Castillo v. Industrial Commission

• Decision Date: 16 April 1974
• Docket Number: No. 1,CA-IC,1
• Citation: 21 Ariz.App. 465,520 P.2d 1142
• Parties: Rudolfo H. CASTILLO, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Producers Cotton Oil Company, Respondent Employer, Employers Mutual Liability Insurance Company of Wisconsin, Respondent Carrier. 1083.
• Court: Arizona Court of Appeals

Page 1142

520 P.2d 1142

21 Ariz.App. 465

Rudolfo H. CASTILLO, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Producers Cotton Oil Company, Respondent Employer, Employers Mutual Liability Insurance Company of Wisconsin, Respondent Carrier.

No. 1 CA-IC 1083.

Court of Appeals of Arizona, Division 1, Department B.

April 16, 1974.

Spencer K. Johnston, Phoenix, for petitioner

Richard E. Taylor, Legal Counsel, Phoenix, for respondent The Industrial Comm. of Ariz.

Shimmel, Hill & Bishop, P.C. by J. Russell Skelton, Phoenix, for respondent employer and respondent carrier.

James B. Long, Phoenix, for amicus curiae State Compensation Fund.

Robert W. Eppstein, Tucson, for amicus curiae Davis & Eppstein.

OPINION

HAIRE, Presiding Judge.

On December 14, 1972, petitioner Rudolfo H. Castillo filed in this Court a petition for writ of certiorari seeking review of an award entered by the respondent Industrial Commission fixing his average monthly wage at the sum of $196.18. This Court's writ of certiorari was issued on that same date. Thereafter, pursuant to written stipulation signed by the parties, on October 19, 1973 this Court remanded the matter to the respondent Industrial Commission for further administrative proceedings. (See this Court's file, 1 CA-IC 921).

During the interim period between the date of the filing of the petition for writ of certiorari, December 14, 1972, and October 19, 1973, the date of this Court's remand order, the parties proceeded with the processing of other aspects of the petitioner's claim before the Industrial Commission in accordance with the workmen's compensation laws of the state of Arizona. Among other things, the Commission's file shows that during this interim period on March 12, 1973, the respondent carrier issued its notice of claim status terminating petitioner's temporary compensation and medical benefits as of February 22, 1973; that on March 14, 1973 the petitioner filed a request for a hearing before the Commission concerning the above-mentioned notice of claim status, contending that he was not able to return to work, that he needed further medical benefits, and that he had suffered a permanent disability; that thereafter, the Commission's hearing officer conducted hearings on these issues on June 29, 1973 and September 18, 1973; and that on September 19, 1973 the hearing officer issued his decision which in essence found against the petitioner's claim and terminated his compensation and medical benefits as of February 22, 1973, with no permanent disability. This award was affirmed by the Commission's decision of October 24, 1973. On November 21, 1973 the petitioner again petitioned this Court for the issuance of its writ of certiorari, this time for the purpose of reviewing the Commission's decision of October 24, 1973.

The foregoing history of the Commission's proceedings subsequent to December 14, 1972 has been set forth in detail, inasmuch as the jurisdictional validity of these interim proceedings has been questioned by a motion pending before this Court. As previously mentioned, petitioner's new petition for writ of certiorari was filed November 21, 1973, and questioned the lawfulness of the Commission's award of October 24, 1973 concerning the termination of petitioner's compensation and medical benefits. The petitioner has now filed in this Court his motion requesting that the review proceedings resulting from the filing of his November 21, 1973 petition be dismissed and the matter be remanded to the Industrial Commission for the holding of further proceedings, based upon his fear that the Commission lacked jurisdiction to conduct the interim proceedings. Petitioner's motion reads in part as follows:

'The Petitioner makes this Motion to Remand reluctantly, but apparently would have no discretion in the matter based upon the Decisions of this Court of Greer vs. Ind. Comm., (20) Ariz.App. (559), 514 P2d 512 (1973) and Terrell vs. Ind. Comm., (21) Ariz.App. (139), (517) P2d (97) (filed December 27, 1973).

'In December, 1972, your Petitioner filed his Petition for Writ of Certiorari concerning the question of the proper determination of his average monthly wage. The Court granted the Petition for Writ of Certiorari and the question of the average monthly wage was pending before this Court until the parties to said action filed a Motion to Remand said cause to the Industrial Commission of Arizona for further administrative processing. The Order granting remand was signed on the 19th day of October, 1973.

'In the meantime, the parties had litigated before the Industrial Commission of Arizona at formal hearings on June 29, 1973, and September 18, 1973, the question of permanent disability, if any, of the Petitioner in this same industrial accident claim; and, subsequently, said question of entitlement to additional disability benefits was brought before this Court on November 26, 1973.

'It would appear, that in accordance with the Decisions of Greer vs. Ind. Comm., (supra) and Terrell vs. Ind. Comm., (supra), that the Industrial Commission of Arizona did not have jurisdiction to hold the two aforementioned hearings in June and September of 1973 and issue the subsequent Awards which have now been brought before this Court in this matter.

'In accordance with the stated case law, this Petitioner reluctantly moves for remand of his cause to the Industrial Commission of Arizona for the holding of further hearings.'

Because of this Court's serious concern with the jurisdictional issues raised in petitioner's motion, we entered our order taking the motion under advisement and granting all parties additional time within which to file simultaneous memoranda concerning the jurisdictional principles set forth in the Greer and Terrell decisions cited in petitioner's motion. Further memoranda were filed by the parties, and, in addition, excellent and very helpful memoranda were filed by Amicus curiae. For the reasons hereinafter set forth, we have concluded that the Commission retained jurisdiction to render the award in question, and that therefore petitioner's motion to remand should be denied.

The principle is well established that an appeal generally divests the trial court of jurisdiction to proceed except in furtherance of the appeal. Whitfield Transportation v. Brooks, 81 Ariz. 136, 302 P.2d 526 (1956); Gotthelf v. Fickett, 37 Ariz. 413, 294 P. 837 (1931); Sam v. State, 33 Ariz. 383, 265 P. 609 (1928); Navajo Realty Co. v. County National Bank & Trust Co., 31 Ariz. 128, 250 P. 885 (1926). However, this general principle is subject to many equally well established exceptions. Thus, it has been held that in the absence of supersedeas, the trial court in a civil proceeding retains jurisdiction pending the appeal to take such action as might be necessary to enforce its previously entered judgment. Carp v. Superior Court, 84 Ariz. 161, 325 P.2d 413 (1958). Further, an

'. . . appeal from an appealable intermediate or interlocutory order does not divest the trial court of jurisdiction to proceed in matters not involved in the appeal.' 4 Am.Jur.2d, Appeal and Error, § 357, p. 835 (1962).

This same principle is stated in Corpus Juris Secundum as follows:

'An appellate proceeding for the review of incidental or interlocutory matters divests the trial court of jurisdiction only with respect to matters directly involved in, or the subject of, the appellate proceeding.' 4A C.J.S. Appeal and Error § 609, p. 399 (1957).

Decisions from other jurisdictions reveal that this intermediate appealable orders exception has been applied to support continuing trial court jurisdiction in situations involving appeals from many different intermediate orders, including, but not limited to, appeals from orders granting temporary injunctions; See Magnolia Petroleum Co. v. Blankenship, 70 S.W.2d 258 (Tex.Civ.App.1934); Lynch v. Clinch Motor Co., 131 Va. 202, 108 S.E. 641 (1921); intermediate orders involving receiverships; See R. W. Holding Corp. v. R.I.W. Waterproofing & Decorating Co., 131 Fla. 424, 179 So. 753 (1938); Magnolia Petroleum Co. v. Jackson, 80 S.W.2d 388 (Tex.Civ.App.1934); intermediate appealable orders involving discovery proceedings; See Smiley v. Atkinson, 12 Md.App. 543, 280 A.2d 277 (1971), aff'd, 265 Md. 129, 287 A.2d 770 (1972); and, last but not least, appeals from intermediate orders or awards in workmen compensation proceedings, See Waddle v. State Industrial Court, 304 P.2d 511 (Okl.1964); Fischback & Moore of Alaska, Inc. v. Lynn, 407 P.2d 174 (Alaska 1965); Pressman v. State Accident Fund, 246 Md. 406, 228 A.2d 443 (1967).

Another exception to complete appellate pre-emption of trial court jurisdiction pending review is recognized where, by reason of the peculiar nature of the subject matter involved, the trial court is vested with special powers of a continuing jurisdictional nature. Thus A.R.S. § 25--321, as it existed prior to its amendment in 1973, provided that in domestic relations cases the trial court could under certain circumstances 'from time to time after entry of final judgment . . . amend, revise and alter the portions of the decree which relate to . . ..' support of the wife and to the care, custody or maintenance of the children of the parties. In view of this statutory provision for continuing trial court jurisdiction, the Arizona Supreme Court in O'Hair v. O'Hair, 109 Ariz. 236, 508 P.2d 66 (1973), held as follows:

'However, because the Legislature has provided, by A.R.S. § 25--321, that the Superior Court may from time to time after final judgment amend, change or alter any of the provisions respecting the care, custody or maintenance of children, we think it retains jurisdiction pending appeals in such matters, at least where the provisions for the care, custody and maintenance of the children are not the subject matter of the appeal.'

109 Ariz. at 241--242, 508 P.2d at 71.

See also, the Waddle, Fischback, and Pressman...