No. 80-274
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
JOY CHURCHHILL,
Claimant and Respondent,
-vs-
HOLLY SUGAR CORPORATION,
Defendant and Appellant.
Appeal from: Workers' Compensation Court, The Honorable William E.
Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Habedank, Cumming & Best, Sidney, Montana
For Respondent:
Neil S. Keefer, Billings, Montana
Submitted on Briefs: November 26, 1980
Decided: June 1, 1981
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The employer, Holly Sugar Corporation, appeals from an
order of the Workers' Compensation Court determining that
Joy Churchill was permanently totally disabled. The Court
directed the employer to reinstate the claimant's compensation
benefits retroactive to when the employer cut them off, assessed
the employer with a penalty, and ordered the employer to pay
attorney fees to claimant's attorney. The court also
ordered claimant to seek vocational rehabilitation.
The employer raises several issues, and although we don't
discuss them, the claim that the Workers' Compensation Court
filed supplementary findings of fact and conclusions of law
with this Court after the notice of appeal was filed, is
dispositive of this appeal. In addition to this issue, the
employer contends that the claimant frustrated its attempts
at discovery and therefore the order reinstating benefits
should be rescinded. The employer further contends that
there was insufficient evidence in the record for a determination
that the claimant was permanently totally disabled.
Claimant fell and injured her back on November 7, 1977,
while stacking 60 pound sugar bags at the Holly Sugar factory
in Sidney. She worked several more shifts but was forced to
quit because the pain became unbearable. She immediately
filed a claim for benefits with her employer and she started
receiving weekly compensation benefits of $103.34.
Over the next year and a half, claimant visited many
doctors. The general diagnosis was that she suffered from a
lower back injury, but no doctor was able to determine the
specific nature of her injury. Exercise was the treatment
prescribed, and she was also temporarily fitted with a back
brace. In November 1978, claimant complained to Dr. Dorr, a
~illingsneurologist, that the pain was still severe. Dr.
Dorr filed a report in November that medically nothing could
be done to help claimant, but he recommended that she avoid
any work that required heavy lifting. He also estimated she
suffered a five percent permanent physical impairment because
of her injury.
Claimant insisted she was in constant pain and unable
to return to work and the employer sent her to the Missoula
Pain Clinic in July 1979. Over a period of a week, she was
extensively examined by several specialists. The clinic
submitted a report to the employer that she was hypersensitive
and grossly exaggerating her pain, possibly in an attempt to
remain on compensation. The report also claimed that the
claimant appeared to be strongly influenced by her husband,
who had suffered a back injury several years earlier, and
was still receiving weekly compensation after being classified
as permanently totally disabled.
The employer then reviewed the claimant's file, and on
the basis of the report from the Missoula Pain Clinic, the
employer notified claimant that her compensation would be
cut off as of September 4, 1979.
Several months later claimant employed a Billings
attorney to represent her. The attorney contacted the
employer and the employer responded with an offer to settle
based on a five percent permanent partial disability rating.
Claimant refused the offer and filed a petition for relief
before the Workers' Compensation Court.
Before a hearing was held on the claimant's petition,
the employer tried unsuccessfully to get answers to inter-
rogatories sent to claimant, and the employer also tried
unsuccessfully to set up a time to take the claimant's
deposition. Both attempts at discovery were thwarted by
claimant and her attorney. The employer made timely motions
to compel claimant to answer the interrogatories and to
postpone the hearing until her deposition was taken. The
hearing was set for May 6 and the employer again renewed
these discovery motions. The court agreed that claimant's
attorney had failed to cooperate with the employer's discovery
efforts, but held that any information the employer would
need could be obtained during the questioning at trial.
When the hearing ended, the court directed claimant's
attorney to prepare an order to reinstate the claimant's
compensation benefits. Before doing this, the court entered
no findings or conclusions. On May 12, the court signed
the order reinstating the claimant's benefits and also
imposing the statutory penalty and assessing attorney fees
against the employer. This order also included no findings
or conclusions.
The employer then petitioned the court for a rehearing
of the case, claiming that not only was the employer denied
effective discovery, but also without findings of fact, it
was impossible to determine the basis for the court's ruling,
and therefore it was impossible to prepare an effective
challenge to the ruling. In response to this petition, the
court heard oral arguments on July 1, 1980. The court
agreed that findings of fact were probably required, but
once again failed to make any. The petition for a rehearing
was denied on the same date, July 1, 1980.
Notice of appeal to this Court from Workers' Compensa-
tion Court must be filed within 30 days or this Court is
Section 39-71-2904, MCA;
without jurisdiction to hear the appeal. pule 5, M.R.App.
Civ.P. The employer filed its notice of appeal on July
28, 28 days from the date the petition for rehearing was
denied. Seven days after the notice of appeal was filed,
the court entered findings of fact and conclusions of law in
support of its original order reinstating benefits and denying
the petition for a rehearing. The employer argues, and we
agree, that we cannot consider these supplemental findings
entered after the notice of appeal was filed.
Except for ancilliary matters, once a notice of appeal
is filed with this Court, the trial court loses jurisdiction.
Northern Plains, Etc. v. Bd. of H. and Envir. Sciences
(1979)I ,
Mont. - 603 P.2d 684, 36 St.Rep. 2174;
Polson v. Thomas (1960), 138 Mont. 533, 357 P.2d 349. his
Court has not before ruled on the question of whether a
trial court can file supplemental findings after a notice of
appeal has been filed. We take this occasion, however, to
say that we will not permit this practice.
The New Mexico Supreme Court holds that any findings or
conclusions entered by the trial court after notice of
appeal has been filed, must be disregarded--the trial court
has lost jurisdiction once the notice of appeal has been
filed. Davis v. Westland Development Company (1970), 81 N.M.
296, 466 P.2d 862. The Georgia Supreme Cou-rt,on the other
hand, permits such supplemental findings if the absence of
such findings would not require a reversal but simply a
remand for entry of the findings. Jacobs Pharmacy Co. v.
Richard & Associates, Inc. (1972), 229 Ga. 156, 189 S.E.2d
853. The theory is that remanding for entry of findings
only delays the final decision in the case and the appellate
court might as well accept the entry of the supplemental
findings. We conclude, however, that better judicial admini-
stration is furthered if the trial courts are required to
complete their decisions on the merits before a notice of
appeal is filed. It is unfair to the appealing party to permit
the trial court to clean up the evidentiary and legal record
after the notice of appeal has been filed.
Here, the trial court was put on notice from the
very inception, that its order reinstating benefits, etc.
was unsupported by findings. Nonetheless, the court continued
to ignore the request of the employer to enter findings and
conclusions. It was only after the notice of appeal had been
filed, that the court must have recognized its findings were
deficient and could not therefore support its decision.
This is not a situation where the trial court ruled and the
employer immediately appealed so that the trial court had no
opportunity to enter findings and conclusions. Rather, the
employer waited 28 days after the ruling before it filed its
notice of appeal, and it was required to do this because if
an appeal had not been filed within 30 days, this Court
would be without jurisdiction to hear the appeal.
Claimant argues that findings and conclusions were not
needed here because the court had merely entered an interim
order. But the order reinstated the claimant to benefits,
determined that she was permanently totally disabled, and
ordered that the employer pay a penalty and attorney fees.
If the employer did not appeal from this order, it would
have to abide by it. The claimant surely does not claim
that the employer had no right to appeal from this order.
If the order was appealable, then proper findings and con-
clusions must be entered in support of the order.
Rather than remanding for entry of proper findings and
conclusions, the interests of justice demand here that the
court hold a new hearing on the issues. Although no clear
demonstration of prejudice is shown by the employer on its
claim that the claimant and her attorney thwarted its discovery
efforts, the court below determined that claimant and her
attorney had been totally uncooperative. Discovery is a
two-way street and here, claimant should not be able to
benefit by her efforts to deny discovery to the employer.
The order of the Workers' Compensation Court is vacated,
with directions that it hold a new hearing on the merits of
the issues raised and that it enforce discovery against both
the employer and the claimant.
We Concur:
Chief Justice
V
U Justices C ? ~
A
This cause was submitted prior to January 5, 1981.