Rowland v. City of Tulsa

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Rowland v. City of Tulsa
1999 OK 75
988 P.2d 1282
70 OBJ 2681
Case Number: 88288
Decided: 09/21/1999
Mandate Issued: 10/26/1999
Supreme Court of Oklahoma

WILLIE B. ROWLAND, Petitioner,

CITY OF TULSA and The Oklahoma Workers' Compensation Court, Respondents.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I.

¶0 In an order finding the claimant's injuries to be permanent and total, Workers' Compensation Court allowed twenty percent of claimant's award for attorney fees pursuant to title 85, section 30 of the Oklahoma Statutes. Subsequently, the employer and claimant entered into an agreement in which the claimant was awarded a lump sum in lieu of the weekly payments remaining on the award. The claimant's attorney was allowed twenty percent of the claimant's lump sum award. The agreement was approved by an order of the Workers' Compensation Court. The claimant sought review of the attorney fees award. The Workers' Compensation Court, the Honorable Susan Witt Conyers, found that the order awarding the attorney fees could not be modified because more than twenty days had passed since the order was mailed to the parties. The Court of Civil Appeals affirmed.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; APPEAL DISMISSED FOR LACK OF APPELLATE JURISDICTION; MATTER REMANDED FOR FURTHER PROCEEDINGS.

Willie B. Rowland, Tulsa Oklahoma, Pro Se Petitioner.

Susan H. Jones, Tulsa, Oklahoma, For Wilson Jones, P.C., specially appearing.

HODGES, J.

¶1 The issue in this case is whether the Workers' Compensation Court's order on which this appeal is based, in so far as it purports to adjudicate the amount of attorney fees, is an appealable order subject to this Court's review. We find that the issue of the proper amount of attorney fees remains pending before the Workers' Compensation Court and, as such, is not ripe for review by the appellate courts.

I. Facts

¶2 On April 2, 1992, the Workers' Compensation Court found Willie B. Rowland (Rowland) to be permanently totally disabled and awarded Rowland $208.27 per week in compensation and back compensation of $2,707.51. Wilson Jones (Jones), the [988 P.2d 1283] respondent in this appeal and Rowland's attorney at the time of the award, was paid a twenty percent lump sum fee of $20,827.00 by Rowland's employer, the City of Tulsa (City). The City was to recoup the lump-sum attorney fee payment by deducting ten percent of Rowland's weekly award until the total was recovered.

¶3 On February 16, 1996, Rowland and the employer entered into an agreement whereby Rowland was paid $135,000.00 in exchange for releasing the City from the remainder of the payments under the 1992 order. The agreement provided for a reduction of the $135,000.00 by twenty percent for attorney fees. The settlement worksheet, signed by both Rowland and Jones, shows that Jones was paid attorney fees of $22,840.00 out of the $135,000.00 settlement. The $22,840.00 represents the amount of $27,000.00, which is twenty percent of $135,000.00, less the amount that Rowland had reimbursed the City of the $20,827.00 lump-sum fee previously paid to Jones.

¶4 Before the order approving the agreement was filed of record, Rowland sent a letter to the administrator and the presiding judge for the Workers' Compensation Court. The letter was received by both the judge and the administrator on March 6, 1996. In his letter, Rowland alleged that under the agreement his attorney would receive more than the statutorily allowed twenty percent of the award. On March 12, 1996, an order was filed approving the joint settlement agreement.

¶5 Rowland's letter was treated as a motion to modify the order approving the joint settlement, and a hearing was held on May 30, 1996. Four months later, on September 27, the trial tribunal ruled that it did not have authority to modify the order approving the settlement more than twenty days after the order was mailed to the parties. The Court of Civil Appeals sustained the trial court's decision denying Rowland relief. This Court granted certiorari.

II. Analysis

¶6 The Workers' Compensation Court treated Rowland's letter as a motion to modify its order approving the settlement agreement. Neither the fact that the request for relief was in the form of a letter nor the treatment given it by the Workers' Compensation Court is determinative of its true nature. Rowland states in the letter that he is asking for a hearing on the amount of attorney fees and stating that under the agreement his attorney would receive more than the statutory maximum. The letter not only requests a hearing but revokes Rowland's consent to the amount of attorney fees as recited in the joint agreement.

¶7 The basis of a joint petition settlement is the parties' agreement to its terms. After Rowland suspected that the settlement allowed an attorney fee in excess of the statutory maximum,2 he withdrew his consent to the amount of attorney fees and requested review of the matter. After he withdrew his consent to the amount of attorney fees, the joint petition settlement in so far as it settled the amount of attorney fees was no longer before the trial tribunal for its approval.

¶8 In cases such as this where the issue of attorney fees is in controversy, a judge of the Workers' Compensation Court must hear and consider all the evidence pertaining to the issue.3 After the hearing, the judge enters an order determining the proper amount of attorney fees.4 Only after an order adjudicating the issue is entered does the matter become ripe for appeal.5 Because, in the present case, the amount of attorney fees was never properly presented for approval to or adjudicated by the Workers' Compensation Court, the order of March 12, 1996, was a nullity as to attorney fees, and this Court lacks appellate jurisdiction of the matter.

¶9 The trial tribunal and the Court of Civil Appeals both found that the Workers' Compensation Court was without authority to modify the order under section 3.6 of title 85. Section 3.6 states that an order of the Workers' Compensation Court becomes final [988 P.2d 1284] twenty days after a copy is mailed to the parties.6 Because Rowland revoked the part of the joint petition settlement addressing attorney fees before an approval order was filed, the twenty day time period did not begin to run as to the matter of the amount of attorney fees.7 Thus, the Workers' Compensation Court and the Court of Civil Appeals erred.

III. Conclusion

¶10 Because the order appealed from in the present case was not ripe for review by the appellate courts as to the amount of attorney fees , the Court of Civil Appeal was without jurisdiction to determine the merits of the appeal. The Court of Civil Appeal's opinion is vacated. The appeal is dismissed for lack of an appealable order. The letter seeking review should be treated as revoking the joint petition settlement as to the amount of attorney fees, leaving the issue pending before the Workers' Compensation Court.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; APPEAL DISMISSED FOR LACK OF APPELLATE JURISDICTION; MATTER REMANDED FOR FURTHER PROCEEDINGS.

¶11 Summers, C.J., Hargrave, V.C.J., Hodges, Lavender, Simms, Kauger, Watt, JJ. - concur.

¶12 Opala, J. - dissents.

FOOTNOTES

1 The City was named as a respondent in the Petition for Review but filed a pleading disclaiming an interest in the appeal and asserting that the controversy is between Rowland and Jones.

2 Okla. Stat. tit. 85, § 30 (Supp. 1992).

3 Id. at §§ 3.6, 30.

4 Id. at § 3.6.

5 Id.

6 Id.

7 Highley v. Schlessman, 1956 OK 18, ¶ 0, 292 P.2d 411, 412, provides:

1. The State Industrial Commission may vacate, set aside, modify or change any order or award within 20 days after such order or award has been entered and a copy thereof sent to the parties and this rule applies to awards entered by the Commission on approval of joint petition settlement. . . .

[988 P.2d 1284]
OPALA, J., dissenting:

¶1 The court vacates today the trial tribunal's order refusing to consider - for perceived want of jurisdiction over the § 84 approval order

¶2 The court's conclusion that the counsel-fee issue remains pending before the trial tribunal seems to rest on its mistaken notion that this claimant had timely revoked his earlier consent to a twenty-percent fee. That is not my view. Claimant's 6 March 1996 letter to the trial tribunal reveals only that there was then a pending controversy in which he stood in a posture adversarial to that of his lawyer over the quantum to be deducted from the achieved settlement. Bearing no stamp that would provide certified proof of its mailing, the March 12 order facially lacks the statutorily mandated indicium of finality for want of compliance with the provisions of

THE ANATOMY OF TENDERED CONTROVERSY

¶3 Claimant sustained on-the-job injuries when working for the City of Tulsa. Finding his impairment to be permanent and total, the Workers' Compensation Court allowed him benefits and allocated a twenty-percent attorney's fee authorized by the terms of

FERGUSON

¶4 Recent jurisprudence - Ferguson and Snyder - teaches that the Workers' Compensation Court's cognizance over its reviewable orders9 is limited by the twenty-day period [988 P.2d 1286] prescribed by law for filing a review petition. Both of these cases deal with the trial tribunal's jurisdiction over those orders, a copy of which was sent to the parties as required by the terms of 85 O.S.Supp.1994 § 3.6.10 The § 3.6 jurisdictional bar, which applies with equal force to settlements as well as to products of adversarial process,11 is an across-the-board prerequisite for ascribing decisional finality. Because the joint-petition approval orders are mandatory12 as well as appealable,13 the provisions of § 3.6 (requiring that reviewable orders be mailed to all parties) govern the § 84 proceedings. It is hence clear that neither Ferguson nor Snyder bars the trial tribunal's consideration of the fee-quantum controversy here.

¶5 When the assigned judge reached the fee-quantum issue for hearing, the twenty-day time bar had not yet dropped - nor has it ever been triggered by the act of sending to the parties a copy of the approval order.14 Failure to send the approval's copy prevented that order from attaining finality status for the fee-quantum controversy between claimant and his lawyer.15 Moreover, mailing of the order's copy to the claimant's lawyer alone would not have been enough to terminate the trial tribunal's cognizance since the lawyer was then in known conflict with his client.16

¶6 Because the norms that govern compensation of workers for an on-the-job injury or death constitute public law,

III

AN ASSIGNED TRIAL JUDGE WILL ON REMAND HAVE JURISDICTION TO EXAMINE INTO THE FEE-QUANTUM CONTROVERSY IN A HEARING IN WHICH CLAIMANT'S LAWYER WILL ACT AS HIS CLIENT'S ADVERSARY

¶7 The trial judge found that she could not modify the fee's quantum because more than twenty days had passed since the March 12 order's entry. She doubtless overlooked the fact that the mechanism which triggers the onset of the twenty-day period was never set in motion. That bar, which is raised by sending a copy of the approval order to the affected parties, automatically drops twenty days later.

¶8 An assigned judge will hence be free on remand to examine into the fee-quantum controversy in a hearing in which the claimant's lawyer will act as his client's legal adversary.

WHILE GENERALLY A REVIEWING COURT SHOULD NEITHER ADDRESS NOR SPECULATE ON ISSUES UNNECESSARY TO REACH ITS DISPOSITION OF THE CASE, IT MUST IN THIS CAUSE NOTICE THE PRESENCE OF SEVERAL DISTURBING PROCEDURAL INFIRMITIES, ALL HAVING THE POTENTIAL SERIOUSLY TO UNDERMINE THE STABILITY AND FINALITY OF THE § 84 SETTLEMENT PROCESS

¶9 By the provisions of Art. 7 § 6, Okl. Const.,

¶10 Revealed to us by this record are three serious deficiencies in the present handling of the § 84 settlement process: (1) the current practice does not require pre-approval trial-level inquiry into the claimant's on- or off-the-record

Lack Of The Claimant's On- or Off-The-Record Waiver Of A Fee-Quantum Hearing

¶11 There is a serious procedural gap in the internal processing of joint-petition settlements

(1) The Legal Characteristics Of A Lawyer's Ancillary Fee-Quantum Claim

¶12 A controversy between the claimant and his lawyer over the quantum of counsel fee to be paid out of the achieved accord is ancillary to the settlement.

¶13 Where, as here, the record reveals no waiver (of right to a fee-quantum decision produced by adversary process), a counsel-fee award recited in the settlement order constitutes no more than a tentative trial tribunal's allocation to the lawyer of the statutorily allowable maximum compensation. The actual fee quantum to be allowed remains a disputed issue yet to be resolved.

(2) The Fee-Quantum Inquiry

¶14 Unless a waiver-resisting claimant will - after receiving a trial judge's on-the-record warning that at the next stage of the tribunal's proceedings the claimant's own lawyer (rather than the respondent-employer) will be confronting him/her as an adversary - request, upon good cause shown, a deferred post-settlement hearing on the issue, the trial tribunal is duty-bound to proceed at once to hear and decide the ancillary dispute over the amount to be awarded the lawyer. No fee-quantum controversy (between the claimant and his lawyer) should ever be allowed to cloud, delay, impair or interfere with a pending § 84 settlement's completion. Nothing less is both parties' due when the claimant should confront a potential challenge from his own lawyer - a professional advocate ordinarily expected to identify with the client's cause until the very end of litigation process.

¶15 Because there is in this cause absolutely no paper trail of this claimant's on-the-record

[988 P.2d 1290]
B.

Unless There Is An On- or Off-The-Record Waiver By Counseled Claimants of An Adversarial Fee-Quantum Hearing, Copies of Joint-Petition Approval Orders Must Be Mailed To Represented Claimants As Well As To Their Lawyers.

¶16 We glean from the record that the trial tribunal does not mail copies of its joint-petition approval orders either to the unrepresented parties or to counsel of record. This court is free to take judicial notice of any jurisdiction-impacting feature of internal operations in a judicial institution that, by the command of § 6,

¶17 Unless an on- or off-the-record waiver of an adversarial fee-quantum hearing is present, orders approving joint-petition settlements must be mailed not only to counsel of record but also to every represented claimant.

The Trial Tribunal Should Implement A System For Monitoring Filings In Claims That Stand Sub Judice In The § 84 Settlement Process

¶18 The trial tribunal seems to have no mechanism to monitor, in cases which stand sub judice for a § 84 settlement approval, those filings which affect the trial tribunal's actions in a then-pending settlement proceeding. We glean this deficiency from the record. It reveals that claimant's critical letter, placed on file 6 March 1996, failed to receive a hearing until one year later.

¶19 [988 P.2d 1291] Claimant's letter should have at once been called to the attention of the judge to whom the settlement proceeding was then assigned. It is critical that a system be instituted to monitor cases awaiting § 84 approval's entry in order that every filing which affects the issues then before the court may be called to the attention of the judge to whom the case stands assigned.

¶20 In sum, I would today invite the trial tribunal's attention to all the disclosed infirmities and call for immediate promulgation of ameliorative rules. The rule changes would effectively fill the present-day procedural vacuum. Nay, they would transform instanter a § 84 approval order into a final adjudication not only of the claim (against the employer) but also of the claimant's adversarial rights vis-a-vis his/her lawyer.

SUMMARY

¶21 I would declare today that (1) the trial tribunal's failure to mail to the claimant a copy of its § 84 approval order prevented the twenty-day jurisdictional bar from being triggered; the fee-quantum issue hence lay within the range of the trial tribunal's then-retained jurisdiction and (2) the Workers' Compensation Court should correct the flaws now present in its internal process to better ensure stability and finality for its orders that approve a § 84 settlement.

¶22 The counsel-fee issue should, on remand, be treated as both severable and severed from the remainder of the approval order. Today's pronouncement - that this controversy over the fee is still pending below - clearly leaves undisturbed the terms of the employer/employee settlement. That approved accord remains unassailed and is hence legally unclouded. It stands protected from re-examination below, although the bar of finality cannot, on this record, be extended to embrace the dispute between claimant and his lawyer. In short, the twenty-day jurisdictional cutoff is not invocable here by the lawyer against his client to defeat the latter's plea for a judicial determination of the fee's quantum in an ancillary post-settlement proceeding to be conducted between the claimant and his counsel of record as forensic adversaries.

FOOTNOTES

1 The final compromise-of-claim process prescribed by the provisions of 85 O.S.Supp.1994 § 84 (infra note 9) is commonly called the "joint-petition settlement". In this writing I refer to that statute-authorized procedure either by its long-time practitioners' parlance or as the § 84 settlement process.

2 For an explanation of the phrase "the § 84 settlement process", see the text of footnote 1, supra.

3 See the terms of 85 O.S.Supp.1994 § 3.6 (providing that a decision of the Workers' Compensation Court does not become final until twenty days after a copy is sent to the affected parties). The pertinent terms of 85 O.S.Supp.1994 § 3.6 are:

C. The order, decision or award of the Court shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court of the state, to review such order, decision or award. Any order, decision or award made by a judge of the Court shall be considered as final under the provisions of this section unless appealed to the Workers' Compensation Court sitting en banc as provided for in subsection A of this section. . . .

(emphasis supplied).

The quoted text was not changed by the 1997 amendment to the statute. See also Scrappers, Inc. v. Wilson, 1990 OK 42, ¶4, 790 P.2d 1116, 1116-17.

4 Jurisdictional infirmities apparent from an inspection of the trial tribunal's record are deemed to be facially vitiating defects. Union Indemnity Co. v. Saling, 163 Okl. 133, 26 P.2d 217, 224 (1933).

5 No bar of finality can ever attach to an issue that was not finally adjudicated.

6 The pertinent terms of 85 O.S.Supp.1994 § 30(D) are:

D. Claims for legal services for temporary disability awards shall be paid periodically. Claims for legal fees for permanent total disability awards shall be paid periodically at the rate of twenty percent (20%) of each weekly check to the claimant until the attorney fee is satisfied, based upon a maximum of four hundred (400) weeks of compensation. . . .

7 Ferguson v. Ferguson Motor Co., 1988 OK 137, 766 P.2d 335.

8 Snyder v. Smith Welding & Fabrication, 1986 OK 35, 746 P.2d 168.

9 The pertinent terms of 85 O.S.Supp.1994 § 84(A) are:

. . . If the Court decides it is for the best interest of both parties to said petition that a final award be made, a decision shall be rendered accordingly and the Court may make an award that shall be final as to the rights of all parties to said petition and thereafter the Court shall have no jurisdiction over any claim for the injury or any results arising from same . . . .

(emphasis supplied).

10 For the pertinent terms of 85 O.S.Supp.1994 § 3.6, see supra note 3.

11 Ferguson, supra, note 7 at ¶11, at 338 n.10 ("the rules governing appellate review of final orders made in an adversarial setting apply with equal force to the review of decisions approving settlement of claims by joint petition" (§ 84 settlement proceedings)).

12 Texas Pacific Coal & Oil Co. v. Morrison, 148 Okl. 205, 298 P. 270, syl. 1 (1931) (there is no settlement unless it is approved).

13 H.V. Higley v. Schlessman, 1956 OK 18, 292 P.2d 411, 414; Conrad v. State Industrial Commission, 181 Okl. 324, 73 P.2d 858, 862 (1937) (awards made upon a joint-petition agreement under 85 O.S.Supp.1994 § 84 are subject to review by this court in the same manner as any other award or decision).

14 Insofar as this record shows, that jurisdictional cutoff has not yet been triggered nor has it ever expired.

15 Cassidy v. Dielsen, 1977 OK 14, 560 P.2d 188, 189 syl. ("To constitute an effective award or decision the same must be filed and a copy thereof mailed to the parties affected").

16 For an explanation of the common-law rule that, when conflict between them arises, lawyers cease to be their clients' agents, see infra note 40.

17 PFL Life Ins. Co. v. Franklin, 1998 OK 32, 958 P.2d 156, 164 n.21; Reynolds v. Special Indem. Fund, 1986 OK 64, 725 P.2d 1265, 1270; Special Indem. Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 (1948).

18 Morrison, supra note 12 at 270 syl. 1.

19 Id.

20 For the pertinent terms of 85 O.S.Supp.1994 § 3.6, see supra note 3.

21 The pertinent terms of Art. 7 § 6, Okl. Const., are:

Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court. . . .

(emphasis supplied).