Pineda v. Grande Drilling Corp.

• Decision Date: 08 January 1991
• Docket Number: No. 11379,11379
• Parties: Dolores PINEDA, on behalf of herself and her three children, Claimant-Appellee and Cross-Appellant, v. GRANDE DRILLING CORPORATION and Mountain States Mutual Insurance Co., Respondents-Appellants and Cross-Appellees.
• Court: Court of Appeals of New Mexico

Page 234

807 P.2d 234

111 N.M. 536

Dolores PINEDA, on behalf of herself and her three children Claimant-Appellee and Cross-Appellant, v. GRANDE DRILLING CORPORATION and Mountain States Mutual Insurance Co., Respondents-Appellants and Cross-Appellees.

No. 11379.

Court of Appeals of New Mexico.

Jan. 8, 1991.

[111 N.M. 537] Charles C. Currier, Roswell, for claimant-appellee and cross-appellant.

Robert E. Sabin, Craig A. Orraj, Atwood, Malone, Mann & Turner, P.A., Roswell, for respondents-appellants and cross-appellees.

OPINION

HARTZ, Judge.

Grande Drilling Corporation and Mountain States Mutual Insurance Company (respondents) challenge the award of attorneys' fees to Dolores Pineda (claimant) by the Workers' Compensation Division (WCD)¹ pursuant to its Payment and Benefit Rule V, WCA 86-4 (December 1986). On her cross-appeal claimant contends that regardless of the merits of the award of attorneys' fees under Rule V, she should have been awarded attorneys' fees pursuant to the 1986 amendments to the Workers' Compensation Act (the "Interim Act"). Claimant also challenges the constitutionality of the Interim Act's provisions regarding attorneys' fees. We hold that attorneys' fees could not be awarded pursuant to Rule V, because the rule was not in effect when claimant filed her claim. We affirm the WCD's denial of an award of attorneys' fees pursuant to the Interim Act, because claimant offered no evidence of any economic injury suffered as a result of respondents' delay in paying benefits. Finally, we reject claimant's constitutional contentions.

The WCD awarded claimant and her children benefits under the Workers' Compensation Act on account of the death of her husband in the course of his employment with Grande Drilling Company. The award was for a greater amount than had been recommended by a WCD pre-hearing officer who conducted an informal conference with representatives of the parties. Respondents had rejected the pre-hearing officer's recommended resolution.

I. PAYMENT AND BENEFIT RULE V

A. Applicability of Article IV, Section 34

The version of Payment and Benefit Rule V relied upon by claimant states:

(1) If at the close of a hearing and after review of the Pre-Hearing Officer's recommended resolution, the Hearing Officer finds that either party has rejected the recommended resolution without reasonable basis or without reasonable expectation of doing better at formal hearing; the Hearing Officer may:

(a) In the case of a Respondent: require that Respondent pay the reasonable attorney's fees of Claimant's counsel necessitated as a result of Respondent's unreasonable rejection where said rejection was at the recommendation of Respondent's counsel.

The Interim Act, NMSA 1978, Section 52-5-4 (Cum.Supp.1986), states that rules adopted by the WCD must be filed in accordance with the State Rules Act, which requires that rules be filed with the State Records Center, NMSA 1978, Section 14-4-3 (Repl.Pamp.1988), and provides: "No rule shall be valid or enforceable until it is so filed and shall only be valid and enforceable upon such filing and compliance with any other law." NMSA 1978, Section 14-4-5 (Repl.Pamp.1988).

While reviewing the rules of the WCD to determine which version of Rule V was applicable to this case, this court noted that the original version of the rule was not filed with the State Records Center until May 26, 1987. Claimant filed her claim with the WCD on February 17, 1987; the recommended resolution of the pre-hearing officer was issued on March 25, 1987; respondents formally rejected the recommended resolution on April 21, 1987. Because it appeared that Rule V could not be the source of authority for an award of attorneys' fees in this case, we requested supplemental briefs from the parties.

Claimant's principal contention in her supplemental brief is that we should not consider on appeal the effective date of Rule V, because the issue had not been raised before the WCD. We disagree. The reasons for our disagreement can be better understood after we address the merits of the issue.

The State Rules Act unambiguously provides that Rule V did not become effective until it was filed on May 26, 1987. See Sec. 14-4-5; State v. Joyce, 94 N.M. 618, 614 P.2d 30 (Ct.App.1980). This action was commenced on February 17, 1987. The question facing us is whether the rule can be applied to a case that was filed before the rule's effective date.

We find the answer in article IV, section 34 of the New Mexico Constitution, which states: "No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case." See Hillelson v. Republic Ins. Co., 96 N.M. 36, 627 P.2d 878 (1981) (statutory increase in interest payable on judgments cannot apply to case pending at time of amendment); US Life Title Ins. Co. of Dallas v. Romero, 98 N.M. 699, 652 P.2d 249 (Ct.App.1982) (change in procedure for claiming homestead exemption). Although the constitutional provision speaks only of acts of the legislature, it also applies to regulatory agencies created by the legislature. The legislature cannot circumvent the constitutional prohibition by delegating the task to an agency. See Op. Oklahoma Att'y Gen. Nos. 86-18, 86-19, and 86-78 (10-8-86) (granting of exclusive franchise by Racing Commission violates constitutional ban on grant of exclusive franchises by legislature); Juster Bros., Inc. v. Christgau, 214 Minn. 108, 118, 7 N.W.2d 501, 507 (1943) ("[W]hat the legislature cannot do itself is ultra vires an administrative body with only delegated legislative power."). Our supreme court has applied article IV, section 34 to rules promulgated by that court Marquez v. Wylie, 78 N.M. 544, 434 P.2d 69 (1967), and to city ordinances, State ex rel. Edwards v. City of Clovis, 94 N.M. 136, 607 P.2d 1154 (1980). The provision should also apply to administrative agencies, such as the WCD. Thus, insofar as legislation authorizing rulemaking by an agency could be construed to authorize the agency to enact rules that "affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case," the legislation violates article IV, section 34. Likewise, our supreme court's broad application of the provision compels the conclusion that the word "case" should include not just judicial proceedings, but also adjudicative proceedings before the WCD. Cf. DiMatteo v. County of Dona Ana, 109 N.M. 374, 785 P.2d 285 (Ct.App.1989) (considering article IV, section 34 in determining whether workers' compensation proceeding should be before a court (pursuant to former statute) or before the WCD). Therefore, we hold that article IV, section 34 of the New Mexico Constitution bars the application of Rule V to this case because the case was pending when Rule V was filed.

Claimant points out that application of Rule V in this case may have been "fair" because at the time that she initiated her claim, respondents knew that Rule V had been adopted and may even have believed that it applied. But the language of Section 14-4-5 is categorical: a rule is not valid or enforceable until it is filed. There is no implicit exception that makes the rule effective before filing with respect to those with actual notice of the rule. See State v. Joyce. Moreover, notice of enactment of a law is irrelevant under article IV, section 34. The effective date is the determining factor. See Hillelson v. Republic Ins. Co., 96 N.M. at 38, 627 P.2d at 880 ("Since our Constitution forbids an act of the Legislature from affecting a right or remedy such as the one involved here, it follows that the statute in effect when this became a pending case is applicable." (Emphasis added.))²

B. Failure to Raise the Issue Before the WCD

Having held that the WCD lacked the power to apply Rule V in this case, we now explain why we have considered this question despite the failure of respondents to raise it either before the WCD or in its initial briefs on appeal.

We recognize the general rule that appellate courts will not consider an issue unless it was properly preserved in the lower tribunal. Claimant cites several New Mexico appellate court opinions that conform to this proposition. The requirement that issues be preserved below is expressed in the appellate rules promulgated by our supreme court. SCRA 1986, 12-216(A). On the other hand, the appellate rules provide exceptions to the requirement. Rule 12-216(B) states: "This rule shall not preclude the appellate court from considering jurisdictional questions or, in its discretion, questions involving: (1) general public interest; or (2) fundamental error or fundamental rights of a party."

Unfortunately, there is no easy test to determine whether a question is jurisdictional or involves general public interest, fundamental error, or fundamental rights of a party. On the contrary, often such terms simply express the conclusion of the court rather than advance the analysis of whether to grant review. For example, to say in this context that an error was "jurisdictional" is often just shorthand for saying that the error is one that can be considered for the first time on appeal. See Restatement (Second) of Judgments Sec. 11 comment e (1982). Cf. Sundance Mechanical & Util. Corp. v. Atlas, 109 N.M. 683, 689-90, 789 P.2d 1250, 1256-57 (1990) (noting different meanings of "jurisdictional"); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 39, 73 S.Ct. 67, 69-70, 70, 97 L.Ed. 54 (1952) (Frankfurter, J., dissenting) (eschewing use of the word "jurisdiction" in considering whether issue can be raised for first time on appeal, because the word "is a verbal coat of too many colors").

Nevertheless, the language of Rule 12-216(B) provides sufficient guidance in this case. Both the "general public interest" and the "jurisdictional" nature of the error argue in favor of our considering the applicability of Rule...