{ "id": 1597056, "name": "Edward FRATELLO, et ux., d/b/a Viva Chrysler Plymouth Dodge Sales, Plaintiffs-Appellees and Cross-Appellants, v. SOCORRO ELECTRIC COOPERATIVE, INC., a New Mexico corporation, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Fratello v. Socorro Electric Cooperative, Inc.", "decision_date": "1988-08-03", "docket_number": "No. 17504", "first_page": "378", "last_page": "381", "citations": [ { "type": "official", "cite": "107 N.M. 378" }, { "type": "parallel", "cite": "758 P.2d 792" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 677", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776085 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "678" }, { "page": "1282" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0677-01" ] }, { "cite": "23 L.Ed.2d 238", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "89 S.Ct. 1774", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "395 U.S. 921", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771713, 1771621, 1771690, 1772148, 1772119, 1771898 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0921-04", "/us/395/0921-06", "/us/395/0921-01", "/us/395/0921-02", "/us/395/0921-05", "/us/395/0921-03" ] }, { "cite": "404 F.2d 505", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2125079 ], "opinion_index": 0, "case_paths": [ "/f2d/404/0505-01" ] }, { "cite": "297 F.2d 497", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 226345 ], "opinion_index": 0, "case_paths": [ "/f2d/297/0497-01" ] }, { "cite": "95 N.M. 791", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575475 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/95/0791-01" ] }, { "cite": "81 N.M. 28", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367830 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/81/0028-01" ] } ], "analysis": { "cardinality": 620, "char_count": 11020, "ocr_confidence": 0.78, "pagerank": { "raw": 6.155461896083572e-08, "percentile": 0.3824396711931854 }, "sha256": "5f3f73ac2da52f43c1234f1b5747cb53d5645b2b19c758fb23b072578492e053", "simhash": "1:4741cc3d750f3b69", "word_count": 1795 }, "last_updated": "2023-07-14T22:42:54.316311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STOWERS and RANSOM, JJ\u201e concur." ], "parties": [ "Edward FRATELLO, et ux., d/b/a Viva Chrysler Plymouth Dodge Sales, Plaintiffs-Appellees and Cross-Appellants, v. SOCORRO ELECTRIC COOPERATIVE, INC., a New Mexico corporation, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "OPINION\nSOSA, Senior Justice.\nDefendant-appellant-cross-appellee, Socorro Electric Cooperative, Inc. (Co-op), appeals an adverse judgment in favor of plaintiff-appellee-cross-appellant, Edward Fratello, et ux., d/b/a Viva Chrysler Plymouth Dodge Sales (Viva), rendered by the trial court on November 6, 1987. Viva had filed its complaint for declaratory judgment and for injunctive relief against Co-op on April 3, 1987, seeking the court\u2019s judgment on a purported settlement agreement that the parties had entered into concerning the sale by Viva to Co-op of certain trucks to be used by Co-op in its business. Viva based jurisdiction for its suit on NMSA 1978, Sections 13-1-28 to -199 (Repl.Pamp. 1985), known as the \u201cProcurement Code.\u201d The trial court awarded judgment to Viva in the amount of $3,000, plus attorney\u2019s fees of $1,000 for Co-op\u2019s contempt of court in not complying with what the court defined as \u201cthe court-sanctioned settlement agreement.\u201d Co-op appeals the entire judgment, while Viva appeals that portion of the judgment awarding Viva $3,000, contending that the trial court should have awarded it $3,600. We reverse the judgment of the trial court as to Co-op, and thus do not need to reach the issue raised by Viva as to the amount of damages. FACTS\nCo-op announced by letter of February 13, 1987, that it would accept bids from truck dealerships for the purchase of two one-ton cab and chassis trucks, and three one-half ton pickup trucks. In its letter, Co-op stated: \u201cThe Socorro Electric Cooperative, Inc. reserves the right to reject any or all bids. Lowest bidder will not necessarily be awarded bid.\u201d Viva and a certain Ford dealership, Monette Ford, bid for the contract, and Co-op accepted the latter\u2019s bid, even though Viva\u2019s bid was lower. When Viva learned of this fact, it filed suit, alleging, \u201c[Viva] was the lowest responsible bidder on the five vehicles by approximately $12,000.\u201d Viva asked the trial court to \u201cdeclare [its] contract rights in and to the Invitation to Bid * * *alleging that its trucks were superior to the Ford trucks and complaining that, \u201cuntil the contract rights of the parties hereto have been established by the Court, it would be extremely prejudicial and potentially damaging to allow work to proceed on the contract.\u201d\nBased on these allegations, the trial court granted Viva\u2019s ex parte \u201cMotion for Temporary Restraining Order and Preliminary Injunction,\u201d and by its temporary restraining order of April 3, 1987, ordered Co-op to rescind its contract with the Ford dealership until the court could determine the issues, at a hearing on Viva\u2019s motion for preliminary injunction scheduled for April 14, 1987. At that hearing, the attorneys for both parties announced that they had reached a settlement agreement, stated in the words of Viva\u2019s attorney as follows:\nYour Honor I would like to announce that the parties have settled their differences as neighbors and friends should, uh, the Co-op has agreed to modify it\u2019s [sic] contract with MOnette [sic] Ford and will award the three pickups specified to Viva Chrysler with the provided [sic] though that is 1987 Dodges cannot be provided the 1988\u2019s will be provided at no greater price than the \u201987 bid price by Monette Ford. And both parties will bear their own costs.\nThe court then asked opposing counsel, \u201cIs that is [sic], Mr. Bailey?\u201d We take the court to have meant, \u201cDo you agree that this is the settlement agreement, Mr. Bailey?\u201d\nMr. Bailey answered as follows:\nNo. [sic] your Honor that\u2019s correct, I would say that uh, we want to make it clear that no determination was made as to right or wrong on either side [sic] this again I want to emphasize was a compromise between neighbors and very much included Mr. Monette; [sic] he\u2019s not a party to this suit but he sure helped all of us, the three of us.\nThe court\u2019s response to this statement was, \u201cOkay, draft an order, okay.\u201d\nThe court did not specify which attorney was to draft the order, but counsel for Viva sent to counsel for Co-op a document entitled \u201cStipulation for Dismissal,\u201d adding to the language quoted above, the statement, \u201cThe parties understand that if 1988\u2019s are ordered, they may not be available until August or September of 1987, and the parties agree to any such delay.\u201d On the basis of this additional provision to the agreement, and because Co-op could never pin Viva down as to the exact price Viva was going to charge Co-op for the trucks, Co-op\u2019s attorney refused to sign the Stipulation for Dismissal, and thus an order of dismissal was never entered by the court. Nor did the court ever enter any order, other than perhaps the original ex parte temporary restraining order, which automatically expired ten days after its issue (SCRA 1986, 1-066(B)(2)), requiring Co-op to accept the terms of Viva\u2019s Stipulation for Dismissal.\nOn June 3,1987, Viva filed its \u201cMotion to Enforce Settlement Agreement and for Sanctions,\u201d and on June 25, 1987, the court granted Viva\u2019s motion, disallowing testimony from Co-op on why Co-op\u2019s attorney refused to sign Viva\u2019s Stipulation for Dismissal. Instead, the court held Co-op in contempt for not adhering to the court\u2019s \u201corder\u201d to rescind its contract with Monette Ford, and awarded Viva $1,000 in attorney\u2019s fees (Viva had asked for only $300). Co-op filed its \u201cMotion to Reconsider\u201d' the court\u2019s ruling of June 25, alleging that fifteen minutes had been inadequate time to inform the court of Co-op\u2019s position and that the decision of the court was in conflict with, and granted relief not asked for in the complaint. The purpose of Coop\u2019s motion was to inform the court why it had not carried through on its promise to settle with Viva. Co-op\u2019s motion to reconsider was heard on August 10, 1987, but instead of making a ruling, the court appointed three arbitrators to determine certain factual matters concerning the profit Viva would have made had Co-op honored the settlement agreement, and the date when Viva would have delivered the pickups. Based on the arbitrator\u2019s report, the court issued a letter decision finding that Viva \u201cwould have netted * * * a total of $3,000 \u2014 a sum slightly less than what the [arbitration] committee reached [$3,600].\u201d\nEach side then submitted proposed findings of fact and conclusions of law, and the court issued its own findings, stating that \u201c[Viva] is awarded damages of $3,600 against [Co-op] for breach of their valid settlement agreement * * * [and Viva] is awarded $1,000 in attorneys fees for [Coop\u2019s] contempt of the court-sanctioned agreement * * *.\u201d In its \u201cFinal Judgment,\u201d the court changed the figure of $3,600 to $3,000 and initialed the change.\nLEGAL ISSUES INVOLVED\nI. Did the trial court have jurisdiction over this case? No.\nIn its complaint Viva explicitly alleged, \u201c[The] jurisdiction of the Court is grounded on Section 13-1-183, New Mexico Statutes Annotated (1978 Comp.) [sic].\u201d NMSA 1978, Section 13-1-183 pertains to judicial review under the Procurement Code of \u201cdeterminations * * * made by a state agency or a local public body * * *.\u201d Section 13-1-30 provides that the Procurement Code \u201cshall apply to every expenditure by state agencies and local public bodies for the procurement of items of tangible personal property, services and construction.\u201d NMSA 1978, \u00a7 13-1-30 (Repl. Pamp.1988). Co-op is neither a state agency nor a local public body, and therefore the Procurement Code does not apply to it. NMSA 1978, \u00a7\u00a7 13-1-67, and -90 (Repl. Pamp.1985). As a result, the trial court improperly asserted jurisdiction over Co-op, and any \u201corders,\u201d real or imagined, issued to Co-op by the trial court were null and void. The parties cannot consent to jurisdiction that is falsely premised. State ex rel. Overton v. New Mexico State Tax Comm\u2019n, 81 N.M. 28, 462 P.2d 613 (1969). Co-op properly raised the trial court\u2019s lack of jurisdiction on appeal. Lasley v. Baca, 95 N.M. 791, 626 P.2d 1288 (1981).\nII. Did the parties enter into a valid settlement agreement? No.\nThe \u201cStipulation for Dismissal\u201d drawn up by counsel for Viva and submitted to counsel for Co-op added a significant additional term to the parties\u2019 attempted settlement agreement, and is thus to be considered a counter-offer to Co-op\u2019s offer to settle. See, e.g., Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497 (1st Cir.1962), and Construction Aggregates Corp. v. Hewitt Robbins, Inc., 404 F.2d 505 (7th Cir.1968), cert. denied, 395 U.S. 921, 89 S.Ct. 1774, 23 L.Ed.2d 238 (1969). In order to constitute a binding settlement contract, as asserted here, it was necessary for there to be an unconditional acceptance of Coop\u2019s offer of settlement. Viva, by adding a significant additional term to its Stipulation for Dismissal, did not make an unconditional acceptance of Co-op\u2019s offer See Silva v. Noble, 85 N.M. 677, 515 P.2d 1281 (1973). As we concluded in Silva v. Noble, so too here, \u201cThere is conflicting evidence in the record * * * on the issue of whether there was an agreement between the parties * * * * In order to constitute a binding contract, there must be an unconditional acceptance of the offer made.\u201d Id. at 678, 515 P.2d at 1282.\nIn the case before us, the record shows that Co-op could not get Viva to make a firm commitment either on the price of the Dodge trucks or on the date of delivery. By proposing in its Stipulation for Dismissal that \u201c[t]he parties understand that if 1988\u2019s are ordered, they may not be available until August or September of 1987, and the parties agree to any such delay,\u201d Viva placed the entire settlement contract in jeopardy, and Co-op\u2019s counsel was justified in not signing the Stipulation. Co-op had on numerous occasions advised Viva that specific price and delivery information was essential to Co-op\u2019s budgeting and auditing requirements, and that such information was needed well before the fall of 1987 because of the nature of Co-op\u2019s business. We hold that there was no settlement agreement entered into between the parties.\nIII. Did the trial court err in holding Co-op in contempt? Yes.\nFrom the above, it follows conclusively that the trial court erred in using its contempt power to attempt to enforce the non-existing settlement agreement, and \u00e1 fortiori, the court erred in assessing attorneys\u2019 fees of $1,000 against Co-op because of the purported contempt.\nAccordingly, we reverse the judgment of the trial court in its entirety and remand the case to the trial court for entry of an order of dismissal for lack of jurisdiction.\nIT IS SO ORDERED.\nSTOWERS and RANSOM, JJ\u201e concur.", "type": "majority", "author": "SOSA, Senior Justice." } ], "attorneys": [ "Stephenson, Carpenter, Crout & Olmsted, Rebecca Dempsey, Santa Fe, Lance R. Bailey, Socorro, for defendant-appellant and cross-appellee.", "Patsy D. Reinard, Socorro, for plaintiffsappellees and cross-appellants." ], "corrections": "", "head_matter": "758 P.2d 792\nEdward FRATELLO, et ux., d/b/a Viva Chrysler Plymouth Dodge Sales, Plaintiffs-Appellees and Cross-Appellants, v. SOCORRO ELECTRIC COOPERATIVE, INC., a New Mexico corporation, Defendant-Appellant and Cross-Appellee.\nNo. 17504.\nSupreme Court of New Mexico.\nAug. 3, 1988.\nStephenson, Carpenter, Crout & Olmsted, Rebecca Dempsey, Santa Fe, Lance R. Bailey, Socorro, for defendant-appellant and cross-appellee.\nPatsy D. Reinard, Socorro, for plaintiffsappellees and cross-appellants." }, "file_name": "0378-01", "first_page_order": 420, "last_page_order": 423 }