Johnsen v. Fryar, No. 4477

• Docket Nº: No. 4477
• Citation: 1980 NMCA 143, 630 P.2d 275, 96 N.M. 323
• Case Date: October 02, 1980
• Court: Court of Appeals of New Mexico

Page 275

630 P.2d 275 96 N.M. 323 Fred JOHNSEN, Plaintiff-Appellee,
v.
Danny L. FRYAR, d/b/a Fryar Logging, Defendant-Appellant. No. 4477. Court of Appeals of New Mexico. Oct. 2, 1980.

[96 NM 324]

Page 276

J. E. Casados, Gallagher, Casados & Martin, Albuquerque, for defendant-appellant.

Turner W. Branch, Branch, Perkal & Associates, P. A., Albuquerque, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

In the first appeal, Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979), the Supreme Court set forth the factors to be considered in awarding an attorney fee to plaintiff in a workmen's compensation case and remanded "to the trial court for consideration of the factors outlined ... and for making findings of fact and conclusions of law on the issue of attorney fees awarded at trial." The trial court again awarded an attorney fee of $11,435.75. Defendant appeals. The issues group into: (1) procedural matters; (2) evidence presented to the trial court after remand; (3) sufficiency of the evidence; and (4) disposition of the appeal.

1. Procedural Matters

(a) The Evidence Requirement

In remanding for findings and conclusions, Fryar v. Johnsen, supra, stated: "(W)e reiterate the need for evidentiary support for fees awarded by a trial court." This is neither a new nor unusual requirement.

Bank of Dallas v. Tuttle, 5 N.M. 427, 23 P. 241, 7 L.R.A. 445 (1890) stated that when the amount of the fee was not fixed, proof was required to establish the reasonableness of the fee. Where a contract fixes the amount of the fee, the fee, nevertheless, is to be reasonable, not exceeding the amount agreed upon. Budagher v. Sunnyland Enterprises, Inc., 90 N.M. 365, 563 P.2d 1158 (1977). On the basis that the judge was presumed to know something as to the value of an attorney's services, Pearce v. Albright, 12 N.M. 202, 76 P. 286 (1904) stated that the value could be found by the court in the absence of evidence. Pearce, however, was limited to "services ... performed under the eye of the court" in Jamison v. Shelton, 35 N.M. 34, 289 P. 593 (1930). Van Orman v. Nelson, 78 N.M. 11, 427 P.2d 896 (1967) states: "It is fundamental that the attorney has the burden of proving the [96 NM 325]

Page 277

value of services rendered by him and for which he claims payment or credit." In determining the value of services, the court could consider the interest of the attorney in weighing the attorney's testimony and "could likewise apply the court's own experience and knowledge of the character of services involved." Van Orman, supra.

Jamison, supra and Van Orman, supra, are not inconsistent; the judge's personal knowledge as to the services rendered may be considered. This does not weaken the requirements that the trial court must make findings concerning the fee awarded and that there must be evidentiary support for the findings made.

(b) Whether Evidence Could be Taken at the Hearing After Remand

Fryar v. Johnsen, supra, reviewed the evidence in the trial record and held that the evidence did not support the fee awarded. Defendant contends that at the hearing after remand plaintiff presented no additional evidence. Plaintiff responds that the trial court had no jurisdiction to hold an evidentiary hearing after remand.

The trial court had only such jurisdiction as the opinion and mandate specified. Genuine Parts Co. v. Garcia, 92 N.M. 57, 582 P.2d 1270 (1978). The order of the Supreme Court returning the record to this Court stated that the cause had been remanded "to the District Court for proceedings on the issue of attorney fees ...." The mandate of this Court remanded for proceedings consistent with the Supreme Court's decision. Plaintiff is correct in asserting that neither the Supreme Court order nor our mandate recited that the trial court, upon remand, had jurisdiction to take evidence on the question of the attorney fee. We must, therefore, look to the Supreme Court's opinion. Genuine Parts Co., supra.

The Supreme Court opinion does not specify that the trial court, upon remand, could take evidence on the question of the fee to be awarded. The opinion did, however, hold that the evidence in the record was insufficient and outlined the factors to be considered; it "reiterated" that there must be evidentiary support for the fee awarded. The Supreme Court remanded for consideration of the factors outlined and for entry of findings and conclusions. The meaning of the Supreme Court opinion is obscure, and must be construed to determine the intention of the Supreme Court. Hollingsworth v. Hicks, 57 N.M. 336, 258 P.2d 724 (1953).

We hold that the Supreme Court intended to, and did, confer jurisdiction upon the trial court to take evidence on the factors which the Supreme Court directed the trial court to consider. We find this intent in the holding that the evidence in the record did not support the fee award which had been made, the emphasis that there must be evidence to support the findings to be made, and the direction to consider the factors outlined by the Supreme Court in making findings. Inasmuch as the then existing evidence was held to be insufficient, it would not have been made sufficient by relating that evidence to the factors to be considered. If the trial court lacked jurisdiction to take evidence at the hearing on remand, then nothing has changed and the evidence held to be insufficient by the Supreme Court is still insufficient to support the fee awarded.

(c) Identification of Evidence Presented at the Hearing on Remand

Plaintiff submitted the affidavit of attorney Richard Ransom at the hearing on remand. Defendant contends this affidavit was improperly admitted. At this point we do not consider whether the admission of the affidavit was proper. Our point, simply, is that once the affidavit was submitted and admitted, it became evidence.

Plaintiff also requested the trial court to take judicial notice of three items and the trial court did so. At this point we do not consider whether judicial notice was proper and we do not consider the effect of the judicial notice taken. We note, simply, that an item judicially noticed is evidence.

Evidence Rule 201 provides for judicial notice of adjudicative facts. Our rules [96 NM 326]

Page 278

were based on the proposed rules of evidence for United States courts. The Advisory Committee's Note to the proposed federal rules states, see 1 Weinstein's Evidence, page 201-4, that "(a)djudicative facts are simply the facts of the particular case." The Note continues:

The usual method of establishing adjudicative facts is through the introduction of evidence, ordinarily consisting of the testimony of witnesses. If particular facts are outside the area of reasonable controversy, this process is dispensed with as unnecessary. A high degree of indisputability is the essential prerequisite.

We consider this evidence in the second issue.

(d) The Trial Court's Findings

Plaintiff's requests for judicial notice were made known to the trial court by including them within plaintiff's requested findings and conclusions, and by reading the requested findings and conclusions to the trial court. During argument of counsel as to the sufficiency of the evidence to support an award of an attorney fee, defendant asked for an opportunity to submit requested findings and conclusions on behalf of defendant. After the arguments were concluded, the trial court remarked on the custom to award the fee on a percentage basis. The following then occurred:

The Court will also adopt the Requested Findings and Conclusions submitted by the Plaintiff as the Court's own Findings and Conclusions.

MR. CASADOS: May we have the opportunity to submit ... Findings and Conclusions?

THE COURT: Certainly.

Thereafter, plaintiff submitted his written requested findings and conclusions in open court.

The foregoing shows that after plaintiff's requested findings were read to the trial court, before plaintiff's requests were submitted in writing, see R.Civ.Proc. 52(B)(1)(f), and before defendant had opportunity to submit requested findings, the trial court announced that it would adopt plaintiff's requests.

The document subsequently entered, entitled "Court's Findings of Fact and Conclusions of Law", is almost a verbatim copy of plaintiff's requested findings and conclusions.

In Mora v. Martinez, 80 N.M. 88, 451 P.2d 992 (1969) the trial court adopted the requested findings and conclusions of plaintiff. In remanding for proper findings and conclusions, the Supreme Court stated it would "insist on the exercise of an independent judgment on the part of the trial judge in making his own findings of fact rather than adopting those of one of the parties." We do not believe that the failure of the Supreme Court to refer to this requirement in United Nuclear Corp. v. General Atomic Co., 93 N.M. 105, 597 P.2d 290 (1979) indicates that the requirement has been abandoned.

Jesko v. Stauffer Chemical Company, 89 N.M. 786, 558 P.2d 55 (Ct.App.1976) recognized that findings of the trial court "in the language submitted by the parties does not show an absence of independent judgment by the trial court." Here, there is more than findings in the language used in plaintiff's requested findings. The trial court announced it would adopt plaintiff's requested findings after hearing them read, but before either party had submitted written requested findings. The findings of the court show that this announcement was carried out.

There was no independent judgment of the trial court; our discussion in the third issue of Factors 1, 2 and 5 illustrates this absence of independent judgment. The findings of the trial court not being the independent judgment of the trial court, the fee award based on those findings cannot stand.

(e) In arguing the insufficiency of the evidence to support the fee awarded, defendant's brief-in-chief refers to evidence in the record of the first appeal. Surprisingly, plaintiff argues that this...