Garmann v. E.R. Fegert Company , 234 Mont. 466 ( 1988 )

No. 88-250
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
LAVERN GARMANN ,
Claimant and Appellant,
-vs-
E.R. FEGERT CO.,
Employer,
and
EMPTJOYERS INSURANCE COMPANY OF WAUSAU,
Oefendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lloyd E. Hartford, Billings, Montana
For Respondent:
L. Randall Bishop; Bishop & Jarussi, Billings, Montana
Submitted on Briefs: Sept. 1, 1988
Decided: November 3, 1988
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Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Claimant and appellant, Lavern Garmann, appeals the
denial to reopen the case for reconsideration of attorney
fees by the Workers' Compensation Court, Honorable Timothy
Reardon presiding.
We decide that the issue to be determined is whether
appellant's failure to appeal in a timely fashion prohibits
the Supreme Court from hearing the case for lack of
jurisdiction.
Lavern Garmann suffered multiple injuries while working
for E. R. Fegert Co., in Zortman, Montana. The injuries
sustained by Garmann included fractures of the pelvis, ribs,
lumbar spine and nerve damage to the upper right extremities.
Fegert's insurer, Employer's Insurance Company of Wausau,
paid temporary total disability benefits to the claimant from
the date of the injury, March 21, 1981, through December 6 ,
1982. Permanent partial disability benefits were paid from
December 7, 1982, through April 2 0 , 1983. When Wausau
learned that Garmann has returned to work as a front-end
alignment mechanic, it suspended benefits. Benefit payments
were reinstated on January 27, 1984, when the insurer re-
ceived notice that claimant was not physically able to con-
tinue work.
From the trial of February 4, 1985, Judge Reardon's
findings of fact, conclusions of law and judgment were filed
on April 22, 1986. Judge Reardon stated that claimant was
entitled to reasonable attorney fees and costs pursuant to
S 39-71-612, MCA. The attorney fees award was to be calcu-
lated as set forth in 39-71-614, MCA (1985). The judgment
also stated that the parties had twenty days in which to
request a hearing from the findings of fact, conclusions of
law and judgment. On May 12, 1986, the claimant filed
objections to the Workers' Compensation Court's findings of
fact, conclusions of law, and judgment and requested a new
hearing. The request was denied on July 1, 1986.
On July 22, 1986, a hearing to consider reasonable
attorney fees was held. At the hearing, the claimant's
attorney alleged that $225 was his normal billing rate and
that he had spent 160 hours on the case, totaling $36,000.
Defendant contended that a more reasonable billing rate was
$85 per hour. In an order filed on July 30, 1986, the court
settled on $85 per hour multiplied by 160 hours and awarded
$13,600 to the claimant's attorney. Claimant also received
costs equaling $1,628.25.
A Satisfaction of Order Awarding Attorney Fees was
filed on August 20, 1986, signed by Garmann's attorney.
The case was appealed to the Supreme Court on August
20, 1986, and decided on April 21, 1987. The issues were:
(1) whether the claimant was entitled to a lump sum in bene-
fits, and (2) whether a 20 percent penalty should be imposed
against the insurer for terminating the claimant's benefits.
However, no issue of attorney fees was raised.
Nearly two years after the original judgment by the
Workers' Compensation Court and twenty months after the
hearing to consider reasonable attorney fees, claimant peti-
tioned to reopen the case for reconsideration of awarded
attorney fees to which defendant objected, and on April 13,
1988, was denied by the Workers' Compensation Court. The
grounds for denying reopening the case was that the claimant
was barred from petitioning by res judicata. After the July
30, 1986, order awarding attorney fees, claimant failed t o.
file for a new trial or hearing to discuss attorney fees
within the twenty days required by Rule 2.52.344 of the
Workers' Compensation Court Rules. Moreover, claimant failed
to appeal the July 30, 1986, order to the Supreme Court
within the thirty days required by Rule 5, M.R.App.P.
Notice of appeal was filed on May 10, 1988.
The sole issue is whether the claimant is barred from
appealing because he failed to file a timely notice of appeal
with this Court.
Claimant's attorney had two opportunities to attack the
Workers' Compensation Court's decision concerning attorney
fees. First, once the findings of fact, conclusions of law,
and judgment were issued, according to Rule 2.52.344(1) of
the Workers' Compensation Court Rules (1983):
A party to the dispute may request a new
trial or a hearing to determine the
reasonableness of attorney fees before
the Court within twenty (20) days after
the order or judgment is filed and, if
any party submits a request, the order
or judgment issued by the Court shall
not be considered a final decision of
the Court for appeal purposes.
The judgment of the Workers' Compensation Court was filed
April 22, 1986. Claimant petitioned the court for rehearing
on May 12, 1986, within the required twenty days. This
motion tolled the running of the statute until the court
decided whether to grant a rehearing. On July 1, 1986, Judge
Reardon denied the request for a new hearing. On July 22,
1986, a hearing was held to decide reasonable attorney fees
and the order awarding attorney fees was filed on July 30,
1986.
Second, Rule 5(a) (11, M.R.App.P. I states:
In civil cases the notice of appeal
required ... shall be filed with the
clerk of the district court within 30
days from the date of the entry of the
judgment or order appealed from, except
that in cases where service of notice of
entry of judgment is required by Rule
77 (d) of the Montana Rules of Civil
Procedure the time shall be 30 days from
the service of notice of entry of
judgment; .. .
Claimant's attorney did not file for appeal concerning
attorney fees within the requisite thirty days. We hold that
we do not have jurisdiction to determine the issues brought
on appeal by the appellant. Once the judgment was submitted
by the court, claimant had thirty days in which t o protest
.
the final decision regarding attorney fees.
There are a series of exceptions which are recognized
in Rule 5, M.R.App.P., which suspend the time limitation for
an appeal. As discussed in Rule 5 (a)(4) they are as folloclrs:
(i) judgment notwithstanding the verdict under Rule 50(b),
M.R.Civ.P.; (ii) Rule 52 (b), M.R.Civ.P., motion to amend the
decision or make additional findings; (iii) Rule 59,
M.R.Civ.P., motion to alter or amend the judgment; or (iv)
Rule 59, M.R.Civ.P., motion for new trial. Where these excep-
tions apply, the time for appeal for all parties runs from
the entry of the order denying a new trial or granting or
denying any other such motion. Rule 5 (a)(5) also allows the
suspension of the running of the time for appeal in cases
where excusable neglect or good cause is shown.
The appellant in this case did not move for reconsider-
ation of attorney fees in the Workers' Compensation Court or
the Supreme Court until nearly two years after the court's
decision. Neither did he move for any amendments of findings
or new trial. Nor was there any showing of excusable neglect
or good cause.
It is clear that the Workers' Compensation Court is
governed by the Montana Administrative Procedure Act by
direct mandate of 5 2-4-623 ( 5 ) , MCA, which states: "Parties
shall be notified either personally or by mail of any
decision or order." In Dumont v. Wickens Bros. Construction
Co. (1979), 183 Mont. 190, 200, 598 P.2d 1099, 1105, we hel-d
that a party appealing from a decision of the Workers' Com-
pensation Court is entitled to the benefit of the provision
of Rule 5, M.R.App.P., which states:
. . . except that in cases where service
of notice of entry of judgment is re-
quired by Rule 77(d) of the Montana
Rules of Civil Procedure the time shall
be 30 days from the service of notice of
entry of judgment.
In McMahon v. Anaconda Co. (Mont. 1981), 38 St.Rep. 1233
(consolidated for purpose of appeal with a second appeal
involving the same parties and reported in the Pacific Re-
porter as (Mont. 1984), 678 P.2d 661), we stated that there
is no specific filing date of workers1 compensation decisions
in the Workers' Compensation Court since the court has no
judgment book. All decisions are sent to the Workers' Com-
pensation Division. Rule 2.52.344, Workers' Compensation
Court Rules.
In the case on appeal, the claimant had twenty days
after service of the order of July 30, 1986, granting attor-
ney fees, within which to appeal to the Workers1 Compensation
Court for a rehearing. In addition, claimant had thirty days
within which to appeal to the Supreme Court from the same
order. Claimant's attorney failed to appeal to the Workers'
Compensation Court until February 17, 1988, and the Supreme
Court until May 10, 1988.
Failure to file timely notice of appeal from a Workers1
Compensation Court proceeding prevents the Supreme Court from
obtaining jurisdiction over the appeal. Rule 4 (a),
M.R.App.P.; Dumont v. Wickens, 183 Mont. at 198-199, 598 P.2d
at. L1.03-1104; McDonald v. McDonald (1979), 183 Mont. 312,
313, 599 P.2d 356, 357; Price v. Zunchich (1980), 188 Mont.
230, 234, 612 P.2d 1296, 1298.
Affirmed.
We concur: