{
  "id": 2826532,
  "name": "Joseph C. LUJAN, d/b/a Valley Professional Engineering & Land Surveying, Plaintiff-Appellee, v. James E. F. MERHEGE, Defendant-Appellant",
  "name_abbreviation": "Lujan v. Merhege",
  "decision_date": "1974-02-15",
  "docket_number": "No. 9766",
  "first_page": "26",
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  "last_updated": "2023-07-14T22:44:27.328252+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "MONTOYA and MARTINEZ, JJ., concur."
    ],
    "parties": [
      "Joseph C. LUJAN, d/b/a Valley Professional Engineering & Land Surveying, Plaintiff-Appellee, v. James E. F. MERHEGE, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nMcMANUS, Chief Justice.\nTwo suits against defendant-appellant were filed by plaintiff-appellee in the District Court of Rio Arriba County. The first was for the collection of a bill for services rendered by the appellee, and the second was for the identical relief together with a writ of attachment. Appellant filed a counterclaim to the writ of attachment suit. Both cases were tried simultaneously to the court without a jury and judgment was entered for the appellee. Appellant hereby appeals.\nAs background, appellant hired appellee, a professional surveyor, to survey the appellant\u2019s entire ranch perimeter, establish a new eastern boundary for the west 3500 acres of the ranch and to survey an 80-acre parcel in the southwest corner of the 3500-acre tract. Appellant was dissatified with the surveying of the appellee and refused to pay appellee for his work.\nAppellant\u2019s points of appeal may be condensed into three main contentions; first, that the trial court erroneously found that appellee\u2019s work was properly done; second, that the transaction between the parties was not an open account and appellee is not therefore entitled to an award of attorney fees; third, that appellee\u2019s suit for a writ of attachment was wrongful.\nThe first issue may be dealt with by determining whether the evidence before the trial court, and upon which its decision was based, is substantial in character. \u201cSubstantial evidence\u201d means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). If there is substantial evidence in the record to support a finding, this court will not substitute its judgment therefor and the trial court\u2019s findings will be affirmed. Tome Land & Improvement Co. v. Silva, 83 N.M. 549, 494 P.2d 962 (1972). Suffice it to say that we have carefully examined those portions of the record cited by the parties in support of their respective positions and are of the opinion that the evidence is substantial to support the trial court\u2019s findings that the surveys provided by the appellee were sufficiently prepared.\nWe cannot agree with the trial court\u2019s determination that the appellee should be awarded attorney fees as part of the damages. The rule in New Mexico is that absent statutory authority or rule of court, attorney fees are not recoverable as an item of damages. Riggs v. Gardikas, 78 N.M. 5, 427 P.2d 890 (1967). The only possible statutory authority which would allow the appellee to recover attorney fees in this case would be \u00a7 18-1-37, N.M.S.A. 1953 (Repl.Vol. 4). This section allows attorney fees, as costs, in actions to recover on an open account. -As stated in Tabet Lumber Company v. Chalamidas, 83 N.M. 172, 173, 489 P.2d 885, 886 (Ct.App.1971).\n\u201c \u2018Open account\u2019 is defined in Gentry v. Gentry, 59 N.M. 395, 285 P.2d 503 (1955) and Heron v. Gaylor, 46 N.M. 230, 126 P.2d 295 (1942); see Panhandle Irrigation, Inc. v. Bates, 78 N.M. 706, 437 P.2d 705 (1968). There is no evidence of a \u2018connected series of debit and credit entries\u2019 or a \u2018continuation of a related series.\u2019 Heron v. Gaylor, supra. Compare Cutter Flying Serv., Inc. v. Staughan Chevrolet, Inc., 80 N.M. 646, 459 P.2d 350 (1969). Nor is there evidence that the amount claimed to be due by plaintiff, and defendant\u2019s payments thereon, were intended by the parties as the beginning of a connected or related series. * * * \u201d\nThe above language applies to this case since here the evidence shows a single independent transaction composed of three parts. Therefore, since no proper showing of statutory authority is present, the award of attorney fees is reversed. Appellee\u2019s claim that the appellant failed to raise the issue of whether or not there was an open account is without merit. In the appellant\u2019s requested findings of fact and conclusions of law the issue was raised and this was sufficient to alert the trial court and to call to its attention the lack of any evidence to prove appellee\u2019s right to attorney fees. Such failure of proof must defeat any judgment rendered in its favor.\nThe third issue before us is whether or not appellee\u2019s writ of attachment was wrongful.\nThe pertinent findings of the trial court below concerning this third issue are as follows:\n\u201cVI. Plaintiff\u2019s filing of a writ of attachment in Cause No. 11459 was not malicious but was in furtherance of enforcement of his claim against Defendant.\u201d\n\u201cIX. Plaintiff has performed all conditions precedent to the bringing of this suit.\u201d\nand\n\u201cXI. Plaintiff acted in a reasonable manner in filing a writ of Attachment against Defendant\u2019s real estate and the proceedings therein are hereby approved.\u201d\nA careful search of the trial record indicates that the above findings are supported by substantial evidence. To say otherwise would place this court in the position of substituting our judgment for that of the trial court. We have many times ruled that such is not the province of this court.\nThe judgment of the trial court concerning the sufficiency of appellee\u2019s survey is sustained. The judgment as to the award of attorney fees is reversed. The judgment of the trial court as to the wrongful attachment issue is sustained.\nIt is so ordered.\nMONTOYA and MARTINEZ, JJ., concur.",
        "type": "majority",
        "author": "McMANUS, Chief Justice."
      }
    ],
    "attorneys": [
      "Wollen & Segal, Albuquerque, for defendant-appellant.",
      "Scarborough & Scarborough, George M. Scarborough, Espa\u00f1ola, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "519 P.2d 122\nJoseph C. LUJAN, d/b/a Valley Professional Engineering & Land Surveying, Plaintiff-Appellee, v. James E. F. MERHEGE, Defendant-Appellant.\nNo. 9766.\nSupreme Court of New Mexico.\nFeb. 15, 1974.\nWollen & Segal, Albuquerque, for defendant-appellant.\nScarborough & Scarborough, George M. Scarborough, Espa\u00f1ola, for plaintiff-appellee."
  },
  "file_name": "0026-01",
  "first_page_order": 56,
  "last_page_order": 58
}