TRUJILLO V. HILTON OF SANTA FE, 1993-NMCA-005,
115 N.M. 398, 851 P.2d 1065 (Ct. App. 1993)
CASE HISTORY ALERT: affected by
1993-NMSC-017
Gloria TRUJILLO,
Claimant-Appellant/Cross-Appellee,
vs.
HILTON OF SANTA FE and Crawford & Company (Travelers),
Respondents-Appellees/Cross-Appellants
COURT OF APPEALS OF NEW MEXICO
1993-NMCA-005, 115 N.M. 398, 851 P.2d 1065
January 06, 1993, Decided
APPEAL FROM THE NEW MEXICO WORKERS'
COMPENSATION ADMINISTRATION. MaryAnn Lunderman, Workers' Compensation Judge.
Motion for Rehearing Denied February 1,
1993. Certiorari Granted March 11, 1993
James A. Burke, Santa Fe, for
claimant-appellant/cross-appellee.
Todd M. Aakhus, Stirling & Stepleton,
Albuquerque, for respondents-appellees/cross-appellants.
Minzner, Judge. Pickard and Black, JJ.,
concur.
{1} Worker appeals from the
compensation order entered by the workers' compensation judge (WCJ) awarding
compensation benefits and from the subsequent order awarding attorney fees;
Respondents cross-appeal from the order awarding attorney fees to Worker.
Respondents have moved to dismiss Worker's appeal from the compensation order
on the ground that the notice of appeal was not timely filed.
{2} Respondents' motion
raises a question of critical importance to injured workers and their
attorneys: whether, under
Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M.
231,
824 P.2d 1033 (1992), a compensation order of the Workers' Compensation
Administration (Administration) awarding compensation and medical benefits but
not resolving the issue of attorney fees is a final order for purposes of
appeal. For the reasons discussed below, we hold that Worker's time to file her
notice of appeal ran from the date of the compensation order.
See NMSA
1978, §
52-5-8(A) (Repl.Pamp.1991);
Tzortzis v. County of Los Alamos,
108 N.M. 418,
773 P.2d 363 (Ct.App.1989). Because no extensions of time were
requested from or granted by this Court,
see SCRA 1986, 12-201(E) &
12-601(C) (Repl.1992), Worker had thirty days from the date of the compensation
order to file her notice of appeal with this Court. The notice of appeal having
been filed more than thirty days after the compensation order, we grant
Respondents' motion to dismiss Worker's appeal as untimely filed.
See Govich
v. North Am. Sys., Inc., 112 N.M. 226, 230,
814 P.2d 94, 98 (1991) (timely
filing of the notice of appeal is mandatory).
{3} During calendaring,
Worker indicated that her appeal of the attorney fee award was intended to
preserve her entitlement to additional fees if this Court reversed the WCJ on
the issues concerning the aggravation of her diabetic condition by the
accidental injury. In view of our disposition of her appeal from the
compensation order, we do not discuss her appeal from the attorney fees award
further.
{4} The cross-appeal raises
several issues. Respondents indicate that they have been persuaded that the
first issue is of minor significance. We construe it to have been abandoned.
See
State v. Johnson, 107 N.M. 356,
758 P.2d 306 (Ct.App.1988);
State v.
Martinez, 97 N.M. 585,
642 P.2d 188 (Ct.App.1982). In the remaining issues,
Respondents argue that this Court should remand the case to the Administration
for entry of findings and conclusions on the factors that are considered by the
WCJ in determining the amount of attorney fees. For the reasons that follow in
the discussion of the cross-appeal, we hold that Respondents failed to preserve
any error with respect to the attorney fees award.
{5} On August 10, 1990,
Worker suffered an accidental injury to her tailbone. Her claim for benefits
was filed with the WCA on December 10, 1990. Briefly, the claim alleged that
Worker fell at work, breaking her tailbone, and that the injury aggravated her
preexisting diabetic condition. Ultimately a formal hearing was held on the
matter. On June 16, 1992, the WCJ filed findings of fact and conclusions of
law, awarding Worker temporary total disability
{*401}
benefits and medical benefits for the broken tailbone, but rejecting her
claim that the injury had aggravated her diabetic condition. On June 25, 1992,
the WCJ filed a compensation order ordering that Worker be paid compensation
consistent with the findings of fact and conclusions of law previously filed.
{6} On June 26, 1992, Worker
filed a motion for attorney fees. The WCJ held a hearing on the issue, and on
July 20, 1992, filed an order awarding attorney fees to Worker. On August 4,
1992, Worker filed a notice of appeal in this Court, indicating that she was
appealing both the compensation order and the order on attorney fees.
{7} On August 13, 1992,
Respondents moved to dismiss Worker's appeal, arguing that the notice of appeal
was not timely with respect to Worker's attempt to appeal from the compensation
order. Our first and second calendar notices proposed to grant the motion to
dismiss. Worker has filed timely memoranda in opposition to both calendar
notices.
{8} In her latest response,
Worker argues that this case should be assigned to either a general or a
limited calendar for full briefing; she also requests oral argument. However,
summary disposition is appropriate when the dispositive facts are clear and the
parties have had an opportunity to express their views.
See Garrison v.
Safeway Stores, 102 N.M. 179,
692 P.2d 1328 (Ct.App.1984). The dispositive
facts in this case are clear on the record. Worker's memoranda in opposition
have been extensively researched and well argued. Moreover, we agree with
Worker that it is important to resolve this issue expeditiously and by a
published opinion because our ruling will have a substantial impact on the
handling of appeals in workers' compensation cases. We do not think oral
argument is necessary. Under these circumstances, we think assignment of this
case to the general calendar would add nothing but delay to these proceedings.
{9} In
Kelly Inn, our
Supreme Court adopted the following guidelines to determine the finality of an
order or judgment for purposes of appeal:
Where a judgment declares the rights and liabilities
of the parties to the underlying controversy, a question remaining to be
decided thereafter will not prevent the judgment from being final if resolution
of that question will not alter the judgment or moot or revise decisions
embodied therein. Where a postjudgment request, such as one for attorney's
fees, raises issues "collateral to" and "separate from" the
decision on the merits, such a request will not destroy the finality of the
decision; proceedings to carry out or give effect to the judgment do not render
the judgment nonfinal, because the trial court always retains jurisdiction to
enforce its unsuperseded judgment. [Citations omitted.]
113 N.M. at 238, 824 P.2d at 1040. In so holding, the Supreme
Court specifically overruled Watson v. Blakely, 106 N.M. 687, 748 P.2d
984 (Ct.App.1987), and Johnson v. C & H Construction Co., 78 N.M.
423, 432 P.2d 267 (Ct.App.1967), to the extent that those cases could be read
to hold that a judgment was not final because an issue concerning attorney fees
remained to be resolved. 113 N.M. at 239, 824 P.2d at 1041. The Court made it
clear that the pendency of an issue concerning attorney fees did not destroy
the finality of a judgment, regardless of whether the claim for fees was
"conceptualized as part of the relief afforded by the statute or other
governing rule or contract." Id. The Court considered the strong
policy against piecemeal appeals, but determined that policy was outweighed by
the "equally important policy of facilitating meaningful appellate review
of cases in which the aggrieved party exercises the constitutional right to an
appeal." Id. at 240, 824 P.2d at 1042.
{10} In Worker's latest
response, she contends: (1) that the filing of her motion for attorney fees
extended the time for appeal, and therefore her notice of appeal was timely;
(2) that workers' compensation proceedings are sui generis, and therefore
Kelly
Inn should not be applied to them; and (3) that
Kelly Inn effects a
substantial change in the law, which should not be
{*402}
applied to this case. We discuss each of these contentions.
{11} We turn first to
Worker's contention that the filing of her motion for attorney fees tolled the
time for filing the notice of appeal. Rule 12-201(D) provides, in pertinent
part:
If a party timely files a motion pursuant to Section
39-1-1 NMSA 1978, Rule 1-050(B), 1-052(B)(2), or 1-059 . . . the . . . time . .
. for the filing of the notice of appeal shall commence to run and be computed
from either the entry of an order expressly disposing of the motion or the date
of any automatic denial of the motion . . . whichever occurs first.
The Administration has adopted rules governing formal
hearings. Rule WCD 89-2(I)(A) (June, 1989) provides in pertinent part that
"[e]xcept where otherwise provided in these Rules, the Rules of Civil
Procedure for the District Courts of New Mexico shall apply." We agree
that the filing of one of the motions referred to in Rule 12-201(D) would
extend the time for filing an appeal from the compensation order. However, we do
not agree with Worker that such a motion was filed in this case.
{12} Worker argues that her
motion for fees can be treated as a motion under SCRA 1986, 1-059 (Repl.1992).
In support of this, she cites
Croker v. Boeing Co. (Vertol Div.), 662 F.2d
975 (3d Cir.1981) (holding that the judgment was not final for purposes of
appeal until the amount of attorney fees is determined);
Glass v. Pfeffer,
657 F.2d 252 (10th Cir.1981) (civil rights action; judgment not final until the
full extent of the party's liability is determined); and
Gurule v. Wilson,
635 F.2d 782 (10th Cir.1981) (similar to
Glass). However, these cases
were decided at a time when there was a split in the circuits on the issue.
This issue has now been resolved against Worker by the United States Supreme
Court.
See White v. New Hampshire Dep't of Employment Sec., 455 U.S.
445, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982) (a motion for attorney fees is
not a motion under Fed.R.Civ.P. 59(e) because it does not seek reconsideration
of matters properly encompassed in a decision on the merits);
see also
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S. Ct. 1717, 100
L. Ed. 2d 178 (1988) (judgment on the merits is a final, appealable judgment;
pendency of fee proceedings, regardless of the nature of entitlement to the
fees, does not destroy the finality of the judgment).
{13} Worker cites NMSA 1978,
Section
39-1-1 (Repl.Pamp. 1991). However, she no longer argues that her motion
for attorney fees was a motion under that statute. The motion itself
"requests an award of attorney's fees based on the attached affidavit of
time and made pursuant to 52-1-54, NMSA." We do not think we can fairly
characterize the motion as made under Section 39-1-1.
{14} Our Supreme Court has
clearly held that a judgment is final if it determines the rights and
liabilities of the parties to the underlying controversy, even though there are
collateral or separate questions that remain to be resolved. In determining the
finality of the order, the critical issue is whether the subsequent proceedings
will alter the judgment or moot or revise the decision embodied therein.
Kelly
Inn, 113 N.M. at 238, 824 P.2d at 1040. In this case, the compensation
order resolved all the issues that had been raised by Worker concerning her
entitlement to disability and medical benefits. The proceedings concerning fees
would not affect or revise these determinations. Moreover, the proceedings
concerning fees did not result in an amended compensation order, but in a
separate order determining the amount of the attorney fees. Thus, we hold that
the motion for attorney fees was not a motion directed "against such
judgment" within the meaning of Section 39-1-1, and thus was not a motion
under that statute for purposes of Rule 12-201(D).
{15} Next, Worker argues that
Kelly Inn should not be applied to workers' compensation proceedings
because workers' compensation proceedings create rights, remedies, and
procedures that are distinctive.
See, e.g., Williams v. Amax Chem. Corp.,
104 N.M. 293,
720 P.2d 1234 (1986);
Security Ins. Co. v. Chapman, 88
N.M. 292,
540 P.2d 222 (1975);
Anaya v. City of Santa Fe, 80 N.M. 54,
451 P.2d 303 (1969).
{*403} Moreover,
under the present statutory scheme, claims for compensation are handled by an
administrative body rather than a district court.
{16} Worker relies on the
following language from
Sanchez v. Bradbury & Stamm Construction,
109 N.M. 47,
781 P.2d 319 (Ct.App.1989):
The general rule in administrative law is that, absent
express statutory authorization, "no one is entitled to judicial relief
for a supposed or threatened injury until the prescribed administrative remedy
has been exhausted." As observed by our supreme court in Angel Fire
[Corp. v. C.S. Cattle Co., 96 N.M. 651, 634 P.2d 202 (1981)],
"[j]urisdiction of the matters in dispute does not lie in the courts until
the statutorily required administrative procedures are fully complied with. The
courts have no authority to alter the statutory scheme . . . ." Id.
at 652, 634 P.2d at 203. [Citations omitted.]
Id. at 49, 781 P.2d at 321. Worker points out that the
workers' compensation act contemplates that employers be responsible for a
portion of the worker's attorney fees in certain circumstances and requires
Worker's attorney to obtain approval of any fee charged to her. See NMSA
1978, § 52-1-54(A) (Repl.Pamp.1991) (effective until January 1, 1991). Thus,
Worker contends, the administrative proceedings are not final until the matters
concerning the fees have been resolved.
{17} Worker's reliance on
Sanchez
is misplaced. In
Sanchez we held that this Court did not have
jurisdiction to hear interlocutory appeals from the Administration. As we noted
in that case, this Court has only such jurisdiction as the legislature provides
for us. 109 N.M. at 48, 781 P.2d at 320. With respect to proceedings in the
Administration, the legislature has provided for an appeal from the final order
of the WCJ. Section 52-5-8(A). In
Kelly Inn, our Supreme Court clarified
the circumstances under which an order is final. In effect, then,
Kelly Inn
defines the final order to which Section 52-5-8(A) refers.
{18} In a similar vein,
Worker points out that the legislature has required that the decision of the
WCJ filed after an evidentiary hearing on the merits:
[S]hall be made in the form of a compensation order,
appropriately titled to show its purpose and containing a report of the case,
findings of fact and conclusions of law and, if appropriate, an order for the
payment of benefits under the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978] . . . .
NMSA 1978, § 52-5-7(B) (Repl.Pamp.1991). Worker contends that
the use of the term "compensation order" in Section 52-5-7(B) and the
term "final order" in Section 52-5-8(A) indicates that the
legislature did not intend the compensation order to be a final order. However,
we believe that the use of the term "final order" in Section
52-5-8(A) indicates only that the legislature recognized that a compensation
proceeding may also be concluded in a manner that does not result in a compensation
order.
{19} This Court has
previously noted the need for an expeditious resolution of compensation
proceedings.
See, e.g., Sanchez, 109 N.M. at 49, 781 P.2d at 321.
Appeals from these proceedings are given a statutory priority in this Court.
See
§ 52-5-8(B).
Kelly Inn advances this policy by making compensation
orders immediately appealable, despite the pendency of proceedings concerning
fees.
{20} Finally, Worker contends
that this Court should consider her appeal on the merits because she reasonably
relied on the long-standing precedent of
Johnson. We recently indicated
that this Court might have discretion to consider an otherwise untimely appeal
when a party has relied on long-standing precedent that indicated that the
order from which it wished to appeal was not final.
See In re Estate of
Newalla, 114 N.M. 290,
837 P.2d 1373 (Ct.App.1992);
see also State v.
Alvarez, 113 N.M. 82, 85,
823 P.2d 324, 327 (Ct.App.1991) (suggesting that
this court has discretion to consider untimely appeals). We assume without
deciding that we have some discretion to consider untimely appeals.
Cf.
Govich, 112 N.M. at 230, 814 P.2d at 98 (time
{*404}
and place of filing notice of appeal should be described as
"mandatory"). However, in this case, we are not inclined to exercise
our discretion.
{21} Kelly Inn was decided on
January 7, 1992, and published in the State Bar Bulletin on February 20, 1992.
See
Vol. 31, No. 8, SBB 173. Since its publication, we have interpreted and applied
it as having overruled
Johnson, although we have not yet done so in a
formal opinion. In
Newalla, the order from which appellant wished to
appeal was filed before
Kelly Inn was decided. The WCJ's findings and
conclusions and the compensation order in this case were filed five months
after the opinion in
Kelly Inn was filed and approximately four months
after the opinion had been published.
{22} Moreover, on August 13,
1992, at the time Respondents filed their motion to dismiss the appeal as
untimely, there was still time within which Worker might have obtained an
extension of time to file the notice of appeal.
See R. 12-201(E) &
12-601(C). Under the appellate rules, this Court was authorized to grant an
extension of time within the sixty-day period after the compensation order was
entered.
Id. No motion for an extension of time has ever been filed.
{23} Under these
circumstances, we do not believe the appellate rules authorize the relief
Worker requests.
See id. While we agree that
Kelly Inn changed
the law, we are not persuaded that there is any basis for not applying it to
this case.
{24} Worker has moved that
the case be remanded for the purpose of allowing the WCJ to amend her orders of
June 25 and July 20, 1992, and enter a single order.
See State ex rel. Bell
v. Hansen Lumber Co., 86 N.M. 312,
523 P.2d 810 (1974). Worker invokes NMSA
1978, Section
52-5-9 (Repl.Pamp.1991), the workers' compensation analogue to
SCRA 1986, 1-060(B) (Repl.1992), saying that it was excusable neglect to fail
to file a notice of appeal after the original compensation order was entered
and before the attorney fees award was made. We deny the motion. Several cases
decided under Rule 1-060(B) hold that it is not to be used to extend the time
for an appeal.
See, e.g., Gedeon v. Gedeon, 96 N.M. 315,
630 P.2d 267
(1981). By analogy, Section 52-5-9 provides no relief.
{25} Respondents concede that
their proposed findings and conclusions took the position that Worker was not
entitled to fees at all because her attorney had not secured a benefit for her.
Thus, Respondents did not request findings on the various factors considered by
the WCJ in determining reasonable fees, such as the number of hours reasonably
and necessarily spent by Worker's attorney on the matter, the extent to which
the issues were contested, or the novelty and complexity of the issues.
See
Woodson v. Phillips Petroleum Co., 102 N.M. 333,
695 P.2d 483 (1985)
(discussing factors to be considered in determining a fee). Nevertheless, they
argue that the WCJ was required to make findings on the various factors either
by Section 52-5-7(B), or by our holding in
Jennings v. Steven J. Gabaldon
Construction, 97 N.M. 416,
640 P.2d 522 (Ct.App.1982). We disagree.
{26} As we have noted above,
nothing in the language of Section 52-5-7(B) indicates that it applies to
subsequent orders awarding attorney fees. A court cannot read into a statute
language that is not there, particularly when the statute makes sense as
written.
Burroughs v. Board of County Comm'rs, 88 N.M. 303,
540 P.2d 233
(1975). Similarly, to the extent that Respondents rely on language in
Jennings
to the effect that the failure to enter specific findings of each of the
factors considered in determining reasonable fees is reversible error, we note
that language was specifically overruled by our Supreme Court in
Woodson,
102 N.M. at 339, 695 P.2d at 489. By failing to file proposed findings and
conclusions on the specific factors to be considered in determining the fees,
Respondents waived findings and conclusions on those issues.
See Bower v.
Western Fleet Maintenance, 104 N.M. 731,
726 P.2d 885 (Ct.App.1986);
see
also SCRA 1986, 1-052(B)(1)(f) (Repl.1992).
{27} For these reasons,
Respondents' motion to dismiss Worker's appeal is granted, and the order
awarding attorney fees is affirmed.