Jackson v. True Temper Corp.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-515


Leslie Jackson                               Supreme Court

     v.                                      On Appeal from
                                             Rutland Superior Court
True Temper Corporation
                                             June Term, 1990


Frank G. Mahady, J.

Christopher P. Sullivan, Rutland, for plaintiff-appellee

Keith J. Kasper of McNamara, Fitzpatrick & McCormick, Burlington, for
   defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



     GIBSON, J.  Defendant employer appeals from a superior court judgment
awarding plaintiff attorney's fees and costs in the amount of $24,323.30.
We affirm in part, reverse in part, and remand the matter to the
Commissioner of Labor and Industry.
     Plaintiff sought a worker's compensation award from the Commissioner
of Labor and Industry for an injury that occurred while he was employed by
defendant.  Defendant contested compensability and prevailed in proceedings
before the Commissioner.  Plaintiff appealed to the superior court, where a
jury rendered a verdict in his favor on the question certified to the court
under 21 V.S.A. { 671.  Defendant appealed to this Court, and we affirmed
that verdict.  Jackson v. True Temper Corp., 151 Vt. 592, 563 A.2d 621
(1989).  Thereafter, plaintiff petitioned the superior court for payment of
costs and attorney's fees under 21 V.S.A. { 678(b), (FN1) claiming an hourly 
rate of $75 per hour for 283.25 hours of service, which included time spent
preparing and presenting his claim to the Commissioner and to the courts.
     Defendant filed no response to the petition, and its only opposition
was its assertion at a superior court hearing on the fee petition that Rule
10 of the Department of Labor and Industry (FN2) allows only $35 per hour.
Defendant did not contest either the reasonableness of the hourly rate or
the number of hours of service claimed.
     The court granted plaintiff's request for attorney's fees at the hourly
rate of $75.  The court stated:
          Customarily, the judiciary accords considerable defer-
          ence to the regulations adopted by an administrative
          agency under statute which that agency is charged to
          implement.  However, an agency may not adopt a regu-
          lation which is unreasonable and which defeats the
          intention of the legislature.  The clear legislative
          intent behind 21 V.S.A. 678(b) is to provide reasonable
          compensation to attorneys for claimants in such cases
          and to thereby assure the availability of legal services
          for such claimants.  Rule 10 provides for attorneys'
          fees which are far from reasonable in today's world and
          would defeat the purpose of ensuring legal services for
          claimants.

(Citations omitted.)  The present appeal followed.
     Defendant argues that the trial court intruded on the Commissioner's
prerogative by awarding attorney's fees at a rate higher than those allowed
by duly adopted regulations.  It contends that the trial court's rationale
boiled down to an assertion that the hourly rate set by the Commissioner
was "far from reasonable in today's world," and that no evidence supported
that assertion.
     Defendant's argument fails entirely for hours spent on appeals to the
superior court and to this Court.  Clearly 21 V.S.A. { 678(b), rather than
{ 678(a) or the rules adopted thereunder, applies to fee awards for judicial
appeals and gives the courts authority to set reasonable hourly rates.
Nothing in { 678(b) suggests that the court should be limited to the maximum
rate set by the Commissioner for matters before her.  Likewise, nothing in
Rule 10 establishes fees for court appeals; rather, it refers only to
proceedings before the Commissioner.
     Defendant correctly states that plaintiff did not present evidence
supporting the $75 hourly rate.  Because defendant only argued that Rule 10
governed the fee award both in proceedings before the Commissioner and in
court appeals, plaintiff and the court could reasonably have inferred that
defendant did not question the reasonableness of that rate.  Matters not
raised at trial may not be presented for the first time on appeal.  Garrow
v. Garrow, 150 Vt. 426, 431, 553 A.2d 569, 572 (1988).  Consequently, the
trial court's ruling that $75-per-hour was a reasonable rate for attorney
time spent on appeals to the superior court and to this Court is affirmed.
     But that part of the fee award covering services in proceedings before
the Commissioner stands on a different footing.  Although defendant erred in
believing that Rule 10 should have applied to both administrative and judi-
cial proceedings, Rule 10 is at least a starting point for a determination
of the appropriate hourly rate for attorney time spent on the proceedings
before the Commissioner.  Hence, that ground was adequately presented and
preserved for this appeal.
     The superior court had no knowledge of the nature and extent of
representation before the Commissioner, however.  Attorney's fees for work
at the administrative level should be determined, in the first instance, by
the Commissioner.  Accordingly, this matter is remanded to the Commissioner
for consideration of that portion of the award and for the issuance of a new
order.  21 V.S.A. { 672.
     Affirmed as to the fee award for attorney's time on judicial appeals. 
Reversed and remanded to the Commissioner of Labor and Industry for further
proceedings in accordance with this opinion as to the balance of the fee
award and the entry of an appropriate order.





                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice


FN1.             21 V.S.A. { 678(b) states:
            In appeals to the superior or supreme courts, the
          claimant, if he prevails, shall be entitled to reason-
          able attorney's fees as approved by the court, and
          interest at the rate of 12 percent per annum on that
          portion of any award the payment of which is contested.
          Interest shall be computed from the date of the award of
          the commissioner.

FN2.    Rule 10 states:
          (a) Liens against compensation for attorney's fees
          under 21 V.S.A. { 682 will be approved, and may be
          deducted and advanced against the end of compensation
          due, when an agreement for attorney's fees is filed with
          the Commissioner within 30 days of the date of
          agreement, and the agreement substantially conforms to
          the following:
          (1) a charge of not more than $35.00 per hour, supported
          by an itemized statement, or
          (2) a contingency fee to cover all legal services not
          to exceed 20% of the compensation awarded, or $3,000.,
          whichever is less.
          (b) Awards of attorney's fees against a party in a
          contested case under 21 V.S.A. { 678 shall not exceed
          the amounts permitted by lien under part (a) of this
          Rule.  Evidence establishing the amount or reasonable-
          ness of the attorney's fees claimed shall be offered no
          later than that date upon which the final documents in
          the case are filed with the Department.  Failure to
          comply with this section may result in denial of an
          award of attorney's fees.

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                                DISSENTING

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-515


Leslie Jackson                               Supreme Court

     v.                                      On Appeal from
                                             Rutland Superior Court
True Temper Corporation
                                             June Term, 1990


Frank G. Mahady, J.

Christopher P. Sullivan, Rutland, for plaintiff-appellee

Keith J. Kasper of McNamara, Fitzpatrick & McCormick, Burlington, for
   defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J., dissenting.   I respectfully dissent.  Defendant employer
"put all its eggs in one basket" in the superior court by maintaining that
$35 per hour for attorneys' fees, reasonable or not, were all that were
allowed at any stage of the proceedings.  No differentiation was made as to
what fees were reasonable in court or in proceedings before the
Commissioner.  In short, defendant took a one-or-the other approach ($35 or
$75) for all work at all stages.  It became the law of the case.
     This Court now remands for a hearing on whether $35 per hour is
reasonable for work done before the Commissioner, an issue not raised below
or here.  What more was required of plaintiff and the court, given
defendant's position, is a mystery.
     This case is another example of this Court indulging in "practice makes
perfect" jurisprudence.  Instead of allowing the parties to fashion the
issues, we second-guess trial strategy and give the losing party another day
in court.  No reason I can think of justifies this wasteful and expensive
procedure.
     I would affirm.





                                        Associate Justice