Genuine Parts Co. v. Garcia

• Decision Date: 25 July 1978
• Docket Number: No. 11883,11883
• Citation: 582 P.2d 1270,1978 NMSC 59,92 N.M. 57
• Parties: GENUINE PARTS COMPANY and Sentry Insurance Company, Petitioners, v. Mary Ann GARCIA, Respondent.
• Court: New Mexico Supreme Court

Page 1270

582 P.2d 1270

92 N.M. 57

GENUINE PARTS COMPANY and Sentry Insurance Company, Petitioners, v. Mary Ann GARCIA, Respondent.

No. 11883.

Supreme Court of New Mexico.

July 25, 1978.

Klecan & Roach, John A. Klecan, Linda G. Kluger, Albuquerque, for petitioners

Michael Bustamante, Albuquerque, for respondent.

OPINION

McMANUS, Chief Justice.

This is a workmen's compensation action originally commenced in Bernalillo County by Mary Ann Garcia (plaintiff) against her employer, Genuine Parts Company and its insurer Sentry Insurance Company (defendants). The trial court found that the plaintiff was permanently disabled and awarded plaintiff maximum benefits under the Workmen's Compensation Act, § 59-10-1, Et seq., N.M.S.A.1953 (Repl.1974 & Supp.1975). The court also awarded past and future medical and hospitalization expenses, attorney fees and costs.

Defendants appealed to the Court of Appeals which affirmed the judgment of the trial court. The Court of Appeals awarded $3,000 in attorney fees for services on appeal. The defendants had requested oral argument before the Court of Appeals but such request was denied. Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (1977) Cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977).

Thereafter, defendants petitioned this Court for a writ of mandamus directing the Court of Appeals to grant the defendants oral argument and to withdraw the mandate of the Court of Appeals. This Court denied the petition. State ex rel. Genuine Parts Company v. Court of Appeals of the State of New Mexico, No. 11,333 (N.M. Mar. 23, 1977). Defendants sought review of the judgment of this Court in the Supreme Court of the United States. The Supreme Court declined to hear the action for want of jurisdiction and denied certiorari. Genuine Parts Company v. Court of Appeals of New Mexico, 434 U.S. 806, 98 S.Ct. 36, 54 L.Ed.2d 63 (1977).

Following the decision of the Court of Appeals, a mandate was issued from that court to the District Court of Bernalillo County. Attached to the mandate was the opinion of the court. The mandate stated that "this decision being now final, the cause is remanded to you for any further proceedings consistent with said decision." After the mandate and opinion of the Court of Appeals were filed in the district court, plaintiff filed a motion for entry of a judgment on the mandate of the Court of Appeals. Notice of hearing was served on defendants, and thereafter, on March 24, 1977, a judgment was entered on the mandate. The judgment made four findings: (1) a summary of the initial judgment entered on March 11, 1976; (2) the appeal to the Court of Appeals; (3) the denial of defendants' petition for writ of certiorari to this Court; and (4) the award by the Court of Appeals of attorney fees in the amount of $3,000 for services rendered on the appeal.

Following the findings, the judgment on the mandate read:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Judgment hereinbefore entered on March 11, 1976 should be, and the same hereby is, Withdrawn and the following Judgment is substituted in its place : (Emphasis added.)

The recitation of the substituted judgment followed. The initial judgment of March 11, 1976 was copied verbatim in the judgment on mandate with the following additions thereto:

(1) That pursuant to statute, defendants were ordered to pay plaintiff interest on the original lump sum award at the rate of 6% Per annum from the date of the original judgment to the date of payment.

(2) That the defendants were ordered to pay plaintiff's attorneys the sum of $6,500.00 for their services rendered in the prosecution of this action. (The trial court had awarded the sum of $3,500 for services at the trial court level and the Court of Appeals awarded $3,000 for services on appeal.)

(3) That defendants were ordered to pay interest on the original $3,500.00 of attorney fees awarded plaintiff at the rate of 6% Per annum from the date of the entry of the original judgment to the date of payment.

Defendants filed a second appeal from the judgment on the mandate. The Court of Appeals determined that any review of the trial court's proceedings was limited to the question as to whether the second judgment conformed to its mandate. The Court of Appeals affirmed the trial court's judgment but directed the trial court to award attorney fees to the plaintiff rather than to the plaintiff's attorney. The Court of Appeals held that the trial court properly awarded interest on the original award of attorney fees on the basis that attorney fees are included within the compensation award and are not to be taxed as costs. The court further awarded the amount of $4,500 to plaintiff for attorney fees for the second appeal and the appeal to the United States Supreme Court. Damages were assessed against the defendants in the amount of ten per cent (10%) of the judgment on the finding that the second appeal was frivolous. Garcia v. Genuine Parts Company, No. 3000 (N.M.Ct.App. Feb. 14, 1978). Following this decision defendants petitioned this Court for a writ of certiorari which we granted. We affirm in part and reverse in part.

Defendants raise numerous issues on appeal which will be treated separately. Initially, defendants argue that they were entitled to a full review of the original judgment on the second appeal since the judgment on the mandate rendered by the trial court provided that the judgment "entered on March 11, 1976 should be, and the same hereby is withdrawn and the following judgment is substituted in its place." Defendants argue that since the earlier judgment was "withdrawn and substituted" the first judgment entry was entirely abandoned and the trial court could not consider that judgment as effective for any purpose. Appellant analogizes this case to a judgment which is set aside or vacated. The Court of Appeals held that the trial court's jurisdiction upon receipt of the mandate was only to conform to the mandate and that the district court merely modified its original judgment. We agree.

Upon review of a second appeal the only issue is whether the trial court followed the appellate mandate. This limited review has been consistently followed by this Court. Sanchez v. Torres, 38 N.M. 556, 37 P.2d 805 (1934); State v. Halsey, 34 N.M. 223, 279 P. 945 (1929); State ex rel. Garcia v. Brd. Com'rs., 22 N.M. 562, 166 P. 906 (1917); Davisson v. Bank, 16 N.M. 689, 120 P. 304 (1911).

The district court has only such jurisdiction as the opinion and mandate of the appellate court specifies. Bank of New Mexico v. Earl Rice Construction Co., 79 N.M. 115, 440 P.2d 790 (1968). The only necessary action of the trial court is to comply with the mandate of the appellate court. In this action the original judgment was affirmed and continued to be effective. The judgment on the mandate modified the initial judgment to conform to the mandate. Therefore the Court of Appeals properly refused to review all proceedings before the trial court.

The defendants challenge interest awarded from the date of the original judgment. Since the original judgment remained effective and was merely modified on appeal, interest awarded from the date of the original judgment is proper. Bank of New Mexico, supra. Plaintiff became entitled to interest as of March 11, 1976, the day the final judgment on disability was determined. It would be inequitable to impose costs associated with the use of money on her rather than on the defendants who had use of the money during the pendency of these appeals. Mascuilli v. United States, 383 F.Supp. 50 (E.D.Pa.1974) Aff'd., 519 F.2d 1398 (3d Cir. 1975); Morris v. Baker Auto Parts, 57 Mich.App. 65, 225 N.W.2d 179 (1974); See generally, Annot., 4 A.L.R.3d 1221 (1965).

Appellant argues that the time period between the original judgment and the judgment on mandate of one year provides an award for a period of time not litigated.

The basis for this argument is that the March 11, 1976 judgment was withdrawn and the judgment on the mandate provided for permanent disability from the date of the original judgment. We have determined that the trial court did not vacate the judgment but modified the judgment.

The initial and subsequent judgments both provided for payment of the maximum benefits ($65 weekly) under the Workmen's Compensation Act from the date of injury in 1973 for a period not to exceed 500 weeks. The subsequent judgment provided for lump-sum payment from 1973 to the date of entry of judgment on the mandate. The trial court had found total and permanent disability and awarded payments accordingly.

The defendants argue that they have been foreclosed from applying for a diminution of future benefits every six months under § 59-10-25, N.M.S.A. 1953 (Repl.1974). The record does not reflect a request for a stay of judgment pending appeal. The original judgment continued to be operative. Under § 59-10-25 a person bound by a judgment awarding compensation may apply for a diminution of benefits. Defendants were bound by this judgment and were not precluded from applying for a reduction of future benefits while an appeal was pending. Turrieta v. Creamland Quality Chekd Dairies, Inc., 77 N.M. 192, 420 P.2d 776 (1966).

The attorney fees awarded by the trial court and the Court of Appeals as a result of the first appeal were awarded directly to plaintiff's counsel in the judgment on the mandate. Defendants argue that the entire judgment is void due to this error. It is true that attorney fees are to be awarded to the plaintiff and not to counsel for the plaintiff.

There is authority that this error will void a judgment when plaintiff's counsel obtains a direct award of attorney fees in a divorce action. Lloyd v. Lloyd, 60 N.M. 441, 292 P.2d 121 (1956). However, this Court has held that in a workmen's compensation action an error in awarding attorney fees directly to plaintiff's counsel can be corrected on remand and a corrected judgment entered. Feldhut...