{ "id": 2768335, "name": "Joe E. PUTELLI et al., Plaintiffs-Appellees and Cross-Appellants, v. W. W. HARDY et al., Defendants-Appellants and Cross-Appellees", "name_abbreviation": "Putelli v. Hardy", "decision_date": "1972-07-28", "docket_number": "No. 9370", "first_page": "66", "last_page": "69", "citations": [ { "type": "official", "cite": "84 N.M. 66" }, { "type": "parallel", "cite": "499 P.2d 688" } ], "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": "34 N.M. 413", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556120 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0413-01" ] }, { "cite": "74 N. M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805733 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0528-01" ] }, { "cite": "81 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360804 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0383-01" ] }, { "cite": "173 F.2d 517", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1178348 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/f2d/173/0517-01" ] }, { "cite": "96 L.Ed. 614", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1951, "opinion_index": 0 }, { "cite": "72 S.Ct. 25", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1951, "opinion_index": 0 }, { "cite": "342 U.S. 812", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 640865, 640770, 640645, 640750, 640916, 641273 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/us/342/0812-02", "/us/342/0812-04", "/us/342/0812-03", "/us/342/0812-06", "/us/342/0812-05", "/us/342/0812-01" ] }, { "cite": "187 F.2d 93", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1222398 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/f2d/187/0093-01" ] }, { "cite": "411 F.2d 879", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2191463 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/411/0879-01" ] } ], "analysis": { "cardinality": 435, "char_count": 8200, "ocr_confidence": 0.676, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08422653212600426 }, "sha256": "019ca076a517516b3b00aaf8910e46ad61915701a221910d0c18197c3c442bc8", "simhash": "1:b36f8f073b6b2df9", "word_count": 1362 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STEPHENSON, J., and JOE ANGEL, District Judge, concur." ], "parties": [ "Joe E. PUTELLI et al., Plaintiffs-Appellees and Cross-Appellants, v. W. W. HARDY et al., Defendants-Appellants and Cross-Appellees." ], "opinions": [ { "text": "OPINION\nOMAN, Justice.\nThis was a suit by plaintiffs arising out of an alleged breach by defendants of two lease agreements. The issue presented on appeal involves the correctness of the trial court\u2019s action in entering an amended judgment awarding plaintiffs costs and attorney\u2019s fees in the total amount of $1,628.86. We reverse and remand the case to the trial court for the purpose of determining and awarding to plaintiffs costs in the proper amount.\nAfter the filing of their respective pleadings and considerable maneuvering relative to discovery proceedings, the parties entered into a Stipulation of Settlement which was filed on June 7, 1971. Insofar as here pertinent, the stipulation provided:\n\u201cIII\n\u201cAll parties will bear their own costs and attorney\u2019s fees.\n\u201cIV\n\u201cThe lease dated January 1, 1965 will be amended in the following manner:\n\u00ab* * *\n\u201cd. That all of the remaining terms, conditions and covenants in said lease shall remain in full force and effect.\n\u201cV\n\u201cThe lease dated July 1, 1964 will be amended in the following manner:\n\u201c * * *\n\u201ce. That all of the remaining terms, conditions and covenants in said lease shall remain in full force and effect.\u201d\nThe two lease agreements were prepared on a printed form and contained the following agreement and covenant by lessee: \u201cTo pay all reasonable costs, attorney\u2019s fees, and expenses that shall be made or incurred by Lessor in enforcing this Lease.\u201d\nPrior to entry of judgment pursuant to the stipulation and on June 16, 1971, plaintiffs, by their attorneys, filed a motion wherein they recited that the parties had entered into the Stipulation of Settlement, defendants were in default in their performance under the stipulation and under the terms of the leases, and defendants unlawfully detained possession of the leased premises. They prayed for judgment against defendants \u201cunder the term of the Stipulation Agreement\u201d for the amount plaistiffs had agreed to pay, for possession of the premises, for an \u201cExecution of Unlawful Detainer,\u201d and \u201cfor such further relief as to the Court may deem (sic) proper.\u201d\nAlso on June 16, 1971, one of plaintiff\u2019s attorneys filed an affidavit in which he recited, among other things:\n(1) That the parties had compromised the issues raised in the suit and had entered into a Stipulation of Settlement, which had been filed on June 7, 1971.\n(2) That pursuant to the stipulation, affiant had forwarded to the attorney for defendants certain instruments to be executed by defendants.\n(3) That defendants were in default of the stipulation in that they had not executed the amendments to the leases, had not paid rent and'had not paid the sum of $4,500.00, all of which were agreed upon in the stipulation.\nThe plaintiffs then prepared and presented to the court a form of judgment by which the court found \u201c * * * the Defendants were to pay to the Plaintiffs [pursuant to the terms of said Stipulation of Settlement] * * * the sum of $4,500.00 and were to pay to the Plaintiffs the sum of $700.00 as rent commencing June 15, 1971, and that the Defendants are in default in the terms of said Stipulation of Settlement, and in the terms of their lease agreements.\u201d\nThe court thereupon signed and filed on June 17, 1971, the judgment by which plaintiffs were awarded the sum of $4,500.00, as rent due to June 14, 1971 and possession of the premises.\nPlaintiffs did not seek and the court did not award costs or attorney\u2019s fees.\nOn June 18, 1971, defendants filed a motion to vacate the judgment on the grounds the stipulation was not complied with due to mistake and inadvertence; defendants had no personal knowledge that judgment would be entered on June 17; and that defendants had now tendered to plaintiffs the amount of $4,500.00 as agreed upon and as awarded plaintiffs in the judgment.\nOn June 29, 1971, the court entered an order denying defendants\u2019 motion to vacate the judgment.\nThe judgment in the amount of $4,500.00 was satisfied and a release and satisfaction to this extent was entered on August 2, 1971.\nOn July 12, 1971, plaintiffs filed a motion to amend the judgment so as to award costs and attorney\u2019s fees on the grounds that the leases provided for the allowance of \u201c * * * costs, attorneys\u2019 fees and expenses, and that these amounts were inadvertently omitted from said Judgment.\u201d The court entered a separate judgment on July 26, 1971, whereby it recited the earlier judgment should be amended and corrected and by which plaintiffs were awarded costs and attorney\u2019s fees in the amount of $1,-628.86.\nDefendants contend the motion to amend the judgment was not timely under Rule 59(e) of the Rules of Civil Procedure for the District Courts [\u00a7 21-1-1(59) (e), N. M.S.A.1953 (Repl. Vol. 4, 1970)], and, therefore, the trial court lacked authority to amend the judgment. This rule is identical with Rule 59(e) of the Federal Rules of Civil Procedure. As to the application of this rule by some of the Federal Courts, see Arida Exploration Company v. Boren, 411 F.2d 879 (8th Cir. 1969); Kelly v. Delaware River Joint Commission, 187 F.2d 93 (3d Cir. 1951), cert. denied, 342 U.S. 812, 72 S.Ct. 25, 96 L.Ed. 614 (1951); Markert v. Swift & Co., 173 F.2d 517 (2d Cir. 1949); Fagan v. Sunbeam Lighting Co., Inc., Eastern, 13 Fed.Rules Serv.2d 59a.63, Case 1 (S.D.Ill.1969); Dickinson v. Rinke, 11 Fed.Rules Serv. 59e.1, Case 1 (S.D.N.Y. 1948). Compare the holdings of this court as to the effect of another section of Rule 59 in Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399 (1970); Associates Discount Corporation v. DeVilliers, 74 N. M. 528, 395 P.2d 453 (1964). We need not and do not here decide the applicability of Rule 59(e) or its effect upon the authority of the trial court in this case.\nDefendants also contend that even if the trial court had authority to amend the judgment, it, nevertheless, had no authority to award attorney\u2019s fees and costs. Their position is that plaintiffs obviously sought by their motion a judgment on the stipulation and not under the leases, and that it was expressly stipulated and agreed that the parties should bear their respective costs and attorney\u2019s fees.\nThe stipulation, plaintiffs\u2019 motion for judgment, the affidavit by one of plaintiffs\u2019 attorneys, the form of judgment prepared by plaintiffs\u2019 attorneys and entered by the court, and the motion by defendants to vacate the judgment, clearly show plaintiffs did rely on the stipulation and recovered judgment in the exact amount agreed upon therein. It is true mention is also made of the leases, but obviously plaintiffs were not relying upon the leases as to the amount of the judgment sought, and particularly were not relying upon the provisions in the leases calling for costs, attorney\u2019s fees and expenses. Why plaintiffs sought to rely upon the stiprdation we do not know, but they obviously did, recovered a judgment on the basis thereof, and this judgment has been satisfied and is not here attacked.\nIt is equally obvious to us that the portion of the judgment awarding possession of the premises to plaintiffs was not contemplated by the stipulation, and that the plaintiffs are entitled to their costs incurred in connection with the levy of the \u201cExecution in Unlawful Detainer.\u201d See \u00a7 15 \u2014 40\u2014 19, N.M.S.A.1953 (Repl. Vol. 3, 1968); Rule 54(d), Rules of Civil Procedure for the District Courts [\u00a7 21-1-1(54) (d), N. M.S.A.1953 (Repl. Vol. 4, 1970)]; JonesNoland Drilling Co. v. Bixby, 34 N.M. 413, 282 P. 382 (1929).\nThe judgment entered on July 26, 1971 awarding costs and attorney\u2019s fees in the total amount of $1,628.86 is hereby reversed and the cause is remanded to the district court for the purpose of determining and awarding to plaintiffs their costs incurred in the levy of the \u201cExecution in Unlawful Detainer.\u201d\nIt is so ordered.\nSTEPHENSON, J., and JOE ANGEL, District Judge, concur.", "type": "majority", "author": "OMAN, Justice." } ], "attorneys": [ "Modrall, Sperling, Roehl, Harris & Sisk, Peter J. Adang, Albuquerque, for defendants-appellants. .", "Ahern, Montgomery & Albert, Albuquerque, for plaintiffs-appellees." ], "corrections": "", "head_matter": "499 P.2d 688\nJoe E. PUTELLI et al., Plaintiffs-Appellees and Cross-Appellants, v. W. W. HARDY et al., Defendants-Appellants and Cross-Appellees.\nNo. 9370.\nSupremo Court of New Mexico.\nJuly 28, 1972.\nModrall, Sperling, Roehl, Harris & Sisk, Peter J. Adang, Albuquerque, for defendants-appellants. .\nAhern, Montgomery & Albert, Albuquerque, for plaintiffs-appellees." }, "file_name": "0066-01", "first_page_order": 222, "last_page_order": 225 }