(dissenting).
I respectfully dissent.
The issue, as I view it, is whether the district court abused its discretion in awarding attorney’s fees in the amount of $11,-435.75, after a hearing. I believe that it did not.
The district court, in determining a reasonable attorney’s fee in a workmen’s compensation case, is to consider: (1) the sum, if any, offered by the employer within a certain time period and (2) the present value of the award to the workman. Section 52-l-54(D), N.M.S.A.1978. In ordering remand in the case before us, the Supreme Court further elaborated criteria to be considered by the district court in setting the attorney’s fee.
[I]n addition to the statutory requirements, the following factors are subject to consideration: the chilling effect of miserly fees upon the ability of an injured workman to obtain adequate representation; the time and effort expended by the attorney; the extent to which the issues were contested; the novelty and complexity of the issues involved; the fees normally charged in the locality for similar legal services; the ability, experience, skill and reputation of the attorney; the relative success of the workman in the court proceeding; the amount involved; and the rate of inflation.
Fryar v. Johnsen, 93 N.M. 485, 488, 601 P.2d 718, 721 (1979). The case was remanded for consideration of these factors and for making findings of fact and conclusions of law on the issue of attorney’s fees.
The district court made findings and conclusions on the issue after a hearing. The record indicates that it considered all of the factors specified by the Supreme Court. Neither the record nor the briefs show that the district court abused its discretion.
The defendant argues that the Supreme Court remanded for an evidentiary hearing, and that since no new evidence was presented to the court, it failed to comply with the Supreme Court’s order. I believe, however, that the Supreme Court did not intend for the parties to go to the time and expense of putting on opposing witnesses to determine the reasonableness of the attorney’s fees. Rather, I think the Supreme Court merely wanted the district court to make findings and conclusions which would indicate the basis for its award, and to consider the award in light of certain factors. This the district court did. See generally, Budagher v. Sunnyland Enterprises, Inc., 93 N.M. 640, 603 P.2d 1097 (1979).
The defendant objects that the district court erred in taking judicial notice of the present rate of inflation, of the fee customarily charged in workmen’s compensation actions in the locale, and of certain other facts. However, no objections to the taking of judicial notice of these and other facts was made at the hearing. An issue raised for the first time on appeal will not be considered by this court. Phillips v. United Service Automobile Ass’n, 91 N.M. 325, 573 P.2d 680 (Ct.App.1977). These objections need not be considered.
The defendant also objects to the district court’s admission of an affidavit by a workmen’s compensation attorney practicing in the locale which stated that attorney’s fees of between fifteen and twenty percent of the present value of the total award is customary in workmen’s compensation cases. I believe that the affidavit was proper. See, 3 Am.Jur.2d Affidavits § 28 (1962). However, the issue need not be decided, since, even without the affidavit, the district court had substantial basis on which to make its award.
The defendant objects to the finding that substantial time and effort were expended by plaintiff’s attorney. The objection is based on the attorney’s failure to submit a time sheet detailing the number of hours he worked on the case. This court has stated before that the amount of work is not determinative of the size of the fees awarded the plaintiff’s attorney in a workmen’s compensation case. Lamont v. New Mexico Military Institute, 92 N.M. 804, 595 P.2d 774 (Ct.App.), cert. denied, 92 N.M. 675, 593 P.2d 1078 (1979); Marez v. Kerr-McGee Nuclear Corp., 93 N.M. 9, 595 P.2d 1204 (Ct. App.1978), cert. denied, 92 N.M. 532, 591 P.2d 286 (1979); see generally, Maes v. John C. Cornell, Inc., 86 N.M. 393, 524 P.2d 1009 (Ct.App.1974). The amount of work done is merely one factor to be considered. Fryar, 93 N.M. 485, 601 P.2d 718. The district court based its finding that plaintiff’s counsel had expended substantial time and effort on the case on its own observation of counsel’s presentation of the case at trial. This was a sufficient basis for the finding.
Based on its experience in presiding over the trial, the district court found that the issues presented made the trial more complex than the majority of compensation actions before it. I believe the experience of the judge is a sufficient basis for the finding. The opinion of the Supreme Court, Fryar, 93 N.M. 485, 601 P.2d 718, suggests, however, that that court does not believe this was a complex case. Thus, the district court’s finding may be erroneous. Nevertheless, I would still affirm the judgment, because the other findings are sufficient to support it.
The defendant also objects because the district court adopted all of the findings of fact and conclusions of law submitted by the plaintiff. This practice has been held error only in the most extreme circumstances. Sisneros v. Garcia, 94 N.M. 552, 613 P.2d 422 (1980). It is not error here.
In essence, all of defendant’s objections go to the fact that the trial court based its award of attorney’s fees on a percentage of plaintiff’s total award. This is not an abuse of discretion. The appellate court will not say, as a matter of law, that the district court abused its discretion in awarding attorney’s fees merely because its award was based on a percentage figure. Marez.
I would affirm the judgment of the trial court and award plaintiff an additional $1,500 in attorney’s fees for this appeal.