Gracia v. Bittner

• Decision Date: 26 May 1995
• Docket Number: No. 15672,15672
• Citation: 900 P.2d 351,1995 NMCA 64,120 N.M. 191
• Parties: Romero GRACIA, Plaintiff-Appellee, v. John J. BITTNER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 351

900 P.2d 351

120 N.M. 191

Romero GRACIA, Plaintiff-Appellee, v. John J. BITTNER, Defendant-Appellant.

No. 15672.

Court of Appeals of New Mexico.

May 26, 1995.

[120 N.M. 192] Mark A. Filosa, Filosa & Filosa, T or C, for plaintiff-appellee.

William F. Riordan, Tina R. Sibbitt, Riordan & Associates, Albuquerque, for defendant-appellant.

OPINION

PICKARD, Judge.

Every litigated case is tried at least three times: there is the trial the attorneys intended to conduct; there is the trial the attorneys actually conducted; and there is the trial that, after the verdict, the attorneys wished they had conducted. The questions we address in this case revolve around the extent to which, on appeal of a civil case, an appellate court may review the trial the attorneys wish they had conducted. This case was originally part of our expedited-bench-decision program. Due to the importance of the issues involved, however, we removed the case from the program pursuant to paragraph four of the order adopting it. See In re Court of Appeals Caseload, No. 1-19, Filed Mar. 3, 1993 [reprinted at Vol. 32, No. 25, SBB Section A at 4-5, and Bar Journal, Jan.-Feb. 1995 ed., page 59]. We hold that the issues properly brought to the trial court's attention do not result in reversible error. We also hold that the remaining issues do not fall within the limited circumstances in which an appellate court may review issues raised for the first time on appeal in civil cases. Accordingly, we affirm.

Factual and Procedural Background

This case arose out of a landlord/tenant dispute. Defendant owns over fifty rental units in New Mexico, most of which are inexpensive units that he rents to people of Hispanic origin or heritage, many of whom receive public assistance. Plaintiff and Defendant entered into an oral agreement pursuant to which Plaintiff would be a handyman for one of Defendant's premises and, in exchange, Plaintiff would receive a daily fee plus living quarters. Shortly after this arrangement began, Defendant was unsatisfied with Plaintiff's work. The evidence was disputed regarding with how much certainty Defendant told Plaintiff of this dissatisfaction and regarding what the parties agreed to do about it. It will suffice to say that Defendant testified that he told Plaintiff to leave, and Plaintiff testified that he was still working in and around the premises and was trying to negotiate rent when the events giving rise to this case occurred. Those events were that, while Plaintiff was out of town and his young son with whom he lived was at school, Defendant used his pass key to enter Plaintiff's apartment; Defendant removed all of Plaintiff's and his son's belongings and put them in the parking lot; Defendant put a sign on the apartment saying that the property was moved by police order and that trespassers were not allowed in the apartment; Defendant watched as people browsed through Plaintiff's property; Defendant watched as Plaintiff's son came home from school to this scene; and Defendant made racial slurs about "Mexicans" when questioned about what he had done.

Based on these facts, Plaintiff sued Defendant for violation of the Owner-Resident Relations Act, NMSA1978, §§ 47-8-1 to -51 (Repl.Pamp.1982 & Cum.Supp.1994) (unless otherwise indicated, subsequent references to this Act (the Act) will be to the 1982 pamphlet), for intentional infliction of emotional distress, and for punitive damages. Plaintiff recovered $2,000 for violation of the Act, which was the value of the Plaintiff's property lost due to Defendant's acts; $5,000 for intentional infliction of emotional distress; and $20,000 for punitive damages. On appeal, Defendant argues that the trial court erred (1) in failing to instruct the jury on the employee exception to the Act, (2) in failing to give Defendant's tendered instructions on Plaintiff's status as a trespasser, (3) in instructing the jury that rental agreements under the Act could be either written or oral, and (4) in admitting testimony of a local magistrate judge about the application of the Act.

Because the manner in which these issues were raised is critical to the disposition of this appeal, we explain the procedural facts in some detail. Preliminarily, we note that Plaintiff was represented by the same counsel below as on appeal, while Defendant has new counsel on appeal. Plaintiff's complaint generally stated the facts but did not detail his legal theory of the case. Defendant's answer was similarly general. At trial, Plaintiff's theory of damages for violation of the Act was that he was entitled to recover for his property lost as a result of Defendant putting him out on the street without the sort of notice required by the Act. Defendant took the position that the Act did not apply and notice was not required because Section 47-8-9 states that "the following arrangements are exempted by this act: ... E. occupancy by an employee of an owner whose right to occupancy is conditional upon employment in and about the premises...."

Although it was Defendant's theory that the employment exception applied to this case, the only instructions Defendant tendered on this theory were definitional instructions of what constitutes an employee. The instruction that Defendant contends on appeal should have been given was taken from the uniform jury instructions on respondeat superior, SCRA1986, 13-403 (Repl.1991), and distinguishes employees from other relationships by the employer's retention of the right to control the details of the work. Similarly, most of Defendant's tendered instructions on his theory of trespass were definitional instructions on trespassers and licensees. The trial court expressed its belief that definitional instructions taken from the tort area were irrelevant and that its instructions adequately instructed the jury that it was to determine whether the Act applied. None of Defendant's requested instructions informed the jury that the Act did not apply to employees whose occupancy is conditional on employment.

Neither party alerted the trial court to a 1989 amendment to the Act. That amendment essentially applied the Act to written agreements only, whereas the Act formerly applied to both written and oral agreements. The 1989 amendment substituted "all written agreements" for previous definitional language stating that rental agreement means "all agreements written or oral." Compare § 47-8-3(O) (Cum.Supp.1994) with § 47-8-3(N). At the same time the Act was amended to apply to written agreements only, the Act was amended to obligate landlords to provide such a written agreement, § 47-8-20(G) (Cum.Supp.1994). Plaintiff explained, both in his brief and at oral argument, that he thought Defendant made a tactical decision not to alert the trial court that the Act did not apply to oral agreements because of Defendant's admission that he did not believe in written agreements and typically did not use them. Plaintiff argued that we should hold Defendant to what he assumed was Defendant's tactical decision.

When Plaintiff called the local magistrate to testify, Defendant objected to her testifying as to the law because it was the trial judge's obligation to instruct the jury on the law. Plaintiff explained that the magistrate would not be explaining the law or instructing on the law. Plaintiff wanted the magistrate to testify as to procedure under the Act--how long the procedures take, what is involved, etc. On direct examination, therefore, the magistrate testified that the Supreme Court had promulgated forms for a three-day notice, a seven-day notice, and a thirty-day notice under the Act. The three-day notice was for non-payment of rent; the seven-day notice was for other violations of the rental agreement; and the thirty-day notice was to terminate the agreement. The magistrate explained that once notice was given, the parties could cure any problem and not go to court. If the problem was not cured, a petition would be filed, and the case would be tried on an expedited docket. Even if the landlord recovered possession of the premises, the magistrate would not order possession until a fifteen-day appeal time had run. The thrust of the magistrate's testimony was that the procedure was not without cost, either in dollars or in time. Near the conclusion of the magistrate's testimony, Plaintiff asked whether the magistrate had records of Defendant's use of these procedures. Defendant objected to questions about the magistrate's files, but withdrew his objection to the specific question about whether Defendant had used the Act's procedures, and the magistrate answered that she had.

Notwithstanding Defendant's objections to the magistrate's testimony on direct examination, Defendant's cross-examination appeared to involve the very matters to which he had earlier objected. On cross-examination, the magistrate testified that the Act applied only to rental agreements, that such agreements could be either written or oral, and that neither employees nor independent contractor arrangements are covered by the Act. When Defendant wished to ask her a hypothetical question about whether the Act would apply to the facts of this case, the parties had a lengthy bench conference about whether the hypothetical question was proper and whether the magistrate was now Defendant's witness.

During the bench conference, Defendant announced he would have no further questions of the magistrate. Plaintiff then asked her on redirect examination to clarify whether the Act exempted only employees or both employees and independent contractors. Defendant objected that the magistrate had already answered that question for him. Plaintiff was allowed to have the magistrate read the Act and conclude that the Act used the word "employee," and not independent contractor.

Defendant then approached the bench, seeking permission to question the magistrate further on the issue of employee versus independent...