Cordova v. Taos Ski Valley, Inc.

• Decision Date: 11 December 1995
• Docket Number: No. 15882,15882
• Citation: 910 P.2d 334,1996 NMCA 9,121 N.M. 258
• Parties: Orlando B. CORDOVA, Worker-Appellee, v. TAOS SKI VALLEY, INC., Self-Insured, Employer-Appellant.
• Court: Court of Appeals of New Mexico

Page 334

910 P.2d 334

121 N.M. 258

Orlando B. CORDOVA, Worker-Appellee, v. TAOS SKI VALLEY, INC., Self-Insured, Employer-Appellant.

No. 15882.

Court of Appeals of New Mexico.

Dec. 11, 1995.

[121 N.M. 261] Daniel A. Sanchez, Santa Fe, for Worker-Appellee.

John A. Mitchell, Santa Fe, for Employer-Appellant.

OPINION

BUSTAMANTE, Judge.

The Opinion filed herein on November 2, 1995, is withdrawn and the following substituted therefor. Employer's Motion for Rehearing is denied.

This appeal involves the Workers' Compensation Act's (the Act) attorney fee section. See NMSA 1978, § 52-1-54 (Repl.Pamp.1991 & Cum.Supp.1995). Appellant Taos Ski Valley, Inc. (Employer) challenges (1) the amount of attorney fees awarded to Orlando Cordova (Worker) as excessive and unreasonable, and (2) the order requiring Employer to pay 100% of Worker's attorney fees as a violation of Section 52-1-54(J). We affirm the amount of the fee awarded, but reverse with regard to the apportionment.

SUMMARY OF PROCEEDINGS

Following a formal hearing, the Workers' Compensation Judge (WCJ) entered a compensation order determining that Worker suffered a 22% disability under the Act. The WCJ determined the present value of the award to Worker to be $19,479.88. The compensation order provided attorney fees would "be determined at a separate hearing upon [p]etition and [a]ffidavit submitted by counsel."

Worker's counsel filed a petition for attorney fees and tax totaling $11,408.06. Attached to the petition was a copy of an invoice addressed to Worker detailing 71.58 hours of attorney's time in the case. Worker's counsel did not submit a separate affidavit or other contemporaneous time records in support of the petition, but he did assert that his time was reasonably and necessarily expended. The petition also asserted that counsel's normal billing rate was $150 per hour and that the range of fees in the Taos area was $125 to $175 per hour. Worker's counsel requested that Worker's attorney fees be "payable in full by the Employer/Insurer pursuant to ... § 52-1-54(F)(4)."

Employer filed specific objections to the petition. The objections questioned in some detail the necessity and reasonableness of certain time entries on Worker's invoice, including time spent prior to the mediation conference (8.5 hours) and time spent preparing for litigation activities which did not occur, for example, depositions not taken and motions not filed (8.25 hours). In addition, Employer asserted, "The issues in this case were not numerous, novel or particularly unusual or complex, did not involve substantial discovery or medical evidence and were not hotly contested in various proceedings." Employer reminded the WCJ that setting a reasonable fee was within her discretion "subject to Section 52-1-54, NMSA 1978 and the decisions of the New Mexico Supreme Court and Court of Appeals and their constructions, interpretations and parameters." Finally, Employer reminded the WCJ of the Woodson guidelines for permissible percentage ranges, see Woodson v. Phillips Petroleum Co., 102 N.M. 333, 336-38, 695 P.2d 483, 486-88 (1985), and objected to a fee outside the range.

The WCJ conducted a hearing by telephone on the attorney fee petition. Neither party presented any witnesses or testimony and neither party introduced any evidence or admitted any further documents as exhibits. Worker's counsel argued from the time sheets previously submitted. Worker's counsel reiterated that his hourly rate of $150 was reasonable for Taos County, that he had been practicing law since 1979, had been counsel in more than 200 workers' compensation cases, and was currently managing a case load of approximately 123 cases, forty-eight to fifty-two of which were workers' compensation cases. Worker's counsel also stated that his client's case was complicated from a medical standpoint and required vigorous representation. He argued that attorney fees in workers' compensation cases in general should not be so low as to discourage competent attorneys from accepting such cases.

Worker's counsel read a portion of a March 11, 1993, letter sent from Employer and argued that the letter should be considered an offer of judgment under Section 52-1-54(F). Worker did not read the entire letter, nor did he offer or submit the letter as evidence. The letter, as read by Worker's counsel, provided in part:

[I]n order to conclude this matter promptly without additional lawyers' time and costs for the summary judgment motion, discovery, preparation, trial and an appeal, ... a settlement seems to be in everyone's best interests. Accordingly, to resolve this matter completely and finally, Taos Ski Valley will agree to continue to pay [Worker] $19.23 per week from October 18, 1993, for the balance of the period during which he remains unemployed up to the statutory maximum of a total of 500 weeks, and will reimburse him for a [sic] your reasonable attorney's fee.

Worker asserted he was entitled to take advantage of the fee-shifting provision of Section 52-1-54(F)(4) because the "offer of judgment" contained in the letter was less than the amount awarded by the WCJ.

Employer denied the letter constituted an offer of judgment as contemplated by Section 52-1-54(F)(4) and instead characterized the letter as merely a settlement proposal. The remainder of Employer's argument was essentially a repetition with some elaboration of the points raised in its written objections.

At the conclusion of the hearing, the WCJ entered an order approving attorney fees in the sum of $9000, and orally noted that the requested fee was reduced because Worker had not been totally successful. The form of order signed by the WCJ had been submitted by Worker with the petition for fees. The WCJ signed the form as submitted except for the amount of the fee. The order recited, "An attorney fee of $9000 for 71.58 hours is reasonable applying the Workers' Compensation Act and the Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979) factors." The WCJ orally noted that all of Worker's benefits had been placed in jeopardy by the litigation and that the case had been difficult because the facts and medical records involved were complicated.

As part of the oral ruling, the WCJ quoted the following portion of Section 52-1-54(F)(1): "If the compensation order finally obtained by the party is not more favorable than the offer, that party must pay the costs incurred by the opposing party after the making of the offer." The WCJ then determined that the Employer would be required to pay 100% of Worker's attorney fees. Neither party requested permission to submit requested findings of fact and conclusions of law, and neither asked the WCJ to enter findings or conclusions beyond her oral ruling and the order entered.

ISSUE I: Amount of Attorney Fees Awarded

Employer raises a number of contentions regarding the amount of attorney fees awarded to Worker. By and large, Employer's contentions here are the same as the objections it filed to the original petition. The remainder of Employer's arguments are aimed at procedural irregularities and the failure of the WCJ to be more thorough and specific in reaching and explaining the ruling. For example, Employer asserts the WCJ erred in not entering explicit findings covering the factors listed in Section 52-1-54(E) and Fryar v. Johnsen, 93 N.M. 485, 488, 601 P.2d 718, 721 (1979). Second, Employer argues that the fee award is excessive because the case was relatively simple and was not hotly litigated. Third, Employer argues that the fee percentage awarded based upon the present value of benefits obtained by Worker, 46.20%, substantially exceeds the percentage of fee awards in ordinary workers' compensation cases. Finally, Employer asserts the WCJ erred because she accepted Worker's counsel's fees without a supporting affidavit, time sheets, contemporaneous record, or other substantiation of the time claimed.

A. Preservation

Worker urges us to turn a deaf ear to the entirety of Employer's challenge to the amount of the fee award because Employer failed to request findings of fact and conclusions of law detailing its position to the WCJ. Of course, the general rule is that a party's failure to request findings and conclusions on specific factors or issues it wishes to be considered results in the waiver of any argument it may wish to raise on appeal as to those issues. Apodaca v. Payroll Express, Inc., 116 N.M. 816, 825, 867 P.2d 1198, 1207 (Ct.App.1993); Trujillo v. Hilton of Santa Fe, 115 N.M. 398, 404, 851 P.2d 1065, 1071 (Ct.App.), rev'd on other grounds, 115 N.M. 397, 851 P.2d 1064 (1993), and cert. denied, 117 N.M. 744, 877 P.2d 44 (1994).

We do not agree with Worker that Employer has waived its entire argument. However, we do agree that Employer should not now be allowed to fault the WCJ for any procedural irregularities or for lack of specificity in the WCJ's ruling. A party who has contributed, at least in part, to perceived shortcomings in a trial court's ruling should hardly be heard to complain about those shortcomings on appeal. Cf. Harper v. Harper, 54 N.M. 194, 195, 217 P.2d 857, 858 (1950) ("Counsel may not lead the trial court into error and then complain of it.") We hold that Employer has waived all arguments as to the form of the WCJ's ruling, including any failure to make explicit findings as to certain Section 52-1-54(E) and Fryar factors in the WCJ's oral ruling. We appreciate that more extensive findings and conclusions referring to the statutory and Fryar factors and explaining the court's decision-making process are generally preferable for purposes of appellate review. However, there is no requirement that every order setting attorney fees under the Act be supported by specific findings referring to all of the factors which may ultimately impinge on the fee award calculation. Sanchez v. Siemens Transmission Sys., 112 N.M. 236, 245, 814 P.2d 104, 113 (Ct.App.), rev'd on other grounds, 112...