Empire West Companies, Inc. v. Albuquerque Testing Laboratories, Inc.

• Court: New Mexico Supreme Court
• Writing for the Court: BACA; SOSA, C.J., and WILSON
• Citation: Empire West Companies, Inc. v. Albuquerque Testing Laboratories, Inc., 800 P.2d 725, 110 N.M. 790, 1990 NMSC 96 (N.M. 1990)
• Decision Date: 29 October 1990
• Docket Number: No. 18606,18606
• Parties: EMPIRE WEST COMPANIES, INC., an Arizona corporation, and FSC/Sun Village, an Arizona joint venture, Plaintiffs-Appellants, v. ALBUQUERQUE TESTING LABORATORIES, INC., a New Mexico corporation, and Professional Service Industries, Inc., a foreign corporation, Defendants-Appellees.

Page 725

800 P.2d 725

110 N.M. 790

EMPIRE WEST COMPANIES, INC., an Arizona corporation, and FSC/Sun Village, an Arizona joint venture Plaintiffs-Appellants, v. ALBUQUERQUE TESTING LABORATORIES, INC., a New Mexico corporation, and Professional Service Industries Inc., a foreign corporation Defendants-Appellees.

No. 18606.

Supreme Court of New Mexico.

Oct. 29, 1990.

Rehearing Denied Nov. 28, 1990.

[110 NM 791] Sorenson & Schutte, P.C., Donald C. Schutte, Stephen J. Rhoades, Richard D. Barish, Albuquerque, for plaintiffs-appellants.

Sager, Curran, Sturges & Tepper, P.C., H.R. Thomas, Robert J. Perovich, Albuquerque, for defendants-appellees.

OPINION

BACA, Justice.

Empire West Companies, Inc. (Empire), plaintiff below, appeals from a judgment entered in favor of Albuquerque Testing Laboratories, Inc. (ATL) on a complaint alleging breach of contract and warranties, negligent misrepresentation, and professional malpractice in the providing of soil testing services. We affirm.

Empire, a contractor and land developer, contracted with ATL, a geotechnical company, to investigate subsurface soil conditions in connection with an apartment project, Sun Village Apartments. ATL's services included preparation of a report with recommendations regarding certain geotechnical matters. ATL had originally submitted a proposal for a $3,600 investigation, but the proposal was rejected as being too broad under the circumstances. ATL then submitted a second, more limited, proposal requiring $1,200 in expenses. The second proposal was qualified by the express assumption that the soil at the site was structural fill. The proposal was accepted, but qualified with the disclaimer that the report of structural fill was not represented as fact.

The site of the complex had consisted originally of hills and arroyos. At some time in the early 1960's, a substantial amount of dirt had been placed at the site. It is unclear whether the fill was engineered or unengineered.¹ In 1984, a large quantity of engineered fill was also placed on the site.

Empire West constructed the apartments in accordance with ATL's evaluations and recommendations. After completion of the project, several of the buildings began to show signs of structural problems caused by soil movement, and this suit was brought.

We address the following issues: (1) Whether the district court acted within its discretion by limiting cross-examination of a witness; (2) whether exclusion of certain evidence on hearsay grounds was error; (3) whether admission of the preliminary proposal violated the parol evidence rule; and (4) whether certain findings of fact are not supported by substantial evidence or are otherwise in error.

I. Termination of Cross-Examination Was Within Court's Discretion.

The court, after allowing several hours of cross-examination of Robert Booth, terminated the examination. Empire contends this is reversible error, arguing that, by limiting the cross-examination and precluding inquiry into legitimate, relevant, and material areas before Empire had the opportunity to substantially exercise the right to examine the witness, the district court abused its discretion. Empire correctly asserts that it must be allowed the opportunity to explore the basis of a witness' testimony and question a witness on matters that would further elucidate, explain, modify, rebut, or contradict the testimony. See Callaway v. Mountain States Mutual Casualty Co., 70 N.M. 337, 373 P.2d 827 (1962); State v. Urioste, 94 N.M. 767, 617 P.2d 156 (Ct.App.), cert. denied, 94 N.M. 806, 617 P.2d 1321 (1980); SCRA 1986, 11-611(B). It then indicates a variety of areas it asserts that it intended to pursue on cross-examination and that it legitimately should have been allowed to pursue which were foreclosed by the court's termination of the examination, and it concludes that, by preventing further examination, the court committed error.

The scope and extent of cross-examination is a matter within the discretion of the trial court. State v. Quintana, 69 N.M. 51, 364 P.2d 120 (1961); Francis v. Johnson, 81 N.M. 648, 471 P.2d 682 (Ct.App.1970); see SCRA 1986, 11-611(B). The trial court's decision will not be disturbed absent an abuse of discretion. State v. Melton, 102 N.M. 120, 692 P.2d 45 (Ct.App.1984). The court can exercise reasonable control over cross-examination to more effectively seek the truth and to avoid needless consumption of time. State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980).

The right to cross-examine is valuable and may not be restricted so as to deprive a party of the right to test the credibility of a witness or to preclude elucidation of the testimony. Callaway, 70 N.M. at 342, 373 P.2d at 83. Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940); see Urioste, 94 N.M. at 769-70, 617 P.2d at 158-59 (abuse of discretion to prevent inquiry into area in which defendant reasonably entitled to examine). Only after the right to cross-examination has been substantially exercised does the right to further examination become discretionary. See State v. Talamante, 50 N.M. 6, 165 P.2d 812 (1946).

We do not find an abuse of discretion here. The court allowed several hours of cross-examination, throughout which it indicated that time was a concern. It did not foreclose inquiry into any specific area, but allowed Empire latitude to pursue various issues at length. It observed the effectiveness of the cross-examination and the attorney's use of the time at his disposal. Although Empire may not have been aware that the court intended to imminently terminate the examination of Booth, our review of the record indicates that Empire should have been aware that the court was concerned with pursuing the trial in a timely manner. Moreover, the record indicates that Empire did not object in specific terms to the termination. Empire acquiesced to the court's decision, arguing only in exceedingly general terms that it had more questions without voicing its concern that it intended to go into further areas of inquiry directly relating to the direct examination, or that its case would potentially be prejudiced by preclusion of further questioning. In its Brief in Chief, Empire has articulated a long list of areas that it maintains it intended to pursue. However, it did not make these concerns known to the trial court, and the court, without assistance from Empire, had no reason to know that, by terminating the cross-examination, it precluded inquiry into those areas or potentially abridged the right to cross-examine in legitimate areas. On appeal, we will not review such an allegation of an abuse of discretion. See State v. Martin, 32 N.M. 48, 250 P. 842 (1926) (absent explanation by counsel of what he expected to prove through a line of questioning, limitation by the trial court not reviewable); see also Nichols Corp. v. Bill Stuckman Constr., Inc., 105 N.M. 37, 728 P.2d 447 (1986) (offer of proof essential to show error when evidence is excluded); United States v. Martinez, 776 F.2d 1481 (10th Cir.1985) (limit on cross-examination not preserved for appeal absent explanation of court regarding areas of inquiry); cf. Urioste, 94 N.M. at 770; 617 P.2d at 159 (restriction of cross-examination error when complainant objected and informed court of nature of inquiry).²

Nor would an offer of proof have been futile under these circumstances. Review of the record indicates that the court's concern with time constraints and its belief that further questioning of Booth would be cumulative and repetitive provided the bases for its termination of the examination. Under these circumstances, an offer of some indication to the court that Booth's testimony was critical for specific purposes, and that the substance would not be repeated by other witnesses, could well have convinced the court.³

Nor do we find that the termination of the examination rises to the level of plain error requiring reversal. See SCRA 1986, 11-103(D). Although under the proper circumstances, preclusion of the right to cross-examine may be plain error requiring reversal despite the lack of objection or offer of proof, here Empire had the opportunity to exercise extensively that right without substantial interference; prejudice, if it exists, is not apparent, and no substantial miscarriage of justice appears from the record.

II. Exclusion of Hearsay Evidence was not Error.

The testimony of Empire's witness, Martin Vineyard, a geotechnical engineer, was disallowed on hearsay grounds. Vineyard attempted to testify regarding communications with ATL about the uncontrolled fill at the site. The witness was not sure whether he personally had spoken with ATL, or whether one of his engineers told him of the conversation.

Empire argues the conversation was not hearsay, insisting it was not offered to prove the existence of uncontrolled fill, but to show ATL's notice of that possibility. See Glass v. Stratoflex, Inc., 76 N.M. 595, 417 P.2d 201 (1966); SCRA 1986, 11-801(C). The hearsay in Vineyard's testimony, however, did not involve the statement regarding the fill, but the statement that the engineer had told Vineyard that he had spoken with ATL. The testimony regarding the initial conversation between the unknown engineer and ATL was hearsay, because no one with personal knowledge of the facts was available for examination. See The Kirk Co. v. Ashcraft, 101 N.M. 462, 469, 684 P.2d 1127, 1134 (1984). The testimony was properly excluded on hearsay grounds.

Vineyard's uncertainty as to whether he personally spoke with ATL or was told of the conversation does not affect our decision. Under SCRA 1986, 11-602, a witness may not testify to a matter "unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." The only evidence to support a finding of personal knowledge was Vineyard's statement: "I don't recall if I personally communicated the information or if one of my engineers...