WEISS V. HANES MFG. CO., 1977-NMCA-076,
90 N.M. 683, 568 P.2d 209 (Ct. App. 1977)
Mary R. WEISS, Plaintiff (Employee)
Appellant,
vs.
HANES MANUFACTURING COMPANY, Defendant (Employer), and
Hartford Insurance Company through General Adjustment
Bureau, Defendant (Employer's Compensation
Carrier), Appellees.
COURT OF APPEALS OF NEW MEXICO
1977-NMCA-076, 90 N.M. 683, 568 P.2d 209
Petition for Writ of Certiorari Denied
August 23, 1977
Anthony F. Avallone, Las Cruces, for
plaintiff-appellant.
Edward E. Triviz, Las Cruces, for
defendants-appellees.
SUTIN, J., wrote the opinion. LOPEZ, J.,
and KASE, District Judge, specially concurring.
{1} After 17 months had
passed from the date of the hearing, the trial judge rendered a decision in
favor of plaintiff. Four and one-half months later, the trial judge, from a
review of his notes and the pleadings, changed his mind and entered a decision
and judgment in favor of defendants and dismissed plaintiff's complaint with
prejudice. Plaintiff appeals and we reverse.
{2} We repeat, as we have
noted on many occasions, that the proceedings which occurred in the court below
and the briefs filed on appeal, are a sad reflection of a search for justice in
the trial and appeal of civil cases.
{3} The record shows the
following dates and events surrounding the change of course in the trial court.
{4} (1) On November 25,
1974,
the court heard all the evidence adduced at trial.
{5} (2) On December 3,
1974,
plaintiff filed requested findings and conclusions. On December 17,
1974,
defendants filed requested findings and conclusions.
{6} (3) On April 22,
1976,
17 months after the evidence was heard, the trial court signed its decision in
favor of plaintiff, which decision consisted verbatim of plaintiff's requested
findings and conclusions.
{7} (4) On June 24,
1976,
the court
filed its decision in favor of plaintiff. The record is silent
on the cause of the delay and the reasons therefor. Plaintiff submitted a form
of judgment, but it was left unsigned.
{8} (5) On June 30,
1976,
defendants filed a motion to vacate the decision and requested the trial court
to find the facts and conclusions pertinent to the case, and moved alternately,
for a new trial. On the same day, defendant filed a memorandum of 22 pages
consisting of exceptions, testimony, references to depositions, correspondence
between the court and counsel, comments, arguments and court decisions.
{9} (6) On July 24,
1976,
argument was held on defendants' motion.
{10} (7) On September 2,
1976,
the court wrote to opposing attorneys that he went back over all of his notes
and the pleadings and found that his decision made April 22, 1976, and filed
June 24, 1976, was incorrect and did not follow the facts in the case; that the
decision was vacated, held for naught, and that a new decision was mailed to
opposing attorneys.
{11} (8) On September 3,
1976,
21 1/2 months after the evidence was heard, the court filed its decision in
favor of defendants, which decision consisted verbatim of defendants' requested
findings and conclusions.
{12} (9) On
November 12,
1976, plaintiff filed a notice of appeal
"to be effective on the
date the judgment is actually filed." [Emphasis added.]
{13} (10) On December 2,
1976,
20 days later, judgment was entered that dismissed plaintiff's complaint with
prejudice.
A. Plaintiff's notice of appeal was timely.
{14} Defendants note a
jurisdictional question. They think it is questionable whether the notice of
appeal given by plaintiff was sufficient to lift this case up from the district
court. The assistance given this Court on this issue by opposing attorneys adds
up to nothing.
{15} The record shows that on
September 3, 1976, the trial court rendered its decision.
{*685} About September 22, 1976, a judgment
was presented to plaintiff by defendants for signature but it was returned to
defendants unsigned. Plaintiff had no knowledge if or when the judgment would
be filed. It was not filed by November 12, 1976. We believe that due to unusual
and inexcusably long delays which had occurred previously, plaintiff, in order
to protect her rights, did on
November 12, 1976, file a
premature
notice of appeal "
to be effective on the date the judgment is actually
filed", and served a copy thereof on defendants. The judgment was
filed on
December 2, 1976, three months after the decision was rendered.
No notice of appeal was thereafter filed.
{16} Pursuant to Rules
3(a)(1) and 4(a) of the Rules Governing Appeals [§§ 21-12-3(a)(1) and
21-12-4(a), N.M.S.A. 1953 (Repl. Vol. 4, 1975 Supp.)], a notice of appeal must
be filed with the clerk of the district court within 30 days
after entry
of any final judgment.
{17} The validity of
plaintiff's notice of appeal, as worded, filed before entry of the final
judgment, is a matter of first impression.
{18} A history of this
subject matter over the last 50 years discloses many variables. In
1925,
beginning with
D. M. Miller & Co. v. Slease, 30 N.M. 469,
238 P. 828
(1925), the rule was established that until judgment was entered, there could
be no appeal. In
1948, the Supreme Court adopted the view that its rules
would be liberally construed to the end that causes brought to the Supreme
Court for review would be heard on the merits if possible.
Fairchild v.
United Service Corporation, 52 N.M. 289,
197 P.2d 875 (1948).
{19} In
1961, when a
notice of appeal was late in filing by two days, jurisdiction of the case in
the Supreme Court vanished,
Driver-Miller Corporation v. Liberty, 69
N.M. 259,
365 P.2d 910 (1961), but where the filing of the notice was one day
late, caused by mailing a presumption of its receipt on time by the district
clerk saved the appellant.
Adams v. Tatsch, 68 N.M. 446,
362 P.2d 984
(1961).
{20} In
1964, the
Supreme Court adopted the liberal doctrine that the formalistic rigorism of the
past had faded away so that thereafter, when any notice
defective in
form is filed in time
after judgment that gives the opposing party
notice of intention to appeal from the judgment rendered, no prejudice arises,
and the notice is sufficient.
Johnson v. Johnson, 74 N.M. 567,
396 P.2d
181 (1964). Thereafter, various
defects in the form of notice filed in
time were held sufficient.
Nevarez v. State Armory Board, 84 N.M. 262,
502 P.2d 287 (1972);
Spurlin v. Paul Brown Agency, Inc., 80 N.M. 306,
454 P.2d 963 (1969);
Baker v. Sojka, 74 N.M. 587,
396 P.2d 195 (1964);
Westbrook
v. Lea General Hospital, 85 N.M. 191,
510 P.2d 515 (Ct. App. 1973). But
where the notice does
not designate the judgment, order or part thereof
appealed, it is insufficient.
State ex rel. Norvell v. Credit Bur. of
Albuquerque, Inc., 85 N.M. 521,
514 P.2d 40 (1973).
{21} In 1966 and 1967, the
Supreme Court held that when a notice of appeal is
prematurely filed
before the entry of judgment, jurisdiction also vanishes and the appeal is
dismissed.
Bouldin v. Bruce M. Bernard, Inc., 78 N.M. 188,
429 P.2d 647
(1967);
Curbello v. Baughn, 76 N.M. 687,
417 P.2d 881 (1966).
{23} The above collection of
cases are not set forth to encourage attorneys to file defective notices of
appeal, nor are the various defective forms delineated. They represent a
guideline for those attorneys who are delinquent in the protection of their
client's right to appeal.
{24} Attorneys who handle
appeals must conform to the Supreme Court rules within the "liberal"
concepts attached to them, or their clients will suffer the pangs of outrageous
misfortune. Negligence, mistake or misapprehension is no excuse.
{25} This warning could be
made applicable to the instant case, but because of the trend
{*686} toward a liberal view that began 30
years ago, we have decided to "liberally" construe this notice of
appeal to protect the plaintiff. By this decision, we do not approve the filing
of this type of notice under normal circumstances.
{26} We know of no statute or
procedural rule that requires notice of the actual entry of the judgment. In
the instant case, the record does not show that plaintiff was notified if and
when the judgment would be filed or recorded. Due to the prior delays that
occurred, plaintiff had good cause to believe that the time for signing and
filing the judgment would be indefinite in time, and that plaintiff would not
be notified of the date that the judgment would be filed. To avoid gambling her
rights of appeal, plaintiff filed and served a notice of appeal prematurely,
but made the notice effective as of the date the judgment was actually filed.
We believe the plaintiff was justified in doing so. By a transmutation of the
language used, we hold that the notice of appeal was actually filed as of
December 2, 1976, the date that the judgment was filed.
{27} The notice of appeal was
timely.
B. The uncertainty of the judgment rendered demands a new
trial.
{28} This case took on the
form of a chameleon, very changeable, shifting in hue, according to the
objectives presented to the court at different times.
{29} From a review of the
evidence, there are two issues of fact upon which the solution to this case
depends. Did defendants have actual knowledge of the accident and injury as
required by § 59-10-13.4(B), N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1)? Did
plaintiff establish that her disability was the natural and direct result of
the accident as a medical probability as required by § 59-10-13.3?
{30} Defendants seek to
affirm the judgment below because plaintiff's brief in chief failed to properly
challenge the court's findings, and failed to present the matter of plaintiff's
requested findings. We are often confronted with serious defects in briefs
filed in this Court. We have already noted that both briefs filed are a sad
reflection of those services necessary to assist this Court. Because of the
reasons for reversing this case, we abandon any discussion of defendant's
criticism of plaintiff's brief.
{31} The facts show that on
March 20, 1974, plaintiff was employed as a material handler. Boxes of women's
hosiery were sent out to her from the printing department on a small roller or
dolly vehicle called a "truck." Her duty was to take the boxes off
the truck and put them on the shelves. There was a stack of 20 boxes and to put
them on the top shelves, she had to stand on a stool. While putting boxes on
the top shelves, the boxes started falling and she stepped backward and almost
fell off the stool. She dropped the boxes and got hold of the divider of the
shelf and swung around. She hit herself against the shelves, and was
"grabbing to the table" and twisted her back. Mary Green, a checker,
noted that plaintiff "caught my table", and made her sit down.
Plaintiff was in pain.
{32} Plaintiff testified that
she told Rudy Burciaga, her superior, about the accident and injury. Burciaga
testified that plaintiff told him she had pain and didn't feel right, and he
told her to go to the employer's nurse or go home. We infer from this that
plaintiff did not tell Burciaga that her pain was a result of the accident.
{33} The determination of
defendants' actual knowledge of the accident depends upon whom the judge would
believe. The inexcusable delay of 17 months and 21 1/2 months, respectively, in
making his determination for plaintiff and defendants, after the evidence was
heard, hindered and impeded a fair determination of this issue. By petition to
the Supreme Court, either of the opposing attorneys could have obtained a
peremptory writ of mandamus. Section 21-12-12, N.M.S.A. 1953 (Repl. Vol. 4,
1975 Supp.);
State ex rel. United Nuclear Corp. v. Montoya, 76 N.M. 500,
416 P.2d 380 (1966). Both opposing attorneys sat idly by and waited, even
though plaintiff must have anxiously awaited a decision of the trial court to
determine her right to compensation. We have no sympathy for both
{*687} opposing attorneys who let this case
sleep in their files.
{34} Neither can we rely on
the memory of the court. We do not know what notes were kept by the court that
originally led to a decision for the plaintiff and then months later for the
defendants. "Memory" is uncertain 21 1/2 months later when
"memory" is restricted to a recollection of the veracity of witnesses
who testified and a remembrance of the evidence heard during trial. Many
duties, affairs, events, occurrences and interests have intervened during the
interim period. The certainty of memory begins to fade with the passage of
time. Decisions based on memory are as uncertain as the testimony of witnesses
who seek to recollect the facts of an event that occurred two years ago.
Refreshment of memory by a court might take on the color of certainty if the
testimony were read. If not read, experience teaches that a decision based upon
memory alone is poor judgment and should be avoided.
{35} Medical evidence was
presented on plaintiff's disability as the natural and direct result of the
accident as a medical probability under § 59-10-13.3.
{36} Medical testimony
consisted of the depositions of Dr. Mario Palafox, an orthopedic surgeon, Dr.
Edmundo A. Kauffmann, a neurosurgeon, Dr. Carlos Arazoza, an orthopedic
surgeon, and Dr. William J. Nelson, a neurosurgeon, all of El Paso, Texas.
{37} There is sufficient
evidence that, as a reasonable medical probability, plaintiff's disability was
caused by the accident that occurred on March 20, 1974. However, the medical
testimony can be construed to the contrary.
{38} The doctors agreed that
plaintiff's compensatory injury could have been caused by plaintiff coughing,
sneezing, or performing housework and similar activity. The medical testimony
created an issue of fact for the court.
{39} Under the circumstances
of this case, the symbolic terms of "equity and fair play" demand a
retrial of the issues in conformity with the purposes of the Workmen's
Compensation Act. The uncertainty of the judgment entered in this case cannot
stand.
{40} This case is reversed
and remanded for a new trial.
LOPEZ, J., and KASE, District Judge, specially concurring.
KASE, District Judge, (specially concurring).
{42} I concur in the result.
I also concur in the opinion, except that I do so on the following additional
ground not articulated in the opinion.
{43} The trial court filed
two separate decisions in this case. In its initial decision filed on June 24,
1976 the court held in favor of the plaintiff. In its subsequent decision filed
on September 3, 1976 the court held in favor of the defendants. Both decisions
consist verbatim of the requested findings and conclusions of the prevailing
parties. This practice has been denounced by the New Mexico Supreme Court in
Mora
v. Martinez, 80 N.M. 88,
451 P.2d 992 (1969). The court's mechanical
adoption of the requested findings and conclusions of the prevailing parties in
both decisions raises a serious question as to whether the court exercised the
required independent judgment in determining this case.
{44} This ground, coupled
with the grounds contained in the opinion, require that this case be reversed
and remanded for a new trial.