594, 624 P.2d 536 (Ct.App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 461 (1982); see also Tabet Lumber Co. v. Chalamidas, 83 N.M. 172, 489 P.2d 885 (Ct.App.1971).\nThe right to recover attorneys fees from an opposing party as part of the costs did not exist at common law. Rude v. Buchhalter, 286 U.S. 451, 52 S.Ct. 605, 76 L.Ed. 1221 (1932). Allowance of attorneys fees as an item of costs is not allowable in the absence of a statute, rule of court, or some agreement expressly authorizing the taxing of attorneys fees in addition to ordinary costs. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Kintner v. Harr, 146 Mont. 461, 408 P.2d 487 (1965); Holland v. Brown, 15 Utah 2d 422, 394 P.2d 77 (1964); see also Alber v. Nolle, 98 N.M. 100, 645 P.2d 456 (Ct.App.1982).\n(b) Surveyor\u2019s Fees, Publication, and Service of Process\nAppellants also challenge the award of surveyor\u2019s fees for plat preparation, the costs of publication of notice of suit, and service of process as costs additionally taxed against them.\nThe right to recover costs exists only by virtue of statutory authority, or \u2019 rule of court. Bureau of Revenue v. Western Electric Co., 89 N.M. 468, 553 P.2d 1275 (1976). \u201cExcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.\u201d NMSA 1978, Civ. P.R. 54(d) (Repl.Pamp.1980). The matter of assessing costs lies within the discretion of the trial court and unless an abuse of discretion is shown, an appellate court will not set aside the lower court\u2019s determination. Ulibarri Landscaping Material, Inc. v. Colony Materials, Inc., 97 N.M. 266, 639 P.2d 75 (Ct.App.1981), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982).\nIn Ulibarri, this court held that a trial court may properly award costs of a surveyor\u2019s preparation of a survey where the survey was prepared for use at trial. In the instant case, Gurule called John Montoya, a land surveyor, to testify as an expert witness at trial. Montoya\u2019s testimony was based in part upon the surveys of Joseph Lujan and Ralph Alarid, land surveyors. Both Lujan and Alarid prepared surveys utilized by Gurule in preparing his case for trial, drafting his complaint, and at trial. Under these facts, the award as costs for the preparation of the surveys was not an abuse of discretion.\nThe Chacons attack the award of costs of publication and service of process on the non-contesting defendants in the amount of $187.50. We agree with the Chacons that, except for the amount of the actual costs of service of process upon them, the other costs of service and publication were costs which were not directly assessable to them and are more properly charged to the other defaulting defendants.\nThe award of attorneys fees and that portion of the costs of service and publication not directly attributable to obtaining service upon appellants are reversed. The remaining costs awarded by the trial court are affirmed. The cause is remanded for entry of an amended decree in conformity with this opinion.\nAppellants are awarded costs on appeal.\nIT IS SO ORDERED.\nNEAL and ALARID, JJ., concur.", "type": "majority", "author": "DONNELLY, Chief Judge." } ], "attorneys": [ "Benny R. Naranjo, Albuquerque, for plaintiff-appellee.-", "Santiago \u201cJaime\u201d R. Chavez, Lopez & Chavez, P.C., Taos, Sarah M. Singleton, Singleton Law Offices, Sante Pe, for def endants-appellants." ], "corrections": "", "head_matter": "702 P.2d 7\nSambrano GURULE, Now Eloida Gurule, by substitution, Plaintiff-Appellee, v. Joan Mitchell AULT, et al., Defendants, Sebedeo Chacon and Rose Chacon, Defendants-Appellants.\nNo. 7975.\nCourt of Appeals of New Mexico.\nMay 30, 1985.\nBenny R. Naranjo, Albuquerque, for plaintiff-appellee.-\nSantiago \u201cJaime\u201d R. Chavez, Lopez & Chavez, P.C., Taos, Sarah M. Singleton, Singleton Law Offices, Sante Pe, for def endants-appellants." }, "file_name": "0017-01", "first_page_order": 55, "last_page_order": 58 }