{ "id": 1577287, "name": "Steven G. RUMPF, Plaintiff-Appellee, v. RAINBO BAKING COMPANY, Employer and American Motorist Insurance Company, Insurer, Defendants-Appellants", "name_abbreviation": "Rumpf v. Rainbo Baking Co.", "decision_date": "1981-03-12", "docket_number": "No. 4795", "first_page": "1", "last_page": "5", "citations": [ { "type": "official", "cite": "96 N.M. 1" }, { "type": "parallel", "cite": "626 P.2d 1303" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "71 N.M. 491", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348970 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0491-01" ] }, { "cite": "74 N.M. 712", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2798717 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0712-01" ] }, { "cite": "94 N.M. 587", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573234 ], "weight": 3, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0587-01" ] }, { "cite": "93 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568654 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0485-01" ] }, { "cite": "54 N.M. 267", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582043 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0267-01" ] }, { "cite": "45 N.M. 119", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565153 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/nm/45/0119-01" ] }, { "cite": "92 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557239 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "52" }, { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0047-01" ] }, { "cite": "54 N.M. 339", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582026 ], "weight": 3, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0339-01" ] }, { "cite": "65 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845954 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0307-01" ] }, { "cite": "75 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377165 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0174-01" ] }, { "cite": "84 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764389 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0109-01" ] }, { "cite": "92 N.M. 57", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557246 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/nm/92/0057-01" ] }, { "cite": "105 P. 992", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8879550 ], "year": 1909, "opinion_index": 1, "case_paths": [ "/okla/25/0002-01" ] }, { "cite": "247 F.Supp. 394", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 409116 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/f-supp/247/0394-01" ] }, { "cite": "84 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 1 }, { "cite": "92 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557239 ], "year": 1978, "pin_cites": [ { "page": "52" } ], "opinion_index": 1, "case_paths": [ "/nm/92/0047-01" ] }, { "cite": "54 N.M. 339", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582026 ], "year": 1950, "pin_cites": [ { "page": "346" } ], "opinion_index": 1, "case_paths": [ "/nm/54/0339-01" ] }, { "cite": "75 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377165 ], "year": 1965, "pin_cites": [ { "page": "179" } ], "opinion_index": 1, "case_paths": [ "/nm/75/0174-01" ] }, { "cite": "84 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764389 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/84/0109-01" ] } ], "analysis": { "cardinality": 751, "char_count": 14652, "ocr_confidence": 0.812, "pagerank": { "raw": 1.5958886493189193e-07, "percentile": 0.6830147240244508 }, "sha256": "14e8a0b8c27f7a4fa1a80be64cd35c1635a80740ae2cd9ae031851e6c37791aa", "simhash": "1:373f2caeb5870d1e", "word_count": 2404 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ANDREWS, J., concurs." ], "parties": [ "Steven G. RUMPF, Plaintiff-Appellee, v. RAINBO BAKING COMPANY, Employer and American Motorist Insurance Company, Insurer, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWALTERS, Judge.\nOn February 17, 1978, Steven Rumpf slipped on some ice while making a delivery as a route salesman for Rainbo Baking Company. He injured his lower back, aggravating a preexisting condition. It is now undisputed that the February injury was compensable under the Workmen\u2019s Compensation Act.\nOn February 27, 1978, Mr. Rumpf\u2019s attorney prepared and sent a notice letter informing Rainbo of plaintiff\u2019s injury. In March, 1978 Mr. Rumpf underwent a spinal fusion.\nUltimately, three complaints were filed seeking workmen\u2019s compensation benefits for Rumpf. The first suit was filed on April 11, 1978; at that time Rumpf had received no compensation from Rainbo\u2019s insurer. The suit was voluntarily dismissed when defendants agreed to start paying benefits. The insurer stopped payments after a couple of weeks, and a second suit was filed on May 15, 1978. Once again, defendants agreed to pay benefits, and that complaint was also voluntarily dismissed. They continued to pay until around November 3, 1978, and on November 30, 1978, Rumpf\u2019s attorney filed the third suit, from which this appeal arises.\nPlaintiff returned to work for Rainbo around the beginning of December, 1978. At that time he was still owed some compensation payments. His employers learned of claimant\u2019s third suit; they called him in and asked him to drop it. On December 4, 1978, Rumpf, by telephone call, advised his attorney to drop the suit. On December 19th, he repeated the request by letter, but he delivered this letter to his employer instead of mailing it directly to his attorney.\nShortly thereafter in early 1979, Rumpf instructed his attorney to disregard any of his letters or phone calls in which Rumpf might direct him to drop the case; the attorney was to act only on in-person attorney-client conversations. The attorney thereafter received two more letters from Rumpf, one dated April 5, 1979, and one dated March 18, 1980, asking him to drop the suit against Rainbo. Since the attorney had not had any personal communications from his client, he disregarded the letters.\nDefendant filed a motion to dismiss on August 22, 1979. When it became clear to plaintiff\u2019s counsel that Mr. Rumpf was no longer cooperating with him in pursuing the suit, he agreed to dismissal of the third suit.\nAfter a hearing on plaintiff\u2019s motion for attorney\u2019s fees and on defendants\u2019 motion to dismiss, the trial judge fixed Mr. Rumpf\u2019s attorney\u2019s fees at $1,872.00, and the case was dismissed with prejudice.\nRainbo and American appeal the award of attorney\u2019s fees. We affirm. In addition, although the dismissal with prejudice was not an issue on appeal, we hold that it was improper under the circumstances of this case.\nAttorney\u2019s Fees\nRainbo\u2019s insurer paid compensation after plaintiff\u2019s attorney filed the suits and negotiated with the insurer. The trial court fixed attorney\u2019s fees at $1,872.00, finding in its Order,\nThat it was reasonably necessary for the plaintiff to employ counsel to obtain benefits under the workman\u2019s compensation act, and that the plaintiff obtained benefits, including compensation, as a result of the counsel\u2019s services.\nThe appellants argue that without an actual award of compensation made to Rumpf by the trial court, an allowance of attorney\u2019s fees is unauthorized by the Act. A careful reading of New Mexico decisions does not support their position.\nThe essence of our case law on the allowance of attorney\u2019s fees in workmen\u2019s compensation cases is that the claimant must receive compensation due to the services performed by his attorney in order for the claimant to be eligible for attorney\u2019s fees. Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (Ct. App.1972); Geeslin v. Goodno, 75 N.M. 174, 402 P.2d 156 (1965); Ennen v. Southwest Potash Co., 65 N.M. 307, 336 P.2d 1062 (1959); Perez v. Fred Harvey, Inc., 54 N.M. 339, 224 P.2d 524 (1950). Appellants wholly rely on language in Phelps Dodge Corp. v. Guerra, 92 N.M. 47, 582 P.2d 819 (1978), to sustain their argument. In that case the New Mexico Supreme Court affirmed the trial court\u2019s dismissal of a workmen\u2019s compensation suit on the basis that the parties had previously settled the claim. The claimant had asked for attorney\u2019s fees for the appeal only, and the court denied the attorney\u2019s fees, stating that\neven if Guerra had prevailed in this Court on the other issues, that awarding of attorney\u2019s fees would have been in error since, even if Guerra had won this appeal, there would not yet have been any decision by the trial court as to his entitlement to compensation until after the case had been remanded. Until there has been an award of compensation at the trial court level, an allowance of attorney\u2019s fees is improper. [Citations omitted.]\n92 N.M. at 52, 582 P.2d at 842.\nIt would be unduly restrictive to hold that the Supreme Court, by this language, imposed a requirement that in all cases a formal award of compensation must be made by the trial court before attorney\u2019s fees are appropriate. Moreover, the facts of the Phelps suit are entirely dissimilar to the instant matter. We rely, instead, upon the language of Section 52-l-54(D), N.M. S.A. 1978, which provides that\nin all cases where compensation to which any person shall be entitled under the provisions of the Workmen\u2019s Compensation Act shall be refused and the claimant shall thereafter collect compensation through court proceedings in an amount in excess of the amount offered in writing by an employer thirty days or more prior to the trial by the court of the cause, then the compensation to be paid the attorney for the claimant shall be fixed by the court trying the same * * *.\nThere were court proceedings in this case. As a legal term, \u201cproceedings\u201d embraces all the steps in a cause from its commencement to its conclusion. 50 C.J., Process, \u00a7 1, quoted in State v. District Court of Second Jud. Dist., 45 N.M. 119, 112 P.2d 506 (1941). Initiation of a claim for workman\u2019s compensation benefits is a \u201cproceeding.\u201d State ex rel. Pacific Empl. Ins. Co. v. Arledge, 54 N.M. 267, 221 P.2d 562 (1950). Plaintiff instituted three suits; each of them resulted in plaintiff temporarily collecting compensation.\nThe statute does not require that the judge make an award; it provides only that when payments are refused, \u201cclaimant * * * thereafter collect compensation through court proceedings.\u201d' We are not bound to interpret \u201crecovery\u201d as used in Geeslin and Perez, supra, to mean a judge-awarded recovery. \u201cRecovery\u201d must be defined broadly enough to fit the statutory allowance of fees once the claimant \u201cshall * * * collect compensation\u201d after filing his claim. The trial court\u2019s findings cannot be read to mean anything but that payment of compensation would not have been forthcoming had suits not been filed. The condition of the statute was met and Rumpf is entitled to attorney\u2019s fees.\nWe have considered appellants\u2019 other arguments but do not find in them any justification for denying attorney\u2019s fees in this case. We express our dismay, however, at the criticism in appellants\u2019 briefs amounting to a personal attack on the attorney who handled claimant\u2019s court proceedings. Such an unwarranted display of acerbity against another attorney is inappropriate and unseemly. The trial court was the judge of the evidence offered and obviously believed claimant\u2019s attorney. Additionally, sufficient evidence of work performed was introduced to satisfy the requirements of Johnson v. Fryar, 93 N.M. 485, 601 P.2d 718 (1979).\nDismissal With Prejudice\nThe dismissal with prejudice by the lower court is contrary to the policy stated in Glover v. Sherman Tongs, 94 N.M. 587, 613 P.2d 729 (Ct.App.1980), recognizing the right of a workman to reopen his claim if and when problems later develop which are related to the compensable injury. We said:\nThe Workman\u2019s Compensation Act was not written with the intent that it be so penuriously interpreted that a workman be bound by a \u201cone-shot\u201d chance at showing his ability or inability to perform the tasks of his usual occupation or other work he is fitted by past history to do. If that were so, and each word of the Act were to be read to find a means to deny rather than to grant relief to an injured workman, the principal purpose of workman\u2019s compensation law would be thwarted.\n613 P.2d at 732. Section 52-1-56 A provides for regular reconsideration of a workman\u2019s benefits during the period for which compensation could be paid. We note that claimant\u2019s doctor expressed concern early in 1979 that the spinal fusion might not be completely successful. Case law also suggests that Rumpf may bring a future action if his condition deteriorates. Rayburn v. Boys Super Market, Inc., 74 N.M. 712, 397 P.2d 953 (1964); Cordova v. City of Albuquerque, 71 N.M. 491, 379 P.2d 781 (1962). Dismissal with prejudice would deprive claimant of a right afforded to him by law and, even though consented to by plaintiff\u2019s court-appointed lawyer, plaintiff was not asked if he agreed to dismissal with prejudice. Such a disposition is incompatible with the statute.\nThe judgment awarding attorney\u2019s fees is affirmed. The case is remanded for modification and deletion of that portion of the judgment which dismisses the claim with prejudice.\nPlaintiff\u2019s attorney is awarded $1,500 for services on appeal.\nIT IS SO ORDERED.\nANDREWS, J., concurs.", "type": "majority", "author": "WALTERS, Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nThe time has arrived when a majority opinion has presented a collapsible house of cards built with a stacked deck and a joker. My colleagues exercised \u201csuperintending control\u201d over the district court on matters not before this Court.\nA. This Court does not have jurisdiction over a Final Order from which no appeal is taken.\nPlaintiff\u2019s complaint was dismissed \u201cwith prejudice.\u201d No appeal was taken from this Order. Plaintiff is not a party to this appeal. The Order of Dismissal \u201cwith prejudice\u201d is not an issue in this appeal. The Order was approved by plaintiff and his attorney. Yet, the majority opinion has deleted from the Order the words \u201cwith prejudice.\u201d\nAt the hearing on June 18, 1980, Fred M. Calkins, an eminent lawyer, was appointed by the court to consult with plaintiff. Mr. Calkins reported to the court as follows:\nHe [plaintiff] has no objection to the case being dismissed with prejudice and understands that if his condition, back condition * * * should occur in the future that he would be unable to reopen the case for the payment of medical bills, weekly compensation or permanent disability. [Emphasis added.]\n* >(:\nTHE COURT: Are you asking that it be dismissed? You don\u2019t want it pursued any further?\nMR. RUMPF: Right.\nTo delete the words \u201cwith prejudice\u201d is the exercise of \u201csuperintending control\u201d over a non-appealed Order. It allows this Court, in its discretion, to sit as a district judge. Thus, we can affirm a case, yet order the district court to modify matters of reversible error such as erroneous instructions given, admission of improper testimony, and a good pleaded affirmative defense.\nIt has been suggested that a judge should compromise his views and join in the opinion of his colleagues. This I cannot do.\nB. Stewart was not entitled to attorney fees.\nOn the matter of attorney fees, in every case cited, except Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (Ct.App.1972), the Supreme Court has not followed \u00a7 52-5-54 (D). In Wuenschel, I said:\n* * * The plaintiff did not collect compensation and he is not entitled to attorneys\u2019 fees * * *. [84 N.M. 111.] [Emphasis added.]\nPhelps-Dodge (92 N.M. 47, 52) says:\n* * * Until there has been an award of compensation * * * an allowance of attorney\u2019s fees is improper.\nGeeslin (75 N.M. 174, 179) says:\n* * * Plaintiff\u2019s attorney is not entitled to an attorney fee unless compensation is recovered herein. [Emphasis added.]\nPerez (54 N.M. 339, 346) says:\nThe recovery of compensation is a prerequisite to the allowance of attorney fees. [Emphasis added.]\nThese and other cases have fixed a rule on an allowance of attorney fees. There must first occur an \u201caward\u201d or \u201crecovery\u201d of compensation. If the Supreme Court intended that \u201caward\u201d and \u201crecovery\u201d meant \u201ccollect compensation through court proceedings\u201d as provided by statute, plaintiff is entitled to an award of attorney fees. Otherwise not. \u201c \u2018Proceedings\u2019 are all steps or measures adopted in the prosecution or defense of an action.\u201d Ingravallo v. Pool Shipping Co., 247 F.Supp. 394 (D.C.N.Y. 1965); State v. McCafferty, 105 P. 992 (Okl. 1909).\nWhat the Supreme Court intended \u201caward\u201d or \u201crecovery\u201d to mean must be expressed by the Supreme Court. \u201cStare Decisis\u201d has set in. In my opinion, all prior cases that use the words \u201caward\u201d and \u201crecovery\u201d should be overruled. The words \u201ccollect compensation through court proceedings\u201d should be defined. Until this occurs, plaintiff\u2019s attorney is not entitled to an attorney fee.\nPlaintiff\u2019s attorney filed a motion for an Order that he be awarded an attorney fee for services rendered plaintiff and for expenses occurred. Some five or six weeks before the Order of Dismissal with prejudice was entered, absent any trial or award of attorney fees to plaintiff, the court entered an Order on the attorney\u2019s motion \u201cthat the lawyer fee for plaintiff\u2019s attorney is fixed at $1872.00.\u201d This is erroneous. Genuine Parts Co. v. Garcia, 92 N.M. 57, 582 P.2d 1270 (1978) holds that attorney fees are to be awarded to plaintiff and not to his counsel.\nAn attorney has no authority to seek payment of an attorney fee to himself from an employer. The workman must seek this relief. An attorney fee is obtained from a workman. If a workman is not entitled to an attorney fee, the attorney has donated his time. Plaintiff\u2019s claim was dismissed with prejudice. Plaintiff was not awarded an attorney fee in the Order of Dismissal. The attorney, therefore, is denied one. It was the duty of the attorney to have plaintiff seek an attorney fee or have one awarded in the Order of Dismissal with prejudice. This is one case when an employer should not be additionally burdened. Here, the employer was not at fault. The plaintiff or his lawyer was. \u201cAs you make your bed, so you must lie on it.\u201d Everyone must bear the consequences of his own acts.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Alan M. Malott, Shaffer, Butt, Thornton, Baehr, P. C., Albuquerque, for defendants-appellants.", "John Hogan Stewart, P. A., Martin J. Chavez, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "626 P.2d 1303\nSteven G. RUMPF, Plaintiff-Appellee, v. RAINBO BAKING COMPANY, Employer and American Motorist Insurance Company, Insurer, Defendants-Appellants.\nNo. 4795.\nCourt of Appeals of New Mexico.\nMarch 12, 1981.\nAlan M. Malott, Shaffer, Butt, Thornton, Baehr, P. C., Albuquerque, for defendants-appellants.\nJohn Hogan Stewart, P. A., Martin J. Chavez, Albuquerque, for plaintiff-appellee." }, "file_name": "0001-01", "first_page_order": 29, "last_page_order": 33 }