No. 8 9 - 5 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
KIMBERLY A. MARTINEZ,
Claimant and Respondent, r cr
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-vs-
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MONTANA POWER COMPANY,
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Employer/Defendant and Appellant. ;-
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert T. O'Leary and Patrick Fleming, Montana
Power Co., Butte, Montana
For Respondent:
Tom L. Lewis and John Seidlitz, Jr., Great Falls,
Montana
Submitted on Briefs: Aug. 17, 1 9 8 9
Decided: September 2 1 , 1989
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Filed: *,
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d Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
This appeal involves an award of attorneys1 fees in a
workers' compensation case. Defendant Montana Power Company
(MPC) appeals the judgement of the Workers1 Compensation
Court awarding claimant Kimberly R. Martinez attorneys' fees
for the wrongful termination of her temporary total
disability benefits and conversion to permanent partial
disability benefits. MPC failed to make a timely objection
or rehearing request, and after filing a motion to reconsider
the award still pending before the Workers1 Compensation
Court, now appeals the judgment to this Court. We affirm.
Appellant MPC raises a sole issue on appeal: Did the
Workers1 Compensation Court err in awarding attorneys1 fees
computed on the basis of 114.71 weeks of temporary total
disability when MPC had paid permanent partial disability
benefits during the disputed period?
Respondent Martinez raises a separate issue on appeal:
Did MPC waive its right to appeal the order awarding
attorneys1 fees by failing to request an evidentiary hearing
on attorneys' fees before the Workers1 Compensation Court?
Claimant Martinez was injured on March 25, 1985 in the
course and scope of her employment with MPC. As a result of
her injury, Martinez received temporary total disability
benefits paid biweekly by MPC, a plan I self-insurer. On
August 20, 1986, MPC unilaterally determined that Martinez
was capable of less strenuous employment and unilaterally
reduced her temporary total benefits of $286 per week to
permanent partial disability benefits of $143 per week. MPC
reduced these benefits without giving Martinez the benefit of
proper written notice as required by § 39-71-609, MCA, and
with no medical evidence that Martinez had reached maximum
healing or was capable of gainful employment. Martinez filed
a petition for hearing with the Workers' Compensation Court
on June 10, 1987, alleging MPC had wrongfully terminated her
biweekly temporary total disability benefits. The case was
tried on October 15, 1987, and the Workers' Compensation
Co,urt entered its Findings of Fact, Conclusions of Law, and
Judgment on October 31, 1988. The court found that the
claimant had not reached maximum healing and was entitled to
receive temporary total disability benefits retroactive to
August 20, 1986, to continue for so long as she remained
temporarily totally disabled. The court also ordered MPC to
pay Martinez all contested medical, hospital, and related
expenses incurred due to her injury and assessed MPC with a
twenty percent (20%) penalty, in addition to reasonable costs
and attorneys' fees pursuant to § 39-71-611 MCA.
The judgment ordered Martinez' counsel to submit within
twenty (20) days a proposed order and supporting
documentation specifying the amount of attorneys' fees
claimed. The court's Judgment provided MPC with thirty (30)
days to request an evidentiary hearing if MPC contested the
reasonableness of the proposed attorneys' fees, such motion
was to be accompanied by an affidavit and a statement of the
grounds by which MPC asserted that the award was
unreasonable. Martinez' attorney submitted the proposed
order and supporting statement on November 18, 1988, serving
copies of both on MPC. The statement of attorneys' fees
noted that the attorneys' fee agreement between claimant and
counsel provided for a contingent fee of thirty-three percent
(33%) of the amount of compensation payments claimant
received by order of the Workers' Compensation Court.
The temporary total disability benefits Martinez was
awarded were computed by multiplying Martinez' temporary
total disability rate of $286 by 114.71 weeks, the period of
retroactive temporary total disability, for a total of
$32,807.06 retroactive benefits. A twenty percent (20%)
penalty was assessed to this sum resulting in a total award
of $39,368.47. The attorneys' fee awarded was calculated by
multiplying this total by the contingent fee percentage of
thirty-three percent (33%), resulting in an attorneys ' fees
award of $12,991.60. The court's Judgment of October 31 did
not specifically provide MPC with a credit for the permanent
partial disability benefits of $143 per week MPC paid
biweekly during the 114.71 weeks in question. Likewise, the
statement of attorneys' fees disregarded these payments made
by MPC.
MPC did not request an evidentiary hearing to contest
the attorneys' fee award within the thirty (30) day period as
provided for in the court's Judgment of October 31, 1988.
Nor did MPC object at any time to the amount of the
retroactive benefits awarded, the penalty assessed, or the
proposed order awarding attorneys' fees and costs. The
Worker's Compensation Court awarded Martinez attorneys' fees
of $12,991.60 on January 3, 1989 in accordance with the
Proposed Order. On January 24, 1989, fifty-five (55) days
after the deadline to request an evidentiary hearing and
twenty-two (22) days after entry of the Order awarding
attorneys' fees, MPC filed a Request for Reconsideration of
the Order awarding attorneys' fees and costs. No affidavit
was filed stating the grounds on which MPC contested the
award and no evidentiary hearing was requested as required by
the court's October 31 Judgment. Because the time for appeal
was nearly exhausted, MPC filed its Notice of Appeal on
January 31, 1989, before a hearing was held on its Request
for Reconsideration. MPC has made a cash payment to Martinez
of $16,403.53, the equivalent of $143 per week multiplied by
114.71 weeks, apparently crediting itself for the permanent
partial disability benefits already paid during the period in
question. The time for appeal of the compensation award
having expired, MPC has not appealed the calculation of the
underlying compensation award nor the penalty assessed to it.
Only the issue of the attorneys' fee computation is now
before this Court.
First, we acknowledge that counsel for MPC presents a
strong argument that the amo,unt of attorneys' fees awarded
was calculated improperly. MPC's argument also indicates
that there may be some error in the underlying compensation
award, however, that issue is not before this Court as MPC
did not appeal the original Judgment, the thirty day limit to
file a Notice of Appeal having expired with respect to the
that Judgment. Second, although MPC makes a strong argument
that the attorneys' fee award is incorrect, we note that
MPC failed to request an evidentiary hearing as specified or
raise a timely objection to the proposed award at any time
during the course of the proceedings below.
It is a long established principle that only the issues
properly raised and protected at the trial court level will
be reviewed on appeal. Greger v. United Presstress, Inc.
(1979), 180 Mont. 348, 590 P.2d 1121. Furthermore, this
Court has held that issues not raised at the trial level
before the Workers' Compensation Court will not be reviewed
on appeal. McDanold v. B.N. Transport Inc. (Mont. 1981), 634
P.2d 175, 38 St.Rep. 1466. We will not hold a lower court in
error for a procedure in which the appellant acquiesced at
trial and to which he had not timely objected. In Re
Marriage of West (Mont. 1988), 758 P.2d 282, 45 St.Rep. 1281.
Because MPC failed to either timely object or request an
evidentiary hearing contesting the Proposed Order awarding
attorneys' fees, we are precluded from reviewing the
correctness of the computation of that award.
MPC contends that they are not barred from appeal
because the Workers' Compensation Court abused its discretion
in awarding the attorneys' fees without crediting MPC for
payments already made. MPC relies on two cases,
Simkins-Hallin Lumber Co. v. Simonson (1984), 214 Mont. 36,
692 P.2d 424, and Wagner v. Empire Development Corp. (Mont.
1987), 743 P.2d 586, 44 St.Rep. 1606, in contending that this
Court may always review an award of attorneys' fees by the
lower court to determine whether or not there has been an
abuse of discretion. This is an incorrect statement of the
law. This Court will use the abuse of discretion standard
when reviewing an award of attorneys' fees, Simkins-Hallin,
692 P.2d at 427, Wagner, 743 P.2d at 587, provided that the
usual requirements of preserving the issue at the trial court
level are met before the issue of attorneys' fees is raised
on appeal.
MPC also contends that this Court may review the award
of attorneys' fees regardless of their failure to object
under the "plain error" doctrine. Under this doctrine, a
trial or appellate court may take notice of plain errors
affecting substantial rights although they were not brought
to the Court's attention. Halldorson v. Halldorson (1977),
175 Mont. 170, 573 P.2d 169. The doctrine is used most
frequently in criminal cases, where the fundamental rights of
life and liberty are often at stake. It is used in civil
litigation only in exceptional cases. Zimmerman v. Bozeman
Products Assoc. (Mont. 1988), 759 P.2d 166, 45 St.Rep. 1387,
Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 1204.
Furthermore, the plain error exception will not be applied
where failure or refusal to raise an issue in trial court is
conscious and intentional on the part of trial counsel.
Halldorson, 175 Mont. at 174, 573 P.2d at 172. In its
request for reconsideration, MPC's counsel stated:
Attempts to resolve this particular issue (attorney
fees) informally with Claimant's counsel have been
unsuccessful. It is, therefore, necessary to
request a reconsideration of the Claimant's
attorney fee issue. ..
If MPC did attempt to settle the fee dispute with Martinez'
counsel then MPC was aware of the alleged error and
consciously chose to resolve the matter informally instead of
preserving the issue with a formal objection. The "plain
error" doctrine is clearly inapplicable in this case.
This case presents a conflict between the concepts of
substantial justice and the requirements of timeliness.
While the requirements of timeliness may act to the detriment
of one party, they are necessary so that substantial justice
may be afforded the other. MPC has presented a credible
argument that the award of attorneys' fees was incorrect, yet
MPC's failure to properly preserve the issue for appeal
precludes us from disturbing the award. We cannot randomly
except certain litigants from the requirements necessary for
appeal when, through their own fault, they have failed to
meet them.
We affirm the Workers' Compensation Court.
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We Concur: