{
  "id": 2840090,
  "name": "Doyle W. BURTON, Plaintiff-Appellant, v. JENNINGS BROTHERS, d/b/a D. J. Cattle Company, and the Mountain States Mutual Casualty Company, Defendants-Appellees",
  "name_abbreviation": "Burton v. Jennings Bros.",
  "decision_date": "1975-06-04",
  "docket_number": "No. 1778",
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    "judges": [
      "LOPEZ, J., concurs.",
      "SUTIN, J., dissenting."
    ],
    "parties": [
      "Doyle W. BURTON, Plaintiff-Appellant, v. JENNINGS BROTHERS, d/b/a D. J. Cattle Company, and the Mountain States Mutual Casualty Company, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nAfter a trial plaintiff was awarded workmen\u2019s compensation. The judgment was entered June 12, 1973. Plaintiff executed a release on June 26, 1973. A satisfaction of judgment was filed June 28, 1973. In February, 1974 plaintiff moved for an increase in the compensation award pursuant to \u00a7 59-10-25, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1). This motion was denied as a matter of law on the basis that (1) the judgment disposed of all rights of the parties, and (2) the satisfaction of judgment was binding on plaintiff. The appeal contends plaintiff was entitled to an evidentiary hearing on his motion. We agree.\nWhether the Judgment Disposed of All Rights of the Parties\nDefendants assert the judgment entered in June, 1973 was a final judgment disposing of all rights of the parties. This contention is based on \u00a7 59 \u2014 10\u201416(B), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) which provides that judgments in compensation cases shall have the same force and effect as judgments in civil cases. This view was answered in Segura v. Jack Adams General Contractor, 64 N.M. 413, 329 P.2d 432 (1958). Segura held that the \u201cordinary rules of res judicata cannot apply to a judgment rendered on the merits after trial.\u201d Segura reached this result after considering the provisions of \u00a7 59-10-25, supra, which provides for a \u201chearing upon the issue of claimant\u2019s recovery .\u201d Section 59 \u2014 10\u201416(B), supra, does not bar hearings expressly authorized by \u00a7 59-10-25, supra.\nDefendants contend the judgment entered in June, 1973 was a lump sum judgment and such a judgment may not be reopened under Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964). There was no lump sum judgment in this case and the reliance on Durham is misplaced.\nIn Durham, supra, the parties, by stipulation, agreed upon a lump sum settlement. The trial court, after a hearing, approved the settlement and entered a judgment based on the stipulation of the parties. Thereafter a satisfaction of judgment was filed. Two members of the New Mexico Supreme Court held that regardless of \u00a7 59-10-25, supra, plaintiff was bound by the lump sum judgment to which he had stipulated. One member of the New Mexico Supreme Court held that plaintiff waived his right to reopen the judgment under \u00a7 59-10-25, supra, by executing the satisfaction and release of judgment.\nDurham, supra, is not applicable. The lump sum judgment in Durham was for the amount of a settlement agreed upon by the parties and approved by the trial court. There was no agreed settlement nor was there a lump sum judgment in this case. Rather, the judgment was entered after trial and consisted of five separate items: (a) a disability award of 35 percent from March 24, 1972 to March 24, 1973; (b) disability award of 20 percent from March 24, 1973 to August 24, 1973; (c) medical expenses; (d) attorney\u2019s fee; and (e) expert witness fee.\nPlaintiff\u2019s motion pursuant to \u00a7 59 \u2014 10\u2014 25, supra, was not barred by the judgment entered in June, 1973.\nWhether the Satisfaction of Judgment Barred Plaintiffs Right to Reopen\nDefendants paid the judgment of June, 1973. Plaintiff\u2019s \u201cSatisfaction of Judgment\u201d stated that the judgment had been satisfied. What had been satisfied \u2014 compensation through August 24, 1973, certain medical expenses and fees for plaintiff\u2019s attorney and expert witness. Defendants assert this satisfaction bars a motion to reopen under \u00a7 59-10-25, supra. It does not.\nAs previously stated, \u00a7 59-10-25, supra, provides for a hearing on the issue of claimant\u2019s recovery. \u201cAnd if it shall appear upon such hearing that the disability of the workman has become more aggravated or has increased without the fault of the workman, the court shall order an increase in the amount of compensation allowable as the facts may warrant.\u201d\nPlaintiff\u2019s motion alleges that he has continued to be disabled since cessation of compensation on August 24, 1973, that his disability has increased, and that he is unable to return to work. These claims are directed to a time period subsequent to the time period covered by the judgment. The judgment refers to specific time periods ; plaintiff declared the judgment for those time periods to be satisfied. The satisfaction of judgment cannot be considered as waiving a right to proceed under \u00a7 59-10-25, supra, because his motion under \u00a7 59-10-25, supra, is concerned with compensation for disability subsequent to the period covered by the judgment. See Linton v. Mauer-Neuer Meat Packers, 71 N.M. 305, 378 P.2d 126 (1963); compare the opinions in Durham v. Gulf Interstate Engineering Company, supra.\nThe issue raised by plaintiff\u2019s motion was \u201ca change in the workman\u2019s condition subsequent to the original award.\u201d Gools-by v. Pucci Distributing Company, 80 N.M. 59, 451 P.2d 308 (Ct.App.1969). The fact that plaintiff declared the original award to have been satisfied did not bar that issue.\nDefendants\u2019 brief suggests that the release, executed by plaintiff subsequent to the judgment, bars plaintiff\u2019s motion under \u00a7 59-10-25, supra. The trial court did not rule on the validity or the effect of the release executed after entry of the judgment. We will not consider the release for the first time on appeal. Section 21-12-11, N.M.S.A.1953 (Interim Supp.1974).\nThe order of the trial court denying plaintiff\u2019s motion as a matter of law is reversed. The cause is remanded with instructions to grant plaintiff an evidentiary hearing on his motion. Questions concerning the release may be litigated at this evi-dentiary hearing.\nIt is so ordered.\nLOPEZ, J., concurs.\nSUTIN, J., dissenting.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      },
      {
        "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nWhen is a judgment in a workmen\u2019s compensation case a final judgment? It is final when it contains all of the elements of finality as do other civil judgments. Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964).\nWhen a judgment is payable in installments for disability for a period of weeks, the judgment is final when the full statutory period has elapsed. Durham, supra. Churchill v. City of Albuquerque, 66 N.M. 325, 347 P.2d 752 (1959); Segura v. Jack Adams. General Contractor, 64 N.M. 413, 329 P.2d 432 (1958); Livingston v. Loffland Brothers Co., 86 N.M. 375, 524 P.2d 991 (Ct.App.1974).\nIn the instant case, the judgment awarded plaintiff a total of $2,432.92 in compensating costs and expenses. It was not payable in installments. It has all the elements of finality. The judgment was entered June 12, 1974. The plaintiff entered a satisfaction of judgment. This clearly enunciates that the judgment was final. No appeal was taken from the judgment. The trial court lacked jurisdiction to proceed further in the case. Sections 59 \u2014 10\u2014 16(B) and 59-10-16.1, N.M.S.A.19S3 (2d Repl.Vol. 9, pt. 1). The motion for an increase in the compensation award was properly denied as a matter of law because the judgment and payment thereof by defendants disposed of all the rights of the parties.\nIn addition to the satisfaction of judgment, plaintiff executed a release. The majority opinion says: \u201cQuestions concerning the release may be litigated at this evidentiary hearing.\u201d If this issue is heard first, and the release is also sustained, no further evidentiary hearing on the motion will be required.",
        "type": "dissent",
        "author": "SUTIN, Judge"
      }
    ],
    "attorneys": [
      "Harry Relkin, Louis G. Stewart, Jr., Albuquerque, for plaintiff-appellant.",
      "Dan B. Buzzard, Clovis, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "537 P.2d 703\nDoyle W. BURTON, Plaintiff-Appellant, v. JENNINGS BROTHERS, d/b/a D. J. Cattle Company, and the Mountain States Mutual Casualty Company, Defendants-Appellees.\nNo. 1778.\nCourt of Appeals of New Mexico.\nJune 4, 1975.\nCertiorari Denied July 2, 1975.\nHarry Relkin, Louis G. Stewart, Jr., Albuquerque, for plaintiff-appellant.\nDan B. Buzzard, Clovis, for defendants-appellees."
  },
  "file_name": "0095-01",
  "first_page_order": 125,
  "last_page_order": 128
}